DISTRICT COURT OF THE HAGUE Criminal Law Section CONTEXT TRIAL Case numbers (09/842489-14), (09/767038-14 en 09/767313-14), (09/767174-13 en 09/765004-15), (09/767146-14), (09/767256-14), (09767238-14 en 09/827053-15), (09/767237-14), (09/765002-15), (09/767077-14) Date of judgement: 10 December 2015 Contents Chapter 1: Introduction Chapter 2: The charges Chapter 3: Jurisdiction Chapter 4: The investigation Chapter 5: Investigation on the Internet (Facebook and Twitter) Chapter 6: Developments in Syria Chapter 7: Applicable law Chapter 8: Terrorist crimes Chapter 9: Other defences of inadmissibility Chapter 10: Views of the accused on the armed jihadi struggle in Syria Chapter 11: Incitement and dissemination of matter containing incitement, the legal framework Chapter 12: Incitement and dissemination of matter containing incitement as charged Chapter 13: Recruitment for armed struggle, the legal framework Chapter 14: Recruitment for armed struggle as charged Chapter 15: Conspiracy to, preparation and promotion of and participation in training to commit terrorist crimes, the legal framework Chapter 16: Participation in training to commit terrorist crimes, as charged Chapter 17: Conspiracy to, preparation and promotion of and participation in training to commit terrorist crimes, as charged Chapter 18: Participation in a criminal (terrorist) organization Chapter 19: Other charges Azzedine C. Chapter 20: Other charges Moussa L. Chapter 21: Legal findings, punishability of the offences and criminal liability Chapter 22: Sentencing considerations Chapter 23: Items seized Chapter 24: Applicable sections of the law 1Introduction 1.1 Many of the accused believe this trial prosecutes the Islam - or at least, their Islam. The defence also argued in a variety of ways that this trial is tantamount to criminalizing a religious persuasion. Not the accused’s acts, but their range of ideas is prosecuted and tried, the defence argued. They also asserted that any potentially unwelcome statements made by the accused were entirely or at least in large part protected by the right of freedom of speech to which the accused are entitled like everyone else. These accusations have prompted the court to start this judgment with some general considerations on the freedom of thought and opinion, the freedom of religion and personal beliefs, and the freedom of expression. 1.2 Everyone’s right to freedom of thought, conscience and religion is absolute. What people think and believe cannot be punishable. Only acts can be punishable, which include making statements, holding consultations, making plans or arrangements, and in a limited number of cases failing to do something when action was required. 1.3 Freedom of religion consists of more than the freedom to believe. Everyone is entitled to practise his religion, either alone or in community with others. To practise one’s religion also means to act according to the religion one adheres to, either alone or in a group. This includes observing religious rules and regulations, manifesting one’s faith in worship services, passing it on in education and upbringing, proclaiming it and founding organizations which have a religious object. 1.4 The freedom of religion and personal beliefs is deeply rooted in the Dutch (and European) legal order. This freedom is precious precisely because it applies equally to all religions and personal beliefs. It applies to Christianity, Judaism, Hinduism, Buddhism, humanism and, of course, to Islam, in all its persuasions, denominations and variations. 1.5 Freedom of expression is one of the cornerstones of our democratic society and is a condition for progress in society and the development of every human being. A democratic society is characterized by plurality, tolerance and broad-mindedness, and therefore requires that there is also scope for the exchange of information, thoughts and opinions that shock, offend or alarm the State or a large part of the population. The freedom of expression is also deeply rooted in the Dutch (and European) legal order. 1.6 Restrictions may be set to these freedoms, amongst other reasons to protect the rights and freedoms of others or for reasons of public interest. It is not allowed, for instance,publicly to offend or threaten people, to publicly incite to discrimination or hatred and violence against people on the grounds of their race, religion or sexual preference, or to publicly incite to the commission of crimes. However, these restrictions must always (
- i)be provided for by law, (
- ii)serve a lawful purpose and (iii) be necessary in a democratic society. 1.7 The court will elaborate on this framework for review later on in this judgment, and use it as a basis for assessing whether the utterances with which six of the accused are charged are inciting and therefore punishable. At this point the court wishes to make sure, however, that there is no misunderstanding about the non-punishability of:
- i)gathering to study the Qur’an, or gaining a more in-depth knowledge of the Islam or certain denominations within the Islam, including Salafism;
- ii)doing Da’wah - Da’wah is an invitation to Islam -, whether in enclosed spaces, in the streets or on the Internet; iii) organizing and participating in demonstrations, whether they draw attention to the position of Muslim detainees or protest against the suppression of the Syrian population by Assad, against the screening of a film or proposed measures concerning the wearing of face-covering clothing;
- iv)collecting money or goods for humanitarian assistance to victims of the violence in Syria;
- v)protesting against the foreign policy of the western world or of the Netherlands, whether concerning Syria, Israel or Palestine and whether in the traditional media, social media or by means of demonstrations;
- vi)similarly campaigning against democracy as a form of government and criticizing the way in which this is given shape in the Netherlands; vii) openly sympathizing with the objects and actions of terrorist organizations such as IS and al-Qaeda, also if this is done through biased web pages. That all this is possible, provided that it is done in a peaceful manner and with respect to the rights and freedoms of others, is one of the achievements of the democratic constitutional state. 1.8 The court also wishes to make sure that there is no misunderstanding that criminal law, subject to the freedoms referred to above, plays a limited but important role in countering terrorism. From an international point of view, terrorism is one of the worst crimes and it is incumbent upon all states to combat it. Criminal law is instrumental in both preventing acts of terrorism as much as possible and in prosecuting and trying them. 1.9 With regard to the former (the prevention of terrorism) the scope of criminal law has been extended considerably in the past ten years or so, particularly following the coming into force of the Act on Terrorist Crimes on 10 August 2004. This act implemented the Council Framework Decision of 13 June 2002 on Combating Terrorism, obliging the Member States to expand their jurisdiction to include crimes committed with terrorist intent, and to adopt harsher penalties for these crimes plus some crimes that are committed to prepare or promote a terrorist crime. The Netherlands has implemented this Framework Decision extensively in the Act on Terrorist Crimes. For instance, conspiracy to commit certain serious terrorist offences was made punishable, and the penalization of preparing or promoting terrorist acts was defined broadly. The Act also made it an offence to participate in an organization which has as its object the commission of terrorist offences. For participation in a terrorist organization a harsher punishment was adopted than for participation in an ‘regular’ criminal organization. This Act also provided for an article that penalizes recruitment for armed combat and increases the punishment if this combat constitutes the commission of a terrorist crime. The Act also increased the punishment for incitement if it involved incitement to a terrorist crime. More recent legislation has expanded the scope of criminal law by penalizing taking part in training and training others for terrorism, as well as the financing of terrorism. 1.10 In this way the legislator wished to give a clear field to combating terrorism. Undeniably, the penalization of acts in the pre-stage has given criminal law a more instrumental character. Obviously, courts have to be guided by the legislator’s choice. Point of departure is still, however, that only acts are punishable. 1.11 The court emphasizes that in these proceedings no use has been made of special criminal procedural provisions regarding terrorism. The accused and the defence have been able to exercise all the rights that they are entitled to in a ‘regular’ criminal trial, And the court will arrive at its decision in the same manner and on the basis of the same criteria as in such a ‘regular’ trial. As in any other trial it will assess on the basis of the charges whether Dutch criminal law is applicable, whether prosecution is not barred, whether there is legal and conclusive evidence that the offences have been committed as charged, and answer the question whether there are grounds for excluding criminal liability. 1.12 Finally, in this introductory chapter the court notes that there is no evidence of any kind that the accused, living in the Netherlands, intended to commit a terrorist act in the Netherlands, nor that they incited others to do so. The court emphasizes, however, that it is incumbent upon the Netherlands to counter terrorism anywhere in the world, and to adopt measures to contain the numbers of Dutch (young) Muslims who wish to participate in the armed jihadi struggle in Syria. 2The charges 2.1 The charges against the accused are set out in the (amended) indictment, which form part of this judgment as appendices A 1 through 12 inclusive. In summary, the charges are as follows: With respect to Imane B. (09/842489-14) Incitement to commit terrorist crimes, or crimes in preparation of or to facilitate terrorist crimes by co-administering and/or posting messages, images etc. on Facebook pages and/or a Twitter account, and/or Dissemination of these inciting messages, images, etc.; Participation in an organization that has as its object the commission of terrorist crimes, and/or Participation in an organization that has as its object the commission of serious offences. With respect to Oussama C. (09/767038-14 and 09/767313-14) Recruitment for the armed jihadi struggle of five named individuals; Incitement to commit terrorist crimes, or crimes in preparation of or to facilitate terrorist crimes by making speeches and/or posting messages on social media and/or making videos and sound fragments and uploading them to websites, including Nusrah bil-Jihaad on YouTube and/or other social media, and/or Dissemination of these inciting speeches, messages, videos etc., as well as having in stock for dissemination other inciting files; Participation in an organization that has as its object the commission of terrorist crimes, and/or Participation in an organization that has as its object the commission of serious offences. With respect to Azzedine C. (09/767174-13 and 09/765004-15) Recruitment for the armed jihadi struggle of six named individuals; Incitement to commit terrorist crimes, or crimes in preparation of or to facilitate terrorist crimes by (co)administering websites, including www.dewarereligie.nl, and posting speeches, articles and messages on them, and/or (co)administering and/or broadcasting speeches and songs on Radio Ghurabaa, and/or making videos and uploading them to YouTube, and/or posting messages and videos on various social media such as Twitter and Facebook, and/or organizing and/or participating in demonstrations, and/or Dissemination of these inciting messages, videos etc., as well as having in stock for dissemination other inciting files; Participation in an organization that has as its object the commission of terrorist crimes, and/or Participation in an organization whose object it is to commit serious offences; Incitement to hatred and/or discrimination and/or violence against people of Jewish descent on the grounds of their race and/or religion, and/or Defamation of people of Jewish descent on the basis of their race and/or religion; Libellous defamation against a civil servant. With respect to Rudolph H. (09/767146-14) Incitement to commit terrorist crimes, or crimes in preparation of or to facilitate terrorist crimes by (co)administering websites, including www.dewarereligie.nl, and posting speeches, articles and messages on them, and/or (co)administering and/or broadcasting speeches and songs on Radio Ghurabaa, and/or making videos and uploading them to YouTube, and/or posting messages and videos on various other social media such as Twitter and Facebook, and/or organizing and/or participating in demonstrations, and/or Dissemination of these inciting messages, videos etc., as well as having in stock for dissemination other inciting files; Participation in an organization that has as its object the commission of terrorist crimes, and/or Participation in an organization that has as its object the commission of serious offences. With respect to Jordi de J. (09/767256-14) Preparation and/or facilitation of terrorist crimes by taking part in training for the armed jihadi struggle in Syria; Participation in an organization that has as its object the commission of terrorist crimes, and/or and/or Participation in an organization that has as its object the commission of serious offences. With respect to Moussa L. (09/767238-14 and 09/827053-15) Incitement to commit terrorist crimes, or crimes in preparation of or to facilitate terrorist crimes by posting messages and/or videos on social media such as Twitter and Facebook, and/or making and/or taking part in videos and uploading them to YouTube, and/or Dissemination of these inciting messages and videos; Participation in an organization that has as its object the commission of terrorist crimes, and/or Participation in an organization that has as its object the commission of serious offences; Defamation of two police officers; Incitement to commit terrorist crimes, or crimes in preparation of or to facilitate terrorist crimes by posting messages and/or images on Twitter; Threatening, or alternatively insulting a police officer. With respect to Hicham el O. (09/767237-14) Conspiracy to, and/or Preparation or promotion of murder with terrorist intent and/or manslaughter with terrorist intent and/or causing explosions with terrorist intent and/or Preparation and/or facilitation of terrorist crimes by taking part in training for the armed jihadi struggle in Syria; Participation in an organization that has as its object the commission of terrorist crimes, and/or Participation in an organization that has as its object the commission of serious offences. With respect to Hatim R. (09/765002-15) Conspiracy to, and/or Preparation or promotion of murder with terrorist intent and/or manslaughter with terrorist intent and/or causing explosions with terrorist intent and/or Preparation and/or facilitation of terrorist crimes by taking part in training for the armed jihadi struggle in Syria; Incitement to commit terrorist crimes, or crimes in preparation of or to facilitate terrorist crimes by posting messages and/or images on Facebook and Twitter, and/or Dissemination of these inciting messages and images; Participation in an organization that has as its object the commission of terrorist crimes, and/or Participation in an organization that has as its object the commission of serious offences. With respect to Anis Z. (09/767077-14) Conspiracy to, and/or Preparation or promotion of murder with terrorist intent and/or manslaughter with terrorist intent and/or causing explosions with terrorist intent and/or Preparation and/or facilitation of terrorist crimes by taking part in training for the armed jihadi struggle in Syria; Participation in an organization that has as its object the commission of terrorist crimes, and/or Participation in an organization that has as its object the commission of serious offences. 3Jurisdiction 3.1 All the accused are charged with having participated in a (terrorist) criminal organization. All indictments specify “The Hague and/or elsewhere in the Netherlands and/or in Iraq and/or in Syria” as places where the offences were committed. 3.2 Counsels for the defence of Imane B., Oussama C. and Moussa L. argued that it has not been established for a fact that the crimes to be committed abroad which this organization has as its object are also punishable in Iraq and Syria. Therefore, the requirement of double criminality for the Dutch court to have jurisdiction, in this case under Article 5
