The Case of Sheikh Ali Salman [Bahrain]
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The Human Rights Committee (CCPR) of the United Nations found that there had been no violation of the rights of three aggrieved Dutch-Moroccans under the International Covenant on Civil and Political Rights following the 2011 acquittal of Dutch populist Geert Wilders on charges of insulting the Netherlands’ Muslim immigrants, as well as inciting hatred, discrimination and violence against them. The CCPR reasoned that the Netherlands had taken “necessary and proportionate” measures in order to prohibit Geert’s statements by prosecuting him under its Criminal Code and that the complainants had not exhausted all domestic remedies. The CCPR explained that the complainants could still bring a civil action against Wilders which, if successful, could result in an injunction preventing Wilders from making similar remarks. Furthermore, the CCPR said that the State was not obliged to ensure that a person charged with inciting discrimination, hostility or violence will invariably be convicted by an independent and impartial court of law.
Between 2006 and 2009, the Dutch police received numerous criminal complaints concerning the repeated religious insults and anti-Muslim hate speech of Geert Wilders, member of Parliament and founder of the extreme right wing political party Freedom Party. For example, Wilders, during a 2006 public interview, said that the violent of behavior of Moroccan youths in the country directly arises “from their religion and culture.” [para. 2.7] In February 2007, he warned against the Islamization of the country and said, “[w]e had enough. The borders are closed, no more Islamic people coming to the Netherlands, a lot of Muslims exiting the Netherlands, denaturalisation of Islamic criminals.” [para. 2.] And later in August of the same year, Wilders expressed his remorse for the country’s refusal to stop “the Islamic invasion in the Netherlands,” referring to Muslim immigrants as “cowards. Frightened people who have been born cowardly and who will die cowardly.” [para. 2.7]
On the refusal of the public prosecutor to indict Wilders, a number of victims and interested individuals and organizations lodged a complaint with the Amsterdam Court of Appeal against the decision. In November 2009, the court ordered the prosecution of Wilders on charges of ‘insult of a group for reasons of race or religion’ under section 137c of the Criminal Code and ‘incitement to hatred and discrimination on grounds of religion or race’ under section 137d of the Code.
The aggrieved parties argued that Wilders’ degrading and hateful public statements overstepped the boundaries of political debate and that they were entitled to protection from what fell squarely within the definition of criminal incitement on the grounds of race or religion of a particular group. In its verdict of June 23, 2011, the Amsterdam District Court held that the elements of the indictment could not be proven and acquitted Wilders of all charges.
Having exhausted all the domestic remedies to criminally convict Wilders, three affected Dutch-Moroccans (Complainants) submitted an individual communication to the UN Human Rights Committee, monitoring body of the ICCPR. They alleged that the acquittal of Wilders violated their rights under Articles 2(3), 14(1), 17, 20(2), 26, and 27 of the ICCPR.
At the outset, the Committee found the Complainants’ claims under Articles 17 (Right to Privacy) and 27 (Rights of Minorities) of the ICCPR inadmissible for failure to adduce specific arguments in support of their claims under these provisions, distinct from their other allegations.
Under Article 2(3) of the ICCPR, State Parties must ensure that any person whose rights or freedoms enshrined by the Covenant are violated shall have “an effective remedy” and that the right to such remedy must be “determined” and “enforced” by competent authorities. Articles 20(2) and 26 the ICCPR respectively protect the right of individuals and members of groups to be free from hatred and discrimination by requiring State Parties to prohibit by law certain conduct and expression.
The Complainants submitted that Wilders’ acquittal violated Article 2(3) in conjunction with Articles 20(2) and 26 because the government did not prosecute the case effectively. They explained that the prosecution was entrusted to the same individuals who initially decided not to proceed with the initial complaints. They also claimed that the rules of the Dutch criminal proceedings generally make the victim of a crime fully dependent on judges and prosecutors. For example, they noted the public prosecutor’s hiring of three legal academics for advice on whether to prosecute Wilders but didn’t allow the Complainants to comment on the experts’ opinions, nor to call their own experts.
With regard to their separate claims on the basis of Articles 20(2) and 26, the Complainants argued that even though the prohibition against incitement to religious hatred and discrimination is fully implemented in the Dutch Criminal Code, the acquittal at issue substantially deviated from the domestic jurisprudence that has shown a less tolerant approach to hate speech. They submitted that the court separately examined the effects of Wilders’ statements, rather than looking at their cumulative effects. They also argued that the court erred in emphasizing the distinction between criticizing Islam and humiliating Muslims, saying that the connection between the two was common in Wilders’ statements. In addition, they argued that the acquittal created a general and absolute exception for public debate as a crime of incitement to hatred and discrimination by giving priority to Wilders’ freedom of expression and failing to protect the victims from increasing racism and hatred against Muslims.
