Content Regulation / Censorship, Hate Speech, Public Order, Religious Expression, Political Expression
Gündüz v. Turkey
Closed Contracts Expression
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The Hague Court of First Instance convicted Dutch right wing politician, Geert Wilders, of inciting discrimination and insult.
Mr. Wilders had led an anti-Moroccan chant during a political rally in which he asked a series of pre-orchestrated questions designed to elicit anti-Moroccan responses.
The Court found that the statements made by Mr. Wilders were offensive and insulting to a minority and amounted to inciting discrimination against Moroccans, but that they were not strong enough to amount to hate speech. Further, the Court reasoned that it was an unusual case because Mr. Wilders was a democratically elected Member of Parliament and founder of a political party, PVV (the Party for Freedom), and therefore found it sufficient to declare him guilty without imposing a fine or sanction.
Following his conviction, Wilders issued a press release saying he would appeal.
On 12 March 2014 the Dutch politician Geert Wilders and several members of his party, PVV, also known as The Freedom Party, visited a market in The Hague. Part of their visit was broadcast on national TV and Geert Wilders said that his party would make the city more safe, more sociable, and if possible, make it a city with fewer Moroccans. When later confronted with his statement Wilders held that he had merely referred to criminal Moroccans and Moroccans receiving benefits from the state.
On 19 March 2014 the Freedom Party held an election rally at Café De Tijd in The Hague. During the meeting, Geert Wilders held a speech which was recorded and broadcast on TV. In his speech he stated: “Before I go, I would like everyone here to answer the following three questions. Three questions, please give a clear answer which defines our party, the PVV. Do you want more or less European Union?” The crowd present repeatedly shouted “less”. Wilders then went on to pose the second question: “Do you want more or less Labour Party?” The crowd again shouted “less”. Wilders continued: “And the third question is, and actually I’m not allowed to say it, because you get reported to the police, and maybe there are even D66 prosecutors who will launch a case, but freedom of expression is a great good and we haven’t said anything that isn’t allowed, we haven’t said anything that’s incorrect, so I ask you: do you want more or fewer Moroccans in this city and in the Netherlands?”. The crowd repeatedly shouted “less”. Geert Wilders then concluded his speech with the words: “Nah, we’ll arrange it”.
At the election meeting a coordinator (witness 3) from the PVV had been aware that Wilders would ask the public whether they wanted fewer Moroccans. The coordinator had been asked (by witness 4) to instruct the public in advance of the question and answer. Before the speech witness 4 had heard Geert Wilders emphasize that it should be as strong as possible so the content would be picked up by the press and broadcast. The legal implications of the speech had not been discussed. The issue of including the topic of Moroccans or criminal Moroccans was discussed and there was some concern whether there would be a prompt response from the public. This was the reason why witness 4 called witness 3 and asked him to ensure that a proper interaction would take place.
 Democrats 66 – a political party in the Netherlands.
The Hague Court of First Instance in its verdict addressed the fact that Geert Wilders had repeatedly expressed his surprise about being prosecuted. Wilders claimed that he had simply posed a question to the public. However, the Court noted that according to the witness statements he had done more than just asking a question, because the answer from the public had been pre-orchestrated.
The Court went on to assess whether the present case concerned hate speech on race as defined in the Dutch Penal Code Articles 137c and 137d. It referred to the International Convention on the Elimination of All Forms of Racial Discrimination of 1966 (ICERD). The implementation of ICERD had resulted in a modification of the Penal Code. In an explanatory memorandum the government had found that the concept of ‘race’ should be interpreted according to the ICERD, hence the term ‘racial discrimination’ should mean ‘any distinction, exclusion, restriction or preference based on race, color, descent, or national or ethnic origin.’ The Court found that the legal meaning of the term ‘race’ is much broader than the meaning of the term in the Dutch language and science in general. Geert Wilder’s statements were directed against a group of countrymen that he clearly distinguished from other ethnic groups in the Netherlands by referring to their common Moroccan origin. The Court found that ‘national or ethnic origin refers to persons who have a bond with a national state or territory because they come from the same country or region, share a common history, common traditions, a common culture and/or have a common language. In the present case the Court concluded that the term ‘Moroccans’ used by Geert Wilders fell within the ICERD’s definition and therefore also the Dutch Penal Code Articles 137c and 137d.
In order to determine whether the alleged group fell within the meaning of Article 137c of the Penal Code the Court applied the following cumulative criteria:
i) Was the content of the statement insulting?
ii) The context of the insulting comments;
iii) Was the statement unnecessarily offensive?
Concerning the first criterion the Court noted that the entire Moroccan population had been ‘dismissed’ and presented as inferior to the Dutch. Because of the rhetorical way of posing his question, Wilders had been aware of the answer. He had deliberately chosen to say “Moroccans” and not limited his statement to e.g. criminal Moroccans. After his statements on 12 March 2014, 24 people had brought charges against Wilders. He therefore ought to have been aware of the offensive nature of his statements on 19 March.
Concerning the question of the context in which the statement was made, the Court referred to Article 10 of the European Convention on Human Rights when noting that freedom of expression of politicians is especially well protected. However, due to their important social function politicians should avoid public utterances that feed intolerance. In this regard it is also important to look at the platform on which the statement is given. In the present case the statements on 19 March 2014 were made at a time when Wilders was sure that audiovisual media would broadcast them on national television. The Court noted that the European Court of Human Rights will give more weight to freedom of speech in respect of statements made and broadcast during a debate in which several participants can give their points of view. In the present case the statements were not made during a debate but were directed at supporters and everyone that Wilders hoped to reach through the media. Furthermore, the audience had been given instructions on how to answer to the questions posed.
Balancing the right to freedom of expression with the right to restrict it, the Court found that Geert Wilders had chosen to insult a minority (Moroccans) in order to get the greatest impact possible when his speech was broadcast. The questions posed were seditious and inciting and no contribution was made to a public debate (concerning integration and immigration). In these circumstances it was irrelevant that Wilders, after he left the stage later, gave a more detailed explanation. The message had already had the effect that Wilders intended it to have. Given these facts, the Court found it unnecessary to look at the third criterion, namely whether the statement was unnecessarily offensive. The court noted that case law from the European Court of Human Rights permits the restriction of freedom of expression in cases where politicians target a minority group as had been done in the present case. The Court found that while the statements made by Wilders on 19 March 2014 were not strong enough to amount to hate speech, they did amount to inciting discrimination against Moroccans.
However, the Court held the statements made on 12 March 2014 did not incite discrimination, because they came across as impulsive rather than calculated (according to several witnesses).
In conclusion the Court found that Geert Wilders, in his statements on 19 March 2014, had contributed to a further polarization in Dutch society. He was thus guilty of inciting discrimination. However, the case was unusual in that the defendant was a democratically elected Member of Parliament and founder of the political party PVV. Therefore the Court found it sufficient to declare Wilders guilty without imposing a punishment.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Court’s decision finding Wilders guilty of inciting discrimination and insult contracts freedom of expression which, according to international standards, includes expression that may be regarded as deeply offensive. On a practical level the decision risks having a counter-productive effect by portraying Wilders as a martyr and champion of free speech despite his insulting and offensive views.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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