Legal battle over banner texts (scroll down for
the verdict in the case)
By Jeremy
In response to the fire nearly a month ago
which killed 11 'illegals' in a deportation prison, cloth banners
and posters have appeared en masse on the front of buildings in
Dutch cities criticizing Rita Verdonk, minister of alien affairs
and integration. But the removal by overwhelming police force of
several banners and posters has raised vital questions of freedom
of speech in an era of 'terrorism' paranoia.
On October 27, a fire raged through a prison on the edge of Amsterdam
Schiphol airport. The prison, which held illegal immigrants awaiting
deportation, was a rickety construction of shipping containers.
It had none of the technology generally considered to be required
for safety in a prison, such as centrally-controlled automatic locking
and unlocking of the cell doors. As such, it took guards more than
10 minutes to reach all of the cells to manually unlock them, and
eleven prisoners perished in the fire.
In Parliament, the two responsible ministers were bombarded with
questions. Piet Hein Donner, the minister of justice, is responsible
for all detention facilities in the Netherlands. Rita Verdonk is
minister of alien affairs and integration, a ministerial post created
at the behest of the right-wing Pim Fortuyn Party during its brief
spell in power in 2002. She is a member of the right-liberal VVD,
currently the party making the most political hay from a hardline
anti-immigrant stance. Her ministerial portfolio is all policy concerning
aliens, including enforcement of immigration laws and deportation.
It was Verdonk's icy response to the parliamentary questions that
caused an outrage: the conditions that the prisoners had been kept
in, as well as the response to the fire by the guard staff, had
been "adequate". This only one day after the fire, before
any investigation of the "adequacy" had been carried out.
There soon appeared banners on the front of numerous houses in Amsterdam
with texts such as "Verdonk, still no blood on your hands?",
"11 burned alive, thanks Rita", and "11 innocently
detained, dead by guilt". On November 5, two buses of police
in riot gear pulled up in front of a squat on the Bilderdijkstraat
in Amsterdam, forced their way in with a battering ram and tore
down the squat's banners after running roughshod over the residents
and their belongings with clubs and pepper spray. Two residents
were arrested, but were released without charge shortly afterward.
On November 6, it was the turn of a squat on the Amstel river to
get the same treatment, all in the name of removing the banners.
It was a particularly surreal scene for a squat on the Prins Hendrikkade:
claiming to have seen someone standing on the roof firing a gun,
police arrested all of the residents, blindfolded them, and whisked
them away. It turned out that the "gun" had been a rechargeable
drill one of the residents had been using in hanging up the banners.
Again, all involved were released without being charged.
Mayor Job Cohen defended the actions of the police, which had been
decided upon in the so-called 'triangular conference' of the mayor,
the local public prosecutor, and the local police chief. On the
local TV news, he asserted that the banners were "defamatory,"
implying that the actions had been legal enforcement of the article
of the penal code outlawing defamation. Another implicit basis for
the actions had been the fact that a window in minister Verdonk's
office at the Ministry of Justice in The Hague had been shattered
on Nov. 2. At the time it had been assumed that a gunshot had been
fired at the window, an assumption which was propagated into international
newswire reports about the rise of "terrorist activity"
in the Netherlands. Later forensic analysis would show that it was
not a bullet, but more likely an errant bird.
The fact that none of the suspects had been charged
was still puzzling, even after some had gone to the police to file
charges against themselves. Meanwhile, ever more banners were sprouting
all over the Netherlands, as well as a new poster: "Travel
agency Rita: arrest, deportation, cremation; adequate to the bitter
end". Police removed the poster from the front window of a
cultural center in Nijmegen, and arrested an activist at the moment
he unrolled the poster in front of TV cameras.
Meanwhile, at a public meeting of the General Affairs committee
of the Amsterdam city council, Cohen continued to defend the police
actions, even in the face of strong criticism from a number of council
members. He insisted that he would prosecute for defamation so that
the courts could clear up once and for all whether the texts were
illegally defamatory or not.
Noted scholar of constitutional law and dean of the law school at
the University of Amsterdam, Jit Peters, gave his assessment on
TV: "Politicians have to be able to stand up to criticism.
The texts start a discussion about something, in this case Verdonk's
policy. It is often the case that you can only start a discussion
by shocking people. Taking the banners down violates individual
rights." The European Court of Human Rights in Strasbourg,
the highest court for matters of civil rights to have compulsory
jurisdiction over the Netherlands, has in fact repeatedly ruled
for the acquittal of persons who had been prosecuted for defamation,
especially when the object of the supposed defamation had been political
figures. The only types of speech pertaining to political figures
which can arguably be restricted are incitement to violence and
statements which are patently untrue and attack the political figure
as a private person. Neither of those cases applies to the texts
in question.
The squatters of the Bilderdijkkade and the Amstel and the volunteers
of the cultural center in Nijmegen were not going to wait for criminal
prosecution to get an answer from the courts: they filed a lawsuit
against (ultimately, after several changes) the Dutch state, specifically
the office of public prosecution, and the municipality of Amsterdam.
In the lawsuit they asked the court to specifically ban the mayor
and the public prosecutor from forcibly removing banners with the
texts referring to Rita Verdonk or the 'travel agency' posters.
