Could any of our readers who are familiar with Dutch law speak about this development:
[T]hree Islam experts proposed by [Dutch MP Geert] Wilders [in his defence against charges of discrimination and inciting hatred] will be heard behind closed doors, the judges said on Wednesday afternoon. They include American Syrian psychiatrist Wafa Sultan who believes the world is witness to ‘a battle between modernity and barbarism which Islam will lose’....Wilders has stated his case not only rests on freedom of speech legislation but on the fact that he is speaking the truth....
Wilders faces five counts of religious insult and anti-Muslim incitement. In January, the public prosecution department extended the prosecution case to include inciting hatred of Muslims, Moroccans and non-Western immigrants....
In the U.S., criminal trials must always public, with some very narrow exceptions that wouldn’t be applicable in such a case. The public is entitled to observe the trial, so as to better judge for itself whether the trial is proceeding fairly and whether the ultimate verdict is consistent with the evidence presented at trial. Is the Dutch tradition different?
I assume, by the way, that the court’s rationale is that the witnesses would themselves criticize Islam, which might be seen by some as itself constituting “inciting hatred” of Islam and by extension of devout Muslims. Is that really a legally viable justification under Dutch law? Or am I misunderstanding the court’s rationale? [UPDATE: The assumption seems to be incorrect; see below.]
Thanks to Religion Clause for the pointer.
UPDATE: Commenter Martinned, who seems to know a good deal about Dutch law, reports:
Trials are held in public, except in cases determined by law. (art. 121 of the Dutch constitution.) However, given that ours is an inquisitorial system with no jury, this doesn’t get you as much as it would in the US. The judges also consider the criminal dossier, i.e. all the documents prepared in advance, such as documentary evidence, transcripts of interrogations, etc. Such things don’t have to be read into evidence somehow, they are evidence themselves.(Just to clarify: the benefit of having the judges as the trier of fact is that they have to explain in their ruling why they found the facts that they did. That can be difficult, but at least it’s better than a guilty/not guilty verdict from a jury, where only the jurors know why they decided the way that they did. Especially in a controversial case like this one, the ruling will discuss the evidence, the facts and their connection to the elements of the crime in some length.)
As for the grounds upon which part of the testimony was closed off to the public, there is this ruling (in Dutch) concluding the “regiezitting”, i.e. the case management session. The most notable aspect of it was, at least to the Dutch press, that most of the witnesses Wilders wanted to hear, including a couple of Iranian ayatollahs, have been rejected. (Not probative to the case, etc.)
The three witnesses you mention are the islam specialists who have not been rejected as experts. (According to the court, their testimony will suffice, without any need for hearing a dozen more people.) The fact that they are heard behind closed doors is not as such the point. The point is that they are not heard by the court, in open court, but by a “rechter-commissaris”, a “judge-commissioner”. That is normally the way this is done. That way, the witness can speak to their heart’s content, calmly, whenever it is convenient for them, away from the court buildings if necessary, via teleconferencing if necessary, etc. Such “depositions” are chaired by a judicial officer, with the “judge-commissioner” and the parties asking questions, but is not “in court” as such. The transcript simply becomes part of the official record.
In this case, the defendant has an obvious interest in making the entire proceeding as public and TV-friendly as possible. The court, however, declined to deviate from ordinary practice. Part of the reason for this is that the relevance of what these people have to say still has to be established. (The court has not yet decided whether they can be considered “experts” in the sense of the Code of Criminal Procedure.)
Unfortunately, I couldn’t find a translation of the relevant legal provisions. I did come across art. 269(1) of the Code of Criminal Procedure, which states the reasons why a trial might be held wholly or partially behind closed doors: “public morality, public order, security of the state, the interests of minors, and the privacy of the accused, other parties or others involved in the case.” In addition, the trial can be closed to the public if this is necessary to guarantee a fair trial.
I assume, by the way, that the court’s rationale is that the witnesses would themselves criticize Islam, which might be seen by some as itself constituting “inciting hatred” of Islam and by extension of devout Muslims. Is that really a legally viable justification under Dutch law? Or am I misunderstanding the court’s rationale?
That is not the case. I’m not sure if there is an explicit legal provision to this effect, but I highly doubt that anyone can be prosecuted for what they said on the stand, and I don’t think anything they might say would rise to the point where “public morality” or “public order” is in play....
The transcripts are available at the court clerk’s office, but I’m not sure whether they are accesible to all. They certainly aren’t released to the general public.
Many thanks for the explanation!
jvarisco says:
Perhaps the court fears some sort of retaliation against the witnesses for their testimony?
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February 5, 2010, 1:30 pmADF Alliance Alert » Tyrannical tactics adopted in Geert Wilders trial? says:
[...] The Volokh Conspiracy reports: ”[T]hree Islam experts proposed by [Dutch MP Geert] Wilders [in his defence against charges of discrimination and inciting hatred] will be heard behind closed doors, the judges said on Wednesday afternoon . . .” [...]
EvilDave says:
Because modern free speech only goes as far as the most offended person in the room.
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February 5, 2010, 1:43 pmneurodoc says:
I expect that martinned will show up to share his expertise where Dutch law is concerned. I wonder whether it was upon the request of those testifying on Wilders behalf that the testimony is being given behind closed doors. It is hard to imagine that the witnesses themselves could be subject to prosecution for whatever non-perjurious testimony they might give, even that which might be deemed “hateful,” “inciteful,” “insulting of religion,” etc., but this is only speculation on my part as to the law there.
What I wonder most of all about this matter is what the general populace there thinks about this prosecution of Wilders. Is it generally favored or disfavored? I would hope the latter.
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February 5, 2010, 1:55 pmOren says:
Factual question: will the transcript be released eventually or does the order to close the court effectively seal that testimony indefinitely?
I think that makes a big difference because I might be able to support closing the trial as a temporary measure since it’s concerning an incendiary topic where short-term release is not in the public interest. This would only be true if there was a hard-requirement that the testimony be released in full after a certain time, e.g. after the controversy is passed. Such a “cooling-off” period would not offend my notion of an open trial (provided it was justified by the situation and relatively short).
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February 5, 2010, 2:07 pmChris Travers says:
That’s an interesting question. Certainly prosecuting people for giving required testimony truthfully would offend any notion of rule of law.
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February 5, 2010, 2:18 pmgeokstr says:
This would only make sense — closing off testimony critical of the Religion of Peace probably because of fear of intimidation, harassment, rioting and murders from the peace-loving adherents to said wonderful Religion.
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February 5, 2010, 2:58 pmEric Rasmusen says:
Interesting general legal problem. In a libel trial, can a witness be later prosecuted or sued for slander? I guess it would be perjury, wouldn’t it. But suppose he honestly believes in what he says, and has evidence, but the evidence turns out to be false. he wouldn’t be perjuring himself, but the statement, if made outside the court, would be slanderous– or would it?
Crim law people, please inform us.
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February 5, 2010, 3:02 pmegd says:
But is the rule of law a protected class? If so, would the judge be responsible for ‘inciting hatred’?
I would think that under the standard of protecting religions, the court would have to (in order to avoid taint) exclude prejudicial or hate-inspiring testimony.
It’s like arguing a KKK member should be let off the hook for racist statements because a lot of other KKK members all have the same opinion of non-WASPs.
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February 5, 2010, 3:09 pmEugene Volokh says:
Eric: “The immunity of parties and witnesses from subsequent damages liability for their testimony in judicial proceedings was well established in English common law,” and that continues to be the law today in the U.S.
The same principle would presumably apply to criminal defamation liability; and on top of that, there are generally no criminal slander laws in the U.S. (Some criminal libel laws remain, but they are rarely used, and in any event would generally require knowledge of falsehood.)
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February 5, 2010, 3:10 pmMartinned says:
Here I am...
Trials are held in public, except in cases determined by law. (art. 121 of the Dutch constitution.) However, given that ours is an inquisitorial system with no jury, this doesn’t get you as much as it would in the US. The judges also consider the criminal dossier, i.e. all the documents prepared in advance, such as documentary evidence, transcripts of interrogations, etc. Such things don’t have to be read into evidence somehow, they are evidence themselves.
(Just to clarify: the benefit of having the judges as the trier of fact is that they have to explain in their ruling why they found the facts that they did. That can be difficult, but at least it’s better than a guilty/not guilty verdict from a jury, where only the jurors know why they decided the way that they did. Especially in a controversial case like this one, the ruling will discuss the evidence, the facts and their connection to the elements of the crime in some length.)
As for the grounds upon which part of the testimony was closed off to the public, there is this ruling (in Dutch) concluding the “regiezitting”, i.e. the case management session. The most notable aspect of it was, at least to the Dutch press, that most of the witnesses Wilders wanted to hear, including a couple of Iranian ayatollahs, have been rejected. (Not probative to the case, etc.)
The three witnesses you mention are the islam specialists who have not been rejected as experts. (According to the court, their testimony will suffice, without any need for hearing a dozen more people.) The fact that they are heard behind closed doors is not as such the point. The point is that they are not heard by the court, in open court, but by a “rechter-commissaris”, a “judge-commissioner”. That is normally the way this is done. That way, the witness can speak to their heart’s content, calmly, whenever it is convenient for them, away from the court buildings if necessary, via teleconferencing if necessary, etc. Such “depositions” are chaired by a judicial officer, with the “judge-commissioner” and the parties asking questions, but is not “in court” as such. The transcript simply becomes part of the official record.
In this case, the defendant has an obvious interest in making the entire proceeding as public and TV-friendly as possible. The court, however, declined to deviate from ordinary practice. Part of the reason for this is that the relevance of what these people have to say still has to be established. (The court has not yet decided whether they can be considered “experts” in the sense of the Code of Criminal Procedure.)
Unfortunately, I couldn’t find a translation of the relevant legal provisions. I did come across art. 269(1) of the Code of Criminal Procedure, which states the reasons why a trial might be held wholly or partially behind closed doors: “public morality, public order, security of the state, the interests of minors, and the privacy of the accused, other parties or others involved in the case.” In addition, the trial can be closed to the public if this is necessary to guarantee a fair trial.
That is not the case. I’m not sure if there is an explicit legal provision to this effect, but I highly doubt that anyone can be prosecuted for what they said on the stand, and I don’t think anything they might say would rise to the point where “public morality” or “public order” is in play.
The transcripts are available at the court clerk’s office, but I’m not sure whether they are accesible to all. They certainly aren’t released to the general public.
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February 5, 2010, 3:17 pmMartinned says:
I looked into this a little more and I think it would be covered by the general rule of art. 42 Penal Code, which says that people cannot be prosecuted if they were required by law to do as they did. Since witnesses can be summoned under art. 210(1), 213 and 287(3) Code of Crim. Proc., since they are required to speak the truth, the whole truth and nothing but the truth under art. 215, since a refusal to answer can cause the witness to be placed in contempt under art. 221, I’m pretty sure this adds up to a legal requirement to speak the truth as they see it, meaning that someone cannot be prosecuted for inciting hatred, for criminal libel, for insult, or whatever, for what they said on the stand.
