The Wilders Case Continued

Jeroen Temperman, 12 juli 2012

Dutch Politician Geert Wilders, leader of the rightist Party for Freedom (PVV), was tried in relation to defamation and hate speech charges in a case that lasted from 2009-2011. Ultimately, on 23 June 2011, he was fully acquitted. The trial was in many respects a sensational one, not in the least because of the sheer fact that a politician was prosecuted over his public statements; but also considering the peculiar situation that the Dutch Office of the Prosecution was prosecuting rather reluctantly. That is, initially the prosecutor on the case set the case aside. Having arrived at the conclusion that there was nothing in Mr Wilders statements or behaviour that might be deemed criminal, the allegations made (specifically, Wilders’ anti-Quran film Fitna and several interviews in Dutch newspapers resulted into a couple of dozen lodged complaints) were dismissed. The prosecutor certainly deemed some of Mr Wilders’ statements insulting to Muslims, yet the berated statements were deemed to be uttered within the context of (contributing to) the public debate.

The first unique twist––many would follow––to the saga came about when the Amsterdam High Court, thus urged by a group of stakeholders under what in Dutch law is called the “Article 12 Sv-procedure” (a penal code procedure that enables victims and other stakeholders to appeal to a prosecutorial dismissal of a case), overruled the Office of the Prosecution and essentially forced the latter’s hand. A case against Mr Wilders was initiated after all. Accordingly, the High Court concluded in abstracto that there were sufficient indications that Mr Wilders may have breached penal law provisions on incitement, defamation and discrimination, thus deeming a prosecution viable. In the high-profile trial that ensued before the Amsterdam District Court, Wilders’ defence included several preliminary defences questioning the admissibility of the case (dismissed) and substitution requests: one was dismissed and one was in fact granted after it had transpired that one of the presiding judges on the case had had dinner with an important witness to the case. Considering the fact that the Office of the Prosecution did not find the case a viable one from the outset, it came as no real surprise it ultimately requested a full acquittal. The Amsterdam Court subsequently fully acquitted Mr Wilders, largely agreeing with the prosecutor, though it did not shy away from observing that Mr Wilders did get dangerously close to that fine line between legal and illegal speech (it was held, inter alia, that the “suspect balances on the border of what is accepted pursuant to criminal law”).

Had Mr Wilders lost the case, it would not have been hard to predict how it would continue from there on: after further exhaustion of the Dutch judicial remedies, the case would likely have ended up in Strasbourg before the European Court of Human Rights, with the latter body then being prompted to untangle the interplay between freedom of expression (especially of politicians), and the ‘rights and reputations of others’ (in this case, of religious minorities). Presently, however, it is much more interesting to focus on the other side of the apparent clash of rights and interests: how about the interests of the persons that considered themselves ‘victims’ of hate speech in this and similar cases? Are those interests protected in international human rights law? Is there a right to be free from hatred? Or at least, is there a right to be free from the most extreme forms of advocacy of hatred, namely those that entail incitement to discrimination, hostility or violence? And if so, could insufficient recognition thereof by states lead to actual breaches of human rights law?

Some of these questions may be answered some time soon, as there is one more twist to the Wilders case––the case took an international turn, albeit perhaps an unexpected one. Some of the alleged victims of hate speech have brought a case against the Netherlands: for not convicting Mr Wilders, that is, for not protecting persons sufficiently against incitement to discrimination, hostility and violence. The complaint against the Netherlands is lodged with the UN Human Rights Committee, the monitoring body that oversees compliance with the International Covenant on Civil and Political Rights (ICCPR). Let us be clear, should the Human Rights Committee entertain the case, one thing is not subject to debate: the question whether or not Mr Wilders was ‘guilty of hate speech’. The Geneva-based Committee is not going to re-enact the Wilders trial. What could possibly be decided is whether or not the Netherlands breached international human rights law by virtue of not (adequately) implementing its own hate speech legislation in the light of the particulars of the case.

