HRS International

Never Mind the Truth

The process against Geert Wilders has turned into a battle between the prosecutor and the court.

Arthur Legger

(AMSTERDAM, October 16) The Dutch public station NOS TV brought the news with open indignation: “After the acquittal for ‘group insult’ last Tuesday, today the Public Prosecutors acquitted Geert Wilders of all charges. His remarks are discriminatory, they hurt, wound and offend, but apparently are not illegal according to strict legal reasoning. In fact, the comparison between the Koran and Mein Kampf is considered ‘functional for the debate’. Who would have thought that?” Already at Tuesday’s start, the Public Prosecutors Paul Velleman and Birgit van Roessel had denied the complainants their compensation for immaterial damage: no direct cause and effect could be proven between Wilders’ public statements and their “feelings of hurt and fear”.

It thus took Velleman and van Roessel only two minutes to obliterate months of legal preparation by the complainants’ lawyers, Prakken and Pestman. They will have the opportunity on Monday the 18th of October to convince the Court of the opposite conclusion, but their chances are very slim. The OM (‘Openbaar Ministerie’-body of Public Prosecutors) reasoned that the claimants’ legal position was invalid (Geert Wilders’ lawyer, Bram Moszkowicz will plea on Tuesday 19th) – so the Amsterdam Court can hardly rule otherwise on the 5th of November.

Highly disturbing

The Public Prosecutors’ acquittal of Geert Wilders for “Facts 1, 2, 3, 4 & 5” took a bit longer. Moreover, their four hours of “elaborated” (Moszkowicz) legal reasoning on Tuesday and its sequel of eight hours on Friday were covered live by NOS television and revealed two highly disturbing facts, which will erode the trust of the Dutch in their judiciary and political system even further.

On Tuesday it became very clear why the Public Prosecutors Velleman and Van Roessel at the start of Wilders’ trial in February had not asked for counter witnesses, and had abstained from questioning Wilders’ witnesses in depth during their testimonies in Spring and during the treatment of their declarations over the past weeks

“On the 21st of January 2009 the Amsterdam Court ordered the OM to prosecute Wilders, although the OM had already evaluated Wilders’ public statements in 2008 and concluded in three separate sessions not to prosecute. In preparation of this trial we looked anew at the dossier that was presented to us. Are Wilders’ statements punishable? The question is not whether Wilders’ observations are factually correct or defensible, but are they illegal? Did Wilders transgress the limits of the law? That’s what is under our observation. Wilders is a politician. On several occasions he claimed this to be a political process. To us it is not. We treat it as strictly juridical. Clearly, the fact that Wilders is a politician influences the weighing of the charges against him. But only in so far as it is part and parcel of jurisprudence. Wilders claimed that he told the truth and cannot be punishable because truth cannot be illegal. That is a misconception. What is truth? Even if observations do rest on a factual basis they do not necessarily have to be true. Truth is irrelevant, because statements with a factual foundation can be illegal. And it is the latter we have to ascertain.”

Clearly, by this reasoning Velleman and Van Roessel cleverly skirted the accusation by the Dutch bon milieu and the mobilized Muslims that not Wilders but the Koran was standing trial. But the precedent set by the Public Prosecutors will haunt the Dutch legal and political system for years to come. The body of Public Prosecutors (‘OM’) has been designed for one purpose only: to find and verify the truth, which the Court weighs against the plea by the defendant’s lawyer, after which a verdict follows. To off-handedly eliminate ‘truth’ in this process (and live on TV) not only shocked the journalists and politicians present, but caused uneasiness in society too. Isn’t “What is the truth?” the exact challenge on which our Western civilization came to rest? Doesn’t truth set us free?

Theoretical seminar

What followed on Tuesday was a tediously elaborate, painstakingly precise and highly theoretical seminar on ‘group insult’ (Fact 1) before the law. Paul Velleman explained that European Law states “a margin of appreciation”: The courts of each European nation must proceed according to their national law. Clearly, European Law has created it’s own jurisprudence (trials of politicians Le Pen and Ferret) and it’s own juridical framework (expressly article 10), but it cannot punish an activity that is not illegal according the law of a European state. Hence European law will not solve the questions of Wilders’ trial: the Dutch legal system and its laws have to answer them first. The article of the Dutch criminal law which addresses ‘group insult’ is 137c. The law stems from 1934 and was aimed at protecting the safety of the public space (to outlaw public insults against Jews) and secondarily to protect groups and individuals. Article 137c was amended in 1970 by splitting it in two articles: 137c and 137d –(group) insult and hate speech/discrimination. The Amsterdam Court has used these two articles to indict Geert Wilders for group insult, hate speech, discrimination, and racism.