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February 5, 2010, 3:26 pmKent G. Budge says:
Well, now my curiosity as a non-lawyer is piqued. Under what very narrow exceptions can a U.S. trial be closed? Juvenile defendants? Anything else?
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February 5, 2010, 3:31 pmKen Braithwaite says:
Martinned gives a cogent argument for witness immunity — based one notes on a statute not a principle. But most of us might think truth an adequate defence (in principle and not simply by statute) and the Dutch authorities have already explicitly stated they do not consider truth a defence. So I would not be surprised if they did not pursue witnesses. The witness is after all not compelled to give the specific answer he gives in those specific words. That is, the wording of his answer might be too plain or scritical for the Dutch ministry to brook.
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February 5, 2010, 3:49 pmOren says:
You mean regular court proceedings are not a matter of public record? I don’t care about if they are ‘released’ in any formal sense, just that a citizen can go down to the courthouse archives and make a copy.
[ The alternative rule, that all court transcripts are sealed until a motion to open them is made seems somewhat absurd, especially in light of the presumption of open trials you quoted from the Dutch Constitution. ]
In the instant case, let’s say >8 weeks have passed and the furor subsided, will it be possible for a reporter (or historian, or legal scholar or counsel for a similar case ...) to get the full transcript? What would the process be for such a person?
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February 5, 2010, 3:58 pmSteve says:
If I understand martinned correctly, he’s saying these witnesses are participating in something more akin to a deposition than trial testimony, and thus the fact that it’s not taking place in open court has absolutely nothing to do with the nature of the case.
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February 5, 2010, 4:11 pmDNJ says:
Article 6(1) of the European Convention on Human Rights (to which the Netherlands is a party) also protects (subject to exceptions) the right to a public trial:
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly by the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”
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February 5, 2010, 4:36 pmOren says:
I wondering how the ECHR has interpreted this. The interests of justice surely weigh against releasing incendiary or inflammatory testimony. Whether that would be true months or years later, however, is unclear (as to whether a new motion might be made to unseal at that later point).
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February 5, 2010, 4:44 pmMartinned says:
Actually, that’s part of the problem with these specific witnesses. Their purpose is to prove a truth defense, but the court hasn’t decided yet whether truth matters. At some point, they will, though. For now, the question is still open.
(My guess is that, to the extent that any of the statements in question are capable of being true or false, their truth would be a partial defense, and certainly something to be taken into account at the sentencing stage.)
Well, the witness is legally required to speak the truth. Presumably, that means the truth as he sees it. I’m not sure how you can take that and still argue over wording.
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February 5, 2010, 4:58 pmMartinned says:
Yes. The court’s ruling that I linked above says that the court appreciates the principled nature of the case, but that it does not consider that sufficient reason to deviate from ordinary practice, which is to depose such expert witnesses rather than to hear them in open court.
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February 5, 2010, 5:00 pmMark Buehner says:
Thought crimes should always be tried behind closed doors. I would think that should be obvious. Historical precedent is easy to find and I’d be happy to site the philosophical underpinnings ie– Orwell.
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February 5, 2010, 5:08 pmEric Rasmusen says:
The Dutch practice of having the tryer of fact (the judge) explain why he found the facts as he did would itneract well with having less public disclosure of the evidence. The tryer of fact presumably would discuss the relevant evidence, and so the public would find out why the result came out as it did.
Of course, the public would still not know whether the court was being just or not. That’s probably part of the European idea that there should be a presumption that the governmetn is honest and trustworthy.
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February 5, 2010, 5:24 pmPart of Geert Wilders Trial in the Netherlands Closed to the Public | Liberal Whoppers says:
[...] original here: Part of Geert Wilders Trial in the Netherlands Closed to the Public [...]
Martinned says:
The problem is that there are some issues of privacy. Even in this interlocutory ruling, the court refers to the experts as [person 1], etc. (The ones admitted are [person 2], [person 7] and [person 8].) In normal criminal cases, the court would never publish the name of the accused, or of any of the witnesses, in its public ruling. (The press would write about Geert W., i.e. by writing an initial for the accused’s last name. The court simply talks about the accused, or about [accused 1] if there are multiple defendants.)
Let me just look this up. (My area of expertise is European and International law. I haven’t done criminal law since university.)
Art. 365(4) and (5) of the Code of Criminal Procedure seem to settle the matter.
The statements of these experts, if they are not made in open court, would normally be attached to the ruling to the extent that they are relied upon by the court. In that case, they would be accessible to the public and the press.
I’d imagine the court’s clerk would normally have instructions as to what they’re supposed to release. If you don’t agree, you’d have to get in touch with the president of the panel that made the ruling. I’m not sure if you’d have to file any kind of official motion. If someone asked me, I’d suggest they write the president of the panel a friendly letter first, similar to how you make a FOIA request.
BTW, note that were I used the word “transcript” in earlier comments, that would have been somewhat inaccurate. The Dutch word is “proces-verbaal”, which my dictionary translates as the record, i.e. somewhere between a transcript and the minutes. The law says that this document contains all that has been stated, done and happened at the session/meeting. The witness or the accused may ask that statements are written down verbally, in which case this is done within reason. Otherwise, the witness’s statements and other matters of note are restated in a more businesslike manner, without all the unnecessary verbiage. (At the end of the deposition, the witness is usually shown or read the record of the deposition, asked whether this is indeed his statement, and asked to sign it for approval.)
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February 5, 2010, 5:29 pmMartinned says:
Why wouldn’t the public know whether the court was being just? The arguments of parties are also discussed, both as to facts and as to law. Not to mention that both facts and law can be appealed.
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February 5, 2010, 5:32 pmMartinned says:
That’s what bailii is for. (The court’s own search engine, Hudoc, is rubbish.)
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February 5, 2010, 5:36 pmMartinned says:
While I don’t agree with this prosecution, nor with the law on which it is based, I would like to note that he isn’t being prosecuted for his thoughts, but for what he said out loud. If he had libeled someone, or insulted the Queen, there would be no problem.
Also, I’d like to remind everyone that the prosecutors originally didn’t want to prosecute. They are only doing so now because the Court of Appeals made them. Even now, they might still ask the court to impose no penalty, since the CoA ruling requires them to prosecute, but it doesn’t require them to ask for actual punishment. (And exceeding the penalty requested by the prosecutor is one of the many things that trigger an additional motivation requirement for the judges.)
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February 5, 2010, 5:45 pmSoronel Haetir says:
Martin,
I will just say that from a US standpoint this entire process appears quite bizarre, from the nature of the charges to the manner of trial.
As for the public being able to judge the outcome based on the written ruling without the transcript because the judge will summarize the testimony as needed that is making a major assumption of good faith on the part of the judge. Witness the numerous cases where judges slant a trial record trying to achieve just such an outcome in the US. If the trial record were not public it would be even easier to get away with such slanting. It comes very close to allowing someone not only their own opinion but their own facts as well.the same p
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February 5, 2010, 6:02 pmMartinned says:
@Soronel Haetir: the record is made by the clerk, not by the judges. (There’s three of them, in felony cases like this one.) Parties can ask to have things put in, ask to have certain statements recorded in the record in the witness’s own words, make their own recording, etc. In the end, if the court slants the facts to suit the ruling, the losing side can always appeal.
The point of it all is to avoid all the theatrics and party slanting of American trials. Witnesses are not “prepped”, they are deposed by a judicial officer, who, together with the parties, makes sure that all the questions get asked. If the record of that interview is slanted, the witness can (and normally will) object. Remember: they are asked if they agree with the way their statements have been rendered.
In the court room, too, the whole thing is less formal than an American trial. The judges ask questions about certain aspects of the case, while the parties make sure that nothing is missed. No such thing as rules of evidence, etc. It is my understanding that the record of the trial does normally render statements verbally to a large extent, but this is not strictly required. The ultimate guarantee that it is all on the up and up is that every aspect of the trial can be appealed. The media and the general public only play a secondary role in this regard.
This case is different than most because it is highly controversial. As a result, the court is full of press, and every aspect is publicised. It should be noted that this is perfectly possible: The accused has every incentive to make this into a media trial, and therefore every incentive to give the media access to every part of the case file even while the trial is still ongoing. (They even tried to make the prosecutor read the entire indictment out in open court, but the court put a stop to that; only portions of the indictment were read out.)
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February 5, 2010, 6:31 pmA. Zarkov says:
The Dutch government is facing a lose-lose situation. If Wilders is found not guilty of the charges because what he says is true, then they face the wrath of the Muslims and the Dutch government (except for Wilders) is afraid of them. Essentially they would be officially vetting his assertions about Islam and its danger to the Netherlands. On the other hand, if the court finds Wilders guilty then they make him into a martyr. The last I heard his party while still a minority is very popular. The Dutch government’s strategy is beginning to come into focus. Deny him public exposure and create a haze of legal abstractions as cover. Make it into what amounts to a secret trial. If the press and the public can’t hear the witnesses and read un-redacted transcripts, how can we judge the court?
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February 5, 2010, 6:53 pmSteve says:
Wow, no matter how lucidly martinned explains the relevant procedure, I guess some people will never be swayed from their belief that this is some kind of Star Chamber plot. The irony of closed-minded people like that commenting on the necessity of airing evidence openly is not lost.
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February 5, 2010, 7:01 pmMartinned says:
Well, for one thing, there are no witnesses, since there is no dispute about what he actually said. The people under discussion here are experts, whose job it is to assist the court.
As noted, it has yet to be decided whether the truth matters. This is not a libel case.
Secret trial my *ss. Not only is the court full of press every session, the Dutch judiciary website has a special site devoted to the trial, with every public document presented in a easy to understand manner. I can see how the concept of an inquisitorial trial would confuse you, but there’s no reason to get all high and mighty about it. I got 96 hits on SSRN earlier, searching for articles on inquisitorial vs. adversarial systems, you should try it.
There’s a municipal election next month, but he’s not participating everywhere, so the big test is the next parliamentary election next year in May. We’ll see.
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February 5, 2010, 7:05 pmAnonymous says:
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February 5, 2010, 7:33 pmNorthern Dave says:
Thanks, Martinned for all the information! My experience in Europe is oddly enough with the Austrian system (simply from living in Austria...never charged with anything :-) ).
Please forgive those who seem hostile to the Dutch system as the view of government in America is vastly different to the Continental European view.
Government in the US is a necessary evil to be continually monitored and controlled.
Government in the UK and UK Empire is thought of similarly though there seems to
be a greater willingness to submit to government authority in general, especially in times of distress (eg WWII). The people consider that if the government oversteps too much they will certainly correct it, but there is a much longer leash than in the US.
Government on the Continent is almost worshipped by comparison. Oh, certainly there is vigorous political debate, but I’d argue judges on the Continent have a good deal more latitude to do as they please than any average US citizen would be at all comfortable with.
