Monday, July 16, 2012

All Cops Are Bastards

You've got to love a jurisdiction where the prosecution can appeal an acquittal. So a guy in (ever exciting) Goes wears a jacket with the print "ACAB". Result: he gets charged with insulting a police officer in the execution of his duties, under art. 266 and 267 Sr. In the District Court, he gets acquitted. In the Court of Appeals in The Hague, convicts him (€ 200 fine), but we end up before the High Council, i.e. the Supreme Court of the Netherlands. The High Council overrules, on the grounds that the meaning of the abbreviation ACAB is not "a fact of general knowledge" that need not be proved. The Court of Appeals in The Hague now acquits, holding that there was no insult now that the meaning of ACAB could not be considered a fact of general knowledge. Which brings us to the High Council a second time, this time at the instigation of the prosecutor at the Court of Appeals. Now, the High Council sides with the prosecution, overruling again: it is not necessary for the crime of insult that the insult in question can be understood by the general public. The case gets referred to the Court of Appeals in 's-Hertogenbosch for further examination.

Now obviously I have several bones to pick with this case. Most importantly: ARE YOU F-ING KIDDING ME???? Just two months after our highest court ruled that "Mierenneuker", i.e. "Ant-fucker" is capable of constituting a criminal insult, depending on the context, we get another one of these nonsense cases? Don't the police have real criminals to arrest anymore? Don't the courts have real cases anymore? I realise that we don't have a permission system, meaning that the High Council has to take all cases that come, but still. What are all these judges and magistrates doing wasting each others' time like this? But I'd better let this point of criticism go, before I get prosecuted for insulting someone.

Secondly, and per usual, I take issue with the very sparse motivation. In fact, I had no idea what exactly was going on until I read the opinion of the Advocate-General (and my former Criminal Law professor) Geert Knigge. (It's behind the same link, after the court's judgement.) After summarising the holdings of the Court of Appeals in par. 2.1-2.6, the full extent of the High Council's reasoning is in par. 2.7:
2.7. Aldus oordelend heeft het Hof een te beperkte uitleg gegeven aan art. 266 in verbinding met art. 267 Sr. Bij de beoordeling van de vraag of de genoemde uitlating beledigend is in de zin van die bepalingen is niet doorslaggevend de enkele omstandigheid of het een feit van algemene bekendheid is dat de onderhavige lettercombinatie de afkorting is van bovengenoemde woorden. Door de verdachte van het tenlastegelegde vrij te spreken heeft het Hof hem dus vrijgesproken van iets anders dan was tenlastegelegd. Het middel klaagt terecht dat het Hof aldus de grondslag van de tenlastelegging heeft verlaten.  
When broken down and translated, what they're saying is this (with the sentences numbered):

  1. The reading of the Court of Appeals is too narrow.
  2. It is not necessary for the crime of insult that the insult in question can be understood by the general public. (aka: the conclusion)
  3. It follows that the Court of Appeals acquitted the defendant of something other than what he was accused of. (aka: the procedural conclusion)
  4. The appellant is correct to object that the Court therefore went beyond the charges as filed. (aka: the procedural conclusion again)

That's it. Then they move on to ignore the other grounds for appeal, to annul the lower court's judgement and to refer the case to 's-Hertogenbosch. There is seriously nothing more here than ipse dixit. No reference to literature, to legislative history, to a dictionary, nothing. At least in the Mierenneuker-case we were given a few precious lines of explanation, but here they don't even do that.

Moving on to the AG's opinion, which was given on May 29, we find - in par. 7.5 and again in par. 8.6 - a perfectly convincing explanation of why the crime of insult does not require that the insult is generally understood. It even cites some literature. (OK, one case annotation.) The AG gives the example of a Russian insulting another Russian in Russian, and more generally points out the difference between talking about "facts of general knowledge" in the context of an evidentiary question and demanding that the meaning of the insult be such a fact as an element of the crime. He even goes so far as to give some guidance for the new Court of Appeals trial that will now follow, pointing out that it will generally be difficult to prove that the defendant knew what the abbreviation meant if it was not a fact of general knowledge.

(He also points to the difficulty created by the fact that the defendant wore the offending jacket before he ever ran into the cop, making it difficult to say that he insulted the cop "through some [overt] act" and in the cop's presence, as required by the law. Likewise, the subsidiary charge of publicly insulting the public authorities is difficult in the absence of proof that the general public knows what ACAB stands for. But that, too, is a problem for a later day.)

Finally, I'm amused by the AG's insistence that there is no criminal libel here. This is necessary because the law explicitly says that there is no criminal insult when there is criminal libel. Under the normal definition, calling a cop a "bastard", i.e. "an illegitimate child, a racially impure person or a person of lesser quality" (cf. the charges as quoted in par. 5 of the AG's opinion), is not defamatory because no "right-thinking" member of society would think less of anyone of they were a bastard. (I have to use this definition because I don't have access to the source cited by the AG, the Text & Commentary of the Criminal Code, specifically art. 261 Sr.) But this is not a foregone conclusion. Moreover, if being labelled a bastard is not defamatory, because no one cares, why is it an insult?

So yes, as always, let's just stop talking about all this nonsense and abolish all of Title XVI of Book 2 of the Criminal Code once and for all.

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