Geert Wilders Wins a Retrial in Dutch Anti-Islam Case

by Soeren Kern

In a stunning turn of events, a Dutch court has summarily removed the judges presiding over the anti-Islam hate-speech trial of Geert Wilders, after it emerged that one of the judges attempted to influence an expert witness before the trial. A hastily convened judicial panel agreed with Wilders that the judges were biased against him and ordered a retrial, sending the closely-watched case back to square one before an entirely new panel of judges. Wilders, who has called the trial a farce, a disgrace and an assault on free speech, welcomed the decision, saying: "This gives me a new chance with a new fair trial."

Wilders is facing five charges of inciting racial and religious hatred for remarks which include equating Islam with fascism and others calling for a ban on the Koran and a tax on Muslim headscarves. Viewed more broadly, however, the Wilders trial represents a landmark case that likely will establish the limits of free speech in a country where the politically correct elite routinely seek to silence public discussion about the escalating problem of Muslim immigration.

The Wilders trial, which began at the Amsterdam District Court on October 4, was scheduled to end on October 22, with the verdict from the panel of three judges due on November 5. But the trial unexpectedly collapsed in disarray on its final scheduled day of hearings after Dutch newspapers reported that Tom Schalken, one of the judges who ordered Wilders to stand trial, had dinner with Hans Jansen, a leading Dutch expert on Islam who also happens to be a defense witness. Jansen said that Schalken had improperly tried "to convince me of the correctness of the decision to take Wilders to court." (An English-language translation of Jansen's accusations can be found here.)

After the allegations came to light, Bram Moszkowicz, Wilders's lawyer, asked the court to summon Jansen, but Moszkowicz was refused. In response, Moszkowicz formally protested that the judges were biased against the defendant and should be dismissed; he also called Schalken's contact with Jansen "scandalous."

A separate review panel was then convened to consider Moszkowicz's complaint, which it upheld by ordering a retrial with new judges. Judge G. Marcus said the panel understood Wilders' "fear that the court's decision displays a degree of bias ... and under those circumstances accepts the appeal." The highly unusual event means that it is likely to be many months before a new trial can be held.

Moszkowicz had previously sought to have the judges removed on the opening day of the trial after one of them passed comment on Wilders's decision to make use of his right to remain silent during the proceedings. But that complaint was dismissed.

On October 15, midway through the trial, the Dutch Public Prosecutor's office argued that there was no case against Wilders and that he should be acquitted. Amsterdam public prosecutors Birgit van Roessel and Paul Velleman testified in court that Wilders was not guilty of discrimination against Muslims and inciting hatred against them.

Van Roessel and Velleman said that "comments about banning the Koran can be discriminatory, but because Wilders wants to pursue a ban along democratic lines, there is no question of incitement to discrimination 'as laid down in law.'" Regarding Wilder's comparison of the Koran with Adolf Hitler's book Mein Kampf, the prosecutors called it "crude, but that did not make it punishable." In any case, they said, the comparison did not originally come from Wilders, but from the late Italian writer Oriana Fallaci.

The prosecutors also argued that Wilders had spoken out not against Muslims per se, but against the threat to Dutch society posed by the growing assertiveness of Islam in Dutch political and social life. The judges dismissed all of the prosecutors' recommendations out of hand.

In June 2008, Dutch prosecutors had initially refused to bring charges against Wilders, arguing that he was protected by the right to free speech. But in January 2009, they were overruled by an appeals court led by Judge Tom Schalken, who ordered that Wilders be charged for "sowing hatred."

During the trial, Moszkowicz rejected the accusations of hate speech against Wilders and urged judges not to "shoot the messenger." He told the court that Wilders is a straight-talking politician seeking to prevent Koran-inspired violence. "Regardless of the danger to his own life, he speaks about the dangers he sees around him that result from immigration," Moszkowicz told the court. "In his eyes, Islam is a totalitarian ideology."

Moszkowicz cited the right to freedom of speech: "Wilders's conscience dictates that he does not close his eyes ... dictates that he places this discussion on the political agenda. As a politician, Wilders does not have to be silent." Wilders "has criticism, and expresses that criticism. Regardless of the danger to his own life, he speaks about the dangers he sees around him that result from immigration."

Moszkowicz also countered accusations by critics who say that Wilders's call for banning the Koran is inconsistent with his defense of the freedom of speech. He told the court that Article 132 of the Dutch Penal Code prohibits books that "incite to violence." He asked if books such as Mein Kampf can be banned under that article, why not another book that manifestly incites its readers to violence and hatred? Moszkowicz said that as long as the Netherlands has such laws, Dutch authorities should apply them consistently and not selectively based on politically correct considerations.

Reacting to the court's decision to order a new trial, Wilders said: "I am confident that I can only be acquitted because I have broken no law but spoke the truth and nothing but the truth, and exercised my freedom of speech in an important public debate about the dangerous totalitarian ideology called Islam."

(In a March 2009 interview with Jeff Jacoby of the Boston Globe, Wilders summed up his views about Islam: "I have nothing against the people. I don't hate Muslims. But Islam is a totalitarian ideology. It rules every aspect of life -- economics, family law, whatever. It has religious symbols, it has a God, it has a book -- but it's not [only] a religion. It can be compared with totalitarian ideologies like Communism or fascism. There is no country where Islam is dominant where you have a real democracy, a real separation between church and state. Islam is totally contrary to our values.")

Wilders has also articulated what is at stake in this case: "I am being prosecuted for my political convictions. The freedom of speech is on the verge of collapsing. If a politician is not allowed to criticize an ideology anymore, this means that we are lost, and it will lead to the end of our freedom."

Soeren Kern

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