Wilders’ situation is interesting to us as there are groups on this side of the pond pushing for thought-control, too (let’s face it, speech control is really a State moral position designed to engineer thought).
Again, thank you for opening up the Dutch system to us.
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February 5, 2010, 7:39 pmOwen H. says:
For truth to be a defense, he would have to prove that it is true of each and every single adherent of Islam. That is facially untrue.
That said, I am appalled that this kind of trial can even exist. Freedom of speech is meaningless unless it includes the views of hateful bigots, among others.
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February 5, 2010, 7:41 pmNorthern Dave says:
PS — This pretty much sums up the Anglo-Saxon position better than I did:
http://blogs.telegraph.co.uk/news/edwest/10062627/Happy_birthday_Magna_Carta/
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February 5, 2010, 7:42 pmNorthern Dave says:
You’re mixing your allusions. Star Chamber would imply a secret kangaroo court a la the Soviets. This is all being done in broad daylight. This is more like a Canadian “Human Rights” decision.
It is very disturbing to some of us North of you (except those in Alaska :-) ) that the “Human Rights” legislation in Canada also excludes truth as a defense........
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February 5, 2010, 7:48 pmMartinned says:
What does one have to do with the other? The Star Chamber allusion goes to procedure. The fact that truth may not be a defense is to do with the fact that he hasn’t been charged with lying. That’s a point of substantive law.
Well, close enough. That’s why I am against these laws. (It bears repeating, lest some commenters take my defence of the inquisitorial system as support for the laws Wilders has been charged under.)
Well, in the Netherlands we have a constitutional ban on judicial review of statutes. In this case, the court can’t even find that the charges violate Wilders’ art. 10 free speech rights, since IIRC that matter was already settled in the Court of Appeals ruling that ordered this prosecution. So as a matter of law, the court’s power is much more circumscribed.
What’s more, the greater power of the court over certain aspects of the case also mean greater transparency (as in: a greater obligation to explain), and a greater part of the trial that can be redone on appeal (as in: all of it, in theory).
In the end, it comes down to the distinction between absolute truth and relative truth that we were taught in university. In civil law, the theory was, the judge is more reluctant to go ultra partitem. Instead, he focuses on distilling the truth from the submission of parties. In criminal law, on the other hand, the judge’s job is to obtain absolute truth, i.e. the truth as we would ordinarily think of it. The fact that parties might stipulate to certain facts is irrelevant. The judge asks questions until he is satisfied. From where I’m sitting, the (American) adversarial system seems to do the former in criminal law as well as in civil law, imho a grave injustice.
(The role of the jury in all this is an entirely separate matter. It is perfectly possible to have jury trials in an inquisitorial system. Many European countries do.)
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February 5, 2010, 7:58 pmA. Zarkov says:
There is no dispute about what Wilders has said, but Wilders wants to use expert witnesses to prove what he said is true. The public should be able to see and hear these experts and read the full and complete transcript of what they said. I don’t know why you insist on not calling the three witnesses. You seem to be saying that they’re something like a special master in a US court. I think you are playing word games with me.
How is that? Isn’t Wilders being accused of what amounts to libeling a religion? More word games to confuse people.
Open trial my ass. If this case hinges on the truth of what Wilders has asserted, then the expert testimony is crucial. The public should be able to see and hear it, unfiltered and unmodified by the state. But we know what’s happening. The Dutch poltroons don’t want the public to hear the truth about Islam.
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February 5, 2010, 8:05 pmA. Zarkov says:
If Wilders Article 10 free speech rights don’t protect him in this case then what good is Article 10? You seem to be saying that you have the right of free speech in the Netherlands except when you don’t.
What’s emerging here is that Wilders is charged with making statements the Muslims don’t like, and he can be put in jail for that. The truth of the statements could be irrelevant. We have here the kind of double think Orwell wrote about in 1984.
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February 5, 2010, 8:20 pmMartinned says:
Let me sort out all three of your remarks at once. The original post describes the charges as “religious insult and anti-Muslim incitement”. That sounds about right. You can commit those crimes by speaking the truth, or, more likely, by saying something that is not capable of being true or false, i.e. an opinion. Most of the statements in question (they’re quoted in the CoA ruling here), are a mixture of statement of fact and opinion. Take the very first one, which may or may not be religious insult:
This is the best that I can do as far as translation goes:
Some of that can, if you squint just enough, be described as a statement of fact. But as a whole, there is no way to prove or disprove the truth of this statement/these statements. But that is besides the point anyway, since the criminal offences in question don’t have the absence of truth as an element. The only question is to what extent it comes in anyway, for example because the truth is less likely to be an “insult” (is that true?) or because it affects the decision as to sentencing.
And, once again just for the record, I think these laws should be scrapped, and that this trial is a disgrace.
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February 5, 2010, 8:24 pmMartinned says:
Don’t look at me, I agree with you. The CoA cited Gündüz, which I can’t link. (It isn’t available on bailii for some reason.) Copy/pasting:
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February 5, 2010, 8:32 pmOren says:
I suppose we have only to wait for the day a German takes violent offense at the notion that his country exterminated 10 million undesirables. Don’t worry though, we’ll take the truth into account at sentencing.
What issue of privacy? Art 121 states that trials are open to the public, thus explicitly disclaiming any privacy interest the parties may assert.
Why not shall? That is, even if he doesn’t find an exception listed below, he can refuse because he’s in a grumpy mood?
I’m sure plenty of people who have had judgments against them have an ‘interest’ in withholding them. Seems like poor sauce to me.
So even worse than the discretion of the court to make exceptions based on interest, the judges can simply refuse to attach a particular deposition to the ruling and instead leave it in the dossier?
I understand that the ruling normally comprises of the evidence that supports the judge’s decision making, but ultimately he has unlimited discretion as to what he attaches to the ruling and what he doesn’t, right? I imagine there is no “motion to attach X to ruling” or “motion to unseal dossier” that a third party can file if he wants access to pertinent evidence that is not so attached.
I don’t mean to be disrespectful or insulting in these comments (though it seems many here unfortunately do), but this is getting more and more arbitrary with every line. What seems to have start as a firm promise of an open trial seems now to be regarded as merely a preference to be fulfilled only when there’s no good reason not to. To an American, this is both alien and, quite frankly, terrifying — it gives the court seemingly unfettered power to withhold information.
Of course, an informal request should precede a formal motion, whenever possible. The point of the formal request is to get an official ruling that can be appealed to a higher body that can elucidate the standards met by the various exceptions denoted above.
This is functionally equivalent to a transcript.
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February 5, 2010, 8:50 pmJavert says:
For more, one might want to look here: http://www.wildersontrial.com
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February 5, 2010, 8:54 pmNorthern Dave says:
Wow.
“...the Court would emphasise, in particular, that tolerance and respect for the equal dignity of all human beings constitute the foundations of a democratic, pluralistic society. That being so, as a matter of principle it may be considered necessary in certain democratic societies to sanction or even prevent all forms of expression which spread, incite, promote or justify hatred based on intolerance (including religious intolerance)...”
Again the deliberate confusion of the respect for dignity of human beings for an equal valuation of all Weltanschauungs.......sigh.......
Thanks for the citation, Martinned.
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February 5, 2010, 8:58 pmAnonymous says:
I’m sorry, I don’t know what it’s like living in a totalitarian state. Where I come from, people in general are evidently not intent on making every social interaction a matter of class warfare, rather than common welfare.
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February 5, 2010, 8:59 pmOren says:
Thanks for the pointer, I didn’t know about Bailii and gave up on Hudoc. :-)
Good to see that only part of the Netherlands has gone totally mad. Unfortunately, it seems to the CoA part, but that’s not without remedy either.
Another procedural question, why wouldn’t the court first decide, as a matter of law, whether truth is relevant and only conduct an inquiry into the truth if it is?
Finally, thanks for sticking around and answering stupid (hopefully some weren’t) questions.
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February 5, 2010, 9:00 pmMartinned says:
I think that’s a conversation we’ve already had in the past. The mere fact that those present at trial know the identity of the accused (or the victim, for that matter), does not mean they have no further privacy interest, at least not under Dutch and European law. For comparison, you may want to look at this recent ruling by the UK Supreme Court about withholding the identity of terror suspects.
That may be an issue of translation. The record is released unless one of the exceptions of the following sentence applies.
Which is why it is not unusual to at least redact the name of the accused out of the records.
No. Documents that are referred to in the ruling are attached.
No. Criminal dossiers are exempt from FOIA requests, since they are assumed to be private to the point that the public’s interest in checking up on the judiciary is outweighed by these privacy concerns.
Withhold information from whom? From the general public, sure, but from the parties, absolutely not. And that is the primary function of the trial: to resolve the conflict between the parties. Inquisitorial trials do so in a much more efficient manner, with much less manipulation by the parties. The question of openness is more a matter of weighing privacy against transparency. It doesn’t affect the interests of the accused, since he/she has full access to everything.
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February 5, 2010, 9:01 pmA. Zarkov says:
First let me thank you for your clarifications and apologize for my getting a little testy. I’m nearly an absolutist on free speech, and unfortunately we have people and organizations here in the US like La Raza, who assert “hate speech” is not free speech. We have an president who seems to want to make us more like Europe. So naturally I’m sensitive to the Geert Wilders trial and anything that smacks of a defense of his persecution and prosecution.
Back to work. I don’t think one has to squint to see a statement of fact. Wilders asserts that the Quran incites hatred and murder. That’s seems like a statement of fact on Wilders part and we can either verify it, or rebut it with expert testimony. I understand that many translations of the Quran for western consumption have been sanitized so as to make it look more benign than Arabic version. It will take someone fluent in Arabic and who is an scholar on Islam to set the record straight by specific reference to the text and what it means. The expert will need to be detailed and complete because the usual defense of the Quran is to say something is taken out of context. That’s why it’s important for the public to have access to everything. There is absolutely no reason I can see for not making everything public. After all we are not dealing with military secrets.
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February 5, 2010, 9:09 pmMartinned says:
That’s a good question. I’m not sure. The ruling from Wednesday that I referred to earlier only says that they haven’t decided yet, and that they don’t intend to until after the substantive stage of the trial is over. I suspect, but this is only speculation, that they foresee that the statements that these experts will make will have some bearing on the outcome of the trial, so that in any case their time and everyone else’s won’t be wasted by hearing them.
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February 5, 2010, 9:10 pmAnonsters says:
You, sir, are a genius. Using HUDOC has always been a pain in the ass.
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February 5, 2010, 9:15 pmMartinned says:
As far as I can tell (remember, I’m not a criminal attorney and have no first hand experience in these matters), there is no reason to suspect the statements of these three experts won’t be attached to the ruling. Wilders will presumably make arguments based on them, which the court will have to reply to in its ruling. Since documents referred to in the ruling would normally be attached, the statements of the experts would be, too. That way, anyone who can’t get access to them in some other way, can go to the court house after the trial is over and read the record of the RC-hearings for each of the three experts.
