On Wednesday, September 29th, 2010, I was with some 30 demonstrators in the metro station Ribaucourt, most of them dressed as clowns, when police prevented us from entering the subway train, pushed us against the wall, handcuffed us and eventually took to the police barracks of Etterbeek. It was not the first time I was arrested while attempting to demonstrate and it would not be the last. What I did not know then and could not possibly predict was that the police would be condemned by a judge for what they did that day.

We are now four and a half years later and what few had thought possible happened: Judge C. Lepaffe awarded me and four others who were arrested that day compensation for damages, payable by the Brussels’ police. The amounts are symbolic, what price can you put on the unlawful deprivation of your freedom? The fact that the preventive arrests of demonstrators, not removing handcuffs when they were no longer needed and taking photographs without permission or reason were sentenced by a judge, is priceless.

The judge elaborates his judgement: there was no evidence of disturbance of public order or attempt to do so by the people arrested in the subway station Ribaucourt, nor did they carry any “suspicious objects”. The statements of applicants are detailed and unified enough to conclude that the conditions of transportation and detention were far from optimal and there were slippages by the police.

For the court it is clear that we were targeted because we participated in the No Border Camp. The concern of the police towards the No Border Camp (according to the threat analysis of OCAD, the Belgian anti-terror body, anarchists from Belgium and abroad would use the No Border Camp to take violent action)¹ was no sufficient reason to proceed to preventive arrests, solely on the basis of the alleged participation in the camp according to the judge.

The argument by the lawyer for the police that some had their faces painted (which is police regulations according to him) the court saw as a justification of the arrest after the fact (a posteriori). The officers did not ask the clowns to remove their makeup and they weren’t masked or unidentifiable. Moreover, it is not uncommon for protesters to use original ways to attract the attention of the public or the media or to give a playful character to the rally, according to the court. “People should, in principle, unless there is a profile of certain danger, be arrested for what they do, not for what they are.” ²

There was no objective evidence to justify an arrest. The statement by police commissioner Vandersmissen that he had given the order to do systematic monitoring of risk groups but respect their right to expression and only to proceed to arrests if there was evidence which indicated a disturbance of public order, was rejected by the court as there were no such evidence in this case.

“It is understandable that the police feared to be ridiculed by protesters dressed up as clowns. This fear, however, was no reason for arrests in connection with an event, unless it was the intention [of the police] to strictly regulate the content and the terms [of the demonstration].” ³

“The administrative detention exercised in the subway station of Ribaucourt, even taking into account the special needs of an event of great magnitude, are contrary to both Article 31 of the Law on Police Services and the European Convention on Human Rights Article 5 regarding the restriction of the freedom and security, and by implication, the right to demonstrate.” ⁴ There was no disturbance of public order, neither current, nor potential and there was no actual or potential violation of the law.

The words used by the judge are clear: the police were at fault, it does not have the right to arrest demonstrators under the pretext that they are planning to disrupt public order. Not even clowns “[who have] the habit of mocking and disrupting the work of the police” according to police commissioner Vandersmissen and who generate a “negative solidarity” towards the police.⁵

Although the sums (between 50 and 150 Euro for each of the five plaintiffs) are small, the moral debt of the police as the judge explains it is very large. Hopefully it gets them thinking and they realize that by arresting and maltreating protesters they too may get their day in court.

1. “Optreden tegen No Border-activisten noodzakelijk en efficiënt” (DWM 5/10/2010)
2. “On doit en principe, sauf profil affirmé d’une dangerosité certaine, arrêter les gens pour ce qu’ils font, non pour ce qu’ils sont.” (JUG-JG N° 246)
3. “On peut comprendre que les policiers aient craint d’être tournés en dérision par des manifestants grimés en clown. Cette crainte ne constitue pas autant un motif valable d’arrestation dans le cadre d’une manifestation, sauf à vouloir en encadrer strictement le contenu et les modalités.” (idem)
4. “L’arrestation administrative pratiquée au métro Ribaucourt entre dès lors, même en tenant compte des nécessités très spéciales d’une manifestation de très grande ampleur, en contradiction, tant avec l’article 31 de la loi sur la function de police qu’avec le CEDH en son article 5, en ce qui concerne l’entrave à la liberté et à la sûreté et par répercussion, au droit de manifester.” (idem)
5. “De plus, les clowns, s’ils sont d’un abord sympathique, ont pour habitude de singer et de perturber le travail des forces de police. En outre, lorsque ces dernières interviennent, les clowns suscitent alors une solidarité que je qualifie de négative faisant que les autres passants ou manifestant réagissent contre les forces de l’ordre même si celles-ci interviennent opportunément et correctement.” (p. 3 du PV d’audition du Commissaire Divisonnaire Vandersmissen du 10 février 2011)

• Full text of the judgement (in French)
• this article in Dutch (on De Wereld Morgen)