The second reason to be concerned about the Dutch judicial system ­– also reported live on TV – was the fact that the immediate colleagues of judge Jan Moors, councilmen Splint, Hartsuiker and Schalken, forced the OM to prosecute Wilders against the OM’s own earlier research and conclusions. The Amsterdam Court not merely ordered the OM to prosecute but listed its complaints on grounds that “(groups of) people have the right not to have their religious feelings insulted”. According to Wilders’ lawyer Bram Moszkowicz, was therefore already sentenced before the trial even started. This clearly follows from the Court’s own wording: “The Court … concludes that Wilders is guilty … of hate speech.”

The Dutch text of the indictment can be found here:

However, the Amsterdam Court not merely condemned Wilders before his first day in Court. It also stated that the OM had been mistaken in its research and conclusion: “een onjuiste appreciatie”. To secure a sentence of guilty, Court councilmen Splint, Hartsuiker and Schalken handed the OM a “corrected dossier”, which contained the correct source material, articles and jurisprudence.

To the highly serious Public Prosecutors Velleman and Van Roessel this disqualification of OM’s work must have been abhorrent. Earlier, in Spring 2008 the body of public prosecutors already had to withstand encroachment by the Department of Justice and its Minister Ernst Hirsch Ballin, a sworn opponent of Wilders. Not only did the Justice Department bombard the OM with e-mails urging it to prosecute Wilders, Hirsch Ballin even tried to expand article 137c, “in concordance,” he stated “with changes in EU law in the very near future.” From now on, he argued, believers in a certain religion could rightfully claim legal protection if they felt their religious convictions offended. Because of the Cabinet’s fall in Spring 2010 the amendment did not pass in Parliament, but a rift between OM and Hirsch Ballin’s Department was a fact. For over a year Velleman and Van Roessel had researched, checked and double checked Wilders’ indictment and in contrast to everyone’s expectations, including mine, they not only concluded on Tuesday and Friday that OM’s earlier weighing of Wilders’ case had been correct, but showed their wrath by stating that the Amsterdam Court had handed over a dossier based on “highly wrong reasoning, intensely flawed source material and jurisprudence, and the wrong articles”.

Moszkowicz sat back, turned around, lifted his eyebrows and smiled his sarcastic smile. “Well, well, well,” he murmured. Wilders’ face remained blank.

Velleman and Van Roessel elaborated by remarking that article 137c was created in 1934 to protect a highly vulnerable group, the Jews, and that Muslims weren’t vulnerable at all. Moreover, according to EU article 10 and Dutch High Court rulings in 1997 and 2009, the right to free speech can only be set aside in the most extraordinary of circumstances. According to the prosecutors, the Amsterdam Court “wrongfully” reasoned that it is punishable to hurt religious feelings. “This position is nonsense and if followed might have highly undesirable stifling effects.”

Velleman and Van Roessel continued by showing that the Amsterdam Court had eclectically and anachronistically cut and paste statements of Geert Wilders between Spring 2006 and Spring 2008 to evaluate them “as one”, without taking into account the context or mediating remarks. This was “fundamentally wrong,” Velleman stressed, “we have no knowledge of an example in Dutch and EU jurisprudence that judges a remark without taking into consideration the direct context of that remark.” Van Roessel continued: “There’s a reason for this. According to criminal law, a person accused of hate speech has to be conscious of his act. There has to be a direct cause and effect. But if you select statements over a longer period and outside their original context, it will be impossible to prove ‘conscious coherence’. Moreover, this method doesn’t include mediating remarks such as Wilders’ statement: “if Muslims assimilate they’re as valuable as you and me”. The Amsterdam Court used a fundamentally wrong approach: why would one merely link insulting remarks to insulting remarks?”

