On the 3rd of August 2022, the District Court Midden-Nederland (Court) of the Netherlands ruled that the Mayor of Utrecht (Mayor) did not provide sufficient reasoning to require an anti-abortion association to demonstrate seventy meters away from the abortion clinic—instead of in front of it.
FACTUAL BACKGROUND
In May 2022, the Christian political association, Jezus Leeft, applied to demonstrate in front of an abortion clinic in Utrecht. Their application entailed that the demonstration would be for two hours in the morning, during which three of their members would park an ambulance with a banner. Nevertheless, the Mayor declined and decided that Jezus Leeft could only park their ambulance in a loading and unloading zone seventy metres away from the clinic. Jezuz Leeft appealed the decision.
The reasons formulated in the Mayor’s decision did not pertain to creating a buffer zone in front of the clinic or preventing any ensuing disorder. Instead, the Mayor argued that she was concerned with the traffic situation, given that the pavement in front of the clinic was narrow and located directly next to a bicycle lane. She argued that if an ambulance was parked on the pavement, passers-by would have to swerve into the bicycle lane, where the situation might be worsened by the fact that there were schools and childcare institutions nearby. However, the Mayor did concede that the same situation would apply to the pavement on the other side of the street. In addition to road safety, the Mayor also raised concerns over public health, as the demonstration might not be able to comply with the relevant COVID regulations at the time, requiring people to keep a distance of 1,5 metres.
Jezus Leeft claimed that they did not insist on demonstrating right in front of the clinic – as long as they could view it. Further, they could not see how road safety would be jeopardised if there were only three members in an ambulance for the duration of the demonstration.
The abortion clinic, as a third party in the case, agreed with the Mayor’s decision, stressing the history of other anti-abortion protesters harassing and intimidating women entering the clinic. Based on previous experience, the clinic preferred the demonstration to be held further away.
FINDINGS OF THE COURT
In its reasoning, the Court held that the Mayor had not substantiated the necessity of the imposed regulation and should have considered other less far-reaching measures. Three key points can be found to come from the Court. Firstly, they argued that there was a lack of sufficient evidence showing how three protesters inside an ambulance would fail to follow the 1,5 metre distancing rule.
Secondly, the Court pointed out that the Mayor should have assessed the appropriateness of the parking space opposite the clinic in her decision. The Court stressed that the issue was not about “the safest location” but rather the “necessity” to change the location. It noted that the protestors would not cross the road as they would stay in the ambulance. As there was a pedestrian crossing nearby, it would not lead to an unsafe situation for people crossing the street.
Lastly, regarding the fact that the street was busy with schools and childcare institutions nearby, as Jezus Leeft put forward their intention to demonstrate between 10 and 12 am on the 5th of May (Liberation Day), the Court could not see that the street would have been as busy as described by the Mayor.
The Court concluded that the Mayor could not deny the demonstration location on the grounds of road safety and public health. However, the Court did not grant permission to Jezus Leeft to demonstrate; rather, they put forward that the Mayor must reassess other regulations and relevant standards and make a new decision within six weeks. The Mayor appealed, asking the High Court for further clarification.
Based on the Court’s conclusion, this article argues that the Mayor, and the High Court, should assess the possibility of disorder under article 11 (freedom of assembly and association) of the European Convention on Human Rights (ECHR). As there might be a conflict between the protestor’s right to freedom of assembly and a woman’s right not to be (physically and emotionally) impacted when seeking an abortion at the clinic, the following will analyse if the decision to change the location of Jezus Leeft’s demonstration is compatible with article 11(2) of the ECHR for protecting the rights of others, namely the rights of women.
