Uitspraken

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.

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.

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.

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.

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.

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.

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:

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  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;

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  ii) doing Da’wah - Da’wah is an invitation to Islam -, whether in enclosed spaces, in the streets or on the Internet;

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  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;

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  iv) collecting money or goods for humanitarian assistance to victims of the violence in Syria;

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  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;

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  vi) similarly campaigning against democracy as a form of government and criticizing the way in which this is given shape in the Netherlands;

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  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.

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.

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.

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.

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.

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.

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:

 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.

 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.

 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.

 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.

 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.

 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.

 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.

 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.

 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.

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.

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.

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 reply1that 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.

The court finds as follows.

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.2

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.3 For this reason the defence as described in 3.2 fails.

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.4

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..

The possibility of assigning retroactive effect to criminal provisions is limited by the principle of legality.5 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.6 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 rules7, and in answer to a parliamentary question if this is desirable only in very exceptional circumstances8he 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.

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.9After 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.10 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.

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.11The 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.

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’12or in the case of terrorist crimes which were aimed, summarily put, at the Netherlands.13Therefore, 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).

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 Crimes14the 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) DCC15. 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.

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.

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.16

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.

During the Context investigation, seventeen suspects came to the fore.17 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.18

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.

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.19 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.20 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.21The 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.

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.22The 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.

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.

The police investigation has led to the following arrests and custodial measures:

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.23At 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.

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.24

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 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.

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.

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.

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.

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.

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.

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.

Hearings on the substance of the case took place for ten weeks on (almost) every Monday, Tuesday and Thursday. The hearings were held on:

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.

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.

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 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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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 2014.25
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.

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.

On 25 April 2014 Azzedine C. added the Facebook profile of Ab Bashir to the Facebook profile of Werkgroep Shaam.

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.26

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.

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]:27

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.

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.

In response to this defence the prosecution argued that art.3 of the Police Act28forms 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.

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.

In cases concerning the use of observation as an investigative method (pursuant to art. 126q DCCP)29previous 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.30

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.31

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):

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)33:

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:

In the same Explanatory Memorandum the Minister of Justice remarks that pursuant to art. 2 Police Act 199335 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.

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.

When this is applied to the case in hand the court further finds as follows.

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).

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.

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.

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.

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.

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.

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.

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.

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.36

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.

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 account37, 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.

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.

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.

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.

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 order38). 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.

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.

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.40

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.41

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.

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:

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.43

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.44

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:

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.

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.45Moreover, 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.”

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.46 The first Dutch nationals departed in the autumn of 2012.47In November 2014 their number was estimated at no less than 160.48

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.49

The presence of the many religiously motivated foreign fighters increased the intensity, duration, the unconcern and the sectarian nature of the struggle in Syria.50 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.51 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).52

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.

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.53

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 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.

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.

The court finds as follows about the existence and the nature of the conflict.

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.54

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.55

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’.56 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.57

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.58 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.

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”.59 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”.60

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.61

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:

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.

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.

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.63

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.64

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.65During armed conflicts various legal regimes apply, including international humanitarian law and the domestic law of a state.

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 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.

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.

The court finds as follows as to the status and punishability of organized armed groups in non-international conflicts.

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.66

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.

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.67

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.

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.68They 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.69

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.70

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.

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 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.71 The Netherlands implemented this by introducing the Act on Terrorist Crimes.72 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.73

In recital 11 of the preamble to the Framework Decision the following exclusion clause is adopted:

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.

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.

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.74 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.75 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.

With regard to the exclusion clause in recital 11 of the preamble to the Framework Decision the court finds as follows.

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.76 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.77

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’.

In a literal sense the concept of ‘armed forces’ usually refers to the armed forces of a state.78 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.79

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.

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.80 The Minister of Justice defined the herein mentioned concept of ‘armed forces’ as ‘armed state forces’,81 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”.82 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.83 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.84 It thus seems that, in a literal sense, the exclusion clause does not relate to organized armed groups.

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.85 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.86

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.87 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.

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”.88

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.

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.

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).

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.89

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.

In its judgment of 1 December 201490 this court paid attention to the question raised by members of the CDA [Christian Democrat] faction in the Upper House91which 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?92 The court inferred from the Minister of Justice’s answer93that 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.

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”.

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.

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.

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 1985.94In 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 and subsidiarity were met.

If something like the right to revolt exists under current Dutch law95, it is dormant, as is recognized by counsels for the defence of Imane B., Oussama C. and Moussa L. That makes sense, for a right to revolt against one’s own democratic government does not exist.96 What the defence proposes to the court is to awaken the dormant right to revolt by a kiss. However, the interpretation of the right to revolt given by the defence in the cases against their clients is miles apart from what Remmelink envisaged. According to Remmelink acts of revolt against one’s own tyrannical regime and against a foreign occupying force can be justified, but only if the requirements of purity of intent, service to the purpose of the revolt, proportionality and subsidiarity have been met at the very least. What counsels for the defence of Imane B., Oussama C. and Moussa L. plead for, however, is an unconditional impunity of their Dutch clients for all offences committed by them in the Netherlands97 as they were directly or indirectly related to the justifiable struggle of the Syrian population against president Assad’s regime, including the threatening and/or insulting of police officers by Moussa L.98 The court politely declines the defence’s invitation to awaken such a dormant right to revolt by a kiss.

In chapter 6 the court established that the jihadi armed groups in Syria like Jabhat al-Nusra and ISIS want to overthrow president al-Assad’s regime and found a purely Islamic society or state, and that the crimes they commit for that purpose but also entirely irrespective of it also intend to instil terror amongst large parts of the Syrian population. Therefore the crimes committed by these armed groups, such as murder, manslaughter, causing explosions et cetera, are committed with a thoroughly terrorist intent and constitute crimes of terrorism.

Participation in the armed struggle in Syria on the side of these jihadi armed groups always entails the commission of terrorist crimes. It is a known fact99 that all the accused felt very involved in the developments in Syria and followed the news about it closely. Naturally, they must have known this.

Counsel for Jordi de J. argued that the Public Prosecution Service has forfeited its right to prosecute Jordi de J. and that prosecution should therefore be barred. More particularly, it argued that after his return from Syria, Jordi de J. was in contact with officers of the AIVD, the Dutch Intelligence and Security Service, and that, due to the nature, scope and contents of those contacts he was under the impression that he would not be prosecuted. According to the defence, this can be imputed to the Public Prosecution Service.

In their reply, the prosecution argued that (a) it has not been established that Jordi de J. did indeed have contact with officers of the AIVD and (b) that if so, he could not justifiably have based an expectation of non-prosecution on it. Prosecution can only be barred, according to the prosecution, if the expectation is based on any statement that can be attributed to the Public Prosecution Service. According to the prosecution, the Public Prosecution Service functions independently of the AIVD, nor is this service closely affiliated to the Public Prosecution Service.

The court finds as follows.

It is established Supreme Court case law100 that prosecution by the Public Prosecution Service is incompatible with the principles of due process if prosecution is started or continued after statements made by or other, comparable actions attributable to the Public Prosecution Service have raised the justifiable expectation with the accused that he will not, or no longer, be prosecuted.

In view of what Jordi de J. has stated (behind closed doors), the court considers it likely that he had contacts with the AIVD after his return from Syria. From his statements cannot be inferred that on that occasion officers of that service made an explicit and unconditional promise that he would not be prosecuted. This has not been established. Nor has it become plausible that officers of the AIVD behaved towards Jordi de J. in such a manner or made such statements that Jordi de J. could nevertheless justifiably expect not to be prosecuted. The remark quoted by the defence ‘you don’t just help us, we help you, too’ is insufficient in this respect, as helping Jordi de J. cannot just be interpreted to mean that they would see to it that he was not prosecuted. The court does consider plausible, however, that Jordi de J. came to believe that he would not be prosecuted, but this does not affect the above. The defence fails therefore.

Perhaps unnecessarily, the court finds that even if this were different it would not affect the fact that prosecution is not barred. The AIVD operates independently of the Public Prosecution Service and is not a service that is charged with prosecution or taking decisions about whether to prosecute.

The court does not follow the defence’s argument that the prosecution acknowledged in their reply that a promise made by the AIVD can be attributed to the Public Prosecution Service. In their reply the prosecution submitted the following:

The court construes this statement by the prosecution to mean that they wished to indicate that if a promise or statement or actions that could have been interpreted as such had been made, the Public Prosecution Service would have prosecuted Jordi de J. but would not have made use of any coercive measures.

Finally the court notes that it will get back to the contacts between Jordi de J. and officers of the AIVD in its considerations of the sentence.

Counsel for the defence of Azzedine C. argued that there is a breach of procedural rules because the Public Prosecution Service, in spite of the existence of obvious alternatives for criminal prosecution, and particularly for the incitement as charged, did not make use of such alternatives. According to the defence, this breach should lead to a bar to prosecution, exclusion of evidence or reduction of sentence. To substantiate this, the defence referred to an ECtHR judgment in Ceylan v. Turkey101and inferred from it that it would have been appropriate for the Public Prosecution Service, before summoning him for incitement, to warn Azzedine C. that he could be summoned as a consequence of his actions.

That judgment can only be construed as an admonition to a state to exercise restraint in prosecuting those who criticize that state. This does not apply at all in the present case. There is no question of a breach of procedural rules. The defence fails.

An important principle of Dutch criminal law is that thoughts, ideas, opinions and convictions cannot be punishable. Nevertheless the court will describe what has become known about certain of the accused’s opinions because they can be important for the interpretation of the actual conduct alleged to have taken place, which includes activities undertaken by them, statements and plans made and consultations held.

The court will limit itself to their views on the armed jihadi struggle in Syria and participation in it by Dutch Muslims. All the accused who appeared in court stated they are Muslims102and there is no doubt that their views on this are rooted in a broader Islamic body of ideas, but that does not need to be discussed for an assessment of the charges. (Almost) all of the charges relate exclusively to the armed jihadi struggle in Syria. The court infers what the accused’s views are from what they themselves stated and wrote, without taking into consideration the inciting statements attributed to them as charged103, the observations of others and/or their conduct.

Expert witness De Koning called Oussama C., Azzedine C., Rudolph H. and Soufiane Z. ‘the inner circle’ of the The Hague activist Da’wah group that was the subject of his research.104 From the summer of 2012 until the summer of 2014 this inner circle consisted of the same four persons.105 Based on conversations with them, separately and jointly, he concluded that they share the same ideology, albeit with some subtle distinction s.106An important element was that they backed the military jihad as conducted by al-Qaeda.107They also shared the opinion that all Muslims, or at least the men, have the individual obligation to participate in the armed jihad without being called up by a Caliph, if Muslim country anywhere in the world is attacked.108 The view that participation in the armed jihad in Syria is an individual obligation (fard al-ayn) for all Muslims was promoted by the members of the inner circle in Facebook discussions and in discussions with De Koning himself.109Generally, however, they attempted not to talk too explicitly about (a theological defence of the) jihad to the outer world, i.e. in contact with journalists, but to emphasize the injustice and atrocities of Assad.110

Because in their opinion there is a struggle going on in Syria on the path of Allah (jihad fi sabil Allah) and participation in it is an individual obligation for all Muslims, the mujahedeen observe Allah’s will and when they die they are martyrs. They died for Allah111; they are the most exemplary Muslims and gain access to paradise.112

In court De Koning stated about an open conversation with, amongst others, Azzedine C., Rudolph H. and Soufiane Z. about ‘the blessings of the sharia’ and said, in that connection: “They were involved in De Banier, or at least they knew those texts very well. De Banier would give a good idea of their ideological line.”113‘De Banier’ is a manifesto in the Dutch language that was published on the Internet in October 2013. It brings out into the open the body of thought of global jihadism in a penetrating way, and can be considered as an instrument to support the jihadist ‘narrative’.114 A telling fragment of this pamphlet reads as follows: “Islamic history is written in two lines: the one black, written in the ink of the scholar’s pen, and the other red, written with the blood of the Martyr. History is not written, except with blood. Glory is not built, except with skulls. Honour and respect cannot be created, except on a foundation of injured and dead bodies”.115

De Koning’s statements about Oussama C.’s views on participation in the jihadi struggle in Syria are confirmed by what came to the fore in intercepted telephone communications between Oussama C. and an unidentified woman, in which he calls himself is one of the most confirmed supporters of the jihad in the Netherlands (but says you should not talk about it 24 hours a day in order not to put yourself at risk)116 and says that he is, ‘of course’, a proponent of martyr operations (i.e. suicide attacks).117 Moreover, wholly in line with what De Koning stated about this, Oussama C. at the trial 118expressed his great admiration for youths who departed for Syria from all over the Netherlands to take part in the armed struggle there. They are ‘heroes in a noble fight’. The court emphasizes another important aspect of Oussama C.’s views on the armed jihadi struggle in Syria: the emphasis for him is not on overthrowing Assad’s regime, but on establishing God’s law.119

De Koning’s statements about Azzedine C.’s views on participation in the jihad in Syria are amply confirmed by other evidence as well. De Koning also stated about Azzedine C. that in the conflict between Jabhat al-Nusra and ISIS he clearly took the side of ISIS.120This, too, is supported by other evidence. From 2013 for instance Azzedine C. set himself up in the media as the mouthpiece of jihadist travellers to Syria and identified completely with their goal and motives. In the TV programme Nieuwsuur this is what he said about it: “We live for the death after life. It is not scary to die there. The best death for Islam is the martyr’s death”.121 And in the intercepted telephone conversations that Azzedine C., Rudolph H. and Subject no. 1 had with each other on 17 and 18 May 2014 Azzedine C. demonstrates that he is a confirmed jihadist and a marked supporter of ISIS.122At the trial Azzedine C. confirmed this in no uncertain terms. That Azzedine C. believes participation in the armed jihad in Syria is a good cause is of course also clear from his own effort in March 2013 to go and take part in it together with Soufiane Z.123

In his written account prior to the hearing Rudolph H. called jihad ‘the most controversial subject within Islam today’ and subsequently he gave an explanation of it, ‘in order to demonstrate that jihad is part of the Islam (in general)’. He discussed the various types of jihad, which include the defensive and the offensive physical fight, as well as a diversity of opinions about (aspects of) this ‘extensive and complex subject’. When asked about his own opinion at the trial, he surprised the court with his answer that he had not yet gone sufficiently deeply into that (as he said unmistakably important) part of Islamic religious doctrine to be able to pronounce upon that. He also called it a dangerous subject, as was evidenced by the present trial, which was why he preferred not to answer the question. Neither did he reply to the question whether there is a theologically justifiable jihad going on in Syria at the moment, nor to the question whether or not there exists an individual obligation for Muslims to take part in it. Of course Rudolph H. is perfectly entitled not to answer these questions, but he overestimated the court’s credulity when he said this was because he had not yet formed his own opinion on the subject. From statements made by De Koning it is clear that Rudolph H. in his contacts with De Koning did not demonstrate this modesty. In the above (10.3 through 10.5) the court summarized briefly what De Koning stated about the views of the inner circle, which includes Rudolph H., on the armed jihadi struggle in Syria. The court regards De Koning as an exact and expert observer and a reliable witness. The court considers it out of the question that De Koning might have misconstrued what Rudolph H.’s thoughts were on the subject. Moreover, Rudolph H. was the man behind the website De Ware Religie (DWR). The expert Peters characterized DWR as a website which glorifies the armed jihadi struggle in Syria and demonstrates a clear sympathy for terrorist organizations such as IS and al-Qaida.124 And on the FAQ page of DWR the question “What is your opinion of the mujahedeen who travelled to Syria?” is answered as follows: “They are our mujahedeen, who, different as they are, fight together for one purpose, side by side. May Allah see to it that they succeed, both here and in the hereafter?” Finally, the court points to the mail by DWR, i.e. Rudolph H., to NCTV of 20 June 2014, which contains the sentence: “We, of DeWareReligie.nl sympathize with the mujahedeen of al-Qaeda, the mujahedeen of Jabhat al-Nusra and the mujahedeen of the Islamic State in Iraq and Sham”.125

According to De Koning, Moussa L. belongs to the ‘outer circle’ of the group that was the focus of his research. He describes him as a ‘popular follower’ and as someone who liked to be a part.126 It seems logical to assume that Moussa L.’s views of the armed jihad in Syria are more or less identical to the inner circle’s, but De Koning does not mention anything about it, nor is there anything specific in the case file.127

Making a large reservation, De Koning also rated Jordi de J., before his departure to Syria, to the ‘outer circle’ of the group.128 He did not state about Jordi de J.’s views on the armed jihadist conflict in Syria. Nor is there anything specific about it in the case file. The court refers to chapter 16 of this judgment, in which it will substantiate why it considers there is insufficient evidence that Jordi de J. before his departure to Syria had familiarized himself with ’the radical extremist body of ideas of the armed jihadi conflict’.

Upon her arrest a notebook was found in Imane B.’s toilet bag129 containing what are believed to be handwritten homework assignments for Qur’an lessons as well as notes for a speech or an essay. These notes demonstrate a religiously inspired hatred of Shiites (and democrats, atheists and Zionists) and sympathy for ISIS.130That Imane B.’s views coincide entirely with her husband’s merges from an intercepted telephone conversation between them or 4 April 2014. In it Imane B. tells Azzedine C. about a discussion with others on Twitter about children that die in Syria and suicide operations carried out by IS, which she had ended by telling someone: “And you will be held accountable [on Judgment Day] for every person who took an aversion to jihad because of what you said”.131

Further down, in chapter 17, the court will substantiate why it considers legally and conclusively proved that Hicham el O. took part in the armed jihadi struggle in Syria between 21 January 2013 and August 2013. More convincing evidence for his views on it in that period will be hard to find.

The same is true for Hatim R. and Anis Z. in the period from, respectively, 1 March through 31 October 2014 and 1 February 2013 through 31 October 2014.

Six of the accused have been charged with -succinctly stated- having incited others to commit punishable offences132 and having disseminated and had in store writings and/or images containing incitement. The criminal offences to which the incitement allegedly referred were the armed jihadi struggle in Syria.

As considered previously the court finds that taking part in the armed jihadi struggle constitutes punishable offences referred to in article 83 DCC.133

With respect to incitement the charges include references to the media where the manifestation/communication as charged were made (website, digital radio channel, YouTube, Twitter, Facebook, demonstrations). Broken down by medium, in some cases a specific description of the contents of the communication is given with reference to the place where it can be found in the case file. Sometimes the court has limited itself to referring to the relevant page where the manifestation can be found in the case file. In the case of the Facebook page Sham al-Ghareeba reference is made to the manifestations described in 100 pages.

Considering the extensive but specific references, as well as the comprehensive discussion at the trial of the relevant manifestations the court holds that it is sufficiently clear for the accused what the specific charges were against which they had to defend themselves. The plea of partial nullity put forward against the summons is dismissed, therefore.

The prosecution has applied to the court to consider the references in the charges only as a pointer and to take into account other manifestations in the case file as well. The court holds (and agrees with the defence) that the deliberations should of course take place “on the basis of the charges”. It will therefore only assess those manifestations that the charges aim at according to the aforementioned references.

Incitement is punishable under article 131 DCC. The article provides:

Punishable incitement is inciting another or others to commit any criminal offence or act of violence against the authorities. A direct relation must exist between the incitement and the criminal offence incited. Incitement can be direct or indirect.

Incitement is not compelling someone to perform an act, but rather provoking the thought of an act, trying to establish the opinion that this is desirable or necessary and to rouse the desire to bring it about. It consists of such a representation of the desirability or necessity as is suitable to arouse the conviction thereof in others.

It can take the shape of a request, an exhortation, and it can be presented as an imperative. Incitement can also entail the expression of high moral appreciation of an act.134

Incitement is complete if it is communicated by the inciter. It is not required that the incitement has any result, such as for instance that the general public has taken note of the inciting writing. Whether the incited offence is actually committed is of no matter.135

Incitement occurs in public, either orally or in writing or by image. Incitement occurs in public if the incitement occurs under such circumstances and in such a way that it is aimed at the public and is accessible to the public. The Internet can be considered a public place on condition that the public has access to the Internet page showing the texts.136

The dissemination of matter containing incitement is punishable under article 132 DCC. The article provides:

It is also not required that dissemination of written matter or an image for the purpose of incitement has any result. Furthermore, the perpetrator does not need to know that the incited offence is punishable. What is essential is that the perpetrator intends to spread/give publicity to the contents of inciting written matter or image.137

In assessing whether a communication or document should be considered as inciting under criminal law it should be tested against freedom of opinion - as protected by article 10 ECHR - for it is one of the foundations of the Dutch legal system. The court repeats here that a restriction of this fundamental right is allowed only if it is (i) provided for in law, (ii) serves a permissible purpose and (iii) is necessary in a democratic society. Penalization of incitement and dissemination for the purpose of inciting is provided for by law and serves a permissible purpose, i.e. the prevention of other criminal offences. What must be tested subsequently is whether, in a specific case, this restriction of the freedom of opinion is required in a democratic society. From European case law it must be inferred that “necessary” entails: a “pressing social need”, the assessment of which is to a certain degree at the discretion of the member states. In the assessment a balance must be achieved between the fundamental interest of the freedom of opinion (the individual civil right) and the fundamental interest of the protection of the democratic state (under the rule of law) (the fundamental social interest). An acceptable restriction of this freedom must at least meet the requirements of proportionality. Against this background the question to which extent the authorities are entitled to infringe on the fundamental right cannot be answered in a general sense, but will have to be decided by both the literal meaning of the communication or manifestation and the circumstances of the case.138

The case law of the ECtHR on this point reasons very much from individual cases and cannot be applied one on one to the present case. It is clear, however, that article 10 ECHR offers much scope for the freely propagating of opinions, even if these opinions shock, hurt or disturb. This is required by the pluralism, tolerance and open-mindedness characteristic of a democratic society. Yet the line is drawn at communications that incite to hatred, violence or discrimination. In assessing whether that limit is overstepped many factors play a role. It is the interaction between the various factors rather than one single factor, which determine the outcome of that assessment in its specific context.139

In assessing the communications and files for dissemination as charged the court takes the following circumstances and factors into consideration:

1. the content of the communication;

2. the context in which the communication occurred;

3. the place or opportunity where the communication was made;

4. the target group the communication was apparently aimed at;

5. the apparent meaning of the communication;

First of all, the court will assess the literal contents of the communications. It should be noted that the glorification or extenuation of (terrorist) crimes or terrorist organizations is not punishable in itself in the Netherlands. Nor does, in principle, making propaganda in the sense of giving one-sided information in order to win supporters for a certain cause fall within the scope of articles 131 and 132 DCC.

Communications of a specific religious nature, such as the proclamation of a faith or communications made during a religious gathering are accorded a large degree of protection under article 9 ECHR.140Communications made in a different context, for instance during public demonstrations are, in principle, assessed under article 10 ECHR, also if they are religiously inspired.141

Communications made in the context of social debate can rely on a larger degree of protection under article 10 ECHR.142States have fairly limited scope to prosecute those who join/get involved in the political or social debate /issues, particularly where criticisms of the authorities or social wrongs are concerned. The communications will have to be about issues of public interest in a democracy. If participants in the social debate use stylistic devices such as exaggeration, provocation, satire and incitement in order to get a response and ask for or draw attention to their view on a social issue a large degree of freedom is accorded to them.

