Does Wilders’ call for ‘fewer Moroccans’ during a visit at a market and later at a political rally constitute incitement to hatred and discrimination and how, if so, should he be convicted? That is the central question in the trial against Dutch leader of the Freedom Party Geert Wilders.

The trial got stalled because of a requsal request against one of the judges on the trial. The request was denied. Earlier this week the lawyers of people who filed a complaint against Wilders claimed that Wilders caused much unrest and anxiety among Moroccan Dutch with his statements. Wilders’ hurtful statements also meant that discrimination is increasingly accepted by Dutch citizens and politicians, the lawyers said. The about 40 victims are demanding 500 euros each in compensation for causing “anger, dismay and powerlessness in tens of thousands of families” in the Netherlands. Lawyer Goran Sluiter called the amount “entirely reasonable”.

In court on Wednesday Public Prosecutors read the indictment against the PVV leader. According to them, the trial revolves around two fundamental rights in Dutch society: the right to freedom of expression and the right to be protected against discrimination.

About ‘race’ and ‘offense’
On Thursday the Prosecutors extensively discussed the concept of race and the concept of offensive. This is because the law prohibits discrimination based on race, among other things. The defense is expected to argue, on Friday, that Wilders did not break this law, as Moroccan would constitute a nationality instead of a race according to them. The public prosecutor argued that, legally, because of a common national origin, Moroccans fall under the concept of race which according to him is also recognized by the rest of society as Moroccans are being described as an ethnic minority. This appears to be in agreement with the International Convention on the Elimination of all Forms of Racial Discrimination.

According to the Prosecutors, Wilders asked three questions during his speech in The Hague in 2014. First, do you want more or fewer EU, then PvdA, then Moroccans. The first and second questioned involved “legal entities, not people”, according to the prosecutor. “That does not apply to the third question. That was rhetorical, and bore the answer itself”. According to the Public Prosecutor, a rhetorical question is actually a statement with an exclamation mark. “Politicians have great freedom in debate, but also great responsiblity”, the Public Prosecutor argued in line with recent juridsprudence.

The Public prosecutor also stated that Wilders used classic rhetoric to “drive the room”. “The unnecessarily hurtful nature of the statemetents can exist without foul language. The grievance lies mainly in the tone of speech, and inflammatory character…Here Wilders failed in his responsiblity as a politician.”.

And: “A politician must be able to raise public interest cases, and may shock and disturb. But at the same time a politician must not encourage the exclusion of a group of people.” she said. “By combining different tropes and questions, there was incitement of the public.”

Exceeding the boundaries of the permissible
The Prosecutors emphasized that Wilders himself also said: ‘I actually cannot say this, because complaints will be filed against you. And there may even be officials who will bring proceedings against you’. As such the public prosecutor concluded:

All this combined has convinced the Public Prosecution Service that, in his speech of 19 March 2014, Wilders knowingly and wilfully exceeded the boundaries of the permissible. Wilders failed to explain or explained insufficiently, there and then, that he was talking about any specific group of Moroccans – as he claimed in retrospect.

The Public Prosecution Service have demanded a fine of 5,000 euro based on earlier court decisions concerning politicians who were prosecuted for insulting population groups and inciting to hatred and discrimination.

Free speech
Wilders, instead, has argued that he was exercising his freedom of speech and that he is being persecuted for political incorrectness while he is speaking on behalf of many Dutch people who agree and while other Dutch politicians who have spoken disparagingly of Moroccan or Turkish immigrants are not being prosecuted. Wilders said the prosecution’s demand was “utter madness.” He also repeated that the trial was an effort to silence him. He tweeted: ‘A sentence demanded for asking a question about one of the biggest problems in the Netherlands. Madness. I will not be bothered.’

In a response to the demand members of Wilder’s Freedom Party unfurled a banner in the lower house of parliament with a photograph of Wilders and a red X over his mouth.

Attacking religion or an ethnic group
The viewpoint of the Public Prosecution Service is different from the previous trial against Wilders in 2011 when they themselves sought acquittal on all charges. The court then ruled that while Wilders’s comments were “offensive” and “shocking,” but not criminal because they came in the context of a political debate about Muslim integration and multiculturalism in the Netherlands. This begged the question if there was any limit to a politician’s right to free speech.

In this second case the Prosecutors argued that Wilders targeted a specific ethnic group: all Moroccan-Dutch in the Netherlands, instead of a religion (like in the previous case): “Islam is an idea, a religion, but according to the public prosecution service, you have a lot of room to criticize ideas, but when it comes to population groups, it’s a whole different matter,” the Dutch public prosecutor’s office explained earlier. This legal construction with its distinction between people and ‘ideas’ renders a prosecution based upon prejudice, insulting and hatred against people easier than when it is against religion. Wilders’ staged performance singled out one particular minority as a whole.

On Friday Wilders’ lawyers will respond. The court will render judgment in this case on 9 December 2016.