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Netherlands: Legal battle over banner texts
jeremy - 20.11.2005 15:12
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. (photos of the remembrances organized for the prisoners in the ensuing days)
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 Amsterdam district court will give its ruling on Thursday, November 24. It is hoped that the ruling will contain an assessment of the "defamatory" content of the texts, emphasizing that they are covered under all circumstances by the freedom of expression protected by article 10 of the European Convention on Human Rights and Fundamental Freedoms.
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.
 E-Mail: jeremy@squat.net
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| Read more about: vrijheid, repressie & mensenrechten | | supplements | | court ruling? | clara - 22.11.2005 12:54
Will the court ruling be given in a court sitting, or will it just be sent to the lawyer?
| | ruling | jeremy - 22.11.2005 14:15
As far as I know, it will be sent by courier to the lawyer, not pronounced in a public sitting, since this was a kort geding: a special type of accelerated civil procedure.
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