"Hvis frihed overhovedet betyder noget, så betyder det retten til at fortælle folk det, de ikke vil høre"

George Orwell

Da dommerne blev kasseret

26. oktober 2010 - Artikel - af Arthur Legger

Fredag vandt vandt Wilders' forsvarer Bram Moszkowicz (billedet) en stor sejr: Efter at have påvist, hvor partiske dommerne i sagen er, besluttede et uafhængigt dommerpanel at skifte dem ud. Læs Arthur Leggers reportage fra den begivenhedsrige dag i retten.

The biggest of bangs

The biggest of bangs –that’s what happened on Friday 22nd of October in the Wilders’ Trial. The final day for Geert Wilders' defence lawyer Bram Moszkowicz, the Public Prosecutors and the complainants was to be a morning of wrapping up some loose ends followed by a verdict on November 5. That was the plan but then something happened.

Twenty seconds after the three judges’ entered the courtroom and judge Jan and Moors checked whether everyone was present, he noticed that Moszkowicz remained standing. “I reckon you’d like to comment on something,” Moors said. “You’re quite right,” Moszkowicz muttered and opened his huge leather briefcase. He took out several copies of that day’s newspaper “De Pers” and smiled gently.

The fatal dinner

“Last Tuesday and yesterday I’ve talked at great length,” Moszkowicz began with his high-brow Yiddish accent, “about the European Court’s vital principle of a defendant’s presumption of innocence, which the Amsterdam Court has so openly violated; about the partiality of the Amsterdam Court towards Wilders, which is shown in its 25 pages convicting indictment; about the horrendous mistakes in that indictment – accusations which now have been proven concocted and untrue; and about the tunnel vision and personal feelings which must have caused the Court’s three councilmen to press OM to prosecute Wilders. Yesterday I concluded with a non-suit. Not an acquittal like the OM, but a decision to declare Wilders’ process illegal. Today my plea for a non-suit and the partiality of the Court is handed even more substance. According to “De Pers” of today, the usher gave copies to everyone present, Court’s councilman maître Schalken joined a secretive dinner at which he knew our key expert-witness, the Arabist Hans Jansen, was invited too and would be present. The dinner was organized three days before Jansen would testify. During the dinner Schalken tried to influence our expert-witness by pressing him to join his position that his call to prosecute Wilders was more than justified. It’s important to stress that Jansen didn’t know that Schalken would be present, and that Schalken knew of Jansen’s presence. Before publishing the article “De Pers” checked with Schalken and the dinner’s organizer, Bertus Hendriks, who’s also chairman of the pro-Palestine committee: they seconded Jansen’s story. But, adding insult to injury, Schalken stated, I quote: “Nothing happened that’s against the rules, but what’s against the rule is that someone breaches confidentiality of such a dinner.” I cannot believe what I’m reading, Your Honour! Such a seasoned councilman who claims that all’s fine, while what he did is a criminal act to be punished with a sentence of four years imprisonment! If I had done such a thing to a key witness of the Public Prosecutor I would be barred immediately. So, for clarity sake, I’d like Jansen to testify right now. He sits over there. He’s not ill; let’s start. Because, if “De Pers” story is true, my claim for non-suiting will win hands down.”

The packed courtroom was silent. All I could hear was the turning of the pages of “De Pers”. People were skimming the paragraphs; reading what I was reading: “The dinner,” according to Schalken, “was a meeting of our Vertigo society, a club of friends from different functions in the Netherlands. We have been gathering for over twenty years to discuss the themes of our nation” (...). The club of nine lists two leading judges: Tom Schalken and Henk Wooldrik, also councilman at the Amsterdam Court. (...) “Schalken,” according to Jansen, “continuously steered the conversation in the direction of Wilders’ trial. All the time he tried to convince me of the correctness of his decision as an elder-councilman to drag Wilders to Court. He told me how mighty interesting the trial would be. A case that would open up all kind of perspectives.” The Council of Law stated that Schalken’s actions would only have been harmful if he would have said something of his deliberations with his fellow councilmen.”

