June 3rd, 2009
Join Date: Dec 2004
The Legal Situation in Holland
Denying the Holocaust. Since Mark Rutte, leader of the Dutch centre right party VVD let himself be tempted to say that he thinks that - in so far as it is not done within the context of incitement to violence, should not be a criminal offense [to deny the holocaust], politicians and opinion maker are competing to present their opinions.
Thus Prime Minister Jan Pieter Balkenende [Christian Democrat - CDA] says he thinks that it is not for no reason that it is a criminal offense, and Hans Van Baalen [Rutte's 'Israel first' fellow VVD party member] will do everything in order to keep the criminalization in place.
On the other side, Afshin Ellian [born in Iran - now a Dutch National, professor of law, philosopher, poet, and critic of Islam] thinks that it is not at all forbidden to deny the holocaust in Holland.
Joshua already wrote an article from which it appears that there is no criminalization of holocaust denial in Holland. Where do all these people get that idea?
In Holland denial of the Holocaust is - certainly under some circumstances a criminal offense.
I a 1987 verdict (NJ 1988, 538) the conviction of a distributor of the book 'Sechs Millionen?' [German for Six Million - What is meant is the book 'Did Six Million Really Die'] was kept upright on grounds of insulting Jews because of their race. From statements by the [female] distributor, it was deducted that she reasonably should have presumed that the book contained expressions which were offensive to Jews. The book contains no intended scientific arguments
and did not address historical scientific sources in a decent way, the court concluded. [Read the book for yourself and judge!]
Some years later a court in The Hague convicted the Belgian Siegfried Verbeke for distributing pamphlets in which amongst others the existence of concentration camps was disputed. The high court affirmed this judgment. In an appeal (NJ 1998, 261) the Supreme Court did not deliver judgment on the question if denial of the holocaust in clinical terms is to be seen as an offensive expression about Jews.
The most recent verdict in relation to denial of the holocaust is a 2004 ruling from the court in ís-Hertogenbosch. In the ruling a man [Ivo Jansen from Schijndel, a pro Palestinian activist] was convicted for having published some chapters of the book 'Sechs Millionen?' which he himself had translated into Dutch.
Doing that, he amongst others things has called upon the right to free expression (artikel 10 EVRM). According to the judgment of the court the statements in question were not only by them selves, but also because of the context in which they were published unnecessarily offensive, and can not be seen as expressions with no other purpose than taking part in a public debate over a historical/social question.
When looking at this jurisprudence [applied law] Mr. A.J. Nieuwenhuis in his dissertation 'about the limits of freedom of expression', states that denying the holocaust can be seen as a group insult according to article 137c Sr. But, he continues, the fact that historical truth is not judicially protected right, points in another direction.
In Holland holocaust denial is not as such punishable by law. It is assumed that it can possibly be a punishable offense, as an insult to a group. In my view this can only be the case when denying the holocaust coincides with insult of Jews because of their race. Nothing points at the conclusion that denial of the holocaust in itself is to be regarded as an insult to a group.
The simple denial of the holocaust - without the in this connection commonly used expressions about the Jewish race, in my view is a classic example of indirect insult of a group.
That such an insult is not covered by article 137c Sr has been established very recently by the High Court.