More likely, though, mr. Moskowicz, Wilders’ A-list attorney, will continue to argue his case in the criminal court and in the court of public opinion at the same time. (I would, too, if I were him.) In that case, no one will care what the experts said. Who cares about nuance when you can have a nice, fun, partisan fight?
And, once again just for the record, I think these laws should be scrapped, and that this trial is a disgrace.
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February 5, 2010, 9:16 pmMartinned says:
Whenever I have linked ECtHR cases in the past, I’ve always linked to bailii. (I think that in theory you should be able to link to Hudoc directly, too, but I’ve never been able to find anything there, much less figure out how to deeplink.)
FYI, there is also a Wordlii, but somehow it doesn’t work quite as comfortably as bailii.
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February 5, 2010, 9:18 pmA. Zarkov says:
Thanks for the reference. I for one really appreciate your efforts. I know you are not paid to do this.
Reading through Gündüz it seems to say you have free speech except when you don’t. That is when the state decides your speech is ok. That’s the way I interpret this excerpt.
This means certain groups like Islam and Scientology can escape criticism by using a protective religion wrapper. Article 10 rights seems weak to me.
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February 5, 2010, 9:20 pmEric Rasmusen says:
Martinned, who I again thank for all these good descriptions of procedure, asked:
Why wouldn’t the public know whether the court was being just? The arguments of parties are also discussed, both as to facts and as to law. Not to mention that both facts and law can be appealed.
The court wouldn’t know whether the court was being just because the 3 judges and the clerk might choose to omit all the exculpatory evidence from the ruling they make public. They wouldn’t even have to lie— they could just say that they are only including the information they found relevant. Doesn’t fairness depend entirely on the goodness of the judges?
If the trial or even just the transcript (assuming it is not doctored with outright lies) were public, on the other hand, then the public would be able to see the defendant’s evidence and judge for themselves—as would the prosecutors’ superiors and the higher courts.
A jury serves a similar purpose, and would be more important in a close-trial system than in the American one: it is required that some citizens outside the government view the proceedings if the defendant so requests, and— the better known function but maybe NOT the most important— they are given some decisionmaking power too.
The Roeder-Tiller murder trial recently discussed in VC has some aspects of a Dutch trial. One of Roeder’s complaints is that the judge forbade him to mention his kill-Tiller-to-stop-illegal-behavior justification to the jury or let them see any evidence about it, and since Roeder was quite ready to stipulate that he’d killed Tiller, the judge thereby took away his right to a jury trial. But at least this was publicly done.
If the judges were corrupt, it’s hard to see how the defendant would have any chance in a Dutch court.
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February 5, 2010, 9:21 pmA. Zarkov says:
Will anyone be allowed to read and copy the documents for posting on the Internet? If the public is only allowed to read the documents without permission to scan them, then this case is at least partially closed to the public. Then we will have arguments about what is actually in the record. It might even be illegal for someone to quote the record because the quote would insult a religion.
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February 5, 2010, 9:28 pmNorthern Dave says:
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February 5, 2010, 9:33 pmMartinned says:
If that trial had been done in Dutch court, Roeder would have every opportunity to argue this point to the trier of fact, who would then reject it. This discussion would have taken place in open court, just like in the US.
If the judges are corrupt, it’s hard to see how the defendant can have a chance anywhere. Look at those Pennsylvania (W.Va?) cases where the judge made a deal with the local juvenile detention facility. Before that case came out, massive numbers of people got stuffed.
At least here in NL you can appeal the court’s findings of fact to the Court of Appeals. If the appellate court (five judges) is also corrupt, then yes, we have a big problem.
I don’t know. I don’t know of anyone ever doing so, since it doesn’t normally make for very good reading. The lawyers representing the Mothers of Srebrenica in their case against the UN and the Dutch state seem to have uploaded only their own briefs. (Link to the English versions) On the other hand, the relevant legal provision talks about the court providing a copy to anyone who asks. (Unless, bla bla.)
I suspect that you can have a copy, but that the Wet Bescherming Persoonsgegevens, i.e. the “Privacy Act”, would limit your freedom to publish it. I don’t think quoting something someone else said would get you in trouble with these insult and incitation statutes.
That sounds about right.
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February 5, 2010, 9:52 pmBlue says:
Why is it that virtually every human “right” codified by Europeans starts with flowery and expansive language and ends with a phrase that basically says “unless the State really doesn’t want the right to exist.”
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February 5, 2010, 10:13 pmMartinned says:
[My previous comment is still awaiting moderation.]
Because we decided against the US model, where every right is phrased with no exceptions whatsoever, and where the courts simply make them up anyway.
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February 5, 2010, 10:23 pmOren says:
I had written a rather snark response to this until I actually realized that I was stumbling on a language block.
To me, an open trial is not merely open to those that physically want to attend but also open in the figurative sense of available for all to scrutinize. That is, it require not only that the court not lock its door but that rather a pervasive presumption of openness in all documents and evidence.
Of course, my parsing of the (ambiguous) meaning of the word ‘open’ in the broadest and most figurative sense possible (e.g. as in the colloquialism ‘open book’ not ‘open door’) is largely a reflection of the values I’ve already brought to the table — the paramount interest of the public in judicial transparency except in cases of demonstrable need. That is, I am not in a particularly favorable position to judge Art 121.
Thanks for clearing that up (or prodding me to clear it up).
Mistaking ‘may’ for ‘shall’ is a big one!
Doesn’t this just kick the can down the road? A judge can manipulate what is made public by not referring to (and thus not attaching) the deposition.
Sorry, I was being sarcastic and it must not have stuck.
I was thinking, e.g. of a restaurant owner who was sued for making customers sick or substandard sanitary conditions. Surely he has an ‘interest’ in withholding the information but that seems to me woefully insufficient to actually justify not releasing that information to the public. His ‘interest’ here is entirely illegitimate — an attempt to hide an unlawful or tortious acts (a perfect example).
In brief, I was mocking the notion that the court should accord their interest any weight at all.
No, I meant from the general public. And no, the primary function of the trial is to ensure that justice, a manifestly public good is done. From the point of view of an American (and I recognize and embrace the provincialism of my views!), the court is a public institution and everything that goes on in the court is fundamentally one of public interest, even a land dispute between neighbors.
Not relevant to the debate — I can imagine an inquisitorial trial with an absolute requirement for public disclosure of all documents, evidence, deposition, expert testimony and such like (if you like, we can wait until after the judgment is absolutely finalized before such release, makes no difference to me.
Well, not the accused in this instant case, but the accused in future cases have a damned good (IMO) interest in knowing precisely how the court will approach the issue for the purposes of planning a defense.
Moreover, the public at large has a keen interest in the same because the court is defining the bounds of their actions. That is, everyone with views about Islam similar to Wilder’s is going to want to know with exacting precision how the court got to its conclusions so they can stay on the right side of the law.
That is, transparency functions not only in the public policing the judiciary but in the judiciary providing clear guidance on its own expectations.
This is good news, since it means they at least partially receptive to a truth defense.
Ironically, Scientology is labeled an illegal cult in some parts of Europe and enjoys far more protection here as a bona-fide religion under the 1A. That is, however, a whole different ball of worms.
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February 5, 2010, 10:33 pmA. Zarkov says:
Where do people have more rights? As far as free speech goes, I know of no country that has free speech to the extent enjoyed by the U.S. The exceptions are obscenity, some kinds of pornography and military matters. The U.S. can get positively weird when it comes to nuclear secrets. The Department of Energy attempted to get prior restraint against the Progressive Magazine for publishing an article on how fusion weapons work. They failed. Expert witnesses tore the DOE and their lawyers to shreds forcing them to give up. They do have one bizarre concept: born classified. Your very thoughts about nuclear weapons can be classified even though you have no clearance and no access to anything secret. The knowledge is automatically classified when it come into existence.
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February 5, 2010, 10:43 pmMartinned says:
And they will be able to, since the court will explain its reasoning in the ruling. (Unlike, as I mentioned before, a jury which can only give a thumb up or down.) I’m not sure how the entire case file is relevant to the general public. Actually, I’m not sure that there even is one in this case. Or, rather, there is one but I guess it only contains the submissions of the parties which are part of the record. (There is no conflict over facts, no witnesses, and the accused himself declined to be heard pre-trial.)
I know, I know. My apologies. I was once — briefly — part of the sausage factory of law making, and thus found myself in a long conversation about should/shall/should endeavour/shall endeavour/may/etc. (We were trying to write something that wouldn’t actually create a legal obligation for the Member States, but that was sufficiently stern sounding that the Parliament wouldn’t notice the absence of any actual obligation.)
To the extent that the information you’re thinking of isn’t part of the public record, the answer is simply that that is why you bring a lawyer.
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February 5, 2010, 10:56 pmMartinned says:
Granted, no question. But then, all it takes to change that is for 5 justices to wake up on the wrong side of the bed one morning. It’s not like you can point to any written law to explain why they might be wrong.
The point concerns two distinct problems: “how many exceptions (and which exceptions) should a given right have”, and “how should all of this be arranged as a matter of law”. Blue’s observation seemed to concern the latter, not the former. My reply is simple: if there are going to be exceptions to my rights, I’d rather have them written down in subsection 2 of every article than to have to read about them for the first time in a court ruling.
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February 5, 2010, 10:59 pmOwen H. says:
What does this even mean?
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February 5, 2010, 11:14 pmOren says:
Wait a second there, is there part of the record that a lawyer can get to but not available to us mere citizens?!
I had been assuming that there isn’t — i.e. that a lawyer wanting to research the law (either for the purposes of defense or simply to advise a client who wants to know the boundary of legal behavior) must rely on the same public records available to everyone.
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February 5, 2010, 11:25 pmU.Va. Grad says:
To be fair, blue, the European stuff about public trial rights you quote isn’t all that different from what’s actually the case in the US, despite the plain language of the 6th Amendment. In the Europeans’ defense, one can at least say that they’re honest about how their rights are circumscribed, since it’s done in the text.
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February 5, 2010, 11:40 pmMartinned says:
Nope, the lawyers have the same access as everybody else.
Then again, your lawyer — if you choose the right one — will have tried such a case before. (Remember, the point was about “planning a defense”.) If your lawyer hasn’t tried such a case before, he will have colleagues who have who he can talk to. Then there is research he might do, etc. That’s (one of the reasons) why you hire a lawyer: to help you plan a defense.
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February 5, 2010, 11:42 pmOren says:
I would too, in the event that we can be promised that the exceptions will be equal in scope in both cases. It is Zarkov’s reasonable contention (to which I mostly concur) that they are highly correlated — that explicit exceptions will be adopted to cover a wider range of cases.
That is, the lack of explicit exceptions is a useful barrier against erosion of the right because it places the government (usually) in the position of having to justify itself. Where the exception already exists, the government may merely quote it (and the judge can merely cite it) without a deeper justification.
I can’t prove it, of course, but if the “compelling government interest” test that was created as part of strict scrutiny had been encoded into the 1A as opposed to judicially invented, many more government interests would be factually judged ‘compelling’ than are today. The very citation in the amendment would grant legitimacy to rulings declaring some-such to be a CGI.
