A judge who will help decide if a case against the big tobacco companies should be heard in court must be removed from the case because he is biased, the lawyer representing the plaintiffs has told the AD.

Jan Wolter Wabeke has shown himself to be biased and unsuitable by telling friends at a dinner party that ‘smoking is the responsibility of the individual,’ lawyer Benedicte Ficq said in a letter to the court.

Wabeke made the comments when the case came up for discussion during dinner and spoke in an patronising manner, Ficq says. She was told about his remarks by a friend at the same dinner party.

As an appeal court judge, Wabeke will have to rule on Ficq’s attempt to get the case heard in court, even though the public prosecution department has refused to support it.

In February, the department said it would not proceed with the criminal case against the big tobacco companies, arguing that tobacco products are legal and smokers themselves have the choice whether or not to accept the health risks.

The fact that Wabeke takes the same line as the public prosecutor renders him unsuitable to hear the case, Ficq says. ‘If he does not resign himself, we will take legal action to have him removed,’ she told the AD.

Big tobacco

The case, supported by Dutch hospitals, cancer charities and healthcare groups, was launched in 2016 by Ficq and lung cancer patient Anne Marie van Veen. They accuse the tobacco firms – Philip Morris International, British American Tobacco, Japan Tobacco International and Imperial Tobacco Benelux – of doing ‘deliberate damage to public health’ and ‘forgery of documents’.

The case describes the ‘crimes’ committed by the tobacco firms as ‘attempted murder, alternatively attempted manslaughter and/or attempted severe and premeditated physical abuse and/or attempted deliberate and premeditated injuring of health.’

In addition, they argue the big tobacco firms are guilty of ‘forgery since the tobacco manufacturers have for years declared emission levels of tar, nicotine and carbon monoxide on the packages of their tobacco products which were lower than the actual emission levels.’