(1)
(2)(old) (Dutch) Criminal Code, has not been met. According to the defence, the prosecution of ‘crimes committed abroad’ is consequently inadmissible. 3.3 The accused Hicham el O., Hatim R. and Anis Z. are charged with, inter alia, conspiracy to murder and causing explosions, both with terrorist intent. According to the summons Hicham el O. committed these offences “in The Hague and/or elsewhere in the Netherlands and/or in Syria and/or in Yemen and/or in Iraq; Hatim R. “in the Netherlands and/or in Syria and/or in Iraq” and Aniz Z. “in the Netherlands and/or in Belgium and/or in Turkey and/or in Syria and/or in Iraq”. In answer to questions put to it by the court (immediately after the defence counsels’ speeches) the prosecution said in its replythat it considered conspiracy proved for each of the accused only in as far as they were in Syria in July 2013. The court then pointed out to both prosecution and defence the revised regulation concerning the applicability of Dutch criminal law, which entered into force on 1 July 2014, particularly the new article 6 DCC and article 4
(2)of the International Obligations with regard to Extraterritorial Criminal Jurisdiction Decree (Bulletin of Acts and Decrees 2014, 47) (hereinafter: the Decree). The prosecution responded with a memorandum arguing that the Dutch court has jurisdiction over the crimes referred to here because (i) article 4
(2)of the Decree has retroactive effect and (ii) there is double criminality because it emerged from the texts of relevant articles of the law which have been submitted that conspiracy to commit terrorist crimes is also punishable in Syria. Subsequently, the defence counsels for Imane B., Oussama C., Moussa L. and Hicham el O. expressed an opinion on the subject of jurisdiction in their rejoinder. 3.4 The court finds as follows. 3.5 Whether the court has jurisdiction should first and foremost be assessed on the basis of the charges, without consideration to whether the charges can be proven. If after answering the evidentiary question it turns out that there is no basis for jurisdiction of the Dutch courts, prosecution must be barred after all. 3.6 Article 2 of the Dutch Criminal Code [hereinafter: DCC] provides that Dutch criminal law is applicable to anyone committing an offence within the Netherlands. If an offence is committed both inside and outside the Netherlands, prosecution of “the acts forming part of the offence that took place outside the Netherlands” is also possible pursuant to legal precedent. For this reason the defence as described in 3.2 fails. 3.7 Pursuant to art. 6 DCC in conjunction with art. 4
(2)of the Decree Dutch criminal law is also applicable to Dutch nationals or aliens having permanent residence in the Netherlands committing a terrorist crime outside the Netherlands. The definition of a terrorist crime is given in art. 83 DCC. Conspiracy to murder with terrorist intent and conspiracy to cause an explosion with terrorist intent qualify, inter alia, as such terrorist offences. 3.8 These provisions have entered into force on 1 July 2014. The question to consider, therefore, is if they also apply if the charges were committed abroad before that date. The answer to this question is of particular interest in the cases against Hicham el O., Hatim R. and Anis Z., because if the answer is negative the court will have to bar the prosecution with regard to conspiracy to murder with terrorist intent and conspiracy to cause an explosion with terrorist intent if it agrees with the prosecution that there is no evidence that these offences were also committed inside the Netherlands.. 3.9 The possibility of assigning retroactive effect to criminal provisions is limited by the principle of legality. It entails that no retroactive effect can be vested in provisions penalizing an action or an omission. The prohibition on retroactive force to the detriment of an accused person also applies to provisions concerning the gravity and type of punishments to be imposed. This prohibition on retroactive force does not apply to provisions under which the Netherlands expands its jurisdiction, however. The Supreme Court, for instance, in its judgment of 21 October 2008 (NJ 2009, 108), found explicitly that there was no provision opposing the assigning of retroactive force to a jurisdiction provision regarding the prosecution of genocide in the International Crimes Act. Subsequently, the legislator, with retroactive force, expanded the jurisdiction in this Act for the prosecution of genocide. In the explanatory memorandum to the bill that led to this amendment of the International Crimes Act the Minister of Justice did emphasize that, generally, restraint should be exercised in assigning retroactive force to a regulation changing the jurisdiction rules, and in answer to a parliamentary question if this is desirable only in very exceptional circumstanceshe said that whether there are exceptional circumstances justifying the conferral of jurisdiction with retroactive effect should be looked at on a case-by-case basis. 3.10 When revising the rules regarding extraterritorial jurisdiction in criminal cases the legislator explicitly chose not to limit its exercise to offences committed after the entry into force of the new provision.After a comment on this in the advice of the Council of State, the retroactive effect of articles 5, 7
(3)and 8(c) Dutch Criminal Code has been limited in article IV of the Bill. From this it may be inferred, as the prosecution has, that the new article 6 DCC and article 4
(2)of the Decree which is based on it, have unlimited retroactive effect. 3.11 This conclusion, which is in itself correct, is hardly compatible with the remark in the Explanatory Memorandum to the Bill, that the proposed new article 6
(1)DCC does not mean to change the scope of the existing jurisdiction rules, however.The Explanatory Memorandum to the Decree also says that the possibilities to exercise jurisdiction under article 6 DCC in conjunction with the provisions in the Decree have remained unaltered in a substantive sense compared to the possibilities under to the old provisions in the Dutch Criminal Code. 3.12 This caused the court to investigate what extraterritorial jurisdiction options existed with regard to terrorist crimes under the old regime. According to the Explanatory Memorandum to the Decree, what is provided for in article 4
(2)of the Decree corresponds with part of the (former) article 5(a)
(1)DCC. The court believes that this is based on a misunderstanding. The said (former) article 5(a)
(1)DCC declared Dutch criminal law applicable to aliens who have domicile or residence in the Netherlands and who commit a number of crimes abroad specified later on in this article, which include terrorist crimes. Strangely however, there was no such provision for people possessing Dutch nationality. The jurisdiction with regard to crimes committed abroad by Dutch nationals was provided for in (the former) article 5 DCC. It provided that Dutch criminal law was only applicable if the offence that is considered punishable pursuant to Dutch criminal law was also punishable in the country in which it was committed, with the exception of the crimes listed in the article to which the requirement of double criminality did not apply. These did not include terrorist crimes. Important in this connection is also (the former) article 4 DCC, which declared Dutch criminal law applicable to anyone who committed, inter alia, certain terrorist crimes abroad, but only if ‘either the offence is committed against a Dutch national, or the suspect is in the Netherlands’or in the case of terrorist crimes which were aimed, summarily put, at the Netherlands.Therefore, the court concludes that under the old rules Dutch criminal law was applicable to aliens residing in the Netherlands who committed a terrorist crime abroad that is not directly aimed against the Netherlands, but was not applicable to Dutch nationals who committed such a crime abroad, except, of course, it was demonstrated that the crime is also punishable in the country where it was committed (which will usually be the case). 3.13 Article 9
(1)(
- c)of the Framework Decision of the Council of the European Union on Combating Terrorism of 13 June 2002 (PbEU [Official Journal of the European Union ] L164) obliges member states to create jurisdiction with regard to its own citizens or residents who commit the crimes referred to in the Framework Decision. As is evident from the parliamentary history to the bill that led to the Act on Terrorist Crimesthe legislator for the implementation of this obligation did not consider it necessary to amend the law as far as nationals were concerned, because the existing article 5 DCC provided for them, but it did for residents, and as a result amended article 5(
- a)DCC. As the court explained above, this led to the creation of a broader extraterritorial jurisdiction over terrorist crimes in respect of aliens residing in the Netherlands than in respect of Dutch nationals. The parliamentary history offers no basis to assume that the legislator wished to make this distinction intentionally. 3.14 Article 4
(2)of the Decree has put an end to this unintended and unjustifiable distinction. Dutch criminal law does not distinguish between Dutch citizens and foreign residents of the Netherlands who commit a terrorist offence abroad any longer, irrespective of whether the offence is punishable in the country in question. The court considers it justifiable to attach retroactive effect to this provision because (
- i)this concerns the implementation of an obligation under a Framework Decision of the European Union that has existed since 2002, (
- ii)this provision repairs a flaw in the implementation of this Framework Decision and (iii) the legislator explicitly intended to assign retroactive force to this decision. 3.15 The conclusion must be, therefore, that the Dutch courts have jurisdiction over
- a)offences that have been committed in the Netherlands or partly in the Netherlands and partly abroad and
- b)terrorist offences including conspiracy to murder with terrorist intent and conspiracy to causing an explosion with terrorist intent that have been committed abroad by Dutch citizens and aliens residing in the Netherlands. 4The investigation The police investigation 4.1 The investigation Context started in April 2013 after various individuals had laid information to the police about recruitment for the armed struggle in Syria. At first the investigation targeted recruitment and the prevention of travelling to Syria. However, an increasing number of young persons departed to Syria, particularly from The Hague area, to participate in the armed jihadi struggle there. In the course of the investigation suspicions arose that an organized group was involved in incitement to, and promotion and preparation for participation in the armed jihadi struggle in Syria. In view of this, the investigation was scaled up to include several terrorist crimes. 4.2 During the Context investigation, seventeen suspects came to the fore. Ten of them were believed to participate in a criminal terrorist organization. These ten suspects were subsequently summoned, in view of the interrelatedness of the cases against them. The other seven suspects were not charged with participation in a criminal terrorist organization. According to the Prosecution Service they have traveled to Syria. They may be prosecuted and tried at a later stage. 4.3 Of the ten accused persons who were summoned three accused - Hatim R., Anis Z. and Soufiane Z. - are believed to have departed for Syria and to be participating in the armed jihadi struggle there. The cases against Hatim R. and Anis Z. are heard in default of appearance; leave has been granted to proceed against them. 4.4 The case against Soufiane Z. is exceptional. B.Th. Nooitgedagt, LL.M., presented himself as his counsel on 6 January 2015. On 14 January 2015 the suspect was sent a notice of prosecution, a copy of which was sent to his counsel. Before the hearing of 19 February 2015 messages appeared that the accused had died. At the pre-trial reviews of 19 February 2015 and 14 April 2015 counsel declared explicitly that he was authorized to conduct the accused’s defence at the trial. On 6 October 2015 he declared he was no longer authorized to represent his client as it was beyond all doubt to him that the news coverage about his client’s death was true. On 8 October 2015 the court barred prosecution, because it held that it was very likely that the accused had died. On 11 November 2015 the Court of Appeal at The Hague set aside this judgment and referred the case back to the District Court in order to give judgment on the charges before the court with due observance of the Court of Appeal’s judgment. The Court of Appeal found that it could not be established with sufficient certainty that the accused was no longer alive, so that for the moment the opposite should be assumed. On 24 November 2015 the District Court eventually stayed the proceedings for an indefinite period of time awaiting further news about whether or not the accused had died.The District Court found that continuation of the trial in the absence of the accused and without counsel authorized to represent him in this particular case would not meet the requirements of a fair trial. Moreover, if the trial was continued and counsel was allowed to conduct a (flawed) defence without counsel being authorized to represent the accused, the risk of a “phantom trial” would remain just as large, as the accused is a missing person. 