Bah! There is “shall”, “may” and “shall not”. Perhaps “should” can be peppered in judiciously (but if you push it I’m just going to replace all instances with “may” without changing the meaning). All other phrases should be banished from the lawmaker’s lexicon as criminal instruments of intentional fraud.
Intentional fraud indeed! I hope (perhaps not for your sake) that legislators are not fooled by such contrivances. Either the law creates an obligation or it doesn’t.
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February 5, 2010, 11:44 pmOren says:
(1) Whew. I thought I was going to have to get really worked up there. :-)
(2) How is the lawyer supposed to do research when he doesn’t not have access (modulu renaming the parties for the purposes of anonymity) to the entire casefile?
Also, the point is not only about planning a defense but advising clients (and the general public) on the limits of the law. For instance, Wilder would have been wise to consult an attorney to inquire as to the best possible wording and phrasing for his incendiary comments without running afoul of the law.
Then again, that might have frustrated his true purpose in this mess ...
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February 5, 2010, 11:51 pmOren says:
First, I would not trade Scalia’s scathing dissent in Maryland v. Craig for all the Gouda in Holland.
By the way, this case made me look up the standard for exclusion of the public in US criminal trials. Turns out it’s a double standard, “an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest” if the government requests it but only “[both a] there is a substantial probability that the defendant’s right to a fair trial will be prejudiced by publicity that closure would prevent [and] reasonable alternatives to closure cannot adequately protect the defendant’s right to a fair trial.” if the defendant requests it.
Perhaps it’s this that caught my eye: the judicially crafted exception is exceedingly narrow. “Overriding interest”, “essential” — these are words of someone that wants the exception to apply only in the absolute narrowest of cases. If the DC or EUDHR wrote their exceptions with such stringency I might not actually oppose having them declared explicitly.
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February 5, 2010, 11:56 pmMartinned says:
I should hope not. Yours is a country where lawyers rule the world. Here, not so much. Part of the reason why that is the case is that our civil law doesn’t involve massive damages awards, while our criminal law doesn’t involve people being sentenced to 15 consecutive life sentences. The chance that this trial ends with anything more severe than a slap on the wrist is vanishingly small. (Theoretically, the maximum penalty is 1 year in prison and/or a € 10.000 fine, but that is absolutely no way never going to happen.) If he actually had to pay his lawyer, that would be quite something (Moskowicz is quite expensive, being probably the second best criminal defense attorney in the country), but I highly doubt that that is the case. Either he does the case pro bono, or someone else is picking up the tab.
We have a long tradition — going back to the days of the Republic — of the actual laws being only part of the story. That’s why we have laws that, as a matter of policy, aren’t being enforced, such as the laws against soft drugs. (And in the past also prostitution.) Then there are laws that aren’t being enforced because doing so would almost always violate the defendant’s ECHR rights, such as the law against blasphemy. Finally, there are the laws under consideration here, which are the result of, and continue to encourage, a broader conversation as to what is and is not OK in public discourse.
Sometimes someone crosses the line, and then they are invited to court so that a “conversation” can take place between the state, the accused and the court: where is the limit? In some high profile cases, this conversation simultaneously takes place outside of court as well. Either way, the punishment isn’t the point, and if people felt forced to seek the advice of counsel rather than risk breaking the law, the law would be overshooting its purpose. Even people who — unlike me — support this law would be concerned if Wilders were to have his lawyers (or other jurists) go over his interviews before they are published.
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February 6, 2010, 12:28 amSoronel Haetir says:
I fully agree that the explicit exceptions lead to much wider latitude for infringement. This trial as an example, there is no way that these proceedings would not be fully open to both public scrutiny as well as viewing in the US. Look at the summary SCOTUS ruling just a couple weeks ago where a conviction was reversed because the courtroom was closed to the public for jury selection without exploring alternative arrangements. I’m not sure what the 6A commenter above was thinking of but there are exceedingly few criminal proceedings that will be closed in the U.S. (Juvenile is not considered criminal though it is reaching a point where it probably should be.) The threshold for closing civil matters is somewhat lower but most of those cases (such as parts of divorce records) are of much lower legitimate public interest than even a misdemenor prosecution.
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February 6, 2010, 12:45 amSoronel Haetir says:
I too am with Scalia on Maryland v. Craig. If video is not good enough for the remaining federal parole hearings as (I believe the 7th) one circuit held it sure as hell shouldn’t be good enough for convicting someone in the first place. Would be interesting to see how such a case would come down with 20 years intervening.
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February 6, 2010, 12:58 amJamesWN says:
The truth was not always a defense in US libel law. In Beauharnais v. Illinois (1952) the Supreme Court upheld a conviction under an Illinois group libel statute only providing for truth as a defense when the libelous statement was published with good motives and for justifiable ends,
Also the United States was instrumental in exporting repressive hate speech laws and book censorship to post World War II Germany. Julius Streicher was condemned to death by the Nuremberg tribunal with the collusion of American judges merely for publishing a newspaper that would likely be protected under modern First Amendment interpretation.
Measured against the group libel standard upheld in Beauharnais, it’s very likely that Wilders speech would not be constitutionally protected, since many value judgments of and concerning large groups aren’t capable of being proven true or false.
The better view is that sanctions for group libel and group insult are absolutely contrary to free speech and should never be imposed in a free society.
The Supreme Court of Canada has directly confronted the argument that a hate speech law without an exemption for truthful statements violates freedom of expression:
From (Human rights commission) v. Taylor, [1990] 3 S.C.R. 892 opretholdt § 13 i den føderale Human Rights Act med følgende bemærkninger:
http csc lexum umontreal ca en/1990/1990scr3-892/1990scr3-892.html
I found this passage in a report entitled: NATIONAL SECRETARIAT AGAINST HATE
AND RACISM CANADA (NSAHRC)
HATE CRIMES, THE CRIMINAL CODE
AND THE CHARTER OF RIGHTS
AND FREEDOMS:
REPORT ON THE OCTOBER 23, 2005
SYMPOSIUM
Report Prepared by Charles C.Smith Consulting.
This is really frightening.
The author essentialy takes the position that the state may deny the defence
of truth in a criminal prosecution because the underlying doctrines
themselves should be forbidden.
http www indigenousbar ca pdf/nsahrc_symposium.pdf
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February 6, 2010, 1:26 amJamesWN says:
Sorry for the Danish text in my comment.
In Denmark our Penal Code S.266 B provides for two years imprisonment for communication threatening, insulting or degrading a group of persons on account of race, color national or ethnic origin, faith or sexual orientation.
Prior to 1971 the law was limited to false accusations, but due to ratification of the UN convention on the elimination of All Forms of racial discrimination, Parliament extended the law to threatening, insulting or degrading communication concerning the protected groups regardless of truth or falsity.
The European Court of Human Rights has never directly ruled on whether a defense of truth is mandated by ECHR Article 10, but in its Jersild judgment the court while finding a violation of a journalist’s freedom of expression, implied that the degrading statements of the racists were not protected by Article 10.
It’s therefore likely that the ECTHR would not find a violation of Article 10 on account of truth being unavailable as a complete defense to conviction.
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February 6, 2010, 1:48 amOren says:
Perhaps I’m being dense, but I fail to see at all how this is a relevant response to what I wrote. I don’t see what any of the above has to do with civil versus common law at all. It seems just as prudent in all cases for the citizen to verify that his actions are in compliance with the law — after all, he may not plead ignorance as a defense.
I can’t believe that you would real mean that, if the citizen cannot comprehend for himself the precise contours of the law (especially where the statute uses malleable terms) you would hope that he not seek the counsel to clarify it. Should he simply proceed blind and hope that the statute does not proscribe his conduct? Perhaps he should refrain from doing anything that could be construed as being a violation.
Now, perhaps the Dutch legislature and local authorities produce more easily comprehensible laws and thus is not an issue. The instant case seems to argue against that, since “inciting religious hatred” can mean any number of things. Without some interpretive guide and without advice of counsel, I might refrain from saying all manner of things that are perfectly legal (in a form of over-censorship).
Despite what the textual (as opposed to original-intent or original-meaning) originalists here like to argue, words are not always self-explanatory. A reasonable person, for instance, might conclude that the offense of “inciting religious hatred” requires that a listener to the speech actually be incited to hatred. Another might conclude that any speech that has the tendency to do so is criminal, yet another might relax it even further to include speech that might incite hatred.
How is the magnitude of the penalty relevant to the citizen’s interest I’ve cited here?
Sounds to me like an even more compelling reason to inquire with an attorney when things are borderline. If the actual law doesn’t even delineate the boundary between lawful and unlawful conduct, you have more need of an experienced person who can sort it out for you.
Oddly, that happens here too on occasion but usually by executive decision, not judicial decision. Plenty of college-towns and hippie-burbs will let soft drugs by because the voters don’t want them enforced (laws that were passed on a State level with different demographics).
Interestingly, executive discretion to not prosecute didn’t fly. That is, the CoA seemed to insist the issue be discussed in this particular fashion even after the prosecutor declined.
I’m sorry Martinned, but I do not consider a situation in which one compelled to attend as a conversation — it’s not even a “conversation” in square quotes, I’m afraid.
Less snarky but to the same point, no matter how much you soften the process, interaction between the government and the citizen is fundamentally one of power. The citizen must submit to lawful authority, the State may take his liberty. There is much to be said for the inquisitorial system of justice and there are certainly elements that we ought to adopt (or rather adapt to our system). It is not, however, a process so intellectually pure so as to negate that its very operation is at essence one of coercion.
At least in my view, the citizen is rightly subject to such coercion because he was given fair notice that his conduct was prohibited. Now you’ve turned that on its head and told me that we are going to use this coercive process to discover what is and is not prohibited in the first instance. Perhaps it’s hyperbole, but the State has no right to dragoon the citizen into such a role.
Perhaps you misapprehended me, I don’t think that he should go over his interviews every time he speaks. Instead, I was simply saying that counsel might be useful in order to explain to him in broad terms what speech the court has and has not tolerated with respect to criticism of religion and how they are likely to rule. Specifically, he might as which particular elements the court usually find most troublesome and which the least.
Let me say this, when I visit Holland shortly (if all goes to plan, anyway), I will be operating in a situation of unease with not knowing what I can and cannot say. I’m sure it won’t be bad (and I’m not going to be giving speeches, of course) but the uncertainty, even though it’s exceedingly unlikely to become an issue, is disconcerting. This talk about a ‘conversation’ and the indeterminacy of the law is not reassuring me. I don’t want a conversation with the law, I want to do what is required of me that I may be left in peace.
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February 6, 2010, 2:37 amBrian G. says:
I think it is about time a court system understood the real world effects of continued slander and libel of the Muslim religion, which, in conjunction with the abject poverty imposed on it by the West, has caused an alienation of a group of people note seen since the days of African slavery. People like Geert Wilders cannot be allowed to continue to marginalize a huge segment of the world and not expected to have to answer for it.
