“Discord, division, contempt, hostility, intolerance, are not criminal concepts. The use of such political concepts to justify judgments against political opponents is only common in countries such as Iran.”
The full absurdity of the Amsterdam court’s case against Geert Wilders is made evident by the context concerning the Dutch penal code and the manner in which the laws have been enforced (or not enforced) since they appeared on the books.
Our Flemish correspondent VH referred earlier to various articles and writings in the Dutch media about the case. Now he has taken the time to compile an in-depth report based on translations from several Dutch-language sources. He says:
Here is the complete newspaper article on Wilders’ case by Afshin Ellian. I added a part of an article on Hans Janmaat, who was sentenced under Article 137.
Underneath I also added some other “considered potential” Article 137 cases.
First, from De Volkskrant:
Wilders is not allowed what the Hofstadgroep [Jihadis] is allowed
By Afshin Ellian
The Amsterdam Court condemned Geert Wilders unsolicited and without having conducted a fair trial. This is an appalling attempt to block the process of free ideas, Afshin Ellian states.
The thought is free, only actions can be punishable. But it seems the non-violent opinion is no longer free. And that the threat of violence no longer applies as being the limit in criminal law to expressions in language. When the non-violent opinion is no longer free, nothing separates us from tyranny anymore.
Recently something disconcerting happened in the Netherlands: by issuing an order, the Amsterdam Court threw a number of criminal law principles into the trash. Democracy is put under pressure not only by evil forces in society, but also by judges who judge in the style of the Ancien Régime.
By order of the Amsterdam Court, MP Geert Wilders has to be prosecuted for inciting hatred and discrimination (Penal Code, Article 137d) and the insult of a group (Penal Code, Article 137c). Member of Parliament Hans Janmaat was also prosecuted years ago [and violently demonized — his secretary lost a leg due to an attack by the Extreme Left — but he was also victim of a cordon sanitaire in Parliament and by the MSM; the Socialist Ad Melkert even blocked the publishing of his autobiography]. His punishable views in those days, are today shared by many. But MP Leen van Dijke [who said “Why would stealing, for example committing social welfare fraud, be less of a sin than going against the seventh commandment? Yes, why should someone in a homosexual relationship be better than a thief?”] was acquitted of inciting hatred and discrimination on the basis of, hold your breath… the Bible. The anti-discrimination legislation is therefore applied in a discriminatory manner. With a holy book in hand, a gay-hater may walk straight through our law. The court distinguishes ordinary opinions from sacred opinions, which points out that they have no idea what to do with opinion violations.
Law Scholar J.M. van Bemmelen (1969) considered Articles 137c and 137d from the thirties, and the new version of it from the seventies, as very vague and broad. The Law Scholar A.H.J. Swart wrote in 1970: “It is not surprising that with the parliamentary debate there was little enthusiasm for the three new articles [the updated versions] displayed. Also the government itself one cannot suspect of that [enthusiasm]. “The skeptical reception of these articles is justified”.
In its explanation of the legislative history, the Court quoted with regard to these law articles the Parliamentary documents of the thirties and not those of the seventies. This is not so hard to understand: With an at first sight legal, but in fact emotional appeal to the Nazi period, the possibility of punishment has already been proven in our country, the Court must have thought.
In the Parliamentary papers of the seventies, we can see how the legislature tried to eliminate the concern about a too broad application of the anti-discrimination legislation: “That with the presently proposed text all kinds of doubtful cases would remain, is what the undersigned do not understand. In answer to the related question, they note that insulting ‘guest workers’ is not within the scope of the proposed provision.”
Unfortunately, this optimism did not become reality. The Amsterdam Court had to assess the feasibility and appropriateness of the complaint against Wilders. Although the Court did not need to limit itself to a marginal review, it does so in practice. With a full review concerning content, according to authoritative criminal law scholars, the prosecution policy would be in the hands of “irresponsible” judges. For these judges are, after all, democratically uncontrollable. Therefore President Corstens of the Supreme Court is of the opinion that this review must be done with the necessary caution. This, however, did not happen.
– – – – – – – – –
What was at stake here? No one has been murdered, nor has anything been stolen. It’s all about opinions. There had merely been complaints filed. There was no summons and no criminal law hearing. Nevertheless, the Amsterdam Court wrote that it “first will answer the question whether the expressions Wilders is accused of are criminally accusable under Dutch law”. And all this without an accused, without a hearing, without criminal charges, without an indictment, without a plea and without declarations by expert witnesses. Explicitly, the Court expresses itself many times on Wilders’ statements — and condemns him. The “fair trial” principle is trampled by the judges of the Amsterdam Court.