4.5 This judgment is therefore delivered in the cases against the other nine accused. The documents in the case are the following. A framework case file, an organization file, files on the accused, case files focusing on each of the accused individually, files on methodology adopted and files on items seized.The entire (digital) file has been made available to the counsels of those accused who appeared before the court. The files on the substance total approximately 17,000 pages and the files on methodology and items seized approximately 6,500 pages. 4.6 During the investigation co-operation has been sought with community police officers who knew the accused well and had sometimes known them from an early age on. The accused have also been under surveillance, telecommunications have been intercepted and they have been followed on the Internet. The next chapter will address digital investigation, by means of which various websites, social media and mail accounts of the accused have been secured. Furthermore, searches have been conducted, and items such as, inter alia, telephones, computers, tablets, flags, books and writings have been seized. In addition, the police have heard large numbers of witnesses. Pre-trial detention 4.7 The police investigation has led to the following arrests and custodial measures: Imane B. was arrested and remanded in police custody on 2 September 2014. On 5 September 2014 the Examining Magistrate ordered her remand in custody. On 12 September 2014 the Public Prosecutor released her; Oussama C. was arrested and remanded in police custody on 24 June 2014. He was remanded in custody by order of the Examining Magistrate on 27 June 2014 and his detention in custody was ordered by the District Court on 9 July 2014. On 6 October 2015 the District Court granted temporary release from his pre-trial detention until the day of the judgment; Azzedine C. was arrested and remanded in police custody on 2 September 2014. He was remanded in custody by order of the Examining Magistrate on 5 September 2014. He has been in pre-trial detention since; Rudolph H. was arrested on 27 August 2014 and remanded in police custody on 28 August 2014. He was remanded in custody by order of the Examining Magistrate on 29 August 2014 and his detention in custody was ordered by the District Court on 10 September 2014. On 22 September 2015 the District Court granted temporary release from his pre-trial detention until the day the of the judgment; Jordi de J. was arrested and remanded in police custody on 30 September 2014. He was remanded in custody by order of the Examining Magistrate on 3 October 2014. On 16 October 2014 his detention in custody was ordered by the court in chambers dealing with extension of detention in custody in the District Court, but it immediately granted temporary release. This temporary release from pre-trial detention was withdrawn by the same court in chambers on 3 February 2015 because Jordi de J. had not complied with the conditions set. He was again granted a temporary release by the court in chambers dealing with extension of detention in custody in the Court of Appeal on 22 June 2015; Moussa L. was arrested and remanded in police custody on 7 October 2014. He was remanded in custody on 10 October 2014, and subsequently his detention in custody was ordered. Temporary release from pre-trial detention was granted on 23 October 2014 by the court in chambers dealing with extension of detention in custody in the District Court. This temporary release from pre-trial detention was withdrawn by the same court in chambers on 9 January 2015 because Moussa L. had not complied with the conditions set. Temporary release from pre-trial detention was granted again on 5 February 2015 by the court in chambers dealing with extension of detention in custody in the District Court; Hicham el O. was arrested and remanded in police custody on 2 September 2014. He was remanded in custody on 5 September 2014 and his detention in custody was ordered on 17 September 2014. On 4 December 2014 the District Court granted temporary release from his pre-trial detention until the day the of the judgment; On 19 February 2015 and 29 June 2015, respectively, the District Court ordered the arrest at trial of Anis Z. and Hatim R. who had failed to appear. 4.8 The accused were remanded at the Terrorism Wing of the Penitentiary Institutions De Schie and Vught (hereinafter: TW). This arises from the Selection, Placement and Transfer of Detainees Regulation which provides that anyone who is under suspicion of having committed or who is convicted for terrorist crimes is, in principle, places in a designated TW with a very strict regime.At the trial the accused and their counsels have repeatedly criticized both this automatic placement as well as the strictness of the regime, particularly the intimate searches the accused are subjected to each time. After some months counsels challenged this procedure by objecting to the Selection Officer, the Complaints Committee and the Council for the Administration of Criminal Justice and Protection of Juveniles. 4.9 The court has repeatedly emphasized that it understands these objections, but that it is not in a position to bend the policy rule or to give instructions regarding the detention regime. The court has requested the Prosecution Service to examine whether the objections of the accused could be met as much as possible. The prosecution service has demonstrated to understand the accused’s objections, particularly with regard to the intimate searches. However, the Prosecution Service is also not in a position to change policy rules, nor is it responsible for the regime in force in a TW. On the insistence of the Prosecution Service the State Secretary for Security and Justice created a working party to investigate this issue and, if possible, to come up with equivalent alternatives and solutions. The State Secretary has since informed the Lower House, in a letter dated 3 July 2015, that he believes it is necessary to offer more custom-made solutions than are available now. 4.10 The court notes however, that (strict observation
- of)the rules regarding detainees on a TW does not constitute a violation of the right to fair trial, as laid down in article 6 ECHR. The court adds that duration and gravity of the detention are aspects that may play a role when considering the personal interests of the accused on the one hand and the criminal-law interest on the other. The investigation by the Examining Magistrate 4.11 The court left the control of the investigation by the Examining Magistrate under the auspices of the Examining Magistrate. For that purpose the case was referred back to the Examining Magistrate each time in open referral to perform whatever he considered necessary or otherwise useful and desirable in the interest of the investigation. The court acted as a court of appeal, deciding about investigation requests rejected by the Examining Magistrate but still existing on the part of the defence. 4.12 The Examining Magistrate heard over 50 witnesses for the benefit of all cases, both in the Netherlands and in the United Kingdom. Counsels were given the opportunity to attend all witness examinations. In chapter 14 the court will address Witness no. 1, who was examined both by the Examining Magistrate and at the trial in court. 4.13 Some defence counsels requested to hear a number of witnesses who were in Syria at that moment in time. The Examining Magistrate allowed these requests. However, the Examining Magistrate considered it impossible to hear these witnesses in actual practice. The defence then requested the court to order the Examining Magistrate to put more effort into it. The court rejected this request because it considered it illusory that the witnesses, who were in all probability in a war zone, could be examined, and because there were no guaranties that examination by video link could be set up in a responsible way. Nor did the Examining Magistrate succeed in hearing three witnesses it had allowed who live in Belgium, to wit Witness no. 2, Witness no.3 and Witness no. 4. Witness no. 2 refused to be heard, Witness no. 4 was not found in the known Belgian address and Witness no.3 could not be called successfully by the Belgian authorities. The experts (expert witnesses) 4.14. Doctor Martijn De Koning, cultural anthropologist, was appointed as an expert and heard as a witness in this case. He has published on the subject of Muslim activism, Salafist Muslims in the Netherlands, Islamophobia and policies concerning Muslims and the Islam. He has researched how in 2009-2013 the activism of various Da’wah networks in the Netherlands, in which a number of the accused played an important role, related to the attention paid by and practices of the authorities and the media. For his research he relied on interviews, offline and online observations, Facebook discussions and chats and countless informal conversations with activists and others who are involved. For research purposes De Koning spent as much time as possible with the activists, among them a number of the accused, and maintained good professional relations with them. The research culminated in the report ‘Eilanden in een zee van ongeloof’ [meaning ‘Islands in a sea of disbelief’], which was published in December 2014. In answer to questions put to him by the defense counsels De Koning wrote an extensive explanation to this research in may 2015. He was subsequently heard by the Examining Magistrate for two full days. His examination in court also took two full days. 4.15 The court regards De Koning as an exceptionally valuable expert witness. Because of his profession he is a professional observer, has an extensive knowledge of denominations within Islam, more particularly Salafism, and has been in close contact with many of the accused for a prolonged period of time. He could tell the court much about them and their range of ideas. The court has no cause whatsoever to doubt his expertise, reliability and credibility. More particularly, the court finds that there is no evidence that a lack of distance would have compromised the value of his observations and statements. As a witness he answered all questions about the accused. Of course, this does not affect the fact that he did not know everything about the accused. The court further notes that De Koning is not a criminal law expert and that his opinions about the possibly inciting nature of certain of the accused’s utterances have only limited significance, therefore. 4.16 Furthermore, professor doctor Peters, emeritus professor in Islamic and Middle Eastern law was appointed as an expert in a later stage by the Examining Magistrate upon request of the prosecution. He was asked to express an opinion about texts, images and videos of the accused, inciting or otherwise. He produced two reports on the subject in a limited timespan. Professor doctor Peters was also examined by the court at the trial. The court finds that Peters is an expert on the Islam and that he was asked to explain certain utterances of the accused on the basis of that expertise. However, he is not a expert in the field of (ECtHR case law concerning) speech offences. 4.17 Finally, emeritus professor doctor Van Koningsveld, Islamologist, was appointed as an expert. He wrote a concise and lucid report in answer to questions put to him by a few defence counsels. The examination in court 4.18 Pro forma hearings were held on 29 September 2014 (in the case against Oussama C.), 1 December 2014 (in the cases against Oussama C., Azzedine C., Rudolph H. and Hicham el O.), 19 February 2015 (in the cases against Oussama C., Azzedine C., Rudolph H., Anis Z. and Hatim R.), 14 April 2015 (in the cases against Oussama C., Azzedine C., Rudolph H., Jordi de J. and Hatim R.) and 29 June 2015 (in the cases against Oussama C., Azzedine C., Rudolph H., Jordi de J. and Hatim R.). 4.19 Hearings on the substance of the case took place for ten weeks on (almost) every Monday, Tuesday and Thursday. The hearings were held on: 7, 8 7, 8 and 10 September 2015: examination of the experts/ expert witnesses De Koning and Peters 7, 8 14 and 15 September 2015 and 8 October 2015: questioning of Rudolph H. 7, 8 17 September 2015: questioning of Hicham el O. and examination Witness no.1 7, 8 21, 22, 24 and 28 September 2015: questioning of Azzedine C. 7, 8 29 September and 1 and 5 October 2015: questioning of Oussama C. 7, 8 5 October 2015: questioning of Imane B. 7, 8 6 October 2015: hearing Anis Z. and Hatim R. 7, 8 8 October 2015: questioning of Moussa L. 7, 8 15 October 2015: questioning Jordi de J. (partially behind closed doors) 7, 8 19 and 20 October 2015: the prosecution’s closing speech demanding sentence 7, 8 26, 27 and 29 October 2015 and 2 November 2015: defence counsels’ pleas 7, 8 6 November 2015: prosecution’s reply 7, 8 10 November 2015: rejoinder defence counsels and last word by the accused 7, 8 26 November 2015: formal closing of the examination in court. 4.20 The cases were not consolidated. In part they were dealt with simultaneously (the examination of De Koning and Peters, the prosecution’s closing speech and the prosecution’s reply), in part separately (the separate questioning of the accused, the defence counsels’ pleas and the rejoinders). The examination of Witness no.1 occurred simultaneously in the cases against Azzedine C., Oussama C and Jordi de J. Defence counsels were given the opportunity to attend all witness examinations. In their pleas, they could also refer to the arguments submitted by the other defence counsels. To speed up proceedings the prosecution and the defence did not quote verbatim from case law and literature on the request of the court, but referred to it or included it in annexes where possible. 