Legal Commentary

Part of Geert Wilders Trial in the Netherlands Closed to the Public

By Eugene Volokh

Could any of our readers who are familiar with Dutch law speak about this development:

[T]hree Islam experts proposed by [Dutch MP Geert] Wilders [in his defence against charges of discrimination and inciting hatred] will be heard behind closed doors, the judges said on Wednesday afternoon. They include American Syrian psychiatrist Wafa Sultan who believes the world is witness to ?a battle between modernity and barbarism which Islam will lose?....

Wilders has stated his case not only rests on freedom of speech legislation but on the fact that he is speaking the truth....

Wilders faces five counts of religious insult and anti-Muslim incitement. In January, the public prosecution department extended the prosecution case to include inciting hatred of Muslims, Moroccans and non-Western immigrants....

In the U.S., criminal trials must always public, with some very narrow exceptions that wouldn?t be applicable in such a case. The public is entitled to observe the trial, so as to better judge for itself whether the trial is proceeding fairly and whether the ultimate verdict is consistent with the evidence presented at trial. Is the Dutch tradition different?

I assume, by the way, that the court?s rationale is that the witnesses would themselves criticize Islam, which might be seen by some as itself constituting ?inciting hatred? of Islam and by extension of devout Muslims. Is that really a legally viable justification under Dutch law? Or am I misunderstanding the court?s rationale? [UPDATE: The assumption seems to be incorrect; see below.]

Thanks to Religion Clause for the pointer.

UPDATE: Commenter Martinned, who seems to know a good deal about Dutch law, reports:

Trials are held in public, except in cases determined by law. (art. 121 of the Dutch constitution.) However, given that ours is an inquisitorial system with no jury, this doesn?t get you as much as it would in the US. The judges also consider the criminal dossier, i.e. all the documents prepared in advance, such as documentary evidence, transcripts of interrogations, etc. Such things don?t have to be read into evidence somehow, they are evidence themselves.

(Just to clarify: the benefit of having the judges as the trier of fact is that they have to explain in their ruling why they found the facts that they did. That can be difficult, but at least it?s better than a guilty/not guilty verdict from a jury, where only the jurors know why they decided the way that they did. Especially in a controversial case like this one, the ruling will discuss the evidence, the facts and their connection to the elements of the crime in some length.)

As for the grounds upon which part of the testimony was closed off to the public, there is this ruling (in Dutch) concluding the ?regiezitting?, i.e. the case management session. The most notable aspect of it was, at least to the Dutch press, that most of the witnesses Wilders wanted to hear, including a couple of Iranian ayatollahs, have been rejected. (Not probative to the case, etc.)

The three witnesses you mention are the islam specialists who have not been rejected as experts. (According to the court, their testimony will suffice, without any need for hearing a dozen more people.) The fact that they are heard behind closed doors is not as such the point. The point is that they are not heard by the court, in open court, but by a ?rechter-commissaris?, a ?judge-commissioner?. That is normally the way this is done. That way, the witness can speak to their heart?s content, calmly, whenever it is convenient for them, away from the court buildings if necessary, via teleconferencing if necessary, etc. Such ?depositions? are chaired by a judicial officer, with the ?judge-commissioner? and the parties asking questions, but is not ?in court? as such. The transcript simply becomes part of the official record.

In this case, the defendant has an obvious interest in making the entire proceeding as public and TV-friendly as possible. The court, however, declined to deviate from ordinary practice. Part of the reason for this is that the relevance of what these people have to say still has to be established. (The court has not yet decided whether they can be considered ?experts? in the sense of the Code of Criminal Procedure.)

Unfortunately, I couldn?t find a translation of the relevant legal provisions. I did come across art. 269(1) of the Code of Criminal Procedure, which states the reasons why a trial might be held wholly or partially behind closed doors: ?public morality, public order, security of the state, the interests of minors, and the privacy of the accused, other parties or others involved in the case.? In addition, the trial can be closed to the public if this is necessary to guarantee a fair trial.

I assume, by the way, that the court?s rationale is that the witnesses would themselves criticize Islam, which might be seen by some as itself constituting ?inciting hatred? of Islam and by extension of devout Muslims. Is that really a legally viable justification under Dutch law? Or am I misunderstanding the court?s rationale?

That is not the case. I?m not sure if there is an explicit legal provision to this effect, but I highly doubt that anyone can be prosecuted for what they said on the stand, and I don?t think anything they might say would rise to the point where ?public morality? or ?public order? is in play....

The transcripts are available at the court clerk?s office, but I?m not sure whether they are accesible to all. They certainly aren?t released to the general public.

Many thanks for the explanation!

Full post as published by The Volokh Conspiracy on February 05, 2010 (boomark / email).