Abundantly clear

To the audience in the Court and in the country it became abundantly clear that the Amsterdam Court and possibly the Department of Justice and its former Minister Hirsch Ballin had prepared Wilders’ process in a biased and concocted way. And it was a highly unsettling sight to watch Velleman and Van Roessel do Moszkowicz’ job in cold blood.

What did Geert Wilders say that the Amsterdam Court regarded as Fact 1, ‘group insult’? A few examples will suffice: “I cannot stand Islam in the Netherlands any longer: not one extra Muslim immigrant is allowed to enter.”; “I cannot stand the Koran in the Netherlands: forbid it.”; “This book incites hatred and murder and, hence, doesn’t fit into our legal system. If Muslims want to participate, they have to renounce the Koran. I know that’s a lot to ask for, but we have to stop making concessions.”; “I clarify the role which the terrible Koran plays in the Islamization of our society.”; “We have to stop the tsunami of Islamization: it rips out our heart.”; “Those Moroccan youngsters are truly violent … it’s ingrained in their culture.”; “These are the facts: Islam is a violent religion.” After reading out the eclectically collected 28 statements and their contexts in interviews and on websites, Velleman and Van Roessel concluded by dissecting Fitna in detail, including its shattering statistics.

After 60 pages and four hours the Public Prosecutors speedily summed up their conclusion about Fact 1: Wilders is a politician who triggers a debate that is currently regarded as vital, not only in the Netherlands but in the European Union as well. Detailing their conclusion for every listed expression, Velleman and Van Roessel concluded that Wilders did not speak about people, but about the Koran and Islam. He hadn’t arrived at a conclusion about Muslims but had criticized their religion. This might be hurtful but not punishable under the law.

The Public Prosecutors’ 100 pages and 8 hours of reasoning regarding Fact 2, article 137d on ‘hate speech/discrimination’, followed a similar route, as they showed their contempt for the incompetence and partiality of the Amsterdam Court. “Emotions” and “feelings” of “hurt” were of no importance; what mattered was whether statements caused a direct and/or indirect effect amongst “a third party” to inflict harm or to discriminate in a negative way: ”To criticize a religion does not imply criticism of its believers.»

Regarding Geert Wilders’ film Fitna, the Public Prosecutor remarked that all quotes from the Koran have been correctly translated into Dutch. Nor did he think that the film was extreme and consequently wanted “a complete acquittal” on count 2.

The same went for Fact 3 (discrimination), Fact 4 (racism), and Fact 5 (racism against a group). Each time the Amsterdam Court was butchered. The reasoning on ‘discrimination’ caused the greatest stir. Wilders is a politician and some provocation is part of his profession. According to the prosecutors, Wilders’ proposal to ban the Koran is “discriminatory but belongs to a vehement political debate in the Netherlands and Europe. What’s more, according to experts on Islam, Wilders’ reasoning on the Koran is sound.» Moreover, his comments on “Moroccan youngsters” are not racist, because Moroccans are not a race.

The Dutch-Moroccan Mohammed Rabbae, one of the complainants and spokesman for two Moroccan pressure groups, felt defeated: “The Public Prosecutors coined us an outlaws – everything may be said, as long as it’s linked to Islam.”

To the press who had been waiting for hours in the lobby of the Amsterdam Court, Geert Wilders was jubilant: “I’m very happy that the OM has concluded again that I have not committed any crime. The only thing I do and which I will continue to do, is to tell the truth.”

Not over

Bram Moszkowicz, however, called for caution: “It’s not over yet. The complainants still have to present their case and the Court is entitled to draw its own conclusions – they’ don’t have to go along with the OM.”

Wilders and Moszkowicz have put their finger where it hurts. It is now clear for all to see that the Dutch legal system is not to be trusted. The Wilders case is openly political. Equally clear is the fact that truth no longer counts.

On the 5th of November Geert Wilders most probably will leave the courtroom as a free man, not guilty, escorted by his bodyguards to protect him against the Islamization he then rightfully can criticize. Moszkowicz will have won another legal battle and the OM will be proud for standing tall. But this process will linger until “what is the truth?” is not only the vital question in the New Testament but in Dutch society again as well.