Dutch Justice

9. februar 2010 - Artikel - af Arthur Legger

A few additional comments on the Wilders Trial

“Has the Church of the Left kept any shame, any desire for truth and sincerity, at all?” ask Geert Wilders and Martin Bosma in their 30/1/10 De Volkskrant-article “WC-eend adviseert Ter Horst” (a mocking description of Ms Guusje Ter Horst’s, Minister of Internal Affairs, self righteousness). Wilders’ and Bosma’s cry is neither mad nor manipulative. With their Party For Freedom leading in every poll they point at a rot that has been painfully present in Dutch politics ever since the meteoric rise and demise of Pim Fortuyn: the attempt to demonize right-wing challengers to the ruling Social Democrat and Christian Democrat parties as Nazis.

Over the past ten years this has become Dutch political business as usual. Wilders’ living in a bunker, his full metal jacket wardrobe, his suffocating security – it has become normal, laughable even. A professional hazard. Costly too. And his trial, which started in Amsterdam on the 20th of January and continued on the 3rd of February, is presented in Dutch media as something reasonable and justifiable. Still, certainly during a trial which has such political ramifications one might have expected that politicians in general, and certainly the Cabinet parties would have refrained from anything which, even remotely, might influence the Court.

Yet this is exactly what has not happened.

On Wednesday the 27th of January the Minister of the Interior, Ms Ter Horst (Partij van de Arbeid (PvdA) – 'Labour Party’) sent to Parliament the report "Polarization and Radicalization in the Netherlands". Commissioned by Ms Ter Horst the report was written over a period of nine months by Bob de Graaff, Hans Moors and Jaap van Donselaar, members of the Anne Frank Foundation and researchers of Monitor Racism & Extremism. (These three experts also contributed to accusations against cartoonist Gregorius Nekschot.) Soundbytes of the report were leaked to the newspaper De Volkskrant in early November. In a nutshell the verdict was that Wilders and his Party For Freedom were right-extremists crying for authoritarianism, crypto-fascists, and a subversive danger to the system of Dutch democracy.

Stop Wilders

Why Ms Ter Horst desired a report on Dutch right-wing movements and Wilders’ Party in the first place, was a question asked by Elsevier Magazine alone (and never fully answered). The Anne Frank Foundation has a reputation of bias and bigotry and was labelled “a club of crypto communists” by an unsuspected source: Dr. Rik van der Ploeg (PvdA), professor of Economics at the European University Institute in Florence and former Dutch Deputy-Minister of Economy. To the rest of the Dutch media and political opponents it handed, however, the “scientific justification” to get out the torches and stakes. With Wilders’ trial coming up, it was time to start the inquisition. Alexander Pechtold, leader of Democrats ’66 (D66), called Wilders “a right-extremist”; Eberhard van der Laan (PvdA), Minister of Social Affairs, stated that “the many adherents of the Party For Freedom threaten Dutch democracy at its heart”. In The Hague a party was formed under the banner “Stop Wilders NOW!” – and the Hague Court allowed their activities during the coming local elections. Ms Ter Horst politely promised “to present the report to Parliament by mid-December, in order not to hinder Court procedures against Wilders”. Still, in December she decided differently and didn’t send it, because the report “wasn’t ready yet” (De Volkskrant, 30/1/10).

The delay prompted the three experts from the Anne Frank Foundation to annoyed reactions: “If we had known that the Minister would have presented the report by the end of January, we would not have rushed for the deadline. … In regard to Wilders and the PVV [Partij Voor de Vrijheid –‘Party For Freedom], the extreme-right and right-radical terminologies can fully and easily be swapped. … In fact Wilders’ system-hate has quite often been mentioned during our discussions on the report … but if we could have published after the 20th of January, we would have been able to include some highly telling examples of Wilders’ appeal to neonazis. … Some of the protesters near the Amsterdam Court on the 20th of January are influential neonazis. Our report mentions this magnetism of Wilders, but we could have presented it much more prominently. … That emotions ran high last November because of our characterisation ‘extreme-right’ didn’t surprise us. It has been a collective trauma since World War II. Still, it’s kind of weird that labelling a party ‘extreme-right’ was apparently still not done. … Now, it no longer seems to be a taboo. The New Radical Right is a terminology that fits the PVV perfectly” (De Volkskrant, 30/1/10).

