Trial of Geert Wilders

The plaintiffs (Nederlands Bekent Kleur, organisations of Turkish, Moroccan and Antillean people in the Netherlands, and an organization of mosques) appealed against the prosecution's decision to not pursue the case and on 21 January 2009, a three-judge court of appeal ordered the public prosecutor to try Wilders.[17][18] Their statement said that "[i]n a democratic system, hate speech is considered so serious that it is in the general interest to... draw a clear line" and that "the court also considers appropriate criminal prosecution for insulting Muslim worshippers because of comparisons between Islam and Nazism made by Wilders".[16] If convicted, he could have been sentenced for up to 16 months of jail time or a fine of €9866.67.[19] His lawyer Bram Moszkowicz tried to have the appeal overturned at the Supreme Court of the Netherlands,[20] but the Supreme Court's Procurator General decided he would not hear the case.[21]

On 4 December 2009, Wilders was ordered to appear before the court on 20 January 2010 to defend himself against the charges of group insult of Muslims, fomenting hate and discrimination against Muslims because of their religion, and fomenting hate and discrimination against non-Western foreigners or Moroccans because of their race.[22] On 11 January 2010, the Dutch public prosecution service brought additional charges against him, charging him with hatred against Moroccans and non-Western immigrants.[23][24][25]

On 13 January 2010, the Amsterdam court rejected, after a closed pretrial hearing, submissions by Wilders that one of the charges against him should be dropped or reduced. He argued that he had only criticized Islam and not its adherents, and that the charge of insulting Muslims as a group should not stand. His lawyer Moszkowicz petitioned judges to drop the charge of insulting Muslims as a group, which he said would have little chance of winning a conviction. He cited a 2009 Dutch Supreme Court ruling that found insulting a religion is not the same as insulting followers of that religion, and not punishable under the current hate speech laws. The judge said that the indictment only put into practice an earlier court ruling that he should stand trial and that the defense had not put forward any new evidence to overturn the ruling.[26][27]

In total, Wilders was charged with the following five counts:

1. Group insult
2. Inciting hatred against Muslims because of their religion
3. Inciting discrimination against Muslims because of their religion
4. Inciting hatred against non-western immigrants and Moroccans because of their race
5. Inciting discrimination against non-western immigrants and Moroccans because of their race

The first charge is based on article 137c of the Dutch criminal code, and the rest are based on article 137d, both concerning hate speech.[28]

Court proceedings began on 20 January 2010, with Wilders accused of discrimination on the basis of religion and spreading hate. On the eve of his trial, Wilders told journalists he expected to be acquitted, saying, "I have done nothing wrong." After receiving the summons, he commented that he considered the prosecution as "a political trial."[29] He also announced his intention to call various experts to act as witnesses.[17][30][31][32][33][34][35] On the first day of the trial, Wilders gave a speech invoking Thomas Jefferson, among others.

When the trial resumed on 3 February, the judges decided who would be allowed to testify as witnesses. Wilders's desired witness list consisted of various experts on both the law and Islam, including university professors, radical imams, and Mohammed Bouyeri, the man who murdered filmmaker Theo van Gogh.[36] Other individuals on the list included Afshin Ellian, a Dutch-Iranian professor at Leiden University; Hans Jansen, a Dutch scholar of Islam; Wafa Sultan, a Syrian American physician; Raphael Israeli, a Moroccan-Israeli professor at the Hebrew University of Jerusalem; Andrew G. Bostom, an American professor at Alpert Medical School of Brown University; Robert Spencer, an American author and blogger; and Ayatollahs Ahmad Jannati and Mohammad Yazdii, members of the Iranian Guardian Council.[37]

The court rejected 15 of Wilders's 18 desired witnesses, ruling that Bouyeri and other Muslim extremists would not be allowed to testify in the case. The court accepted only the three Islam experts whom Wilders had called, rejecting the lawyers and Islamic extremists.[38][39][40] The court also rejected the plea by Wilders's lawyer to transfer the case to the Supreme Court due to Wilders status as an MP. The court overruled this objection against its jurisdiction. "Parliamentary immunity does not extend to what a public representative says or writes outside of parliamentary gatherings." said Jan Moors, one of the judges at the Amsterdam court.[41][42][43][44][45][46][47] Wilders consequently argued that he was being denied his right to a fair trial.[48]

During the trial it became clear that the prosecutors were arguing for Wilders to be acquitted on all five counts.[10]

On 22 October 2010, when the trial was nearing its conclusion, Wilders's attorney Moszkowicz asked for the judges to be substituted because of a perceived bias against his client. Moszkowicz had unsuccessfully asked for substitution before. The second request was made because Tom Schalken, one of the judges in the court of appeal case that ordered the prosecution of Wilders on 21 January 2009 had allegedly tried to convince a witness in the main trial, Hans Jansen, that the trial was justified. Moszkowicz wanted to hear this witness immediately regarding the alleged conflict of interest, but the court decided it would not hear the witness. The substitution chamber decided that this decision had an appearance of bias and awarded the substitution, thereby ordering a retrial.[49]

In the meantime, the alleged victims argued to the court of appeal that the prosecutors, by arguing for acquittal, had not fulfilled the court's order that Wilders had to be prosecuted, and that they should be replaced in the retrial. On 4 February 2011, the court of appeal decided against this complaint.[50]

On 7 February 2011, the retrial started. In the period between the trials, police investigated the claims that appellate judge Tom Schalken had tried to influence witness Hans Jansen. The new trial began with hearing the witnesses Schalken, Jansen, and Bertus Hendriks; the latter had hosted the dinner party at which Schalken spoke to Jansen. Moszkowicz argued that the trial against Geert Wilders could not continue because the witness had been influenced.[51] During the hearing of Hendriks, Moszkowicz claimed that Hendriks had committed perjury; when the judges did not agree, Moszkowicz tried unsuccessfully to have them substituted as well.[52]

On 23 May 2011, the judges decided that although Schalken should not have talked to Jansen, the witness had not been influenced, and the case could continue.[53] As in the first trial, the public prosecution argued that Wilders should be acquitted on all counts. On 1 June the hearings concluded, with Geert Wilders asking the judges to find him not guilty. On 23 June 2011, Wilders was acquitted by the court of all charges, because his statements were, as presiding judge Marcel van Oosten put it, "acceptable within the context of public debate."[54][55] Because both the public prosecutor and the defense requested complete acquittal, the verdict will most likely not be appealed,[1][12] although some thought the plaintiffs might try to take the case before the European Court of Human Rights.[11]

Wilders believed that his freedom of speech and traditional European freedoms were the primary subject of the trial. In February 2010, in an interview with Israel National Radio, Wilders said he was "fighting for one thing: the preservation of our culture, which is based on Christianity, Judaism and humanism – and not on Islam... While Islamization of our society grows, the political elite looks in the other direction and ignores the real problem, namely, the impending loss of our freedom. I am fighting not against Moslems, but against the influx of a totalitarian ideology called Islam."[73][74] He has cited Gregorius Nekschot, a similar case of Islam related free-speech restrictions, on his website.[75]

After being cleared of all charges, Wilders commented that the victory was not only an acquittal for himself, but a victory for freedom of expression in the Netherlands.[11] Commentators believed that the plaintiffs may attempt to bring their case before the European Court of Human Rights.[11] Gerard Spong, a lawyer instrumental in getting the case heard, expressed his disappointment with the verdict, seeing the judge's ruling based on "public context" as vague. Theo de Roos, professor of law at the Tilburg University, saw the case as a precedent for ethnic incitement in Dutch law, prohibiting only actual threats.[12]