Gerolf Hagens [Human Rights Section, Kaveity and Kaveity]: Recently, the Royal Dutch Court of Amsterdam rendered a verdict in the case against Geert Wilders. In a previous submission, I wrote that it was going to be very interesting to see whether the court would accept the claim Wilders made, that he—as a politician—should be able to say the things he was trailed for.

Even though many people expected Wilders to acquitted, there were still a number of people that seemed to be very sure that he would in fact be punished for what he said. The main argument used was based on the fairly similar case of Le Pen v. France, before the European Court of Human Rights (ECHR), where it was decided that freedom of expression does not protect discriminatory statements and that politicians have a greater responsibility when it comes to what they say; a politician cannot say things that discriminate against a part of their society.

The Dutch court, however, after a very irregular and fairly long-lasting trial, decided that what Wilders said cannot be seen as hate-speech, as offending people on the basis of their religion, or as encouraging people to discriminate against others on the basis of their religion. The court gave two main arguments for this decision.

First, the court decided that Wilders did not offend people on the basis of their religion, nor did he encourage people to discriminate against others on the basis of their religion because Wilders never said anything about Muslim people, but about the Islamic religion. Offending a religion, or a religious entity, is officially forbidden under Dutch law, but has been accepted for a very long time. The court said that Wilders’s statements qualified under this prohibition, but in practice it is no longer a punishable offense. However, once it intends to cause hate or discrimination against a group of people on the basis of their religion, it goes too far. With some of Wilders’s statements, the court said, he reached the outer limits of the law without going over.

The fact that people feel offended by what Wilders said does not mean that it was intended to insult them. Since it was aimed at the religion and not the people following this religion, this was not a punishable offense.

One can have doubts about the validity of this argument. A characteristic of a religion is that people follow it. It is these people that make the religion what it is. Making such a distinction between the religion and the people following the religion does not do justice to reality. Yet there are arguments to support this idea as well, seeing as remarks aimed against the religion, are not necessarily aimed at the people following the religion and the fact that someone feels offended, does not necessarily mean the person saying seemingly offensive things can (or should) be blamed for this.

When it came to the question whether a politician should have more leeway in expression to contribute to the public debate about a certain issue, the court referred to the ECHR case of Féret v. Belgium, where it was decided that a politician should in fact have more room to say things that “offend, shock or disturb,” but there has to be a “pressing social need” to say these things and they must be proportional. The court did not say much about this, but applies this principal combined with Dutch law to conclude that there had been no violation of the law.

With that, this trial ends. Only the public prosecutors can appeal this decision, but have no reason to do so as they have said since the start that they did not think Wilders was guilty. However, the people that forced the trial have decided to go to the UN to fight the decision, claiming that the Dutch government has not done enough to protect minorities.

From a legal point of view as well as from a political one, this was the best possible outcome. In legal sense there were no compelling arguments to prosecute Wilders, as was already concluded by the public prosecutors. The earlier mentioned Féret case was clear on the fact that a politician has the right to say things that can be considered shocking or offensive, which is what Wilders did. Yet, what he said was not discriminatory. There is no doubt in that people considered it to be discriminatory, but the fact remains that most of the offensive things he said were aimed at the religion and not at a group of people.

The Le Pen case, brought up by those who claim that Wilders should have been convicted, cannot support this either. In this judgment it was concluded that the European Convention on Human Rights was not violated when Le Pen was convicted for—among other things—racism. That is where there is a major difference with the underlying case: Wilders was not convicted under Dutch law. While it can be said that on the basis of this judgment a conviction would not be a violation of his freedom of speech, it cannot be said that an acquittal is thus a violation.

On a political basis, this was the best outcome as well. Politicians have to be able to say things that bother their listeners. There are approximately 1.5 million people who voted for Wilders, and most of them do so because of their fear, and perhaps hatred, towards people of the Muslim faith. As careful as any (modern) country has to be with in that regard, especially in light of Europe’s past, the issues that matter to these people is important too. The fact that the group this speech is aimed at is offended does not mean that such an opinion cannot be expressed. This is especially so when the speech is not about the group of people personally, but their religion or religious customs, it would go too far to convict someone for expressing such an opinion.

That said, and as the court expressed, Wilders does go very far with some of the things he says. Minorities, whether religious or ethnic, have to be protected. So while Wilders, and anyone else, should be able to say anything about any religion, when it comes to saying things about groups of people, he will have to keep in mind that it is also his role as a politician to protect minorities.

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Suggested citation: Gerolf Hagens, Wilders Acquittal is the Best Outcome, JURIST – Hotline, July 14, 2011, http://jurist.org/hotline/2011/07/gerolf-hagens-wilders-acquittal.php.