The limit for Wilders

Ms Ter Horst did send the report – which equals the Party For Freedom’s “characteristic cry for own culture and nation and disgust for the ‘other’ and opposing parties” with a “new radical right”, without any comment or introduction, hence as a fact – to the Dutch Parliament. For Geert Wilders this was the limit: “Have they lost their minds? Of course we feel antipathy towards our political opponents – that’s politics! And since when is standing for ones nation something radically right?” Also the report’s conclusion – that his statements “seemed highly discriminatory” – caused Wilders great concern; particularly because Ms Ter Horst declared that “the report was the responsibility of the researchers”, but did not distance herself from it. According to Wilders, this showed that Ms Ter Horst not only acted in a “vicious and Machiavellian” manner, but also “in a direct way corrupted and besmirched the Court process” (NRC Handelsblad, 28/1/10).

The awkwardness caused by Ms Ter Horst's political intervention was illustrated by the publication of Wilders’ and Bosma’s probing article in De Volkskrant, the Dutch newspaper which is a staunch defender of multicultural and social democratic values. How can it be, they asked, “that three members of the same leftish club, who hijacked the name of a murdered Jewish girl to coin their own agenda, are allowed to act as a Thought Police and accuse us of authoritarianism without any proof? Couldn’t they find the motion in which the Party For Freedom demands the end of democracy? Ms Ter Horst [as a member of the Cabinet], however, does something that indeed characterises authoritarian states: a government that condemns and stigmatizes elected political parties. It’s not us who need investigation and a report, but this question: Why is a member of the Cabinet convinced that she can get away with condemning political parties?” Even Bert Wagendorp, Chief Editor of De Volkskrant, had to judge Ms Ter Horst’s handling of the report as “rubbish” and Wilders’ and Bosma’s demand for decency, truthfulness and sincerity as “justified” (De Volkskrant, 30/1/10).

Why did Ms Ter Horst, a skilled careerist with an apparatchik past and “a workaholic urge” (Het Parool, 30/1/10) run such a risk? We will never know for sure, but it must have been plan B. Not only is Wilders’ Party For Freedom humiliating the PvdA in the polls and is now potentially the party that will deliver the next prime minister, the Party For Freedom also seems to be on a winning streak on the climate and greenhouse issue. The PvdA (and the Cabinet) put everything on the line of Copenhagen; its prestige, its political raison d’être, its money and intellectual standing had all been hooked up with the IPCC stance. Whereas the Party For Freedom didn’t buy the IPCC statistics from the start, ridiculed Ms Cramer, the PvdA Minister of Ecology, during Copenhagen’s summit and now cashes in hugely as Climategate’s ecological shit is hitting the fan. With local elections coming up on the 3rd of March, something had to be done. A moral watershed, a clear-cut choice between good and evil, had to be put on the market. But the reason why the report had to be presented before the 3rd of February, the second day of session of the Wilders trial, was that on the 20th of January two events happened in Court that were not anticipated and which presented a real threat to the parties in power and their ideology of multiculturalism.

Is the truth illegal?

The first court session of the Wilders trial took nearly eight hours and was broadcast live on Dutch television. Most of it was procedure and the usual legal fencing. Then, however, the ‘Openbaar Ministerie’ (Prosecution Council) emphasised that it had been forced by the Amsterdam Court to prosecute Wilders and that it did not abstain from the option not to ask for his conviction. The commotion this remark caused was offset by the surprise of the second twist. For over a year the ‘Openbaar Ministerie’ had taken the position that it was not important whether Wilders could prove that his points on Islam, the Koran, and massive muslim immigration are true, but whether his analyses were illegal or not. Behind closed doors the ‘Openbaar Ministerie’ was ridiculed because of this stance and comparisons were made with the papal prosecution of Galileo Galilei. Yet Public Prosecutor Paul Vellema never wavered. Not until Bram Moszkowicz, Wilders' well-groomed lawyer, stood up and stated that truth was the core business of justice. Any trial ought to be concerned with the truth first and foremost “because the truth cannot be illegal”. However, as Moszkowicz emphasised, the principle of truth is not merely a matter of philosophy or legal theory.

