The right to peaceful protest and criminal law
On April 29, 2023, a Greenpeace protest took place at the Fluxys gas terminal, in the port of Zeebrugge. As part of that protest, some climate activists climbed onto a specific installation to denounce the role of European gas operators in the recent spectacular increase of American liquefied gas towards Europe.
On Nov. 15, 2023, the climate activists were found guilty by the court in Bruges of unlawful intrusion into the critical infrastructure of the port facility. Those same activists did receive the court's favor of staying the sentencing.
Unlawful intrusion into port areas
Article 546/1 of the Criminal Code states the following:
"With imprisonment from eight days to six months and with a fine from 26 euros to 500 euros or with one of these punishments alone shall be punished he who, without being authorized or permitted to do so, enters or intrudes into a port facility or into real or movable property within the limits of a port."
In some cases, a higher penalty may be imposed, in accordance with Article 546/2 of the Criminal Code.
Suspension
Although the climate activists were not sentenced to any of the effective penalties listed in the Penal Code as a result of their protest.
Indeed, they received the favor of the suspension of sentencing.
More specifically, that favor means that while the court determines that the defendants - in this case, the climate activists - are guilty of a crime, no conviction (and therefore no concrete punishment) is handed down.
Only defendants who have not yet been sentenced to a prison term of more than six months in the past are entitled to that favor, provided the crime of which they are guilty is not theoretically punishable by a prison term of more than 20 years.
Relationship between right to peaceful protest and criminal law
The right to peaceful protest (an aspect of freedom of assembly and association) is protected by Article 11 of the European Convention on Human Rights ("ECHR").
While that right is not absolute, and punishments for unauthorized or prohibited protests are not necessarily in violation of freedom of assembly and association.
According to the European Court of Human Rights ("European Court" or "ECtHR"), which does always require specific justification when sanctions against protesters are of a criminal nature, it is primarily the nature and severity of the punishments imposed that determine whether there is an unlawful restriction on the right to peaceful protest.
For example, several cases in which only limited fines (up to EUR 500) were imposed on demonstrators have already passed the test of the European Court.
Thus, the fact that the court granted the favor of suspension in this case need not, in itself, constitute an unlawful curtailment of the climate activists' right to peaceful protest.
Judgment Laurijsen et al. v. Netherlands
Following the judgment of the correctional court in Bruges, the European Court did issue a new relevant judgment, concerning a peaceful protest in Amsterdam, in the context of which a mild penalty of EUR 100 was still considered an unjustified violation of the right to protest.
More specifically, the case concerned a protest to prevent a squat from being cleared by the Dutch police. That protest took place without too much trouble. In any case, the individuals who eventually went to the ECHR were by no means troublemakers. The only thing they were guilty of was not wanting to leave the site of the protest, after several reminders by the police.
Eventually, with some show of force, they were still expelled by police forces and prosecuted for participating in an illegal gathering and not complying with a police order.
Although Laurijsen and co were acquitted by the first judge, they were convicted - following an appeal by the Public Prosecution Service - by the Court of Appeal and the Supreme Court (the Dutch equivalent of the Belgian Court of Cassation). Indeed, the latter bodies held that the protesters were intent on confronting the police and physically preventing the eviction of the squat and that, consequently, the right to protest did not apply, resulting in punishment.
However, the ECtHR considered that conviction an unwarranted violation of Article 11 of the ECHR; largely because the Court of Appeal and the Supreme Court simply stated that the specific protest (as a whole) was not protected by the right to protest, without analyzing whether or not the protesters were acting peacefully.
Greenpeace case following Laurijsen et al. ruling.
No doubt the recent ECHR ruling will have an effect on the case against the climate protesters in Belgium (to the extent that appeals are filed by one side or the other).
Indeed, the question now will be whether a suspension - however mild that criminal sanction may be - at all does come into play, given that the activists (as in the Netherlands) also acted peacefully and simply refused to follow police orders.
At the very least, it will be necessary to examine whether an application of the criminal provision (concerning the intrusion into port areas) to protesters is consistent with Article 11 of the ECHR (and with Article 10 of the ECHR, if we take the even more recent case of Bryan et al. t. Russia charge). Or else, is there a special justification for the application of the Penal Code in this case?
In any case, the criminal provision concerning the intrusion into port areas was created to respond to the lamentations of the port companies, concerning transmigrants who increasingly try to enter Belgian port facilities in groups to make the crossing to Britain, and not to prosecute protesters.
Possibly from the government's perspective, it would have been more legally correct (at least less contentious) to impose an administrative penalty, for lack of a permit, for example.
Do you have questions about the right to protest, suspension or entry into port areas? Our experts will be happy to inform you! Contact us at info@bannister.be or by calling 03 369 28 00.
