Gondola Affair - Municipal Councillor May Accuse Former Alderman of Corruption
A discussion of the Baljé / Stoelinga judgment of the Court of
Appeal of The Hague of 16 March 2010
Municipal councillor Stoelinga of Delft (formerly Leefbaar
Delft, currently Onafhankelijk Delft) accused former
alderman Baljé of the political party VVD of corruption as a result
of incriminating video and sound recordings from 2004 and 2005 of
the alderman having several telephone conversations. In total there
are approximately four hours of video recordings. A clip of the
images is published online
here. Baljé summoned Stoelinga, Leefbaar Delft
and the person who had made the recordings to appear in court and
claimed substantial damages.
Freedom of Expression in
the Political Debate
The Court of Appeal rendered its judgment in the proceedings on
the merits on
16 March 2010. The Court of Appeal gave way
to the freedom of expression and emphasized in particular the
large importance thereof in the political arena.
The freedom of expression is not absolute, but the judiciary has
to act with the greatest restraint when applying restrictions and
sanctions, according to the Court of Appeal: "After all,
in a democratic system it must be possible for the legislative
authority or the judiciary, as well as the press and the public
opinion, to closely observe the Public Administration. This means
that a public administrator must accept fiercer criticism than a
citizen. In principle, it must be possible to have an intense
political debate."
Secretly Recorded Videos -
The Facts
In the video and sound recordings made by restaurant owner D.
you can hear Baljé calling his then colleague alderman in the
municipality of The Hague Verkerk (the current mayor of Delft).
Baljé asks Verkerk whether the municipality of The Hague is
interested in a piece of land owned by an acquaintance of him, a
real estate trader residing in Delft. This seems to be confirmed by
Verkerk in the video recordings. Next, Baljé calls the real estate
trader and advises him, inter alia: "They are
very interested. You just, er, have to go for it. You don't
know this, I haven't told you this. And the few hunder thousand
of profit that you'll make, you'll put in my campaign,
deal? Let's do it."
In the telephone conversation with Verkerk Baljé also passed on
confidential information about the choice of the confidential
committee with respect to the forthcoming appointment as mayor, for
which Verkerk was the then most important candidate. The Court of
Appeal confirmed that this accusation has sufficient factual
basis.
Restaurant owner D. argued that he had made the recordings by
mistake, but did retain them deliberately. D. argued that Baljé had
promised him a subsidy for his project to exploit gondolas in the
Delft canals. When it seemed that this subsidy would not be
granted, D. told Baljé about the video recordings and made them
public. After an earlier rejection by the municipality, in the end
D. still received an amount of €26,000 for his gondola project. The
civil servants who granted the subsidy to D. have stated that they
advised the alderman that according to the rules the subsidy could
not be granted. They said that they had been pressured by the
alderman to grant the subsidy anyway. The alderman denies
this.
Accusation of Corruption Sufficiently Supported by
The Facts
The Court of Appeal ruled that the suspicion of corruption
expressed by Stoelinga is sufficiently supported by the facts.
Moreover, the term "corruption" does not necessarily need
to be regarded as a criminally culpable act, but can be considered
to be a political opinion of a member of the opposition within the
meaning of the dishonest acts of a political administrator. The
Court of Appeal considered that Stoelinga "[could]
reasonably have been of the opinion that there was such a serious
malpractice that this had to be discussed not only in the public
debate but also, in view of the general interest in the awareness
thereof, publicly, in the manner and wordings as
occurred".
In the view of the Court of Appeal, the fact that the contents,
wordings and tone of Stoelinga's expressions can be experienced
as being provocative, does not mean that they are unlawful. After
all, the freedom of expression as set out in Article 10 of the ECHR
also constitutes the freedom to make expressions in the political
debate that 'offend, shock or disturb'.
Member of the Opposition's Right to Freedom of Expression
Important if Majority is Against Him
The Court of Appeal also quashed Baljé's defense, which the
Court of First Instance had followed, that Stoelinga should have
ceased his accusations in any case after a majority of the
municipal council had expressed their opinion that it was a
disgrace that Stoelinga and Leefbaar Delft had accused the former
alderman of corruption. The Court of Appeal considered:
"Also (or especially) when the majority has a different
opinion, a member of the opposition, in principle, may continue to
expose a particular issue".
Publication of
Recordings Unlawful - Use by Whistleblower Lawful
The Court of Appeal did rule that restaurant owner D. had acted
unlawfully towards Baljé by publishing the tapes, because he -
unlike Stoelinga who acted in the general interest - apparently had
a different purpose in mind, namely obtaining a subsidy still. For
journalists it is important that the fact that D. was in the wrong
when making the recordings does not mean that these same images
could be allowed as evidence and assist in the substantiation of
the accusations on the basis of these images.
Alderman Martin Stoelinga was represented by
Jens van den Brink and
Reindert van der Zaal (Kennedy Van der
Laan).