This prosecution does not befit a civilized country
Wilders case: “There must be a response to Wilders. Just not with criminal law.”
by Kustaw Bessems
What Geert Wilders evokes may be rancid, ugly, ridiculous, offensive or immoral. Yet he must be acquitted, as four lawyers emphatically argue.
Here in the last century, was the Restaurant Royal. Here Queen Wilhelmina ordered her rice with Thymus vulgaris for lunch. And for a while the Cabinet came to eat here. According to the plaque on the facade of the building, Constantijn Huygens — poet, composer, and secretary of the Princes of Orange, lived here for a few years in the early seventeenth century. After him the regents and foreign noblemen came and went.
The focal point of politics is still nearby, at the Binnenhof [Parliament buildings] and het Plein [office of the PM]. But here, at the Lange Voorhout no. 44, The Hague, scholars have the last word: the Leiden University’s the Hague Campus is located here. And in the dark wood-paneled stile-room, four professors gather for a conversation about the trial of one of the most important politicians of the moment. About a charge of [presumed — translator] insulting Muslims, incitement to discrimination, and inciting hatred. A conversation about the Wilders case.
“I am here because I think it is disastrous that this prosecution is taking place,” Theo de Roos says, Professor of Criminal Law and Criminal Procedure at the University of Tilburg.
“I was a consultant to the Public Ministry (Openbaar Ministerie, OM), but now I emerge on the side of the defense. I want to explain that,” says Henny Sackers, administrative sanction law professor at Radboud University in Nijmegen.
“We are not an extension of Geert Wilders, assures De Roos.
“Oh no, not at all!”, Sackers joins in.
Seated at the table with them are Tom Zwart and Afshin Ellian. Zwart is Professor of Human Rights at Utrecht University. Ellian is a lawyer and professor of social cohesion, citizenship and multiculturalism at Leiden University.
The four men know each other, from the university circuit. They meet each other. “But only recently have we got together for the first time. This combination is established especially for the Wilders case.”
Why? Because they all four are deeply convinced that Geert Wilders should never have been prosecuted for his remarks on the Islam, Muslims and immigrants.
And because all four of them find — now that it has come so far — that the court must acquit Wilders.
More nodding follows. And sounds of approval.
All would have been witnesses in Wilders’ trial if his lawyer, Bram Moszkowicz, had his way. But the court rejected the request to hear them. The judges themselves are learned enough, as they find that they and written opinions and articles of others will suffice.
A bit touchy about the judges, are the gentlemen at this table. They hope that they, by stepping forward now, will still be able to have influence on the development of the case.
Ellian: “We may each think differently about the content of Wilders’ statements. But we view this as law scholars. And then the truth: you do not need to agree with what Wilders says, to find that he may say it.”
Zwart: “This prosecution does not befit a civilized country. We address China and Cuba in their dealings with dissidents. They now say in return: ‘You are persecuting a dissident yourselves.’“
Different characters, these gentlemen. Ellian and De Roos talk the most. And the loudest. With many hand gestures. Sackers speaks softly but firmly. He already longs for the little cigar that he, after the conversation, will light once he is outside. Zwart, an active VVD member, initiated the meeting. He takes part, but in the all the while also watches and listens a lot to the others.
De Roos and Sackers were previously consulted by the Public Prosecutor. Who then decided not to prosecute Wilders. Some expressions of Wilders might be punishable, the prosecution thought, but did not see a case in it, because they are part of the political debate. That corresponded with their advice. Only later the Amsterdam Court decided that the Public Prosecutor still had to initiate a case.
“I was opposed,” Sackers says, “My consideration was: if there is a risk that he will be acquitted, then better not prosecute.”
Roos: “You provide this man a splendid forum. Either he is acquitted, then it is: yahoo! Or he will be convicted, then it is of course grist for his mill. And it is already that.”
Sackers: “That is not for a political argument or something, no, that the principle of opportuneness ever came into the law.”
Roos: “The public prosecutor may waive prosecution on grounds of public interest, that is how it is written.”
But how could the court then decide to reach such a different conclusion?
Roos, conspiratorially: “Tom Schalken acted as counselor, also as professor. I have read somewhere that this case is actually the continuation of a feud that we as professors have been having about these kinds of articles of law. And there is something in this.”
Then: “What I have a big problem with, is that in the ruling of the Court the one-liners of Wilders are not being judged in their context. Once you do so, you can see he has a consistent story about protecting Dutch culture against Islam. You may find that bad or ridiculous, but that is a contribution to public debate.”
Tom Zwart leans forward: “What are you actually saying now with these proceedings to all those people who voted for the PVV? In fact you say that they also should be behind bars.”
He sinks back in his chair: “You should exercise the most extreme caution with crimes of expression.”
The others agree with that.
Yet that is not what Dutch prosecutors have as an assignment. Since late 2007 they have has to abide by the “Instruction Discrimination” of Justice Minister Ernst Hirsch Ballin (CDA, Christian Democrat), who with this was responding to demands in Parliament. In it, it says: “In discrimination cases is assumed in advance that opportuneness is present.” In other words, in principle, discrimination cases are always prosecuted.