Two years ago the European Court ruled that if someone speaks the truth or is able to show that his or her critique stems from sources that can be reasonably thought to be reliable and truthful, that person shall be acquitted from charges of slander or insult. The reason for this European Court ruling was simple: if someone speaks the truth, it may be awful, but cannot be illegal. Hence, Moszkowicz demanded that because Wilders was facing charges of slander, insult and hateful critique under the Dutch Law (articles 136 & 137, Dutch Criminal Code) he should be given the opportunity to prove himself truthful and to prove that his remarks on Islam and his comparison of the Koran with Mein Kampf were accurate and true.

To convince the four judges of Wilders’ innocence Moszkowicz asked for 18 experts and witnesses to testify. They were split into three groups: experts on the law of freedom of speech; experts and expert witnesses on Islam and Arabic culture; and experts and expert witnesses on the radicalization of Islam. The experts and expert witnesses were the following:

H. Sackers, professor of Sanction Law, Nijmegen University
T. Zwart, professor of Human Rights Law, Utrecht University
Th. A. de Roos, professor of Criminal Law, Tilburg University
A. Ellian, professor of International Law, Leiden University
A. Sajo, judge at the European Court of Human Rights

H. Jansen, professor of Arabic Culture, Amsterdam University
S.R. Admiraal, expert on Arabic Culture
W. Sultan, author of "A God who Hates"
R. Israeli, professor, Haifa University
S. Solomon, author of "The Mosque Exposed"
B. French, director, Centre For The Study of Political Islam
A.G. Bostom, author of "The Legacy of Jihad"
R.B. Spencer, director, "Jihad Watch"

F. Jneid, imam at The Hague
Y. Al-Qaradawi, Qatar University
A. Jannati, Iran, ayatollah
M.T.M. Yazdi, Iran, ayatollah
M. Bouyeri, killer of Theo van Gogh

Moszkowicz argued that Wilders’ stern critique stemmed from serious science and from expert witnesses, and that professor Sackers and professor Sajo would also function as expert witnesses on rulings of the European Court on, for instance, Islam. For in February 2003 the European Court of Human Rights ruled that "sharia is incompatible with the fundamental principles of democracy”.

No additional experts

After a short break the Public Prosecutor Paul Vellema returned and to the utter astonishment of everyone present declared that in concordance with the European ruling the trial should indeed focus on the question whether or not Wilders spoke the truth or was truthful. Aside from a witness or two he thought too unlikely to come and testify, he agreed on the witnesses Moszkowicz presented. Except for Wilders, the ‘Openbaar Ministerie’ decided not to ask for additional experts or witnesses. Geert Wilders, in his closing plea emphasized the unforeseen and radical new direction the trial apparently was taking: “Are my remarks true? Because, if they are, they cannot be illegal, can they? So, I have to be able to defend myself. I have to be able to prove that I am telling the truth. … I’m happy to learn that the ‘Openbaar Ministerie’ comes to the same conclusion.”

In the media attention was mainly paid to the fact that Paul Vellema of the ‘Openbaar Ministerie’ had accepted professor Henny Sackers as an expert and an expert-witness. Sackers was the leading legalist who had advised the ‘Openbaar Ministerie’ not to prosecute Wilders, an advice the ‘Openbaar Ministerie’ at first followed, but later, forced by the Amsterdam Court, put aside. Nobody asked why Paul Vellema did his twisting and turning and an answer was never given. The media were more interested in the three or four lunatics protesting outside the Court, the neo-nazis mentioned by the Anne Frank Foundation experts on extremism; ignoring the nearly 250 protesters and worried Dutchmen who behaved civilly and calmly in the cold and the drizzle and treated each other and the police to hot chocolate from the Bagel & Beans around the corner.

The media also ignored, however, the potentially historic turn the trial had taken. Only the renowned Dutch writer and Wall Street Journal reporter Leon de Winter immediately understood the consequence of Paul Vellema’s turn: for the first time in Western history, Islam would be weighed and judged in Court. Optimistically De Winter commented in Elsevier Magazine that “what started as a trial against Geert Wilders over suspicions of islamphobia suddenly turned into its opposite: a historic trial over the message of the Koran”. The Amsterdam Court, De Winter continued, “now has to brood over the question whether this book, which is holy to over a billion muslims, can be reasonably compared to the most condemnable book in Western history: Adolf Hitler’s Mein Kampf”.