In a democracy, the media play an essential role.143The contents of journalistic communications, such as actual news, interviews or news analyses are accorded a large degree of protection under article 10 ECHR. In assessing whether these communications have overstepped the boundary of freedom of opinion, the requirements of journalistic responsibility and carefulness play a large role.144

The court acknowledges the transience of messaging on social media such as Twitter and Facebook. However, this is not a licence to stick messages with inciting contents up on the Internet. Usually the messages are short and accompanied by an image or a hyperlink. The messages are absorbed quickly, mostly after a superficial read. There is no time or scope for nuance or analysis. On the one hand, this puts into perspective the impression a message leaves behind, on the other it apportions/lays great responsibility to/with the sender, for the message that the communication seems to put forward upon first superficial perusal is the message that takes root. Particularly if many messages with a certain purport are sent within a short period of time, this will have an intensifying effect on the message that is propagated.

Sometimes the communication as charged is a retweet of a communication made by someone else, accompanied by the accused’s comment or otherwise. The court acknowledges that the principle with regard to Twitter is that retweet is not endorsement. This entails that retweeting a message which in itself is considered inciting is, in principle, not punishable under article 131 DCC. This conduct does fall within the scope of article 132, however. This is different if it turns out from the accused’s comment to the retweet that he endorses its contents, or if the retweet fits in with a series of the accused’s messages of a similar nature and/or purport within a certain period. The same is true for sharing a hyperlink.

Itemized by medium used the court will establish at which audience the communication was aimed.

In view of all this, in the next chapter the court will establish communication by communication whether it incites directly to participation in the armed jihadi struggle in Syria. Participation in the armed jihadi struggle in Syria is a terrorist crime. From an international point of view, it is incumbent upon The Netherlands to combat terrorism.145 The restriction of the freedom of opinion is therefore provided for by law, serves a permissible purpose and is necessary in a democratic society. In other words, article 10 ECHR does not give shelter to those who incite to terrorist crimes or disseminate (written) matter inciting thereto.

Before addressing the specific communications as charged the court wishes to make some preliminary remarks.

The dissemination of matter containing incitement, in writing or by image, and incitement are often a continuation of one another. Where the court finds incitement legally and conclusively proved, it will also finds dissemination of matter containing incitement legally and conclusively proved, unless stated otherwise.

In the case of some communications or matter containing incitement for dissemination only the title or a screenshot can be found in the case file. The court holds (and agrees with the defence) that these can, in principle, not serve as evidence. It is on the basis of the specific, actual and full contents of a communication that the court must be able to assess, considering the aforementioned factors, whether that communication incites directly to participation in the armed jihadi conflict in Syria.

With regard to a number of the communications the accused are charged with the court finds that it is impossible to see how they can be related directly to inducing thoughts of participating in the armed jihadi struggle in Syria, trying to promote the opinion that this participation is desirable or necessary or arousing the desire to bring about that participation, or even to express a higher moral appreciation of that participation. Some of the communications are shocking, morally absolutely reprehensible or can be seen as insulting to a group of people and/or incite to hatred, discrimination or violence as referred to in artt. 137c and 137d DCC. These are not the punishable offences incited to asreferred to in the charges, however. Neither do communications that (may) lead to polarization in society, or are meant to reject democracy relate directly to incitement to participation in the armed jihadi struggle in Syria, the court finds.

Amongst the manifestations of incitement that the accused are charged with there are numerous images of flags or images of the use of flags. More particularly, they are (variations of) the following flags.

To be referred to hereinafter as the tawhid flag. The flag shows the text of the Islamic creed (“There is no god but Allah; Mohammed is the messenger of Allah”).146

To be referred to hereinafter as the seal flag. It is a flag designed by al-Qaeda. The flag’s design was based on extensive research of Islamic religious and historical sources about the prophet’s flag. Because it is not known what the prophet’s flag looked like it is not certain that the flag designed by al-Qaeda actually is the prophet’s flag or the flag of Islam. The seal flag was claimed by ISI (Islamic State in Iraq), later ISIS/ISIL, now IS, as their official flag.147

The court considers it a generally known fact (beside the question whether this is correct) that the seal flag is associated with the armed jihadi struggle and, from 29 June 2014, with ISIS in particular. The expert De Koning confirmed at the trial that this association existed as early as September 2013 and that the accused were aware of this.148

When asked the expert Van Koningsveld stated that a terrorist significance is attached to the tawhid flag and the seal flag, because they are used as battle standards by jihadi armed groups. These flags have a hybrid character as they combine elements from various different sources and periods. In the present form they have only been adopted and used in modern times, as battle standards in the jihad. In present day demonstrations and marches they cannot be interpreted as “authentic” prophetic flags that can be carried along with the intention of peacefully proclaiming the message of Islam, as is sometimes said, but as a proclamation of the sovereignty of Islam and a deliberate incitement to and support of the armed jihadi struggle in the name of a religion.149

The court construes the expert Van Koningsveld to mean that the tawhid flag and the seal flag in the period referred to in the charges were a symbol of the armed jihadi struggle. The use of that flag or images thereof, therefore, must in the court’s opinion at least be regarded as a glorification of that armed jihadi struggle. Following the declaration of the caliphate on 29 June 2014 the use of the seal flag or images thereof can also be seen, in the court’s opinion, as a declaration of support to IS.

As included in chapter 11 above, the glorification of the armed jihadi struggle or expression of support to a terrorist organization does not in itself fall within the scope of artt. 131 and 132 DCC. Additional circumstances may change this. Some of the manifestations that the accused are charged with concern only the use or possession of a seal flag or tawhid flag, or an image of one, without additional circumstances. In these cases the court acquits the accused persons.

In the period stated in the charges the public website De Ware Religie was administered by at least Rudolph H.150As administrator he determined the content of the site.

The case file contains clues that Azzedine C. was involved to some extent in De Ware Religie.151 Both Rudolph H. and Azzedine C. stated that Rudolph H. was the sole editor of De Ware Religie. This is confirmed by Witness no. 5.152 Azzedine C. supplied columns and had an account to the site. He sometimes functioned as a sounding board for Rudolph H. In addition, he acted as the external spokesperson of the De Ware Religie for reasons that had to do with Rudolph H.’s detention in 2012, both have stated. Viewed in this light the said clues are insufficient, the court finds, to establish a deliberate and close cooperation between Rudolph H. and Azzedine C. to the extent that Azzedine C. participated in the administration of (and posting messages on) De Ware Religie. Azzedine C. will therefore be acquitted from this part of the charges.

The police investigated the contents of the website in the period from 3 December 2013 through 30 April 2014153and from 1 August 2014 through 26 August 2014154.

The police’s summary and conclusions155 boil down to that the entire content of De Ware Religie must be considered inciting. The expert Peters arrives at a different conclusion and states that although the armed struggle is glorified on this site, it is to a lesser degree that the analysis in the official police report has it. He finds that the glorification of the struggle occurs particularly in the anasheed, the impact of which will be limited as the texts are sung in Arabic. In his opinion De Ware Religie calls up to debate and constitutes a serious Salafist156 website, therefore, which does, incidentally demonstrate a clear sympathy for terrorist organizations such as IS and al-Qaeda.157The expert De Koning describes De Ware Religie as a website that has as its object providing information about Islam and passing on the most important news concerning Muslims and the Islam. De Ware Religie developed into the most important vehicle of the activists who were the subject of his research. The tone used on the site was alternately matter of fact, moralizing and sometimes coarse, abusive and provocative.158

The court has assessed the publications referred to in the charges. The publications include speeches, opinions and images. The publications are posted onto a website, which profiles itself as a website aimed at the dissemination of news and opinion with regard Islam and Muslims. Besides, the site attempts to provide more in-depth theological exegesis in certain fields if this is required by current events. Apart from the news, the website also provides theological insights from an Islamic point of view. Furthermore, in 2013 the editor of De Ware Religie says that he endeavours to inform Muslims and non-Muslims about present day circumstances of the Islam on the basis of the Qur’an and the Sunnah of the prophet Mohammed, as well as about the Muslim community.159 A large part of the communications is related to the armed jihadist conflict in Syria. The target audience the communications were apparently aimed at are Muslims. De site has the structure and lay-out of a news site. The court finds that the website hosts opinion-forming, journalistic messaging. The apparent purpose of the publications was presenting (mostly propaganda-type) news about the Islam and about the struggle and fighters in Syria in a journalistic way.

in June 2013 four speeches by Oussama C. were disseminated via de website De Ware Religie. They were “Present day youth”, “The Grave”, “Jihad for Allah” and “Three major signs of the day of judgment”.160

In light of their contents, the speeches address Muslims brothers and sisters and take the shape of a sermon. A sermon is an admonishing speech containing a lesson for life, tidings. They are all (mostly) religious in nature and published onto a Salafist website that is clearly sympathetic to terrorist organizations such as IS.161De Koning describes the speeches as follows:162

In “Present day youth” and “Three major signs of the day of judgment” no connection is made to the current situation in Syria. Considering the other theological content of these speeches it cannot be claimed, the court finds, that these speeches are a direct incitement to participation in the armed jihadi struggle in Syria. The court will acquit Rudolph H. on this part of the charges.

The speech “Jihad for Allah” has been recorded verbatim in the case file.163 The expert De Koning describes the speeches as follows:164

The court endorses the interpretation by the expert De Koning. In his speech Oussama C. in so many words names the present day armed jihadi struggle, which is called terrorism by unbelievers. He rates participation in that armed struggle as very positive and dying as a martyr in that struggle as the highest attainable feat. Furthermore, he refers to the tawhid flag and begs Allah (amongst other things) to free the brothers and sisters in Syria. The court holds that this plea can only be seen as Oussama C.’s explicit wish. This wish can only come true if people try and realize the desired outcome and in doing so, carry out Allah´s will.

Considering the preaching nature of the speech (compared to his other speeches), the website on which it was published, the website’s target audience of Muslims and the context, the court holds that it was apparently Oussama C.’s intention to impress on the viewers that travelling to Syria to participate in the struggle was a purpose worthy of pursuing. In that sense the speech contains, the court finds, an incitement to participate in the armed jihadi struggle in Syria.

The speech “The Grave” has been recorded verbatim in the case file.165The expert De Koning describes the speeches as follows:166

The court also endorses this interpretation by the expert De Koning. In his speech Oussama C. describes, with reference to the Qur’an, that dying as a martyr in the armed jihad struggle is the best way to escape the scourges of the grave. Against that background he emphasizes the need for solidarity amongst Muslims, as prompted by Allah, and wonders why they look on while their brothers and sisters are being slaughtered. Finally, he begs Allah to open the eyes of young persons and to let them die for la illaha illallah.

Considering the preaching nature of the speech (in conjunction with his other speeches), the website on which it was published, the website’s target audience of Muslims and the context, the court finds that it was apparently Oussama C.’s intention to impress on the viewers that travelling to Syria to participate in the struggle was a purpose worthy of pursuing. In that sense the speech contains, the court holds, an incitement to participate in the armed jihadi struggle in Syria.

Rudolph H. has adapted these speeches to videos. He added an intro and outro as well as music.167 Subsequently, he published them on De Ware Religie without any reservation. By doing so, he endorsed the contents of the video (which would not have been the case if he had just retweeted or shared a hyperlink). For this reason Rudolph H., the court holds, committed the offence of incitement by posting these publications.

The second dash contains the charge against Rudolph H. of disseminating “speeches with a didactic nature by prominent persons about the armed jihadi struggle”. The charge refers to Chocola 476-479. In this part of the case file we can read that seized under Azzedine C. were works by Muhammad Ibn Abdulwahab, Abu al-Ala al-Maududi, Sayyid Qutb, Sayyid Imam Sharif, Yusuf al-Uyayri, Nasser Bin Hamad al-Fahd, Sulaiman Bin Nasser al-Ulwan, Khalid bin Abdul Rahman al Husainan, Anwar al-Awlaki, A.M. al-Maqdissi and Abd-al Mun’em Mustafa Halima. We can also read there that “many of the publications of these authors (...) were also published on the Dutch jihadi websites Ahlus-Sunnah Publicaties with the URL: http://ahlussunahpublicaties.wordpress.com and www.dewarereligie.nl. Apart from the question exactly which publications were found on De Ware Religie, the case file does not contain anything about the contents of the publications? The court cannot assess them, therefore, and acquits Rudolph H. on this charge.

From May 2013 through January 2014 six opinion pieces were published on De Ware Religie which were written by Azzedine C.168In these columns Azzedine C. addresses current situations. Taking the above considerations about De Ware Religie into account it cannot be said, the court finds, that these columns are inciting. Rudolph H. is therefore acquitted from this part of the charges.

There is no description in the case file of the contents of the other articles,169books,170speeches171 and video extracts172 referred to in the charges. The court cannot assess them, therefore, and acquits Rudolph H. on this charge.

In the month of August 2014 25 messages were published on De Ware Religie.173Seven have been transcribed verbatim and included in the case file. (No more than) two can be classed as propaganda for IS.174bout the other six there is no evidence to suggest that they can be linked directly to incitement to participation in the armed jihadi struggle in Syria. The other 17 messages have not been transcribed, so the court cannot assess them. Rudolph H. is therefore acquitted of this part of the charges.

The court finds that there is no evidence whatsoever of Rudolph H. and Azzedine C.’s involvement in the administration of the website Ahlus-Sunnah. Possibly, the author of the charges/indictment intended to refer to the articles of Ahlus-Sunnah which were posted on De Ware Religie until late December 2013,175or articles on Ahlus-Sunnah publications which were referred to on De Ware Religie.176These articles have not been transcribed for the case file, so the court cannot assess them. Lastly, what has been considered above under the heading “De Ware Religie, lectures with a didactic nature” also applies to the section Ahlus-Sunnah, so Rudolph H. and Azzedine C. are acquitted of this part of the charges in its entirety.

Radio Ghurabaa was an internet radio station presenting itself as “the Islamic radio station for Qur’an, lectures and anasheed”.177Radio Ghurabaa broadcasted from 1 February 2014 through 29 March 2014.178

The case file contains leads that Azzedine C. was involved to some extent in Radio Ghurabaa.179 Both Rudolph H. and Azzedine C. stated that Rudolph H. was the sole editor of De Ware Religie. Azzedine C. sometimes functioned as a sounding board for Rudolph H. In addition, he acted as the external spokesperson of Radio Ghurabaa for reasons that had to do with Rudolph H.’s detention in 2012, both have stated. Viewed in this light the said leads are insufficient, the court finds, to establish a deliberate and close cooperation between Rudolph H. and Azzedine C. to the extent that Azzedine C. participated in the administration of (and spreading communications via) Radio Ghurabaa. Azzedine C. is therefore acquitted of this part of the charges.

The case file does not contain the contents of speeches by Anwar al-Awlaki (with two exceptions), Ahmad Musa Jibril, Abu Adnan, Abduljabbar, Subject no. 41 and Abu Imran, that are referred to in the charges.180 The same is true for the songs181 that are referred to in the charges.182 Rudolph H. is therefore acquitted of this part of the charges.

On 13 March 2014 two speeches by Anwar al-Awlaki were broadcast on Radio Ghurabaa, entitled “Hijrah” and “Jihad with the messenger of Allah”.183 Transcriptions of these speeches are included in the case file.184They are historical texts, not connected or referring to the current situation in Syria. About these speeches there is no evidence to suggest that they can be linked directly to incitement to participation in the armed jihadi struggle in Syria. Rudolph H. is therefore acquitted of this part of the charges.

On 14 February 2014 a speech by Oussama C. was broadcast on Radio Ghurabaa.185Oussama C. says, amongst other things:

In light of its contents, the speech addresses Muslims brothers and sisters and takes the shape of a sermon. In his speech Oussama C. names the armed groups ISIS and Jabhat al-Nusra who fight in Syria and refers to the seal flag. As considered above the court regards the use of this flag as a glorification of the armed jihadi struggle in Syria. Oussama C. says, while referring to Qur’an texts, that the best people in the world will be gathered in the blessed land of Sham and calls the soldiers fighting there the lions of Abu Bakr al-Bagdadi. He begs Allah for the victory of ISIS and Jabhat al-Nusra and in so doing he glorifies and endorses their fight. He also refers to brothers who travelled to Syria and disapproves that they returned within weeks (they have to think again). He ends with a reference to the prophet who was resurrected for the sword (the fight) and not the pen (the word).

In view of the preaching nature of the speech, the radio station on which it was delivered, the radio station’s target audience of Muslims and the context, the court finds that it was apparently Oussama C.’s intention to impress on the viewers that travelling to Syria to participate in the struggle was a purpose worthy of pursuing and that the example of those who had already travelled there should be followed. In that sense the speech contains, the court finds, an incitement to participate in the armed jihadi struggle in Syria.

Rudolph H. has broadcast this speech on Radio Ghurabaa without any reservation. This is more than a retweet or sharing a hyperlink, of which it cannot be claimed outright that the sender endorses the contents. For this reason Rudolph H., the court finds, committed the offence of incitement by broadcasting this speech.

Around 1 July 2014 a video emerged on the Internet which showed, amongst others, Azzedine C. and Moussa L. They are sitting on a lawn in front of a large seal flag. Azzedine C. says the following words, in Arabic:

In view of the use of the seal flag combined with the speech made, this video contains, the court finds, a clear expression of support for the IS caliphate that had just been founded, and can also be construed as a glorification of it. As considered above, such an expression of support is not, in itself, a direct incitement to participate in the armed jihadi struggle in Syria. Azzedine C. and Rudolph H. are acquitted of this part of the charges, therefore.

Around 1 January 2012 a video emerged on the Internet which showed Azzedine C., Rudolph H. and Moussa L. The video shows shocking footage of victims of the Assad regime. Azzedine C., Rudolph H. and Moussa L. then say, briefly stated, that the brothers and sisters in Syria are being tortured, raped and murdered, just because they are Muslims. They wonder where the real men are and the Ummah187 is called upon to stand up for the brothers in Syria188. Due to this combination the video seems, at first sight, to incite to participation in the armed jihadi struggle in Syria. However, at two points (half way through and at the end) it turns out that the video is intended to call people up to take part in a demonstration at the Syrian Embassy in The Hague on 8 January 2012. In view of this context the video cannot be said to be inciting in nature. Azzedine C. and Rudolph H. are acquitted of this part of the charges, therefore.

On 11 May Azzedine C. posted a message on the Facebook page Werkgroep Shaam with a link to a YouTube video of Subject no. 2.189 A translation of this video has been included in the case file.190 The video is an audio message. Briefly stated, Subject no. 2 makes a speech about the conflict between ISIS and al-Qaeda. The speech could be regarded as an expression of support for ISIS. As considered above, such an expression of support is not, in itself, a direct incitement to participate in the armed jihadi struggle in Syria. Therefore, Azzedine C. and Rudolph H. are acquitted of this part of the charges.

On 24 June 2014 a 30 minute video was uploaded onto the Internet entitled Oh Oh Aleppo.191The video shows how Dutch males in Syria participate in the fight against President Assad’s regime. Amongst other things, they are seen to shoot with automatic guns. The video is made in the genre of a documentary, in which a masked man gives a tour of Aleppo and comments in Dutch. Two if the men in the video have been recognized. They are Soufiane Z. and Subject no. 3.192The video is described summarily in the case file.193The court took cognizance of the contents of the video as shown at the trial.

In the video Soufiane Z. glorifies the armed struggle that is conducted as well as martyrdom. He emphasizes the bond between Muslim brothers and stated that during fights he feels close to Allah. He also says that Western youths are very well capable of fighting. With this in mind he paints a more than positive image of the mujahedeen who are fighting there. In addition, the opponents (Assad’s soldiers) are dehumanized and in doing so, the fight is legitimized. This propaganda video does not only express high moral appreciation for the jihadi struggle and, in particular, the Dutch mujahidun, but it is also suggested that taking part in that struggle is worthy of emulation and that dying during that struggle is the highest goal one can attain and should therefore be followed. In that sense the speech contains, the court finds, an incitement to participate in the armed jihadi struggle in Syria.

It emerges from the case file that Soufiane Z. asked Rudolph H. whether he and Azzedine C. would take a look at the subtitles and check them for spelling errors. Rudolph H. complied with this request.194This is however insufficient to establish a deliberate and close cooperation between Rudolph H., Azzedine C and Soufiane Z. to establish complicity in the making of this video. Rudolph H. and Azzedine C. are acquitted of this part of the charges, therefore.

Although Rudolph H. initially denied this, it turns out that he shared both an announcement of the video (with a link)195 via the Twitter account of De Ware Religie on 29 May 2014, and a message with (a link to) the video “Oh oh Aleppo” on 24 June 2014.196The court finds legally and conclusively proved that Rudolph H. disseminated this inciting video. Azzedine C. only stated that he may have shared the video.197 From the case file it turns out that he did in the case of the announcement on 29 May 2014 198, but the case file contains no evidence of sharing the video itself. Azzedine C. is therefore acquitted of this part of the charges.

Rudolph H. used a Twitter account under the name of Abu Suhayb, with the profile @AbuSuhayb_DWR.199The police investigated all communications posted from 2 April 2014 through 30 July 2014.200

About the tweets “eradicate Zionist people at the root and wipe them off the map”, “@DickSchoof and @geertwilderspvv”, “nothing wrong with that if you ask me” and “(...) Ya Allah destroy them and their plans”,201 the court finds that there is no evidence to suggest that they can be linked directly to incitement to participation in the armed jihadi struggle in Syria. The court therefore acquits Rudolph H. on this charge.

The tweets ”Wouldn’t it be hilarious (...)”202 and “Oh Oh The Hague, #jihadcity behind the dunes (...)”203 are insufficiently serious, the court holds, to assume that they could have an inciting effect. The court therefore acquits Rudolph H. on this charge.

Although the tweet “#ISIS hands out food and humanitarian assistance (...)”204 can be construed as propaganda for ISIS, but not as inciting. The court therefore acquits Rudolph H. on this charge.

With regard to the other messages the court repeats that messaging on Twitter is not suited for analysis of any underlying content. The message that the communication seems to put forward upon first superficial perusal is the message that takes root.

On 12 April 2014 Rudolph H. posted a message with the text: “Suddenly you know. Your future is in paradise”. This message also contains an image of a fighter holding a weapon with the caption: “Suddenly you know. Your future is in paradise”.206 On 13 April 2014 Rudolph H. posted a message with the text: “Dutch Mujahedeen in Syria, what do you mean: no future? Our future is in Paradise. Sham al-Malaahim!”. The message also contains an image of fighters holding weapons with the caption: “Youths with plans for the future”.207The court holds that these messages represent a positive appreciation of taking part in the armed jihadi struggle in Syria and therefore constitute an indirect exhortation to imitate that. As Rudolph H. retweeted these communications without further addition the court acquits him of incitement. The court finds legally and conclusively proved that he disseminated inciting matter.

On 5 May Rudolph H. posted a message with the text: “Are there any Dutchies amongst them? *hopes*” “@ShaamNieuws: New picture of some recent #ISIS recruits in#Syria”.208The message also contains an image of (apparently) ISIS fighters. The court finds that this tweet must be regarded as inciting. The image shows fighters with seal flags and Rudolph H. hopes there are Dutch citizens amongst them. The court finds that these messages contain a positive appreciation of taking part in the armed jihadi struggle in Syria and therefore consist of an indirect exhortation to imitate that.

