Gjesteskribent

Dirt in Dutchland
For the Dutch TV coverage in January of the hatespeech trial against Lars Hedegaard I asked the opinion of Anita Bay Bundegaard, Head of the Editorial Board of the Danish newspaper “Politiken”:
“The trial against Hedegaard is necessary and we see too few of them. His statements stigmatize. They form dangerous opinions. Countering his arguments like in the American model won’t do: we don’t have that kind of self-censorship. It has to be enforced”.

Mrs. Bundegaard’s public position to prosecute and convict ‘dangerous opinions’ even if they’re factual correct, carries great weight and endorsement in Danish society. Censoring opinions like hers echoes widely in the Dutch society too and form the fundament under the prosecution of Geert Wilders (leader of the Party For Freedom, key holder of the Dutch right wing minority Cabinet, and forced to live in constant hiding).

Yet, reporting in February and March from the Amsterdam courtroom on the re-started process against Wilders, who stands trial for his critique on Islam, Koran, Muslims and multi-culturalism in his movie “Fitna” and newspapers, I see how the sinews of Dutch society shatter now political opinion is taken to court. Moreover, what began a year ago as a jolly Wilders bashing, has mutated into a Machiavellian rot that gnaws at the trust of the Dutch in their judicature. Of course, we Dutch merely present to Western-European societies such as the Danish a distorted mirror image. After all, the Danish system works, doesn’t it. Hedegaard got his “genuine” acquittal. His critique on the raping of  Muslim girls within the ‘safety’ of their own family was factually correct but proved to be a taboo, yet was recorded without his explicit consent and within the privacy of his house.  Technicalities such as these seem to do the job: it got Hedegaard off the hook. So, what’s to worry?

Well, the context of the Wilders trial shows there’s a lot to worry about. Suddenly paused on October 22nd 2010, Wilders’ case re-started on February 7th to probably end in June, this time with a verdict. Shown live on TV it’s clear that Wilders is not to blame for the legal system’s melt down over the past six months. He holds eerily still except for a few angry interviews about his “show trial”, and a courtroom mantra now and then on how Europe’s culture-relativists aide Islam to alter the free West into an enslaved Eurabia. We will wither in the doom of dhimmitude if we don’t take a stand. Without freedom there’s no creativity: where are the Muslim Mozart or the Koran Kafka, there are none. And so on. Wilders’ groomed lawyer Bram Moszkowicz merely pleads against the trial’s legality; a non-suit is what he desperately aims for.

Moszkowicz’ wish has been denied him thus far. On Wednesday the 30th of March the Amsterdam Court ruled, again, that the lawsuit against Wilders is legal. His trial continues on the 13th of April with the most unique blast of them all: the public hearing of maître professor Tom Schalken, renown modernizer of Dutch Law, councilman of the Amsterdam Court, backer of the process against Wilders, and co-writer of Wilders’ “biased indictment” (quote: Public Prosecutor).

For the first time in the Netherlands a ruling judge will be publicly questioned by the three judges of a Criminal Court, a Public Prosecutor, a lawyer and his client. Schalken’s problem is his illegal interference in a running court case (the one of Wilders) –a fact which put Wilders process on pause on October 22nd. But what truly shocked the Dutch were the recent remarks on Dutch TV of leading legal experts Peter Plasman and Peter van Koppen that “steering actions such as of Schalken’s are, alas, daily routine in our legal system”.      

But the interrogation of Schalken merely adds insult to injury: the Wilders trial can boast of an unsurpassed series of seminal shockers.

Truth wont set you free

Dutch Law hinges on the thought that its legal system is guileless, its judiciary is independent and above all parties, and that truth decides. Every now and then there’s a fuck up, but that goes with any trade. So when Paul Velleman, the Public Prosecutor, opened last October his requisitory with “it’s irrelevant whether Wilders speaks the truth or not, what matters is whether his critique is illegal”, he baffled the many uninformed Dutch. He unveiled in full splendour the censoring bias of articles 266 and 137 on (group) insult, hate speech, and inciting hateful discrimination. Articles such as these stem from the 1930’ies and were designed to protect the public freedom of Jews against the Nazis. After the 1970’ies European Court jurisprudence started to amend them, and continues to do so, to include new-age notions like “the right not to be offended in your religion”. Like the Danish article 266b that facilitated the trials against Jesper Langballe and Lars Hedegaard, these articles aren’t geared towards ascertaining the truth, but to weigh sensitivities, associations. Langballe, Hedegaard, and Wilders have not been charged with slander, but with being brutally offensive. And whether that equals illegal discriminatory hate speech is, when all boils down, merely a matter of taste. Hence, the Amsterdam Court ruled again in February that Wilders could ask for three witnesses only, and not eighteen.

