Violation in relation to the State party’s obligation to ‘prohibit by law’ in relation to incitement of national, racial or religious hatred as per Article 20 (2) ICCPR not recognised.
Incitement to racial or religious hatred by a politician.
Between 2006 and 2009, the police received hundreds of reports from individuals and organizations concerning insults and incitement to discrimination, violence and hatred by Geert Wilders, a Member of Parliament and the founder of the extreme right-wing political Party for Freedom. However, the public prosecutor decided not to prosecute Mr.Wilders, arguing that his statements were not criminal but fell within the space granted by freedom of expression in public debate. The prosecutor issued a letter to all those who had reported Mr Wilders’ statements to the police explaining that no prosecution would take place because the reported facts were not liable to punishment under the Criminal Code.
(This includes reference to the specific law in question and the provision of the said law)
FoRB violation – Incitement to racial or religious hatred by a politician.
The State party in this case had a robust civil and criminal law framework in place to prohibit speech addressed by Article 20(2), both through criminal prohibitions and civil remedies and pursued a criminal prosecution against Mr.Wilders before an independent court. The authors pursued the remedy they preferred –an action civile that depended on the success of the criminal proceeding, with its heightened standard of proof and standard for criminal incitement –and did not pursue the independent avenue for civil remedies available to them. Criminal penalties are not mandated by article 20(2), and the authors had no personal entitlement under article 2(3) or any other provision of the Covenant to secure a successful criminal conviction. Under these circumstances, the authors have not demonstrated that the State party violated its obligation to “prohibit by law” the “advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence” under article 20(2) in conjunction with article 26. Nor have they demonstrated that it failed to provide them with a remedy for such violation.
(1) the Committee noted that ‘article 20 (2) secures the right of people as individuals and as members of groups to be free from hatred and discrimination under article 26 by requiring States to prohibit certain conduct and expression by law. It is only with regard to the specific forms of expression indicated in article 20 that States parties are obliged to have legal prohibitions. Article 20 (2) is crafted narrowly in order to ensure that other equally fundamental Covenant rights, including freedom of expression under article 19, are not infringed. The Committee recalls in this regard that freedom of expression embraces even expression that may be regarded as deeply offensive. Moreover, the free communication of information and ideas about public and political issues between citizens, candidates and elected representatives is essential to the promotion and protection of free expression’.
(2) The Committee also stated that ‘articles 19 and 20 are compatible with and complement each other. A prohibition that is justified on the basis of article 20 must also comply with the strict requirements of article 19 (3).25 Thus, in every case, measures of prohibition under article 20 (2) must also be “provided by law”; they may only be imposed for one of the grounds set out in subparagraphs (a) and (b) of article 19 (3), and they must conform to the strict tests of necessity and proportionality’.
(3) The Committee held that ‘the State party has taken the necessary and proportionate measures to “prohibit” statements made in violation of article 20 (2) and to guarantee the right of the authors to an effective remedy in order to protect them against the consequences of such statements. The obligation under article 20 (2), however, does not extend to an obligation for the State party to ensure that a person who is charged with incitement to discrimination, hostility or violence will invariably be convicted by an independent and impartial court of law. The Committee therefore cannot conclude that the State party violated article 2 (3), read in conjunction with articles 26 and 20 (2) of the Covenant’.