4.21 Prior to these hearings documents and opinions were often exchanged via e-mail correspondence for the sake of swiftness. Also, regular informal (agenda-setting) consultations took place between the presiding judge, accompanied by one of the clerks of the court, the public prosecutors and the defence counsels. All parties were kept informed of the substance of the consultations. This procedure contributed to an efficient trial in court. 4.22 Prior to their questioning the accused Azzedine C., Rudolph H. and Oussama C submitted extensive written opinions on the case file. Furthermore, Azzedine C. and Rudolph H. wrote extensive written responses to the prosecution’s closing speech. Altogether, the documents submitted by Azzedine C. totalled some 400 pages, by Rudolph. H. over 600 pages and by Oussama C. 50 pages. The court included these documents in all the case files. The demands made by the prosecution 4.23 The prosecution concludes that the charges can be declared partially proven and demands that the following custodial sentences be imposed on the accused, with deduction of time spent in pre-trial detention. 4.24 With regard to Imane B. the prosecution considers proved multiple incitement with terrorist intent and participation in a criminal and terrorist organization. In view of her major role in the incitement, but minor role in the organization the prosecution demands an unconditional custodial sentence of two years, as well as a warrant for her arrest when final judgment is given. 4.25 The prosecution considers proved that Oussama C. committed the following offences: recruitment of one individual, multiple incitement with terrorist intent, having in stock materials intended to incite with terrorist intent and participation in a criminal and terrorist organization. In view of his important role as the ideological driving force within the organization, the fact that he participated in It for a shorter period of time and his relatively young age, the prosecution demands an unconditional custodial sentence of five years. 4.26 The prosecution demands that the court finds legally and conclusively proved that Azzedine C. committed the following offences: multiple incitement with terrorist intent, having in stock materials intended to incite with terrorist intent, incitement to hatred of or insulting a population group, libellous defamation against a police officer and participation in a criminal and terrorist organization. According to the prosecution Azzedine C. was the leader of the organization, goaded the others and was involved in most of the activities (as initiator or otherwise). The prosecution demands that the court impose an unconditional custodial sentence of seven years. 4.27 The prosecution concludes with regard to Rudolph H. that the following charges have been proved: multiple incitement with terrorist intent, having in stock materials intended to incite with terrorist intent and participation in a criminal and terrorist organization. In view of his pivotal role in the incitement and long-term participation in the organization the prosecution demands an unconditional custodial sentence of six years. 4.28 With regard to Jordi de J. the prosecution considers that the following charges have been proved: preparatory acts to commit terrorist crimes under art. 134a DCC and participation in a criminal and terrorist organization. According to the prosecution Jordi de J. participated in the organization for two brief spells, travelled to Syria for participation in training to commit terrorist acts, made false statements about this at the trial and is of diminished responsibility. The prosecution demands that the court impose a largely conditional sentence so that the extensive treatment programme of the Probation Service can be implemented. The prosecution demands a custodial sentence of three years, of which one year suspended, with the imposition of special conditions as recommended by the Probation Service and the NIFP, as well as termination of the temporary release granted when sentence is pronounced. 4.29 The prosecution considers proved that Moussa L. committed the following offences: incitement with terrorist intent, threatening an reporting officer, insulting two reporting officers and participation in a criminal and terrorist organization. The prosecution notes that Moussa L. participated in the organization as a follower for quite some time. The prosecution considers Moussa L.’s anger cause for serious concern and therefore finds it important that, although this was not recommended by the Probation Service, Moussa L. receives treatment for anger management under the supervision of the Probation Service. The prosecution demands a custodial sentence of 30 months, of which 10 months suspended, subject to the special condition of compliance with the Probation Service’s instructions, to include undergoing treatment for anger management and aggression regulation, as well as termination of the suspension of pre-trial detention when final judgment is delivered. 4.30 With regard to Hicham el O. the prosecution considers that the following charges have been proved: conspiracy to, acts preparatory to the commission and facilitation of terrorist crimes and participation in a criminal and terrorist organization. In view of his taking part in the armed struggle, his brief service to the organization as link between the Netherlands and Syria, and his insulting conduct at the trial, the prosecution demands a custodial sentence of four years, of which one year suspended, with the imposition of special conditions as recommended by the Probation Service, as well as termination of the suspension of pre-trial detention when final judgment is delivered. 4.31 With regard to Hatim R. the prosecution considers that the following charges have been proved: conspiracy to, acts preparatory to the commission and facilitation of terrorist crimes, incitement with terrorist intent and participation in a criminal and terrorist organization. The prosecution demands an unconditional custodial sentence of six years in view of his prolonged taking part in the violent jihadi struggle, incitement (which includes incitement against the West) and the fact that within the organization he was an important link between Syria and the Netherlands. 4.32 With regard to Anis Z. the prosecution considers that the following charges have been proved: conspiracy to, acts preparatory to the commission and facilitation of terrorist crimes and participation in a criminal and terrorist organization. According to the prosecution he took part in the armed jihadi struggle for a prolonged period of time, including in the period as charged, and he participated in the organization in a limited role for a short period of time. The prosecution demands an unconditional custodial sentence of five years. 5Investigation on the Internet (Facebook and Twitter) Introduction 5.1 Facebook is a social network on the Internet. A Facebook user can write information about himself on his or her account (also called page) and can post messages, photographs and videos on it. The user can also share information posted by other Facebook users on their accounts. The information to a (partially) public Facebook page is accessible to anyone, including to people who do not have a Facebook account of their own. The information on a (partially) private Facebook page is only accessible to people who have a Facebook account themselves and have accepted a request from the user of that page to become a ‘friend’, or who have been ‘accepted’ as such after themselves having requested that user to be allowed to become a ‘friend’. Facebook users can see whether a Facebook page, or a part thereof, is private. If a Facebook page is (partially) private, the information on that page is only accessible to those who have been approached by the user/administrator of that page and have accepted that user/administrator’s invitation to become a ‘friend’. To Facebook users (who are not a ‘friend’ of that page) the existence of a (partially) private Facebook page is not visible. 5.2 Twitter is a communication medium on the Internet. Via their own account users can announce to the world in messages (‘tweets’) of no more than 140 characters what they are interested in and what has attracted their attention, and share facts or news items. Twitter users can also forward (‘retweet’) messages of others. The total of all messages sent and shared by a users constitutes a kind of ‘mini blog’ (Twitter page). Twitter pages can be visited by anyone who wishes to do so; one does not need a Twitter account of one’s own. 5.3 Azzedine C., Oussama C, Rudolph H., Moussa L. and Hatim R. used social media. They had or administered one or several Facebook pages. Azzedine C. was also a member of the Facebook page Werkgroep Shaam. Furthermore, Azzedine C., Rudolph H., Moussa L. and Hatim R. had one or several Twitter accounts. 5.4 As part of the investigation the police monitored the messages posted on social media (where relevant) of Azzedine C., Oussama C, Rudolph H., Imane B., Moussa L. and Hatim R. 5.5. In order to get a better information position on Facebook, and more particularly to get an insight into the contacts of the various suspects and their specific utterances, the police created a Facebook account in the name of Aboe Noewas on 5 June 2013. From 21 June 2013 through 1 September 2014 the police posted messages, photographs and videos on this Facebook page almost every working day. This information was shared ‘publicly’. For the same purpose the police also created a page in the name of Ab Bashir. This page existed between 6 April 2014 through 19 August 2014.5.6. On 7 September 2013 Aboe Noewas sent a message to one of the Facebook pages of Azzedine C. to find out where Azzedine C. and others played football at the time. 5.7. Aboe Noewas also sent friend requests to the Facebook pages of Moussa L., Oussama C. , Azzedine C and Rudolph H., or at least to the pages they administered. Moussa L. accepted the friend request by Aboe Noewas on 1 July 2013 and Oussama C. on 9 May 2014. Azzedine C. (who had several Facebook pages) became a ‘friend’ of Aboe Noewas’s on 11 June 2014 and 20 June 2014. Earlier friend requests by Aboe Noewas (in December 2013 and on 13 May 2014) had been rejected by Azzedine C. Rudolph H. also accepted a friend request by Aboe Noewas, but the police can no longer find when this was. 5.8 On 25 April 2014 Azzedine C. added the Facebook profile of Ab Bashir to the Facebook profile of Werkgroep Shaam. 5.9 From December 2013 through 1 September 2014 the police preserved (part
- of)the messages on the Facebook pages and Twitter accounts several times a week by copying and saving them. 5.10 The secured (parts) of the personal Facebook pages of Azzedine C., Oussama C. and Hatim R. and the Facebook pages of Shaam al-Ghareeba and Radio Ghuraaba were publicly accessible. In retrospect, this could no longer be established about the Facebook page of Moussa L. The Facebook page of Werkgroep Shaam was a private page. 5.11 The investigation on the Internet as explained above was based on a number of orders under art. 126j of the Dutch Code of Criminal Procedure [hereinafter: DCCP]: in the case against Azzedine C.: an order for the period from 13 June 2013 through 10 September 2013 and an order for the period from 25 April 2014 through 23 July 2014; in the case against Oussama C..: an order for the period from 1 May 2014 through 31 July 2014 and in the case against Rudolph H.: an order for the period from 12 May 2014 through 9 August 2014. 5.12 The defence counsels of Oussama C., Imane B. and Moussa L. requested the prosecution in the spring of 2015 to provide an insight into the investigative activities conducted on the Internet. In response the prosecution supplied information, but could not access everything any longer. Breach of procedural rules due to the systematic obtaining of information without orders (under art. 126j DCCP)? 5.13 The defence counsels of Azzedine C., Oussama C., Imane B. and Moussa L. argued that breaches of procedural rules have occurred in the investigation on the Internet. This investigation should have been covered entirely by orders under art. 126j DCCP (or orders on another basis), the defence argued; this constitutes more than a limited infringement of the fundamental rights of the accused according to the defence, and the investigative method by its nature entails a great risk to the integrity and the involvement of the investigation. Considering the nature of the breach the defence believes that the court should attach consequences to this. The consequence proposed by the defence counsels for Oussama C., Imane B. and Moussa L. is exclusion of evidence, whereas counsel for Azzedine C. argued that prosecution is justifiably barred, and if the court decides otherwise, this should result in the exclusion of evidence or to a remission. The defence for Rudolph H. endorsed the pleas by the defence for Azzedine C., Oussama C., Imane B. and Moussa L. The court also will give its opinion on this defence ex officio in the case against Hatim R. 5.14 In response to this defence the prosecution argued that art.3 of the Police Actforms a sufficient legal basis for the investigative activities of the police in those periods for which no orders under art. 126j DCCP had been issued. 5.15 The court finds as follows. In the assessment of the admissibility of an investigative method, as it was used by the police in the present case, it is of overriding importance to what extent the use of this method infringes on the suspect’s right to respect for privacy. If the infringement was limited (the guiding principle being the moment the investigative method was deployed, not the results) or if the investigative method used does not entail a great risk to the integrity and involvement of the investigation, then art. 3 of the Police Act forms a sufficient legal basis for deployment of the investigative method in question. If this is not the case, then the police must request the public prosecutor to issue an order, for instance under art. 126j DCCP, but this is dependent on the circumstances of the case. 5.16 In cases concerning the use of observation as an investigative method (pursuant to art. 126q DCCP)previous decisions of the Supreme Court have shown that for an answer to the question whether that method constituted a limited infringement of the accused’s privacy, the following circumstances are leading: the duration, intensity, places of surveillance, purpose of the surveillance, the way in which observation was conducted (the nuisance in the sense of how probing it was) and -with respect to the question whether continuation of the surveillance is justified- the extent of the suspicion entertained. It is important whether the method is suitable to get a more or less complete insight into certain aspects of the private life of the person involved. 5.17 In Supreme Court case law on the scope of article 8 of the European Convention on Human Rights (ECHR) the standard is that public observation constitutes an infringement only if it concerns situations in which it is assumed that the persons involved wish to be unrestrainedly themselves. 5.18 In the Explanatory Memorandum to the Bill leading to the Special Investigative Powers Act
