Wednesday, March 18, 2009

The Highs and Lows of the Freedom of Expression and Religion

Combating discrimination and all forms of intolerance, as embodied in Article 1 [1] Dutch Constitution and criminally enforced through Article 137c - 137g of the Criminal Code, is a policy spearhead for the Dutch government.

Apart from the economic downturn, the topic of freedom of expression and religion is very much at the centre of public attention in the Netherlands. Geert Wilders, the leader of the Dutch PVV (= Party for Freedom) has spoken out on the issues of immigration, Islam and Islamic extremism and freedom of speech in an effort to defend Dutch culture and national identity. Moreover the arrest of Gregorius Nekschot, pseudonym of a controversial Dutch cartoonist who mocks political ideas about Dutch multicultural society and the behaviour of people with rigid religious or ideological views, caused much debate in both the press and parliament.


Freedom of expression also formed part of a recently issued report (CommDH(2009)2, Chapter X pp. 36-37) of the Council of Europe Commissioner for Human Rights, Mr. Thomas Hammarberg, following an official visit to the Netherlands in September 2008 to discuss the human rights situation in the Netherlands with the authorities, members of parliament and the judiciary, and representatives of civil society, as part of a continuous process of country missions by the Commissioner to all Council of Europe Member States to assess their effective respect for human rights [ Article 3(e) of Resolution (99) 50].

As an MP Geert Wilders enjoys parliamentary immunity on the basis of Article 71 [2] of the Dutch Constitution, which means he has special protection in order to freely exercise his functions as an MP. Nevertheless, because of his views and comments on Islam attempts are being made to prosecute Wilders for "inciting hatred and discrimination" and "insulting Muslim worshippers" through his public statements. In June 2008 the public prosecutor's office declined to charge, stating that Wilders' comments contributed to the debate on Islam in Dutch society and he had not committed any criminal offence. In the words of the office: "that comments are hurtful and offensive for a large number of Muslims does not mean that they are punishable. Freedom of expression fulfils an essential role in public debate in a democratic society. This means that offensive comments can be made in a political debate." Wilders welcomed the Dutch prosecutors' ruling and said he had been careful to limit his criticism to the religion of Islam and not Muslims.

But on 21 January 2009 the Dutch Amsterdam Court of Appeal overruled the prosecutors on the basis of Article 12 of the Criminal Procedure Code and decreed, based on Dutch domestic law viewed against Article 10 (1) of the European Convention on Human Rights and case law of the European Court of Human Rights, that charges may be brought against the politician for inciting hatred and discrimination (Penal Code, Article 137d [3]) and the insult of a group (Penal Code, Article 137c [4]).

Only a fortnight later on 10 March 2009, the High Court (Hoge Raad) ruled in a case concerning an activist who hung a poster in his window with the slogan ‘Stop the tumour called Islam’, that the display of the poster was not punishable under Article 137c of the Criminal Code. The High Court explained its ruling by saying that it is not a crime to express insults towards religion. Not even if that happens in such a way that the devotees feel their religious feelings are hurt. The High Court ruling will have implications for the prosecution of Geert Wilders, as the same criteria of group insult will apply.

On the subject of freedom of speech and religion interesting times await us. In the mean time Wilders and the PVV, with a rise in the mid-term election polls from nine to twenty-nine seats in Parliament, are doing well.


Footnotes:


[1] Dutch Constitution : Article 1
All persons in the Netherlands shall be treated equally in equal circumstances. Discrimination on the grounds of religion, belief, political opinion, race or sex or on other grounds whatsoever shall not be permitted.


[2] Dutch Constitution : Article 71
Members of the States General, Ministers, State Secretaries and other persons taking part in deliberations may not be prosecuted or otherwise held liable in law for anything they say during the sittings of the States General or of its committees or for anything they submit to them in writing.


[3] Dutch Penal Code, Book 2 Title 5 : Article 137d [Unofficial translation]
1. He who publicly, verbally or in writing or in an image, incites hatred against or discrimination of people or violent behavior against person or property of people because of their race, their religion or belief, their gender or hetero- or homosexual nature or their physical, mental, or intellectual disabilities, will be punished with a prison sentence of at the most one year or a fine of third category.
2. If the offense is committed by a person who makes it his profession or habit, or by two or more people in association, a prison sentence of at the most two years or a fine of fourth category will be imposed.


[4] Dutch Penal Code, Book 2 Title 5 : Article 137c [Unofficial translation]
1. He who publicly, verbally or in writing or image, deliberately expresses himself in an way insulting of a group of people because of their race, their religion or belief, or their hetero- or homosexual nature or their physical, mental, or intellectual disabilities, will be punished with a prison sentence of at the most one year or a fine of third category.
2. If the offence is committed by a person who makes it his profession or habit, or by two or more people in association, a prison sentence of at the most two years or a fine of fourth category will be imposed.



References:

- 2002 Dutch Constitution [in English]

- Decision Gerechtshof Amsterdam (Amsterdam Court of Appeal) 21-01-09 [in Dutch]

- Beschikking Hoge Raad (High Court) 10-03-09 'Groepsbelediging en Islam' [in Dutch]

- Dossier godsdienstvrijheid en de vrijheid van meningsuiting [references (mostly in Dutch) about Religion and Freedom of Speech]

- Prakken, Ties: Wilders: verbieden of toestaan? In: NJB 06/09 [In Dutch]

- Rules on Parliamentary Immunity in the European Parliament and the Member States of the European Union : Final Draft. Ed. by Simon McGee. European Centre for Parliamentary Research and Documentation (ECPRD), 2001.

- Summary 'Hoge Raad' decision of 10-03-09 by the Registrar Mr. E. Hartogs [in Dutch]

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