THE DUTCH STATE AGAINST JOKE K.: a short history of the foregoing

A translation of

Arrest and house search

On September 13 2011 activist, writer and poet Joke Kaviaar was arrested at home and detained for three days in all restrictions. (That means isolation and also means that her lawyer can not say anything about the case to others.) The National Criminal Investigation Department searched her house for information about her contacts. After three days she was released, only to intimidate her to this day with the possibility of renewed arrest.

She was arrested for writing four opinion articles, accused of “incitement to any offense or violent act against public authority” (art. 131, lid 1). This accusation was further aggravated for a long time with “incitement to a terrorist crime or a crime for the preparation or facilitation of a terrorist crime” (Article 131, paragraph 2).

Three months later, on December 7 2011, the National Public Prosecution made her website inaccessible. The website was put back online by Anonymous on December 8 2011, a day later, and is still online “including the inciting texts”, according to an official report in the case file.

Establishment of the Support Group

Soon the Support Group 13 September was founded. In the first instance, the Support Group set itself the goal of making the background of this nonsensical arrest public. Since then, the Support Group has been closely following the aftermath and the subsequent consequences, and is working to mobilize people to resist the current migration policy. Of course it is also a goal of the Support Group to show that government terror, in the long term, has absolutely no effect on people who do not want to keep their critical opinion to themselves, because if we tolerate this we will lose the way.

People took over her texts, her website – which had been taken offline under judicial coercion, but came back a day later including the texts – appeared through mirror sites.
It was remarkable that the aggravated “terrorist” complaint was used during the search, but was later not included in the summons. This raises the suspicion that this aggravation of the indictment at the time of the arrest, the search, and during the entire investigation was only added as intimidation, and above all also to make use of the far-reaching investigative powers from the terrorism legislation. From the excessive search, it could already be concluded that this was mainly a fishing expedition to chart the growing No Border movement.

In the meantime, the investigation continued and the authorities continued to hold the threat of a second arrest to this day. Is it not for keeping the four texts online, it is because new texts may be ‘inflammatory’.

Trial, appeal, cassation, European Court

On January 8 2013 the trial against the opinion of Joke Kaviaar started. The Publice Prosecuter demanded a six months unconditional prison sentence. There were a few dozen people around the court room for support and to give publicity to the case by a picketline and pamphlets. Also two weeks later, on January 22, there were people at the verdict. The court ruled that day that the writer had to go to prison for four months because of four “inflammatory” texts. That verdict was firm: a conviction for all four of the texts. The punishment: four months in prison, unconditionally. A sensitive blow in the face of freedom and solidarity. Neither the Support Group, nor Joke herself left it at that. Joke immediately appealed.

On November 1 2013 the Appeal started with a technical treatment (the so-called directing session). Attempts to attract attention to the case continued. Outside, prior to the handling of the directing session by the Court of Appeal, posters with the ‘inflammatory’ texts were distributed and in december 2013 there was a benefit with poets and musicians in ACU in Utrecht attended by quite some people that also raised quite a bit.

On May 15 2014 the substantive treatment of the appeal was handled. Around the session itself, people took action again: the texts classified as prohibited were openly distributed to bystanders in the inner city of Amsterdam during a meeting and walk to the court house. Dennis Bos, a historian of the early workers’ movement which has been affected by repression day after day, was actually reading a text out loud. If the texts were ‘inciting’, then at least people were prepared to actually defy the ban on these texts side by side. A highlight in the solidarity campaign. Justice didn’t like it that much, the police arrested people: six were arrested, four of them because of ‘sedition’. Cases against two of them finally turned into acquittal, because the court ruled that the distribution and display of the posters with the ‘inflammatory’ texts was part of a demonstration against prosecution for these texts, and no ‘incitement’ because it served the purpose of showing what the demonstration was against.

On May 28 2014, the Court of Appeal ruled in the case. This resulted in an unexpected outcome for many. According to the Amsterdam Court of Appeal, two of the four texts were not ‘inflammatory’ in a criminal sense. For the other two texts, the court imposed a sentence of two months conditionally and a probation period of one year. Both Joke Kaviaar and the Public Prosecutor went into cassation against the verdict; the Public Prosecutor, however, withdrew his cassation later. The Supreme Court finalized the verdict on 9 June 2015 by rejecting the cassation appeal. This happened after an unmotivated conclusion of the Advocate General with the same advice. Also the rejection of the cassation appeal by the Supreme Court was not motivated. In a case that affects freedom of speech, this can be called very remarkable. The European Court of Human Rights (EctHR) has stated that it sees no reason to condemn the Dutch state in this case.

What, probation? A new case

In the meantime Jokes probationary period had been entered with effect from 10 June 2015. Whether or not to enforce the sentence – the conversion of two months in prison conditionally into unconditional – had since then been like a sword of Damocles over Joke’s head. With every arrest in her probation, a public prosecutor could enforce such enforcement, and a judge could also assign it. Such a thing can be very crippling. The fact is that Joke Kaviaar has withstood the paralysis, and has just continued with both writing and campaigning.

During an action – in the Zeist local council, against the construction of a family prison at Kamp Zeist, on 6 October 2015 – the shit hit the fan and Joke was arrested. In the subsequent trial of five arrested people, the magistrate sentenced Joke on December 16 2015 to a two weeks conditional prison sentence and also to the enforcement of the earlier incitement verdict. Everyone appealed. A year later, on 11 December 2016, the Court of Appeal condemned her to the same punishment, but now imposed these two weeks unconditionally.

Cassation, challenge

Joke and her co-defendants now went into cassation. If this judgment is also upheld by the Supreme Court, Joke Kaviaar will actually be detained for two months for writing two texts. Plus another two weeks because of that council chamber action.

The handling of the cassation in this case took a long time. On 26 June 2018, after a year and a half of tense waiting, the Advocate General came with a this time very detailed argument in the case: the cassation appeal must be rejected. Since then, the long wait began for a decision by the Supreme Court, which usually follows the Advocate General’s conclusion. There was a decision of the Supreme Court in this cassation scheduled for September 25, but that was postponed shortly. The decision was moved to December 18, 2018, more than two years after the instigation of cassation.

Meanwhile, lawyer Jebbink challenged the entire Supreme Court in this case concerning the action in the Zeister city council. The reason for this is that the highest court works with so-called reservists, in addition to the so-called seat. The seat, these are the three to five judges who formally handle a case. The reservists are other judges who are allowed to think and deliberate and thus exert influence on the case. Since it is not clear who these reservists are, and even if they do participate, an accused does not know whether these judges are truly impartial and defense against these invisible judges is not possible. This undermines a fair trial, according to the lawyers. The challenge is to expose this inscrutable procedure and to denounce it as being in conflict with impartial and transparent case law.

The challenge session was held on 29 October 2018. If this challenge were successful, another seat of the Supreme Court would have to assess the case without reservists. If the challenge is not successful, the case can be continued by the same seat. On Friday, December 21, a decision has be made about the challenge. The Supreme Court has decided that it is unfounded.

Latest news:
The Supreme court has made it’s decision on January 8 and rejected the cassation. We expect the arrest of Joke to execute the sentence of two-and-a-half month any time now. The exact moment however The term on which means a new period of uncertainty. Check here the press release of the Support group about the rejection of the cassation..

Steungroep 13 september, January 10, 2019