FECL 51 (May/June 1997):
The right to demonstrate is formally guaranteed in all Western democracies. This is all the more important since street demonstrations are one of the few means left to average people who are not part of the political or media establishment to express opinions and to draw public attention. It lies in the nature of demonstrations that they are often perceived as a "disturbance" by governments and other power holders, simply because they tend to render visible popular discontent with official policies. However, since this sort of disturbance has no acknowledgeable ground in a democracy for preventing people from demonstrating, authorities tend to emphasise another sort of disturbance connected with demonstrations - that is loud noise in public places, traffic perturbations, and the risk of rioting. All this goes under the catch-all term of disturbance of "public order and security". An assumed majority's right to normality is put against minorities' right to demonstrate.
Nobody will reasonably question the authorities' right and duty to act strongly and with all means of the law against demonstrators who deliberately cause damage to persons and things. But such action should be clearly restricted to individuals who actually have committed or are committing such offences. To prohibit demonstrations or to randomly arrest demonstrators for preventive purposes only is not acceptable in a democratic society.
Authorities have to accept that a certain degree of "disturbance" is inherent in the right of demonstration. After all, the very purpose of demonstrations is to get the publics attention. To restrict demonstrations to areas out of sight of the public and to expect protest marchers to behave as if they were on a shopping tour amounts to depriving demonstrations of any sense.
Nor can one hold all participants of a demonstration responsible for the excesses of some hooligans without this resulting in a de facto abolition of the right to demonstrate.
Participants in a big protest march cannot be expected to show the discipline of a flock of sheep that you can drive into a fenced-in pasture in the morning and bring back to the pen at sunset. Protest marches tend to attract young and lively people. Even if one does not approve of the behaviour of young activists, one should never forget that they are less a threat to democratic society then indifferent conformists, whom the Swiss author Gottfried Keller already in the 19th century characterised as follows: "They never smash street lamps, but neither do they ever light any lamps".
Governments hosting important international events quite regularly react with moral panic to the possibility of street protest. At occasions such as Olympic Games and political summit meetings, the host governments consider any disturbance as a threat to the official show of harmony and unity which characterises such events irrespective of their outcome. In coping with such situations, authoritarian regimes usually resort to a range of "cleansing" operations: they decree emergency regulations, carry out preventive mass-arrests among regime critics and generously put a "conference centre" in some cordoned-off suburb at the disposal of the foreign attendants of "alternative" events - at a safe distance from the place of the official event and out of sight of the media .
It is unfortunate, to say the least, when the authorities of a European country reputed for its democratic and liberal tradition resort to similar methods in their eagerness to prevent "disturbances". If this happens at an EU-Summit with a strong symbolical significance for the whole of Europe, this is a bad omen indeed for the future of civil liberties and democracy in the European Union.
To be fair, Amsterdam is not the first European host city of a Summit, where police resorted to random arrests and ill-treatment of protesters. It also speaks in favour of the Dutch authorities that apart from a young man who had his arm broken, no protester seems to have been seriously injured. This contrasts positively with other international summits in Munich, Lyons and Berlin. However, on those occasions, the security forces were dealing with groups of protesters who actually did resort to violence.
The novelty with the police operations around the Amsterdam Summit, is, on the one hand, their purely pro-active character and, and on the other, their astounding legal motivation and the participation of foreign police. For the first, hundreds of demonstrators were arrested before anything happened and after nothing had happened. After several days of demonstrations and protest marches drawing tens of thousands of people, all the damage done consisted in little more than some broken flag-poles and windows, destroyed flower beds, and a police car turned on the side. To our knowledge, not one police officer was injured. Neither does the police's own list of objects seized from more several hundred people arrested suggest a strong inclination to violence among the protesters. The "weapons" found consisted of 14 knives (mostly pocket knives), 1 awl, 4 screw drivers, 1 gas alarm revolver with a number of gas cartridges and 3 teargas aerosol-sprays.
For the second, random arrests of hundreds of people, including passers-by, were based on the alleged suspicion of "membership in a criminal organisation". The use of this offence obviously served a double purpose. On the one hand, it enabled the immediate arrest of people who had not committed any other, more concrete offence justifying such a measure. It thereby allowed the police to clear the street of "disturbing" elements pending the end of the EU summit. On the other hand, and this is maybe the most disquieting aspect, through reference to the offence of "membership in a criminal organisation" the police was authorised to make use of extensive investigation techniques and to collect comprehensive personal data, far beyond what is allowed in normal criminal investigations. The big question is what is going to happen to these data, in particular if the persons concerned are not convicted or even formally charged. Considering the strong presence of police from other EU member states in Amsterdam and the general European context, the question is particularly relevant.
