Dutch violations of the rights of a defendant

national | crime and justice | other press Wednesday December 15, 2004 11:15 by Astrid Essed

With this article I want to express my worriness about the recent
violation of the rights of Mohammed B, the suspect of the murder on the Dutch
cineaste van Gogh, which is not only an attack on his rights, but can also lead to a further erosion of the Dutch judicial system, which is based on the protection of the rights of a defendant and a fair trial.

Dear Editor,


The rights of the defendant:

Soon after the the murder on the Dutch cineaste van Gogh there was a dangerous aggrevated anti-moslim climate in the Netherlands which expressed itself among else in a couple of serious right wing terroristic attacks on Churches, Mosques and islamic schools, which is happily practically stopped.
Alas, the underlying tensions and the anti-islamic tensions are not vanished, but are being uttered in daily intimidations, discrimination and verbal assaults.
What worries me however gravely is the increasing violation of the rights of the defendant Mohammed B and the other suspects of real or alleged ''terrorism'' which is also a detoriation of the Dutch judicial principles.

1 The publication of the letter of the suspect:

After the murder was committed, a letter on the dead body of van Gogh
was found, which was left there by the suspect, Mohammed B,
The letter was directed to mrs Hirsi Ali, who is very controversial
because of her often unrespectful critics on the Islam and is also a member of
Parliament of the right-wing liberal party the VVD.
According to the common Dutch judicial rules during the investigation
of a crime, there is a restriction in revealing facts which are connected
with the crime, not only in the interest of a good and objective police and
justitial investigation, but also to protect the rights and the privacy
of the suspect.

However, in spite of the protests of the Counsel for the Prosecution,
the minister of Justice Donner decided to publish the contents of the
letter to the media.
Certainly in a case like the murder on van Gogh, which has already
caused a deep polarisation in the Dutch society, the minister should have been
very restrictive concerning the revelation of possible proof-material.
Publication in such a climate is not only a violation of the privacy of
the suspect, but also implies the danger, that the police and judicial
autorities are being hindred in their task to do their work
independently and objectively.


2 The revealing of name and address-information of the suspect

Not only the contents of the letter were revealed, also other serious
violations of the privacy of the suspect took place.
In the first place the media not only made public his living address
including his housenummer, which is very unusual during a
police-investigation, they also revealed his full backname, which is
rarely done and a great breach to his privacy.
When someone is accused of a crime in the Netherlands, only his first
initial [which is named B] is being made public.
Yet several newspapers revealed his whole backname, which is apart from
a violation of his privacy, also a security risk for his family, seen in
the light of the many treats to his person.

Yet apart from those breaches on the rights of the suspect, there is
also a privacy-law in the Netherlands, which forbids misuse of the privacy
facts of Dutch inhabitants, whether suspects or not.

3 The revealing of internet-comments of Mohammed B

The breach on his privacy wasn't limited to above-mentioned facts, but
was also extending to his real or alleged internet-comments on internet
discussion-forum-sites.
One of the large Dutch broadcasting-centres revealed not only the name
of the Maroccan discussion-site on which Mohammed B was believed to be
active, but also the fact that the last days before the murder he posted a
great number of comments.
The local broadcasting company [Amsterdam news, AT5] went a step
farther to reveal literally the contents of those messages [which applied to the
American military presence in Iraq] and also his nickname on the forum.
Yet a bizar detail was, that later was made public, that the comments
were not from Mohammed B at all, but from another participant, who was of
course indignant by recaling his private-comments.
So not only this was a considerable breach to the privacy of Mohammed
B, also they violated the privacy of a man, who was in no connection with
the murder-case at all.

4 The publication of his uncovered photo on television

However, the most serious breach on the privacy of the suspect, which
also implied a grave security risk for him, was the uncovered display of his
photo on television in a Dutch crime-investigation-program, which
urges the public to give the police information which may lead to the arrest
of alleged suspects of a crime.
The basic rule is that the thus-shown photo's must have a beam on the
eyes of the suspect to protect his rights on privacy.
However, despite of the protests of his lawyer, who tried in vain to
prevent it by means of a quick judicial procedure, the minister of Justice
Donner, gave permission to reveal his complete photo on television.
As already commented, this was a grave enlargement of his security-risk
given the fact that all Dutch inhabitants could have seen his whole photo [according
to investigations that evening more than 2 million people were looking to
the referred police-program, the double number, since mostly one million
people are watching it] and seen in the light of the many treats against the
suspect.

Yet apart from this dangerous aspect, the revealing of this photo
without beam has a dangerous precedent-working.

5 Motivation by the judicial autorities for the publication of the
photo:

Really shocking is to my opinion the motivation by the judicial
autorities for the revealing of the total photo.
The arguments were two-sided:
In the first place the collection of information about possible
accesseries to the murder on van Gogh.
In the second place they were of the opionion, that seen in the light
of the ''extraordinary'' character of the crime [the suspected and yet to
be proved terroristic character of the murder] the personal rights of
Mohammed B could be subjected to the ''common interest''

However, the first argument makes no sense, since the tip-results of
the program, based on photo's with a beam, is very great.
More dangerous is to my opinion the second argument of the sacrifying
of the personal rights of Mohammed B may be subjected to the ''common
interest''

Not only this is a flagrant violation of the fact that all Dutch
inhabitants have an equal right on protection and safety, whether free inhabitant
or arrested suspect from whatever crime, which is also confirmed by the
Universal Declaration of the Human Rights [article 7], also it is
suggesting, that the rights of one individual can be sacrified for the
''common interest'', which according to my opinion is an erosion of the
principles of humanitarian and democratical principles.