De Roos: “Here there is tension. Because it is of course very politically correct, isn’t it, such an instruction? But this puts the OM in terrible trouble. If you take a good look at it, you will see they are mostly busy with people who have said insulting things to a police officer or something.”
Ellian: “Fag! Homo! That kind of work.” And to De Roos: “You know, Theo, I always thought that those treaties and laws against discrimination were mainly to be able to act when discos routinely refuse Moroccan youth or something. And that must be, because that is so humiliating. That’s what you need to take out the entire Rataplan for.”
De Roos: “That’s right, it’s not meant for crimes of expression.”
Ellian: “Opinion-crimes I call them. The law should also be better formulated. It has become a source of conflict rather than a means to ensure that conflicts are resolved. The law gives people false hope. Because there are hundreds of charges being filed that almost all lead to nowhere.”
De Roos: “It was very good of Mark Rutte of the VVD to made a start with improving the law, by broadening freedom of expression. Too bad it got bogged down [in Parliament — translator] in stuff about Holocaust denial. My position is: we would rather have too much legislation than too little. And you really notice this not only in cases that have to do with the Islam. Take the case against the writer Peter Waterdrinker. In his novel an unnamed character calls the mayor of Zandvoort a joodje [little Jew]. That went all the way to the Supreme Court! While it is terrible to even prosecute that at all.”
Sackers: “That case has also been very important for evaluating expressions in their context. Wilders might still benefit from that. The Supreme Court decided that the entire novel had to be part of the dossier.”
He continues: “I find it very peculiar that the insulting of a group on grounds of religion can be punishable. Over time, one has stuck all kinds of things onto that law.”
Theo de Roos: “And as you must keep in mind: from the standpoint of public order. But who now finds those statements of Wilders so bad that riots break out?”
Ellian: “Muslims don’t. That irritates me a lot, that image of Muslims as a gang that at the littlest or the slightest, smashes things to pieces.”
“The main thing is,” Zwart brings in, “that you have to apply your national laws within the limits of Article 10 of the European Convention on Human Rights, the right to freedom of expression.”
It is dusk outside. And the atmosphere is jovial. But quite a lot of consensus sounds in this room. There is, therefore, someone not present: Rick Lawson, a professor. Professor of Human Rights, Leiden. He also advised the OM. But he was — and is — in favor of the trial. Like Zwart, he relies on the European Convention, but he stresses the freedom of religion and the prohibition of discrimination. Does Lawson not have a point at all then?
Zwart: “Where he has a point, is that it may not be an impossible to prosecute Wilders. But that is something different from actually doing so. That is not at all in the spirit of all European rulings in this field.”
Well, almost all. For a long time the European Court offered the maximum possible scope for political debate, more than, for example, artistic expression. But in a recent verdict against the Belgian Daniel Ferret of the Front National, the Court upheld a conviction for inciting to hatred and discrimination, precisely because the Court expects additional restraint from politicians. They should “avoid statements that could encourage intolerance”.
“Yes, I admit that is surprising,” says Zwart. “It is a verdict that within the Court had the smallest possible majority, it has not appeared in English like all major verdicts, but I think it is a trial balloon. In indeed seems something is changing in Strasbourg. For Wilders’ case in the Netherlands that does not matter, because that verdict was dated after the time he made his statements. It should therefore play no role. But if I were Wilders’ lawyer, I’d think twice before I went to Strasbourg. I would not be surprised if they are awaiting his case to be able to turn around fully and further limit the playing field for politicians.”
Lesson in emancipation
It needn’t have gone this far. De Roos: “What few people realize moreover, is the fact that this case can be very quickly wrapped up. Everyone says it will go to the Supreme Court or even the European Court. But just imagine that the judges now in the first instance will acquit Wilders. The OM will not appeal because it didn’t want the whole prosecution in the first place. And Wilders can’t. Then it is just finished.”
And also for the good, he finds: “An end must be put as soon as possible to the illusion that criminal proceedings can protect Muslims against such statements. If you look what Catholics had to deal with in the past, that is many times worse. “
An acquittal as a lesson in emancipation for the Muslims?
“Yes,” Sackers, Zwart and De Roos say. “Yes.”
Ellian: “Some views of Wilders such as the head-rag-tax or shooting at the knees of hooligans [a remark he made in response to riots and destruction in a football stadium which were also directed against stewards and police — translator], are morally not acceptable.”
De Roos: Rancid! That’s the word I always find the most appropriate for his ideas, rancid.”
Zwart: “I prefer to say: I do not agree.”
Ellian: “He is also not a Cicero eh? It is sometimes ugly what he says.”
De Roos, from memory: “Quo usque tandem abuteris, Catilina, patientia nostra? [How long, Catiline, will you abuse our patience?] That is what Cicero said right in the face of Catiline, beautiful!”
Ellian: “In this country, no party gets a majority, also not that of Wilders. That makes it even less appropriate to try to stop someone with criminal law.”
De Roos: “There must be a response to Wilders. Just not with criminal law. People should just tell him: you cannot do that, damn it! It’s a shame!”