Improving cooperation both in maintaining "public order and security" and in the fight against "organised crime" has been a constant priority on the agenda of both the Schengen countries and EU Justice and Home Affairs cooperation. Thus, for example the Schengen Information System (SIS) is mainly an instrument "to maintain public order and security, including State security" (Article 93, Schengen Implementing Agreement, SIA). Article 99.3 SIA authorises reports of persons to the SIS for the purpose of so called "discreet surveillance" and "specific checks". People registered in the SIS according to this provision are not suspected of any specific offence but are regarded by the reporting national police or intelligence services as interesting from a public security point of view. People reported on the above grounds are denied any information about whether or not they are registered. With respect to the Amsterdam events it cannot be excluded that Dutch authorities report persons arrested to the SIS and exchanged the personal data collected at their arrest (including photographs and fingerprints) with police and security authorities in other Schengen member states via the SIRENE-network. If we assume that other member states decide to proceed the same way with personal data of "undesirable" political activists, the SIS/SIRENE structure will quickly develop into a powerful instrument for the observation of the movements and behaviour of people innocent according to the law, for the purposes of political policing.
There is more. Less than a month before the Amsterdam police operation, the Justice and Home Affairs (JHA) Council adopted a proposal - incidentally from the Dutch presidency - for "joint action". The Joint Action provides for cooperation in connection with events, such as "sporting competitions, music concerts, demonstrations and road blockades", attracting many people from several member states (see article on JHA Council meeting in this issue).
Strikingly similar projects are currently being discussed within the Schengen framework. A draft Handbook on police cooperation in the field of public order and security (SCH/1 (97) 36 rev 3, 15.5.97) by the Schengen "Working Group Police and Security" also names the types of events listed in the aforementioned JHA document, but is more specific. Thus, it expressly states that cooperation can also relate to the movements and activities of groups, "irrespective of their size", which "may pose a threat to public order and security". Information exchange is to be improved through the use of a standardised procedure. Questions in a "checklist" in the annex to the document relate to the estimated number of people participating in the event in question, the nature and composition of participating groups, their motives and intentions, their gathering places and times, their travel routes, their means of transport, etc. Furthermore the handbook provides the design of joint ad hoc "operational centres" to be set up in the member state hosting a particular event. This implies that at a next Summit, besides the police of the hosting country, police from other member states could officially be part of the police command structure in charge of maintaining public order and security at the event in question.
In recent years the need to fight against "international organised crime" has been used as a pretext for gradually extending the powers of the police, introducing new types of offences and legitimising almost boundless gathering of personal data. The fight against "organised crime" has been the main argument justifying the creation of Europol and of a barely overseeable number of often overlapping structures of police and security cooperation. The public was told that this legal and police re-armament was directed against criminal organisations of car thieves, immigrant smugglers, drug dealers, paedophiles and terrorists. Nobody listened to the persistent warnings of civil liberties circles that such poorly defined terms as "criminal organisation", "organised crime" and "membership" in such an organisation opened wide the door to arbitrary infringements on the fundamental rights and liberties of innocent people. The Amsterdam events are not likely to diffuse such concern. They show that in the EU, the mere expression of political dissent can indeed lead to your being treated as a presumed member of a criminal organisation, with all the ensuing consequences ranging from pro-active observation, computerised storage, processing and exchange of sensitive personal data, to arbitrary detention and removal from an EU member state.
Recent Schengen and JHA documents appear in a new light against the background of the Amsterdam events:
Take, for example, the EU Convention on Extradition signed last year. It provides, among other things, for the "automatic" extradition of a person on the grounds of contribution to or membership in a criminal organisation, without the need for any evidence indicating that the person concerned personally committed any offence (see FECL No. 45: "Europol Convention ready for ratification").
Take the High Level Group's recent proposal for "joint action" to the effect that all EU-member states would commit themselves to make membership in a criminal organisation an offence under their national law (see article on the HLG, p.7 in this issue).
In view of the above the established involvement of foreign police liaison officers in the Amsterdam events and the eargerness shown by the police of several member states to collect as much information as possible on arrested people is even more disquieting. Was the police action against the protesters at the Amsterdam Summit an advance test-run of emerging European structures of police and justice cooperation? Is this the "area of freedom, security and justice" established by the Amsterdam Treaty?