According to them, “the question is whether Wilders knew or should have understood that the risk of initiating the consequences (insulting a group of people and incitement to hatred) might occur”. The Court itself finds it to be so: it is about “intention”, on “knowingly and willingly”, on Wilders’ intention to incite hatred.
Wilders wants, according to the Court, to “cause discord division with regard to the Muslim population, to induce the Dutch population to discrimination, intolerance, contempt and hostility against that group of believers, as well as to cause fear amongst them.”
Of these words there is only one with a possible criminal charge: “discrimination”. Discord, division, contempt, hostility, intolerance, are not criminal concepts. The use of such political concepts to justify judgments against political opponents is only common in countries such as Iran.
The Court admits that because of the political-social context the criminality can be cancelled out. But that only applies to “the scientific, religious, journalistic, artistic and humorous exception”. But what about politicians? Freedom of expression is supposed primarily to serve liberal democracy in the hope that citizens, through an exchange of opinions, can come to a reasonable decision. Judges who have contempt for politics, those are the only a threat to the rule of law.
No one has been murdered, nothing was stolen. It’s all about opinions.
The Amsterdam Court cites a number of decrees in relation to the European Convention on Human Rights (ECHR). The Court in The Hague in January 2008, while using the same decrees came to a completely different conclusion in the case of the Hofstadgroep [the Jihadi group to which the murderer of Theo van Gogh belonged]. The Court in The Hague found that what the Jihadists were reading and distributed were subject to the freedom of expression and religion.
Why did the Court in The Hague reach that conclusion? Because the judge must be truly impartial in debates on issues in society. The Court wrote on this: “One may — of course — hold the belief or opinion that Tawheed [the fundamental principle of Islam: “There is no deity worthy of worship except Allah and Muhammad is His servant and Messenger”] has a political cargo, that Allah is a despot, and that this, extended to its most extreme logical conclusion, implies that the blood of those who do not believe is halal. Neither the right to freedom of thought and conscience, nor the freedom to hold opinions is subject to any restriction.”
These views the Jihadis were allowed to communicate in public.
Are you allowed to hate democracy, and thus hate democrats? The response of Court in The Hague is very instructive for the Amsterdam Court: “One may not only express the opinion that democracy must be rejected, but in conjunction with that, also defend that it can, and must be replaced by a form of government that is based on the Sharia, and in which the Sharia also has to be applied literally, despite the fact that one thereby at the same time calls for the total abolition of the ECHR, including the rights that are set in it.” Only when the latter is associated with the call for a violent jihad are the jihadists punishable. The court drew the line at the call to violence.
The Amsterdam Court does not want to give the impression that it is rigid: Muslims really may be a little bit taunted. For this even Muslims are required to understand it: “This concept can certainly be required since some parts of the Muslim faith, as for instance also has been considered by the European Court of Human Rights with regard to the sharia, are considered incompatible with the values that are encapsulated in the ECHR.”
But what is this? The Court writes that some parts of the Muslim faith are incompatible with European human rights laws! Is the Court now itself inciting to gross insult and discrimination of those Muslims who live according to Sharia rules? Does Wilders not take aim precisely at the same aspects of Islam and the Quran?
Well, not quite. Because the Amsterdam Court blatantly writes: “The expressions of opinion by Wilders that are judged unacceptable are causing such a blockade to the public debate, such that Muslim believers are in fact excluded from actual participation to that debate, simply because of their faith. In this lies the criminal accusation of Wilders, who with his hard and general disqualifications acts in violation of the fundamental conditions of a stable democracy.”
Wilders must be punished when he judges harshly? Or when Muslims can not appear on TV and can not write opinion pieces? What Muslims feel themselves hindered from defending their religion in the media? Are Wilders’ strong-arm boys standing near the TV studios in Hilversum? Near the mailboxes of the newspapers? Experience shows that the more Wilders appears in the media, the more Muslims appear in the media as well. Our democracy is so stable that even the Mayor of the second city of the Netherlands is a Muslim [Mayor of Rotterdam, Ahmed Abouteleb]. Perhaps even thanks to Wilders. The judges are making a fatal mistake: they confuse the Dutch Muslim with the Dutch Jew from the thirties.
This Court loves debates because “the judges stand with both legs in society and do not have to set themselves apart from it.” What consequence does the Court imply to an active judge? “Also the criminal law forum is a part of the public debate.” The Founding Fathers of the Dutch criminal are turning over in their grave like a propeller. A criminal process is certainly not a relevant forum for social debate. In the criminal law one looks for the truth in order to be able to punish the offender. It is the most serious intervention in the life of a citizen. Due to a hard, heavy, provocative or even anti-democratic debate, citizens therefore may never be prosecuted.
