Discrimination & hatred? – The verdict in the Second Wilders Trial

Today, the court has found Geert Wilders not guilty of hate speech but guilty of discrimination and guilty of group insult. There will be no punishment. Wilders’ lawyer has announced they will appeal. You can read the complete verdict (in Dutch) HERE.

Background: Local elections 2014

The leader of the Freedom Party Geert Wilders received a lot of criticism after a comment he made on the 2014 campaign trail at a market in The Hague on 18 March 2014.

Geert Wilders was on a market in The Hague with the local frontrunner for the Freedom Party, Leon de Jong, campaigning for municipal council elections which were set for 19 March 2014. During the visit Wilders stated on camera: “Most important are the people here on the market, the Hagenaars, Hagenezen and Scheveningers. We are doing it for those people. They are voting for a safer and more social city with fewer problems and, if possible also fewer Moroccans.” TThe day before the local elections were held, Wilders asked his audience during a party rally in The Hague whether they wanted ‘more or less Moroccans’ and the audience shouted ‘less’ (as they were instructed to do so).

In so doing Wilders expanded his rhetoric of exclusion from not only Islam and its manifestations to an entire ethnic category: Moroccan-Dutch people.

The case

Wilders’ statements resulted in many angry reactions among politicians, Muslim organisations and organisations of Moroccan-Dutch. The police and the public prosecutor made it easy for people to file a complaint which several thousand people did. During the pre-trial hearings it became clear that not everyone who filed a complaint was actually aware of what they were complaining about. The public prosecution however does not need to receive complaints as it can prosecute these cases anyway.

In December 2014, the public prosecution department announced it would take Wilders to court for discrimination and inciting hatred based upon the remarks mentioned here: “Politicians can go far in what they say, that is part of freedom of speech. But the freedom is limited by the ban on discrimination”, according to the Public Prosecutor.

The Public Prosecution Service suspects Geert Wilders of insulting a group of people because of their race and of inciting hatred and discrimination of Moroccans.

Two fundamental rights touching each other here: the freedom of speech and the prohibition on discrimination. Contrary to many reports both fundamental rights do not necessarily contradict each other. The freedom of speech is limited in the constitution as stated by article 7.1: “No one shall require prior permission to publish thoughts or opinions through the press, without prejudice to the responsibility of every person
under the law’. This means that it is limited by formal law that, for example pertains to discrimination and incitement of hatred as punishable offences. This can only be decided after the fact: no censorship is allowed.

According to the Public Prosecutor, parliamentarians have great freedom so say what they stand for. However, it does not exempt them from the responsibility of complying with the law according to the public prosecutor. The court wanted to determine whether the comments had been impulsive, off-the-cuff remarks, or planned in advance. Important in this regard is that Wilders repeated his statement after the first occurrence even despite complaints. He even acknowledged that his comments could lead to prosecution.

The judges also wanted know how to explain the fact that later Wilders stated he was talking about ‘criminal Moroccans’ while at the same time refusing to withdraw his statements made on the market.

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.”

Exchanging arguments
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.

Wilders’ lawyer Knoops argued, in defense against the Public Prosecutor Service, that Wilders’ ‘fewer Moroccans’ rally could not be seen as racist because Wilders was referring to Moroccan nationals: nationality according to him does not equal race so there is no racial discrimination. The accusation of Wilders being racist and inciting to hatred produces a debate on what racism actually is; in this case a legal construction which appeared strange to the audience following the trial on twitter as many reduce racism to a biological notion of ‘race’ something only extremists use and belongs to a past with slavery and the Shoah.

Wilders had later clarified his remarks by saying he was referring specifically to people ‘who turn up repeatedly on certain lists’ and commit higher levels of crime. Prosecutors last week demanded for the court to impose a 5,000 euro ($5,300) fine on Wilders. His lawyer, Knoops stated the election night speech was in line with his Freedom Party’s long-held policy ambitions of expelling criminals with Moroccan nationality, reining in immigration and encouraging voluntary repatriation. Wilders’ lawyers have also argued that convicting the popular lawmaker would put the Netherlands on a slippery slope to totalitarianism.

The verdict

The court has found Geert Wilders not guilty of hate speech as his words did not amount to a call for violence, guilty of discrimination and group insult. There will be no punishment as the main question was if his statements were punishable.

In their verdict, the court stated Wilders’s comments at the rally had contributed to the further polarization of Dutch society by using “their nationality as an ethnic designation.” Mutual respect was imperative in the “pluralistic” Netherlands, the judges said. “This statement [by Wilders] can be regarded as affecting the dignity of this group as a whole. It is insulting for the entire group,” the court ruled.

According to the court: “Freedom of speech is one of the foundations of our democratic society. Freedom of speech can be limited, for example to protect the rights and freedoms of others, and that is what this case is about.” He noted that a democratic society should have room for remarks that “shock”, but that freedom of speech is not unlimited. Those limits also apply to MPs, the judge said: “Democratically elected politicians like Wilders are not above the law.”

