It is not up to the municipalities to restrict freedom of expression, the court said. Only the Upper and Lower Chamber may decide on this.
Since last year, street harassment has been made punishable under the General Local Regulation (APV) in Rotterdam and Amsterdam. Hissing, cursing and cat-calling, among other things, incur a fine of up to 4100 euros or up to three months in jail.
A number of suspects were arrested in Rotterdam last year. To investigate whether the criminalization via the APV is legally tenable, the Public Prosecution Service in Rotterdam decided to bring two cases to court. One of these cases has now been dealt with by the court.
The man in question has harassed three women by sexually addressing them and giving them hand kisses. According to the court, it has been proven that he did that, but he cannot be convicted because street intimidation should never have been punishable by the municipality.
Nor does the Rotterdam provision make it sufficiently clear where the boundary lies between permissible and intolerable behavior. According to the court, that is necessary according to the European Convention on Human Rights.
The suspect was previously acquitted by the sub-district court judge for making remarks, because that falls under the freedom of expression. In two cases he had been fined 100 euros for kissing the hands of women.
The court also acquitted him from charges that he kissed hands, because according to the court there is no distinction between “verbally or physically revealing thoughts or feelings”. Both fall under freedom of expression.
The Alderman for Enforcement Bert Wijbenga thinks it is a shame that Rotterdam has been called back by the courts. “I urge the national legislator to speed up the law,” he said in a response. “Arrange this quickly, then we can continue with the fines.”
Wijbenga pointed to the Rotterdam efforts against street harassment, with a campaign against “dirty talk” and an app where women can report undesirable behavior. According to him, more than a thousand women have filed a multitude of complaints. “That way we know where we can check.”
The alderman wants to launch a similar type of app for LGBT people. “We will not be fooled and continue our campaign,” he says. “We continue with all those things and we are not the only ones. Many cities are troubled by this. The street is sometimes not a pleasant place, and it should be.”
In the House of Representatives there is a PvdA and CDA initiative to criminalize “sexual harassment in public” throughout the country. The initiators Asscher and Van Toorenburg cited an example of this in their explanation. The Chamber still has to deal with the proposal and it is not yet clear whether there is a majority in favor. Some parties have expressed their sympathy in the written preparation, but there are also questions about enforceability.
The government is also working on a bill for separate criminal provisions for sexual harassment. Minister Grapperhaus intends to make sexually explicit comments or gestures punishable in public. But according to a spokesperson for the Ministry of Justice and Security, hissing is not intended to be included.
Grapperhaus wants to present the proposal in the spring. Before it is submitted to the House of Representatives, citizens and authorities will be able to first comment on it.