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February 6, 2010, 2:38 amOren says:
Well, I’m enough of a relativist to believe that what’s best for Americans might not be best for the Dutch. That is, there is no a priori reason to believe that our every free society must have identical policies — there is some wiggle room in there for the preferences of the electorate.
The outcome of this case, on the other hand, might be a borderline one for me. If the court acquits Wilder and affirms that the law only applies to wantonly hateful speech with intent to intimidate, then (still personally opposing the law in its entirety) I can still consider that within the bounds of reasonable disagreement. If he is convicted, I’m not so sure ...
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February 6, 2010, 2:48 amOren says:
People like Brian G. cannot be allowed to continue to marginalize Geert Wilders and not expected to have to answer for it.
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February 6, 2010, 2:51 amJamesWN says:
The outcome of this case, on the other hand, might be a borderline one for me. If the court acquits Wilder and affirms that the law only applies to wantonly hateful speech with intent to intimidate, then (still personally opposing the law in its entirety) I can still consider that within the bounds of reasonable disagreement. If he is convicted, I’m not so sure ...
The problem with the legal notion of group libel — insofar as large groups are concerned — is that it operates as a all or nothing censorship regime. Because the law would be underinclusive if limited to knowingly false statements and to a specific medium or subject matter the law must at least on its face permit the government latitude to forbid much more than the calculated lie.
I don’t know what intend to intimidate means in the group libel context.
I suppose that if group libel laws were meaningfully limited to hateful speech intended to intimidate, group libel would be duplicative of i.e a cross burning done with an intend to intimidate. But that limitation is not apparent from the formulation or actual operation of European hate speech laws.
In a complaint against The Netherlands, the former European Commission ruled that a conviction under the same Dutch hate speech law for distributing leaflets calling for repatriation of non-whites did not amount to a violation of freedom of expression and the right of free elections. The last part of the holding is ominous because it allows a broad interpretation of hate speech laws to trump even peaceful advocacy of discriminatory state policy implemented through the democratic process.
So even accepting reasonable disagreement over group libel laws, the actual interpretation of the law go much further in criminalizing ideas which can’t by any stretch constitute libel of a group.
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February 6, 2010, 3:19 amJamesWN says:
The ccase was GLIMMERVEEN and HAGENBEEK v. the NETHERLANDS — 8348/78 [1979] ECHR 8 (11 October 1979)
http www bailii org cgi-bin/markup.cgi?doc=eu/cases/ECHR/1979/8.html&query=glimmerveen
The statements which the Dutch court found legally discriminatory were:
“The truth is that the major part of our population since a long time has had enough of the presence in our contry of hundreds of thousands of
Surinamers, Turks and other so-called guest workers, who, moreover, are
not at all needed here and that the authorities as servants of our people
merely have to see to it that these undesired aliens leave our country as soon
as possible” ; “As soon as the Nederlandse Volks Unie will have gained
blanke Nederlandse volk”.
— political power in our country, it will put order into business and, to begin
with will remove all Surinamers, Turks and other so-called guest workers
from the Netherlands ...” ”
Note that merely advocating the abstract propriety or necessity of discrimination was legally sufficient to trigger the operation of the law. The Dutch and probably other European hate speech laws
are therefore likely broader than the category of advocacy calling for violent overthrow of the government.
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February 6, 2010, 3:45 amA. Criminal says:
Not to worry! Once Sharia law is a bit more established in Europe the stonings will be public.
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February 6, 2010, 8:00 amA. (thought) Criminal says:
Perhaps it’s short for “O’Brian”.
Is “hatred” an emotion, a thought, or both? Is it irrational, or irrationally emotional, rather than rational and thoughtful, for people to hate a belief system that calls for their executions?
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February 6, 2010, 8:31 amKen Braithwaite says:
Martinned hs done a superb job and I thank him, But I cannot escape a simple conclusion: in Holland rights do not exist, and they will be taken away in plain view. I see other way to construe the twin facts that neither truth nor enumerated constitutional ‘rights’ seem relevant.
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February 6, 2010, 11:03 ammarkm says:
Perhaps you are not aware that in the USA, juvenile court records are sealed forever. While this is to protect juveniles, it makes corruption such as this considerably easier to cover up.
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February 6, 2010, 12:02 pmMartinned says:
These statutes are meant to be treated with a large amount of common sense. They are meant to signify that there is a line somewhere, based on some consensus — in parliament and outside it — of where it is. The law codifies a social norm, but the main purpose of doing so is to make the social norm stronger, not to haul people into court.
So he should proceed by generally not caring about the legal details. The statute proscribes a lot of things, if you take it literally. But it was never meant to be. Everyone would agree that 100% enforcement would be highly undesirable, not to mention in violation of art. 10 ECHR a lot of the time.
(Did I mention that such challenges are only ever “as applied”? Even the ECtHR can’t annul a law, and a Dutch court most certainly cannot. The only thing the Dutch court can do is follow the hierarchy prescribed by the constitution: treaties beat statutes, so the ECHR beats the penal code. But that can only lead to the conclusion that, in the given case, a prosecution would be in violation of the relevant treaty.)
Viewing this as a legal norm probably gives you the wrong idea. Apart from the fact that the courts have now — reluctantly — gotten involved, it is a social norm in every way that matters. Even now, the much more important Wilders trial is the trial that is taking place in the court of public opinion, where the verdict won’t come in until May 11, 2011. (When the next general election will be held.)
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February 6, 2010, 1:15 pmEric Rasmusen says:
Let try a hypothetical. Suppose a popular prime minister decided to put away an obnoxious and unpopular rival. He induces a prosecutor to charge the rival with murdering and cannibalizing a national policeman from racist and treasonous motives and for sexual thrills (whatever is the worst crime under the nation’s law). He threatens or bribes the 3-judge panel, who in any case support the popular prime minister and dislike the obnoxious rival. The panel’s ruling is a pure lie, saying the evidence is utterly convincing, and in fact, includes a detailed confession by the defendant.
Is there any ground for appeal? Does the appellate court get to see (a) the transcript of testimony and (b) can it ask to hear the witnesses live?
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February 6, 2010, 2:03 pmEric Rasmusen says:
Re my hypothetical:
Would anyone care to comment on what would happen if a US President tried the same trick? That is— he gets a US attorney to charge the political rival with treasonous murder, and he gets the district court judge to be completely on the prosecution’s side. But let us assume the appellate judges and 50% of the citizens (those in the jury pool and electorate) are uncorrupt.
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February 6, 2010, 2:08 pmMartinned says:
Every aspect of the original trial against which the appellant launches a grievance can be redone. So if there is a problem with the way the witnesses were heard, or the way their testimony was entered into evidence, or the way that record was taken into account in the ruling, all of that can be fixed on appeal. That’s one of the benefits of not having juries. That said, in your hypothetical we’d probably be in deep sh*t anyway, well beyond the power of the law to fix.
One possibility is that the case gets plead out and the accused goes away. If they accused is brave and has decent legal representation, it only takes one or a few jurors to stop a conviction. Assuming 50% of the jury pool are honest, the accused stands a pretty good chance of having at least one or a few (depending on whether you take into account peer pressure) in his jury.
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February 6, 2010, 2:18 pmSwan Trumpet says:
Geert Wilders faces two charges: intentionally offending muslims and incitement to violence for offending muslims. Most people know that Wilders is a very popular Dutch parliamentarian and because of his views that Islam is a threat to Western civilization, he requires constant bodyguards lest his fate be that of Theo VanGogh.
Ironically the centerpiece of evidence against Wilders is his brief film “FITNA” where he doesn’t speak. The film uses the Quran to demonstrate that it incites violence against infidels and demands that it is Allah’s will for Islam to rule the world.
For those who think countries that have large muslim populations can continue to have freedom of speech — think again. Canada has a Charter much like our Bill of Rights that guarantees its citizens freedom of speech and expression. Yet Canada also has a Human Rights Commission empowered to hold administrative tribunals based upon a complaint by an aggrieved party claiming he’s been offended. The overwhelming majority of these cases have been complaints by muslims. Just as there are muslims practicing violent jihad of warfare, there are other muslims who use Western Laws from within to jihad with Lawfare.
Mark Steyn recently won an acquittal from a tribunal for the charge of publishing “Islamophobic” material in MacLeans. Steyn’s publisher was also charged. Acquittals are rare in these CHRC tribunals as truth is not accepted as a defense. Acquittals aren’t even a guarantee of ending the process as the complainant can simply make the same complaint in a different Canadian province. Adding to the enormous legal costs and emotional distress is the chilling effect this chicanery has on his ability to make a living. Publishers in the US often look to Canada and much of Europe for marketing. Who wants to publish a book knowing it will probably wipe out their profits defending it for years before a kangaroo tribunal?
Steyn’s “offensive” act was the publication in MacLeans of his book review of Oriana Fallaci’s The Force of Reason. Steyn’s “crime” was the following offending passage (followed by his subsequent commentary):
On my own website, I have several posts relating to Wilders. I link to the full text of the Prosecutor’s summons to Wilders, and show Part 1 of Fitna, as well as the eloquent opening statement given by Wilders. He quotes Thomas Jefferson. If interested, here’s the link:
http://trumpetswan.blogspot.com/2010/02/geert-wilders-is-on-trial-in-amsterdam.html
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February 6, 2010, 3:12 pmMartinned says:
Actually, Fitna was a bit of a disappointment when it finally came out. Submission, by Ayaan Hirsi Ali and Theo van Gogh, was much better, both artistically and as a work of persuasion.
As for Wilders quoting Jefferson, let’s not make too much of that. He only supports free speech of people who agree with him, so he’s hardly a martyr for freedom.
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February 6, 2010, 3:39 pmSwan Trumpet says:
You’re mischaracterizing Wilder’s views. He’s an advocate for legislation prohibiting muslim immigration to the Netherlands on the grounds that their religion opposes western values and freedom. He’s now being persecuted because he has used his right to free speech to publicize his message. In Europe and in Canada, speech is limited to whatever the UNHRC deems to be politically correct. If any muslim anywhere takes offense, it is automatically hate speech.
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February 6, 2010, 4:33 pmKirk Parker says:
Oren,
Indeed, there’s no obligation for the neighbors to take their dispute beyond the level of private negotiations, or perhaps hiring an arbitrator. But once they ask the state to decide and (more importantly) use the power of the state to enforce the judgment, then heck yeah it’s a public deal.
And nice to see Brian G. filling in for the vacationing Sarcastro!
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February 6, 2010, 5:00 pmSoronel Haetir says:
Martin,
While I won’t go as far as some other commenters I will say your law, on its face and it appears in application, comes very close to foreclosing public discussion of national policy when the government in its wisdom decides it doesn’t want that policy debate to occur. I find that a frightening prospect for what is supposed to be a state with western values.
For limitations on speech to be ruled by “common sense” is even more frightening. The only rational course under such a system is to choose not to speak in any manner contrary to the prevailing government policy. I hope Europe realizes the folly of such a position before it is too late.
