Climate protesters convicted of defacing Girl with a Pearl Earring will not go to prison

The Court of Appeals in The Hague has decided not to punish three climate activists found guilty of defacing the Johannes Vermeer painting Girl with a Pearl Earring. The court ruled on Monday that jail time or a fine is “in principle” a justifiable response to the crime but was more concerned about the prospect of trampling on rights to free speech and expression.

“The court is of the opinion that the application of criminal law may not be so drastic as to have a ‘chilling effect' on people who want to exercise their right to freedom of expression and freedom of peaceful assembly in the context of a protest action,” the court wrote in a statement. “The activists were held in pre-trial detention after their arrest. Given the duration of pre-trial detention, the court believes that imposing a prison sentence is too drastic.”

On 27 October 2022, the three Belgian men entered the Mauritshuis Museum in The Hague. Two of them glued themselves to the glass plate and back wall of the Girl with a Pearl Earring painting, and one threw a red substance over the other. The third person recorded the action for the media.

In its review of the facts, the court said it was proven that the suspects’ actions caused damage to the painting’s frame, protective pane, and the fabric-covered panel behind it. They also directly caused the Mauritshuis to remove the painting from public view for the period of time needed to examine the iconic artwork and determine the best manner in which to rehang the painting.

When the suspects were first tried, the court sentenced the three men to 2 months in prison, one of which was conditionally suspended, with a probation period of two years. The appeals court upheld the convictions but scrapped the punishments.

“The action of the Belgian men has had a major impact on society. This method of expression has unnecessarily infringed on the rights and interests of others,” the appeals court said. Punishment is, in principle, appropriate for the actions. But given the time the men spent in pre-trial detention, “the court believes that imposing a prison sentence is too drastic.” The court also worried that additional punishment would deter people from exercising their right to peaceful demonstration.

The court ruled that the three men broke two laws, first by being “complicit in intentionally and unlawfully destroying, damaging or rendering unusable any property that belongs in whole or in part to another.” The second conviction was for damaging property as part of a group effort.

The court also said that the suspect who identified himself as a journalist covering the protest was not entitled to protections granted to reporters covering a news story. Instead, the court ruled that the evidence presented in the case showed he coordinated with the other suspects about plans to shoot video of the protest and quickly distribute an edited version with the intent of wider media coverage.

The court ruled that “the suspect's actions were based on participating as an activist in the climate protest.” It noted that the man agreed to write press releases, and send them to Extinction Rebellion’s media contacts. As such, his work was more aligned with a marketing plan than independent journalism, the court said.