Wilders not prosecuted for ‘Fitna’ and statements
The Dutch Public Prosecution Service is of the opinion that statements made by Mr Wilders in de Volkskrant of August 2007 and his film Fitna are not punishable. He will not be prosecuted for this reason. The fact that statements are hurtful and offensive to a large number of Muslims does not necessarily mean that such statements are punishable. It is true that some statements insult Muslims, but these were made in the context of public debate, which means that the statements are no longer of a punishable nature. The Public Prosecution Service has also concluded that there is no liability to punishment for inciting hatred or discrimination.
Mr Wilders made his statements in de Volkskrant of 7 October 2006, in de Volkskrant of 8 August 2007, in the daily newspaper De Pers of 19 February 2007, and in a column on the Internet. The Public Prosecution Service received over 40 criminal complaints about these statements. Across the country, some dozens of complaints were filed against the film Fitna, which had been released on the Internet on 27 March 2008. The Public Prosecution Service has based its decision on Mr Wilders’s statements and film partly on the advice rendered by the National Discrimination Expertise Centre (LECD).
This centre has been attached to the Public Prosecution Service in Amsterdam since 1998. The decision of the Public Prosecution Service has been some time coming because a large number of complaints had to be assessed. Besides, balancing the freedom of expression and the punishability of discrimination is a complicated job. The Public Prosecution Service has examined both national and European legislation and has also sought external advice to this end.
In assessing punishability under the discrimination sections, the Public Prosecution Service considers the wording of the statement, the context in which it is made and the degree to which it is offensive. A statement is punishable only if, objectively speaking, it is discriminatory. This means that statements are not automatically punishable because those involved perceive them as hurtful or offensive.
If, objectively speaking, a statement is insulting or discriminatory, it may not be punishable if it is made in a public debate context. In a public debate, statements may be shocking, sharp or offensive, but this alone does not make them punishable.
Mr Wilders is a politician and he made his statements in the context of political debate on Islam. The European Court of Human Rights has decided that there should be ample room for firm statements in public debate. Freedom of speech plays an essential role in public debate in a democratic society. This means that in a political debate, people may make insulting statements that are hurtful and shocking to specific groups without these statements being punishable. Mr Wilders issued his statements in the context of political debate. As a result of this context, the statements are not punishable in this case.
Even public debate statements may not be unnecessarily offensive, however; they may not be more offensive than is justified by the content of the debate. The Public Prosecution Service takes the view that this is not the case with respect to the statements made by Mr Wilders, nor with respect to the film.
In addition, by means of the relevant statements and the film, Mr Wilders criticizes Islam. Criticism of religion is not covered by the prohibition of discrimination, unless this criticism includes insulting conclusions about the adherents of the religion concerned. The Public Prosecution Service is of the opinion that neither the film Fitna nor Mr Wilders’s statements include such insulting conclusions.
The Public Prosecution Service has also assessed whether Mr Wilders’s statements and film incite hatred against Muslims. This might be the case if the statements create a divide marked by conflict between Muslims and Dutch society in an inflammatory manner. Possibly, Mr Wilders paints a picture of a divide between the religion of Islam and Dutch society, but not necessarily between Muslims and Dutch society. Consequently, the Public Prosecution Service arrives at the opinion that neither the film Fitna nor Mr Wilders’s statements incite hatred against Muslims.
By now, the complainants and Mr Wilders have been informed of the decision of the Public Prosecution Service. Interested parties who disagree with this decision may lodge an objection with the Amsterdam Court of Appeal.