A rumor has been circulating that the law used to prosecute Geert Wilders was not on the books at the time of his alleged “hate crimes”. I asked our Flemish correspondent VH whether this is true, and here’s what he said:
Actually, the articles are from the thirties, and in the present form they date from the seventies, although the “disability” insert was added in the early 2000s, but even that was before the “events” occurred.
I quickly translated Afshin Ellian on this topic from De Volkskrant:
The Law Scholar J.M. van Bemmelen (1969) considered Articles 137c and 137d, that are 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 were called “new”] displayed. Also the government itself one cannot suspect of that [enthusiasm]. The skeptical reception to these articles is justified’.
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In its explanation of the legislative history, the Court of Amsterdam 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.
My guess is that the recent addition of the “disability” clause to the articles is what started the rumor. But even if it were true — even if these clauses were added after Geert Wilders made Fitna and uttered his “incitements” — they would not have affected the case against him.
The case is absurd, the law is illiberal and repressive, but it was in force when the supposed “crimes” were committed.
Update from VH:
Here are the precise dates of the changes:
Article 137c is from July 19, 1934, and it was “updated” due to the UN treaty against racial discrimination, ratified by the Netherlands in 1967.
The update actually broadened the reach of the article because its demands were more specific, with a result that being “offended” and the offense of “religion or belief” made it applicable to more “violations”. That is why Parliament and even the Cabinet in the seventies, who had to accept it, were not really impressed.
In 1991 (November 14) the “hetero- or homosexual nature” clause was inserted, and in 2003 the punishment limit was raised. In 2005 (March 10) the “disability” clause was inserted.