If the Court had studied the parliamentary papers around the laws in question, then they would have known with how much caution they should have been operating. According to the Memorandum of Reply (1968/1970), the application of these law penalties must minimal, for three reasons:
1. Criminal law can only play a very small part in the solution of social tensions; 2. Actions under criminal law may lead to a sharpening of social tensions, and 3. Unnecessary criminal restrictions on freedom of expression must be condemned.
These are three legal-historical reasons not to prosecute Wilders. Where can the line be drawn according to the Amsterdam Court? Must the police tomorrow seize all books of writers such as Oriana Fallaci (who was much sharper with Islam than Wilders has been) from all libraries? There are scientists who are convinced that Mohammed is not a historical figure, that Islam is not an authentic religion, that Islam does not respect the values of other religions, that the Quran is merely a mishmash of Christian and Jewish texts mixed with Arab pre-Islamic legends. Should we prosecute all those scientists because they insult with this the soul of Muslims and mock their religion?
There is something ironic in all this: in the fight against Wilders, the Court acts Wilders-like: forbid Wilders’ opinions like Wilders wants to ban the Koran [so to speak]. The incredible thing is that this Court actively tries to block the process of free thinking in society and with that pretends to reason according to the intent and spirit of the Dutch Penal Code.
For more background on the Hans Janmaat case, see this excerpt from “My apologies to Janmaat”, in Trouw:
According to the ruling by the Supreme Court of the Netherlands, on May 6, 2003, exactly one year after the assassination of Fortuyn, Hans Janmaat was rightly convicted of incitement to racial discrimination in 1997.
The former chairman and MP from 1982 till 1998 for the CD [Centrum Democraten, “Center Democrats’], Hans Janmaat, had said: “We will abolish the multicultural society as soon as we have the possibility and the power to do so.” The Supreme Court upheld the interpretation of the Court of Arnhem: with this Janmaat made a call to ethnically cleanse the Dutch society.
Meindert Fennema, professor in political theory of ethnic relations at the Universiteit van Amsterdam, did not agree with this statement. “That it not what he meant of course. What he meant was that the subsidies should be abolished to all those ethnic organizations, the teaching in their own language and culture should be discontinued, that those interpreters should be made redundant. He referred, in other words exactly to all those things which happen now .’’
In any case, Fennema is of the opinion that in a democracy you really should be able to say things about others that are not nice. “Wrong opinions” are according to him too easily excommunicated. He therefore advocates the scrapping of the hatred-Article 137d of the Penal Code. On the basis of this article Janmaat was not the only one convicted. The same article also forms the basis for the complaint that Spong and Hammerstein [both Dutch lawyers] lodged against a number of politicians and journalists who allegedly incited hatred against Pim Fortuyn.
Fennema is not afraid that the removal of this ban on fascist, racist or hateful expressions will lead to the end of democracy: “Because of politically correct thinking it is forgotten that Hitler never achieved a majority of votes. People act as if Hitler came to power without violence and in a legal way — as if only the ideas were already that dangerous — but of course this was not the way it happened.”
“But even if you employ the hatred-article, Janmaat should never have been convicted.” However, the ruling of the Supreme Court did not surprise him. “It is very difficult to review a process”, he says. “Judges are like journalists: very critical, but not of their own profession. This could already be seen with the Dreyfus affair. When it became absolutely clear that Dreyfus was wrongly convicted — thus not because he was a traitor, but purely and simply because he was a Jew — the French courts still insisted that the conviction was justified. This was partly because of their anti-Semitism, but it was also because judges don’t like it to let each other down.’’
Over the Netherlands for many years there hung “a climate of politically correct prosecution,” said Fennema. Everything that inclined to the Right was wrong. The Left on the other hand — no matter how intolerant and violent it was — was fine. According to the political scientist this had everything to do with the Second World War. Since the Communists had been “good” in World War II, nobody said anything about the fact that the extreme left in its intolerance was certainly not inferior to the extreme right. “The consequence of this political climate was that Janmaat was regarded as if he was the devil himself. People had panic in their eyes when he walked in somewhere, they refused to give him a hand, and almost nobody wanted to talk to him.’’
This politically correct thinking had violence as a result, says Fennema. A clear example is the attack on Janmaat that was committed by so-called anti-fascists [they set fire to a hotel where his party had a meeting]. Wil Schuurman, the partner and secretary of Hans Janmaat, lost a leg due to the attack. The VVD [Liberal Democrats] fraction in parliament had a great laugh about that. Schuurman also never received any flowers from his fellow MP’s, which, according to Fennema would have been a very normal response. Even more strange is it that it proved impossible to give Janmaat another office in the Parliament building. The attic he was given was not accessible by elevator. Schuurman had to be carried up the stairs by two men, every day.
