The right to demonstrate protects more than you might think. But it is not a free pass. A legal guide through the constitution, criminal law and the most recent case law of the Supreme Court.
30 May 2026 · 12 minutes reading time · based on Supreme Court rulings 2025–2026
Constitution art. 9 • ECHR art. 11 • Public Assemblies Act • Supreme Court 2025–2026 • Climate activism
A motorway blocked. A tram daubed with paint. A mayor stepping in with an emergency order. Demonstrating is one of the most visible expressions of democratic life — and one of the most legally charged. How much protection does the law offer people who claim public space? And where does criminal law begin?
The fundamental right: protection is the starting point
Article 9 of the Dutch Constitution recognises the right of assembly and demonstration. Article 11 of the European Convention on Human Rights protects peaceful assembly. Neither is absolute, but the bar for restriction is deliberately set high: the government may regulate the logistics — time, place, route — but never the content of the message.
The Public Assemblies Act (Wet openbare manifestaties, WOM) gives this practical effect. Restrictions are permitted solely to protect health, in the interest of traffic, or to prevent disorder. A municipal by-law without that statutory basis simply may not restrict a demonstration. The Supreme Court confirmed this unequivocally this year:
“This provision cannot therefore be applied to restrict the right to demonstrate as referred to in Article 9(1) of the Constitution.”
Supreme Court 2026, ECLI:NL:HR:2026:483
Criminal law is no exception to demonstrating — but nuisance is no exception either
The fundamental right protects participation in a demonstration, not every act within it. Ordinary criminal provisions remain applicable: public violence (Article 141 of the Criminal Code), endangering road traffic (Article 5 of the Road Traffic Act), failure to comply with an official order (Article 184 of the Criminal Code). But: nuisance, inconvenience and temporary disruption of ordinary life are no reason to place someone outside the protection of fundamental rights.
What is decisive is whether the person concerned has committed a “reprehensible act” themselves — an individual criminal act, separate from the demonstration as a whole. In the tram-painting ruling (Supreme Court 2025), prosecution was permitted because the activist had caused damage while she could also have expressed her opinion by other means. Without an individual reprehensible act, the protection of Article 11 ECHR remains intact, even where the police intervene.
How does the court assess criminal enforcement? A three-step test
- Is the demonstration peaceful? A demonstration with violent intentions falls outside the protection of Article 11 ECHR. Where the intention is peaceful, protection is the starting point.
- Has the individual participant committed a reprehensible act themselves? Damage to property, public violence, a serious road blockade endangering third parties — these break through the protection. Ordinary nuisance does not.
- Is the overall government response proportionate? Removal, arrest, deprivation of liberty, prosecution and punishment are assessed together. As soon as less far-reaching measures would have sufficed, any further action is disproportionate.
That third step is crucial. In two rulings from 2025 (ECLI:NL:HR:2025:1313 and ECLI:NL:HR:2025:1436) the Supreme Court held that peaceful occupations — of a ministry and a bank — did not justify hours of arrest and prosecution, since removal would have sufficed. If the overall response is disproportionate, the criminal provision must be left unapplied. Outcome: discharge from all further prosecution.
The chilling effect: criminal law must not discourage demonstrating
Behind the proportionality test lies a deeper principle: the prohibition on an impermissible “chilling effect”. Criminal sanctioning must not structurally discourage the willingness to demonstrate. This is more than an individual assessment — it is a systemic test of whether criminal law undermines the fundamental right at its core.
The District Court of The Hague applied this concretely in 2026 in cases involving the A12 protests. Chaining oneself to a tunnel wall formally fell under Article 184 of the Criminal Code, but in a peaceful action without damage, further prosecution was not necessary (ECLI:NL:RBDHA:2026:12907). Conversely: blocking the A12 with vehicles, in the course of which an ambulance was obstructed, was indeed punishable — that exceeds the level of nuisance acceptable from a demonstration (ECLI:NL:RBDHA:2026:12915).
