Seeking justice is also democracy
Current affairs image: ANP / Kim van Dam
Increasingly, citizens are going to court to challenge decisions by the Public Prosecution Service not to prosecute in certain, sometimes socially sensitive, cases. Yet, these citizens are not always taken seriously as democratically engaged persons. A mistake, says Sophie Koning.
The case against Geert Wilders
'The demographic composition of the population is the biggest problem in the Netherlands. I’m talking about who comes to the Netherlands and reproduces. (…) Muslims will migrate from the cities to rural areas. We need to stop the tsunami of Islamification.’
This statement made by the politician Geert Wilders in an interview with Dutch newspaper de Volkskrant in 2006 caused much public commotion. Dozens of people filed a complaint against the politician for group defamation and incitement to hate and discrimination. Despite the public outrage, the Public Prosecution Service (OM) decided not to prosecute Wilders, much to the displeasure of a group of citizens. They decided to pursue the case further in court.
Not about ‘hurt feelings’
The media, politicians and the OM dismissed the people who thought that Geert Wilders had gone too far as ‘emotional victims’. But researcher Sophie Koning says that image is incorrect. 'The OM said: “We understand the feelings of Muslims, but we view this case from a legal perspective.”' However, Koning, who recently received a doctorate for her research on the Article 12 procedure (complaint procedure) in the Netherlands, spoke to the citizens involved in the case and discovered that they were not concerned about their own feelings. 'What concerned them was the rule of law. They thought it was important that the Netherlands remains a society in which everyone is allowed to take part and no one is dehumanised.' These people, therefore, saw themselves not as victims, but as guardians of society.
What is an Article 12 Sv-procedure?
In the Netherlands, the OM decides if a person will be prosecuted for a criminal offence. It only proceeds if a case is considered to be legally feasible and prosecution would be in the public interest.
If the OM decides against prosecution, interested parties can object to this. In what is called an Article 12 procedure, they can ask the court to reconsider that decision. If the court rules that the OM should have prosecuted, it is obliged to start criminal proceedings.
Well-known Article 12 procedures resulted from the non-prosecution of:
- The politician Geert Wilders due to controversial comments (see main text);
- Police officers involved in the fatal arrest of Mitch Henriquez;
- Rabobank staff for fraud involving Libor en Euribor interest rates.
Judges do not always take citizens seriously either
Koning did not only speak to citizens, but also to judges who take decisions in Article 12 procedures. She discovered that these judges did not always take citizens seriously either. One example she noticed was in the Libor case, which concerned the failure to prosecute Rabobank staff for interest rate fraud. The OM did not consider prosecution to be in the public interest and came to a settlement with the bank. However, some citizens claimed that prosecution was in the public interest and they started an Article 12 procedure. 'When I asked judges how they dealt with such cases, where citizens present an alternative version of the public interest, one judge dismissed it saying: “public interest…, yes, they all say that”'.
Awareness
The OM needs to be aware of what is going on in society. Citizens are increasingly using Article 12 procedures for socially sensitive cases. In doing so, they are letting the courts know that they believe the OM is not taking sufficient account of the interests of society.
Koning sees this ‘valve function’ as a positive development. It enables citizens to exercise their democratic rights and to hold the OM to account. 'We need critical citizens to monitor the OM', she says.
'In socially sensitive cases, judges cannot always be neutral'
Koning also agrees with the fact that ultimately the court decides if the OM should prosecute. According to her, the courts play an important role in democracy, especially in socially sensitive cases. In times of social division, courts have an active role in guarding legal norms that at the same time define us as a society. 'Judges cannot always be neutral in socially sensitive cases such as the case involving Geert Wilders, because how do you define the public interest in a divided society? The law says nothing about that. Judges will have to make that choice.'
The upside
The court ruled that Geert Wilders' statements in the Volkskrant newspaper were indeed insulting to Muslims and it ordered the OM to proceed with prosecution. However, although criminal proceedings followed, the OM did eventually call for acquittal.
'Still, this procedure was good for democracy,' says Koning, 'because on the basis of criminal norms such as group defamation, hate speech and discrimination, there are now discussions about who we are and what we want to be as a society.'
Koning would have liked to speak to the OM about their strategy in these kinds of socially sensitive cases, but got no response. She suspects that the OM steers away from prosecution in sensitive cases by claiming that the case is not legally feasible, even if that is disputed. This is what happened in the Wilders case. The OM stated that prosecution was not feasible, while legal experts had serious discussions about this. 'This position is safer than admitting that a case is legally feasible, but not in the public interest. If the OM were to say that, it could be accused of making a political decision.'
Koning hopes that the Public Prosecution Service can provide more clarity about how it arrives at such decisions.
Sophie Koning obtained her PhD on 6 June 2025 with her dissertation 'The valve function of the Article 12 procedure. Complaints about non-prosecution in socially sensitive cases'.