Before the hearing, Wilders vowed not to let a conviction silence him. The verdict pertains to the statements made on 19 March 2014 (see above). Wilders was acquitted of inciting hate over telling supporters in March 2014 he would ensure there were fewer Moroccans in the Netherlands.

The court said it was “legally and convincingly proven” that Wilders had insulted Moroccans as a group when he rhetorically asked a crowd if there should be “fewer Moroccans” in the country.

However, the court did not impose a fine (as was demanded by the Public Prosecutor) ruling that a criminal conviction was sufficient punishment for a politician in Wilders’ position.

The court expressed its dismay at Wilders’ statements about the court, fore example when he called it a ‘fake court’. “This is not a political trial,” the judge said, adding that the personal opinions of the members of the court played no role in the verdict. Wilders’ accusations of bias were “unworthy of an elected politician”, according to the court.

After the verdict Wilders gave the following statements:

The public prosecutor also reacted: “The most important thing is that he is found guilty of group insult and inciting discrimination. For now, we’re very satisfied that he has been found guilty of these two charges.”

Michiel Pestman, a lawyer representing some of the claimants, said that his clients were “happy with the results”. It was rare for courts in the Netherlands to convict someone without imposing a penalty, he said, but “the principled nature of the decision is more important than the compensation.The judge has ruled for the first time in the Netherlands that there are limits to what even a politician can say.”

Anti-racism organisations welcomed the verdict: “This ruling protects minorities in our country from the racist poison that is seeping into our society,” according to anti-discriminatiin platform NBK.

The council of Moroccan mosques in the Netherlands (one of the national umbrella organisations) released a statement saying it was pleased that the court set the boundaries and strenghtened faith in the judicial system. They see the freedom of speech as a right and will defend it for themselves and all Dutch people. They have experienced how destructive discrimination and hate can be. This verdict will not stop it, but it has become clear what the norm is and where the boundaries of free speech are. They pray for Wilders to change its ideas and stated he also deserves a second chance. The council calls upon people to build this beautiful land by sowing peace, tolerance and love and to fight against those who want to take that away.
(TO BE UPDATED)

Some explanation
Compared to the first trial (2011/212) (when Wilders was acquitted and the public prosecution also sought acquittal), the jurisprudence regarding hate speech has changed. The Supreme Court of the Netherlands ruled in 2014 that politicians must take responsibility for what they say while exercising their freedom of speech in public. In particular important is that it stated that the context of what they say is relevant too. Furthermore, this case appears to be stronger because the comments are not about a religion (it is almost impossible to get convicted for that), but directed against an ethnic group. In the past he made statements on Islam and Muslims such as

  • calling Islam “the ideology of a retarded culture.”
  • “I’ve had enough of Islam in the Netherlands; let not one more Muslim immigrate”
  • “I’ve had enough of the Koran in the Netherlands: Forbid that fascist book.”
  • “Islam is the Trojan Horse in Europe if we do not stop Islamification now, Eurabia and Netherabia will just be a matter of time.”
  • after the sexual assaults in Cologne, Wilders made a video in which he he proposed locking up all male asylum seekers “so not a single male asylum seeker can still go on the street and our women are finally protected” while blaming Islam and politicians for immigration that led to a “sexual jihad” and “Islamic testosterone bombs.”

Important in this court case has been the new jurisprudence, the so-called Felter case. Felter said in a debate he wanted to get rid of gays. The man was acquitted at first as politicians should have ample space to say what they wanted even if it would be hatespeech. On appeal this was rejected as politicians should not be allowed to spread messages that were against the law and the democratic constitutional order and they are not allowed to incite intolerance.

Wilders’remark was about ‘fewer Moroccans’. In the first instance he stated that a vote for his party was one for ‘fewer Moroccans, if possible’. In the second instance it was carefully orchestrated: ‘I’m not allowed to say this’ after the public was instructed to shout ‘fewer, fewer’ when Wilders would ask them a question. Which he replied with: ‘Well, we will arrange that then’.

On Race
The accusation of Wilders being racist and inciting to hatred produces a debate on what racism actually is; in this case a legal construction which appeared strange to the audience following the trial on twitter as many reduce racism to a biological notion of ‘race’ something only extremists use and belongs to a past with slavery and the Shoah. The defense argued that Wilders referred to nationality and the law does not stipulate anything about race. 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 wherein ‘race’ is understood as ‘race’, skin color, descent or national or ethnic belonging. States are allowed to differ between ‘subjects’ and ‘non-subjects’ and in issues of ‘nationality, citizenship and naturalization’ but they cannot discriminate against a particular nationality. Furthermore, Wilders himself noted that he did not speak of nationality but that he was talking about Moroccan-Dutch people: ‘Moroccan’ then refers to an ethnic background or descent to which the law does refer to. However, one could argue Wilders was referring to ‘criminal Moroccans’. However it is unclear if people at the time heard that and it is at odds with the careful orchestration of the ‘fewer Moroccans’ rally. And also in that case, Wilders still makes a distinction based upon ethnicity as he only targeted Moroccan-Dutch criminals.

For my Dutch readers, I have made extensive use here of an article by my Flemish colleague Jogchum Vrielink. You can read it HERE.

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