Moszkowicz tapped with his fingers. “Well,” he said, “what about my witness? He’s sitting over there.” Judge Jan Moors widened his eyes, like waking up, and mechanically said: “I have to ask the Public Prosecutors whether they agree with your request.” Paul Velleman decided Birgit Van Roessel to do the job: “The OM cannot see in what way a testimony of Jansen would change or add anything. The indictment was published on the 21st of January 2009. To the OM the indictment is leading. The dinner happened fifteen months later. Moreover, during his testimony as an expert-witness Jansen didn’t show to be influenced by anyone at all. We decline the request.” “I don’t like to interrupt you,” Moszkowicz urged, “but you’re missing the point: we don’t know whether Jansen was influenced. That’s why we need to question him. Verification is badly needed. What’s more: Schalken’s action fits the pattern of partiality by the Amsterdam Court that I’ve clarified in my plea. Questioning Jansen might prove crucial for my non-suit.” Judge Moors looked into the courtroom, checked with his colleagues for a minute, hesitated, then slowly stated: “We will not decide now. We’ll determine in our council room on the 5th of November whether questioning Jansen is necessary.” Moszkowicz promptly asked for a break to talk things over with Wilders.

After twenty minutes the press and the audience entered and then, tightly surrounded by security as ever, Wilders and Moszkowicz. Wilders hadn’t blinked or moved all morning and again sat erect and still. Moszkowicz paced up and down, looking sternly to the ground. When judge Moors and his colleagues entered he spat it out: “We’re challenging this Court! Because by not deciding, you’ve decided for the possibility that you’ll reach a verdict without hearing my witness. Your action denies me the right to defend my client!” Moors reacted a bit lamely: “We anticipated you’d challenge us. We don’t agree, but we’ll inform the Challenge Council. Court is adjourned.”

Stupid, undignified and unprofessional

In the Court’s lobby Hans Jansen was flocked by journalists and TV anchormen. In his quiet and calm manner of speech Jansen made very clear how “astonished” he had been by Schalken’s pressing and his desire to exonerate himself. “Stupid, undignified and unprofessional,” Jansen described Schalken’s actions, “he kept on whining about the importance of the case; but to use a highly threatened politician as a guinea pig...” Intense debate arose between journalists, legal experts and MPs of the Party For Freedom about Moszkowicz tactic and the incredible proof of the arrogance and partiality of Dutch magistrates. This was added ample evidence when the news got out that the President of the Amsterdam Court, Leendert Verheij, declared from his holiday address that “Schalken hadn’t done anything wrong and the Court was not to blame,” although the entire matter was still to be reviewed. That evening Verheij would repeat his statement in TV news show Nieuwsuur, sitting in a discussion panel together with Hendriks, pro-Palestine Committee’s chairman and the Vertigo dinner’s organizer. Hendriks claimed that he even had reproached Schalken for handing Wilders such a perfect platform to gain politically and thought the whole thing “one big joke” –even though the day had ended highly unsettling for Dutch society.

In a banana republic, yes, in the Netherlands, no

After two hours a Challenge Council of G. Marcus, F. Salomon and Y. De Vries hastily convened the Court and asked Moszkowicz to explain at length, which he energetically and expertly did. Combining excerpts of his extended plea, EU jurisprudence and a hilariously witty Yiddish presentation, Moszkowicz rolled over Marcus, Salomon and De Vries like a freight train. “Do the present judges and Jan Moors appear to be biased? Yes, they appear to be so, because they have decided not to hear a witness who might testify about the partiality of the Amsterdam Court. I cannot think of a greater wrong that can befall a suspect: to be condemned by a Court before his case even started. In a banana republic, yes; in the Netherlands, no. I’ve argued this in my plea, which is rather well done if I may say so, and which is handed to you. Wilders is a member of Parliament and, hence, a lawmaker –his prosecution ought to be executed with the utmost precision and transparency. His case has international repercussions. Still, Moors decided offhandedly not to hear a witness with neither reasoning nor motivation. He did so while it is against the criminal law: requests for hearing a witness have to be allowed at all circumstances if the witness is at hand and not too ill to testify. Mr. Jansen sits over there, is in good health, and is willing to testify: judge Moors knew so. I cannot think of one single reason not to hear him, except one: to protect Schalken and the Amsterdam Court. Moors’ decision fits a pattern of partiality that started on day one and I would like to urge the Challenge Council to take this pattern into consideration. Mr. Wilders deserves impartial judges. In conclusion I would like to comment on Schalken, who doesn’t show the slightest sign of any self-reflection and might be linked to a pro-Palestine Committee, which could explain the expressed condemnation of Wilders indictment. Your Honour, I’ve been doing this job for more than twenty years. Never have I experienced such unlawful conduct by a Court and such biased behaviour by presiding judges. To replace them is the least you can do.”

