null A debate on judges' personal opinions: another sequel to the Wilders trial

A debate on judges' personal opinions: another sequel to the Wilders trial

Webcolumn Rechtswetenschappen - by Evert Stamhuis - September 2011

Judges are legal professionals. All those professionals have personal opinions. They are intelligent human beings, aren't they. How much room there is to ventilate these personal opinions was debated in various Dutch weblogs the past two weeks, as a sequel to one of the more media sensitive twists of the Wilders trial: the extensively broadcasted examination of an appeal court judge. That judge, Tom Schalken, was previously involved in the Wilders case and was called by the defense to be examined as a witness on some events. I will explain his position in further detail later on; at first some basics on the Wilders case.

Geert Wilders, a member of Dutch parliament and a winner of the last general elections, was prosecuted for having incited violence, hatred and discrimination against Muslims in the course of his populist political campaign. The case followed an abnormal trajectory to the criminal court of Amsterdam. Muslim organizations and interest groups had filed a criminal complaint, on which the prosecution service had decided not to proceed. The complainants then successfully used the avenue offered by art. 12 of the Dutch Code of Criminal Procedure. On their request the Court of Appeal overruled the prosecution's decision and ordered the case to be brought before the competent criminal court. All this received of course high profile media coverage, cleverly exploited by mr. Wilders and his attorney Bram Moszkowicz, two personalities very ‘at home' in the media.

The case itself ended in an acquittal recommended by both parties, but before the verdict was issued the examination of some witnesses had attracted extra attention. A member of the appeal chamber that had issued the order, Tom Schalken, also a well reputed criminal law professor for many years, was summoned to be examined in open court. The defence had raised the question whether this senior appeal judge had tried to influence an expert witness in the case, who would be called to court to disclose his knowledge on the Muslim faith and people. They had met at a dinner party a few days before the trial started. Schalken was suspected to have emphatically defended the appeal court's order in front of this expert, supposedly trying to win him over to a prejudice against Wilders.

How irrelevant to the outcome of the Wilders trial it may have been, the defence's examination of this Schalken was not a pleasant spectacle on TV. Not surprisingly Schalken was very unhappy with the way in which he was ‘grilled' by the defence attorney Moszkowicz. He complained about the lack of proper direction from the court president and the full and unedited TV coverage of his performance; TV cameras being quite uncommon in Dutch court rooms. He voiced his objections with undeniable bitterness in a book published after his resignation from office as appeal court member. That book was reviewed by another member of the same appeal court, who - according to the press - suffered repercussions from the appeal court president for a benevolent approach. All this fuelled the debate whether participating in public debate is acceptable for members of the judiciary, yes or no. <> This question is stupid in its simplicity. There is no yes or no answer in this matter. A strong professional judiciary as the Dutch can cope with its members participating in debates of a public or academic nature. Many members have academic affiliations or give lectures on legal topics, they publish in academic law reviews, in the judiciary's own periodical or even in the public media. There is no problem when these opinions occasionally can be read as critical, for example to previous court decisions. Legal development depends on a proper debate, in which we do not want to miss a judges' perspective. But, these highly educated persons are also members of a professional organization and bound by law to uphold the interests of that organization in society. As my employer, the Open University, requires me to observe the interests of that organization in my public performance, so can the courts; even if that means some reasonable limits to the freedom of speech.

What guidance that might produce in concrete cases will always depend on the particular circumstances, but generally fear and ego provide bad advice. Not all critical opinions are a threat, but also not all opinions absolutely need to be shared with the world at large. A few example rules on my behalf: no public support or criticism regarding a procedure or decision in which one has participated as a court member; no opinions on individual court cases that are still undecided, published by those who are members of the courts that are or can become involved in the line of first instance or appeal; no criticism of a personal nature or on personal performances nor criticism that can easily be interpreted as personal grudges. One could go on for a while along this line. My plea is for wisdom and prudence for all involved, judges and court presidents respectively. Nothing will be gained by a judiciary, in which all members would appear to have surrendered their capacity to participate in an open debate upon entry. In the end that is as much a danger for the relation of this institution towards society as a deadly divided house would be. No closed fortress with rock solid walls, but also no opinions' marketplace, that would be my idea for the Dutch judiciary.

by Evert Stamhuis, Dean and full professor criminal law and procedure OU Netherlands

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