Wilders trial – Leader of the Dutch Freedom Party convicted in appeal for racist group insult

A Dutch Court of Appeal in The Hague has ruled that PVV leader Wilders is guilty of group insult. The crime of groepsbelediging, or group insult, means deliberately insulting of a group of people because of their race, religion or conviction. In 2014, during a party meeting on election night Wilders asked the audience whether they wanted more or fewer Moroccans. The public, instructed to do so, responded with “fewer, fewer”, after which Wilders said, “well then we will arrange that”. The court ruled that Wilders’ statement, even if it was made in the context of the political debate, was unnecessarily offensive.

The PVV party leader continued his remarks against Moroccan people up to this day. On arriving at the court, he sent a message on twitter stating: “While Moroccans who set our cities on fire usually get away with it and never see the inside of a courtroom.” During the appeal, there was a lot of discussion whether or not a former minister or officials in the prosecution interfered with decision or in the criminal case.

The Court emphasized the importance of the right to freedom of expression, particularly that of a politician, but also stated that this does not preclude conviction in this case. Wilders was also prosecuted for “incitement to hatred or discrimination” but was, again, acquitted because Wilders’ intent was not aimed at encouraging his public to do so. Only, I would add, to make his public vote for him so he could “arrange it”.

As in the first instance, the Court does not impose a punishment on Wilders for the group insult. The seriousness of the fact and the special personal circumstances (such as the circumstance that Wilders himself has been paying a high price for propagating his Islamophobe rhetoric for years) mean that the Court of Appeal ruled that sentencing no longer serves any purpose. The injured parties are declared inadmissible in their claim. Both Wilders and the Public Prosecution Service can appeal in cassation and submit the case to the Supreme Court.

Wilders reacted angry after the case, saying he would appeal to the supreme court and warning that opponents such as Prime Minister Mark Rutte “should not cheer too soon”. “The Netherlands has become a corrupt country. Moroccans who set our cities and neighbourhoods on fire usually get away with it,” Wilders told reporters outside court. The far-right leader had said on Twitter ahead of the verdict that it would decide if the Netherlands had “become a corrupt banana-republic.”

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.” The day before the local elections were held, Wilders asked his audience during a party rally in The Hague whether they wanted ‘more or fewer Moroccans’ and the audience shouted ‘fewer’ (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 people. 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 first 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.

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.

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 in the previous trial and during the appeal 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.