On 6 May Rudolph H. posted a retweet of Pieter van Ostayen with the text: “A Belgian fighter: we need Muslims willing to die and fight for God. Two guarantees: Victory of Martyrdom #Syria. Urgently wanted: Muslims who are prepared to die for Allah Azza Wa jal and to fight fisabiillah. Two guarantees: Victory or Shahada. Allah is on our side”.209The court finds that Van Ostayen’s tweet is inciting. This is an exhortation, in plain terms, to participate in the armed jihadi struggle in Syria while reference is made to victory or dying as a martyr. As Rudolph H. retweeted these communications without further addition the court acquits him of incitement. The court does find legally and conclusively proved, however, that he disseminated inciting matter.

The court holds, and agrees with the prosecution and the defence that with regard to Rudolph H.’s Twitter account it cannot be established that there existed a deliberate and close cooperation between Azzedine C. and Rudolph H.to such an extent that it constitutes complicity for Azzedine C. Azzedine C. is therefore acquitted of this part of the charges.

Azzedine C. used Twitter account @Ab0Moussa210and @AbeMoussa.211

About a number of tweets212 the court finds that there is no evidence to suggest that they can be linked directly to incitement to participation in the armed jihadi struggle in Syria. The court therefore acquits Azzedine C. on this charge.

Although a number of tweets 213 can be construed as glorification of or propaganda for the armed jihad, they are not inciting. The court therefore acquits Azzedine C. on this charge.

With regard to the other communications the court repeats that messaging on Twitter is not suited for analysis of any underlying content. The message that the communication seems to put forward upon first superficial perusal is the message that takes root.

On 15 September 2013 Azzedine C. posted a message with the text “beautiful action picture of the heroes of Ahraar Sham in Syria”. The message also contains an image of a fighter firing a weapon.214 On 23 September 2013 Azzedine C. posted a message with the text “Oozing charisma”. The message also contains an image of armed fighters walking through a town.215 The court holds that these messages represent a positive appreciation of taking part in the armed jihadi struggle in Syria and therefore incite to indirect imitation.

On 18 September 2013 Azzedine C. posted a message with the text “Great picture”. The message also contains an image of armed fighters on horseback with a seal flag.216 The message does not just glorify the armed struggle, but due to the seal flag also contains, the court finds, a link with the current struggle in Syria, and as such, in the court’s opinion, an incitement to participate in the armed jihadi struggle in Syria.

On 19 September 2013 Azzedine C. posted a message with the text “A Mujaheed who lost his lower leg (...)”. The message also contains an image of a fighter in a hospital bed holding up his severed lower leg.217 This message does not just glorify the armed struggle, but also shows appreciation for this participant in that struggle. This message suggests that this fighter is worth imitating. In that sense the speech contains, the court finds, an incitement to participate in the armed jihadi struggle in Syria.

In a number of communications martyrs or martyrdom are glorified.218 These messages do not only express high moral appreciation for the jihadi struggle, but also suggest that taking part in that struggle is worthy of emulation and that dying during that struggle is the highest goal one can attain and should therefore be followed. In that sense the speech contains, the court holds, an incitement to participate in the armed jihadi struggle in Syria.

On 28 July 2014 Azzedine C. retweets a message by Shaam Nieuws in which a link is shared to the IS video “This is the method of the prophet”.219 On 29 July 2014 Azzedine C. posted a message with the text: “When the Dutch press sees the latest IS(IS) video the news won’t be about #MH17 anymore. This one is even better than Salillu Sawaarim 4”.220

The video referred to contains many horrific images of very violent acts by IS fighters. The video is pure propaganda for IS. It shows that IS is winning and capable of standing up against the West. The armed struggle is glorified and opponents are dehumanized. In this connection De Koning uses the words propagandist relentlessness.221Besides atrocities the video shows seal flags and the tearing up of passports by foreign fighters. This footage emanates an enormous power of persuasion because young persons can identify with these foreign fighters. It signifies that fighters settle there and do not return to their countries of origin. It is a shining example to young persons to leave their countries, to leave everything and everyone behind and to take part in the armed struggle.

From the 29 July 2014 message it is clear that Azzedine C. greatly admires the contents of this video. With it, he endorses the contents and indirectly incites to participation in the armed jihadi struggle in Syria.

In the period from 18 to 25 August 2014 Azzedine C. posted a message with the text “Imam Anwar al Awlaki”. The message also contained an image of two armed fighters with the caption “compromising is not at all an option in our religion because as Muslims we are submitting ourselves exclusively to Allah”.222 This message does not just glorify the armed struggle, but also shows appreciation for participants in that struggle. This message suggests that these fighters should be imitated. In that sense the speech contains, in the court’s opinion, an incitement to participate in the armed jihadi struggle in Syria. As Azzedine C. retweeted this communication without further addition the court acquits him of incitement. However, the court does find legally and conclusively proved that he disseminated inciting matter.

The court holds, and agrees with the prosecution and the defence, that with regard to Azzedine C.’s Twitter account it cannot be established that there existed a deliberate and close cooperation between Azzedine C. and Rudolph H. to the extent that it constitutes complicity. Rudolph H. is therefore acquitted of this part of the charges.

Azzedine C. was the user of Facebook page Ab0Moussa, with the user profiles Abou Moussa223and, from 28 July 2014, Bakr Hadeetha.224

About a number of communications225the court finds that there is no evidence to suggest that they can be linked directly to incitement to participation in the armed jihadi struggle in Syria. The court therefore acquits Azzedine C. on this charge.

Although a number of communications226, the court finds, can be construed as glorification of or propaganda for the armed jihad, they are not inciting. The court therefore acquits Azzedine C. on this charge.

With regard to the other communications the court repeats that messages on Facebook are not suited for analysis of any underlying content. The message that the communication seems to put forward upon first superficial perusal is the message that takes root.

In a number of communications martyrs or martyrdom are glorified.227These messages do not only express high moral appreciation for the jihadi struggle, but also suggest that taking part in that struggle is worthy of emulation and that dying during that struggle is the highest attainable goal and should therefore be pursued in imitation. In that sense these messages contain, the court finds, an incitement to participate in the armed jihadi struggle in Syria.

On 1 December 2013 Azzedine C. posted a message with, inter alia, the following text “Travelling to Syria is not punishable in itself! (...) What can be punishable is joining Johba Nosra and @ISIS. (...) My brotherly advice to travellers is: do not carry any evidence, do not talk on the Internet about where you are going or who you’re going to join or intend to join. (...) When you are arrested you don’t say a word until they read out the charges against you and you have FIRST talked to your lawyer! (...) Be smarter that those animals. And... have a good trip travelling to Syria (...)”.228This message contains very specific tips and tricks for those who plan to join ISIS or Jabhat al-Nusra. In that sense the speech contains, the court finds, an incitement to participate in the armed jihadi struggle in Syria.

On 18 May 2014 Azzedine C. posted a message with the text “Brothers, I advise you to watch this video. Islamic State in Iraq and Sham delivers a sublime video of their works to serve Muslims in Iraq and Syria”. “Part 4 of the extraordinary series Salilu Sawarim; with a hyperlink.229

The video referred to in the hyperlink contains many horrific images of very violent acts by IS fighters. The video is pure propaganda for IS. It shows that IS is winning and capable of standing up against the West. The armed struggle is glorified and opponents are dehumanized. In this connection De Koning uses the words propagandist relentlessness.230 Besides atrocities the video shows seal flags and the tearing up of passports by foreign fighters. This footage emanates an enormous power of persuasion because young persons can identify with these foreign fighters. It signifies that fighters settle over there and do not return to their countries of origin. It is a shining example to young persons to leave their countries, to leave everything and everyone behind and to take part in the armed struggle.

From the message of 18 May 2014 it is clear that Azzedine C. greatly admires the contents of this video. With it, he endorses the contents and indirectly incites to participation in the armed jihadi struggle in Syria.

The court holds and agrees with the prosecution and the defence that with regard to Azzedine C.’s Facebook page it cannot be established that there existed a deliberate and close cooperation between Azzedine C. and Rudolph H. to the extent that it constitutes complicity. Rudolph H. is therefore acquitted of this part of the charges.

The police investigated the contents of the Facebook page Shaam al-Ghareeba for the period 2 December 2013 until 28 April 2014. The investigated material concerns messages posted onto two edition of this Facebook page, i.e. “Shaam al-Ghareeba” and “Shaam al-Ghareeba II”. Both pages turned out to be identical. According to its profile picture the Facebook page aims to provide “daily news about Syria and its surroundings areas”. The Facebook page Shaam al-Ghareeba draws its news and news coverage exclusively from sources affiliated to ISIS and Jabhat al-Nusra (at least, until the spring of 2014). They are, more particularly, the media organizations run by ISIS, i.e. the Arab language ‘al-Farouk media Productions’ and ‘al-Furkan Meda Productions’, as well as ‘al-Itissam Media Foundation’, ‘Ajnad Media Foundation’ and ‘al- Hayat’, who are specifically involved in producing media productions in various western languages.231

Upon investigation of the seized materials the police conclude that the coverage of Shaam al-Ghareeba in the period between 2 December 2013 and 28 April 2014 turn this Facebook page into a media outlet and propaganda machine, primarily for ISIS and secondarily the Nusra Front. The support given to ISIS in the form of recruitment for terrorism, dissemination of jihadist propaganda inciting to hatred and violence, and mobilizing moral and political support for terrorist organizations committing the offence of taking part in the violent jihadi struggle in Syria (and Iraq).232 This conclusion is wholly endorsed by the expert Peters.233

The court has assessed all the messages in the case file.234 They are posts containing a picture and/or hyperlink to a video, accompanied by comments or not, as the case may be, or messages consisting of text only. The messages have been posted on a Facebook page which aims to cover ‘the daily news from Syria”. Messages on Facebook are not suited for analysis of any underlying content. The message that the communication seems to put forward upon first superficial perusal is the message that takes root. Particularly if many messages with a certain purport are sent within a short period of time, this will have an intensifying effect on the message that is propagated. The majority of the communications is related to the armed jihad in Syria, as fought by ISIS and Jabhat al-Nusra. The court finds there is no evidence of journalistic coverage in the messages. Nor is there any evidence of satire or irony including some form of self-mockery. In so far as there was any humour this was to support the apparent message. The target group the communication was apparently aimed at consisted of Muslims, more particularly ‘Muslim brothers”. The court infers so from the opening words of many of the messages, the reference made to other Muslim oriented media and the sources used. The objective of Shaam al-Ghareeba was to share positive news about ISIS and Jabhat al-Nusra, and to report non-positively about Shiites, the FSA or other groups than IS and Jabhat al-Nusra.235

messages cannot be said to relate directly to participation in the armed jihadi struggle in Syria.236 They are references to other social media, appeals for new editors, appeals for humanitarian assistance, messages about events in the Netherlands, announcements of videos, speeches or translations thereof, messages about the armed struggle in other countries or messages that cannot be assessed for lack of the underlying video the hyperlink refers to.

The court finds 97 messages to incite directly or indirectly to participation in the armed jihadi struggle in Syria. The court distinguishes the following categories in the messages it finds inciting:

 Messages that are a direct appeal to travel to Syria and/or participate in the armed jihadi struggle.237

 Messages glorifying martyrs or death as a martyr.238 These messages do not only express high moral appreciation for the jihadi struggle, but also suggest that taking part in that struggle is worthy of emulation and that dying during that struggle is the highest attainable goal and should therefore be imitated. In that sense these messages contain, the court finds, an incitement to participate in the armed jihadi struggle in Syria.

 Messages about (Dutch) Mujahedeen.239 These messages do not only express high moral appreciation for the jihadi struggle, but also for participants in that struggle. This message suggests that these fighters should be imitated. In that sense these messages contain, the court finds, an incitement to participate in the armed jihadi struggle in Syria.

 Messages about or images showing children with weapons.240 These messages appeal to the masculinity of the youths who are already participating in the armed jihadi struggle. This message suggests that these fighters should be imitated. In that sense these messages contain, the court finds, an incitement to participate in the armed jihadi struggle in Syria.

 Messages with images of heartrending scenes.241These messages suggest that the viewer should do something about the situation. In that sense these messages contain, the court finds, an incitement to participate in the armed jihadi struggle in Syria.

 Messages with images showing the seal flag, combined with weapons or battle scenes.242These messages do not just glorify the armed struggle, but due to the link with the current struggle in Syria, they are also, the court holds, an incitement to participate in the armed jihadi struggle in Syria.

The court finds that 199 messages glorify the armed jihadi struggle in Syria and/or contain propaganda for ISIS and/or Jabhat al-Nusra.243 This means that in four months’ time the Facebook page Shaam al-Ghareeba disseminated a large stream of one-sided messages about the good acts and works of the terrorist organizations ISIS and Jabhat al-Nusra and their armed jihadi struggle. In light of the quantity of messages that the court has already assessed as inciting, the court endorses and adopts the conclusions of the police and the expert Peters, and concludes that it was apparently the intention of the Facebook page Shaam al-Ghareeba to characterize participation in the armed jihadi struggle in Syria as a purpose worthy of emulation. The court finds therefore that these 199 messages are an exhortation to do so and in that sense, inciting.

In the period charged Azzedine C. was one of the editors of the Facebook page Shaam al-Ghareeba.244Azzedine C.confirmed this at the trial at the trial. In that period he did in fact post a large quantity of messages. He checked the Facebook page regularly and took note of the messages posted by the other editors, albeit not all. He was in touch with other editors, but there was no contact prior to posting messages. The messages posted by Azzedine C. were mostly of the same nature and/or purport as messages posted by other editors in the period charged. The other messages were no reason for Azzzedine to stop his activities as an editor of Shaam al-Ghareeba.245

Azzedine C. made a significant and essential contribution to posting messages on Shaam al-Ghareeba. This is not affected by the fact that he did not post all the messages as stated in the charges himself. He did not distance himself from them and continued posting messages of the same nature/purport himself. Under the circumstances the court finds that there existed such close and deliberate cooperation in the period stated in the charges that this constitutes complicity in posting all messages.

Rudolph H. was the administrator of the website De Ware Religie (DWR).246 On this website he had created a so-called section in which all messages posted on the Facebook page Shaam al-Ghareeba were automatically shared, accompanied by a hyperlink.247 This section was active on both 9 December 2013 and 30 April 2014.248The court infers from this that the section was active during the entire period in between (the period stated in the charges). The court holds that the (once-only) action performed by Rudolph H. activating this window does not entail that there is question of such a conscious and close cooperation between Rudolph H. and the editors of the Facebook page Shaam al-Ghareeba that this constitutes complicity. The court acquits Rudolph H. of this part of the charges, in as far as it concerns article 131 DCC.

Rudolph H.’s action does, however, lead to the court’s finding that it can be legally and conclusively proved that Rudolph H. committed the offence of disseminating the inciting communications referred to above.

The Facebook page Werkgroep Shaam is a closed group page. The privacy settings for this group were set at secret. This means that someone can only become a member upon invitation. The page could not be viewed publicly either. The page was created on 7 April 2014 and has been secured, looked and investigated until 12 May 2014 (inclusive).249

In the above the court already found250that incitement occurs in public. Incitement is public if the incitement occurs under such circumstances and in such a way that it is aimed at the public and is accessible to the public. The Internet can be considered a public place on condition that the public has access to the Internet page showing the texts. From the official report it emerges, and this was confirmed at the trial by Azzedine C., that the closed group Werkgroep Shaam was exclusively accessible to members and that one could only join as a new member upon the invitation of one of the members. For this reason the court holds that it cannot be established that the communications shared on this Facebook page were made publically. The court acquits Rudolph H. and Azzedine C. of this part of the charges.

Azzedine C. organized and participated in a demonstration which took place on 24 July 2014 in The Hague.251The demonstration was also attended by Rudolph, albeit at some distance. He filmed what went on.252 The court holds that the case file does not contain any evidence that Azzedine C. and Rudolph H. incited people with their conduct to participate in the armed jihadi struggle in Syria. Azzedine C. and Rudolph H. are acquitted of this part of the charges, therefore.

With regard to the videos, photographs, writings and songs that were found at Azzedine C. and Rudolph H.´s the court finds that there is no evidence that they had those in stock for the purpose of dissemination. That some (other) texts of the authors found have been found on Internet sites that can be related to the accused is insufficient to establish that purpose. In addition, of a large part of the documents found only a title or the name of the author is mentioned. About some of the texts there is no evidence to suggest that they can be linked to incitement to participation in the armed jihadi struggle in Syria as stated in the charges. Azzedine C. and Rudolph H. are acquitted of this part of the charges, therefore.

On 8 September 2013 a group of Muslims gathered on a football pitch in Hondiusstraat in The Hague. At one point the police decided to take action against those present. While the police were taking action people said a brother was going to make a speech. The majority of those present sat down in a circle around Oussama C. who then started to address them. He read a text to them, apparently from his mobile phone. The other men listened carefully.253 Oussama C. said, amongst other things:

The court construes this speech to mean that Oussama C. refers to Qur’an texts to substantiate that solidarity amongst Muslims is an obligation imposed by Allah. Muslims amongst themselves must help each other to contend with the unbelievers. In this light he subsequently refers to the current situation in Syria and the brothers and sisters who have travelled to Syria to fight in defence of Muslims there. He thanks Allah that the police cannot stop them. The court notes that both before and after Oussama C.’s speech seal flags and tawhid flags could be seen on and around the pitch.255After the speech Oussama C. himself walked up and down the public road brandishing a seal flag.256 As considered above the court regards the use of this flag as a glorification of the armed jihadi struggle in Syria.

In view of the nature of the speech, the location where it is was delivered, the context of the battle flags and the target audience of Muslims it was aimed at, the court finds, it was apparently Oussama C.’s intention to impress on the viewers that travelling to Syria to participate in the struggle was a purpose worthy of pursuing and that the example of those who had already travelled there should be followed. In that sense the speech contains, the court finds, an incitement to participate in the armed jihadi struggle in Syria.

On 14 February 2014 a speech by Oussama C. was broadcast on Radio Ghurabaa.257Oussama C. confirmed at the trial that it was for this purpose that he had recorded the speech. Radio Ghurabaa was an internet radio station presenting itself as “the Islamic radio station for Qur’an, lectures and anasheed”.258 Oussama C. says, amongst other things:

In his speech Oussama C. names the armed groups ISIS and Jabhat al-Nusra who fight in Syria and refers to the seal flag. As considered above the court regards the use of this flag as a glorification of the armed jihadi struggle in Syria. Oussama C. says, while referring to Qur’an texts, that the best people in the world will be gathered in the blessed land of Shaam and calls the soldiers fighting there the lions of Abu Bakr al-Bagdadi. He begs Allah for the victory of ISIS and Jabhat al-Nusra and in so doing he glorifies and endorses their fight. He also refers to brothers who travelled to Syria and disapproves that they returned within weeks (they have to think again). He ends with a reference to the prophet who was resurrected for the sword (the fight) and not the pen (the word).

 Messages that are a direct appeal to travel to Syria and/or participate in the armed jihadi struggle.265

 Messages glorifying martyrs or dying as a martyr.266These messages do not only express high moral appreciation for the jihadi struggle, but also suggest that taking part in that struggle is worthy of emulation and that dying during that struggle is the highest attainable goal and should therefore be imitated. In that sense these messages contain, the court finds, an incitement to participate in the armed jihadi struggle in Syria.

 Messages about (Dutch) Mujahedeen.267These messages do not only express high moral appreciation for the jihadi struggle, but also for participants in that struggle. These messages suggests that these fighters should be imitated. In that sense these messages contain, the court finds, an incitement to participate in the armed jihadi struggle in Syria.

 Messages about or images showing children with weapons.268These messages appeal to the masculinity of the young persons who are already participating in the armed jihadi struggle. This message suggests that these young persons should be imitated. In that sense these messages contain, the court finds, an incitement to participate in the armed jihadi struggle in Syria.

 Messages with images showing the seal flag, combined with weapons or scenes of action.269These messages do not just glorify the armed struggle, but due to the link with the current struggle in Syria, they are also, the court holds, an incitement to participate in the armed jihadi struggle in Syria.

The charges against Oussama C. and Azzedine C. are, briefly stated, that from 1 January 2012 up to and including 24 June 2014 Oussama C. recruited five persons, who are specifically named in the charges, for the armed (terrorist) struggle in Syria, and Azzedine C. six.

Paragraph 3 of this article provides that the custodial sentence referred to in paragraph 1 is increased by one third if the armed struggle that people are recruited for concerns a terrorist crime as referred to in article 83 DCC.

Introduction of the element of ‘armed struggle’ in article 205 paragraph 1 DCC meant to also penalize recruitment activities regarding the recruitment of persons for the purpose of directly deploying them in an Islamic or otherwise armed and violent struggle while participation in any group or collaborative cannot be demonstrated. Recruitment must have as its object actual participation in the struggle; only financial support does not fall within the scope of this article. From the legal history it emerges that the concept of ‘struggle’ as referred to above can also be construed to mean ‘jihad’ because a jihad can be interpreted as an Islamic struggle, taking the shape of undertaking acts of violence against perceived enemies of Islam in order to realize a world which reflects the purest form of what is believed to be written in the primary sources of the Islamic faith - the Qur’an and the Sunnah. The realization of a world in accordance with a certain model by undertaking acts of violence cannot be effected but with (equally) radical violence, according to the legislator. From the legal history it also emerges that the ‘struggle’ is characterized by the use of extreme violence as its primary method in order to attain any (geo) political, religious or ideological goal whatsoever. According to the legislator a struggle is ‘armed’ if the (ultimately) intended use of violence is comparable to the extreme violence used in war or guerrilla situations.350

The severity of the punishment, as shown by the legal history, is based on, inter alia, the tightened rejection of recruitment for the ‘jihad’, which according to the legislator is an exceptionally objectionable and threatening form of recruitment, a form which has possibly disastrous consequences for the person involved and the possible victims.351

According to the legal history ‘recruitment’ includes: “‘manipulating’ and ‘influencing’, ripen ideologically, induce or comparable activities”. These activities may be performed vis-vis, but also via means of communication such as an Internet site.352

For the occurrence of criminal liability the recruiting of persons for armed (terrorist) struggle suffices. Essential is the conduct of the recruiter, irrespective of what the person recruited feels about the struggle and whether recruiting was successful.353Recruitment is completed if an action intended to induce someone to join the armed struggle has manifested itself. No specific request to participate in the armed struggle needs to have been made.354 Recruitment will generally not involve just one action (although this is not excluded), but is often a gradual process.355

The court holds and agrees with the prosecution and the defence that there is insufficient evidence in the case file for recruiting for the armed jihadi struggle by Oussama C. of Subject no. 4, Subject no. 5, Subject no. 6 and Subject no. 7. Therefore acquittal of the accused of these charges must follow.

The question remains whether it can be legally and conclusively proved that Oussama C. committed the offence of recruiting for the armed jihadi struggle as regards Witness no. 1.

Pivotal to the assessment of this evidentiary question are the three statements Witness no. 1 made to the police on 14, 15 and 16 January 2014. The prosecution and the defence disagree about whether these statements can be considered reliable; the prosecution believe that they are, the defence that they are not.

When Witness no. 1 was heard by the police in January 2014 he was a suspect. He was under suspicion of having recruited a minor girl for the armed jihadi struggle and removing that girl from the custody of the person(s) exercising legal authority over her. On 28 August 2014 Witness no. 1 made another statement to the police, this time as a witness, after having turned to the police of his own initiative (on 18 August). Hereafter, Witness no 1 was heard as a witness by the Examining Magistrate (on 2 February 2015) and subsequently by the court (at the trial hearing of 17 September 2015). In summary, the pattern of the statements by Witness no. 1 is as follows: whereas in January 2014 he made incriminating statements about Oussama C., he withdrew parts of his (incriminating) statements when he came back to the police in August 2014, upon which before the Examining Magistrate he distanced himself from almost everything he had stated, and eventually stated before the court that he could not remember what he had stated to the police when he was heard by them in January 2014.

