Friday, February 06, 2009

Wilders' appeal without merit?

Penal Code authorities dismiss merit of Wilders' appeal

Two Dutch Penal Code full professors argue that the recent attempt by Freedom Party leader Geert Wilders (Dutch) to have the prosecution against him cancelled, will fail.

Full professors Ybo Buruma and Gerard Mols argue that Geert Wilders' "appeal in the interest of the law" has no merit.

Mr. Buruma and Mr. Mols argue that an "appeal in the interest of the law" can be made to maintain the unity of the law. And usually there is no interested party in such cases. Mr. Bram Moszkowicz who is now appealing as Geert Wilders' laywer has succesfully made a similar appeal on behalf of Desi Bouterse a Surinamese former dictator responsable for murdering dissidents in the former Dutch colony. In that case the defendant wás an interested party. But it was argued that a Dutch Court has no jurisdiction over crime cases that happened abroad. The "appeal in the interest of the law" was successful in tearing up the case against the Surinamese dictator.

This will not stand in the Wilders case though. Wilders critizised Islam in The Netherlands. Dutch Courts of course have jurisdiction on Dutch territory. Furthermore there is no danger against the unity of the law, as Wilders may appeal to a verdict to the High Court in due course.

Defense of the Appeal of Mr. Wilders

It would seem that Mr. Moszkowicz argues that the appeal wíll stand, as he states that it is a "miscarriage of justice" and "a highly particular and fundamental matter, namely free speech".

It seems that Mr. Moszkowicz does not address the criticism of Professors Ybo Buruma and Gerard Mols that this matter does not constitute a threat against the unity of law.

On the other hand "appeal in the interest of the law" can also be initiated for issues that are described as "current". The "Procureur-Generaal" is the official of the High Court who has to judge whether he will grant the appeal "in the interest of the law". Whether he will do so remains to be seen.

Possible political interference in the case in favour of Wilders'?

It appears to me that the "Procureur-Generaal" will indeed judge Mr. Moszkowicz' appeal to have enough merit. Especially as political power and the power of the Judiciary mesh into one at this level. The political establishment has to compete for votes with Geert Wilders and with the prosecution against Wilders his electoral appeal has increased. The Amsterdam Court of Appeal has framed the Judicial and Political establishment in a situation where they look like a Goliath crushing a hapless Geert Wilders in the role of David.

The advantage here is on the side of David and not on the side of Goliath as history shows time and time again. The establishment will lose credibility and Geert Wilders stands to gain hugely.

Why does Geert Wilders do this?

This is why I do not fully understand Geert Wilders' decision to appeal against his prosecutions. It seems a political miscalculation. Possibly borne from Geert Wilders' strong sense of Justice or otherwise from a lack of funds to be able to bear the legal costs of a drawn out legal battle. This legal battle is estimated to take two years.

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