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Netherlands: Court condemns removal of texts
jeremy - 24.11.2005 23:46
The district court of Amsterdam pronounced its ruling today in the lawsuit brought by activists who had had banners and posters removed by force: their rights were violated.
(This report is a follow-up to  http://www.indymedia.nl/nl/2005/11/32422.shtml , posted separately.)
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.
 E-Mail: jeremy@squat.net
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