B Isolation

What worries me also is the fact, that Mohammed B, who was shot in the
leg after a fire-exchange with the police and is lying in the penitentiary
hospital in Scheveningen, is since his arrest dd 2-11 not allowed to
have any contact with the outside world, except with his lawyer
Although it happens more often in the Netherlands, that suspects are
being held in isolation after their arrest, in this case the suspect is also
being confined to his bed as the consequences of the leg-shot, which
aggravates in humanitarian aspect the possible damaging aspect of his
isolation.
A greater aggravation still consists of the fact, that he is also not
allowed to read any papers or to watch television with as a motivation,
that ''it is in the interest of the further investigation against him''

This last argument makes no sense to me, since the man can't even
escape from prison, being confined to his bed by the leg-shot and is also not
able to receive even familymembers as visitors, so which damage can be done
to the investigation?

Although solitary confinement on such is no violation of International
Law, unless the time is extraproportionally long, in this case it is to my
opinion different.

Isolation torture:

As you know in the 70s and 80s of the former century, the solitary
confinements of members of the German RAF organisation led to much
critics, because they were not only solitary confined, but also every sound was
isolated out their cells, so that they couldn't receive the necessary
human stimulative signals, necessary for every human being to survive.
Of course this sort of treatment was not only inhuman, but was named
judicially isolation-torture and is since then forbidden.

In the case of Mohammed B he can hear any sounds, but in combination
with the prohibition to read any paper or to see any TV program this
isolation seems to come near to isolation-torture, yet apart from the general
inhumanity of the token measures.

Disagreement in leading Dutch judicial circles:

However, in Dutch judicial circles not all autoritative courts have the
same points of view regarding those measures.

A couple of weeks ago the Amsterdam Court-Chamber decided that Mohammed
B was allowed to read a restricted number of newspapers [only Dutch
papers] and was permitted to make a restricted use of the TV [only the three
public broad-casting senders]
However, the Higher Court revoked this verdict, with as a consequence,
that newspapers and TV are still forbidden for Mohammed B.

C Two importants points concerning the further trial:


1 No proof for co-involvement

A couple of weeks after the arrest of Mohammed B 6 other men were
arrested, who were charged of a membership of the so-called ''Hofstadt-group''
an alleged terroristic organisation and co-involvement with the murder of
van Gogh, since the presumption was that the murder of van Gogh should
have a terroristic character.
However, recently news came, that there is no proof whatsoever of any
co-involvement of the 6 with the murder on van Gogh.
But according to information of the Dutch judicial autorities their
case is handled over to a special division of the Court, which investogates
terrorism, since they are yet to be suspected of possible membership of
the real or alleged ''Hofstadt-group''.

2 The charge against Mohammed B

It is also of importance to gove a review of the official charges
against Mohammed B:

The man is not only charged from the murder of van Gogh, which is only
logical considering the circumstances of the murder, but also from
conspiracy of murder of one or more bystanders, under which policemen,
violation of the law on weaponry, suspicion of contribution to a
criminal organisation with a terroristic goal and conspiracy to murder with a
terroristic goal on van Gogh, Hirsi Ali and or others.

A conspiracy of murder of one or more bystanders, under which policemen

After the murder of van Gogh the suspect used his weapon to control
some bystanders.
However wrong, the charging of ''an attempt to murder'' makes no
sense.

Respecting his ''attempt to murder on ''some'' policemen'' the
following:
After the murder on van Gogh the suspect had a fire-exchange with a
couple of policemen.
With the same arguments it is possible to say that the policemen, who
shot him in his leg, did an attempt to kill Mohammed B.

B suspicion of contribution to a criminal organisation with a
terroristic goal

Since according to the judicial autorities Mohammed B is no member of
the socalled ''Hofstadtgroup'' for which the other 6 suspected are being
charged, I presume that this part of the charge will be hardly to
prove also, especially since the judicial autorities have conceded that there
is no co-involvement on the murder of van Gogh from the 6 other suspects
of terrorism.

C conspiracy to murder with a terroristic goal on van Gogh, Hirsi Ali
and or others.

Since recently was revealed by the judicial autoritied that Mohamed B
is no member of the already named alleged ''Hofstadtgroup'' I think that
''murder with a terrortistic goal'' is hardly to be proved.
Considering the naming of real or alleged victims the followoing:

Of course is naming van Gogh an only logical fact, considering the
circumstances and events.
However, according to Hirsi Ali it makes no real sense to me.
The charge concerning her has mainly based on the referred letter on
the body of van Gogh.
Reading of this letter however reveals, that although it can be explained as a treath to
her, there is in the judicial rules a main difference between a threath and
an attempt to murder.
The term ''others'' in the charge is however that vague, that it is a
weak argument either, unless there are proven facts considering the hetherto
unknown individuals.

The above described treatment of Mohammed B is showing not only a
serious detoriation of the hitherto high-standard Dutch judicial principles, it
also shows a general deroriation of the Western-European judicial
principles in general, especiellay concerning the ''war on terrorism''

I think it is of he highest importance, that the political-judicial autorities
in the Netherlands and the other Western-European countries re-consider,
that according to the by them undersigned Universal Declaration of Human
Rights every person has the right on an equal and humanitarian treatment, also
a suspect of terrorism.

Astrid Essed
Amsterdam
The Netherlands