Clearly, the people and parties who pressed charges against Wilders had shot themselves in the foot, De Winter observed. “If Wilders is convicted, his party will be winning the elections, for sure, if he’s acquitted, he can rightfully boast that his analyses are just. He is in a win-win situation.” The Public Prosecutor did not object to Moszkowicz's plea for 18 witnesses and experts, De Winter, wrote, “so the judge has to allow most of them to testify on the anti-Jewish content of the Koran. Put like that the judge cannot come to a different conclusion than that Wilders’ observations were correct and truthful. The three judges – undoubtedly respectable, decent, post-modern Netherlanders with a minimum of knowledge of Islam, its culture and traditions – are now forced to enter a debate on a religious text, something which should not have happened in an Enlightened society in the first place. Broadcast live on television, an ancient text that is the basis of an entire civilization will be criticized and compared to Mein Kampf – causing offence to all muslims, radical or not.” There is a way out of this hideous trial, De Winter, concluded: “The Public Prosecutor ought to ask the judge for an acquittal. Now” (Wall Street Journal, 26/1/10 and Elsevier Magazine, 27/1/10).

In spite of being overlooked by all Dutch media, De Winter's analysis, however, must have caused great alarm in the ruling parties and the Cabinet; possibly triggering Ms Ter Horst to send her crushing report to Parliament and the media straight away.

Yet their anxiety proved to be unfounded. Not broadcast live on Dutch television this time, around 2 p.m. on Wednesday the 3rd of February the judges of the Amsterdam Court did the unthinkable. Not only did they rule that Wilders as an elected parliamentarian was not immune from prosecution but would be prosecuted on all charges, including hate speech, discrimination, Fascism and Nazism, but also that the 18 witnesses and experts the Public Prosecutor had more or less agreed to, would be reduced to three experts on Islam and the Koran: Jansen, Admiraal and Sultan. The judges’ reasoning to allow merely three experts was that “in regard to the law we know all that has to be known – even the analyses of eminent law professors such as Sackers and Sajo will not provide new insights; and in regard to the possible danger of Islam, we know all as well. … This knowledge is commonly known. … Ayatollahs will teach us nothing new.” However, the three experts the Court had to allow because “we have to comply with European Law. … A suspect must be able to prove his innocence and that he speaks the truth.” Yet, the Court ruled that the experts ought to testify behind closed doors and that Wilders would not be questioned in public. After that the Court suspended the trial for “four months, at least”.

Islamic freethinkers

The reaction of Geert Wilders, leaving the courtroom 15 minutes later, was angry and disappointed: “This is like justice in a dictatorship. The judges don’t go for a fair trial and a decent process: I won’t be able to prove that I’m speaking the truth. … Of course, I will continue to fight, but I’m afraid it’s getting very difficult. … It’s very fishy that in a process as extremely important and principled as this, I cannot present my experts and prove my case, whereas in any everyday trial any suspect can call upon any witness or expert who has anything to do with the case. … I don’t respect this Court’s decision”.

Bram Moszkowicz's reaction pointed to a more underlying worry and fear. Politely waiting until Wilders had finished, he stated to NOS Television: “Well, I think it’s quite something if a Court deems itself so equipped that it declares not to need any expert knowledge of professors of law. By acting this way I think that the Court shows itself to be too self-confident. And a judge who is acting too confidently frightens me.”

Another conclusion might be that Moszkowicz has underestimated the ideological urge of the powers behind the prosecution of Wilders. The ‘Openbaar Ministerie’ is part of the Department of Justice and hence linked to the Cabinet and the ruling political parties. Although formerly reluctant, the ‘Openbaar Ministerie’ nevertheless did and does go for prosecution. It could have asked for an acquittal on the 3rd of February but kept silent.

The other parties praying for Wilders conviction are powerful bodies as well: the Al-Tawheed mosque under suspicion by the Dutch Secret Intelligence for teaching radicalism and terrorism; a club of influential legal experts and lawyers with such prominent lawyers as Ms Els Lucas and Gerard Spong; the foundation Landelijk Beraad Marrokanen (‘National Deliberation of Moroccans’) with many PvdA and Green Left party members; and the foundation Nederland Bekent Kleur (‘Holland Follows Suit’) with many members of immigrant background belonging to the PvdA and the Green Left party.

Moreover, and this might cause even greater concern to Wilders, Moszkowicz seems to have misunderstood the aim of the trial. It’s not about convicting Wilders as such, it’s about convicting him in such a manner that his conviction can be upheld before a European Court.