In that attic room Fennema interviewed Janmaat in the nineties, because he was busy with a book about racist parties. “Wil Schuurman found my questions so interesting; she was not used to that at all. They had never had a visiting journalist who was interested in what Janmaat said. Journalists have always only been interested in what they themselves made of it. Janmaat and Schuurman were so excited that they invited me to lunch. But I thought, ‘What if I am about to sit in the restaurant of the parliament at the same table with Janmaat and Schuurman? Then surely I can forget about my scientific career.’ Therefore I quickly made an excuse, that I had no time. Well, actually, that was extremely cowardly.’’
According to Fennema, Janmaat certainly had some racist views. “But for the climate that was created against him, I hold a majority of the members of parliament responsible. I therefore find that they still should offer their apologies to Wil Schuurman.” [Hans Janmaat died of heart problems in 2002.]
For more background detail, here’s what Floriaan H. Went writes in his paper “Adding or scrapping of discrimination grounds in 137c Sr” [2007, Dutch language pdf here]:
In the systematics of the Dutch substantive criminal law, an affront to a god (not being a prophet, except for Jesus Christ who according to the case law, because of the Roman Catholic dogmatic, is part of the concept of a god) in principle is within range of provisions other than the insult of a religious community. On the one hand there is the blasphemy article, ex art. 147 and 429bis Sr and on the other hand the group insult article, ex art. Sr 137c.
Theo van Gogh’s slander of the Islamic prophet Mohammed (who thus is not subject to the blasphemy article in the Criminal Code) and insults of Muslims (which in principle was eligible for prosecution; ex art. 137c Sr) had led in the beginning in April 2004 to an online petition signed by around 1,000 persons [as they claim, the petition was closed within a day], that called for a partial ban on Van Gogh’s writing.
[In a column, Theo van Gogh called Mohammed amongst other things, “a dirty uncle” and “a rapist of little girls”]
This petition [organized by imaan.nl, a part of al-islaam.nl, that propagandizes throwing gays from tall buildings, etc] was presented to the Parliament and the AIVD [Dutch Secret Service]. There however did not follow a prosecution of Van Gogh — also because there was not a violation of Art. 137c Sr.
In the year 2005, a number of Islamic organizations tried a summary procedure against Hirsi Ali (for alleged wrongful deed) because she called Islam “a backward religion” and the prophet Mohammed a “pervert” and “pedophile”. Despite more than a dozen filed complaints, no prosecution followed. The President of the Court was of the view that the expressions could be considered offensive to the plaintiffs, but the fact that (a) Hirsi Ali made the statement in the social debate, which is important for the democratic society, and (b) she expresses the indications only a few times, with result that the exaggerations remained within the limits of the permissible.
The importance of public debate resulted in a more recent and similar ruling that the statement made by the leader of the political party ÉenNL [Marco Pastors]: “the establishment in the thirties looked away when Nazis arose, now the same happens with the Islamization,” was not illegitimate.
Incorrect in the context of art. 137c Sr seems not so much the law but one facet of the case law. In Dutch case law, the view that the offensive nature of a statement may be lost if the statement directly expresses a religious belief.
A remark that would be offensive in the meaning of art. 137c Sr because it would deny the principle of human dignity on such grounds, is apparently under certain conditions protected by freedom of religion. [The Supreme Court is of the opinion that freedom of religion with regard to the legislative history, has horizontally a “significantly stronger” character than the freedom of expression, see for instance HR 9 January 2001, NJCM-Bulletin 2001, p. 741-753, m.nt. Loof (Van Dijke)]
Freedom of religion, just like freedom of expression or other fundamental rights, only exists because and as long as the principle of equality and human dignity is respected.
The acceptance of legal justification for acts threatened by criminal law, motivated by religious beliefs, which denies the fundamental legal principle of equality and human dignity, is not just a wrong signal in a time when even more serious crimes than insult are being justified by reference to religion.” [Floriaan H. Went, January 2007]
VH adds this final note about the article on blasphemy:
Dutch Penal Code, Article 147
Artikel 147, Sr, Boek 2, Titel 5
With imprisonment of at most three months or a fine of the second category is punished:
1. he who in public, orally or in writing or in an image, expresses himself by narrow religious blasphemy in an way insulting to religious feelings; 2. he who ridicules a clergyman of the religion in his lawful perception of his service; 3. he who taunts objects dedicated to a worship, when and where the exercise of that service is lawful.
Because many in Parliament want this blasphemy article scrapped, the Minister of Justice, the Christian Democrat Ernst Hirsh Ballin, tries to block it by demanding the insert of “political affinities” in Article 137 as compensation for scrapping Article 147.