Agenda, finance, redundancy all played a part in the judges’ ruling too, but the real rational was that whether Wilders was truthful or had every good reason to think to be truthful didn’t matter at all. According to Dutch hate speech laws Wilders’ cry for expert-witnesses was like barking up the wrong tree: truth is irrelevant, dangerous opinions aren’t.

Still, in Spring 2008 the office of Public Prosecution concluded after investigating the dozens filed charges of complainants that: “Wilders’ critique is distasteful, but functional; it is not illegal”. His “offending, shocking and disturbing” rhetoric belongs to a European debate on Islam and multi-culturalism,” Public Prosecution stated, “In a way Wilders functions as a whistleblower”. Public Prosecution concluded so even after having been pressurized for weeks by the very top of their own Justice Department, to prosecute Wilders “no matter what”.

This was amidst the Fitna crisis when the previous Cabinet tried to censor Wilders’ movie before its first showing. Nevertheless, in 2009 the leading lawyer Gerard Spong used a moot law (article 12) by which the Amsterdam Court could decree Public Prosecution to prosecute Wilders. Councilman Schalken and the Court jumped to the occasion. The Amsterdam police was asked to hand out ready-made forms to complainants on which they could mark the correct accusation. And to cow Public Prosecution further the Court listed a 24 pages indictment which stated that Public Prosecution had been “utterly wrong” in their weighing of the matter. The Court stipulated the desired result: “The Court (…) expects that prosecution will lead to a conviction”. However, on the 15th October 2010 the Public Prosecutor chided the Court’s indictment to be “wrong, concocted and flawed”. Velleman then defied the Court entirely by concluding that “Wilders’ criticizing of Islam and Muslims does not cause Intrinsic Conflicting Dichotomy and does not incite hate. We ask for a complete acquittal”.

Never before had the Dutch witnessed an ugly civil war in their judicature.
But ugly got dirty. On October 22nd, at the last opportunity and seconds after the judges sat down, Moszkowicz jumped up, waving with the day’s edition of newspaper “De Pers”. With his high-brow Yiddish wit he spat out the scandal.

Three days before the testimony of Wilders’ expert-witness, renown Arabist Hans Jansen, councilman Schalken had joined a secretive dinner of the high-brow “Vertigo Club” chaired by Bertus Hendriks, chairman of the pro-Palestine committee, at which he knew Jansen would be present. Jansen wasn’t informed about Schalken’s coming. During dinner Schalken pressed Jansen to agree that his decision to prosecute Wilders had been for the good. Confronted by the article in “De Pers” Schalken stated: “Nothing happened that’s against the rules, but what’s against the rule is that someone breaches the confidentiality of such a dinner”. Everybody in the courtroom realized the ramifications: Schalken had decreed Wilders’ prosecution and he was co-author of the sentencing indictment. Yet the Court’s judges’ unlawful decision that followed was as shocking. They refused Moszkowicz’ demand to hear Jansen on their direct colleague Schalken, even though Jansen sat two seats away and was not too ill to testify (the only question mandatory in Dutch Law). Within the hour Moszkowicz forced the Amsterdam Court to remove the judges because of partiality, which put the trial on halt.

Appointed for life and steering the nation

Two days later and on prime time in the TV show “Buitenhof” Geert Corstens, president of the High Court, whose judges are positioned by the Crown for life, and, hence, beyond democratic control, blamed Wilders for the situation. Corstens reaction came after a TV statement of Wilders a week earlier in which he claimed: “My process is political and a show trial. If I get convicted my 1,5 million voters will put an axe at the root of our legal system.” Confronted with Wilders’ scorn Corstens ominously concluded: “Wilders’ mentioning of his millions of voters and his open contempt of the proceedings of the Court destabilize our state of law. He abuses the gut feeling of his audience and, hence, threatens our legal system”.