The case of the Belgian parliamentarian Daniël Féret before the European Court in July 2009 is the precedent. With three experts on Islam and the Koran Wilders has a formal opportunity to prove his truthfulness. If the judges convict him, they have done so by the letter of the European book. The European Court will not overrule them, as the Féret trial showed. After being found guilty before a Belgian Court, the Belgian politician was tried and found guilty at his appeal before the European Court: guilty of “undermining trust in Democratic institutions and causing social tensions. … There is a social need to protect the interests of the immigrant population, and not to attack them.” As a consequence of being convicted, Féret was banished from the Belgian Parliament for a period of 10 years (De Volkskrant, 16/1/10). If this were to happen to Wilders, he might have to flee the Netherlands, for his 24/7 security is due to his function as a parliamentarian.

Whether Wilders is a menace to society, a Machiavellian populist or a martyr for freedom, probably only time will tell. But the present process clearly reveals the dark and dirty sides of Dutch justice and probably its close ties to the ruling political parties and to influential organizations and their lobbyists. It also reveals the apparent lust among Dutchmen with correct and approved tastes to lynch the outsider with the unwanted message.

On VARA television, a high-brow network closely connected to the PvdA, the renowned and respected crime fighter and television personality Peter R. de Vries, winner of an Emmy Award in 2008, reported on his witnessing Wilders in the courtroom: “He’s evil, he’s Evil incarnate, he has a dark brown political agenda, only God knows what will happen when he wins 35 or 40 seats and the PvdA is completely swept away. I’m terrified to think what will happen when he’s in power. He has to be stopped. He has to be stopped, now! And at least I said it. At least I can tell later that I have said it before it was too late. … Max Moszkowicz, the father of Bram Moszkowicz, and I were best friends for 25 years. Often we had this discussion on people whether they were ‘good’ or ‘bad’. “The litmus test,” Max used to say, and remember: as a Jew he lost all his family in the Holocaust, “the litmus test is if you’re convinced a person would have provided you with shelter from the Germans.” I’m convinced Geert Wilders would not. “How can you defend Wilders?” I asked Bram Moszkowicz, “when your father would have arrived at the same conclusion!” So, I say it again: that man is the Evil! He has to be stopped!” (VARA, Pouw&Witteman, 3/2/10).

Still, many intellectual muslims and muslim freethinkers share Wilders' criticism. Wafa Sultan, Afshin Ellian and Ayaan Hirsi Ali are only the most renowned backers of Wilders’ observations. Far less famous Dutch muslims are currently taking the opportunity Wilders has provided to express their extreme worries about Islam and its growing momentum towards fundamentalism. Nahed Selim, working at the Amsterdam Court, stated in NRC Handelsblad that “the witch hunt for Islam critics strengthens the position of high-strung muslims".

"Yet," Nahed Selim continued, "Wilders merely criticizes the worldly aspects of Islamic ideology. In the Netherlands much confusion arises from a lack of understanding of what sharia entails, but one thing is certain: sharia entails nothing that isn't already part of Islam. All legal rules of the sharia are based on authentic Islamic sources. Sharia isn’t an appendix to Islam. At the Cairo Summit of 1990, 57 Islamic nations signed the Islamic Declaration of Human Rights, a political document that is completely in line with the sharia. … More and more Dutch muslims individualize: they try to hook up to Western society and break free from their patriarchal, religious and cultural background, which they consider suffocating. The present witchhunt for Islam critics weakens their position and strengthens the conservative camp of the muslim fundamentalists. Thanks for nothing!” (NRC Handelsblad, 16/1/10).

Finally, in Denmark, France, Switzerland, Spain and Italy many of Wilders’ analyses are already put into practice; occasionally outstripping his political program by miles as is the case in Denmark, France and Switzerland. These countries can hardly be regarded as fascist, national-socialist or discriminatory. They belong to the very heart of Europe and Western civilization. Observations such as these give reason to think that in the Netherlands a puritan, reactionary hysteria has taken hold of society. A movement that no matter what wants to hold on to that beautiful dream of the 1970s and 1980s; a dream of multiculturalism, of infinite and inclusive love for the ‘other’, a dream that has turned into a nightmare too frightening to wake up to. Because then the Dutch might discover that the truth will not set them free.