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1. Source of the legal provision

Article 137c (2) of the Criminal Code [Wetboek van Strafrecht] as amended by Official Gazette 2024, 207 [Staatsblad 2024, 207].

Available in the original language via: InView; <https://www.inview.nl/openCitation/ida4427c86d761bc9ddbbd5de5ebba8817/wetboek-van-strafrecht-artikel-137c?ctx=7ab79f965349ec4763806f5db567bdc8>

 

2. Legal Provision in English

  • Any person who, in public, orally or by writing or image, intentionally insults a group of people on account of their race, religion or belief, heterosexual or homosexual orientation or physical, mental or intellectual disability shall be punished by imprisonment for a term not exceeding one year or a fine of the third category.
  • The same penalty is imposed on anyone who in public, orally or by writing or image, deliberately insults a group of people as described in the first paragraph:
  1. by condoning any of the offences as described in Articles 3 to 6, 7, paragraph 2, and 8 to 8b of the International Crimes Act[1] or any of the offences as described in Article 6 of the Charter of the International Military Court, annexed to the Treaty of London of 8 August 1945[2];
  2. by denying or grossly trivialising one of the facts as described in the articles referred to under a, insofar as that fact has been established by a final decision by an international court that derives its jurisdiction from a treaty to which the Kingdom is a party or by the Dutch court.
  • If the offence is committed by a person who makes it a profession or habit or by two or more persons acting together, imprisonment of not more than two years or a fine of the fourth category shall be imposed.

3. Legal Provision in the original language

  • Hij die zich in het openbaar, mondeling of bij geschrift of afbeelding, opzettelijk beledigend uitlaat over een groep mensen wegens hun ras, hun godsdienst of levensovertuiging, hun hetero- of homoseksuele gerichtheid of hun lichamelijke, psychische of verstandelijke handicap, wordt gestraft met gevangenisstraf van ten hoogste een jaar of geldboete van de derde categorie.
  • Met dezelfde straf wordt gestraft degene die zich in het openbaar, mondeling of bij geschrift of afbeelding, opzettelijk beledigend uitlaat over een groep mensen als omschreven in het eerste lid:
  1. door het vergoelijken van een van de feiten als omschreven in de artikelen 3 tot en met 6, 7, tweede lid, en 8 tot en met 8b van de Wet internationale misdrijven of een van de feiten als omschreven in artikel 6 van het Handvest van de Internationale Militaire Rechtbank, gehecht aan het Verdrag van Londen van 8 augustus 1945;
  2. door het ontkennen of verregaand bagatelliseren van een van de feiten als omschreven in de onder a genoemde artikelen, voor zover dat feit bij onherroepelijke beslissing is vastgesteld door een internationaal gerecht dat zijn rechtsmacht ontleent aan een verdrag waarbij het Koninkrijk partij is of door de Nederlandse rechter.
  • Indien het feit wordt gepleegd door een persoon die daarvan een beroep of gewoonte maakt of door twee of meer verenigde personen wordt gevangenisstraf van ten hoogste twee jaren of geldboete van de vierde categorie opgelegd.

4. Key Points

  • There is no specific provision in the Netherlands that criminalises Holocaust denial. However, as of 1 October 2024, the Netherlands has adopted legislation prohibiting the condoning, denying, or gross trivialising of genocide, crimes against humanity, war crimes, and the crime of aggression.
  • This amendment to Article 137c (2) of the Criminal Code aligns with the EU Framework Decision on Racism and Xenophobia 2008/913/JHA (hereafter ‘EU FD 2008’), and was introduced following an infringement procedure by the European Commission, which has now been solved.
  • Unlike Article 1 (1) c, d of EU FD 2008, Article 137c (2) of the Criminal Code does not require that such actions be carried out in a manner likely to incite violence or hatred.
  • With regard to the denial or gross trivialisation of such crimes, they must have been previously established by an international court with jurisdiction recognised by the Netherlands, or by a national court.
  • The basic punishment for such conduct is imprisonment for a term not exceeding one year or a fine.
  • Even prior to the incorporation of an explicit genocide denial prohibition into the Criminal Code, established case law consistently recognised Holocaust denial as constituting a group insult based on race and/or religion under the former Article 137c (insult/defamation) of the Criminal Code.