(2000)the following is stated (in relation to observation as investigative method): For an answer to the question whether such observation indeed occurred numerous aspects come into play: the duration, place, intensity or frequency of the observation, and the use of a technical aid that offers more than just a reinforcement of the senses. Each element in its own right, but particularly combined is determining for the question whether a more or less complete insight into certain aspects of someone’s life is obtained. The longer the observation lasts, the more intimate the place is where the person under surveillance is, the higher the intensity or frequency of the observation is, the more possibilities are offered by a technical device that is used, the greater the likelihood that such an insight is gained (...). Systematic observation can consist of both protracted and brief periods of surveillance. The guiding principle is that the observation may result in plotting a certain aspect of someone’s life. Normal surveillance does not constitute systematic observation. Superficial monitoring of, for instance, a group of youngsters usually does not constitute systematic observation. If a person is intensively or frequently followed, this is systematic observation. 5.19 In the Explanatory Memorandum to the Bill leading to the Special Investigative Powers Act
(2000)the following is stated in relation to systematic gathering of information as an investigative method (art. 126j DCCP): The distinction between the systematic gathering of information and systematic observation is that in case of the former the investigative officer has explicit instructions to be present in the suspect’s vicinity in such a way that the suspect or persons in his immediate circle maintain contacts with him without knowing that he is an investigative officer. The investigative officer does not just observe the suspect, but interferes actively in the suspect’s life. He goes further than just observing of listening. Considering the systematic way in which this may be done, this power may infringe on the suspect’s privacy. 5.20 In the Explanatory Memorandum to the Bill leading to the Amendment of the Criminal Code, the Code of Criminal Procedure and the Telecommunications Act in connection with the new developments in information technology (computer crime II) the following is stated, furthermore, about the systematic gathering of information under art. 126j DCCP: It is conceivable that this takes the shape of the systematic gathering of information in an Internet news group in which the suspect also participates, without the participants knowing that there is an investigative officer in their midst (...). This concerns only the officer’s active participation in the news group by posting messages and thus trying tot obtain information from others; just looking around in a news group and reading what is accessible to anyone, is allowed without reserve, as was noted before. 5.21 In the same Explanatory Memorandum the Minister of Justice remarks that pursuant to art. 2 Police Act 1993 an investigative officer ‘can look around in the digital world and can examine the information accessible to anyone. (...) Just as the police, in uniform or otherwise, may patrol the streets and look around, a detective may do the same on the Internet from behind his computer. For this purpose no explicit legal basis is required. The Minister also remarks that this power to look around on a public network does not imply the power to systematically download information from the Internet in the performance of police duties and to save them in a police record. 5.22 From the above considerations it follows that there is a high degree of similarity between the investigative method of observation and that of the gathering of information. It is for this reason that the court finds the points of departure for the assessment of the lawfulness of observation as an investigative method, formulated in the Explanatory Memorandum and in Supreme Court case law, also applicable to the assessment of the lawfulness of gathering information as an investigative method. 5.23 When this is applied to the case in hand the court further finds as follows. 5.24 First and foremost the court wants to make it clear that if there was a breach of procedural rules in the investigation into the comments of one of the suspects on social media, this would not harm the interests of the other suspects. As such there is no reason to attach any legal consequences to that specific breach in the cases against those suspects (Schutznorm). 5.25 The court further establishes that a large part of the messages posted on social media, which are in the case file, has been secured and saved in a period for which no order or orders under art. 126j DCC had been issued. The court holds, bearing in mind the legal history and case law referred to above, that the said activities should have been covered by such orders, as they consisted of the systematic gathering of information about the suspects concerned. The reasons are set out below. 5.26 By following, looking at and securing the activities of several suspects on (different types of) social media for long periods, an insight was gained not only into the personal lives of the suspects, but also into (the connections between) their contacts and the nature of those contacts in relation to the suspicion (in many cases the ‘recruitment’ for the armed jihadi struggle in Syria). Also, an insight was gained into their past; for a Facebook page and a Twitter account are not ‘static’. They do not only contain information about the ‘now’; messages posted in the past (And this may stretch a long way back) are also accessible. As far as this issue is concerned, therefore, the court finds that this constitutes a breach of procedural rules. The following is also of importance. 5.27 The police account Aboe Noewas was created at a time when no orders under art. 126j DCCP were in effect. In the period that his account was active, Aboe Noewas posted information on his Facebook page almost every day for the purpose of attracting the attention of the targets of the investigation (so that they would respond by, for instance, sending friend requests or by accepting friend requests from Aboe Noewas). For the suspects and their circle (their ‘friends’ on Facebook and their followers on Twitter) it was not manifest that the police was hidden behind this account. Aboe Noewas’s activities were not covered entirely by an order or orders under art. 126j DCCP. The court holds that an order under art. 126j DCCP should have been obtained both for creating the account and for all Aboe Noewas’s activities. In its opinion the court has taken into consideration that those activities were performed under a fictitious name as well as their duration. This also constitutes a breach of procedural rules. 5.28 With regard to the Ab Bashir Facebook account, in the absence of proof it cannot be established whether the creation of that account was based on an order pursuant art. 126j DCCP. The Ab Bashir Facebook account was created in an investigation conducted in Amsterdam that did not target one of the suspects. For this reason the absence of on order pursuant to art. 126j DCCP does not affect the suspects’ interests. There is no question of a breach of procedural rules in the preliminary inquiry into these suspects, therefore. 5.29 At the time that the Ab Bashir Facebook account was accepted by the Werkgroep Shaam Facebook group (of which Azzedine C. was one of the administrators), an order under art. 126j DCCP had been issued in the case against Azzedine C. In the court’s opinion this order provides sufficient basis for looking at and securing the (historical) data posted on the Facebook account of Werkgroep Shaam. To the use of this investigative method no special risks to the integrity and the involvement of the investigators are attached; that is it was not transparent who was hidden behind the Ab Bashir account provides insufficient basis to assume this. Therefore, there is no question of a breach of procedural rules in respect of this issue either. 5.30 The breaches of procedural rules that have been established can not be repaired anymore. The question that remains to be answered is whether there is cause to attach any legal consequence to the said breaches. Overall, the court finds as follows. 5.31 In the event of a breach of procedural rules that is irreparable, if the law does not provide for any legal consequences, the court must assess whether any legal consequence should be attached to that breach and if so, which legal consequence is the most suitable. In the process it must take into account the aspects referred to in art. 359a
(2)DCCP, namely:
- a)the interest protected by the rule breached,
- b)the seriousness of the breach, with regard to the circumstances in which the breach was committed and the degree of culpability of the breach and
- c)the harm that is caused by it. 5.32 Furthermore, it is important that a breach under art. 359a DCCP does not always have to lead to one of the legal consequences provided for in that article, namely reduction of sentence, exclusion of evidence or a bar to prosecution. Prosecution can only be barred if the breach consists of a serious infringement by officers with investigative power or officers of the Public Prosecution Service of the principles of due process of law, which intentionally or with gross disregard for the accuesed’s interests deprives him of his right to a fair trial. Exclusion of evidence may be in order if the evidence was obtained as a result of the breach, and is only considered if this is necessary in order to safeguard the accused’s right to a fair trial within the meaning of art. 6 ECHR; another important regulation or legal principle (at procedural law) is seriously violated; or in a situation which occurs so repeatedly, according to objective data, that its structural nature can be established and the responsible authorities have not made sufficient efforts from the moment they must have been aware of this structural default to prevent the breach of the regulation in question. Reduction of sentence, in the sense that the severity of the sentence is reduced in proportion to the seriousness of the breach, is only considered if it is plausible that:
- a)the accused suffered actual disadvantage,
- b)this disadvantage was caused by the breach,
- c)the disadvantage can be compensated by reduction of sentence, and
- d)reduction of sentence is justified in light of the interest of the breach and the seriousness of the default. 5.33 The regulation breached intends to protect the interest of privacy of the suspects whose interests are harmed by the breaches. This interest is also laid down in art. 8 ECHR. 5.34 With regard to the seriousness of the breaches (infringement of the privacy) and the harm caused as a result the court finds that this should be put into perspective. At issue is the gathering of information in a digital world. The information gathered was publicly accessible. This constitutes a different (and less serious) situation than a situation in which information is gathered in an enclosed ‘space’ (such as a dwelling). What is also important in this connection is that the suspects used their Facebook pages predominantly to promote what they believed in, to promote their message; it was precisely their intention that others read the contents of their pages. In this connection the court also considers important that in the investigation against the suspects there were good reasons to proceed to the systematic gathering of information, so that there was no question of infringement of the suspects’ privacy without legal justification; if the police had requested the Public Prosecution Service to issue orders under art. 126j DCCP, they would have been issued without a shadow of a doubt. Also relevant is that where more intrusive forms of information gathering were used, such as sending friend requests (as a result of which access could be gained to, where applicable, protected parts of Facebook pages), these activities were covered by orders issued under art. 126j DCCP. There is one exception to this, i.e. Moussa L.’s Facebook account, but this fact in itself does not change the court’s opinion. Finally the court notes that the breaches found did not lead to the situation where the investigative activities could not or only partially be monitored because they occurred behind the back of the Public Prosecution Service and because, as a result, proper reports were not made. Although the reports are not beyond reproach, as the court will find later on, no consequence needs to be attached to this, the court holds. 5.35 Considering all of the above, in light of the criteria set out by the Supreme Court regarding the application of the various possible legal consequences, the court sees no cause to attach any legal consequence to the irreparable breaches established. It limits itself to establishing the breach of procedural rules. Other defences with regard to possible breaches 5.36 The defence counsel of Azzedine C. argued that a number of other breaches of procedural rules have occurred in the investigation on the Internet. The following breaches are concerned:
- a)through the actions or omissions of the police it can no longer be established whether the utterances (on social media) that Azzedine C. is charged with, did not derive from the police, or more particularly from the Facebook pages in the name of Aboe Noewas and Ab Bashir (and, therefore, if this constituted provocation);
- b)Aboe Noewas and Ab Bashir have committed the offence of incitement, without a legal basis;
- c)the Public Prosecution Service have not given full disclosure about the actions of Aboe Noewas and Ab Bashir;
- d)The Public Prosecution Service has lost part of the relevant documents about the Facebook pages of Aboe Noewas and Ab Bashir, or at least refuses to produce them. According to Azzedine C.’s defence a legal consequence should be attached to these breaches, or at least to the combination of them; if not a bar to the prosecution, then at least the exclusion of evidence and, ultimately, a reduction of sentence. 5.37 With regard to what is set out under (