The defence challenged the reliability of the statements obtained from Witness no. 1 in January 2014. The defence pointed out circumstances as to the person of Witness no. 1,356his status at the time he was heard (as a suspect) and his interest therefore in saving his own skin, the style of interviewing used by the interviewing officers357 and the inconsistencies in the consecutive statements made by Witness no. 1. More particularly, the defence brought up in connection with this that they had found that the official police reports did not tally with the audiotaped second and third interviews in important respects, which according to them raises serious doubts about the first interview of Witness no. 1 as it is not transcribed verbatim. As the statements obtained from Witness no. 1 are not reliable, they should not be used in evidence in the opinion of the defence.

Before addressing the statements made by Witness no. 1, the court will consider the use of witness statements in evidence in a more general perspective.

When ruling on the evidence courts will as a rule take as point of departure statements made by a witness before a(n) (independent) court, if such statements are available. The reason for this is that the examinations by a court focus, in principle, on establishing the accused’s guilt and innocence, enabling (having enabled) both prosecution and defence to put questions to the witness in question and test the reliability of his statement(s).358 This does not mean, however, that the court cannot take into consideration any statements made to the police, in as far as they deviate from statements made later before an independent court.

When evaluating the statements made by Witness no. 1 and assessing their validity to be used in evidence, the court adopts the framework for assessment that has been defined for this purpose in case law.359 This framework for assessment is as follows.

What must be examined first, is whether any circumstances have become plausible which may possibly have affected the reliability of the statement, such as mental pressure, possible involvement in the charges as stated in the indictment, impressionability or an interest or motif - personal, ethnical, financial or otherwise - to make a statement that is contrary to the truth and incriminating the accused.

Assessment of the - objective – reliability of the statements made by the witnesses will occur (predominantly) on the basis of:

1. testing them against objective information or data obtained elsewhere;

2. the consistency of the consecutive statements made by the witness in question;

3. the correspondence of this (those) statement(s) with what other witnesses have put forward;

4. the plausibility of the contents of the statement(s) made.

Second police interview of Witness no. 1 360

During this interview, Witness no. 1 stated, generally, about Oussama C. (whom he refers to as ‘Abu Yazeed’361) that he has met him in November 2012, and that he saw him more often after what has been referred to in the case file as ‘the Hondius incident’, an event (on the 8 September 2013) that Witness no. 1 attended.362Witness no. 1 further stated that Oussama C. was well-known, both ‘within the group’ and outside of it, that the brothers were always together with Oussama C. and that he often took the floor.363

Witness no. 1 also stated that Oussama C. had radical thoughts, that he spoke mostly about ‘the jihad of the past’ and the prophet, and that sometimes he talked about Syria and what was going on there.364According to Witness no. 1 this type of comment was passed by Oussama C. when they were walking around or when they were eating,365 for instance at Frankies (where Witness no. 1 last went around October 2013)366 or at Fez (where Witness no. 1 had been in late 2013)367. The struggle in Syria, Witness no. 1 stated, should be over quickly according to Oussama C., and Assad had to be got rid of quickly, the fighters of ISIS should be in power soon368and the soil there is ‘blessed’ now.369

About ‘the brothers’ , and the court assumes that Witness no. 1 regards Oussama C. as one, Witness no. 1 stated that they say Syria is their ‘jihad’375 and al-Baghdadi of ISIS is their ‘emir’.376 According to Witness no. 1 the brothers also believe that Shiites are not Muslims and that ‘one’ should help one’s brothers and sisters by supporting them with ‘money, clothes and men’. Witness no. 1 also stated that with ‘support by men’ he referred both to fighting with a gun and to activities that support this.377

Witness no. 1 called the brothers in the group which also included Oussama C. ‘extremists’ because they stood ‘hard’ and ‘deep’ in their faith ; Witness no. 1 inferred this from the fact that they called others ‘unbelievers’, from the fact that they said that they should rebel and that the laws of Allah should rule. 378 Witness no. 1 further stated about the brothers that they spoke ‘indirectly’,379which the court construes to mean as using veiled language and not saying explicitly what is being said.

During this interview Witness no. 1 stated that ‘the group of Abu Yazeed’ often talked about the martyr.381

The court finds that it is not plausible that the statements obtained from Witness no. 1 have been influenced decisively by his personality and/or the status he then had. More particularly, the court considers as follows.

As noted above Witness no. 1 was a suspect when he was heard. Witness no. 1 said about himself that he has a ‘weak character’ and that he trusts and believes people easily. Others, suspects and witnesses as well as Oussama C., have also said this about Witness no. 1.

Generally, it cannot be said that if someone who is heard has not got a strong personality, this person’s statement should be regarded as unreliable for that reason alone. The same is true for the situation in which the person who is heard is also under suspicion of having committed a punishable offence or punishable offences himself. Neither does a combination of those circumstances necessarily prompt such a conclusion.

The court establishes that Witness no. 1 made extensive, detailed and balanced statements. From the transcription of the second and third police interviews it can be inferred that the interviews took place in a pleasant and open atmosphere. This was also stated by the two interviewing officers who interviewed Witness no. 1. Based on the transcriptions of the second and third police interviews the court further establishes that the interviewing officers did not lead the witness or exert undue pressure, nor that they made promises. That the interviewing officers sometimes used closed questions does not mean that they led the witness, as it is also clear from the interviews that Witness no. 1 sometimes drifted off the subject and needed to be reminded of the ‘right track’ again by putting such questions to him. A large majority of the questions is, however, ‘open’. This method of asking questions resulted in Witness no. 1 first talking about his faith, then explaining why he did not agree (any longer) with the religious conviction of the brothers he used to socialize with, after which he almost fluently went on to talk about the brothers’ activities. For the conclusion that Witness no. 1 made his statements ‘in liberty’, not hindered by his personality or his status [as suspect] at the time, the court finds support in the following circumstances:

The court also notes that Witness no. 1 states consistently during the second and third police interviews.

In court, Oussama C. stated that he regards the Dutch youths who departed for Syria to take part in the armed struggle as ‘heroes in a noble struggle’.382

When heard (as a witness) by the Examining Magistrate Oussama C. stated about Witness no. 1 that in early 2013 he saw him on a weekly basis, but later less frequently, and that they met both at the mosque as in restaurants (like Fez); there would be a number of them together, according to Oussama C.383 Oussama C. also stated to the Examining Magistrate that Witness no. 1 was ‘straying’ in the period that he, Oussama C., was in touch with him; Witness no. 1 would hang out with one group, then distance himself from the group and join another, et cetera.384

In court, Oussama C. further stated that with Witness no. 1 he talked about religious matters, but sometimes also about the news in Syria, for instance when ‘the brothers’ were all having a meal together.385 Oussama C. also stated that they had as a group on occasion also watched a video about Syria in restaurant Fez.386

Furthermore, it emerges from the case file that in 2013 Oussama C. delivered a number of speeches387 and that in that period he was also active on social media.388The court refers to what was considered before (in chapter 10) with regard to Oussama C.’s ideas.

When heard by the Examining Magistrate, De Koning characterized Oussama C. as ‘a gifted speaker’ whose speeches were good and important.389

Oussama C. answered questions put to him by Muslim brothers and sisters on the website ’ask.fm’. On Friday 20 June 2014 he had already answered 1,283 questions, and he had 1,459 ‘likes’.390In June 2014 Oussama C. had 1,071 followers on his Facebook page ‘Abou Muwaheed Yazeed’. 391

From intercepted telephone conversations and WhatsApp contacts in the period from February through June 2014 it emerges that Oussama C. declared his opinion on various subjects (which included religious matters, jihad, hijrah and martyr operations) to both men and women , both invited and uninvited. Sometimes Oussama C. sent these persons further information and occasionally he referred them to certain websites (including Ahlus Sunnah Publicaties, also referred to by Witness no. 1).392What is striking in these conversations is the decided and dogmatic manner in which Oussama C. speaks, which occasionally amounts to talking someone into something.393One of the persons to whom Oussama C. provides advice/information in that period (in this case about the question whether jihad is possible without a leader) responds to it in the following manner: ‘But really, you have enlightened me’.394

On 11 March 2014 Oussama C. tells an unidentified woman in a telephone conversation that he is one of the strongest supporters of jihad in the Netherlands. In that conversation he also says that you should not talk about it 24 hours a day because you then put yourself at risk. He goes on to say that before he himself used to talk about the jihad all the time, but that now he does not anymore.395

On 20 March 2014 Oussama C., in a telephone conversation with an unidentified woman answers ‘of course’ to her question whether he is a supporter of ‘martyr operations, or suicide attacks’.396

Witness no. 7 stated to the police that Oussama C. imposed himself on her via Facebook, talked her into things (about - inter alia - her behaviour) and told her all kinds of things with a positive slant about the caliphate, which according to Witness no. 7, were incorrect. According to Witness no. 7 Oussama C. also talked a lot about the jihad and said he thought Osama bin Laden a hero. Witness no. 7 was influenced by Oussama C.’s statements, she stated to the police and later also as a witness to the Examining Magistrate. According to Witness no. 7 Oussama C. is smart; he never used the word ‘Syria’; he spoke ‘indirectly’, Witness no. 7 said.397

The court holds that the evidence referred to above supports what Witness no. 1 stated to the police in the second and third police interviews. This evidence does not support only what Witness no. 1 stated in January 2014 about Oussama C.’s convictions, but also what he stated about Oussama C.’s propagation of those convictions and the manner in which he accomplished that. The court believes that from this evidence it can be inferred that Oussama C. had some status and that what he brought up (potentially) carried authority.

The court holds that the official report should be considered with some caution, as comparison of the official reports of the second and third police interviews of Witness no. 1 to the transcriptions of those interviews turned out to produce some differences that were in some respects not unimportant. Nevertheless it appears that where Witness no.1 states about Oussama C. in this first interview, this statement is in line with what he stated about (his contacts with) Oussama C. in the second and third interviews, which therefore reinforce the reliability and plausibility of Witness no. 1’s second and third statements. In his first interview Witness no. 1 stated that he was brainwashed by Oussama C.; according to Witness no. 1 Oussama C. spoke about the prophet continuously, and said that the jihad, about which he also talked a lot, was good; Oussama C. thought the jihad was ‘fun’, Witness no. 1 said. Oussama C. further said that it was an obligation to go to Syria, Witness no. 1 stated, that martyrdom was good and that you will go to paradise for it. Oussama C. also supported the groups fighting in Syria, Witness no.1 stated. During the first interview Witness no. 1 further stated about the frequency of his contacts with Oussama C.that he saw at least him every Friday, but they would arrange to have meals together on others days, as well.399

That Witness no. 1 stated to have been brainwashed by Oussama C. was confirmed by one of the interviewing officers when heard by the Examining Magistrate.400 This interviewing officer also stated that he remembered Witness no. 1 to have said that Oussama C. is in favour of the struggle in Syria, and that ‘they’ want people to go there, and that that included Witness no. 1.401

With regard to the first police interview of Witness no. 1 the court further notes that Witness no. 1 repeated, in both his second police interview on 15 January 2014402 and at the trial in court on 17 September 2015403, the significant remark made in the first interview, i.e. that Oussama C. did not go to Syria himself because he was a ‘coward’.

The court does not consider it likely that the atmosphere and manner of interviewing Witness no. 1 during the first interview (which involved the same interviewing officers) differed from those during the second and third interviews.

On 18 August 2014 Witness no. 1 told the police that his statements of January 2014 contained some factual inaccuracies and that he wished to rectify them. During the police interview on 28 August 2014 he stated that he wanted to rectify, with regard to Oussama C., that Oussama C. never said to him that he, Witness no. 1, should go to Syria, and that Oussama C. is not a ‘recruiter’. Witness no. 1 also stated that after Oussama C.’s arrest he had been accosted by ‘brothers’ in the street about what he had told the police. He felt threatened; he had been told ‘that the brothers had plans with him’ and he had the feeling that ‘things were going wrong’.

Witness no. 1 was heard by the Examining Magistrate on 2 February 2015. On the occasion of that examination Witness no. 1 indicated that in January 2014 he had made statements that were incorrect because he was afraid and wanted to be released; he wished to ‘please the police’, Witness no. 1 said. In this interview Witness no. 1 rectifies more than some factual inaccuracies. From the interview it also emerges that the contact with ‘brothers’ after Oussama C.’s arrest played a less important role than Witness no. 1 had indicated to the police in August 2014.

In September 2015 Witness no. 1 told a journalist of NRC Handelsblad [a national daily newspaper] that he had ‘made up’ his statements to the police in January 2014 and that he had ‘gone along with’ the police in order to keep out of harm’s way himself.

Characteristic in both Witness no. 1’s statement to the Examining Magistrate and his remarks to the NRC journalist is that he said he had also made up that he had been threatened by ‘the brothers’; he had done so, Witness no. 1 said, to get the police to take a statement from him. That the police were unwilling to talk to Witness no. 1 is not attested to by the case file. Moreover, when Witness no. 1 was confronted by the Examining Magistrate that he had stated before to have been threatened, he said, consecutively: ‘I don’t know’, ’I said so because I wanted to change my statement as quickly as possible’, and ‘I was not really threatened’.

The above leads the court to find that little credence can be lent to what Witness no. 1 stated to the police in August 2014 and to the Examining Magistrate in February 2015, respectively. The image arising when looking at what Witness no. 1 has said since August 2014 is that he, scared because of the commotion created by his statements in Oussama C.’s circles, bent over backwards to take away what was possibly incriminating in those statements and in order not to have to answer difficult questions.

The court is confirmed in this conclusion by the impression Witness no. 1 made in court when he was heard as a witness; Witness no. 1 was nervous, insecure, ill at ease, and answered to almost all questions put to him by the court ‘that he could not remember’.

In this connection, the court also notes that Witness no. 1, when heard by the Examining Magistrate, also let slip things which were evidently fabricated. For instance, Witness no. 1 stated that Oussama C. said that it was not allowed to go to Syria, and that Oussama C. had also told him, Witness no. 1, not to go to Syria. Such statements do not fit in at all with Oussama C.’ ‘body of thought’; which was acknowledged by Oussama C. himself at the trial in court. Taken together, this affects the credibility of Witness no. 1’s statement even more, that what he said about Oussama C. in January 2014 is true.

In view of, inter alia, the context outlined above within which Witness no. 1 and Oussama C. were in touch,404and based on the statements Witness no. 1 made to the police in January 2014 in conjunction with Oussama C.’s own statements and what further emerges from the case file, the court finds that it can be legally and conclusively proved that Oussama C. performed acts in relation to Witness no. 1that were aimed at manipulating, influencing and ripening ideologically (the mind of) Witness no. 1 for the armed jihadi struggle in Syria. In this connection, the court also takes into consideration that it can be inferred from the statements made to the police by Witness no. 1, that Oussama C.’ words and actions emanated/wielded influence; as Witness no. 1 stated several times that he wished to distance himself from Oussama C. and ‘the brothers’, that he had been warned about those ‘brothers’ and their body of ideas and that he felt neither firm/perseverant nor taken seriously when he was around ‘the brothers’.405

That Witness no. 1 also stated to the police several times that Oussama C. never told him that he HAD to go to Syria does not affect the above conclusion, as it follows from the above considerations that a specific request to join the armed jihadi struggle is not required to declare recruiting for that struggle legally and conclusively proved. This also applies to the fact that Witness no. 1 did not travel to Syria.

The factual acts performed by Oussama C. that the court will declare proved are entertaining intensive contacts with Witness no. 1 and having conversations with him (and showing videos to him). The court does not considered proved that recruiting Witness no. 1 for the armed jihadi struggle in Syria also occurred by delivering speeches to him.406With regard to this Oussama C. is acquitted.

In the period from April through June 2013 relatives of Subject no. 10, Subject no. 11, Subject no. 12, Subject no. 13 and Subject no. 4 went to the police and reported them as missing and/or that their son/brother had been recruited. All of them are young males who travelled to Syria from December 2012 to June 2013 inclusive, and have since participated or participated in the armed struggle there. In the conversations that followed about (the period preceding and the reason of) the departure for Syria all these relatives mentioned the name of Azzedine C. Several relatives have accosted Azzedine C. about his possible involvement. Azzedine C. denied in all cases, but according to one of the relatives ha did say that if they wanted to see their son/brother, he could arrange it, and he allegedly also informed the family about the fact that their son/brother had been injured in Syria.

In an intercepted telephone conversation between the mothers of Subject no. 10 and Subject no. 12, the mother of Subject no. 10 said that Subject no. 12 had been recruited by Azzedine C.

In the period prior to the departure of the said five men to Syria, Azzedine C. maintained contact with the m on the phone and, in the case of Subject no. 12, he was still in touch with him when he, Subject no. 12 was in Syria. Azzedine C. was also in touch with other jihadist traveller to Syria than those referred to in the charges.

In 2013 Azzedine C. also set himself up in the media as the mouthpiece of ‘the jihadist travellers to Syria’. In a broadcast of ‘Nieuwsuur’ that year he said that he knew 75 to 80 of the approximately 100 people who had travelled to Syria, that is was a closely-knit group and he made the following remarks: ‘We live for the death after life. It is not scary to die there. The best death for Islam is the martyr’s death’.

Azzedine C. also gave advice on social media to the ‘brothers’ who were considering travelling to Syria, which advice pertained particularly to what to do if those brothers would get on the radar of police and the law.

Azzedine C. was also in touch with the relatives of the jihadist travellers to Syria who had stayed behind in the Netherlands. He was in contact with relatives of a jihadist traveller to Syria following information about the latter’s death there, and discussed posting messages about his death on social media.

De Koning stated that the ‘club’ to which Azzedine C. belonged focussed on
the military jihad (amongst other things, in 2013) with as its object to establish the rule and the laws of Allah, and that the club believed that Muslims all over the world are obliged to fight the jihad. De Koning called Azzedine C. clearly pro-ISIS.

Azzedine C. stated at the trial that he was approached by people with questions about ‘how to travel to Syria’, and further that he was not opposed to ‘brothers travelling to Syria’ in order to participate in the armed struggle.

The court holds that the above does not exceed the level of leads. The information laid by relatives of the young persons referred to in the charges are very speculative with regard to Azzedine C.’s involvement in (the process preceding) the five young men taking the decision to travel to Syria. All relatives were, they stated, completely taken by surprise when they heard that their son/brother had departed to Syria. What they heard about it (in retrospect or otherwise) was predominantly ‘hear-say’. All this does also affect the intercepted telephone conversation. Nothing further has become known about the substance of the (telephone) contacts that Azzedine C. had with the five young men. No direct link can be detected between anything further emerging from the case file and the young men, or it only says something about Azzedine C.’s opinion about travelling to Syria.

The court agrees with the prosecution and the defence that there is insufficient evidence in the case file to prove that Azzedine C. recruited the (five) persons stated in the charges for the armed (terrorist) struggle. Therefore, Azzedine C. is acquitted of this charge.

Herebefore, in relation to which of the charges against Oussama C. could be proved, the court found that credence could be lent only to what Witness no. 1 stated to the police in January 204. The court sees no reason to assess this differently in the case of Azzedine C.

Witness no. 1 stated as follows about Azzedine C. (whom he called Abu Moussa):

Witness no. 1 denied that Azzedine C. also talked with him personally about subjects such as the struggle in Syria, and also denied that Azzedine C. showed him videos, just like Oussama C.

What Witness no. 1 stated about ‘the brothers’ the court has already established heretofore (under 14.14. and 14.15). The court refers to it as it assumes that Witness no. 1 regards Azzedine C. as one of ‘the brothers’, too.

In the first police interview Witness no. 1 stated that he was (also) brainwashed by Azzedine C. A little later, however, he stated that it was Oussama C. who brainwashed him in a certain way.

The court finds and agrees with the prosecution and the defence that there is insufficient evidence in the statements made by Witness no. 1 referred to above for convicting Azzedine C. for recruiting Witnes no. 1 for the armed (terrorist) struggle in Syria. In this connection the court finds important that there is no evidence for intensive personal contacts between Azzedine C. and Witness no. 1. There is no other evidence in the case file to support this. Taken together this means that Azzedine C. is acquitted of this part of the charges.

A number of the accused have been charged with, succinctly stated and insofar as relevant here:

Before discussing the acts the accused have been charged with separately in the next chapter, the court will set out the legal framework of the relevant criminal law provisions.

Because of the great importance of the prevention of terrorist crimes the legislator has penalized conspiracy to commit acts of terrorism. Conspiracy is defined in article 80 DCC and has been penalized for causing an explosion, murder and/or manslaughter with terrorist intent in article 176b and 289a DCC respectively.

Conspiracy to commit an act of terrorism exists as soon as two or more persons agree to commit a specific terrorist crime. The conspirators need not agree that all of them will commit the crime; it suffices that at least one of them will commit the crime.407 The agreement must be complete (negotiations about an agreement do not imply an agreement), sincere (non-sincere plans do not suffice) and specific (the intended crime must have taken sufficient shape).408The requirements set to the specificity of the intended crime are similar to the requirements set to the preparation of ‘ordinary’ serious offences (article 46 DCC).409There will have to be some certainty as to the modus operandi, the moment when the serious crime is to take place and the identity of the victim (or group of victims). A serious agreement should exist, the conspirators should feel obliged to each other to honour the agreement.410

Conspiracy is complete when such an agreement has been made; a first act in the commission of the offence is not required.411 Voluntary withdrawal/abandonment is not possible.412

As stated above, causing an explosion, murder and/or manslaughter with terrorist intent have been penalized in article 176b and 289a DCC respectively. These articles provide that article 96(2) DCC applies mutatis mutandis. This article is a lex specialis vis-a-vis article 46 DCC.