Five months later Moszkowicz and Wilders expressed great content in their post courtroom interviews after the Court had ruled in March to publicly question Schalken, Jansen and Hendriks on what happened exactly during the ‘Vertigo’ dinner. Moszkowicz claimed that Schalken’s information expressly might hand Wilders his non-suit. Public Prosecution claimed this to be illusionary: even if Schalken did cheat, the trial itself is fair; the removal of the judges is proof in itself. Moreover, Velleman asked for a complete acquittal –why press for a mistrial?

Part of the answer is the complete independence of Dutch judges to reach their verdict. They have to abide Dutch Law and jurisprudence, but are utterly free to weigh matters and to conclude on basis of their own interpretation. In the strict secrecy of their chamber Dutch judges can ignore the requisitory of a Public Prosecutor, the pleas of a lawyer, and the analyses of experts entirely. Dutch judges are appointed for life after being selected by themselves; they manage themselves; they correct themselves. The total independence of the judges in the lower courts and the High Court rests on the (fictitious) assumption that this free position is necessary to reach verdicts which are free of bias. The utter transparency of the Wilders’ trial showed the Dutch public for the first time live on TV that bias does exist in the decision making of judges, and their justification of these processes later on. The Amsterdam Court has Wilders a saddening record to show.

The rest of the answer is the potential partiality of our highest judges at Appeal and High Court and their skill to steer jurisprudence, and, thus, to steer Dutch society. In the Dutch prime time TV program “Uitgesproken” of 16th of March (http://player.omroep.nl/?aflID=12258170&silverlight=true) Gerard Spong, initiator of Wilders’ prosecution, proudly told me of his find. I checked his story by obtaining the agenda and output of the High Court, and by asking feedback on TV and off the record of professor Henny Sackers, Criminal Law and European Law at Nijmegen University, professor Peter van Koppen, Philosophy of Law at Tilburg University, and leading High Court lawyers Peter Plasman and Benno de Boer.

Two weeks after his TV interview in October Corstens in person decided to preside a body of five High Court judges to review a very minor article 137 case of inciting hate. In March 2008 Appeal had acquitted a youngster who got convicted in 2006 for wearing and selling T-shirts with texts “Combat 18” and “Whatever it takes”. Appeal argued that the wording in itself did not incite hate; although the T-shirts were sold via the website “Blood & Honour”. This neo-nazi site clarified the meaning of the number combination “18”: the first and eighth letter of the alphabet –the initials of Adolf Hitler. Appeal showed disapproval, but made clear that according to Dutch Law pure wording or the display of figures cannot lead to a conviction. On November the 9th Corsten’s body of five assembled the High Court chamber after having organized themselves on September 28th. They decided to break with tradition and to bring Dutch Law on ‘expression crimes’ in par with European Court ruling and jurisprudence. Two weeks later on November 23rd Corstens’ High Court body of five ruled: “these expressions are not to be judged in itself, but in context and by taking in account the associations they cause (…) The acquittal is annulled (…) The Court of The Hague has to re-process” (LJN BM9132, Hoge Raad, 08/04721, 23-11-2010, italics are mine). In the European Court hate speech ruling of 29th of July 2009 on the Belgian politician Daniel Feret the ‘association’ principle was leading: Feret was found guilty. Now, for the first time in Dutch High Court jurisprudence something ephemeral such as “associations” is allowed as ‘proof’.

On the record Sackers, Van Koppen, Plasman, De Boer and Spong explained to me that High Court jurisprudence supersedes Parliamentarian law, becomes dogma, and is always ruled with the direct context of similar cases in mind. Moreover, they emphasized, hate speech jurisprudence is very rare, hence a case with such a clear cut verdict will be leading in similar cases. All of them stated that the only similar case at hand is Wilders’ trial. Clearly, they stated, “this new jurisprudence will most probably lead to a conviction of Wilders”. Van Koppen, De Boer, Plasman and Spong claimed that it was highly unwise of Corstens to preside the “Combat 18” case, because of his confrontation with Wilders. Corstens could have excused himself from the “Combat 18” case. But he consciously didn’t. Off the record but in the direct presence of my editor-colleagues of “Uitgesproken”, Van Koppen, Plasman, De Boer and Sackers confided that it’s the High Court’s aim and job to steer Dutch society with their jurisprudence –expressly when Parliamentarians are seemingly unfit to do their job properly.