- a)the court finds as follows. The court construes the defence in such a way that the defence argues that the obligation to report has been violated. With regard to the Facebook page of Aboe Noewas it must be established that the police can not (any longer) retrieve all messages posted on the page; only a part has been inserted in the case file. This constitutes a breach of procedural rules, which breach is irreparable. The information inserted in the case file on Ab Bashir is incomplete. This also constitutes an irreparable breach of procedural rules. 5.38 The court sees no cause, however, to attach any legal consequence to these procedural breaches. During the discussion at the trial of the utterances on social media Azzedine C. is charged with, it has not once been submitted that one or more of those utterances had derived from the Facebook pages of Aboe Noewas and Ab Bashir. Neither does this follow from what is known about the utterances Azzedine C. is charged with. 5.39 With regard to what is set out under (
- b)the court finds as follows. The court construes the defence in such a way that it argued that the activities performed by Aboe Noewas and Ab Bashir, where posting messages on their Facebook pages is concerned, should have been covered by an order under art. 126h DCCP (infiltration order). It is characteristic of infiltration that there is a risk that the infiltrating investigative officer commits a punishable offence or punishable offences; if one is committed this was intended, therefore. It is evident that such an intention was not at the basis of posting messages on the Facebook pages of Aboe Noewas and Ab Bashir. The defence fails therefore, and the court points out what it already considered above, namely that there is no evidence whatsoever that one or more utterances on social media that Azzedine C. was charged with had derived from the Facebook pages of Aboe Noewas and Ab Bashir. Incidentally, the court also notes that the utterances posted on the Facebook pages of Aboe Noewas and Ab Bashir are not under consideration in this case. There is no question of a breach of procedural rules, therefore. 5.40 What is set out under (
- c)and (
- d)cannot be construed as procedural breaches occurring in the preliminary inquiry. The defences with regard to these issues fail, therefore. 6. Developments in Syria 6.1 Inspired by similar developments in other Arab countries, a large part of the Syrian population started to offer peaceful resistance to the dictatorial regime of president Bashar al-Assad in the spring of 2011. The regime tried to stamp down the call for reform with brute force, but this did not reduce the resistance. By the end of 2011 the opposition started to offer resistance by force of arms in response to acts of the violence committed by the regime. Retaliatory actions were performed against government troops and neighbourhoods in large cities as well as rural areas were conquered. The Syrian regime cracked down even harder on this. 6.2 What had started as peaceful protest gradually developed into an armed struggle, of which predominantly the civilian population was the victim, and eventually led to a humanitarian disaster. In December 2014 the death toll in the Syrian conflict was estimated at over 200,000. At that point over three million Syrians had fled abroad and the number of displaced persons in Syria totalled over 7.5 million. 6.3 Shortly after the start of the protests the actions of President Assad’s regime had been condemned sharply by a large part of the global community. In the summer of 2011 Secretary-General of the United Nations Ban Ki-moon found that president al-Assad had lost all legitimacy. Western nations urged that he resign from the presidency and issued sanctions against his regime. 6.4 Reports by the Independent International Commission of Inquiry on the Syrian Arab Republic of the United Nations Human Rights Council (IICIS), reports by Human Rights Watch (HRW) and Amnesty International (AI) and countless publications by authoritative journalists make it very clear that President Assad’s regime has committed systematic and large-scale human rights violations and war crimes. The court here quotes from a summary of the 8th IICIS report of 13 August 2014: Government forces continued to perpetrate massacres and conduct widespread attacks on civilians, systematically committing murder, torture, rape and enforced disappearance amounting to crimes against humanity. Government forces have committed gross violations of human rights and the war crimes of murder, hostage-taking, torture, rape and sexual violence, recruiting and using children in hostilities and targeting civilians. Government forces disregarded the special protection accorded to hospitals and medical and humanitarian personnel. Indiscriminate and disproportionate aerial bombardment and shelling led to mass civilian casualties and spread terror. Government forces used chlorine gas, an illegal weapon. These are now generally known facts. For these reasons this court, in its judgment of 1 December 2014, called President Assad’s regime despicable.There is no reason whatsoever to withdraw this. 6.5 As the struggle in Syria progressed, the influence of jihadi militias rapidly gained ground. Islamism became the principal movement of the opposition. The object of the warring factions was not only - and perhaps not even first and foremost - bringing down the Assad regime, but also - or predominantly - the foundation of a strict Islamic state within Syrian territory, where the version of sharia advocated by them would be implemented. 6.6 The armed struggle gradually shifted towards a more and more sectarian one: a conflict between Sunni on the one hand and Alawites and Shiites on the other. 6.7 It is also very clear that jihadi warring factions such as Jabhat al-Nusra, ISIL (later: ISIS and IS) and others, have, systematically and on a large scale, committed heinous crimes. These have also been described and documented in the countless reliable press publications and reports referred to above. The court again quotes from a summary of the IICIS report of 13 August 2014: Non-State armed groups, named in the report, committed massacres and war crimes, including murder, execution without due process, torture, hostage-taking, violations of international humanitarian law tantamount to enforced disappearance, rape and sexual violence, recruiting and using children in hostilities and attacking protected objects. Medical and religious personnel and journalists were targeted. Armed groups besieged and indiscriminately shelled civilian neighbourhoods, in some instances spreading terror among civilians through the use of car bombings in civilian areas. Members of the Islamic State of Iraq and Al-Sham (ISIS) committed torture, murder, acts tantamount to enforced disappearance, and forcible displacement as part of an attack on the civilian population in Aleppo and Ar Raqqah governorates, amounting to crimes against humanity. 6.8 The defence urged the court to refrain from forming an opinion ‘with the now available knowledge’ about what the accused have been charged with. The defence counsels of Imane B., Oussama C. and Moussa L. argued that the crimes committed by IS mostly date from after the period charged and that news about these crimes did not reach the Netherlands until August 2014. This is incorrect. In the above, the court quoted from the report published by ICCIS in August 2014. But ICCIS had already reported extensively about the crimes committed by, inter alia, the jihadi armed groups in earlier reports. The August 2013, 12 May 2014 and 1 August 2014 editions of Doctor Jolen’s expert reports, based on public sources, also presented this clearly. It must have been absolutely clear well before mid-2014 to anyone who followed the news about Syria to some extent and did not close his eyes to it, that the jihadi militias, systematically and on a large scale, committed serious crimes. The court does endorse that the videos that have been distributed since the end of August 2014 of beheadings of western journalists and the news about the imminent genocide of the Yezidis around that same time have contributed considerably to the knowledge amongst larger parts of the population of the ideology and acts of IS. 6.9 Many of the crimes committed by jihadi armed groups referred to above bore no relationship whatsoever to the combat against president al-Assad’s army, but arose from these groups’ religiously based desire to impose, by violent means, their radical version of sharia on the civilian population of the areas conquered by them.Moreover, many of these crimes were committed for the specific purpose of terrifying the population of these areas. Executions, beheadings and crucifixions were intentionally held in public places. The population was either called upon or forced to attend them, and sometimes videos of them were uploaded to the Internet. The IICIS wrote, in its report of 12 February 2014, that Jabhat al-Nusra and ISIS performed executions in public “to assert their presence after taking control of an area and to instil fear among the population.” 6.10 After the outbreak of hostilities in 2011 a stream of foreign fighters got going who joined the jihadi armed groups. Originally, these were mostly youngsters from the Middle East and North Africa, but later the numbers from western countries swelled as well. Syria became a jihadist hotspot. In September 2014 Secretary-General Ban Ki-Moon said that over 13,000 foreign fighters from over 80 countries had joined Jabhat al-Nusra and IS. The first Dutch nationals departed in the autumn of 2012.In November 2014 their number was estimated at no less than 160. 6.11 The jihadi militias that are active in Syria make intensive use of the Internet and social media. In this way they disseminate their ideology, report about their activities and incite to (financial and/or physical) support. They own their own media platforms, websites, Facebook pages and/or Twitter accounts. Their news is disseminated via jihadist websites and fora, but also via mainstream channels such as YouTube. In this propaganda an important role is played by foreign fighters. In many videos the mutual camaraderie is emphasized of fighters who have come to Syria from all over the world to help the population there and to found an Islamic state. The message is that in Syria you can profess and practice your faith as a Muslim fully. Muslims are called up openly to join them because the jihad in Syria has become an obligation to every Muslim. An important element in this propaganda is (the glorification
- of)martyrdom. A fighter awaits either victory or the highest rank in paradise. 6.12 The presence of the many religiously motivated foreign fighters increased the intensity, duration, the unconcern and the sectarian nature of the struggle in Syria. Internationally, there was growing concern that these fighters would have radicalized even further, got real combat training and/or become traumatized if they returned to their native countries. They could then commit attacks in their own countries and/or recruit new fighters there for the armed struggle in Syria (and/or Iraq). In a resolution of 15 August 2014 the UN Security Council expressed its deep concern about the acute and growing threat posed by the large stream of foreign terrorist fighters joining IS, the Nusra Front and other groups affiliated with al-Qaeda. In this and the next Resolution the Security Council instructed all countries to take adequate measures to prevent the travelling abroad and participation of these fighters in the armed jihadi struggle in Syria (and Iraq). 6.13 In the following chapter the court will discuss how the struggle in Syria should be interpreted and what consequences this has for the law that is applicable. 7Applicable law 7.1 In this chapter the court will investigate whether Dutch criminal law, including terrorist provisions, is applicable to the acts of violence taking place in the armed jihadi struggle in Syria. 7.2 Before discussing the individual charges, the court will address the relevant legal framework with regard to the acts of violence committed in Syria. In order to determine the punishability of these acts of violence, it must first be established whether the conflict in Syria concerns an international or a non-international armed conflict. During international and non-international armed conflicts different legal systems are applicable with regard to the use of violence than in times of peace. International humanitarian law, applicable only during armed conflicts, determines which individuals are entitled to perform certain acts of violence. The court will therefore establish which legal systems were applicable in Syria and whether fighters of IS(IS) and/or Jabhat al-Nusra and/or other (jihadi) armed groups were granted a legal status indemnifying them against criminal prosecution for acts of violence. Consequently, it will determine whether Dutch criminal law, including the provisions penalizing terrorist crimes, is applicable. The hostilities in Syria: an armed conflict? 7.3 The prosecution argued that the conflict in Syria is a non-international armed conflict, to which both international humanitarian law and Dutch criminal law are applicable; for in Syria (and Iraq) there is no armed conflict between nations, and there is no evidence that another country exercises ‘overall control’ over certain armed groups. 7.4 The defence argued that it is impossible to speak about one conflict in Syria and that in at least a part of Syria (and Iraq) there is an international armed conflict going on to which international humanitarian law is exclusively applicable. A conflict internationalizes as soon as a foreign power fights against a state or exercises ‘overall control’ over an armed group that has revolted against that state. Many countries have joined in the conflict in Syria and Iraq, also on the side of the insurgents. There are strong clues that this support to the insurgents is more than just financial or logistical support and that other countries effectively exercise control over certain groups. According to the defence they cannot be blamed for not having indicated precisely to what extent or where the conflict in Syria and Iraq has internationalized exactly. That would have been complicated and useless, as the Public Prosecution Service has refused to indicate to which organizations the accused allegedly belonged and where and in what context the underlying acts had allegedly been committed. 7.5 The court finds as follows about the existence and the nature of the conflict. 7.6 First it is important that the charges refer to the period from 1 January 2012 through 31 October 2014. In order to establish the existence of an armed conflict in this period an analysis of the actual situation is required, based on the nature and extent of the combat operations, their objectives and the basis on which all acts are performed. 7.7 If armed violence between states, or long-term armed violence between a state and (