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February 6, 2010, 5:05 pmOren_ says:
Good, then when I make a remark that the policeman finds objectionable, I will inform him that my common sense precludes him from pursuing the matter and that’s that.
Of course, you don’t really mean that “common sense” in the sense that the mere common man might have a say. If I say something objectionable, it will be the policeman’s common sense, not mine, that prevails.l
(Sorry, this is a non-response for the same reason I quoted above — the law is coercive, not voluntary. It does not operate by ‘consensus’ except at the level of elections. ‘Social norms’ are matters that I consider perfectly acceptable to violate on a routine basis more or less whenever I see fit when I don’t care about how people will perceive me.
Indeed. The fact that the statute would be absurd to take literally makes it more important to understand where the real limits are.
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February 6, 2010, 5:38 pmOren_ says:
Gah, I’m embarrassed for him already:
Both of those proposals are so far beyond the legitimate powers of the government as to be absurd. I don’t like radical Islam but succumbing to abject fascism is not the way to go about protecting our liberty!
Of course, that doesn’t change my view on his right to say that but I’m quite grateful that I will no longer make an ass out of myself supporting him on a personal matter (as opposed to supporting him despite my stringent disagreement with those views quotes above).
What he proposed is far in excess of this.
Again, absurd effectively-fascist speech ought to be protected but as Martinned points out quite correctly, his appeal to the ideals of Jefferson is cynical at best, outright malevolent at worst.
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February 6, 2010, 7:48 pmCareless says:
Oren: Preventing non-citizens from voting is far beyond the legitimate powers of government?
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February 6, 2010, 9:46 pmCareless says:
To make it clear, EU citizens living in EU states they are not citizens of can vote in municipal elections. If he had just said “foreigners will not be able to vote in elections” I might assume he meant people who weren’t ethnically Dutch, but the specific mention of municipal election strongly suggests he means non-citizens
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February 6, 2010, 9:56 pmSwan Trumpet says:
Fascism, like communism, Stalinism, Maoism, Islamism, etc. are all totalitarian governments. The issue here is preventing fascists from undermining and destroying liberal democracies. Every country has the right (and duty) to manage immigration to protect its own economic, social, and cultural interests.
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February 7, 2010, 12:24 amMartinned says:
He advocated banning the Quran, reducing the freedom of imams to preachs as they choose, as well as otherwise restricting the freedom of Muslims already here to practice their religion. In case you don’t believe me, the (undisputed) quotes are right here in the court documents. Now I don’t think he should be prosecuted for any of this, but let’s not pretend he is some great hero for freedom.
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February 7, 2010, 10:31 amMartinned says:
I have no idea how you would come to this conclusion. There is no way this trial could be more public than it is, unless you nitpick on the edges. The court is packed with journalists every day, the entire record, including the statements by these experts, will be attached to the ruling, etc. If there were an actual dispute as to facts, witnesses — and definitely the victim — would certainly be heard in open court, and so on. What’s the problem.
That’s a strange approach to rationality. For one thing, the government doesn’t compel prosecutions, since prosecutors are to a large extent isolated from political pressure, though they do ultimately answer to the minister. Unlike American US Attorneys, these guys are not political appointees. (I don’t think I’d mentioned that yet.)
The rational thing to do is to realise that you’re extremely unlikely to get prosecuted (which is why I still don’t have a light on my bike), and even then only for statements that are particularly egregious. Of the long laundry list of quotes and statements submitted by the complainants, only a handful were judged by the Court of Appeals as meriting prosecution. And even if you do get hauled into court, the procedure is relatively painless and results in a (suspended) fine of a couple of hundred euros at most. What would Gary Becker have to say about that?
You can have a problem with treating social norms this way — I do too — but it is absurd to say that strict obedience of the law is the only rational option here.
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February 7, 2010, 10:41 amMartinned says:
But a lot less coercive here than in the United States.
Did I already mention that a felony conviction in this case will in no way preclude Wilders from voting or running for any office whatsoever? In fact, generally someone’s criminal record is private information that the government is forbidden by law to release, meaning that a criminal record per se is unlikely to aversely affect your life once you’ve paid your debt to society.
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February 7, 2010, 10:45 amMartinned says:
Just playing devil’s advocate for a moment:
Do countries also have the right to resist the freedoms they guarantee from being used to undermine those very same freedoms?
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February 7, 2010, 10:48 amMartinned says:
Here’s an interesting SSRN article about a French murder trial a few years ago. If you think away the jury (and of course the murder), you’ve got a pretty good idea of what a Dutch trial looks like. The judge-commissioner, for example, is a somewhat more modest version of the French juge d’instruction.
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February 7, 2010, 11:35 amSoronel Haetir says:
Martin,
Umm, I may be mistaken here but the prosecution was in fact compelled, no? Who do the judge(s) who made the order to prosecute answer to? I.E. who can fire them?
I cannot even imagine the damage that would be done here in the US if our life tenured judges had the power to start anything. On the other hand I can see definite benefits to combining inquisitorial and jury systems, each on their own have faults. I suppose that such a hybrid would have its faults as well, they just aren’t as apparent since what we both have is a realized system compared to an unrealized one.
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February 7, 2010, 12:06 pmEric Rasmusen says:
“The court is packed with journalists every day, the entire record, including the statements by these experts, will be attached to the ruling, etc. If there were an actual dispute as to facts, witnesses — and definitely the victim — would certainly be heard in open court, and so on.”
Maybe we’ve been under a misimpression. This sounds like an open trial. Or are the journalists just all waiting in the hallway, or outside the building?
Can the public attend the trial after all, and must the court make all the evidence public, rather than just summarizing it in the ruling or selectively releasing evidence?
If not, can the defendant require everything to be released if he does dispute that what gets told to the public is true?
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February 7, 2010, 1:50 pmOren_ says:
No, the country is only required to give the franchise to citizens.
Forbidding the teaching or preaching of foreign languages (see, e.g. Meyer v. Nebraska in the SCOTUS) is, on the other hand, totally out of bounds as a political matter.
They have the right to admit or not admit immigrants. Once those immigrants are admitted, they have no right to relegate them to second-class status.
GLIMMERVEEN and HAGENBEEK got jail sentences.
Again, a social norm is, by definition, something that carries only non-coercive remedy.
First, there I do not understand the meaning of “less coercive” or “more coercive”. Either Wilders must submit to the authority of the court or he can tell them to fuck off and mind their own business. This is a binary distinction — voluntary/involuntary.
You are mistaking the separate property of how harsh the court tends to be with those under its authority with the property of that authority itself. Their benevolence is admirable, no doubt, but it does not change the coercive nature of the institution. One is not free to simply ignore them.
Second, of course the penalty cannot be severe. If you criminalize everyday conduct (god knows I make racist jokes fairly frequently) then you cannot exact a huge penalty. Unfortunately, this means you cannot exact a large penalty on the truly felonious — rapists, murderers and others who actions truly violate the fundamental human rights of others.
This is precisely why I prefer a rather more divided approach — the law for serious violations of human rights and voluntary social norms for boorish but not-rights-violating conduct (e.g. Phelps). That’s old hash though, having been discussed to death already.
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February 7, 2010, 1:54 pmA_Nonny_Mouse says:
“For truth to be a defense, he would have to prove that it is true of each and every single adherent of Islam.”
?
Wilders said “This book [i.e. the Quran] incites hatred and murder, which is why it does not fit in our legal order. If muslims want to participate, they have to distance themselves from the Quran. I realise that that is a lot to ask, but we have to stop making concessions.”
As far as I can see, all Wilders has to “prove true” in regard to that statement is that the Quran incites hatred and murder; I don’t think he would have to prove all Muslims believe and act upon all the words of every verse. Upon reading the book, any rational person would find it DOES promote hatred of and violence toward Infidels. The Quran is the “official policy” of Islam and, therefore, of Muslims. The fact that some Muslims object to, or simply ignore, or are insulted by the West’s exposure of, those “Slay the Infidels wherever you may find them” verses in the Quran is irrelevant. There’s hate toward ALL forms of “the Other” in the Quran, and it SHOULD be within the legal bounds of free speech –in the Netherlands or anywhere else “EU-PC-good-think” has spread its tentacles — to point that out.
I had understood that Wilders’ original argument was that “if Mein Kampf is illegal because it’s hateful, then the Quran should be illegal because IT is hateful”. Of course, if you believe in free speech, then Mein Kampf should not be banned; but surely its philosophy should be educated against. In the same way, the ideas found in the Quran should also be educated against:
(1) Women have equal value in the West; they are not, will not, must not be considered half-persons.
(2) The Western idea of rule-of-law is superior to Sharia and Western law WILL BE enforced, even though certain religious fundamentalists believe their 7th-century-prophet’s philosophy of victory-through-pillage-and-terror is mandated by god.
(3) The honor-shame dichotomy may be part of Islamic culture, but killing women to expunge shame and restore honor is considered MURDER in Western culture, and will ALWAYS be prosecuted.
(4) The West believes in freedom of belief and of choice, and it will ALWAYS be against the law to kill a person for whatever he may believe or disbelieve about Islam.
(... And so many more ...)
I don’t know why the Netherlands didn’t just say “Geert, you’re right, we’ll just reverse the ban on Mein Kampf.” Would have saved them a lot of bad press (and it would have hidden how far down the path to acknowledging that “Islam Is Superior To Our Old Ways” most of Europe has allowed itself to be led).
===========
“... modern free speech only goes as far as the most offended person in the room.” Priceless quote, EvilDave. (And so VERY sad that it’s true, here and now in 2010.)
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February 7, 2010, 5:13 pmMartinned says:
That’s a different question again. Ordinarily, the Dutch legal system attaches great importance to prosecutorial discretion. There is a very small exception to that rule, whereby the victim can go to the Court of Appeals (!) to get an order compelling prosecution. While the law gives no guidelines as to how the court is supposed to take this decision, it is clear from the debates in parliament and from subsequent practice that such orders should only be given in extraordinary circumstances. Which is why everyone was very surprised that it was done in this case. But even then the prosecutor cannot be compelled to request an actual punishment, and even if the accused is found guilty, he won’t necessarily be punished. (No minimum sentences under Dutch law.)
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February 8, 2010, 8:47 amMartinned says:
Of course the journalists and the general public are in the room. It’s just that these experts will first be deposed by the Dutch version of a juge d’instruction. (Remember Baltasar Garzón, the guy who went after Pinochet? A Dutch “judge-commissioner” is like that, only much weaker. It is a judge tasked with, essentially, preparing the case for trial, after the police and the prosecutor’s office have agreed that there is a case.) The misunderstanding in the headline of the original post is that, while the trial is entirely open, such preparatory depositions are not. And the record of these depositions, which is a document containing the witness’s statement — though not necessarily verbatim — becomes part of the dossier and can be relied upon by the court without the “witnesses” being heard again in open court.
