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Geert Wilders trial explores new frontiers of Dutch politics, society and jurisprudence

Gerolf Hagens [Teamleider, Kaveity and Kaveity]: "The trial against Geert Wilders has received worldwide attention, yet many outsiders are unaware of its underlying issues. From the start, the trial has raised a lot of questions and doubts, both from people who agree with the prosecution of Wilders, as well as from those opposed.

The underlying controversy started around 2007; Wilders, the leader of (now) the third largest political party in the Dutch parliament, made several statements in the press that many considered insulting or hateful. Most of the statements were directed towards Islam and the Koran, but some were also about Muslims in general. The movie "Fitna" added to the rage against Wilders. All this, however, was not ground for trying Wilders, according to the public prosecutor. Although Wilders said things about Muslims that could be seen violative of Dutch law, a politician should be able to contribute his views to relevant, public debate.

By Dutch law, only the public prosecutor can bring someone to trial to enforce the penal code. So if the public prosecutor does not pursue a case, there often won't be a trial. However, if the Dutch people deeply disagree with this, they can ask the court of appeal to compel the public prosecutor to bring an individual before the court. This in fact happened around February 2009, when the court of appeal ruled that the public prosecutor had to bring Wilders to trial.

A whole legal debate started, which goes too far to mention here. But at the end of the trial, Wilders did not believe that the three judges he had before him were impartial, and requested new judges twice. A panel of three judges decided on such a request; the first time it was denied, the second time it was granted. This was at the end of 2010, and the result was that a new panel of judges had to completely redo the trial, which is now about to finish -- assuming, at least, the previous situation won't repeat itself.

This trial raises all sorts of questions. From a legal point of view it is interesting on two levels; one of them is the question of the interplay between the freedom of speech and freedom of religion. This is most of all a discussion between Dutch and European law; Dutch law expressly prohibits the insulting of a religion, while European law frames the conduct as a violation of the freedom of religion.

The second interesting question is whether a politician is within his rights to make insulting and/or hateful statements, and when doing so goes too far. By Dutch law, a politician can say or write anything inside the parliament building, where he has functional immunity. Outside the parliament building, this immunity does not exist. However, the idea of the immunity is that people in parliament have to be able to say whatever they feel is necessary for the country; it makes sense to apply this principle in "the outside world" as well, especially in the context of a very relevant public debate.

Most Dutch jurists are predicting that Wilders will not be found guilty, and even the public prosecutor has admitted this from the very start. Wilders has claimed that the trial is mostly politically motivated, and this appears to be true. His ideas have captured both support and fervent opposition, including death threats made against him.

About one thing, there is no doubt. Wilders will not stop what he has started. His second Fitna movie is coming out shortly, and his political party keeps expanding; the trial has only added to his party's growth. As well, Wilders is strengthened by a right-wing resurgence observable across all of Europe. Discussions involving the freedoms of speech and religion will continue to be relevant, seeing as Wilders will ensure that the two freedoms will keep colliding."

This article was prepared for publication by Yuriy Vilner, an associate editor for JURIST's professional commentary service. Please direct any questions or comments to him at professionalcommentary@jurist.org

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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