5. Background

The Netherlands previously did not have a specific criminal law that sanctioned Holocaust or genocide denial. However, on 17 July 2024, the Wet herimplementatie Europees strafrecht [European Criminal Law Reimplementation Act][3] was adopted, which amended Article 137c (2) of the Criminal Code to criminalise the justification, denial, and gross trivialisation of genocides, crimes against humanity, and war crimes.[4] This law entered into force on 1 October 2024.[5]

In the past, there had been various unsuccessful attempts to introduce legislation criminalising such conduct. Notable initiatives included a proposal by a Member of Parliament, Joël  Voordewind of the Christian Union political party, in 2006,[6] and a revised version of the proposal in 2008/2009 to align with the EU FD 2008.[7] However, a corresponding memory law was not adopted, as Holocaust denial and trivialisation were considered adequately addressed under existing criminal case law.[8] In fact, at the time of the adoption of the EU FD 2008 by the Council of the EU, the Netherlands maintained that its national laws were already in compliance, with Holocaust denial falling under the scope of Articles 137c (group insult), 137d (hate speech), and 137e (distribution of objects containing group insult and hate speech) of the Criminal Code.[9]

However, on 9 June 2021, the European Commission concluded that Dutch regulations on insult and hate speech did not fully comply with EU FD 2008 – leading to an infringement procedure for failing to transpose specific hate speech provisions, including “the public condoning, denial, or gross trivialisation of international crimes and the Holocaust”, into national legislation.[10]

In response to this, Article 137c (2) of the Criminal Code was adopted in 2024 (as noted above). According to its explanatory memorandum, this provision seeks to align with existing case law and aims to enhance legal certainty.[11] The memorandum highlights that the prohibition of condoning, denying, and grossly trivialising genocides, crimes against humanity, and war crimes constitutes a specific form of group insult, acting as lex specialis in relation to the broader provision of group insult under Article 137c (1) of the Criminal Code.[12]

It is notable that Article 137c (2) of the Criminal Code makes a distinction between condoning (that is justifying, approving or glorifying) and denying or grossly trivialising the aforementioned international crimes.[13] The latter are only punishable under the condition that the crimes in question have been determined by an international court with jurisdiction recognised by the Netherlands, or by a national court.[14]

Furthermore, the memorandum explicitly states that, in principle, the condoning, denial, or gross trivialisation of an international crime should only be considered to be insulting to a group under additional circumstances, such as the “glorification of the perpetrators, accusations against the victims, or the use of highly offensive language”.[15] However, states the memorandum, Holocaust denial should be exempt from this additional requirement due to its “exceptional character”.[16] This approach appears to be in line with existing ECtHR case law.[17]

6. Application

Since there have not yet been any verdicts under the new Article 137c (2) of the Criminal Code, the following is a summary of the application of Article 137c of the Criminal Code up to October 2024.

Even before adopting Article 137c (2) of the Criminal Code, national courts had repeatedly recognised that Holocaust denial could constitute a group insult based on race and/or religion.[18] While this offense was often prosecuted using both Article 137c (group insult) and Article 137d (hate speech),[19] convictions were frequently pronounced solely under Article 137c due to its lower burden of proof.[20]

One of the most prominent judgments concerning Holocaust denial is the 1997 “Verbeke judgment” by the Dutch Supreme Court, which affirmed that denying the Holocaust and alleging that the Jewish population fabricated it for political gain constituted a group insult against Jews under Article 137c of the Criminal Code.[21]

To evaluate whether a statement qualifies as a group insult under this provision, courts have developed a framework[22] that ensures convictions align with freedom of expression.[23] The Supreme Court reiterates the so-called “three-step model” in its 2012 Auschwitz-cartoon judgement as follows:

“In a first step, it is assessed whether the particular statement is, in itself, insulting to a group of people; in a second step, it is assessed whether, considered in its context, the statement is significant for a social debate, which might negate its insulting character; in a third step, it is assessed whether the statement is unnecessarily offensive, in which case the statement can still be considered ‘insulting’”.[24]

The case in question involved the Arab-European League (AEL) publishing a cartoon on their website depicting two Jewish men examining corpses under a sign labeled “Auschwitz”. One of the men remarks, “I don’t think they are Jews”. The other responds, “We have to reach the 6,000,000 somehow”. The AEL argued that the primary aim of the cartoon was not to insult Jews, but to highlight a perceived double standard in the public debate on freedom of speech, particularly the differing assessments of offensive expressions against Muslims compared to those made by Muslims. The AEL contended that its intent was clarified through various public statements, including a disclaimer on its website. While the court of first instance accepted this argument as contributing to public debate, the appellate court and the Supreme Court found that even if the intent was sufficiently recognisable for third parties, it was still “unnecessarily offensive”. The courts concluded that demonstrating perceived double standards could have been achieved through alternative methods, and that the cartoon’s insulting nature — specifically, the assertion that Jews have exaggerated the Holocaust — was not justified. The AEL was thus found guilty under Articles 137c and 137e of the Criminal Code.[25]

In contrast, in 2016, the Arnhem Court of Appeal held that “the mere disputation of historical facts”, such as the occurrence of the Holocaust, while offensive, does not necessarily harm the self-esteem or reputation of the affected group – a condition required for an offence to be considered insulting under Article 137c of the Criminal Code. The case concerned statements by a defendant who referred to the Holocaust among others as a myth and a hoax created to establish the state of Israel. The Court of Appeal acquitted the defendant of charges under Article 137c of the Criminal Code.[26] It appears that this judgement would not be in line with the current Article 137c (2) of the Criminal Code.