It is logical that these stakeholders took the case to Geneva and not to Strasbourg. The European Convention on Human Rights does not even contain a hate speech prohibition, let alone a positive right to be free from hatred––ostensibly, there is nothing much in that human rights treaty that alleged hate speech victims could complain about in this type of cases. The only relevant benchmarks in the European Convention (i.e. Article 17 on abuse of rights) or relevant jurisprudence (i.e. judgements that take Article 10 and Article 17 to imply hate speech restrictions on freedom of expression) on the issue of hate speech could possibly have been seized upon by the Strasbourg Court to deny Mr Wilders standing / dismiss his complaint had he lost his domestic case (take the somewhat comparable cases of European politicians being fined for hate speech offences and not being successful in Strasbourg, such as Norwood v. UK, Le Pen v. France, and Féret v. Belgium). By contrast, the ICCPR formulates a duty for each state party to the Covenant to adopt legislation prohibiting certain types of religious hate speech. Article 20(2) ICCPR provides that “[a]ny advocacy of … religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” The question remains though what this norm precisely means: is it more than ‘just’ a state obligation; that is, are individuals legally entitled––do they ‘have a human right’––to protection against advocacy of religious hatred? And if so, do they have standing to complain about non-compliance?

Two Dutch lawyers of the international law-oriented Dutch firm Böhler Advocaten brought the case against the Netherlands on behalf of three anonymous applicants, M.R., A.B.S. and N.A. The latter three are Dutch citizens of Moroccan decent and all claim to have personally experienced negative impact triggered by Mr Wilders’ statements, ranging from more general feelings of increasingly being threatened and marginalized to very concrete forms of violent hate crimes. Besides a few other claims, applicants claim a breach of Article 20 ICCPR (taken in conjunction with the equality principle of Article 26 and minority rights codified by Article 27; the other complaints invoke Article 2 and Article 14 of the ICCPR). In respect to this complaint, the applicants consider that while article 20 ICCPR is formulated “in terms of obligations of the state rather than in rights of individuals, this does not imply that these are matters to be left to the internal jurisdiction of state parties and as such immune from review under the individual communication procedure” (p. 2 of the Communication against the Netherlands).

Thus, the M.R., A.B.S. and N.A v. the Netherlands case is the first case of its kind to be premised principally on an alleged breach of Article 20(2) ICCPR. The strengths of the Communication lie in the following facts: the applicants make it very clear that they complain not because they feel insulted (after all, there does not exist under international law a right not to be insulted), but because they feel threatened––a real threat that the Dutch state does not sufficiently seek to combat. Furthermore, the applicants do not claim that the Netherlands breach the Covenant merely because Wilders was acquitted; what is claimed is more specifically that (i) the Dutch judge did not interpret advocacy of hatred in accordance with international standards; and (ii) that very solid evidence of advocacy of religious hatred constituting discrimination, hostility or violence was available but not adequately valued by the Dutch judiciary. The applicants argue that the Dutch judge failed to appreciate the context and concentrated too much on the content of the berated statements. Moreover, they were scrutinized in isolation rather than in conjunction. The Dutch court ought to have assessed the cumulative effect of all the berated statements on Dutch society (see pp. 9-10 of the Communication). The applicants present ample data (on discrimination and relevant hate crimes) endeavouring to link up what they experienced as systematic incitement to an objectively discernible poisoned atmosphere (see pp. 20-22 of the Communication).

It will be very interesting to see how the Human Rights Committee rules. Of course, the easy-way-out would be to declare the case inadmissible (for failure to complain about a substantive right; or by declaring itself incompetent ratione materiae). Yet, the Committee on the Elimination of Racial Discrimination (CERD Committee) has already set a different precedent in that respect (in such cases as L.K. v. The Netherlands and The Jewish Community of Oslo et al. v. Norway, the CERD Committee has monitored compliance with Article 4 CERD Convention on hate speech, despite that article not being formulated as an individual legal entitlement but rather as a state obligation per se); there are no formalistic reasons why the Human Rights Committee could not do the same. Also, the recent ‘rediscovery’ of Article 20––see the final paragraphs of the new and extensive General Comment No. 34 dealing with both free and extreme speech––could be taken to mean that the Human Rights Committee means business in the area of combating advocacy of hatred that constitutes incitement to discrimination, hostility or violence.

 

An earlier version of this comment is available at the ESL Public International Law Blog (http://blog.eur.nl/esl/pil/2012/06/28/the-wilders-case-continued/). Thanks to Paulo da Rosa for his useful comments. A book chapter on the Wilders case, entitled “A Right to be Free from Religious Hatred?: The Wilders Case in the Netherlands and Beyond” by Jeroen Temperman is forthcoming in a book edited by Peter Molnar. Jeroen Temperman, to that effect appointed as EUR-Fellow, is currently also working on a book on advocacy of religious hatred under international and national law.