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.