7. Controversies

Controversies in the past have centered on legislative proposals aimed at limiting hate speech criminalisation and repealing Article 137c of the Criminal Code. These initiatives were partly in response to the 2008 trial of right-wing politician Geert Wilders (leader of the Partij voor de Vrijheid [Party for Freedom], PVV),[27] who faced prosecution for various statements made in interviews that were published online and in newspapers. In these, he frequently compared the Quran to Hitler’s Mein Kampf, labelled it a “fascist book” that should be banned, and claimed the need to halt the “Islamization” of the Netherlands. In addition, he produced a film, Fitna, portraying violent and antisemitic behaviour among Muslims.[28] The Court of Appeal acquitted Wilders of all charges, citing that most statements targeted Islam as a religion rather than Muslims as a group. Moreover, the remarks directed at Muslims occurred during a period when “the multicultural society and immigration played a prominent role in the social debate”, thus granting broader freedom of expression, particularly for politicians.[29] Notably, the court did not address the potential insulting impact of Wilders’ statements against Jews, despite the fact that it could be argued that some of these remarks might be perceived as relativising the Holocaust and were, therefore, insulting.

Scholars have observed that the debate about a potential conviction of Wilders under Articles 137c-e of the Criminal Code prompted the first critical examinations of these, up to that time widely accepted, provisions on insult and hate speech.[30] The subsequent proposal in 2009 of the conservative-liberal Volkspartij voor Vrijheid en Democratie (VVD) [People’s Party for Freedom and Democracy] to abolish Article 137c of the Criminal Code sparked public debate.[31] It focussed not solely on the proposal itself, but also on a remark made by then VVD faction leader Mark Rutte.[32] Rutte’s statement suggesting that the abolition of Article 137c of the Criminal Code would legalise Holocaust denial came as a shock and surprise to many.[33] Consequently, legislative efforts aiming to restrict hate speech criminalisation, notably through the VVD’s 2009 proposal law, as well as proposal laws in 2012[34] and 2014,[35] initiated by members of Wilder’s party PVV, were successful.

8. Further Reading

  • Esther Janssen, Aernout Nieuwenhuis, ‘De verhouding tussen vrijheid van meningsuiting en discriminatie in het Wilders-proces: een analyse van ‘het proces van de eeuw’’ (2012) 37(2) NJCM-Bulletin 177.
  • David Korteweg, ‘Strafbaarstelling negationisme: geschiedschrijving via het recht?’ [2010] (3) Mediaforum 79.
  • Marloes Van Noorloos, ‘The politicisation of hate speech bans in the twenty-first century Netherlands’ (2014) 40 Journal of Ethnic and Migration Studies 249.
  • Paul Velleman, Fien de Ruiter, ‘Het Babylonische artikel 137c Sr’ [2023] Boom Strafblad 142.

[1] These Articles incorporate the international crimes of genocide, crimes against humanity, war crimes, and the crime of aggression, as defined by the Rome Statute of the International Criminal Court, into national criminal legislation, with several additions to the definition of war crimes.

[2] Codification of crimes against peace, war crimes and crimes against humanity.

[3] Kamerstukken I, 2023-2024, 36491, Nr. A (Amended Version).

[4] The law was published in the Official Gazette on July 24, 2024, see: Staatsblad 2024, 207.

[5] Staatsblad 2024, 221.

[6] Kamerstukken II, 2005-2006, 30579, Nr. 2: the proposal was aimed at criminalising “the public denial, gross trivialisation, approval, or justification of genocide and crimes against humanity with the intent to incite hatred, discrimination, or violence against individuals or property based on their race, religion, beliefs, gender, or sexual orientation, or when it is suspected or reasonably should be suspected that such actions insult a group of people based on their race, religion, beliefs, or sexual orientation”.

[7] Kamerstrukken II, 30579, 2008-2009, Nr. 6.

[8] Marloes Van Noorloos, Hate Speech Revisited, A comparative and historical perspective on hate speech law in the Netherlands and England & Wales (Intersentia 2011), School of Human Rights Research Series vol 45, 188.

[9] See the Addendum to the Draft Minutes of 27 January 2009, 16395/08 ADD 1; see also Kamerstukken I 2007/08, 23490, DH.

[10] European Commission, Letter of formal notice, Combating racism and xenophobia: Commission calls on GREECE, the NETHERLANDS and LITHUANIA to fully transpose EU law criminalising hate speech and hate crimes, 9 June 2021

<https://ec.europa.eu/commission/presscorner/detail/en/inf_21_2743> accessed 08.07.2024.

