CCPR/C/117/D/2124/2011 weak legal position of victims in national criminal proceedings, resulted in a de facto alignment of the prosecutor with the defence. In domestic criminal proceedings, the victim is fully dependant on the judge and the prosecutor. An example is the prosecutor’s hiring of three legal academics for advice on whether to prosecute Mr. Wilders. The authors did not agree with most of their opinions, but were not allowed to comment on them or call their own experts. 7.3 The authors agree that the State party has implemented article 20 (2) sufficiently in its legislation. The problem lies in the application of the law in the present case. The judgment deviates from domestic jurisprudence that shows a less tolerant approach to hate speech. 7.4 As to the relationship between articles 19 and 20, the authors maintain that freedom of speech cannot be used to legitimize hate speech. In very similar cases, the European Court of Human Rights has drawn clear boundaries when free speech is used for hate speech. 7.5 The national court failed to take into account the cumulative effect of Mr. Wilders’ statements, despite acknowledging the rulings of the Supreme Court, which emphasize the importance of context in judging the criminal character of certain statements. 7.6 In principle, religious criticism should not be criminally sanctioned because it does not amount to defamation of a group. The court failed to acknowledge the distinction between defamation and hate speech, while Mr. Wilders repeatedly confuses the two. For instance, with respect to the utterance cited in paragraph 2.7 (c) (iii) above, the court admitted that it was used against Muslims and that the use of the words “to defend ourselves” was provocative. It even found that Mr. Wilders was on the edge of criminal activity, but then noted that “the defendant says in the interview that he is not against Muslims but against Islam”. The court therefore decided there was no incitement to racial hatred. Mr. Wilders’ emphasis on Islam, as opposed to Muslims, shows that he took legal advice, but does not alter the essence and the effect of his utterances. 7.7 Mr. Wilders repeatedly used the words “Moroccans” and “non-Western immigrants”. The court’s decision that the element of race could not be established suggests that it applied a definition of race contrary to that of the Supreme Court and the definition used by the the Committee on the Elimination of Racial Discrimination and the European Commission against Racism and Intolerance. 7.8 The authors object to the use of public debate as an excuse for hate speech, and to the court’s emphasis on the importance of the public debate without referencing the responsibilities of politicians to the integrity of that debate. The way a statement is perceived by the average citizen is crucial to assessing whether it constitutes hate speech, as hate speech is a crime that always involves both a sender and a receiver. State party’s additional observations 8.1 On 2 February 2016, the State party submitted additional observations. It noted that the first hearing in the second criminal case against Mr. Wilders, which began in 2014, would take place in March 2016. 8.2 Regarding the present case, the prosecutor complied fully and without reservation with the order from the Amsterdam Court of Appeal, presented detailed legal and factual arguments, based the opinion on purely legal grounds and did not follow the line taken by Mr. Wilders’ defence. The decision of the Court of Appeal also formed part of the case file. The fact that the case was being prosecuted by the Public Prosecution Service partly through a public prosecutor who had been involved in the decision not to prosecute did not mean that the Court of Appeal’s order for prosecution was complied with half-heartedly. The prosecutor represents the Public Prosecution Service. The interim relief judge held that the prosecutor complied with the Court of Appeal’s order in full. The acquittal was not 12