“Travel Agency Rita” Falls Under the Freedom of Expression
Supreme Court 16 June 2009, Criminal Division
LJN: BG7750
Freedom of expression in criminal law. The text on the poster
'Travel Agency Rita: arrest deportation cremation, adequate to
the bitter end' is a critical expression about the then
Minister Rita Verdonk (Alien Affairs). It is true that the poster
is a defamatory writing within the meaning of Section 261 of the
Dutch Penal Code, but the author ('suspect') is not
punishable because in this situation the freedom of expression
prevails. A hurting poster for Verdonk, but even expressions that
'shock, disturb and offend' may be protected by the right
to the freedom of expression.
In October 2005 there was a fire in the cell complex at
Schiphol. Eleven people died. The cell complex was a detention and
deportation centre for illegal immigrants. The then Minister Donner
(Justice) and Dekker (Public Housing) had political responsibility
and resigned. Minister Verdonk, who was in her opinion not
politically responsible for the fire, did not resign. Verdonk was
highly criticized. The
Stichting Een Royaal Gebaar (Generous Gesture
Foundation) even reported involuntary manslaughter. There were also
a lot of banners and posters with anti-Verdonk slogans and
criticism, including this Travel-Agency-Rita poster.
The Public Prosecution Service was of the view that Verdonk was
accused of involvement in the Schiphol fire, which affected the
honor and reputation of Verdonk. Because of the combination of the
words arrest-deportation-cremation, the poster would evoke an image
to almost every reader of aliens being consciously deported and
subsequently cremated under the responsibility of Rita Verdonk (as
Minister of Alien Affairs). Moreover, the combination with
"travel agency" could evoke an association with the
arrest, deportation and cremation of Jews in the Second World
War.
The Court of Appeal of Arnhem ruled in
2006 (in Dutch) that the poster reflects a
value judgment and that the text does not incite to violence,
hate or discrimination. On 16 June 2009 the Supreme Court
confirmed (in Dutch) this earlier judgment.
Penalization of the author would result in a too far-reaching
limitation of the freedom of expression. This judgment is in
keeping with the line developed by the European Court of Human
Rights with respect to the freedom of expression (Article 10 of
the ECHR): also statements that 'shock, disturb and
offend' can be protected by the freedom of expression.