NO ABSOLUTE FREEDOM OF CHOOSING THE LOCATION
Within limits established in article 11(2) of the ECHR, the right to freedom of peaceful assembly entails, among others, the right to choose the time, place, and manner of conduct of the assembly (Sáska v Hungary, para 21). In this connection, the organiser’s autonomy in deciding the above elements is an important aspect of freedom of assembly. The European Court of Human Rights (ECtHR) in Lashmankin and others v Russia expressly noted that ‘the purpose of an assembly is often linked to a certain location and/or time, to allow it to take place within sight and sound of its target object and at a time when the message may have the strongest impact’ (para 405). Where time and place of the assembly are crucial to the protestors, any decision to change the time or place may constitute an interference with their freedom of assembly. Accordingly, it is reasonable for Jezus Leeft to wish to demonstrate at the location where they can see the clinic so they can deliver their message with ‘the strongest impact’, and the decision to change the location of the demonstration does amount to an interference with their right to freedom of assembly.
However, as already noted, the right to freedom of assembly is not absolute but subject to justifiable limitations. In its case law, the ECtHR has established that article 11 does not automatically allow protestors, for instance, to enter either private or publicly owned properties and set up camp at a location of one’s choice (Appleby and others v the United Kingdom, para 47; Frumkin v Russia, para 107). Imposing limitations on a demonstration held at certain locations is neither a priori incompatible with article 11 for public order, safety, and security reasons (Rai and Evans v the United Kingdom (dec)).
Moreover, states may limit individuals’ freedom of assembly to protect the rights of others. For instance, in Lashmankin, the ECtHR established that ‘a ban on holding public events in the immediate vicinity of court buildings’ aimed to protect ‘the judicial process in a specific case from outside influence’. In this way, the ban protected the rights of the parties to judicial proceedings and thereby served a legitimate interest; however, the ban must be tailored narrowly to achieve the said interest (para 440).
In light of the disorder caused by previous anti-abortion demonstrations, as witnessed by the clinic, the decision to change the location may pursue a legitimate aim of avoiding public disorder and protecting the rights of women seeking an abortion. Nonetheless, it is still contentious if such a decision is necessary and proportionate.
‘NECESSARY IN A DEMOCRATIC SOCIETY’
Even if a limitation pursues a legitimate aim, the biggest challenge of making the final decision may be whether the decision to change the location is ‘necessary in a democratic society’, as required under article 11(2). That is, the High Court has to assess if there is a balance struck between the said purpose—protecting the rights of others (i.e. the women seeking abortion at the clinic)—and the protestors’ right to freedom of assembly. It should be stressed that, in accordance with the principle of pluralism, freedom of assembly protects a demonstration that may ‘offend, shock or disturb’ persons opposed to the ideas or claims being sought to promote (Stankov and the United Macedonian Organisation Ilinden v Bulgaria, para 86). Therefore, to pass the proportionality test, states must provide ‘reasonable and sufficient’ reasons to justify their decision and prove that it answers a ‘pressing social need’ (Navalnyy v Russia, para 143).
In the Netherlands, abortion has been legalised since 1984. Under the current Abortion Act, women can freely get abortions for unwanted pregnancies or health reasons up to 24 weeks, with a five-day ‘reflection period’ (which is to be lifted in 2023). However, the right to abortion did not come out of nowhere—women have battled for it for years. Together with the anti-abortion movements across the globe, one may wonder if the distance of 70 metres away from the abortion clinic, is disproportionate. Alternatively, should women who have fought for their right to an abortion, for which many are still fighting for elsewhere, be respected and protected while exercising this right?
From this perspective, this article argues that the Mayor and High Court should investigate if there is a reasonable expectation that the women seeking an abortion would experience harassment or intimidation if the protest is allowed to occur closer to the clinic. If so, the Mayor should further assess how serious the situation is by, for instance, evaluating the frequency and by engaging with women who would be willing to come forward about the experiences with access, as well as the clinic. Only in this way can the final decisions properly balance the rights of the protestors and women.
Hannah Ji-Jia Liu is a Research Assistant at Institutum Iurisprudentiae, Academia Sinica. She holds an Advanced LLM in European and International Human Rights Law from Leiden University.