Case Summary and Outcome

A Belgian Appellate Court overturned a lower court’s decision and held that a university was entitled to evict students occupying a building in protest over the university’s connections with Israeli institutions during the war in Gaza. After an initial concession from the university and request for mediation were rejected by the student protestors, and after there was a violent incident at the occupation, the university approached the courts ex parte seeking an eviction. The lower court emphasized the right to peaceful protest and stressed that a single act of violence cannot change the peaceful nature of the protests. On appeal, the Court found that the protest was no longer peaceful and that its duration had become problematic. It highlighted safety concerns arising out of the occupation and recognized the university’s willingness to negotiate. The Court held that the university had not intended to restrict free speech or the right to protest.

Facts

On May 6, 2024, students of the University of Ghent (UGent) in Belgium occupied the “Ufo” Building, also known as the Foyer or University Forum of the campus. They slept in tents inside the building as a form of protest against UGent’s cooperation with Israeli universities and research institutes. The protesters used aliases and could not be identified by the university. During the first couple of weeks, the protests at the Foyer were tolerated by the university, provided that the protesters followed the university’s safety instructions (for example, not blocking the evacuation routes).

However, the university’s attitude shifted after an isolated violent escalation of the student protests, which led to damage to the university’s property, some injured personnel and a breach in safety instructions. The student protesters claimed they were not responsible for this violence, but that “outsiders who infiltrated the building” were to blame.

The university’s rector requested that the student protests be brought to an end by May 25, 2024. This request was ignored by the student protesters and the university started a mediation procedure. On May 31, 2024 the university made a public statement that it would partially stop the cooperation between UGent and all Israeli partners connected with the Israeli government but that if a company or research institute did not have any ties with the Israeli government the university’s cooperation with them will continue. On June 3, 2024 the student protesters stopped the mediation procedure and made a statement in the press that the occupation of the building would continue, because they “will not compromise on issues related to genocide and climate”.

As a response, the rector gave the students until June 6, 2024 to vacate the building and remove all their belongings. When this request was once again ignored, the university filed an ex parte petition for a legal notice to vacate its campus and put an end to the students’ occupation of their property [Court of Appeal, Ghent (June 13, 2024), p. 9-10]. In an ex parte hearing, only one party (in this case, the university) is heard by the judge, which means the other affected party does not have a chance to defend itself. In terms of Article 584, para. 4 Belgian Judicial Code, the judge therefore has an obligation to restrain and may only accept the aggrieved party’s ex parte petition in the case of “absolute necessity”. The university asked the First Instance Court to give the protesters a voluntary notice to vacate and that if the protesters ignored this notice, the university demanded a title for forced eviction measures and a prohibition for the protesters to re-enter the university campus.

The First Instance Court rejected the university’s petition. It emphasized the relevant fundamental principles at stake in this case as the right to protest and demonstration and described them as two fundamental rights “derived from freedom of expression and association” [p. 4]. These fundamental rights can be limited by the government when it is “absolutely necessary”, for example when protests could threaten public order, public health, or the fundamental rights of others (such as the right to work and the right to education). The Court is required to perform the “delicate” balancing exercise of these different interests and it stressed that the right to protest only applies to “peaceful actions that do not involve violence against persons or property and do not incite hatred, discrimination, or violence” and that the burden to prove the justification of governmental intervention in citizens’ exercise of their fundamental rights lays with the ex parte petitioner. [p. 4]

The First Instance Court concluded that governmental intervention in the student’s right to protest was not (yet) justified. It referred to different elements that were taken into consideration in reaching this conclusion, including the “sensitive international context (the war between Hamas and Israel)”, the university campus grounds as a “historic breeding place for public debate among students”, the Ufo building being a public building with free access for everyone, and the ongoing negotiations between the university and the student protesters. [p. 5] Regarding the single violent incident, the Court stated that “the violence of one or a few individuals should not be attributed to the group of protesters as a whole”. [p. 6] The Court accepted that the occupation is “obstructive” for the university and “limiting some of the university’s activities” but that free access to the university campus as a whole was not being impeded, nor did the protest caused any “serious or irreparable damage” to the campus. [p. 6] The Court also noted that the student protests did not jeopardize the university personnel’s right to employment and the non-protesting students’ right to education, since the university’s examination activities could be organized in an alternative way. The Court balanced the different fundamental rights at stake, and found that “the university’s right to property cannot outweigh the students’ right to protest”. [p. 7]

The First Instance Court concluded that the university’s ex parte petition for a forced eviction of the student protesters was not “absolutely necessary” and rejected the university’s request for a notice to vacate [p. 6]. It did acknowledge that the occupation of the “Ufo” cannot go on forever and – were the concrete circumstances to change – a different decision could be reached by the First Instance Court in the future.

The university appealed the decision to the Ghent Appellate Court.

Decision Overview

The Appellate Court delivered its decision. The central issue for the Court’s determination was whether the university was entitled to limit the student protesters’ right to protest.

The University argued that the occupation of the Ufo building had made it impossible for the university to continue its educational activities as that, besides the fact that the auditoriums of the building were blocked, there were legitimate safety concerns for the people residing or working inside the building. These concerns included the construction of temporary “kitchens,” tents, and wooden structures by the protesters which had created fire hazards and evacuation concerns. The university also referred to other criminal incidents that had occurred, such as theft, vandalism, and sexually transgressive behavior. The University maintained that the student protesters were being directed by certain third parties (non-students) and there was testimony that “men with beards and of Palestinian origin” enter the building at night and “sleep there with their respective families (wife and children)”. [p. 12]

The Court reiterated the principles mentioned by the First Instance Court that the right to freedom of expression, the right to assembly, and the right to protest are fundamental rights that apply to each citizen and that the government can only limit these rights when it is “absolutely necessary due to public safety, protection of health, protection of fundamental rights of third parties such as the right to work, right to education, protection of property, or for the prevention of criminal offenses.” This intervention must still be proportionate, and the various interests and fundamental rights of those involved must always be weighed against one another. [p. 11]

The Court found that the initial agreements regarding the safety in the building were no longer being respected. The Court found that “the university is pre-eminently a place where protest and a clash of ideas should be possible”, that “students have the right to protest peacefully and to bring certain social issues to the attention of the university or (more broadly) society” and that “the Ufo building is a public building of the university, with free access”. [p. 13] However, the Court held that ever since the violent escalation that occurred on May 24, 2024, the “occupation of the Ufo can no longer be considered a peaceful protest, initiated by engaged students” as both the duration (of over a month) and the size of the occupation had become problematic and have caused considerable nuisances for the university. [p. 13] It noted that as the Ufo building is neither furnished nor intended to be occupied for such a long period, the current use by its occupants has created severe safety concerns.

The Court held that the student protesters were given plenty of time to make their case clear and that the university had been open to negotiation, had partially met the activists’ demands, and had sought mediation which had already caused considerable costs for the university. The Court found the activists’ wish for anonymity as a sign that they were not willing to take any responsibility.

Accordingly, the Court found that the University’s petition to vacate its property was reasonable and proportionate and stated that “the University in no way aims to curtail the activists’ free speech and right to protest now that their point has been made and their demands have been met in part (and in a consultative and transparent manner)”. [p. 13]