Democracy needs a free and open debate

4 oktober 2010

The criminal prosecution of Wilders could not be politically more inopportune.

 

Two days after the Party Congress of the Christian Democrats approved the governing accord and its accompanying document securing the support of the populist nationalist party of Geert Wilders, Geert Wilders stands trial for incitement to hatred and discrimination as well as offending a group, in particular the reference to Nazi symbolism. If Wilders is successfully tried, people may feel that now that he is politically invincible, the legal system is used to go after him. If Wilders is acquitted, people may feel that now that he is has strong politically and popular support, he is legally invincible. Both outcomes are damaging for the credibility of the judiciary and the rule of law as well as politics in the Netherlands.

 

Legally, nothing bars the court from trying Geert Wilders. Dutch nor European law prohibit prosecution for violating the right to freedom of speech. The right to freedom of speech is not absolute. According to the European Court, politicians, particularly members of the opposition, should have the right to freedom of speech, including the right to “offend, shock or disturb.” There is little room to criminally charge and prosecute a politician. However, according to European jurisprudence politicians can be held accountable for statements that cause societal unrest and have a responsibility to refrain from statements that can cause intolerance. When a politician incites hatred or religious intolerance, he is not protected by the freedom of speech.

 

The public prosecutor did not want to prosecute Geert Wilders. Interest groups appealed the decision not to prosecute and the Appeals Court directed the prosecutor to prosecute the politician. A political trial? The Appeals Court found, inter alia, that "content of the contested expressions as well as the way of presenting -often in direct and a militant style (prohibit the Koran)- are apparently intended to cause conflictual division within Dutch society towards the Islamic part of the population, to incite the Dutch population to discrimination, intolerance, contempt and animosity towards this group as well as to instill fear." The argument that a politician should have maximum freedom to engage in the public debate, referred to today by Geert Wilders in his opening statement in Court does not, according to the Appeals Court, "exonerate a politician of the responsibility to make a contribution to the public debate that is acceptable to society. If a politicians' contribution to the debate is unnecessarily derogatory for a group of believers, infringes on their dignity, and incites to hatred, intolerance, discrimination and animosity, the judiciary has a role to play," according to the Court. The Court concluded that through Wilders’ statements that incite hatred, "Wilders has overstepped the very wide boundaries of the political debate. The public interest justifies the criminal prosecution of Wilders," according to the Court.

 

So today, a prosecutor that does not want to prosecute Geert Wilders is prosecuting Geert Wilders. This Court is hierarchically lower than the Appeals Court that has determined that Geert Wilders needs to be prosecuted. The prosecutor may well demand acquittal. That places the Court is a difficult position: to follow the consideration of the Appeals Court or acquit Geert Wilders. Formally, the judgement and considerations of the Appeal Court are not binding and will have to be left aside. If Geert is acquitted, that will be the end of it. Geert Wilders nor the public prosecutor will appeal. The case will be closed.

 

Politically, that may be the best.

 

But it would deprive the European Court of the opportunity to explain what the limits of the freedom of speech are. The Court is uniquely placed to set the margins of this right and decide what speech is and what is not protected by this right. The political debate has radically changed but the law has not. Changing the law is the work of politicians. Explaining it in the current societal context is the firmly within the ambit of the judiciary.