I asked Andy about the Wilders mistrial, and though he’s out and about and thus not in a position to blog about it, he had this to say via e-mail:
I believe [Dutch prosecutors] do have the same discretion [to not retry the case], but as we’ve seen, that’s very limited discretion — in their system, the court gets to reverse their charging decision.
It would seem to me that the interesting question here is double jeopardy — which is even stronger under European law than it is under U.S. law. In the U.S., we follow narrow DJ — it is seriously limited by 1- the so-called Blockburger “elements of the offense test” (i.e., if you get acquitted of robbing a bank, I can indict you the next day for conspiracy to do the same bank robbery — no double jeopardy even though the same evidence b/c substantive robbery and conspiracy are different crimes); and 2- the dual sovereignty doctrine (if you are acquitted in New York State for bank robbery, I can indict you federally the next day for the same bank robbery b/c NYS and the U.S. are not the same sovereign).
In Europe, they follow “equitable double jeopardy,” which basically means you get one shot to convict the guy for any acts arising out of a single criminal transaction. Wilders will argue, I’m sure, that they had their shot. The Dutch court may counter that it really wasn’t a full shot — more like a mistrial than a verdict because the presiding court never ruled even though the prosecutors tried to dismiss. (In our system, there is no DJ protection for a mistrial or a conviction that gets reversed on appeal based on some legal error, only for a verdict.)