[11] Kamerstukken II, 2023-2024, 36491, Nr. 3, 52.

[12] Kamerstukken II, 2023-2024, 36491, Nr. 3, 53.

[13] This is a change from the initial draft law, where the relevant provision had a uniform approach for all three acts, see: Voorstel van wet, Wet herimplementatie Europees strafrecht, 10.08.2023, Article 3, A, 10.

[14] Therefore making use of Article 1 (4) EU FD 2008.

[15] Kamerstukken II, 2023-2024, 36491, Nr. 3, 55 f.

[16] Kamerstukken II, 2023-2024, 36491, Nr. 3, 56.

[17] Compare, i.a., Garaudy v France (dec.), App no 65831/01 (ECtHR, 24 June 2003); M’Bala M’Bala v France (dec.), App no 25239/13 (ECtHR, 20 October 2015); Witzsch v. Germany (no. 2) (dec.), App no 7485/03 (ECtHR 13 December 2005); Perinçek v. Switzerland (GC), App no 27510/08 (ECtHR, 15 October 2015).

[18] Kamerstukken II, 2023-2024, 36491, Nr. 3, 55, with reference to: HR 27 October 1987, NJ 1988, 538; HR 25 November 1997, NJ 1998, 261; HR 27 March 2012, NJ 2012, 220; HR 26 June 2018, NJ 2019, 214.

[19] See e.g. Rechtbank’s-Hertogenbosch, 21 December 2004, 01/040521-04.

[20] See the parliamentary debate on a proposal law to amend the Criminal Code in relation to an extension of freedom of expression, notably by repealing Article 137c and restricting the scope of Article 137d: Plenair debat, 2016-2017, Nr. 36, Item 5; see also the explanatory memorandum to the “European Criminal Law Reimplementation Act”, where it is explicitly emphasised that Article 137d can form a basis of conviction for Holocaust denial: Kamerstukken II, 2023-2024, 36491, Nr. 3, 53 f.

[21] David Korteweg, ‘Strafbaarstelling negationisme: geschiedschrijving via het recht?’ [2010] Mediaforum 79, 81, with reference to ALJ Janssens, AJ Nieuwenhuis, Uitingsdelicten (Kluwer 2008) 156.

[22] A key case for this development is HR 14 January 2003, NJ 2003, 261; see for more: Paul Velleman, Fien de Ruiter, ‘Het Babylonische artikel 137c Sr’ [2023] Boom Strafblad 142.

[23] The right to freedom of expression is guaranteed by Article 10 ECHR, Article 11 EU Charter and Article 7 of the Constitution.

[24] HR 27 March 2012, NJ 2012, 220.

[25] See HR 27 March 2012, NJ 2012, 220; Marloes van Noorloos, Strafbaarstelling van ‘belediging van geloof’ (Boom Lemma uitgevers 2014) 31; Marloes van Noorloos, ‘The politicisation of hate speech bans in the twenty-first century Netherlands’ (2014) 40 Journal of Ethnic and Migration Studies 249, 259.

[26] Gerechtshof Arnhem-Leeuwerden, 27 May 2016, NJFS 2016/155.

[27] Marloes van Noorloos, ‘The politicisation of hate speech bans in the twenty-first century Netherlands’ (2014) 40 Journal of Ethnic and Migration Studies 249, 257.

[28] Rechtbank Amsterdam, 23 June 2011, NJ 212, 370.

[29] Rechtbank Amsterdam, 23 June 2011, NJ 212, 370; compare: Peter van de Waerdt, ‘Geert Wilders “Incitement to Discriminate” Trial’ (Verfassungsblog, 7 November 2016)

<https://verfassungsblog.de/geert-wilders-incitement-to-discriminate-trial/> accessed 08.07.2024.

[30] Marloes van Noorloos, ‘The politicisation of hate speech bans in the twenty-first century Netherlands’ (2014) 40 Journal of Ethnic and Migration Studies 249, 257.

[31] David Korteweg, ‘Strafbaarstelling negationisme: geschiedschrijving via het recht?’ [2010] Mediaforum 79, 79 with reference to ‘Ophef in VVD om uitspraak Rutte Holocaust’ NRC Handelsblad (28 May 2009); ‘Rutte spreekt met joden na ophef over Holocaust’ De Volksgrant (31 May 2009).

[32] David Korteweg, ‘Strafbaarstelling negationisme: geschiedschrijving via het recht?’ [2010] Mediaforum 79, 79.

[33] Marloes van Noorloos, ‘The politicisation of hate speech bans in the twenty-first century Netherlands’ (2014) 40 Journal of Ethnic and Migration Studies 249, 257.

[34] Kamerstukken II, 2011-2012, 33369, Nr 2.

[35] Kamerstukken II, 2014-2015, 34051, Nr. 2.

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