Friday, January 29, 2010

The Highs and Lows of the Freedom of Expression and Religion (Part II)

After finding no legal basis for the prosecution of Geert Wilders, leader of the PVV (Party for Freedom), prosecutors were forced to change course in January 2009 after the Amsterdam Appeals Court decreed that charges may (or “should”?) be brought against the politician for inciting hatred, discrimination and the insult of a group.

Without warning and breaching court procedures the detailed 21-page indictment, listing all his Islam and Koran critiques during interviews and his film Fitna, was amended with new accusations of racism against muslims and Moroccans a week before the trial began. At the start of the trial the Court rendered Wilders’ appeal on the extended indictment was inadmissible as the defence had not produced new facts or evidence. Although the prosecution was deemed to be in the public’s interest, the press was, unusually and unexpectedly, barred admittance and was denied coverage of the pre-trial proceedings. This was interpreted by Thomas Bruning, secretary of the Dutch Society of Journalists, as a “serious incident, hindering the freedom of the press, and lessening the public function of a court of law”. The response of the Court was that it was free to deny admittance to anyone if it so decided. According to Wilders, freedom of speech is on the verge of collapse and he is being prosecuted for his political convictions. He said “[i]f a politician is not allowed to criticize an ideology anymore this means that we are lost, and it will lead to the end of our freedom. However, I remain combative: I am convinced that I will be acquitted.”



On 20 January 2010 Geert Wilders went on trial in Amsterdam. The first day of the trial was spent deciding who would be called as witnesses and whether they would all be heard in public. On 3 February the Court will announce which witnesses will be allowed to testify. It will also decide whether it has jurisdiction on the case.

Wilders’ trial is very similar to the judicial procedures that led to the conviction of Daniel Féret, the former chairman of the “Front National” political party and former member of the Belgian Parliament. Between July 1999 and October 2001 Daniel Féret distributed Front National leaflets during their election campaign which led to complaints by individuals and associations of incitement of hatred, discrimination and violence, filed under a law dated 30 July 1981, which penalized certain acts of racism or xenophobia. In the leaflets Féret argued for repatriation of immigrants, preferential treatment for Belgians and Europeans, conversion of asylum centres into relief centres for homeless people and the cessation of immigrant integration projects. In his party’s manifesto he objected to the Islamization of Belgium, the termination of non-European immigration and the expulsion of unemployed non-Europeans. Féret’s statements bear some resemblance to the statements made by Geert Wilders.

Féret’s parliamentary immunity was waived on the request of the principal public prosecutor at the Brussels Court of Appeal. In November 2002 criminal proceedings were brought against him as author and editor-in-chief of the offending leaflets and owner of the “Front National” website. Amongst other matters the court deemed that the writing of leaflets, the content of which leads to discrimination, segregation, hatred and even violence based on race, colour, nationality or ethnic origin, was not the normal work of a parliamentarian. After a lengthy procedure and several appeals, in April 2006 the Brussels Court of Appeal sentenced Daniel Féret to 250 hours of community service related to the integration of immigrants, together with a 10-month suspended prison sentence. It also declared Féret ineligible as parliamentarian for ten years and ordered him to pay one euro to each of the civil parties.

On 29 March 2007 Féret lodged an application with the European Court of Human Rights. On the basis of Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), he alleged that his conviction for the content of his political party’s leaflets represented an excessive restriction on his right to freedom of expression. The seven-member chamber deemed, with three dissenting opinions, that the interference with Féret’s right to freedom of expression had been provided for by law (law on racism and xenophobia dated 30 July 1981) and had the legitimate aims of preventing disorder and of protecting the rights of others. The Court observed that the leaflets presented the communities in question as criminally-minded and keen to exploit the benefits they derived from living in Belgium, and that they also sought to make fun of the immigrants concerned, with the inevitable risk of arousing, particularly among less knowledgeable members of the public, feelings of distrust, rejection or even hatred towards foreigners. While freedom of expression was important for everybody, it was especially so for an elected representative of the people: he or she represented the electorate and defended their interests. However, the Court reiterated that it was crucial for politicians, when expressing themselves in public, to avoid comments that might foster intolerance. The impact of racist and xenophobic discourse was magnified in an electoral context, in which arguments naturally became more forceful. To recommend solutions to immigration-related problems by advocating racial discrimination was likely to cause social tension and undermine trust in democratic institutions. In the present case there had been a compelling social need to protect the rights of the immigrant community, as the Belgian courts had done. With regard to the penalty imposed on Mr Féret, the Court noted that the authorities had preferred a 10-year period of ineligibility rather than a penal option, in accordance with the Court’s principle of restraint in criminal proceedings. The Court thus found that there had been no violation of Article 10. As there was no request to refer the case to the 17-member Grand Chamber of the Court (Article 43 ECHR) the judgment was finalized on 12 December 2009.

The three dissenting judges deemed the 10-year period of ineligibility out of proportion considering the dangers were speculative only. This way the freedom of expression is sacrificed to the anti-discrimination policy. They also remarked that the statements objected to in the party manifesto are from a political party which is not forbidden. There is also not enough ground to restrict a political debate. For example there is no incitement to violence.

Only time will tell if the Amsterdam Court follows the reasoning of the European Court in the Féret case and define the limits of the freedom of expression. One thing is clear, inciting violence is not allowed.


- The Highs and Lows of the Freedom of Expression and Religion (Pt I)
- Geert Wilders
- Indictment Geert Wilders [Dutch only]
- Geert Wilders Speech at the pre-trial hearing
- Juridische analyse uitspraken Wilders [Dutch only]
- do. Summary [Dutch only]
- Fitna [new English version] juxtaposed Quranic verses with images of terrorism by Islamic radicals.
- Daniel Féret
- ECHR: Affaire Féret c. Belgique (Requête no 15615/07) [French only]
- do. Press release
- E.J. Dommering: Annotatie bij EHRM 16 juli 2009 (Féret) [Dutch only]
- Dirk Voorhoof: Politicus die haat zaait is strafbaar. (Note on the judgment of the European Court in Féret/Belgium) [Dutch only]

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