The trial of Dutch politician Geert Wilders resumes today in the Amsterdam District Court. Mr Wilders is charged with inciting hatred toward Muslims. Looming in the background is a European giant: the European Court of Human Rights. But should Mr Wilders be putting his hopes in a European court?
If Mr Wilders loses the case in Amsterdam, he can appeal to the Dutch Supreme Court. If he still comes up short, he could then take his case over the Dutch border, to the French city of Strasbourg. That is the seat of the European Court of Human Rights - 47 judges with jurisdiction over 800 million people in 47 countries.
Given his standpoint that Europe should have less say over Dutch affairs, Mr Wilders may think twice about putting his hopes in a European court. A look at the court's decisions in cases involving free speech and a politician's right to say what he thinks, will make Mr Wilders think even harder about taking his case to Europe.
Just ask Filip Dewinter, leader of Vlaams Belang (Flemish Interest), an anti-immigrant party in the Dutch-speaking part of Belgium. His party was convicted in 2004 for inciting hatred. He sees close parallels between his case and that of Geert Wilders:
"Wilders is guilty of insulting the Muslim people by insulting Islam, hatemongering against Muslims, inciting discrimination against Muslims and non-Western immigrants. Well that's exactly the same as they said about us, and we were convicted for it."
When Mr Dewinter's party took the case to the European Court of Human Rights, the judges there allowed the conviction to stand without reviewing it. Mr Dewinter says his case should be a warning to Geert Wilders.
Dirk Voorhoof, professor of media law at Belgium's Ghent University agrees that Mr Wilders should not place too much faith in Strasbourg. He says the European court ruled just last summer in another Belgian case, setting limits on how far a politician can go in using his right to free speech.
"This again is an indication that the legal authorities in the Netherlands do not have to be afraid of an application in Strasbourg, because the European court supports the idea that action is needed to stop incitement to racism."
The court upheld the conviction of Daniel Féret, former leader of far-right party Le Front National, and a member of parliament in Belgium's French-speaking region of Wallonia (see box below).
In its decision of July 2009, the European court writes that freedom of expression is especially important for an elected representative, but also says "It is crucial for politicians ... to avoid comments that might foster intolerance... To recommend solutions to immigrant-related problems by advocating racial discrimination is likely to cause social tension and undermine trust in democratic institutions."
Mr Féret's punishment included a ten-year ban on participation in politics, and 250 hours of community service at an institution helping immigrants integrate into Belgian society. Geert Wilders will do his utmost to avoid a similar fate here in the Netherlands.
Protect free speech
A court ruling from nearly 20 years ago in a case involving a Danish journalist has been the most important precedent for protecting free speech.
Jens-Olaf Jerslid, a journalist still working for Danish national television, was convicted by a Danish court of inciting hatred after he made a television programme about a group of racist Danish youths, the Green Jackets. The European court overturned Mr Jerslid's conviction on the grounds that the public interest in hearing the racist sentiments expressed by the group outweighed the right to protect those targeted by that speech.
Here in the Netherlands, Geert Wilders argues that the public interest in hearing what he calls the truth about Islam outweighs any other considerations. But Mr Jerslid says his case may have expanded the limits of free speech in Europe, but did not give people a carte blanche.
"The question in my case was whether or not it was socially good for the truth to come out in a raw form about this group of violent youth in Copenhagen. It doesn't give anyone the right to just go and say bad things about immigrants."
Will Mr Wilders have to take his chances before the European Court of Human Rights? The track record in cases involving free speech in Strasbourg should encourage Mr Wilders to pull out all the stops, and win his case here in the Dutch courts.
Politicians on trial in Europe by John Tyler and Perro de Jong
Filip de Winter
Three foundations associated with the then Vlaams Blok (Flemish Bloc) in Belgium were convicted in 2004 for inciting hatred and discrimination. The decision read, in part, that "The Flemish Bloc is a party that knowingly and systematically incites discrimination... They treat immigrants as criminals, evildoers, fanatics who will never integrate and a threat to native Belgians."
The case was appealed to Strasbourg, but the European court decided not to hear it. The reasons for this decision remain unclear, but legally it means the court accepts the Belgian decision. The party changed its name, but after an initial surge at the time of the court case, has now lost popularity.
He was convicted in 2006 of inciting hatred during election campaigns between 1999 and 2001. Mr Féret wrote and distributed leaflets and posters for his party. He advocated various anti-immigrant policies, including banning immigrants from buying houses, and creating ethnic ghettos. Mr Feret's punishment included a ten-year ban on participation in politics, and 250-hours of community service at an institution helping immigrants integrate into Belgian society.
In 1997, a Norwegian court convicted Jack-Erik Kjuss, leader of the White Electoral Alliance (Hvit valgallianse, or HV), of promoting racial discrimination for advocating forced sterilisation of all non-white residents of Norway. The Norwegian Supreme Court upheld the case, and the European court let that decision stand.
In 2004, far-right Front National leader Jean-Marie Le Pen was fined 10,000 euros for inciting hatred toward Muslims. He had said in Le Monde that the French should "beware" of the day when France would have 25 million Muslims instead of 5 million, because "it is they who will command" and "the French will have to hug their walls and lower their eyes."
In Verona, six members of the Northern League political party were tried in 2004 for their campaign against Roma and Sinti people. Their 2001-slogan was "For the security of our citizens - banish the gypsies from our home." The six were convicted of inciting hatred, but Italy's Court of Cassation overturned the verdict in 2008.
Other politicians have made controversial remarks, without facing any legal action. Far-right politician Daniela Santanchè last year called the prophet Muhammad a "paedophile". Italian reforms minister Roberto Calderoli resigned in 2006 after wearing a T-shirt with one of the Danish 'Muhammad cartoons'. And Benito Mussolini's granddaughter, Allessandra, said all Romanians are criminals.
Former extreme-right NPD party leader Günter Deckert has been convicted and sentenced to prison a number of times. In 1994, a Mannheim appeals court hailed Deckert as a strong and responsible person who had clear convictions and who had spent considerable time and energy on those convictions. His Holocaust revisionism was described by the judge as emanating fom a "legitimate interest". Two of the judges were later suspended and a retrial was ordered; Deckert was sentenced to a full two years in prison without parole.
Current NPD leader Udo Voigt was handed a seven-months suspended sentence last year for inciting racial hatred in connection with a 2006 pamphlet which ridiculed the only black German player to take part in the football World Cup competition.
Photo credits: photo of ECHR Strasbourg from iFreelancer on Flickr.com, used under CC licence
image of Geert Wilders from ANP photo.
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