Pursuant to article 96(2) DCC punishable acts of preparation and promotion exist if a person:

These acts are punishable irrespective of their results. Indirect intent to prepare or promote a terrorist crime does not suffice. It is required that the perpetrator undertakes the behaviour with intent to prepare or promote the terrorist crime in question.413 The prepared or promoted crime has to be established in law to the extent that it can be assessed whether it is a crime the preparation and promotion of which are punishable under article 96(2) DCC. Time, location and modus operandi will have to be established to a specific degree.414If there are preparatory acts that, in the absence of special circumstances, can be regarded as every day, non-criminal activities, strict testing is required. The acts of preparation and promotion charged may be considered in conjunction. Even if isolated acts do not constitute punishable preparation, the suspect’s intention to prepare a crime can be inferred from the combination combined acts and the suspect’s body of ideas.415

Preparation and promotion are punishable in their own right as completed offences. Voluntary withdrawal/abandonment is not possible.416

Although the text of article 134a DCC suggest a much wider scope of application, it only penalizes the cooperation (as trainer) and participation (as trainee) in training for terrorism.417

The concept of training refers to behaviour described in article 134a and explicitly not to any behaviour that bears no relation to a (terrorist) training. Training is defined as ‘receiving or providing knowledge or acquiring for oneself or providing to another skills and techniques.’418 Under the Prevention of Terrorism Warsaw Convention this includes providing instruction in the making or use of explosives, firearms or other arms or noxious or hazardous substances, or in other specific methods and techniques. 419

The training can be provided or received in regular training camps. The legislator did not only have in mind acts performed abroad; participation in a terrorist training camp in the Netherlands must also be regarded as punishable in all circumstances. Article 134a DCC includes participation in a terrorist training camp, the participants of which form part of a terrorist organization or conspire to commit a terrorist crime. However, the training can also take place via the Internet (as a virtual training camp), individually or as a group.420 It may involve the acquisition of physical skills or intellectual knowledge. Furthermore, training can occur both in person and by consulting the Internet or other ‘instruction material’. In the latter case, the case of ‘self-tuition’, the assessment whether this constitutes training will depend inter alia on (1) the factual review of the type of materials consulted, (2) the coherence, if any, of the material consulted, and under certain circumstances (3) the frequency of the consultation. The terms ‘providing training’ and ‘receiving training’ have the same scope.421

According to the legal history a distinction should be made between the intention of the person receiving and the person providing the training. Indirect intent suffices for the person who provides the training. In actual practice this means that punishable conduct exists as soon as the trainer knowingly accepts the substantial risk that his trainee undergoes this training with the object of committing a terrorist crime.422 The person undergoing the training must have the intention or evil object of acquiring this knowledge or these skills for the purpose of committing the terrorist crime. It is not only required that he knowingly acquires information for the purpose of committing a terrorist crime, but also that he has a specific object. Therefore, the crime the suspect had in mind and for which he acquired the knowledge and skills must be demonstrable and legally and conclusively proved. The crime must qualify as one of the crimes listed in articles 83 and 83b DCC.423

Participation in and lending assistance to the training for terrorism are separate punishable preparatory acts.

Jordi de J. is charged, succinctly stated, with having acquired, from 1 January 2012 up to and including 9 may 2013 in the Netherlands and in Syria, knowledge and/or skills to commit a terrorist crime and/or a crime to prepare or facilitate the commission of a terrorist crime. According to the author of the charges Jordi de J. did this by:

• -

  a) travelling to Mecca (Saudi Arabia) in order to prepare for the violent jihad and/or

• -

  b) acquainting himself with the radical and extremist body of ideas of the armed jihadi struggle with terrorist intent and/or

• -

  c) seeking information about travelling to the conflict area in Syria and/or

• -

  d) taking part in a training camp for the armed jihadi struggle in Syria.

The prosecution is of the opinion that all the charges can be proved. The defence argue that there is insufficient evidence in the case file for the charges so that, in the defence’s opinion, the accused should be acquitted of all the charges.

The court finds as follows.

That Jordi de J., who uses the kunya ‘Abou Moussa’, spent some time in Syria is not in dispute. On 16 February 2013 he left for that country together with Subject no. 14, and on 27 April 2013 he returned to the Netherlands.424In dispute is (the qualification of) what happened prior to his departure to and his stay in Syria.

Ad (a)
It turns out from the case file that Jordi de J. in October/November 2012 went on a hadj (pilgrimage) to, inter alia, Mecca and Medina (Saudi Arabia). Of course, participation in the hadj is not punishable. The case file does not contain any evidence that Jordi de J. prepared himself for the violent jihad during the hadj. The court therefore acquits Jordi de J. of this pat of the charges (leaving aside the fact that Saudi Arabia is not included in the charges as a place where the acts stated in the charges were allegedly committed).

Ad (b)
The court construes the charge under b) to refer to the period preceding Jordi de J.’s departure to Syria. The court holds that acquainting oneself with a body of ideas presupposes that someone familiarizes himself with and endorses the fundamental and elementary constructs, ideas and principles of such a body of ideas in a certain period. It emerges from the case file that although Jordi de J. was confronted regularly with elements of a body of thoughts that could be called radical425 in the period prior to his departure to Syria, particularly in conversations with fellow believers, this is insufficient, in view of what the court construes ‘acquainting oneself with the body of ideas’ to mean, the charges under b) legally and conclusively proved. Therefore the court acquits the accused of this charge as well. In light of this the court need not discuss whether acquainting oneself with the body of thought as referred to in the charges coincides with acquiring the knowledge to commit, prepare or facilitate acts of terrorism.

Ad (c)
At the trial Jordi de J. stated that he discussed with his companion Subject no. 14 ‘how to get to Syria’ before he left for Syria. Furthermore, also at the trial, he stated to have been given a note by Subject no. 15 with a Syrian telephone number and a description of the ‘best‘ itinerary to Syria. Jordi de J. followed the itinerary described in the note and when he had arrived in southern Turkey he got in touch with the said telephone number, after which Jordi de J. together with Subject no. 14 was taken across the border between Turkey and Syria.426

Jordi de J. stated at the trial that he wanted to provide humanitarian aid, and that this was the purpose he had travelled to Syria for. The court does not think this is plausible. It can be proved that it was already in the Netherlands that Jordi de J. intended to use the information acquired here in order to travel to the conflict area in Syria and participate in the struggle there. In this connection, the court considers as follows.

Jordi de J. stated at the trial in court that prior to his departure to Syria several fellow believers in the Netherlands in conversations with him suggested that it was an obligation to travel to that country to stand up for the Muslims brothers and sisters there; one of the ways to do so that was presented to him was, according to Jordi de J., to take part in the armed struggle. Jordi de J. also stated that friendly brothers who left for Syria, which included Subject no. 15, went there to fight, and that he did not know anyone at the time who had gone to Syria to provide humanitarian aid.427In the circles Jordi de J. was part of at the time the focus was on the military jihad with as its object to establish the rule and the laws of Allah, and people believed that Muslims all over the world were obliged to fight the (military) jihad (Cf. above, chapter 8).428 At the trial De Koning also stated that the men who travel to Syria usually get involved in fighting.429

Important is also the letter Jordi de J. sent to NOS television in May 2013. According to the NOS, he wrote in the letter that he had arrived at the conclusion, after discussions with his friends and watching videos on YouTube, ‘that he had to help oust president Assad, so that he could subsequently aid in the reconstruction of the country.430 The court holds the word ´oust´ means ´fight´, for by providing humanitarian aid one does not dispel a brutal ruler. This is also supported by Subject no. 16´s statement, to be discussed hereinafter.

What also affects the credibility of Jordi de J.´s statements in this respect is that he has hardly gone into what his humanitarian aid in Syria was to encompass and how he would put it on the right track. Nor does it sound credible that Jordi de J. could not say anything about the intentions and plans of his fellow traveller Subject no. 14.431

Ad (d)
At the trial Jordi de J. stated that upon his arrival in Syria he stayed in a villa near Bab Al-Hawa for two or three days, and that he was subsequently taken to a training camp in Sheikh Suleiman. In the camp lessons in ideology were given, but also ‘combat training’. Jordi de J. stated that he followed the lessons in ideology, but that he manages to withdraw from combat training by pretending an ankle injury. As he was unwilling to train and as a result was taken for a spy, he was transferred to another place after five, six days, where full-scale armed combat was raging, and he stayed there until his return to the Netherlands. While in Syria, Jordi de J. witnessed the burial of the Dutch fighter Subject no. 5.432

Witness no. 2 stated that he met Jordi de J. in a training camp of the militant group Majlis Shura Mujahedeen in Sheikh Suleiman, which group was led, according to Witness no. 2, by ’Abu Aseer’. According to his statement, Witness no. 2 arrived in this camp on 23 February 2013. Witness no. 2 recognized Jordi de J. in a photograph shown to him. He knew him as ‘Abu Moussa’. In the training camp, which, according to Witness no. 2, anyone who came to Majlis Shura Mujahedeen was obliged to follow, military, physical and religious training was provided. All the individuals he recognized in the pictures received all types of military training in the Sheikh Suleiman Mujahedeen training camp, according to Witness no. 2. In the training camp, Jordi de J. trained [court’s emphasis] against his will, Witness no. 2 also stated.433 Witness no. 2 also recognized Jordi de J.’s companion, Subject no. 14 (whom he knew as ‘Abu Mohamed’) in a picture. Subject no. 14 also stayed in the said training camp and received military training there as well, Witness no. 2 stated.434

The court holds, unlike the defence, that the statements of Witness no. 2 with respect to Jordi de J.’s alleged participation in military training are not clear or too general. Nor can it be inferred, as the defence also argued, that the observations of Witness no. 2 concerning Jordi de J.’s activities were limited as Witness no. 2 was in detention in the training camp. The court, therefore, will use the statements made by Witness no. 2 as evidence. In this connection, the court also considered the following.

In the period Jordi de J. was in Syria, a militant group called ‘Mujahedeen Shura Council’ (also known as: ‘Shura Council of the Islamic State’) was active mostly in the Aleppo area, and Sheikh Suleiman is situated in that area. This militant group was regarded as ‘a small extremist jihadi-Salafi network’ at the time, and when the leadership was taken over by ‘Subject no. 32’ it became a sub group of ISIL at some point. The militant group consisted of mainly foreign fighters and ‘expat Syrians’ and had in March 2013 been involved in the Battle near Khan Toman, during which the aforementioned Subject no. 5 was killed. After the Battle near Khan Toman, Subject no. 32 emphasized the importance of training in a video message.435 This supports what was stated by Witness no. 2.

Witness no. 1 also stated about Jordi de J. - when he was still a suspect himself and as a witness. With respect to these statements, the court first of all referred to what it has considered in general about their reliability. Succinctly stated it boils down to that the statements Witness no. 1 made to the police in January 2014 should be considered reliable, but that this is not true for the statements made to the police in August 2014 and made before the Examining Magistrate in February 2015.

On 15 January 2015 Witness no. 1 stated as follows (V1 is interviewing officer 1, V2 is interviewing officer 2 and AS is Witness no.1):

Witness no. 1’s statement about Jordi de J. developed spontaneously; in answer to the question whether he knew any people who had come back from Syria he came up with the name of Jordi de J. himself and he also came up with the information that Jordi de J. had been in a training camp in Syria of his own accord. It is significant that he provides a number of details about the camp and the circumstances there; details the court cannot imagine anyone can come up with without having spoken to a person who did stay there. It is also important that the statement made by Witness no. 1 is partly exculpatory for Jordi de J. as Witness no. 1 states that Jordi de J. did NOT take part in the struggle. Furthermore, the statement made by Witness no. 1 contains details which coincide with what Jordi de J. stated himself, for instance about the length of his stay in Syria. The court, therefore, considers this statement made by Witness no. 1 reliable and will use it as evidence. In this connection, the court notes that it is striking that elements from the statement made by Witness no. 1 can also be found in the statement Jordi de J. made to the police on 16 May 2013, shortly after his return from Syria. Jordi de J. then stated, inter alia, that he had slept in tents in a refugee camp in Syria. Although Jordi de J. stated at the trial that the statement he made to the police was largely untrue, the court does not exclude that he told part of this fabricated story to Witness no. 1 as well. Taken together this corroborates the reliability of the statement made by Witness no. 1, the court finds.

That the statements made by Witness no. 1 are not based on personal knowledge, as the defence has argued, but on coverage by NOS TV broadcasts about Jordi de J., the court does not follow. From what is reported about that coverage in the case file, it does not follow that Jordi de J. told NOS television that he had stayed in a training camp, what allegedly happened there and what he allegedly did there. Nor does the court follow that Jordi de J. was not in Syria in winter, as Witness no. 1 stated; for he left in February.

Subject no. 16 (Subject no. 5’s widow) told a police officer on 31 January 2014 that Jordi de J., whom she knew well, had travelled to Syria ‘to fight over there’.438 On 2 October 2014 she was heard by the police as a witness. Unlike the defence believe, Subject no. 16 did not withdraw her statement of 31 January 2014 on that occasion; she just stated, or at least this is how the court interprets it, that she did not remember what she had told the police.439The court, therefore, will also use the statement made by Subject no. 16 as evidence.

The statements made by Witness no. 2, Witness no. 1 and Subject no. 16 are in line with each other. Jordi de J.’s statements follow those statements in large part as well, but his statement that he did not participate in military training is at odds with them. In view of the statements made by Witness no. 2, Witness no. 1 and Subject no. 16 the court does not consider Jordi de J.’s statement with regard to this issue credible. That Jordi de J.’s mother also stated that Jordi de J. did not receive military training does not change this, as this statement is only based on what Jordi de J. told her. For that reason his mother’s statement does not carry enough weight.

On the basis of the facts and circumstances referred to above, taken together, the court finds that it can be legally and conclusively proved that Jordi de J. not only intended to join in the armed jihadi struggle in Syria and for that purpose gathered information about travelling to that country, but also that he realized this intention by taking part in ideological and military training in a training camp of the (jihadist) militant group ‘Mujahedeen Shura council’.

The above-listed actions by Jordi de J. also lead to the conclusion that he had the intention to commit the offences of murder and manslaughter as well as causing explosions stated in the charges.

At this point the court already notes, in view of the statements of Jordi de J. himself, of his mother and of Witness no. 2, that it considers plausible that Jordi de J. regretted his impulsive decision to go and fight in Syria soon after he had arrived in the training camp, and that he participated in at least military training in that camp reluctantly/unwillingly. These are circumstances the court will attach great weight to when deciding upon the sentence.

Hicham el O. stayed in Yemen in September and October 2012. However, it cannot be inferred from the case file that this was connected in any way to his later departure for and stay in Syria. Nor is there legal evidence that and/or how Hicham el O. took advice about travelling to Syria. A chain of logical assumptions cannot take the place of such legal evidence. For this reason the accused must be acquitted of these parts of the charges.

Subsequently, Hicham el O. travelled to Syria on 21 January 2013 and returned to the Netherlands in August 2013.440By his own statement, he did not participate in the armed jihadi struggle in Syria, but he worked in car trade there. The prosecution still suspects him of participation because it believes he was the only user of Syrian telephone number Telephone number 1. This user called himself Abu Redouan and on the basis of intercepted telephone conversations seems to have been involved in the facilitation of and participation in the armed struggle.

The court also finds that Hicham el O. was the only user of the number Telephone number 1, and therefore must have been Abu Redouan.441First, a reporting officer compared Abu Redouan’s voice to Hicham el O.’s voice and concluded that they were identical.442Besides, apart from being in contact with Soufiane Z., this telephone number mostly connects with the Dutch telephone numbers of Hicham el O.’s brother, sister and mother. Moreover, it emerges from the investigation that, when asked by Soufiane Z. on 31 July 2013 at 19:10 to call his cousin, Abu Redouan called Subject no. 17 at 19:12 and 19:13.443 At the trial Hicham el O. said that Subject no. 17 is indeed a cousin of his.444This also established, the court holds, that Hicham el O. used the kunya Abu Redouan.

This conclusion is confirmed by the statement of Witness no. 2, who recognized Hicham el O. from a picture as Abu Redouan. He saw Abu Redouan in the palace at Kafr Hamra and sometimes also in the training camp Sheikh Suleyman of the group Maghlis Shura Mujahedeen, which later merged with ISIS. According to Witness no. 2 Abu Redouan was always seen together with a Dutch man he knew as Subject no. 18.445 Witness no. 2 recognized Subject no. 18 in a picture of Subject no. 19. Witness no. 2 further stated all the persons he recognized from the pictures received all types of military training at the camp.446

The court finds the statement of Witness no. 2 reliable as he combines recognition of Hicham el O. with mentioning his kunya. Besides, it emerges from the case file that Hicham el O. was in Syria together with Subject no. 18,447 and also stayed in Kafr Hamra.448The mere fact that Witness no. 2 also stated that Hicham el O. was in Syria with his wife and child is apparently a mistake.449The court therefore finds that it can be legally proved that Hicham el O. take part in a training camp.

It emerges from the case file that Soufiane Z. could be connected to three telephone numbers all starting with the same six initial digits. These numbers turned out to have been supplied to Hilial Telecom in The Hague in a series of fifty, ranging from Telephone number 3 through Telephone number 5.450 Consequently, the court therefore assumes that the numbers in this series were acquired by Soufiane Z.

Anis Z.’s partner in life went to the police station on 25 March 2013 to inquire whether he had been arrested. She had seen Anis Z. last on 23 March and had not been able to contact him since on the number she had for him.451 In the weekend of 23-24 March 2013 Anis Z. allegedly took all his stuff to a friend. Subsequently Anis Z. allegedly moved in with his brother. The last conversation with Anis Z.’s number as known to his partner was conducted on 23 March at 23:07 with Soufiane Z.’s partner.452 The court assumes therefore that Anis Z. was together with his brother Soufiane Z. in the weekend of 23 and 24 March 2013.

On 24 March 2013 Telephone number 4 and Telephone number 5 were activated almost simultaneously (both at 06:09). The number ending in [Telephone number 5] later turned out to be used by Soufiane Z.453From the historical data which were retrieved it turned out that the users of both numbers set off for Belgium,454 after which Soufiane Z. returned to the Netherlands455 and the user of the number ending in [Telephone number 4] travelled to Turkey. On 24 through 26 March (inclusive) both numbers were frequently in touch. In that period the number ending in [Telephone number 4] and Soufiane Z. were also in contact with, inter alia, the Dutch telephone number [Telephone number 6], the Syrian telephone number [Telephone number 2] and the Turkish telephone number [Telephone number 7]. After 26 March the number ending in [Telephone number 4] was no longer active. On 27 March 2013 Soufiane Z. received a phone call from the Syrian number of Subject no. 21.456 On 30 March 2013 Soufiane Z. received a phone call from the Syrian telephone number [Telephone number 8], which later turned out to be used by Anis Z. After 20 March 2013 Soufiane Z. using the number ending in [Telephone number 5] was in contact with only 5 Syrian telephone numbers, which included those of Anis Z. and of Subject no. 21.457 On 31 March 2013, on a SIM card found at Azzedine C. and Soufiane Z.’s, telephone number [Telephone number 4] was found under the contact “Anis Z.”.458

On the basis of the above the court finds that the user of telephone number ending in [Telephone number 4] was given a number acquired by Soufiane Z. and that was activated at almost the same time as the number used by Soufiane Z. As Soufiane Z. was with his brother Anis Z. on 24 March 2013, it is likely that this number was also used by Anis Z. All the more so because from that moment on he could no longer be reached on his old telephone number, and because this number was stored on Soufiane Z. and Azzedine C.’s SIM card under the name of Anis Z. Added to this is the fact that Soufiane Z.’s number was called by a Syrian number which later turned out to be used by Anis Z., a few days after the number ending in [Telephone number 4] had become inactive. As a result, the court establishes that the number ending in [Telephone number 4] was used by Anis Z. during his journey to Syria. This is also confirmed by text messages received on a phone found at Soufiane Z.’s, which messages were sent from the phone number ending in [Telephone number 4] on 25 and 26 March 2013, reading: “brother will pick me up tomorrow morning if I understood correctly” and “am in car with brother”,459which messages indicate that the journey was facilitated.

The court also infers from the frequent contacts (between the new numbers) and contacts with the same Turkish and Syrian telephone numbers that Soufiane Z. was aware of (the object of) his brother’s journey. This also means that the users of telephone numbers [Telephone number 6, Telephone number 2 and Telephone number 7] were involved in the journey. This is confirmed by text messages received by Soufiane Z.’s phone from the number [Telephone number 6] on 25 March 2013, reading for instance, that Soufiane Z. should top up his brother’s credit as he had no credit left and that he should call the brothers that he had arrived.460

This conclusion is confirmed by the statement of Witness no. 2, who recognized Anis Z. in a picture. Aniz Z. allegedly arrived in the training camp Sheikh Suleyman of the group Maghlis Shura Mujahedeen, which later merged with ISIS, at the end of March 2013. Witness no. 2 further stated all the persons he recognized from the pictures received all types of military training at the camp.461This statement made by Witness no. 2 is confirmed by telephone conversations between Soufiane Z. and Anis Z., in which Anis Z. said he had to hand in his passport to the Amir when he had arrived in the military camp462and that in the camp he had had to run for an hour, crawl underground and swing from one pole to the next.463 The court therefore finds that it can be legally proved that Anis Z. took part in a training camp.

On 29 May 2013 a picture was found on the Facebook account of Abou Hatim La Haye and the Twitter account Shaam Nieuws Netwerk,464 showing a jihadi with an automatic machine gun. This person showed close resemblance to Hatim R. The following text accompanied the tweet by Shaam Nieuws Netwerk: “New picture of the half #Moroccan half #Surinamese Abou Yusuf from #The_Hague in the Syrian #al_Baab.465

Although the court finds it plausible that Hatim R. took advice about travelling to Syria and trained in a training camp, there is no legal proof of this in the case file. The court acquits Hatim R. of this part of the charges, therefore.

The court finds that Hicham el O. travelled to Syria on 21 January 2013, Anis Z. on 24 March 2013 and Hatim R. not later than the end of May 2013. Upon arrival at least Hicham el O. and Anis Z. participated in a training camp.

In the case file there are intercepted telephone conversations between Soufiane Z. and the following foreign fighters in Syria: with Anis Z. from 26 June 2013 through 11 November 2013, with Subject no. 21 from 1 July through 23 November 2013, with Hicham el O. (Abou Redouan) from 27 June 2013 through 4 August 2013 and with Hatim R. (Abu Yousef) from 3 July 2013 through 6 October 2013. In these conversations the following persons staying in Syria as well, are also discussed: Subject no. 19 (Subject no. 18), Subject no. 22, Subject no. 5, Subject no. 23, Subject no. 24, Subject no. 25 and Abdellah Subject no. 13 (Abu Isa).469Although in these conversations reference is often made to “talking on the Internet” and the use of draft e-mails, an impression can be formed from the communications that have been intercepted successfully about the activities and contacts between the persons staying in Syria. In order to establish the activities undertaken by Anis Z., Hicham el O. and Hatim R. the court considers the following conversations important.

The telephone conversation between Soufiane Z. and Anis Z. of 25 June 2013 from 21:04:

From the above the court infers that Anis Z. reports to his brother Soufiane Z. about a fight he was involved in. In the course of the fight Anis Z. and his brothers were shot at by a tank, snipers, machine guns and airplanes. This happened out of revenge because when Anis Z. and his fellow fighters were standing guard they had killed one of their soldiers with at hand grenade. During the fight Anis Z. fired back with his AK (the court construes this to mean: an AK-47, a Kalashnikov). There were two casualties on Anis Z.’s side who were martyred. Anis Z.’s brothers (mujahedeen) possessed machine guns (which included a BKC) and a rocket launcher (an RPG). They used those against the enemy.

In an intercepted telephone conversation of 28 June 2013 at 20:16 Anis Z. tells Soufiane Z. that he told [Subject no. 21] that Sadiq (the court construes this to mean: [Subject no. 23]) is also inside. Moreover, Anis Z. tells him that Abu Yousef (Hatim R.) handed back in his gun and intended to go back to Turkey. Since then Hatim R. had changed his mind but now the Amir refused to return the gun to him.471Soufiane Z. said that he was in the process of raising funds together with a brother. Allegedly this concerned a sum with six noughts. This brother had flashed Soufiane Z. by suddenly switching off his phone after four months and then leave for Syria.472

In an intercepted telephone conversation of 29 June 2013 at 23:03 Anis Z. tells Soufiane Z. that he has just finished standing guard. It was his duty to stop every car and check it, because there are PKK in the area. Anis Z. says he has not heard from Subject no. 23 yet, but that he has seen Subject no. 21 yesterday.473Later on in the conversation Soufiane Z. asks Anis Z. how much money he is paid there every month. Anis Z. answers “I don’t know. That one time we were given by Baghdadi”. Soufiane Z. then admonishes him not to name any names any more.474Then Anis Z. says that Subject no. 18 and Abu Redouan have an apartment.475The court infers from this that Anis Z. is in the immediate vicinity of Subject no. 21, Subject no. 19 and Hicham el O. Moreover, Anis Z. was paid money by Baghdadi, the ISIS leader. The court infers from this that Anis Z. and his brothers fought for ISIS.