During the trial on November 18, the attorney of the state indicated
that the department of public prosecutions was "at this time"
no longer planning to take action against the banners, having decided
that the texts were not defamatory after all. The plaintiffs' attorney
and the judge pressed the attorney of the state to specify what
"at this time" means: in what way would the circumstances
have to change again for the texts to be considered defamatory?
But the attorney of the state refused to go into specific details.
The attorney of the state did, however, indicate that the office
of public prosecutions still considered the text of the poster to
be defamatory. Ironically, he claimed that the photo on the poster
of people behind barbed wire, "referring to a darker chapter
of history", played a decisive role in rendering the poster
defamatory. In fact, the photo was a purely factual, unmanipulated
photo of the deportation prison during the fire, taken from the
front page of a reputable national newspaper.
The attorney of the mayor's office only took the curious position
of asserting that the mayor had not been at all responsible for
the removal of the banners.
The results of any criminal cases to come will be even more interesting.
It is expected that the activist arrested in Nijmegen will come
to trial in January. As yet, no one has been prosecuted in the cases
of the Amsterdam banner removals. Even though Rita Verdonk herself
has claimed to have filed charges, it is suspected that the office
of public prosecutions has decided to apply the 'principle of opportunity',
a precept of Dutch criminal law that the prosecutor is free to refrain
from prosecution if he considers it to be inopportune. That would
be frustrating indeed for the course of justice. Because it is the
lawless behavior of the police and the public prosecutor that is
most in need of close scrutiny by the courts. Their behavior was
a blatant violation of article 6 of the ECHR, which guarantees a
fair trial by an independent, impartial judge prior to punishment.
The district court of Amsterdam pronounced
its ruling on the 24th of November 2005 in the lawsuit brought by
activists who had had banners and posters removed by force: their
rights were violated.
The text of the court ruling in Dutch is available
at http://zoeken.rechtspraak.nl/zoeken/dtluitspraak.asp?searchtype=ljn&ljn=AU6828&u_ljn=AU6828
.
As expected, the court did not issue a ruling about the texts of
the banners, since both parties had agreed that there was no immediate
danger of them being forcibly removed. (paragraph 5)
The court did, however, give a detailed assessment
of the text of the poster ("Travel Agency Rita; arrest, deportation,
cremation; adequate to the bitter end"), whose "defamatory"
nature was disputed by both parties.
The removal of the poster was without a doubt a violation of article
10 of the European Convention on Human Rights, protecting the freedom
of expression. Paragraph 2 of article 10 lists the reasons that
can be given to justify such a violation (7)
One of those reasons is the prevention of crimes. Since the Dutch
state acted to prevent specific crimes, namely libel, slander or
insult, this was a valid reason (8,9)
But the most important question that the ECHR asks is: was the violation
necessary in a democratic society? At this point the court issues
a surprisingly scathing indictment of the treatment that the detainees
in the prison fire endured at the hands of the Dutch state. This
treatment, says the court, is the cause of the ensuing societal
unrest. (10)
The court fails to understand why you should only be allowed to
criticize the government and its policy and not the ministers who
are responsible for it. A politically responsible person has to
be able to put up with greater criticism than an ordinary citizen.
The poster, with its use of the minister's own word "adequate"
and (implicit) reference to a concentration camp, was clearly aimed
to shock. Even speech that shocks and disturbs is covered by the
freedom of speech, ESPECIALLY in a heated public debate such as
this one. (11)
Nevertheless, the office of public prosecutions is free to prosecute
a case of defamation, even if this case will probably not lead to
a conviction. In a case such as this one, where the opinions are
so divided, it is especially important that the office of public
prosecutions not simply confiscate the poster, but bring the matter
before a criminal court as expeditiously as possible. One suspect
[in Nijmegen] is already being prosecuted, why not [plaintiff #3
in this case]? He already turned himself in and admitted to it.
If he hangs up the poster again, then that can be taken into account
during his criminal trial-- it is unnecessary to remove the poster
again. (12)
It is therefore UNNECESSARY IN A DEMOCRATIC SOCIETY to remove the
poster, and the State is forbidden from doing so again until the
criminal court has had its say. (13)
ANALYSIS:
Although there was some initial disappointment on the part of activists
that the court did not try to pin the State down on what the change
of circumstances would have to be before it would try to remove
the banners again, it should be clear from the Amsterdam district
court's assessment that that the State and the mayor have very little
wiggle room. The State and the mayor seemed to imply that if the
debate surrounding Rita Verdonk got any more heated, then it would
justify cracking down on speech once more.
The court refuted this in paragraph 11: it said that this type of
speech is all the more necessary and protected in the context of
a heated debate. If anything, the debate would have to cool down
or become irrelevant before the State or the mayor could try to
get away with another crackdown.
It is also relevant that the court did not give the State carte
blanche to decide what sort of crimes it intends to prevent by violating
freedom of expression. The State seemed to imply that paragraph
2 of article 10 of the ECHR allowed it to violate freedom of speech
to prevent any crimes that might ensue from the speech (rioting?
murder? shoplifting? bicycling at night without a taillight?), but
the court restricted the prevention of crimes to the suspected offenses
at hand: libel, slander, or insult.
*Deze
website is helaas nog in aanbouw en dus nog niet volledig*
