Complainants against tobacco industry want ‘partisan’ judge to step down

The parties hoping to take the tobacco industry to court have called on Jan Wolter Wabeke to step down as chair of the judicial council that is handling the case. During a private dinner, Wabeke is alleged to have remarked disparagingly that “smoking is everybody’s personal responsibility”.

Last Thursday, Wabeke received a letter from lawyer Bénédicte Ficq, who represents the complainants against the tobacco industry. In the letter they express their total lack of confidence in an impartial handling of their case as long as Wabeke is involved. They therefore call on him to step down as chairman of the council that is overseeing the case.

At a recent dinner party with acquaintances, Wabeke was overheard discussing the case against the tobacco industry. Wabeke is alleged to have remarked disparagingly that “it’s everybody’s personal responsibility to smoke or not to smoke, and other individuals bear no responsibility for that choice”. Ficq obtained this information from one of those attending the event, whom she knows personally.

And it happens to be Jan Wolter Wabeke who, as chair of the judicial council, will decide on the request from the complainants to proceed with the prosecution against the tobacco industry. This is known as an ‘Article 12 procedure’. In this way, the complainants hope the court will call upon the Dutch Public Prosecutor’s Office (OM) to initiate proceedings against the industry.

Last February, the OM refused to initiate proceedings against the tobacco industry. The decisive argument was the OM’s position that ‘it is everybody’s personal responsibility to smoke or not’. Wabeke evidently shares the same point of view as the OM, concludes Ficq. “We are doomed to fail against someone with such a patently obvious private view, who also condescendingly preaches it at dinner parties,’’ says Ficq. “He should therefore have not taken on this case.’’

The personal views of leading jurist Jan Wolter Wabeke on the criminal case against the tobacco industry came as a blow to lawyer Bénédicte Ficq, who has already informed the many complainants of the development. One of the key reasons that the complainants want to take the tobacco industry to court is their argument that smoking, and continuing to smoke, is not a free choice at all but a serious addiction. Moreover, tobacco companies do all they can to ensure that smokers become dependent on cigarettes by making them as addictive as possible, according to the complainants.

Grievous bodily harm
Criminal lawyer Bénédicte Ficq is far from happy with the partiality of Justice Wabeke, which may further delay the case. Two years ago this month, lung cancer patient Anne Marie van Veen was the first to bring a case against the tobacco industry for, among other things, grievous bodily harm. Dozens of individuals and organizations, many of them from the medical world, followed her example.

After a year and a half of deliberation, the OM in February decided not to instigate proceedings. That same day, the complainants started an Article 12 procedure. Whatever the case, Bénédicte Ficq does not plan to initiate an Article 12 procedure with Wabeke. “If he doesn’t stand down voluntarily, we will make an objection,’’ says Ficq.

A party to a case who suspects that a judge is not impartial can have the judge removed. “If he doesn’t withdraw of his own accord, we will force him to do so,’’ says Ficq. “We can no longer expect impartiality from someone who takes a view identical to that of the OM. That’s very unfortunate. We were fully prepared for the case, and this is only going to delay matters. Moreover, it proves once more just how difficult it is in this case to fight against prejudice.’’

Jan Wolter Wabeke has not yet responded to the allegations.

Partial judge Wabeke withdraws from tobacco case. Lawyer calls for postponement of tobacco case

Judge Jan Wolter Wabeke will not face the anti-smoking lobby on Wednesday to decide on a possible prosecution of the tobacco industry. He has instead decided to withdraw. Criminal lawyer Bénédicte Ficq, who represents the complainants, wants to postpone the sitting. “The new judge needs time to prepare for the case.”

Wabeke was accused of partiality because, during a private dinner, he is alleged to have commented that “smoking is everybody’s personal responsibility”. Today he announced his willingness to withdraw. The court has granted his request. In his submission, Wabeke stated that the media reports about him had affected and irritated him deeply. It is not known who will replace Wabeke.

Text by Victor Schildkamp
(article published in the Dutch newspaper Algemeen Dagblad)