The Court of Appeal has considered that the contested views of Wilders (also as shown in his movie Fitna) constitute a criminal offence according to Dutch law as seen in connection with each other, both because of their contents and the method of presentation. This method of presentation is characterized by biased, strongly generalizing phrasings with a radical meaning, ongoing reiteration and an increasing intensity, as a result of which hate is created. According to the Court of Appeal most statements are insulting as well since these statements substantially harm the religious esteem of the Islamic worshippers. According to the Court of Appeal Wilders has indeed insulted the Islamic worshippers themselves by affecting the symbols of the Islamic belief as well.
Secondly, the Court of Appeal has answered the question whether a possible criminal prosecution or conviction would be admissible according to the norms of the European Convention on Human Rights and the jurisprudence of the European Court based thereon, which considers the freedom of expression of paramount importance. The Court of Appeal has concluded that the initiation of a criminal prosecution and a possible conviction later on as well, provided that it is proportionate, does not necessarily conflict with the freedom of expression of Wilders, since statements which create hate and grief made by politicians, taken their special responsibility into consideration, are not permitted according to European standards either.
Thirdly, the Court of Appeal has answered the question whether criminal prosecution of Wilders because of his statements would be opportune in the Dutch situation (the question of opportunity). According to the Court of Appeal the instigation of hatred in a democratic society constitutes such a serious matter that a general interest is at stake in order to draw a clear boundary in the public debate.
As regards the insult of a group the Court of Appeal makes a distinction. In general the Court determines that the traditional Dutch culture of debating is based on tolerance of each other's views to a large extent while Islamic immigrants may be expected to have consideration for the existing sentiments in the Netherlands as regards their belief, which is partly at odds with Dutch and European values and norms. As regards insulting statements the Court of Appeal prefers the political, public and other legal counter forces rather than the criminal law, as a result of which an active participation to the public debate, by Moslems as well, is promoted.
However, the Court of Appeal makes an exception as regards insulting statements in which a connection with Nazism is made (for instance by comparing the Koran with "Mein Kampf"). The Court of Appeal considers this insulting to such a degree to a community of Islamic worshippers that a general interest is deemed to be present in order to prosecute Wilders because of this.
A press release from the Dutch Freedom Party, The Hague, January 21, 2009:
The Freedom Party (PVV) is shocked by the Amsterdam Court of Appeal’s decision to prosecute Geert Wilders for his statements and opinions. Geert Wilders considers this ruling an all-out assault on freedom of speech.
Geert Wilders: “Apparently this is The Netherlands today. If you speak out you might be prosecuted. To participate in public debate has become a dangerous activity.”
“If I have to appear in court, not only I will be prosecuted, but also hundreds of thousands of Dutch citizens who reject the Islamisation of the West. In Dutch Parliament only the Party for Freedom is willing to speak up for the preservation of our culture and our many freedoms.”
The Freedom Party leader now faces legal proceedings that will probably take years to conclude and will also involve enormous legal fees.
“We depend on small donations. The Freedom Party is the only party in Parliament that does not accept any government funding. This court decision jeopardizes the very existence of the Freedom Party. We simply cannot afford the enormous legal expenses.”
“This is a black day for freedom.”
You and I have a rendezvous with destiny. We will preserve for our children this, the last best hope of man on earth, or we will sentence them to take the first step into a thousand years of darkness. If we fail, at least let our children and our children's children say of us we justified our brief moment here. We did all that could be done.
Ronald Reagan - A Time for Choosing, 1964