Presiding judge Salomon peered at Geert Wilders, “I don’t know much about this case, but I know that you insist on your silence. Still, I can imagine you’d like to add something?” “You’re quite right, Your Honour,” Wilders remarked evenly with his accent of the province of Limburg, “I never thought I would end up in such an ill functioning legal circus. The whole thing started with Moors denying me fifteen expert-witnesses. Why? I don’t know. Then he questioned my right of secrecy. Odd. Last week he showed partiality when screening Fitna. And this morning he denied me a witness who was pressed by Schalken, one of the three writers of my indictment, which is biased too. What a mess. By refusing a testimony of such obvious importance these judges show to have no interest in the truth. I don’t have a fair trial. Give me new judges; I’ve lost all my faith in the legal system. Also, during the break I will go to the police to file charges against Tom Schalken for having committed a criminal act.”

Judge Salomon turned to the two Public Prosecutors, “what is your opinion?” Van Roessel remained unmoved: “The judge said that he will decide when reaching a verdict whether Jansen has to testify. Hence, all options are open. We don’t see reason to challenge.” “Your Honour!” Moszkowicz interrupted, “again the OM misses the point: all options are not open, because Moors can come to a conclusion without handing us the possibility to hear the witness.”

After another wait of two hours, during which speculations again ran high, the Challenge Council quickly came to the point: “According to jurisprudence of the High Council has a witness who is present in Court to be heard, unless illness prevents or his testimony is irrelevant to the case at hand. These circumstances did not occur. Hence, the decision not to hear the witness is not understandable. (...) The decision of the Court not to hear the witness violates High Council’s jurisprudence. The Challenge Council agrees with the defendant that the Court’s decision shows signs of partiality, moreover when taking previous incidents into account. Viewed in those circumstances the request of challenging the Court is granted”.

A sigh of relief went through the courtroom. Moszkowicz beamed with delight. The complainants' lawyers, Prakken and Pestman, shook their head in sheer disbelief: a unique fact had happened that no one would have thought was possible. The Amsterdam Court was caught cheating and was publicly penalized for it. To most journalists the next fact dawned very slowly: the final day proved not to be the end, but a new beginning. A successful challenge of the Court meant new judges. This meant a new procedure of the old process. This meant that what had become something of a social event stopped short in its tracks and would restart in approximately six months from now.

Why a new trial?

On leaving the courtroom everybody asked everybody ‘why would Moszkowicz want a new process with new judges? He already had the acquittal of the OM, why an new trial?’ The answer came shortly after during the improvised press conference. “When put to question whether be tried now by partial judges or to endure this nonsense for another year and then to be tried by impartial judges,” Moszkowicz stated, “Mr. Wilders chose the latter. Because, no one should forget that judges are not obliged to defer the expressed conclusion of the OM – judges are independent.”

Looking back a couple of days later I have to say that Moszkowicz is correct. The decision of the Challenge Council’s judges was very brave, but also an operation damage control. The past few days witnessed the Netherlands in turmoil. The question is no longer whether Wilders’ Islam critique is truthful and yet illegal, but how deep the rot is in the Dutch legal system. The intense distrust is fed by statements of Geert Corstens, the President of the High Council – the nations’ superior legal institution. In the Sunday morning TV show Buitenhof he said:

“Wilders’ critical statements during his trial about the functioning of the Court and his judges undermines our state of law (...) Wilders is leader of the Party For Freedom and member of Parliament, he ought to strengthen stability not challenge it (...) his remarks and critique toy with the publics emotions in a very wrong manner (...) he wrongfully injures the reputation of our legal system”.

“It’s the world upside down!” Moszkowicz exclaimed on the leftist TV news show Pauw & Witteman on Monday, “What an estranged statement. Neither Wilders nor I are to blame, but those partial judges and Tom Schalken who was so silly and arrogant to accept an invitation for a dinner party with a key witness present. That is what causes the present blaze. And I wish it never happened. All my elaborated pleas for nothing” (Pauw & Witteman, 25/10/2010).

Moszkowicz is right about the brilliance of his eleven hours and 150 pages defence. But it would not have been enough. It was only the sheer hatred towards Wilders and his challenging politics that forced the highly seasoned judges to make the crucial mistake –an illegal move which even their colleagues could not overlook; leaving the system exposed by the biggest of bangs.

To every journalist present it was very clear: silencing him won’t do any good, because even as a very silent defendant Wilders continues to cause his revolution.

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