- an)organized armed group(s), or between such groups reaches a certain degree of intensity, the hostilities may be qualified as an international or non-international armed conflict, respectively. 7.8 In Boskoski & Tarculovski the International Criminal Tribunal for the former Yugoslavia (hereinafter: ICTY) summed up the relevant factors that had been established in case-law until then in order to be able to test the requirements of ‘intensity’ and ‘organization’. In order to assess the intensity of the violence, the following aspects should be taken into consideration: the number of civilians fled, the type of weapons used (particularly military weapons and vehicles such as tanks), the numbers of casualties and of fighters, the calling of a truce, if any, and interference by the international community. In order to assess whether a party to the conflict meets the requirement of organization what should be looked at are a group’s command structure, the organization of operations, the disciplinary system, the possibility to implement the minimum standards of behaviour of international humanitarian law and the possibility to speak with one voice. 7.9 The development of the hostilities in Syria has already been described in chapter 6. The court holds that it follows from several reports by authoritative NGOs that from at least July 2012 there was a non-international armed conflict throughout the territory of Syria between the Syrian armed forces and various organized armed groups such as ISIL/ISIS/IS and Jabhat al-Nusra. Thousands of people had already fled at the time, there had been thousands of civilian casualties, military weapons and vehicles were used, government troups and the opposition carried out large-scale military operations, a peace plan was being negotiated, the UN Security Council tried to condemn the Syrian regime in resolutions and the armed groups were sufficiently organized. 7.10 An armed conflict between a state (in this case: Syria) and one (or more) organized armed group(
- s)can be qualified as an international armed conflict if the actions of the group(
- s)can be attributed to another state. In Tadić the ICTY established that there should exist ‘overall control’ over the organized armed group, in the sense that the other state “has a role in organising, coordinating or planning the military actions of the military group, in addition to financing, training and equipping or providing operational support to that group”. The criterion of ’overall control’ has been widely adopted in case-law. However, it turns out from state practice that “the overall control threshold is high and the evidence in support must be compelling”. 7.11 The defence asserted in just very general terms that there are “leads” and that it is “plausible” that the conflict was international in nature. According to the defence what should be considered is the extent to which other countries are involved in the armed conflict. The defence however limits itself to stating that many countries interfered in the conflict and that there are strong indications that other countries exercise actual control over certain groups. 7.12 Since the defence failed to assert which power allegedly exercised ‘overall control’ over which groups and therefore did not, or at least insufficiently concretely, substantiate on the basis of which facts and circumstances there allegedly already was an “internationalized” armed conflict in the period stated in the charges, this defence can only fail. The court did, also on its own motion, not find plausible any facts or circumstances which could have led to any other opinion. The court does not ignore the involvement of other powers in the conflict in Syria and acknowledges the possibility that the conflict may be classed as an international armed conflict in the future. However, the court cannot conclude that in the period stated in the charges the requirement of ‘overall control’ was already fulfilled. In its report of 13 August 2015 the IICIS also concludes with regard to the armed conflict in Syria: While fought mostly by Syrians and largely contained within Syrian territory, the war is increasingly driven by international and regional powers, primarily in accordance with their respective geostrategic interests. Syrian stakeholders, on all sides of the conflict, have gradually lost control over the course of events due to a variety of external factors that have obscured the internal dimension of the war. As the war endures, it displays worrying signs of becoming internationalized. The competition among regional powers for influence has resulted, among other consequences, in alarming exacerbation of the sectarian dimension, instigated by the intervention of foreign fighters and extremist clerics. 7.13 On the basis of the above the court concludes that during part of the period stated in the charges - from July 2012 through 31 October 2014 - there was a non-international armed conflict in Syria. In this period, the Syrian armed forces on the one hand and the fighters of the organized armed opposition groups on the other hand were engaged in an intensive and long-term armed struggle. Applicable legal regimes during a non-international armed conflict 7.14 Now that it has been established that there has been a non-international armed conflict in Syria since July 2012, it must be assessed which legal regimes apply to that situation. 7.15 The existence of an armed conflict is a requirement of the coming into force and applicability of international humanitarian law. International humanitarian law consists of a series of conventions and (customary law) provisions which are, briefly stated, primarily aimed at the protection of those individuals who do not or no longer participate in an armed conflict. Furthermore, it should limit the means and methods of warfare and subject these to rules, with the idea that (even) during armed conflict there is no state of lawlessness. 7.16 The Common article 3 to the Geneva Conventions describes fundamental principles that should be observed in a non-international conflict. It includes minimum standards of behaviour with which the fighting parties should comply. This provision explicitly prohibits a number of flagrant and grave breaches of human dignity, such as, amongst other things, murder, (serious) abuse, humiliation, degrading acts and hostage-taking. 7.17 The court holds that in a non-international armed conflict international humanitarian law is not exclusively applicable. This opinion is supported by extensive case law and literature.During armed conflicts various legal regimes apply, including international humanitarian law and the domestic law of a state. 7.18 The above considerations entail that acts of violence committed during a non-international armed conflict may be punishable under international humanitarian law and domestic criminal law. However, in order to determine the punishability of concrete acts of violence during a non-international armed conflict, what has to be established first is whether the perpetrator enjoys a certain status under international humanitarian law that allows him to conduct hostilities legitimately. The punishability of members of organized armed groups in Syria 7.19 The Public Prosecution Service take the position that the so-called combatant’s privilege, which entitles combatants to take part in hostilities, does not exist in non-international armed conflicts. Members of organized armed groups do not enjoy a special status under the laws of war applicable during non-international armed conflicts. Consequently, there can be no legitimate acts of war. As a result participation in the hostilities can be prosecuted under domestic criminal law. 7.20 The defence argue that combatants in international armed conflicts enjoy immunity, thus that their ordinary acts of war are not punishable for as long as they comply with the laws and customs of international humanitarian law. As the offences are not punishable under Dutch law, the Netherlands has no jurisdiction, so that prosecution must be barred; or it entails that the charges might be proved, but not qualified, which should lead to dismissal of the charges. 7.21 The court finds as follows as to the status and punishability of organized armed groups in non-international conflicts. 7.22 During international armed conflicts a distinction is made between combatants and civilians. Only combatants enjoy the combatant’s privilege, i.e. the right to direct participation in hostilities and, therefore, the right to kill the enemy, take prisoners of war and destroy military objects. Combatants are obliged to observe the rules of international humanitarian law and, as long as they do, enjoy immunity from prosecution under domestic law. 7.23 During non-international armed conflicts a distinction is made only between persons directly participating in the hostilities and civilians. In non-international armed conflicts combatant status does not exist. During the negotiations for the Geneva Conventions the contracting parties did not want to grant the combatant’s privilege to the members of organized armed groups that they had come into conflict with, or that had engaged in conflict within their territory. This would grant these members the right to legitimately participate in the hostilities. However, states were not prepared to grant immunity from prosecution to members of organized armed groups for taking up arms in order to prevent civilians from taking the law into their own hands. Therefore, members of organized armed groups are punishable for all acts of violence they commit, both for general crimes such as murder and for violations of international humanitarian law. 7.24 On the other hand, members of state armed forces are entitled to use violence during non-international armed conflicts. Most national legislation has provisions that shield members of the regular armed forces (state armed forces) from being prosecuted for the legitimate use of force. This arises from the fact that the representatives of sovereign states used to be ‘privileged belligerents’. They were authorized to use violence because they represented the State authorities and had the responsibility to use legitimate violence to protect their government and nation against enemies. Members of state armed forces are only punishable for acts of violence if they therewith breach international humanitarian law. 7.25 In the previous chapter the court already established that members of the Syrian armed forces have systematically and on a large scale committed such violations of international humanitarian law. As a result they can be prosecuted for war crimes. 7.26 The court notes that the above leads to an asymmetric warfare, in which, conceivably, few reasons exist for organized armed groups to comply with international humanitarian law.They can be prosecuted anyway under domestic law for participation in the hostilities, even if they comply with all the rules of international humanitarian law. As international humanitarian law restricts the use of violence and such groups are often less advanced than state armed forces, they will already tend not to comply with those rules. The Additional Protocol II therefore encourages states to grant amnesty to members of organized armed groups for participation in hostilities in so far as they have observed the rules of international humanitarian law. 7.27 The court emphasizes, however, that the armed jihadi struggle in Syria as conducted by members of ISIL/ISIS/IS and/or Jabhat al-Nusra and/or al-Qaeda certainly does not qualify for such amnesty granted in retrospect, for these groups violate international humanitarian law systematically and on a large scale. 7.28 Furthermore, it now follows from the Geneva Conventions and legal precedent that members of organized armed groups are not entitled to use violence in a non-international armed conflict. Authoritative authors on the subject also support this opinion. The court concludes that civilians participating in hostilities in a non-international armed conflict (as a member of an organized armed group or otherwise) are not entitled to use violence even if they observe the rules with regard to the use of violence as laid down in international humanitarian law. Therefore, they can be prosecuted and brought to trial for their participation in the hostilities. This is not only true for persons who join jihadist groups. 7.29 Participation in the armed conflict in Syria, therefore, is also punishable under Dutch law. Finally, the court is faced with the question if Dutch law is applicable in its entirety, including the provisions with regard to terrorist crimes. The applicable provisions of Dutch criminal law 7.30 The Framework Decision of the Council of the European Union of 13 June 2002 on combating terrorism (hereinafter: the Framework Decision) obliged EU member states, inter alia, to adapt domestic criminal law with regard to combating terrorism. The Netherlands implemented this by introducing the Act on Terrorist Crimes. Various (underlying) crimes with which the accused have been charged with, constitute terrorist crimes. These crimes are the implementation of the legislation referred to in the Framework Decision. 7.31 In recital 11 of the preamble to the Framework Decision the following exclusion clause is adopted: Actions by armed forces during periods of armed conflict, which are governed by international humanitarian law within the meaning of these terms under that law, and inasmuch as they are governed by other rules of international law, actions by the armed forces of a State in the exercise of their official duties are not governed by this Framework Decision. 7.32 The question - raised by the defence - is whether the provisions of Dutch criminal law that relate to terrorist crimes and implement the Framework Decision are applicable during armed conflicts. 