Has Wilders broken the law?

Geert Wilders.
By Folkert Jensma

Geert Wilders’ inflammatory anti-Muslim statements are well known. Are they illegal?

Rumour has it that Geert Wilders, the leader of the populist PVV party, hopes to call Mohamed B., the man who killed Theo van Gogh, as a witness in his up-coming trial which starts this Wednesday. Probably to establish the connection between the Koran and violence that Wilders assumes. The prosecution, however, will focus on the Dutch criminal code, particularly the two articles the politician is alleged to have violated: 137 c and d. Wilders is charged with slandering a group and sowing hate, and discrimination on the basis of race or religion. He has targeted Muslims on the basis of their religion, the prosecution will argue, and non-western migrants or Moroccans on the basis of their race. The trial is expected to last months.

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What exactly is Geert Wilders being charged with?

The case against him involves 21 pages of quotes drawn from interviews, newspaper articles, websites and a description of Wilder’s anti-Islam film Fitna. It was initially dismissed by the public prosecutor’s office which saw no chance of winning a conviction. The prosecutor consulted with its own expert think-tank on discrimination and two independent professors. All recommended against prosecution, stating that Wilders’ public statements would prove insufficient to win a conviction

Don’t politicians enjoy extensive freedom of expression?

Certainly. They cannot be prosecuted for what they say in parliament or local councils. But outside parliament, politicians are basically just citizens. There, they are governed by the normal limitations to freedom of speech established in article 7 of the constitution and in article 10 of the European treaty on human rights. Broadly interpreted, that states that freedom of opinion is a characteristic of democracy, including opinions that are “disturbing, shocking or hurtful”. Limits to that freedom can only be enacted by law and in situations where they are “urgently needed in a democratic society”. To prevent people’s (religious) feelings from being hurt for instance.

Where does the judge place the limits?

The judge examines whether a statement is “unnecessarily offensive” in relation to social discussion. Judges then carry out a “contextual examination”: who says it, what he says, and what is the origin of the statement. Politicians, artists, columnists, imams and other professional participants in public debate get extra leeway.

Why didn't the prosecutor want to try Wilders at first?

Wilders’ criticisms are largely limited to Islam, a religion, and that’s allowed, after all. In general, it is accepted that article 137c is intended to protect groups of believers from being attacked on the street. Not to prevent criticism of religion. The prosecutors’ office also doubts whether Wilders has committed a crime as defined in article 137d, “sowing hate”. Professor Henny Sackers said that wasn’t the case. It’s true Wilders has a clear aversion to muslims, he says, but “that’s all there is to it”. There’s no evidence of incitement or provocation. There’s no “implacable desire” to “exterminate” Muslims.

“Sowing hate” has been interpreted differently. Professor Theo de Roos thinks Wilders may have indeed infringed this article. He thinks someone has to express extremely rancorous opinions on Muslims, and promote these views to others. Wilders does do that, in his opinion, since he gives speeches and interviews and publishes statements. But is he “sowing hate”, which, according to the professor, implies “existential threat”? Considering his comparison of Islam and fascism, it is likely he is considering this. That comparison contains a threat of extreme violence.

Is that why the court forced the public prosecutor to try him?

The Amsterdam court of appeals found that Wilders was trying to drum up conflict and dissension. Group slander seems to be possible to prove. Wilders’ statements on Islam have been so consistent that it ‘seems clear’ he wants to use religion to hurt muslims as a group. The court found that freedom of political speech should lead to a socially acceptable contribution to public debate. This is not the case here. The criminal code therefore has a role to play if “the contribution to public debate is unnecessarily injurious to a group of believers in encroaching on their religious dignity, while that contribution simultaneously incites hatred, intolerance, enmity and discrimination”. There are citizens, and politicians, “who have been sentenced on the ground of less far-reaching statements than Wilders’,” the court stated last year.

Is there a chance that Wilders will be sentenced?

Yes, given the position the Amsterdam appeals court has taken. But the district court doesn’t have to follow that position and can make its own judgement. A conviction for group slander is least likely. How the Amsterdam magistrates will pass judgement on an important politician for sowing hatred and discrimination on grounds of race or religion, remains an open question. For now.

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