Amicus curiae by the PILP-NJCM on freedom of expression sent to the Dutch Supreme Court

The Public Interest Litigation Project of the Dutch Section of the International Commission of Jurists (the PILP-NJCM) has submitted an Amicus Curiae [in Dutch], or expert letter, to the Dutch Supreme Court on the application of the freedom of expression test in the case of Feijen. During a council meeting, council member Feijen called council member Nawijn racist on twitter. The Court of Appeal then convicted him. The PILP-NJCM stresses the importance of correctly applying the human rights test in this and similar cases.

In its letter as a friend of the Supreme Court, the PILP describes the appropriate test for freedom of expression (Article 10 of the European Convention on Human Rights (ECHR)), as developed in the jurisprudence of the European Court of Human Rights (ECtHR).
According to the PILP, attention must be paid to whether Feijen’s conviction is in accordance with Article 10 ECHR.

Feijen, a council member for the Socialist Party in Zoetermeer, called Nawijn, council member for Lijst Hilbrand Nawijn, racist in a tweet during a council meeting. The comment was made in reaction to Nawijn’s statements regarding the establishment of special Islamic primary schools. Nawijn argued that such schools would not contribute to the integration of citizens in to Dutch society. His response isolated Islamic schools rather than referring to religious schools in general.

Feijen argued that Nawijn was acting in a discriminatory manner. On social media, Feijen aimed to point out the ‘discrimination of an entire religious community by the racist Nawijn’. Feijen was acquitted by the lower court, but later convicted by the Court of Appeal for defamation, contrary to Article 266 of the Dutch Criminal Code. Feijen received a conditional penalty. This case received a great deal of media attention; see examples in the Telegraaf and the NRC.

Using the ECtHR jurisprudence, the PILP discusses the political context of the statement, the positions of Mr. Nawijn and Feijen, and the qualification of the remark as being ‘unnecessarily insulting’ in its letter. According to the PILP, it is important that the Dutch Supreme Court consider the conviction of Mr. Feijen to be in line with Article 10 of the ECHR.