The telephone conversation between Soufiane Z. and Hicham el O. of 1 July 2013 from 14:49:

From the above the court infers that money was sent to Subject no. 19. Hicham el O. asks Soufiane Z. if it is correct that this money is for all the brothers. Soufiane Z. confirms this and says that some money was sent specifically to Subject no. 21 and a certain Subject 30/31 also. The court further understands that the person with whom Soufiane Z intended to make a large sum of money and who had suddenly left for Syria is Samir’s brother. Soufiane Z. asks Hicham el O. to tell Subject no. 25 that Samir’s brother should give him all log on codes via e-mail.

In the intercepted telephone conversation of 2 July 2013 at 20:24 Anis Z. says that a letter was sent by the Supreme One that there is no “dawla” here anymore and that everyone must go to “jebhat”. Anis Z. says that brothers go to’”jebhat” and that he thinks he will join them.478The court considers that Anis Z. when referring to a letter by the Supreme One apparently means a letter from Al Zawahiri, the leader of al-Qaeda.479The court infers from this that Anis Z. had joined ISIS, but was about to reconsider, together with the brothers, and join Jabhat al-Nusra.

The telephone conversation between Soufiane Z. and Anis Z. of 3 July 2013 at 15:10:

The court infers from this that Anis Z. must hand in his weapon and that he will go and join Jabhat al-Nusra together with the brothers from Delft and The Hague, including Subject no. 25 and Abu Redouan.

On 3 July 2013 at 18:03 Soufiane Z. is called by Hatim R.:

The court infers from the above that Soufiane Z. asks Hatim R. if it is true that he wanted to go back to Turkey (as he had heard from Anis Z. on 28 June 2013). Soufiane Z. admonishes Hatim R. to stay “there” and not go to Turkey or come back “here” (or Allah will humiliate him). Hatim R. has some problems, but Soufiane Z. says that he should not argue about nonsense and that Hatim R. should charge at the enemy again. Hatim R. confirms this and then says he wants to talk to Azzedine C. (Abu Moussa).

In the intercepted telephone conversation between Soufiane Z. and Subject no. 21 of 4 July 2013 at 17:17 Subject no. 21 says Anis Z. is busy with the Qur’an and that he is doing well. He also says that Subject no. 25 and Abu Redouan have made up. Soufiane Z. says that “the brother” (the court understands: Hatim R.) has called him and that he has asked him for forgiveness. Subject no. 21 says that things are alright between Hatim R. and subject no. 19.481

In the intercepted telephone conversation between Soufiane Z. and Subject no. 21 of 6 July 2013 at 17:13, Subject no. 21 says that he heard that Anis Z. is joining “the other brothers”. Soufiane Z. says that this is correct and that he thought all of them were. Subject no. 21 says that he does not think this seems wise at the moment. Soufiane Z. says that he heard from Anis Z. that a letter had arrived in which the Supreme One had written that everything should be like it had been before: the people from Shaam for Shaam and Iraq for Iraq. Everyone had to go back to their own group.482

The telephone conversation between Soufiane Z. and Anis Z. of 6 July 2013 at 21:21:

From the above the court infers that almost all Dutch brothers joined Jabhat al-Nusra, including Anis Z. and Subject no. 25.

From the remainder of the telephone conversation it turns out that Subject no. 25 checked his e-mail and in response to it tells Soufiane Z. that he is far away from “that brother”. Soufianne Z. says he spoke to Subject no. 21 about the “fitna” that is going on. Anis Z. says that Subject no. 21 is still with “those others”. Anis Z. wants Subject no. 21 to contact him or comes to him and Subject no. 25 to let him know what is going on. The court construes this to mean that Subject no. 21 was still with ISIS.485

The telephone conversation between Soufiane Z. and Anis Z. then continues as follows:

The court infers from the above that the emir of the group he was part of before had also distributed the weapons they had looted amongst people who were asleep. Anis Z. feels cheated because of this. Anis Z. took his weapon along when he changed from ISIS to Jabhet al-Nusra.

In the intercepted telephone conversation between Soufiane Z. and Hicham el O. of 7 July 2013 at 17:08 Hicham el O. tells Soufiane Z. that the Dutch brothers are doing alright, and that some have changed to “another group” and that most of them are going to. The majority of the Belgians have already joined them. Soufiane Z. says that Subject no. 21 did not know about the letter and will come round today or tomorrow.487

In the intercepted telephone conversation between Soufiane Z. and Hicham el O. of 14 July 2013 at 20:46 Hicham el O. tells Soufiane Z. that Anis Z. has gone with the brothers from Delft, but that he had better have waited until all of them had joined the other group. Soufiane Z. says that Amir was angry with the Emir because he had not treated them well, because he had also divided war spoils amongst people who had not taken part in the battle. Hicham el O. says he was also involved in that action and that he is also going to “the others”. Hicham el O. says that he divided a total of more than 10,000 Euros amongst the Dutch and other good brothers. Soufiane Z. asks him to give some to his little brother as well. Hicham el O. replies by saying that he thought Anis Z. had over 1,000 Euros still, and that he will give him 300 Euros now that he has learnt that this is not so.488

During the telephone conversation between Soufiane Z. and Anis Z. of 15 July 2013 at 17:58, Anis Z. informs Soufiane Z. that he is going to pick up Soufiane’s stuff from Abu Redouan’s. Anis Z. says that Subject no. 18 and Abu Redouan both have kept money to themselves and have bought an awesome Jeep each with it. Soufiane Z. says to Anis Z. that he has spoken Hicham el O. and that the latter is going to give him some money, and that contrary to what Anis Z. thinks, he has not kept anything for himself.489

The telephone conversation between Soufiane Z. and Anis Z. of 21 July 2013 at 18:27:

The court infers from the above that the first time Subject no. 21 took part in an attack, they had slaughtered a fighter who had surrendered straightaway. He also saw Hicham el O. that day. Soufiane Z. tells Subject no. 21 that he must explain to Hicham el O. how the work with draft e-mails. Subject no. 21 must also tell Hicham el O. that Subject no. 13 has taken two cameras (including one belonging to Azzedine C.) from Hicham el O.’s bag and sold them, but that this was not supposed to have happened.

In the intercepted telephone conversation between Soufiane Z. and Hicham el O. of 19 July 2013 at 20:06 Hicham el O. tells Soufiane Z. that he has spoken to Anis Z. like he said he would.492In the telephone conversation of 22 July 2013 at 16:22 Soufiane Z. says that Subject no. 23 is with the Muhajerrien brigades. Hicham el O. says that he wants to pay a visit to Subject no. 23 one of these days. Soufiane Z. then gives him his phone number. Hicham el O. is going to give him a call straightaway.493 During the telephone conversation between Soufiane Z. and Subject no. 21 of 22 July 2013 at 22:47, Subject no. 21 says that he spoke to Hicham el O. and that he is going to see Subject no. 23. Soufiane Z. says that he has given Subject no. 23’s phone number to Hicham el O. Subject no. 21 then says that he is first going to go Hicham el O. tomorrow, and that the two of them will then see Subject no. 23.494

The telephone conversation between Soufiane Z. and Anis Z. of 23 July 2013 at 16:58:

The court infers from this that Anis Z. has carried out many attacks with his new group. He did not hand in his brand new gun to ISIS, but took it with him to Jabhat al-Nusra. Anis Z. is not going to return the gun either, although ISIS still has his passport.

In the intercepted telephone conversation between Soufiane Z. and Subject no. 21 of 23 July 2013 at 12:24, Subject no. 21 says that he had spoken to Subject no. 24 before what he knew would be his last fight. Soufiane Z. says that he had put in his will that the brothers he loved most and who meant most to him were, amongst others, Hicham el O., Subject no. 19, Subject no. 21 and Soufiane Z. Subject no. 21 then tells Soufiane Z. that Subject no. 25 is together with Anis Z. and Hicham el O.497

In the intercepted telephone conversation between Soufiane Z. and Hicham el O. of 29 July 2013 at 20:15 Soufiane Z. says he has left a message for Hicham el O. Hicham el O. days he’ll respond to it as soon as possible. Soufiane Z. then asks whether Subject no. 5 has been buried already. Hicham el O. answers that he thinks so, but that he did not attend. Other brothers did attend the funeral.498

During the telephone conversation between Soufiane Z. and Subject no. 21 of 31 July 2013 at 12:34 Soufiane Z. congratulates Subject no. 21 with Choukri. Subject no. 21 says that he had not seen Subject no. 22 anymore, nor that he attended the funeral. He had seen Subject no. 23, however. Subject no. 21 says that Subject no. 23 may come “this way”, first to pay them a visit but maybe also to stay.499The court understands that Subject no. 23 might join Subject no. 21’s group.

The telephone conversation between Soufiane Z. and Hicham el O. of 4 August 2013 at 15:17:

The court infers from the above that Hicham el O. has also joined “the other group” and therefore has joined Jabhat al-Nusra.

On 21 September 2013 Subject no. 21 says that he is waiting in a house to be told to stand guard or to attack. Soufiane Z. says that Anis Z. was on his way to carry out an attack.501On 24 September 2013 there is a conversation in which Hatim R. says that he is making a list for the brothers who should do things, and that he has spoken to Subject 21 yesterday.502 On 29 September 2013 there is a conversation in which Subject no. 21 asks Soufiane Z. to pass on to Abu Yusef (Hatim R.) to keep Chadid’s stuff that is still there.503 On 2 October 2013 a conversation follows in which Subject no. 21 says that he has given a bag to Hatim R. and that he has taken the kalash (the court construes this to mean: Kalashnikov) himself.504In the last two conversations they talk about martyrdom (shadeed) and paradise (djennah) that Subject no. 21 longs for.

On 25 April 2014 a tweet was posted on the Twitter account of Shaam Nieuws with the text “Dutch [Subject no. 33] (Schiedam) and Abu Yusef (The Hague) under #ISIS flag in al-Baab in #Syria accompanying a picture of Hatim R. and Subject no. 33.505On 21 July 2014 Hatim R. posted a tweet announcing that they (Dawlah) were bombed by planes of Bashar’s.506 Moreover, Hatim R., armed, featured in a video on the IS media channel (probably dating back to October 2014).507

On 6 October 2014 Soufiane Z. retweeted a picture showing, inter alia, Soufiane Z., Hatim R., Anis Z., Subject no. 19 and Subject no. 33 accompanied by the text “#IS Band of brothers. Catching a bullet for your mate because you wish to become a martyr yourself.”508 The picture shows a total of nine persons all obviously armed with machine guns.509

The court infers from this tweet that the persons, whose names are all mentioned, had joined IS in October 2014 and then (if not before) participated in the armed jihadi struggle.

The court finds that Subject no. 21, Anis Z., Hicham el O. and Hatim R. were in frequent contact with each other, passed on messages to each other, paid visits to other fighters together, kept personal belongings for each other and gave them to each other. Furthermore, it turns out from intercepted telephone conversations and messages posted on social media that Hicham el O., Anis Z. and Hatim R. had firearms and used them in hostilities. Hicham el O. and Anis Z. consulted each other and Soufiane Z. about the distribution of money amongst the fighters.

On the basis of the above the court finds that the following individuals participated in the armed jihadi struggle and facilitated this struggle: Hicham el O. until August 2013 and Anis Z. and Hatim R. until at least October 2014.

Relatives of Subject no. 4 run a pizzeria in The Hague.510 On 27 June 2013 his brother reported to the police that Subject no. 4 had been missing for two days. On 26 June 2013 he had called saying that he was in Turkey at the Syrian border.511

On 27 June 2013 at 14:48 the following conversation took place between Anis Z. and Soufiane Z.:

The court concludes from the above that Anis Z. asked Hicham el O. to pick up a certain Soufiane Z. at the border, because Subject no. 34 only takes people as far as the border. Hicham el O. cannot reach this Soufiane Z., however. Soufiane Z. reacts by saying he will go see a brother who is in touch with him. He also asks for Hicham el O.’s number.

In the intercepted telephone conversation between Hicham el O. and Soufiane Z. of 27 June 2013 at 16:39 Hicham el O. tells Soufiane Z. that he cannot reach the brother to whom Anis Z. referred. Soufiane Z. reacts by saying he will drive to a brother who is still in touch with him, to see what’s up. Soufiane Z. should let Hicham el O. know if he manages to get in touch with him, otherwise Hicham el O. will drive over there to see if he’s still there. Hicham el O. says that when he is in he will be taken to the Muhajireen Shaam.513

In the intercepted telephone conversation between Hicham el O. and Soufiane Z. of 27 June 2013 at 17:44 Soufiane Z. tells Hicham el O. that the brother he has just visited had talked to him only last night, but that his phone is switched off right now. Hicham el O. says that he is going to check at the border to see if he’s there in a minute.514

In the intercepted telephone conversation between Anis Z. and Soufiane Z. of 27 June 2013 at 19:35 Anis Z. tells Soufiane Z. that that brother has just called him from a different number and that Hicham el O. is going to collect him.515

In the intercepted telephone conversation between Hicham el O. and Soufiane Z. of 27 June 2013 at 22:18 Hicham el O. tells Soufiane Z. that he has succeeded and that he’s with him. The new one also gets on the phone and says he’s already called back home.516

On 28 June 2013 at 16:33 the following conversation took place between [Subject no. 21] and Soufiane Z.:

The court concludes from this conversation that Soufiane Z. tells Subject no. 21 that he has heard that Hicham el O. picked up “Soufiane Z. who is always at the pizzeria”.

In the intercepted telephone conversation of 21 September 2013 Soufiane Z. tells Subject no. 21 that “Soufiane Z. pizza” has become Shaheed (a martyr).517From the case file it emerges that Subject no. 4 participated in the armed jihadi struggle and died in September 2013 during an exchange of fire.518

From the information referred to above, the name Soufiane Z. and the mention of the pizzeria, the court infers that Soufiane Z., Anis Z. and Hicham el O. were involved in getting Subject no. 4 into Syria and assisting him in getting there.

Hatim R. and Anis Z. were also involved in the departure for Syria of Subject no. 35. From the case file it is sufficiently apparent that Subject no. 35 participated in the armed jihadi struggle in Syria.519 For that purpose Subject no. 35 used Telephone number 8, one of the telephone numbers from the series arranged by Soufiane Z. Their involvement is also apparent from the following course of events:

 On 24 August 2013 there were four conversations between Subject no. 35 and Hatim R. lasting several minutes. Subject no. 35 also called Anis Z. several times that day using a Turkish telephone provider at the time.521

Subject no. 35 stated that the Syrian telephone numbers were already in his phone when he left for Syria. He called Anis Z. and Hatim R. in order to get into Syria.523Subject no. 35 regularly suffered from psychoses and returned because he suffered from them in Syria as well and needed assistance.524

From the above the court concludes that Soufiane Z. and Anis Z. and Hatim R. helped Subject no. 35 to get into Syria and have therefore provided him with the information and means to join to armed jihadi struggle in Syria.

It also emerges from the case file that Hatim R., Soufiane Z. and Anis Z. facilitated the departure for Syria of Subject no. 5. This is clear from the following course of events:

 On 25 and 29 September 2013 Soufiane Z. talked with Subject no. 21 about Subject no. 5;525

 On 6 October at 21:31 Hatim R. called Subject no. 5 and was on the phone to him for 30 seconds; and at 21:32 and 21:33 Subject no. 5 was contacted again by Hatim R.’s Syrian telephone number;529

The court concludes from the above that Subject no. 5 was in (frequent) touch with Anis Z. and Hatim R. during his departure for Syria. Moreover, it emerges from the telephone conversation between Soufiane Z. and Hatim R. on 6 October 2013 at 21:29 and the subsequent immediate contact with Subject no. 5 that Hatim R. (together with Subject no. 18) would traffic Subject no. 5 across the Turkish-Syrian border the next day. It emerges from the case file that Subject no. 5 subsequently joined the armed jihadi struggle.531Therefore Anis Z. and H. provided Subject no. 5 with the information and means to join to armed jihadi struggle in Syria.

Hatim R. was also in touch on the phone with foreign fighters Subject no. 35, Subject no. 6,532 Subject no. 24 and Subject no. 40533when they were (believed to be) en route to Syria. Although the court considers it very likely that Hatim R. also facilitated their setting off for Syria, this cannot be legally and conclusively proved due to the fact that the substance of these conversations is unavailable.

On 1 July 2014 Hatim R. posted on Facebook “a list for the brothers who intend to go to Syria, Insha’Allah, and what is handy to take along”.534 This list mentions things which come in handy during “ribat” and on the “battle field”.535The court finds therefore that Hatim R. has provided information for participation in the armed jihadi struggle.

The court finds that, inter alios, Soufiane Z., Hicham el O., Anis Z. and Hatim R. were involved in bringing Subject no. 4, Subject no. 35 and Subject no. 5 into the conflict area from Syria. Subject no. 4, Subject no. 35 and Subject no. 5 subsequently participated in the armed jihadi struggle. Hatim R. also drafted a packing list intended to inform foreign fighters (to be) about which items to take when setting off for Syria.

The court finds that Hicham el O. travelled to Syria on 21 January 2013, Anis Z. on 24 March 2013 and Hatim R. not later than the end of May 2013. Upon arrival at least Hicham el O. and Anis Z. participated in a training camp. Subsequently they participated in the armed jihadi struggle ( Hicham el O. until August 2013 and Anis Z. and Hatim R. until at least October 2014), jointly or otherwise, and facilitated this struggle by distributing money amongst the fighters. Therefore they acted with the intent to promote and prepare this struggle.

That Hicham el O. and Anis Z. participated in a training camp with a view to joining the armed jihadi struggle can also be inferred from their subsequent participation in that armed conflict. Therefore, they also committed the offence of taking part in the training referred to in article 134a DCC. The court holds that the narrow interpretation that should be given to it entails that Hatim R., Hicham el O. and Anis Z. must be discharged from further prosecution with regard to their other conduct relating to this article.

It has also emerged that, inter alios, Anis Z., Hicham el O. and Hatim R. joined ISIS. Subsequently, in July 2013 - after a letter from al Zawahiri - they debated switching from ISIS to Jabhat al-Nusra. Following that, inter alios, Anis Z. and Hicham el O. deliberately chose to switch over.536 In doing so they agreed to commit with intent sufficiently specific terrorist crimes for that organization. Considering the hostilities they had committed before and the fact that they took their firearms with them to Jabhat al-Nusra, it can be established that this agreement was sufficiently intended and final. Thus it can be proved that they conspired to commit the offences of murder, manslaughter and causing an explosion, each with terrorist intent.

Lastly, Hicham el O., Anis Z. and Hatim R. saw to it that others were brought into the conflict area in Syria by (communicating about) picking them up at the Turkish border. In doing so, they provided the opportunity and information to these later participants in the armed jihadi struggle in Syria, jointly or otherwise, with the intent of promoting participation in that armed jihadi conflict. For the same purpose Hatim R. also distributed a packing list.

All the accused are charged with having participated in an organization whose object it is to commit (terrorist) crimes from 1 January 2012 until 27 August 2014. The court construes the indictment to mean that the author assumed that there is one organization which had as its object the commission of both terrorist and criminal offences, and that the participants in this organization were active partly in the Netherlands and partly in Syria.

Participation in a (terrorist) criminal organization is penalized in articles 140 and 140a DCC. This penalization is based on the principle that public order must be protected against organizations that intend to commit crimes. This is a punishable offence in its own right. It is irrelevant whether the crimes which are the object of the organization have been committed or attempted or even whether punishable preparatory acts to that end have been committed. Neither is it relevant whether a participant in the organization took part in crimes which were committed (or attempted or prepared) by other participants. A person is punishable on the basis of participating in a criminal organization alone.

An organization within the meaning of articles 140 and 140a DCC means a partnership between the suspect and at least one other person with a certain sustainability and structure. It is not required that it is established that a participant has collaborated with, or at least knew all other persons who participated in the organization, or that the composition of the partnership remained the same throughout.537

Clues to the existence of such a partnership can be, for instance, common rules, holding consultations, taking joint decisions, a division of duties, a certain hierarchy and/or sections. These are not constitutive requirements to establish there was question of a partnership.538

The closer and more sustainable the collaboration is, the sooner the requirement of a partnership with a degree of structure will be met. Such a partnership can be random and develop in the course of time because the participants, while working together, discover in the process that they have a common object, which is best achieved by a sustainable collaboration. Such a sustainable partnership is not dependent on rules, explicit arrangements or hierarchical relations, but can be very sustainable and derive a degree of structure from working towards a common object.539

If there is a looser kind of collaboration - where there are no fixed participants in the partnership and the participants do not know all other participants - than the requirement of a partnership can involve that the relations between the participants or some of the participants lend some structure to the partnership.540 The circumstance that only two people within a group collaborated together in a structured way in approximately the same period is considered sufficient to regard the other members of that group as part of that organization as well, even if no such structure is established in their collaboration.541

The expert witness De Koning stated that he would not consider the accused to participate in a tightly led organization, but to be part of a network of people who gathered together and participated in specific actions and activities on the basis of similarities in ideology and ties of friendship.542 He considered Azzedine C., Rudolph H., Oussama C. and Soufiane Z. in the period from the summer of 2012 through the summer of 2014 as the inner circle of this network.543He based this on the conversations he had with them, both separately and jointly. The inner circle consisted of people who saw each other very frequently, and who consulted each other about activities, often in a preliminary stage. Often they were also initiator or one of the first to disseminate their message and announce their activities.544 De Koning describes Azzedine C. and Rudolph H. as the persons who constantly showed initiative and authority.545 It was De Koning’s impression that Oussama C. was also involved in the consultations, but not as initiator. Soufiane Z. always said that if they were looking for a good speaker, they should ask Oussama C.546Others also referred to Oussama C. as their speaker, their fixed guy, and he was considered one of the faces of the group.547 Oussama C. was someone they liked to have around.548 There was also an outer circle, but it varied widely: people joined and people quit.549Moussa L. was one of them, as was Jordi de J. initially. De Koning inferred this from the fact that Moussa L. often attended activities.550

The court finds that it appears from De Koning’s testimony that there existed an organization in the legal sense, in that there was a close collaboration for a protracted period of time between at least the regular circle of initiators Azzedine C., Rudolph. and Soufiane Z. Legally, as belonging to the network the accused Oussama C., Moussa L. and Jordi de J. can also be regarded as participating in the organization. The court finds that De Koning’s analysis, which he based on his own observations, is confirmed by the other evidence in the case file.

For instance, on 12 January 2012 Azzedine C. registered the foundation [Foundation] no. 1 with the Chamber of Commerce,551 with as officers Subject no. 33552 (chairman), Azzedine C. 553(secretary) and Jordi de J.554(treasurer).555In a letter to a sympathizer of 2 May 2012 Rudolph H. described the foundation no. 1 as an umbrella foundation facilitating their existing joint initiatives Foundation no. 2 and Foundation no. 3, which had developed from Foundation no. 1. De websites of Foundation no. 3 and Foundation no. 2 were also registered in the name of Foundation no. 1.556 Part of the Foundation no. 1 was an independently run Media Team which administered the video’s, flyers and website.557 The Foundation no. 1 was involved in teaching Arabic, the Qur’an, aqidah and ulum al Qur’an to brothers and children in The Hague and the surrounding area as well as providing teaching materials.

