Geert Wilders on Trial: Prosecutors Dump Case So What?

Reuters reports in a terse article that the Prosecution moved for dismissal on the remaining counts against Geert Wilders. It appears that they differentiate between Islam and Muslims. It is further suggested that Wilders, as a politician, has a right to discuss social problems.  

    Gates of Vienna has further information. Click here for the complete article, summarizing the Prosecutor's report. Links are provided to the Prosecutor's summary, in two parts.

• http://www.om.nl/publish/pages/123465/summarypublicprosecutorclosingspeechgwilders_part1.pdf
• http://www.om.nl/publish/pages/123638/summarypublicprosecutorclosingspeechgwilders_part2.pdf

Part one, seven pages long, relates to the first motion to dismiss a single charge from 10/12.  

    If the motion is granted, and if acquittal results,  and if the decision is upheld on appeal then  the precedent  may extend only to political office holders, not to citizens.

A politician will , pre-eminently, have a great extent of freedom to
persuade others to follow his political views. The articles on discrimination in the Dutch Criminal Code
may constitute a possible restriction of said freedom.

    An element of ambiguity creeps in regarding the truth defense.  Truth is not a defense but provision of substantiation must be considered.

The truth

Wilders has indicated before that he cannot be liable to punishment since what he says is the truth.
The truthfulness of Wilders’ statements is by no means being judged in this trial. This is quite irrelevant
for the assessment from a criminal law perspective, since the statements concerned constitute
Wilders’ opinion. His statements, reflecting his opinion, can be assessed in order to determine whether
any provisions concerning discrimination have been violated. Pursuant to European case law, the
question whether Wilders provides (any) factual substantiation for his statements must indeed be
considered. [Emphasis added,]

    Precedents are discussed, from the ECHR. Then comes this tempting tidbit.  In assessing this, bear in mind its singular application to opposition politicians and the precedents discussed here. Take careful note of the caution which follows the quote on pg. 4.

A discussion of general interest may involve a certain degree of exaggeration and provocation, i.e. a certain degree of excessiveness.

The other side of the coin is that statements which generate feelings of rejection and hostility and incite hatred, may indeed be punishable. Political statements which incite hatred constitute a threat to peace in society and political stability in democratic states. Politicians must be very careful, since their goal is to accede to power. It is essential that politicians avoid using words that could propagate intolerance.

    Another prime tidbit emerges from the legalese.

The Supreme Court does not consider the statement ‘stop the tumor called Islam” to be punishable since the statement does not unequivocally refer to a group of people because of their religion.

    Take careful note of the detail elucidated in the succeeding paragraph.

It is quite conceivable that people who feel very connected to their religion, feel that they (too) are being discriminated against when their religion is being criticized. However, from a legal perspective there is a strict distinction between a statement that refers to a religion and a statement that relates to people who adhere to that religion. Criticizing the opinions or the behavior of those who belong to the group, particularly including behavior directly related to or directly emanating from the religion, is not punishable. Criticizing a religion is not punishable, even if it is in very coarse language. Any hurt feelings may not be considered in the legal assessment of the element “insulting about a group of people”

    How will you unscramble this egg?

Only impairing the self-respect or discrediting the group because it belongs to a specific race, has a specific religion or philosophy of life, is punishable. Feelings of the group are , as stated above, not considered in this respect. [Emphasis added.]

    Read between the lines, inter alia, as they say in the UN resolutions.

When a statement is a contribution to the public debate, is made in the context of a religious conviction or in the context of an artistic expression, it can dispel the insulting nature of the statement. This does not necessarily mean that the statement is in practice experienced as less serious; this concerns the juristic construction as applied by the Supreme Court. We only focus on the public debate because it is important in this trial.

  
    Part two discusses the other charges and delves into the legislative  climate.

When the sections were introduced, avoiding unnecessary restrictions on freedom of expression was considered to be very important. Accordingly, no obstacles under criminal law were imposed on criticizing views, even if such criticism were offensive. Criticism of the deepest convictions among religious people and of religion itself and the institutes and organisations based on religion is permitted, and the same holds true for Section 137d Sr. Criticism is punishable, however, if it unmistakably targets the actual people, and not merely their views, convictions and conduct.

I don't think the OIC will let that set precedent.
  
    Dangerous ambiguity is encountered on the third page of Part 2.

Intent

The word ‘intent’ does not appear in the description of the offence in Section 137d Sr. Still, ‘instigating hatred or discrimination’ is regarded as an intentional offence. The intent requirement is contained in the word ‘instigate’.
Section 137d Sr is a formal offence. This means that the possible consequence that may or may not ensue from the offence, or the likelihood of that consequence, does not determine whether the description of the offence has been fulfilled. The intent of the suspect need not concern a specific consequence or a specific likelihood of that consequence. The intent is present, if the suspect mustnecessarily have been aware of the hate-instigating nature of the expressions used. [Emphasis added.]

    This gets boiled down to essence near the end of page 4. The reference is plural, to Fitna, a letter to the editor and several interviews.

Statements about Islam and the Koran are not instigations of hatred against people.

  There is too much legal detail in part one of the Prosecutor's summation, and I am not a lawyer.  I have no doubt that this case will be appealed.  By this time, lawyers for the OIC must have gone over Part 1 with a microscope, in preparation for appeals. More importantly, their analysis will certainly be reflected in future resolutions and protocols.  I hope that ECLJ, Art19, IHEU and others are intensely pouring over the whole set of documents in preparation for round two.

        In essence, the Prosecutors have pissed on the OIC's  defamation platform without extinguishing the fire. The resulting steam explosion  may have devastating consequences.   Expect riots. Expect boycotts. Anticipate renewed vigor in the drive  toward institution of Islamic blasphemy law through a binding protocol to ICERD. 

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