In addressing the Complainant’s claims under Article 2(3) in conjunction with Articles 20(2) and 26, the Committee said that Article 20(2) is “crafted narrowly in order to ensure that other equally fundamental Covenant rights, including freedom of expression under article 19, are not infringed.” [para. 10.4] It recalled its jurisprudence that “prohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the Covenant, except in the specific circumstances envisaged in article 20(2). Nor may such prohibitions be used to prevent or punish criticism of religious leaders or commentary on religious doctrine and tenets of faith.” [para. 10.4] According to the Committee, a government prohibition on free speech pursuant to Article 20(2) against incitement to hatred or discrimination on the grounds of race, nationality or religion must comply with the strict requirements of Article 19(3). This means that the limitation must be provided by law and be necessary for the respect of the rights or reputations of others, or for the protection of national security, public order, public health or morals. The Committee further noted that Article 20(2) “does not expressly require the imposition of criminal penalties, but instead requires that such advocacy be ‘prohibited by law,’ Such prohibitions may include civil and administrative as well as criminal penalties.” [para. 10.4]
In this case, the Committee observed that the Netherlands’ domestic laws not only afforded the Complainants with the opportunity to secure an order from the Amsterdam Court of Appeal, directing the public prosecutor to prosecute Wilders, but also the right to seek damages under Article 6(162) of the Civil Code for any tort Wilders had committed by his statements. Without addressing the Complainants’ claims as to their inability to fully and independently participate in the criminal proceedings, the Committee noted the Netherlands’ argument that the public prosecutor impartially presented the factual and legal issues in the case, and that the court independently examined the law and evidence and entered judgment after a careful assessment. In light of these considerations, the Committee concluded the acquittal did not violate Article 2(3), 20(2), and 26 because the government had undertaken “necessary and proportionate measures in order to ‘prohibit’ statements made in violation of article 20(2) and to guarantee the right of the [Complainants] to an effective remedy in order to protect them against the consequences of such statements.” [para. 10.7]
As to the claim under Article 14(1) of the ICCPR, which provides the right to “a fair and public hearing by a competent, independent and impartial tribunal established by law in [criminal proceedings], the Committee noted that the Complainants chose to bring a their civil claim as injured parties pursuant to the Criminal Code, a mechanism that according to the Committee, is not required by the Covenant. It further noted that the lawyers representing the Complainants were allowed to speak about the facts of case, to testify, and to plead that Wilders’ statements amounted to incitement to hatred and discrimination. As such, the Committee did not find a violation of Article 14(1).
Individual opinions of the Committee members
Committee Member Dheerujlall Seetulsingh said the Complainants’ claim that the Netherlands was in violation of the ICCPR because of its failure to find Wilders guilty was inadmissible for non-exhaustion of all the domestic remedies available to them. He explained that the Complainants still had the option of bringing a civil action in tort against Wilders and that according to the government itself, a successful civil action could possibly give the opportunity to seek an injunction preventing Wilders from making similar remarks.
Committee Member Fabián Salvioli dissented from the Committee’s decision not finding a violation of Article 20(2). According to him, while the ICCPR does not require any person accused of hate speech to be criminally convicted, the State Party’s obligation to ban incitement to religious or racial hatred or discrimination does not imply mere prosecution “but an effective punishment of the conduct”. Therefore, the Committee in this case should not have confined itself to assessing, in general, whether the due process requirements were met, but should have considered all the facts in order to assess whether Wilders’ public remarks were in fact prohibited by Article 20(2).
Committee Members Yuval Shany and Sir Nigel Rodley partly concurred and partly dissented with the Committee’s decision. They agreed that there was no basis to find a violation of the Covenant, but stated that the Committee should have considered the entire case as inadmissible for non-exhaustion of domestic remedies because of the Complainants’ failure to bring civil proceedings against Wilders. Further, they registered their position that Article 20(2) “does not create an independent human right to be protected by legislation prohibiting hate speech.” [p. 24] Rather, the provision imposes an obligation on State Parties “to pass legislation in order to protect national, racial or religious groups against discrimination, hostility and violence.” [p. 24]
Committee Members Sarah Cleveland and Mr. Mauro Politi concurred with the Committee’s findings. They specifically agreed that the State Party’s obligation under Article 20(2) to “prohibit by law” does not imply that all conducts that fall within the provision must be criminalized. Instead, civil or administrative sanctions can be sufficient. They also stated that the required element for incitement is the speaker’s intent to provoke discrimination, hostility or violence. According to them, the Government of Netherlands had complied with the duty to “prohibit by law” by providing both criminal prohibitions and civil remedies and the Complainants had “no personal entitlement under [A]rticle 2(3) or any other provision of the Covenant to secure a successful criminal conviction.” [pp. 27-28]
Committee Members Anja Seibert-Fohr, Yuji Iwasawa, and Konstantine Vardzelashvil also concurred with the Committee’s decision. They said, “[w]ithout having tried to seek protection in civil proceedings which were available to [the Complainants], [they could not claim] their inadequacy just on the basis that they are civil in nature”.
Committee Member Olivier de Frouville generally supported the conclusions of the Committee on admissibility issues and agreed with a number of the reasons set out by the Committee on the merits. However, he disagreed with the Committee’s finding that the State Party had taken the necessary and proportionate measures to prohibit the impugned statements. According to him, the Committee should have taken its own independent assessment as to whether the Wilders’ characterization of the Complainants was accurate and, if so, whether the State Party had failed to fulfill its positive duty of “prohibiting by law” any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.
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