Emergency orders: the mayor needs more than haste
When a mayor issues an emergency order (Article 175 of the Municipalities Act) instead of using the regular WOM powers, stricter requirements apply. The Amsterdam Court of Appeal put it sharply in 2024:
“The mayor must provide the emergency order with sound reasoning and, where at all possible, it must be preceded by careful preparation.”
Amsterdam Court of Appeal 2024, ECLI:NL:GHAMS:2024:3747
If the emergency order states that WOM instruments were used first but this does not appear from the case file, it fails the subsidiarity requirement. The consequence under criminal law: acquittal of the charge under Article 184 of the Criminal Code. An additional defence: an order to terminate based on Article 7 WOM may only be prosecuted via Article 11 WOM, not via Article 184 of the Criminal Code. Confusion about the legal basis has repeatedly led to acquittals in practice.
Organisers: not liable for what others do
A frequently asked question is whether an organiser can be held criminally liable for the conduct of participants. The answer is: no, not on the basis of their role as organiser alone. The Supreme Court confirmed in 2026 (ECLI:NL:HR:2026:115) that co-perpetration requires close and deliberate cooperation, with a contribution of sufficient weight to the specific criminal offence. Being present, providing logistical support or publicly defending a demonstration is not enough. Criminal liability only arises in the case of an individual act — such as ignoring a WOM requirement — or where there is demonstrable direction of the criminal conduct of others.
In conclusion: criminal law as a last resort, not a first response
The case law of the Supreme Court and the lower courts over 2025–2026 gives a consistent picture: the right to demonstrate is the starting point, the WOM the normal framework for restriction, and criminal law the closing piece. Nuisance and disruption are the price of a democracy that takes the fundamental right seriously. Vandalism, violence and serious endangerment break through that protection — but even then, every step in the enforcement chain requires its own constitutional justification.
Frequently asked questions
Can the police simply remove me from a demonstration?
Not just like that. Removal is only permitted on the basis of the mayor’s WOM powers or in the case of actual disorder. The measure must be proportionate and based on the interests set out in Article 2 WOM: health, traffic or the prevention of disorder. Removal without proper grounds is unlawful.
Can I be prosecuted if I fail to comply with an order?
Only if the order has an adequate statutory basis, was recognisable and was directed at you as a person. In addition, the criminal court assesses whether the overall response — arrest, prosecution and punishment combined — was proportionate. In peaceful actions without damage, prosecution may fail on the ECHR proportionality requirement despite proven non-compliance, with discharge from all further prosecution as the outcome.
Is a road blockade always punishable?
Not by definition. The court assesses whether the blockade exceeds the normal nuisance of a demonstration and whether actual damage or danger to third parties has arisen. A prolonged blockade with vehicles during the day, obstructing emergency services, has been held punishable. A temporary blockade by seated demonstrators without damage led, in comparable cases, to discharge from prosecution.
May a mayor ban a demonstration?
Yes, but only on the grounds exhaustively listed in Article 2 WOM and after notification. A ban is a measure of last resort. The court reviews reasoning, proportionality and subsidiarity rigorously. A general ban without concrete factual support is, in practice, quashed.
Am I, as an organiser, responsible for what participants do?
No, not on the basis of your role as organiser. Criminal liability requires that you commit a criminal offence yourself or have demonstrably directed or facilitated another person’s specific criminal conduct. Merely organising, being present or publicly defending the demonstration is insufficient for co-perpetration or incitement.
What is a “chilling effect” and why is it legally relevant?
A chilling effect occurs when criminal enforcement or the threat of prosecution discourages people from exercising their fundamental right. Courts weigh this when assessing sanctions: a criminal response that is too heavy or too broadly deployed may conflict with Article 11 ECHR, even if the offence is formally proven. In recent climate-activism cases, this defence repeatedly led to discharge from all further prosecution or to strongly mitigated sanctions.
Can I object to a mayor’s decision about my demonstration?
Yes. An objection can be lodged with the municipality against a WOM decision, followed by an appeal to the administrative court. Because demonstrations usually take place before the administrative procedure, a request for an interim measure (suspension of the decision) is in practice the most effective remedy. A legitimate interest continues to exist even after the demonstration, for a review of lawfulness afterwards.