Wilders trapped

Geert Wilders stands trial for Islam critique such as: “The Koran is the Mein Kampf of the Islam”. Public Prosecution decided in 2008 and on the 15th of October 2010 that his critique, his wording and the direct context (being a politician and a whistleblower) were not unlawful according to Dutch Law up to that day. On the 22nd of October Moszkowicz had to call for a removal of the Amsterdam Court judges because of their unlawful and biased actions. It seemed a winning move, hadn’t the High Court changed the rules of the game two weeks later. Because from the 23th of November 2010 “caused associations” will lead to a conviction too. And there’s no defence or arguing against associations someone feels. On TV Gerard Spong, who is very much in favour of a conviction of Geert Wilders and who like mrs. Bundegaard cheers notions such as censorship and self-censorship, concluded as follows: “If I weigh the calendar of the High Court concerning “Combat 18” and the fact that Corstens ruled after his confrontation with Wilders and the halting of his trial; if I weigh Corstens’ prominent presence in the verdict on “Combat 18”; the rarity of five High Court councilmen (which is the maximum); and the stunningly clear cut ruling which impacts directly the only other hate speech case at the moment, I cannot but help to conclude that Corstens, the president of the High Court and normally a very busy man, used the “Combat 18” case to settle the score with Wilders (…)It’s too much of a coincidence with Corstens on board (…) He deliberately set a trap.”

The accusation of bias and abuse of power by Spong is backed by circumstantial evidence. Diederik Aben, High Court advocacy-general and Ernst Numann, High Court councilman, were both against the removal of the Amsterdam judges “who hadn’t done anything wrong.” They were also against opting for a different court with non-Amsterdam judges. Additionally, two weeks ago professor Ybo Buruma, Criminal Law at Nijmegen University, has been elected by the High Court and has been appointed by the Crown to become a High Court councilman. Buruma in 2007 compared Wilders with Benito Mussolini and called Wilders a subversive threat to our nation. The High Court isn’t a very large body. Personal persuasions do have effect. Moreover, the Dutch High Court is not checked by any institutionalized form of control. They are the Law. According to the High Court itself, who proudly recognizes these facts on their own website, the absence of control “urges them to be prudent”. Between this absolute and overarching power, which Parliament can only address by coming up with new laws or abolish old ones, and Dutch society mere prudence is the only shield. And this highly subjective notion of ‘prudence’ will become even more crucial in two years from now, when the High Court will become a Dutch Supreme Court: it will obtain the right to nullify Parliamentarian laws if they’re not in par with the Constitution and European Court regulations, laws and jurisprudence. This may sound simple and correct. But nothing in law ever is. All hinges on interpretation and new jurisprudence or, put differently, on personal preferences and personal power (http://www.rechtspraak.nl/Gerechten/HogeRaad/Over+de+Hoge+Raad/).

The new jurisprudence of Corstens will do a number of things in Wilders’ process. It shall frustrate Public Prosecution’s acquitting requisitory; it does hand the Amsterdam judges a legal tool for conviction; it directs Appeal and High Court in their future weighing of Wilders’ case. Put differently, if Wilders gets convicted, which now has become likely, he can go for Appeal and High Court, but they will condemn him too. And if he then goes to the European Court, he will be convicted as well, because Corstens and his direct colleagues adjusted Dutch Law on hate speech and/or expression crimes according to European Law and jurisprudence. Like Spong, Moszkowicz knows this. A non-suit is Wilders’ only way out.

‘Truth is irrelevant’ and ‘censorship is good’ are notions which pervert even the best of people and legal systems. They ought to be banned from our Criminal Codes and Dutch and Danish newspapers’ editorial boards for being the most dangerous opinions of them all, causing the most abhorrent of associations.
 

Arthur Legger||DutchUncleAnalyses  Amsterdam || 2nd of April 2011