For all their activities they rented premises in The Hague. This offered the opportunity to pray, study and have meals together.558 These premises in [Address] in The Hague were rented by Azzedine C on behalf of [Foundation 1] from 1 April 2012 through end 2012.559In his report De Koning writes that the premises were soon used as a hangout for a number of men forming part of the network that he researched, and that it was also used for speeches.560The premises also offered the activists from The Hague the opportunity to talk amongst themselves. They did not need to go to mosques to attend or deliver speeches, but could do so amongst themselves now.561It emerges from the case file that speeches were organized at least on 24 June 2012 (speaker: Subject no. 41),562 21 July 2012 (speaker: Subject no. 42),563 1 September 2012 (speaker: Abu Yazeed (Oussama C.)), 8 September 2012 (speaker: Abu Moussa (Azzedine C.)) and 6 October 2012 (speaker: Subject no. 43).564 It further appears that Soufiane Z.,565 Rudolph H. 566 and Moussa L.567also held speeches. About the speeches Azzedine C. stated that they had Islamic subjects.568

Azzedine C., Rudolph H. and Moussa L. told the court at the trial that they were more of less regular visitors to [Address]. Oussama C. and Jordi de J. stated that they had visited the premises once or twice.569In his Comments to the court on case file Organisatie Azzedine C. further indicated that Hatim R., Subject no. 13 and Subject no. 12 frequented the premises and that Subject no. 11 and Subject no. 10 had also visited the premises on occasion.570At the trial, Azzedine C. stated that he suspected strongly that Subject no. 4 had also visited the Address on occasion.571 It further emerges from the case file that Subject 43,572 Subject no. 33, Subject no. 44, Soufiane Z.,573Subject no. 45, 574 Subject no. 46575and Subject no. 47576 frequented the premises (during speeches). To pay for the premises some visitors paid a certain amount every month. Azzedine C. also asked a contribution from visitors who attended speeches. There were written and unwritten rules about how visitors should behave inside and when using the facilities of the premises.577

Participating in the partnership Foundation 3, which was facilitated from Foundation 1, were Azzedine C., Rudolph H., Subject no. 43, Subject no. 12, Moussa L., Hatim R., Subject no. 47, Subject no. 45 , Subject no. 46 and Subject no. 50.578 In his Comments to the court on case file Organisatie Azzedine C. further indicated that Subject no. 13 was also involved in Foundation 3.579It appears from the case file that Subject no. 48 also participated in activities of Foundation 3.580 The activities of Foundation 3 occurred in the public domain until at least July 2012.581The activities of Foundation no. 3 consisted of performing Da’wah, inviting to (a better understanding of) the Islam.582

Besides, demonstrations were organized by Foundation no. 2 which was also facilitated by Foundation 1. In the context of Foundation no. 2 demonstrations were organized, inter alia, to protest against the detention of Muslim detainees in Morocco, the Netherlands and Belgium and against the film “Innocence of Muslims”.18.12583These demonstrations were attended by Azzedine C., Subject no. 43, Rudolph H., Subject no. 12, Subject no. 47, Moussa L., Hatim R., Subject no. 10, Soufiane Z.,584 Subject no. 44 , Abdellah Subject no. 13, Subject no. 33,585 Subject no. 49586and Subject no. 46.587The activities of Foundation 2 occurred in the public domain until at least July 2013.588

After the lease of [the Address] had been terminated the visitors who had stayed behind in the Netherlands were still in touch with each other regularly. Hatim R. for instance visited Azzedine C. in his own home on 15 May 2013, while Rudolph H. was there as well589, and Soufiane Z. was seen in the company of Moussa L. and Rudolph H. on 11 July 2013.590From police records it has turned out that on 16 June 2013 Azzedine C. and Subject no. 1 were in the company of Subject no. 57.591Also, get-togethers were organized where they barbecued and played football, for instance on 26 May 2013, 1 September 2013 and 21 September 2013 at Indoor Sports Centre ‘t Zandje and on 8 September 2013 in Hondiusstraat. Furthermore, on 26 may 2013 and 8 September 2013 a short Islamic talk was held (by Oussama C.). The one held on 8 September 2013 at least referred to the conflict in Syria.592 On 1 and 8 September 2013 the ISIS banner (the court understands: the seal flag) was shown.593Participants to these get-togethers included, amongst others: Oussama C., Azzedine C.,594Soufiane Z., Rudolph H., Moussa L., Subject no. 35, Subject no. 6, Subject no. 50,595 Subject no. 46, Subject no. 43,596Subject no. 5, Subject no.7597and Subject no. 51.598

Some of them also met at Snackbar Frankies. From an intercepted telephone conversation of 2 October 2013 it can be inferred that Soufiane Z. had been to Frankies the day before together with Subject no.1 and Azzedine C.599On 13 February 2014 local police officers on the beat recorded that they regularly spotted Azzedine C., Subject no. 1 and Subject no. 52 talking and/or having food at Frankies. On 26 June 2014 Subject no. 1 was again seen at Frankies together with Subject no. 53, Subject no. 54, Subject no. 55, Subject no. 51 and Subject no. 56.600 Jordi de J. and Oussama C. have also stated that they met at Frankies.601

Moreover, historical telephone records show that in the period from 1 January 2013 through 30 July 2014 Azzedine C., Soufiane., Rudolph H., Oussama C., Subject no. 1, Jordi de J. and Moussa L. had the number of contacts with each other as specified below.

In the period the telephone conversations of the following people were being intercepted: Soufiane Z. (12 July 2013 until 14 January 2014), Azzedine C. (24 February 2014 until 15 July 2014), and Oussama C. (29 November 2013 until 25 June 2014), the accused had the number of contacts with each other as specified below.

The police also established that Soufiane Z. kept in touch mostly with Subject no. 1 and Azzedine C. The contacts were almost on a daily basis.602

In April 2014 Project Dawah was started to expand the Da’wah. The project continued until June 2014. Part of the project consisted of flyering.603 The court concludes that Azzedine C. was a driving force behind Project Dawah as he sent invitations for the first meeting,604 this meeting was at his home, he made a PowerPoint presentation in preparation and sent round the first report.605Oussama C. was elected emir of Project Dawah. Other participants in Project Dawah were, amongst others, Moussa L., Jordi de J.,606Subject no. 57,607 Subject no. 58,608Subject no. 59 and Subject no. 56.609

In December 2012 Subject no. 13 and Subject no. 12 set off for Syria.610In January through March 2013 they were copied by the following visitors to [the Address]: Subject no. 33, Subject no. 11, Subject no. 10 and Jordi de J. Later, the following individuals who can be related to [the Address] or the foundations facilitated by it also departed for Syria: Hatim R., Subject no. 4, Subject no. 44, Soufiane Z., Subject no. 50. Subject no. 47, Subject no. 48 and Subject no.49.611De Koning stated that he had understood from Soufiane Z. that those who had travelled to Syria compared notes about what they experienced in Syria.612He also stated that initially (until mid-2013) the home front knew which group those who had travelled to Syria had joined.613

The court already established that Hatim R. set off for Syria not later than the end of May 2013 and has subsequently participated in the armed jihadi struggle since. He kept in close contact with, inter alios, Anis Z. and Hicham el O., who also participated in the struggle. Hatim R. was also in touch with Subject no. 33,614 while Anis Z. used Subject no. 10’s phone.615

Separately, too, Hatim R., Anis Z. and Hicham el O. kept in intensive contact (on the phone) with Soufiane Z. In the contacts among themselves, they passed on messages, visited other fighters, stored items for each other and provided each other with items, which included a laptop belonging to Soufiane Z. and a camera belonging to Azzedine C. It also emerges that Soufiane Z. communicated via “draft mails” and “talking on the Internet”. From analysis of Soufiane Z.’s Skype account it appears that amongst his contacts were, inter alios, Subject no. 33, Anis Z., Hatim R., Rudolph H., Hicham el O. and Subject no. 19.616

The case file further shows that Azzedine C. kept in touch with those who had departed for Syria. Azzedine C. did not only set himself up in the media as the mouthpiece of the jihadist travellers to Syria,617 he also stated at the trial that it was true that he knew a large number of those who had left for Syria. His remark in the media that the Dutch foreign fighters in Syria were a closely-knit group was based on what he had learnt from the fighters personally.618Specifically, it can be established that he kept in touch with Subject no. 10, Subject no. 12619and Subject no.13620when they were in Syria and participated in the armed struggle. This is confirmed by the Skype history on the iPad seized from Azzedine C.621 This Skype history also shows that via this iPad there has been contact with Subject no. 33.622At one point Hatim R. asked from Syria for his phone number to be given to Azzedine C. and indicated that he wanted to speak to him.623

Moreover, Azzedine C. was in touch with Hicham el O. when the latter stayed in Syria. The court considers it implausible that Azzedine C. and Hicham el O. by their own statements were not in touch, as the contact “aburedouan1985” was amongst the contacts in Azzedine C.’s Skype account.624Moreover, Azzedine C.’s iPad was used, under the Skype account of Soufiane Z., to have conversations with Hichem el O.625A clue that Soufiane Z. was not alone at the time can be found in the message sent by Soufiane Z. on 29 May 2013 at 16:01 from Azzedine C.’s iPad, saying he is with brothers, and within eight minutes contact is sought with Subject no. 33 and Hicham el O.626 In addition, in an intercepted telephone conversation between Soufiane Z. and Subject no. 21 it is said that Hicham el O. had a camera belonging to Azzedine C. in his bag;627Soufiane Z. referred to Abu Moussa in telephone conversations with Hicham el O.;628and Azzedine C. told Soufiane Z., when he was on the phone to the latter, to give his regards to Hicham el O.629

Oussama C. stated at the trial that he was in a WhatsApp group with Hatim R. and that he sent him a speech.630 Moussa L. was also a member of this App group. Oussama C. was also in contact on the phone with Subject no. 4 when the latter was in Syria.631
18.26 In December 2013 Soufiane Z. departed for Syria.632It appears from the case file that after his departure he kept in touch (on the phone) with at least Azzedine C. and Rudolph H.633 It has been established above that Soufiane Z. when in Syria was in touch with at least Hatim R., Anis Z. and Subject no. 33.

Besides contacts among themselves and meetings as described above, there were also many contacts via (public) communications on the Internet. For this purpose the accused and other individuals referred to in the case file, whether they were in the Netherlands or in Syria, created and maintained websites and accounts on social media from late 2012.

In first instance, Foundation no. 1 was the registrar of www.dewarereligie.nl (hereinafter: DWR) as well as of the websites of Foundation no. 2 and Foundation no. 3 Referred to above.634This website was started in April 2013 by Rudolph H.635De Koning thought that DWR was the continuation of the street activities and believed there were several persons behind DWR, such as administrators, authors and people who incited others to write a piece.636Soufiane Z. and Azzedine C. contributed columns to this website.637In June 2013 also speeches held by Oussama C. were posted on DWR with his consent.638The same was done on Radio Ghurabaa, also started by Rudolph H.639On 28 February 2014,64012 March 2014,641 20 March 2014,64219 June 2014,643 and 24 June 2014644 Azzedine C. and Rudolph H. met and talked about (going public on behalf of) DWR and Radio Ghurabaa. Rudolph H. stated that DWR was linked to Twitter and Facebook, so that a message containing a link was posted automatically on these social media whenever an article was published.645

From 9 December 2013 through at least 30 April 2014 DWR showed, in a box, all messages posted on Facebook page Shaam al-Ghareeba,646of which Azzedine C. was one of the editors. 647 DWR also referred to Radio Ghurabaa.648 In turn, Shaam al-Ghareeba referred to DWR, but also to Radio Ghurabaa and the Facebook page Shaam al Malaahim, of which Soufiane Z. was the administrator and spokesperson.649Shaam al-Ghareeba, De Ware Religie and Shaam al-Malaahim also borrowed articles from each other,650 and Shaam al-Ghareeba copied a post from Nusrah bil-Jihaad, Oussama C.’s YouTube channel.651 In addition, Shaam al-Ghareeba and DWR started to collaborate with the object of gathering questions about the jihadi struggle in Syria.652On his own Facebook account and Twitter account Azzedine C. referred to DWR and Shaam al Ghareeba as websites to be followed by conscious Muslims.653In turn, Oussama C. posted a link of Shaam al-Ghareeba on his personal Facebook account.654

In addition, the personal Facebook accounts of, inter alios, Azzedine C., Rudolph H., Soufiane Z., Oussama C., Hatim R., Moussa L., Subject no. 1 and Subject no. 33 had befriended each other. They shared, liked and commented on each other’s posts on social media.655Azzedine C. and Soufiane Z. were also the administrators of the secret Facebook group Werkgroep Shaam, which was created on 7 April 2014.656 Rudolph H., Hatim R. and Subject no. 33 were members of this group, on which the fitaan that had arisen in Shaam could be discussed and different opinions on it could be shared.657

From the above the image arises of a group with a sustainable hard core consisting of Azzedine C., Rudolph H. and Soufiane Z. who took the initiative for and consulted each other about their activities. The activities had the same object to the extent that they were involved in the (dissemination of) the Islamic message658 and the struggle in Syria. Their faith and common beliefs brought them together, both physically and virtually, and they organized activities in an organizational context such as doing Da’wah, organizing demonstrations, holding speeches and setting up meetings. These activities attracted a varying group of fellow believers, such as Oussama C., Hatim R., Moussa L. and Jordi de J. The group also kept in touch with group members who had set off for Syria, who included Hatim R. and later Soufiane Z. With these and other foreign fighters with whom Hatim R. and Soufiane Z. worked together, such as Hicham el O. and Anis Z., they exchanged information, which in turn was used to start up and support each other’s activities on the Internet, and particularly the social media.

The court finds therefore that in the period from 1 January 2012 through September 2014 a sustainable partnership existed, although in sometimes varying connections due to the fact that some set off for Syria, of whom a number returned and a number died there. Although the sometimes varying connections and the role changes gave rise to a looser form of collaboration, the organization derived its structure from its hard core, consisting of Azzedine C., Soufiane Z. and Rudolph H., who worked together frequently and in a structured manner throughout the period stated in the charges. As a result there existed a sustainable and structured partnership, hence an organization within the meaning of article 140 DCC.

The court notes that Oussama C. only entered the picture in May 2013 and was arrested on 24 June 2014. Jordi de J. was not involved in the group until late 2013. His paper function with the Foundation no. 1 and his minimal visits to [the Address], without specific participation in (online) activities, do not suffice. Neither did Anis Z. and Hicham el O. enter the picture, as far as the organization is concerned, before May 2013. The same is true for Hicham el O. with regard to the period after August 2013. The court has not been able to establish whether Anis Z. collaborated with the organization after November 2013. This means that Oussama C., Jordi de J., Hicham el O. and Anis Z. cannot be considered as being a part of the partnership before and after the stated periods.

Nor does the case file offer sufficient clues that Imane B. belonged to the organization. The court finds her relatively short contact with Azzedine C. in the form of a marriage, the total absence of contacts (both physically and online) with others who belonged to the organization and the very limited contribution she made to Azzedine C.’s activities of insufficient substance to be able to establish collaboration within the context of the organization.

To declare the charges pursuant to article 140 DCC legally proved it is further required that the organization must have the object of committing crimes. Object should be understood to mean the immediate purpose: that which is imagined as immediately wanted.659However, it is not required that the organization was set up for the purpose of committing crimes. Neither is it required that the commission of crimes is the exclusive or predominant raison d’etre of the organization.660In other words: the criminal organization need not have a merely criminal primary object; it can also have a legal object as well.661The organization may have the object of committing crimes if they are committed to realize a decent or, in the organization’s opinion, noble final objective.662

Unique about article 140a DCC, the criminal terrorist organization, is that a double object is required: the object of committing crimes with terrorist intent, as described above. To declare charges of participation in a criminal terrorist organization proved the immediate object must be the commission of terrorist crimes.663

To prove the object, importance may be attached to crimes which have already been committed within the context of the organization, to the more sustainable or structured nature of the collaboration, which may be clear from a division of duties or a coordination of activities of the participants in the organization, with the object of achieving the organization’s common object, and more generally, to the method and consistency of the activities performed by the organization’s participants for this purpose.664

The court is faced with the question what the object, the immediate purpose of the organization described above was. The court considers it important to note that it does not mean the separate (official) and successive sections, but the broader and coordinating (umbrella) organization of which Azzedine C., Rudolph H. and Soufiane Z. were the backbone.

A second remark the court wishes to make is in this connection is that part of the activities of the organization referred to above were undeniably legal, For it is beyond question that activities such as (street) Da’wah, writing columns and organizing demonstrations, even intrusive ones, are protected, in principle, by the freedom of religion and the freedom of speech. Those activities may constitute evidence of a structured and sustainable partnership, but not of any unlawful object. To qualify this the court notes, however, that during (part of) those activities, by the chanting of slogans at demonstrations and showing posters,665flags, bandanas and bags666they openly flirted with persons and organizations of which they knew they were associated with terrorism by the majority of the population.

A third preliminary remark is that the object of the organization must be inferred from the accused persons’ conduct within the context of the organization and their joint actions from the organization, albeit opinions shared amongst them may be important.667

Considering, explicitly, the accused persons’ conduct and their actions on behalf of the organization the court will have to consider whether the organization besides legal objects also had the immediate purpose of inciting people to participate in the armed jihadi struggle in Syria on the side of the terrorist organizations, to promote this conflict or facilitate fighters, as the accused are charged. The case file contains a number of (objective) indications of this, several of which can be found in the OVC conversations [recorded confidential communications] recorded on 17 and 18 may 2014 between members of the backbone Azzedine C., Rudolph H. and Subject no. 1. Subject no. 1 eventually left for Syria in August/September 2014.668The other member of the fixed core, Soufiane Z., was already in Syria at that point in time. The other evidence consists of the witness statements by De Koning and Witness no. 1, the telephone conversations and digital communications between the accused, the items seized and their travel movements.

The court first wants to make clear that in this judgment Rudolph H. (De Ware Religie, Radio Ghurabaa, Twitter account Abu Suhayb, Facebook account Shaam al-Ghareeba), Azzedine C. (Facebook accounts Abou Moussa, Bakr Haditha and Shaam al-Ghareeba and Twitter accounts Abe Moussa and Ab0Mousa), Oussama C. (YouTube channel Nusra bil-Jihaad and Facebook account Abou Yazeed), Moussa L. (Facebook account Abu Ilyas and Twitter account Abu Ilyas) and Hatim R. (Facebook- and Twitter account Abou Hatim La Haye) are convicted for multiple incitement to (and/or the dissemination of inciting documents calling on people to) participate in the armed jihadi struggle in Syria (on the side of terrorist organizations). Although a consistent performance of activities may be inferred from this, it does not follow that this was also the object the organization aimed at. To prove that it should also be established that within the organization there was a division of duties and/or a coordination of activities and/or consistency with regard to the activities with the object to incite.

As considered above the (social) media channels of Rudolph H., Azzedine C. and Soufiane Z. frequently referred to one another, praised each other, shared posts of each other, disseminated (inciting) messages of each other and provided contents to each other. In addition, Azzedine C. acted as an external spokesman for some of Rudolph H.’s channels. This points to at least shared knowledge, mutual influencing and coordination of their activities with regard to (inciting) statements. The fact that Rudolph H., Azzedine C. and Soufiane Z. were indeed (roughly) aware of the contents of each other’s channels and activities and pointed them out to each other is also clear from the contents of the conversation they had about them.

In this connection the court considers, inter alia, the following excerpt from a confidential conversation recorded with the aid of a technical device dated 18 May 2014 a case in point:

The court infers from this excerpt that Azzedine C. knows who the other editors of Shaam al-Ghareeba are. It can also be concluded that Rudolph H. is aware of the contents of the Facebook page Shaam al-Ghareeba, because he recognizes the styles of the various editors. Furthermore, the question: “is he dawla or jabha?” suggests that the editors supported either Jabhat al-Nusra or ISIS, which organizations were both regarded as terrorist at the time. In the above, the court established that 296 messages on the Facebook page of Shaam al-Ghareeba were inciting and disseminated by Rudolph H. via DWR.

The court considers the following intercepted telephone conversation between Azzedine C. an unidentified male (NN) and Soufiane Z. of 10 November 2013 also relevant:

On 10 November 2013 Shaam al-Ghareeba posted a message about a possible change of name of Jabhat al-Nusra in Al-Qaeda Organization in the land of Sham. It was accompanied by a picture of a flag.672 The court infers from the combination of this conversation and the post that Soufiane Z. also knew about the existence and contents of Shaam al-Ghareeba, which is confirmed by the connections shown above.

Apart from knowledge about each other’s (inciting) activities, there were also consultations about joint activities and strategy. In this connection the court considers the following excerpt from a confidential conversation recorded with the aid of a technical device a case in point:

The court infers from this conversation that they were deliberating about a production and whether this should be published via DWR or in Rudolph H.’s private capacity (Abu Said). They also discuss for which productions DWR is suited. Subject no. 1 has given Azzedine C. and Rudolph H. his permission to publish anything, because he cannot compete with them.

In connection with the above deliberations about strategy the court also finds the following confidential communication recorded with the aid of a hidden device relevant between Subject no. 1, Azzedine C. and Rudolph H.:

From this excerpt the court concludes that they are deliberating about the contents of a video to be produced showing footage of children slaughtered by Assad’s army. Azzedine C. responds to this by saying that they (we) have already got that, which plural points at a joint utterance (of the organization). Moreover, they discuss the strategy of the message of videos and the power of footage/images.

The court holds that the following recorded confidential communication also contains a clue to a joint strategy:

The above conversation a little later continues as follows:

The court concludes from the above excerpt that Azzedine C. tells Rudolph H. not to pay attention to (the statement issued by) Jabhat al-Islamiyya, which he has (apparently openly) seen Oussama C. do. In doing so, they deliberate about the question with parties they sympathize with and deserve the public support of Azzedine C., Rudolph H. and Subject no. 1 (and which parties and individuals explicitly do not).679

It is also evident that Rudolph H., Azzedine C. and Soufiane Z. deliberated and coordinated about the dissemination of a number of specific messages which the court regards as inciting. They also gave each other advice on the subject and discussed the effect the messages would have.

On 11 November 2013 Anis Z. calls Soufiane Z. that subject no. 25’s legs have been shot off by a tank. Soufiane Z. answers that Anis Z. should call him on the Internet so they can talk.680

On 25 November 2013 at 11:52 Azzedine C. sends Soufiane Z. a text message reading: “What’s Abu Bakr’s little brother’s number?”

On 25 November 2013 at 11:53 Rudolph H. sends Soufiane Z. a text message reading: “Give Abu Moussa the family’s number again, or else he cannot call them.”

Azzedine C. then got in touch with Subject no. 25’s brother and asked him if it was OK for DWR to post a news article about his death. He passed on the affirmative answer to DWR.681

On 25 November 2013 at 14:49 Soufiane Z. calls Rudolph H. Soufiane Z. asks if there is any news, whether Abu Moussa has spoken to the family. Rudolph H. answers that permission is given for Subject no. 25, it’s been put online.682 Soufiane Z. suggests that Rudolph H. might call him the spokesman of the Dutch Jihadeen. Rudolph H. answers that he already has. Rudolph H. says there are some Twitter messages already, not many, but it’s only been online for an hour. Rudolph H. says that he has used the picture Soufiane Z. had given him. Soufiane Z. asks if it says the other two have also become “Shaheed”. Rudolph H. says no, because the families have not confirmed it yet.