(If they were actual witnesses, as in eye-witnesses, it would be much more likely that they would be heard again in open court. The decision of whether it is necessary or otherwise appropriate to bring the witness into court is at the discretion of the court.)
There’s nothing selective about the way the evidence comes out. Documents relied upon and the record of the proceedings in court are available through the clerk’s office, but they may be anonymised or abstracted if the privacy interests of the accused or other individuals involved so requries. Even in this case, which is the biggest criminal case of the year, the court’s interlocutory ruling from last Wednesday refers to mr. Wilders as “[accused]”.
The defendant doesn’t have to demand that everything be released. He’s a party to the proceedings, so he has a copy of the dossier. The only question is whether that dossier can be released without injuring the privacy of others. In this case, for example, there is a problem with the eight complainants who asked the Court of Appeals to compel prosecution. Presumably their names are in the criminal dossier. Releasing these names would quite likely expose them to — euh — the attention of mr. Wilders’ supporters. For this reason, the relevant (privacy) statutes forbid the accused from posting the entire dossier online; at the very least, they would have to be redacted to make it impossible to identify the complainants.
Anyway, I’ve never heard of any problems with access to documents, even in highly controversial cases. If there is a problem, it will usually be the conviction of an innocent man. (Acquitting someone guilty is much less of a problem.) In that case, journalists tend to have no problem talking to the man’s lawyer and — off the record — to the police. The lawyer will then give them access to whatever parts of the dossier they can’t see at the court house, to the extent that such access benefits his client.
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February 8, 2010, 9:08 amMartinned says:
Actually, funny story. Mein Kampf isn’t banned here. I always thought it was, too, but it’s not. It turns out that after the war the property of certain war criminals, including people who died fighting for the Nazis, was forfeited to the state. One of those people was the guy who translated Mein Kampf into Dutch, meaning that the Dutch state came to own the copyright to the translation. They simply used that copyright to forbid any further publication of the book, but that only covers the Dutch version and only runs until 70 years after the death of the translator (who died in 1944 on the Eastern front). So in 2015, when both the original author and the translator have been dead for more than 70 years, anyone will be free to republish the translation, to put it on the internet, or whatever. Apparently even in Germany some academics are planning a new edition for that year.
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February 8, 2010, 9:20 amMartinned says:
You mean like the way I’m ignoring the police who gave me a ticket for having no lights on my bike the other day? They were right, I was riding my bike in the dark with no lights. They gave me a ticket, that was their job. I’ll pay the ticket when it comes, but none of that stops me from continuing to ride my bike without any lights.
The police had my full, undivided and non-optional attention when they pulled me over, but the ticket hasn’t changed my behaviour one bit. The ticket is simply not high enough (€ 35, I think), and the probability of getting caught again is simply too low. (In case you were wondering, those are two of the three key variables of the Becker crime & punishment model.)
What’s wrong with describing this situation as only minimally coercive?
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February 8, 2010, 9:33 amSwan Trumpet says:
Interesting question. Historically, the US did this by internment and demonization of the Japanese during WWII. FDR personally endorsed fundraising war bonds using posters and films depicting “Japs” as grinning yellow monkeys. He issued orders that all Naval vessels who destroyed Japanese ships were forbidden from rescuing any survivors. They were also ordered to use machine guns to approach survivors in lifeboats and those clinging to planks of wood to deliberately kill them all. This wasn’t about vengeance or sadism, but to prevent survivors from being picked up by Japanese vessels and giving useful intelligence on the location of American ships.
In one of our most notable examples of historic amnesia, the same thing happened to German Americans — especially those who were members of the pro-Nazi Bund but also those known to have close ties to Germans. The largest relocation camp for these Germans was in Crystal City, Texas.
As far as freedoms that are the guarantees of citizenship, the easiest way to manage that is to deny visas to those whose ideologies oppose American freedoms under our constitution. We currently have immigration and visa laws designed to permit primarily those who are well-educated and capable of supporting themselves not just today — but in ten or twenty years from today. This is the reason why Indians have been dominant as opposed to Africans, Mexicans, and Haitians. It was one thing to hold the golden lamp as a welcoming beacon to the world’s wretched and poor when we had no social security, medicaid, welfare, or food stamps, and quite another to burden our citizens by opening the floodgates to those who would swamp our workers and reduce our standard of living.
It’s very clear from empirical observation as well as the Quran itself that it stands in opposition to American freedoms of religion, speech, and assembly. It opposes equal rights for women, for homosexuals, and favors human enslavement. It’s not dissimilar from Mein Kampf.
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February 8, 2010, 12:58 pmOren_ says:
Or the prosecutor declines and the Court of Appeals puts on the prosecutor hat for the day...
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February 8, 2010, 1:51 pmOren_ says:
At least in the US, you will find that ignoring the ticket will quickly lead to much more coercive measures. Usually a stern warning following by a bench warrant.
Simply because the penalty is so small that your income allows you to plead guilty without serious consequence (although in some states, such a moving violation would also adversely effect your car insurance rates, if you drive) does not change the fact that the State has forcibly separated you from $50.
Of course, I think they might be slowly boiling the frog here. In a situation that demands no penalty whatsoever, any penalty (even one that the affluent can ignore) is an affront
That’s all besides the point — the police have involuntarily separated you from your rightful property. That is the start and end of the analysis of coercion IMO.
It is maximal coercion with a minimal end.
Suppose for a second that a criminal broke into your house, held you at gunpoint and forced you to do 10 jumping jacks. The fundamental breach of his act is not lessened, IMO, by the benign and trivial nature of his request. Surely I don’t judge him as harshly as a rapist but the distinction is not one of which was less coercive (they both were) but the severity of what they used that coercive power to obtain.
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February 8, 2010, 1:59 pmMartinned says:
I’m not sure why you’re focusing on this aspect. Does it help if I tell you that the law says that the judges who ordered the prosecution may not subsequently sit on the panel that hears any appeals in the case? Or that the trial court is most certainly still free to find the defendant innocent?
My sense is that American prosecutors tend to (try to) prosecute every and any case they can prove. Dutch law, on the other hand, explicitly states that the prosecutor can decline to prosecute when a prosecution would not be “in the general interest”. Would you have the prosecutor exercise this right without any further check from anybody?
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February 8, 2010, 3:12 pmMartinned says:
Yes, but does it change my behaviour or not? The ticket works as a stern reminder that what I did was not OK, but one that I can choose to ignore without too much trouble. It isn’t entirely the same as a social norm tout court, but it’s pretty close.
It’s the same with drinking and driving. Under Dutch law, a DUI doesn’t get you arrested or anything. It just gets you a ticket and the need to find someone else to drive your car home. The reason why I know virtually no one who would drive while under the influence isn’t the ticket. Hell, they have no good ways of detecting cannabis use, but people wouldn’t use that and drive either. The reason why nobody does it is that the social norm against it has become so strong that it is simply not done. The police enforcement of the law was/is only a small part in that process.
Actually, the problem would be the break-in and the assault, not the jumping jacks.
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February 8, 2010, 3:14 pmOren_ says:
Because Executive discretion not to prosecute is a fundamental democratic check on the court’s powers.
No, it doesn’t help that the CoA judges are not on the panel — they ought (IMO) to have no business decided which cases to hear in the first instance. A body that is not politically accountable (for good reason, of course) simply does not have the legitimacy to be making policy decisions. Which alleged violations of the law to prosecute and which to let slide is a matter of public policy, not one of legal decision.
The violation here is not to the defendant, by the way (hence the fact that the trial court can acquit him is irrelevant) but to the prosecutor and the elected government who have had their judgment on the matter (one properly withing their ambit) reversed by an unelected court. If I were the prosecutor, I would have quite a mind to simply not present a case or, at the least, present a deliberately botched one (that’s American insouciance for ya).
That sense is only partially correct.
First, police departments will often decline to forward charges when they feel appropriate. Generally, prosecutors don’t know about these situations unless they are already involved in the case somehow.
Second, prosecutors will usually charge every case that comes across their desk but tend to give up a lot of them fairly quickly if there is any serious resistance. IOW, they use the defendant’s willingness to fight the charges as a (reasonably good) proxy for the strength of the case. It costs them virtually nothing to charge and then allow dismissal with prejudice.
Lastly, the prosecutor is accountable to The People — if they do not approve his actions they can replace him with someone better.
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February 8, 2010, 6:11 pmOren_ says:
It changed your bank account, that’s enough.
Precisely!!!
And the problem here is that Wilders is being dragged to court against his will to explain his actions, not the trivial penalty that might be assessed.
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February 8, 2010, 6:19 pmMartinned says:
That analogy doesn’t work. Making him explain his actions is exactly the response you’d expect for someone who (allegedly) violated a social norm. The fact that there might be some fine in the end doesn’t make it coercive, or at least not more than minimally so.
And that used to be the law here, too, ever since the Code of Criminal Procedure was first enacted in 1921. (Actually, under the French code that we had before, the system worked that way as well.) Just like the US has its constitutional amendment proposals (and judge Casell) for victims’ rights, we have the right of the victim to become a civil party to the criminal proceedings, and the right of the victim to complain about a decision not to prosecute. Both are relatively new innovations. Personally, I’m not a big fan, but I’m also not very much against.
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February 8, 2010, 7:40 pmOren_ says:
We are talking at cross-purposes. Your claim that ‘social norm’ is a matter amenable to coercive enforcement (of any severity) seems to me a contradiction in terms. I can say no more about it that that.
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February 8, 2010, 8:40 pmSwan Trumpet says:
There was a time when the institutions of family and Church were strong and most violations of social norms resulted in stigmatization and ostracizing the offender. Social norms were not always criminal offenses and our Framers never intended them to be.
But nowadays we have a preposterous society that deems things like being mean on the internet a crime when someone is unstable and commits suicide because of the alleged meanness.
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February 8, 2010, 8:50 pmJamesWN says:
that there might be some fine in the end doesn’t make it coercive, or at least not more than minimally so.
But if the law is not meant to be coercive, why does it provide for the possibility of imprisonment? If Wilders repeats the same statements after being found guilty, the law the next time is going to exact a different and higher penalty.
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February 9, 2010, 1:25 amMartinned says:
Repeat offender status doesn’t work that way over here, although I do suspect that the judiciary would be displeased if he continued to say the exact things they had ruled he couldn’t say.
The prison sentence is a leftover from earlier provisions, such as the one Glimmerveen was convicted under, that were more narrowly tailored to World War II. Part of the benefit of keeping it is that it makes the offence in question a felony (=everything that carries a maximum of 1 year or more). That may not seem like a good thing, but it means this case won’t be heard in the criminal law equivalent of small claims court. Whatever the problems of having such a law in the first place, it would be even worse if this case were heard by a single judge following a procedure that is mostly designed to make it easier for defendants to proceed pro se.
Running a search of cases brought under art. 137c Criminal Code (in order that they come up in the search engine, running a search for the article in question):
I got 50 more hits like this, mostly from the last 10–15 years, but I’m bored now. This is enough to give everyone a sense of what I’m talking about.
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