7.33 The prosecution argued that the legislator has deliberately chosen not to take over the exception stated in recital 11 of the preamble in Dutch criminal law. The legislator believes that even violence committed during an armed conflict can, in certain circumstances, qualify as terrorism. Dutch law must be interpreted as much as possible in conformity with the Framework Decision, but that interpretation can never be contra legem. In this regard the prosecution adopts the position that the exception in recital 11 does not impose the obligation to exclude acts of war from provisions on terrorism, but only provides that the obligations under the Framework Decision do not apply to such acts. This does not entail an obligation - or at least this is how the court construes their point of view - to exclude the application of criminal law. 7.34 The defence argues that Dutch terrorism legislation does not apply to the armed conflict in Syria. Various international instruments (such as the Framework Decision and the International Convention for the Suppression of Terrorist Bombings) impose the obligation to make terrorism a punishable offence, but limit that punishability if international humanitarian law is applicable. The court is obliged to interpret Dutch legislation in conformity with such higher regulations (as the preamble). There is no discretion to, contrary to the Framework Decision, extend its scope to include armed conflicts. The Supreme Court’s finding in the Kesbir judgment that during non-international armed conflict various legal regimes may exist side by side does not say anything about the definition of terrorism during such conflicts. During armed conflicts attacks against the population are always punishable, but actions aimed at a despicable regime are, specifically, not. The accused wanted to oust Assad’s regime, some wanted to found an Islamic state as well, but they never wanted to instil terror in the population. The recital in the preamble has been included in order to prevent misunderstandings and avoid conflicts between legal regimes. Allegedly, the General Court in Luxembourg ruled in the LTTE judgment that the applicability of Union law relating to terrorism is not excluded in the event of an armed conflict. However, according to the defence the General Court has not expressed an opinion on the question what the scope of the preamble must be when interpreting the Framework Decision or the Dutch legislation based upon it. The LTTE case was about a regulation that was not based on the Framework Decision and a Common Position that did not contain an ‘exclusion clause’ as in the preamble. The defence pleads for dismissal as the terrorist elements of the charges may be proved, but not qualified. 7.35 With regard to the exclusion clause in recital 11 of the preamble to the Framework Decision the court finds as follows. 7.36 The preamble of a Union Law action (such as a Framework Decision) has no binding force and cannot be put forward to depart from the provisions of that Framework Decision or to interpret these provisions in a sense which manifestly conflicts with its wording. The preamble may, however, provide clarity about the interpretation of the legal provisions laid down in the Framework Decision, and is, as such, an important source of interpretation. 7.37 The exclusion clause pertains to actions of the armed forces during an armed conflict that are subject to international humanitarian law. As the second main clause of the exclusion clause contains the addition ‘armed forces of a State’ the question arises whether ‘armed forces’ in the first main clause also relates to other armed forces than those of a state. In order to determine the scope of the exclusion clause, the court will therefore have to establish the meaning of the term ‘armed forces’. 7.38 In a literal sense the concept of ‘armed forces’ usually refers to the armed forces of a state. In Additional Protocol II, which is exclusively applicable to non-international armed conflicts, reference is made to ‘armed forces’ (in the Dutch translation: ‘the armed forces of that Party’) on the one hand and ‘dissident armed forces or other organized armed groups’ (same in the Dutch translation) on the other hand. 7.39 Thus, with the concept of ‘armed forces’ at least the actions of the armed forces of a state are excluded from the scope of the terrorism provisions in the Framework Decision. This also follows from the legal provisions of international humanitarian law. As considered above, the armed forces of a state are considered either ‘lawful combatants’ or ‘privileged belligerents’ who are entitled to conduct hostilities. As a result they can only be prosecuted for violations of international humanitarian law, and not for violations of general law, including the terrorism provisions of the Framework Decision. 7.40 Organized armed groups are usually not referred to as ‘armed forces’ but as ‘organized armed groups’ instead. The meaning of the exclusion clause in the Framework Decision has not been discussed explicitly in Parliament, but the comparable exclusion clause of article 19
(2)of the International Convention for the Suppression of Terrorist Bombings did come up for debate. The Minister of Justice defined the herein mentioned concept of ‘armed forces’ as ‘armed state forces’, but noted that different interpretations of the exclusion clause were inevitable and that the provisions of international humanitarian law will be interpreted “in a manner that may best serve the interest of the state in question”. According to the Minster of Justice ‘military forces of a State’ has explicitly been included in the second main clause of this exclusion clause because this refers to peacetime actions. From the involvement of the Netherlands in the formation of this exclusion clause and the acceptance of the same exclusion clause in the Framework Decision it can be inferred that the Dutch legislator was aware of this ambiguity and adopted a similar position with regard to the Framework Decision. It thus seems that, in a literal sense, the exclusion clause does not relate to organized armed groups. 7.41 Next, the nature and purpose of international humanitarian law and the exclusion clause must be considered. The members of organized armed groups do not enjoy combatant status during non-international armed conflicts. They can be prosecuted for all their acts of war under international humanitarian law and general criminal law. The court agrees with the defence that the exclusion clause was included in order to avoid conflict between the various legal regimes. It was explicitly not intended that acts of war which are considered legitimate (based on the status of an individual) under international humanitarian law, are penalized under general criminal law. The court considers, however, that under the law as it stands not a single act of war performed by a member of an organized armed group is legitimate. Although under international humanitarian law only excessive acts of war are penalized, under general criminal law they are also punishable for all ordinary acts of war. Therefore, no conflict exists between the standards of the various legal regimes. Furthermore, it would be inconsistent to, contrary to punishable acts of war committed in peacetime, exclude these same acts of war committed during armed conflict from terrorism provisions. 7.42 Finally, the court finds that the Framework decision is a part of a number of instruments adopted by the international community in response to a global threat by (organized and armed) terrorist groups. Shortly after the 11 September 2001 attacks the Security Council of the United Nations in Resolution 1373 obliged all member states to penalize some terrorist acts under their domestic criminal law, so that the perpetrators could be prosecuted and brought to trial by them. In response to that the Framework decision was adopted and eventually implemented by the Act on Terrorist Crimes. In these instruments it is emphasized that “States [have] to work together urgently to prevent and suppress terrorist acts, including through increased cooperation and full implementation of the relevant international conventions relating to terrorism.” The objectives of these instruments, namely the trying of terrorism suspects by national courts on the basis of domestic terrorism legislation is of great importance. An interpretation of the exclusion clause on the basis of which terrorism suspects could not be prosecuted under domestic terrorism legislation for their punishable terrorist acts because they were committed in wartime cannot reasonably be reconciled with this. 7.43 This opinion is supported by the LTTE judgment rendered by the Court of First Instance. Although this judgment does not specifically refer to the scope of the Framework Decision, but to regulation 2580/2001 and Common Position 2001/931, all these instruments have been adopted to implement the abovementioned Resolution 1373 within the European Union. In this judgment it is generally considered that “the existence of an armed conflict within the meaning of international humanitarian law does not exclude the application of provisions of EU Law concerning terrorism to any acts of terrorism committed in that context”. Conclusion 7.44 The court concludes that members of organized armed groups cannot invoke the exclusion clause, and that the terrorism provisions in the Framework Decision and the Dutch legislation implementing that Decision are applicable to them in their entirety. The accused can be prosecuted for terrorist crimes as penalized in Dutch terrorism legislation. 7.45 Considering the findings and grounds given by the court on the existence of an armed conflict and the scope of recital 11 of the preamble to the Framework Decision, the court sees no cause to refer to the European Court of Justice for a preliminary ruling on the subject. The application for a (provisional) stay of the proceedings made by the defence is therefore dismissed. 8Terrorist crimes 8.1 In article 83 DCC the legislator provided which crimes are considered terrorist crimes. What they have in common is that they must be committed with terrorist intent. This is described in article 83a DCC as “the aim to instil terror in the population or part of the population of a country, or to illegitimately coerce a government or international organization to do, refrain from or suffer something, or to seriously disrupt or destroy the political, constitutional, economic or social structures of a country or international organization”. This definition is almost identical to the one in the Framework Decision of 13 June 2002 (Official Journal of the EU L164) which was implemented by the Act on Terrorist Crimes (Bulletin of Acts and Decrees 2004, 290). 8.2 In legislation intent usually means the immediate purpose that is pursued by the offence one is charged with. Therefore, the motive the perpetrator had for his act or the ultimate object he had in mind is not decisive. For the meaning attached to the element of intent in article 83a DCC it is also important to know that where the Dutch text of the Framework Decision uses the term intent, the English, German and French texts always refer to the object with which the offence is committed. 8.3 The immediate purpose pursued by the terrorist crime must therefore be the instilling of terror in (part
- of)the population of a country, the illegitimate coercion of a government (or international organization) or the disruption or destruction of the fundamental structures of a country (or international organization). The Act on Terrorist Crimes implements the Framework Decision in this respect, too. This obliges the member states of the European Union without reservation to penalize terrorist crimes, committed in any country and against any government whatsoever. 8.4 In its judgment of 1 December 2014 this court paid attention to the question raised by members of the CDA [Christian Democrat] faction in the Upper Housewhich also plays a role in these criminal proceedings: do armed activities against a regime that commits systematic and serious violations of fundamental human rights and the support thereof come within the scope of articles 83 and 83a DCC? The court inferred from the Minister of Justice’s answerthat the government held the opinion that in such cases these articles apply in a material sense as well. Counsels for the defence of Imane B., Oussama C. and Moussa L. arguedthat the court erred in this respect. They are right. The Minister did not confirm the question as unconditionally as the court believed. The Minister’s answer was as follows: “I agree with these members that certain acts can never be justified by the object of bringing down a despicable regime. They came up with the example of instilling terror amongst the population by launching attacks against them in order to destabilize a regime. In such cases articles 83 and 83a DCC apply in a material sense as well.” It seems that the Minister did not intend to mark every act of opposition against a despicable regime as an act of terrorism. 8.5 The Minister’s answer does not provide any starting point for determining, in a concrete example, which acts of violence against which regime may not fall within the scope of art. 83 and art. 83a DCC. The members of the CDA faction who had raised the question did not seem to have expected this; when they put their question - “Other acts of violence [than those launched against the civilian population] particularly those against the repressive apparatus of such a regime may be justified” - they anticipated that the Minister “might reply that all this is difficult to put into legislative texts and that suspects may invoke grounds for exemption from criminal liability and from guilt” and that the Minister “could [...] refer to the applicability of the right to exercise prosecutorial discretion”. 8.6 The summary and not very transparent answer by the Minister does not mean that the scope of art. 83a DCC is limited, however. That addresses the protection of not just the population but also the fundamental structures of any country, including Syria, and any government or international organization, including the Syrian. 8.7 The court acknowledges that unrestricted application of terrorism provisions may be problematic or even undesirable in cases of justified armed opposition against a regime that has lost all legitimacy. The court must conclude however that the legislator has not made a (generic) exception for this. In specific cases a last resort could be if the Public Prosecution Service decides not to prosecute for reasons of prosecutorial discretion, or if the court allows a plea of exemption from criminal liability or exemption from guilt. 8.8 This brings the court to a discussion of the defence set up by counsels of Imane B., Oussama C. and Moussa L. of a right to revolt to which their clients are entitled. The court found inspiration in an essay by Professor J. Remmelink, LL.M. from 1985.In it Remmelink argues that revolt against a tyrannical regime is legally permissible and raises the contents of a right to revolt based on it, with reference to Dutch post-war case law, as an unwritten justification in situations of revolt against a foreign occupying force. The conclusion arrived at by Remmelink on the basis of his exploration is that an act of resistance - please note: of the Dutch resistance against the German occupier - was considered lawfully only if at least (
- i)the actor’s motive was pure, (
- ii)the act objectively served the national interest and (iii) if the requirements of proportionality