The Municipal Ban and the Proportionality Test
The city of Mechelen adopts a police regulation banning all demonstrations in the central square for six months, citing repeated clashes between two political groups. A peaceful group opposed to a local housing policy applies to hold a 90-minute static gathering of 40 people on a Saturday afternoon. The mayor refuses, relying on the blanket ban. The group challenges the refusal before the Council of State (urgent procedure) and also invokes the European Convention on Human Rights. The city argues that the ban is general and neutral, and that the square is a busy commercial area. No specific incident is attributed to the applicant group.
1. Assess the legality of the blanket ban and the refusal in light of freedom of assembly.
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Framework. Freedom of assembly is protected by art. 26 of the Belgian Constitution and art. 11 ECHR. Prior authorisation regimes are tolerated only if they serve a legitimate aim and are proportionate; a blanket, area-wide ban for six months is a serious restriction requiring strict scrutiny.
Legality. A municipal police regulation must stay within the limits of the municipality's competence and cannot impose a general, absolute prohibition on a fundamental freedom. A total ban on all demonstrations in a central square, regardless of size, purpose, or risk, is overbroad: it is not the least restrictive means. The city could have required notice, imposed conditions, or restricted specific groups.
Application to the applicant. The refusal relies on the blanket ban, not on any specific risk from this group. A peaceful 40-person static gathering for 90 minutes does not, on the facts, justify prohibition. The city's 'busy commercial area' argument is a justification for conditions (time, route, numbers), not for a ban. The refusal is disproportionate and likely to be annulled.
2. How should the Council of State reason in the urgent procedure, and what remedy is available?
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Urgent procedure (référé administratif). The Council of State's president examines (i) whether the administrative act is seriously unlawful, and (ii) whether there is an urgent need to prevent irreparable harm. Both are present: the gathering is scheduled for a specific Saturday, and a lost opportunity to demonstrate is irreparable.
Serious unlawfulness. The blanket ban is seriously unlawful for overbreadth and for lack of individualised reasoning. The refusal does not explain why this group poses a risk.
Balance of interests. The city's interest in public order is real but can be met by conditions (e.g. a defined time slot, a fixed number, police supervision). The applicant's interest in expressing a political view is high.
Remedy. The Council of State can suspend the refusal and order the city to allow the gathering under conditions, or annul the regulation. In urgent proceedings, suspension with immediate effect is the typical outcome, with the city bearing the obligation to ensure order without prohibiting the assembly.