Upon investigation it has turned out that on 25 November 2013 DWR was published with the headline “Seventh Dutch mujaheed in Syria becomes a martyr”. The article is accompanied by a picture showing a man who has been recognized as Abou Bakr, Subject no. 25. The picture shows Subject no. 25 holding a machine gun to which presumably pictures of paradise have been added. From the article it can be inferred that Subject no. 25 had sustained serious injuries two weeks earlier and that he subsequently succumbed to these injuries.683 The article goes on to say:

On 30 November 2013 Azzedine C. shared an English translation of the DWR article plus the picture also used by DWR.685

When asked about the dissemination of pictures De Koning said they could get around very fast, particularly on Twitter, also amongst people in their circle of acquaintances.686 De Koning further stated that Soufiane Z. told him that the pictures with captions such as “youths with plans for the future” were meant to be encouraging.687

On 1 April 2014 for instance a picture was posted on Shaam al-Ghareeba showing four armed men in military uniforms and balaclavas and in the background a man on top of a car with artillery and the text “Youths with plans for the future.”688 In view of what has been considered above, this message also came up in the box on DWR.

On 13 April 2014 Soufiane Z. sent the following tweet with this same picture:

The very same day the message was retweeted by Rudolph H.690

In chapter 12 this picture posted by Shaam al-Ghareeba, which is (co) administered by Azzedine C., then disseminated by Rudolph H., and shared by Soufiane Z. and Rudolph H. has already been assessed as inciting. This course of events again shows the mutual influence and corroboration as a result of the dissemination of inciting messages.

In this connection the court considers the following excerpt from a confidential conversation recorded with the aid of a technical device important:

A little later, the above conversation continues as follows:

On 17 May 2014 at 10:47 Rudolph H. twittered via the DWR account:

Considering the date and the title of the video, this conversation is about the film Salilu Sawarim part 4, to which Shaam al-Ghareeba (3) did share a link on 17 May 2014 at 18:26 accompanied by the following comment:

Upon investigation it turned out that on 20 May 2014 a message with a link to the film was also posted on the Facebook page Shaam al-Ghareeba, with the following comment:

Underneath the comment the poster wishes the viewer “Have fun watching this!”696The video shows so-called drive by shootings, attacks with Improvised Explosive Devices, the tearing up of passports,697entering of premises and the execution of its occupants by inter alia a shot in the back of the neck or sawing/cutting off the head, as well as footage of sniper actions from the sniper’s position.698In Chapter 12 these expressions on Facebook have already been assessed as inciting.

The court finds that Rudolph H., Azzedine C. and Subject no. 54 had a conversation about the contents of a film, the alarming impact this film has, the method of disseminating this inciting material and the impact that posting it will have. On DWR Rudolph H. referred to the channel on which the film was shared that same day (accompanied by positive comments).699In addition Azzedine C. posted the film “everywhere” on Facebook. As a result the concerted coordination and systematic nature of disseminating these inciting posts can be established.

On 29 May 2014 Soufiane Z. from Syria published a short trailer of the film “Oh Oh Aleppo”700and on 19 June 2014 he announced701that he was going to post the video soon.702

On 19 June 2014 at 18:53 the following intercepted telephone conversation took place between Azzedine C. and Rudolph H.:

Rudolph H. stated that Soufiane Z. asked him whether he and Azzedine C. would take a look at the subtitles and check them for spelling errors, and that he did so.704 From this conversation, however, the court concludes more than Rudolph H. makes believe. Rudolph H. says in this conversation that Soufiane Z. has finished his report and has asked him whether they (Rudolph H. and Azzedine C.) are prepared to look at it for thirty minutes and then pass comments, so that they (we) can also put it online in the next few days. The court infers from this that they were also asked to review the contents, so that they Soufiane Z., Rudolph H. and Azzedine C. could subsequently put the film online in the next few days.

On 24 June 2014 Soufiane Z. uploaded a 30 minute video onto the Internet entitled Oh Oh Aleppo.705

Although Rudolph H. initially denied this, it has been established that he shared both an announcement of the video (with a link)706 via the Twitter account of De Ware Religie on 29 May 2014, and a message with (a link to) the video “Oh oh Aleppo” on 24 June 2014.707Azzedine C. stated that he may have shared the video.708 From the case file it turns out that he did in the case of the announcement on 29 May 2014.709On 27 June 2014 Subject no. 1 posted (a link to ) this film on his Facebook account.710

From the above the court infers that Soufiane Z. on the day of the announcement asked Rudolph H. and Azzedine C. to review the film as to content, so that they could subsequently put “Oh oh Aleppo” online within a few days. Next, the announcement was disseminated via Twitter by Rudolph H. and Azzedine C., and at least Rudolph H. actually sent his comments to Soufiane Z. The video itself was disseminated by at least Rudolph H. via the Twitter account of DWR. These consecutive actions and the mutual coordination characterize the systematic nature of the posting and disseminating this message, already assessed as inciting in chapter 12.

In conclusion it can be established that the channels DWR, Shaam al-Ghareeba, Shaam al Malaahim and the personal social media accounts of Rudolph H., Azzedine C. and Soufiane Z. formed part of the activities of the criminal organization, both generally and in specific situations. The court holds that from the systematic and mutual coordination of disseminating and reinforcing the messages through these separate channels, and the deliberations about the impact this would have, it can be inferred that the object of the organization was also (A) incitement and (B) the dissemination of inciting materials.

The court notes first and foremost that it has just been established that the organization had the object to incite to setting off for Syria and participating in the armed jihadi struggle there. With reference to the legal framework regarding recruitment for the armed jihadi struggle given in chapter 13 , the court notes that even one single (sufficiently powerful and direct) expression can persuade people to do so and can therefore constitute an act of recruitment. The court points out that the legislator has explicitly paid attention to the possibility that recruiting could be done by making use of means of communication such as the Internet.

A message that incites to participate in the armed jihadi struggle in Syria will readily meet the requirement of a sufficiently powerful and direct expression, because of the necessarily direct invitation to do so. The same is true for systematically (directly or indirectly) inciting to participate in the armed jihadi struggle, as has been proved for several channels used by the organization. It should be noted that this was more of a process in which the (susceptible) audience was gradually manipulated by being confronted (continuously and in different forms) with the message to participate in the armed jihadi struggle. That the accused mingled (digitally) with a public susceptible to their messages is self-evident and is clear from the connection via social media and other contacts they had amongst themselves as established above.

This means that, although the descriptions of the offences have different elements and aim to protect different legal interests, the general object to incite to participate in the armed jihadi struggle, in a material sense, will readily show overlap with the (general) object to recruit for that struggle. In other words: an organization that has the object to incite a susceptible public to participate in the armed jihadi struggle, systematically and both directly and indirectly, will also quickly also embrace the object to recruit for that armed jihadi struggle.

The court sees further evidence for the object to recruit for the armed jihadi struggle in the reinforcing effect that emanated from the accompanying messages that in themselves may not have been inciting per se, but did extenuate, glorify and/or justify the armed struggle. A systematic stream of messages of this nature can manipulate people or mature them ideologically. In this connection the court refers to the considerations in chapter 12, in which the incitement through Shaam al-Ghareeba was accompanied “only” by glorifying, extenuating and/or justifying comments.

These messages were also disseminated automatically by DWR. Of the 1,532711messages on DWR 715 had the tag “jihad” and 417 the tag “Syria”.712 Peters described DWR as a biased website taking a pro jihad position in favour of the armed struggle outside of the Netherlands. Articles glorifying the armed struggle713were also published on DWR, and the website clearly sympathized with IS and al-Qaeda.714 De Koning said that DWR defended the existence of a jihad and that people set off for Syria.715 These analyses are confirmed by the FAQ on the website, where the question “What is your opinion of the mujahedeen who travelled to Syria?” is answered as follows: “They are our mujahedeen, who, different as they are, fight together for one purpose, side by side. May Allah see to it that they succeed, both here and in the hereafter.” Moreover, in its e-mail of 20 June 2014 to the National Coordinator for Security and Counterterrorism, DWR writes: “We sympathize with the mujahedeen of al-Qaeda, the mujahedeen of Jabhat al-Nusra and the mujahedeen of the Islamic State in Iraq and Sham”.716In doing so DWR has at least actively propagated its sympathy for core elements of the views described in chapter 10.

That the messages propagated by DWR have indeed influenced the thinking of other people can be concluded from the fact that Subject no. 55 who departed for Syria justified participation in the armed jihadi struggle with articles published by DWR.717 Besides DWR from time to time received requests whether they could assist in the departure for Syria, which demonstrates that (at least part of) the public thought DWR supported participation in the armed jihadi struggle in Syria and could even facilitate it.718 Moreover, the effect of the (frequently viewed)719 posts about foreign fighters who died should not be trivialized. The single post about Subject no. 25 has not only been assessed as inciting in chapter 12, the effect is also clear from the following.

On 1 June 2014 a message was posted on Shaam al-Ghareeba about the death of Subject no. 56 with the text: “We just received the news that a beloved Dutch brother in Syria has succumbed to his injuries, Subject no. 56”.720 On 4 June 2014 a biography of Subject no. 56 was published on DWR which had been copied from (with permission of and a link to) Shaam al-Malaahim.721 Under the biography on Shaam al-Malaahim Subject no. 1 posted a comment reading: “Those who are sad, be sad for yourselves. I am really very happy for him, tears of joy I have for him, and tears of grief for myself for as long as I am wandering about here”.722 Such a reaction, which demonstrates that the post gives rise to feelings of joy about martyrdom and feelings of grief about staying behind in the Netherlands, is illustrative of the recruiting effect of this kind of messaging.

Therefore, the court finds that the recruiting effect that emanated from the inciting messaging on inter alia Shaam al-Ghareeba, DWR and Shaam al Malaahim has been reinforced by the organization by disseminating them accompanied by extenuating, glorifying and/or justifying comments such as quoted in the above. These comments sympathized with the mujahedeen and terrorist organizations such as Al-Qaeda, Jabhat al-Nusra and IS. The result of this interplay was that it can be inferred from the digital activities of the organization that it had the object to manipulate others and mature them ideologically so as to recruit them for the armed jihadi struggle.

Lastly, the court is faced with the question whether the object of recruiting, apart from the digital activities, can also be inferred from the personal contacts the organization had or intentionally facilitated and/or organized. The court makes the preliminary remark that these personal contacts may have been be influenced or reinforced by the organization’s digital activities.

As stated above, in 2012 the premises in [the Address] were used to hold Islamic speeches and other meetings to be amongst themselves. Regular visitor Subject no. 45 stated in an interview that they had created a place for themselves where they could practice their interpretation of the faith freely.723 In an interview another regular visitor Subject no. 43 also talked about the activities organized in [the Address]. Discussed were matters one could not easily bring up in regular mosques, such as the jihad, or the Sunnah of carrying a gun.724

During meetings, according to Subject no. 43, they talked about the faith, they were taught about the Qur’an, and they had meals together,725 which is confirmed in a letter of 2 May 2012 by Rudolph H. to a sympathizer.726 There were also evenings, according to Subject no. 43, when they were visited by radical preachers and they watched videos of individuals such as Sheikh Khalid Huainan and Anwar al-Awlaki, which justified the jihad and made an urgent call on every Muslim to stand up for his fellow Muslims who were treated unjustly, anywhere in the world. This is also confirmed in the case file, as it has been established that speechesQur’an were given by Subject no. 41, Soufiane Z., Azzedine C. and Oussama C.727Moreover, Moussa L. stated that there were computers and monitors present and that he actually saw Subject no. 43 watch Islamic speeches.728Besides, the tenor of the contents of the videos is (partly) confirmed by the productions of Foundation no. 2 (which was facilitated from the Address), which call on people to stand up for the brothers and sisters in Syria (while referring to a demonstration)729 and Burma, in which the message propagated generally was “Oh Muslimeen stand up and fight for the sake of Allah”730 and a picture of a Kalahsnikov in the computer space was shown.731

Another verbatim quote from Subject no. 43 is: “There existed no collective plan to set off for Syria for the jihad, but the guys present did express the wish to go and fight. Nobody really knew how to go about that practically, however. It was not until someone succeeded in crossing the border in late 2012 that others followed one by one.” The court also finds support for this in the case file, as it shows that Subject no. 13 and Subject no. 12 departed for Syria in December 2012, and that they were followed in January through March 2013 by Subject no. 33, Subject no. 12, Subject no. 11, Subject no. 10 and Jordi de J., all regular visitors to [the Address].732

Later, the following individuals who can be related to [the Address] or the foundations facilitated by it also departed for Syria: Hatim R., Subject no. 4, Subject no. 44, Soufiane Z., Subject no. 50, Subject no. 47, Subject no. 48 and Subject no.49. Although the accused, and particularly Azzedine C., have tried to trivialize the numbers, a total of fourteen of the twenty-one visitors known by name to the Address or participants to the activities related to it travelled to Syria to participate in the armed jihadi struggle. Of the remaining seven visitors known by name four are accused standing trial.

The court infers from the above that visitors were matured ideologically for the armed struggle during meetings organized and facilitated by the organization at [the Address] by justifying the jihad, calling on them to stand up for their fellow Muslims, and expressing the wish to set off for Syria to fight there. It should be noted that no one person can clearly be held responsible, but that it was a gradual process through which visitors to [the Address] were convinced, by each other and by being shown videos, that they should go and fight in Syria.

Besides, the case file contains evidence that the process of maturing ideologically continued after they stopped renting [the Address]. Consistent with this is also the incident in the sports field in Hondiusstraat on 8 September 2013. Present were, inter alios, Azzedine C., Rudolph H., Oussama C., Moussa L.733 and Soufiane Z.734 On and around the sports field were a jihad flag (the court construes this to mean: tawhid flag) and an ISI flag (the court construes this to mean: seal flag). When the police arrived at the scene a group of about 40 men remained, upon which everyone was invited to sit down around Oussama C.,735who proceeded to hold a speech with the following contents:

In this speech, which has been assessed as inciting, it is pointed out that every week brothers and sisters depart for Syria because of what unites them (the Islam). This is what the audience (we) need to return to, always; referring to a follower of the prophet: if they looked for anything else than the Islam, Allah would bring them (us) down. This gives a theological justification for travelling to Syria to defend brothers and sisters there. The presence of two flags reinforces the message propagated by Oussama C., as they can be regarded as expression of support to jihadist organizations. The court holds that this part of the speech therefore had a recruiting character as it fits into a process in which people are matured ideologically for the armed struggle.

18.118 This phone also showed missed calls on 31 March 2013 between 22:00 and 23:00, from the numbers: Telephone number 14, Telephone number 15, Telephone number 16 and Telephone number 17.774 These were three Turkish phone numbers and one Greek phone number, respectively.775

• -

  i) facilitating one or more meetings (at, inter alia, [the Address] and/or Hondius) where inciting and/or recruiting activities for the armed jihadi struggle in Syria occurred;

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  ii) acting as a speaker or otherwise adopting an active, leading and/or determining role during meetings (at, inter alia Hondius and/or Frankies) where inciting and/or recruiting activities for the armed jihadi struggle in Syria occurred;

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  iii) disseminating by word of mouth within or outside the group the views shared within the group about the armed jihadi struggle in Syria, which include recruiting people for that purpose and calling them to martyrdom;

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  iv) administering websites and/or social media channels on which documents and/or audio and/or visual materials were posted of an inciting and/or recruiting nature;

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  v) disseminating and or recommending, both within and outside the organization, (channels showing) documents and/or audio and/or visual materials of an inciting and/or recruiting nature;

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  vi) commenting on and/or supplying information to and/or editing and/or making suggestions for the production of documents and/or audio and/or visual materials of an inciting and/or recruiting nature, and/or cooperate in it;

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  vii) asking and/or granting permission for posting and/or using inciting and/or recruiting writings/documents and/or audio or visual materials;

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  viii) physically showing inciting and/or recruiting writings/documents and/or audio or visual materials;

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  ix) raising funds, in the shape of money and objects, for the benefit of (the participants in) the armed jihadi struggle in Syria;

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  x) carrying and/or dividing and/or requesting funds, in the shape of money and objects, for the benefit of (the participants in) the armed jihadi struggle in Syria;

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  xi) procuring information and/or opportunity, in the shape of SIM cards, contact information, telephone numbers and instructions, for the benefit of (bringing participants into the conflict area and/or having them join) the armed jihadi struggle in Syria.

Azzedine C. is - succinctly put - charged with, on the occasion of two demonstrations, having incited to hatred and discrimination against the Jewish population (article 137d(1) DCC) and of having made a defamatory statement about the Jewish population (article 137c(1) DCC).

On 4 July 2014 there was a demonstration on Hobbemaplein at The Hague. This demonstration had been applied for with the municipality by Azzedine C. In the application Azzedine C. indicated that the demonstration would make a stand for ‘Islamic detainees’. Footage/images of this demonstration have been aired/published by the media.803 In the course of the demonstration Azzedine C. (amongst others) chanted (in a microphone): ‘Khaybar, Khaybar, ya yahud Jaish Muhammad, sa yahud’. This means: ‘Khaybar, Khaybar, woe ye Jews, the army of Mohamed will return’. After Azzedine C. had chanted them, his words were repeated by numerous demonstrators.804

In a telephone conversation between Azzedine C. and Subject no. 56 shortly before the said demonstration, Azzedine C. says in answer to a question put to him by Subject no. 56 whether he should bring flags: ‘yes yes, you should bring everything.’805

Footage/images of the demonstration show a tawhid flag.806

The footage of the demonstration that has been broadcast by the media has prompted three persons to lay information to the police of threats and/or discrimination against the Jewish population. According to one of the person laying information the following was also chanted during the demonstration: ‘Jews, remember what happened in Khaybar, Mohamed’s army is on its way’. Another person laying information stated that there were also chants of: ‘al Mauta lil Yahud’ , which means ‘death to the Jews’.807

On 24 July 2014 there was a demonstration in Hoefkade at The Hague. This demonstration had also been applied for with the municipality by Azzedine C. During this demonstration, according to Azzedine C.’s application, a stand would be made for ‘the Palestinian cause’. In the course of this demonstration, of which footage was broadcast in the media,808 inter alia the following was chanted (once or several times):

During the demonstration one of the persons chanting ‘Khaybar, Khaybar, ya yahud, Jaish Muhammad, sa yahud’ was Azzedine C. He used the microphone when chanting this. He uttered this expression several times and the group surrounding him repeated it.810The statement ‘(...) must suffer the effects of the Europeans giving our own holy land to those dirty Jews’ was also made by Azzedine C.811

Some demonstrators carried flags during the demonstration. They were both tawhid and seal flags.812

Broadcasts of footage of this demonstration led to eight people laying information, saying that they felt threatened or insulted by expressions uttered during the demonstration, or believing that the demonstration incited to hatred, violence and discrimination against Jews. Two of them stated that one of the speakers at the demonstration said: ‘There will come a day when I say, there’s a Jew behind you, kill him’. According to one of them the crowd also chanted: ‘Death to the Jews and to Israel’.813

As considered above, the expressions ‘Khaybar, Khaybar, Khaybar, ya yahud, Jaish Muhammad, sa yahud‘ and ‘(...) must suffer the effects of the Europeans giving our own holy land to those dirty Jews’ can be ascribed (directly) to Azzedine C. The other expressions uttered at the demonstrations were not made by Azzedine C.

The court will assess first of all, as this is a dispute between the prosecution and the defence, whether Azzedine C. can be considered a co-perpetrator with regard to utterances not made by him. It is important that for complicity a knowing/conscious and close collaboration with another or other persons is required. To be able to establish such collaboration it is not necessary that the accused performs any overt act toward the commission of an offence himself. He must however have contributed to this offence. Conscious and close collaboration can be evident from prior and/or tacit agreements, division of duties, the presence of the accused(s) when the offence was committed and the fact that he did not distance himself from it. The mere fact that he did not distance himself from it does not constitute complicity, but must exist in combination with an apparent involvement.814

The case file does not contain anything that points at any deliberations or coordination prior to the demonstration between Azzedine C. and the other demonstrators about what was going to be said during those demonstrations. This cannot be inferred by the mere fact that Azzedine C. organized both demonstrations and that during the demonstrations he played, to a degree, a leadership role. Neither does the case file contain sufficient evidence that Azzedine C. heard or should have heard utterances made by others, due to, for instance, where he was positioned. For this reason it cannot be argued (as the prosecution has) that Azzedine C. should have interfered and/or distanced himself from the utterances made afterwards. Where the demonstration of 24 July 2014 is concerned, it is also important that some of the police officers present have said that they could not always hear properly what was said. Under the circumstances it can not be said that there existed a conscious and close collaboration between Azzedine C. and the other participants in the demonstrations to the extent that there was question of complicity. Therefore acquittal of the accused of these charges must follow. In view of this it can be left undiscussed whether it can be proved that the Hitler salute was made (repeatedly) during the 24 July 2014 demonstration.

What has been considered above about the utterances made by others than Azzedine C. during demonstrations, also applies to the flags flown during the 24 July 2014 demonstration. As regards the flags seen during the 4 July 2014 demonstration the court holds that complicity by Azzedine C. cannot be proved either, in spite of the contents of the intercepted telephone conversation referred to above, For it cannot be inferred from the conversation that Subject no. 56, who asked if he should bring flags, knew then what remarks Azzedine C. was going to make during the demonstration.

The foregoing does not alter the fact that it can be assumed that Azzedine C., who during both demonstrations played a leadership role, was a trigger for other participants to start chanting slogans as well. This is a circumstance that the court will take into consideration hereinafter, when determining the punishment.

The text of article 137c (1) reads:

The right to freedom of expression, guaranteed by, inter alia, art. 10 ECHR precludes/bars a conviction pursuant to article 137d or, respectively, 137c DCC, if such a conviction would constitute a restriction of the freedom of expression allowed pursuant to art. 10 ECHR, i.e. a restriction that is provided by law, serves a justified goal and is necessary in a democratic society.

As regards artt. 137d and 137c DCC, punishability commences where criticism degenerates into inciting to hatred, discrimination or violence, or into injuring the reputation of groups of people for the mere reason that its members (in so far as relevant in this case) belong to a race or practice a faith at which the criticism is directed.

With specific regard to art. 137d the following also applies. ‘Inciting’ is trying to induce a person to go in a certain direction (mentally). It includes inciting a person to objectionable conduct, including stirring up and provoking people.815 There is question of ‘inciting to hatred’ if expressions encourage an intrinsically discordant divide that may reasonably be expected to lead to discrimination against a group of people.816 The term ‘discrimination’ or ‘to discriminate against’ is defined in art. 90quater DCC: The term ‘discrimination’ or ‘to discriminate against’ is to be taken to mean any form of differentiation, any act of exclusion, restriction or preference that intends or may result in the destruction or infringement of the recognition, enjoyment or equal exercise of human rights and fundamental freedoms in the field of politics or economics, in social or cultural matters or any other area of social life. ‘Violence’ includes many types of conduct that may constitute various offences when actually committed.817

Whether a sharp-worded debate degenerates into incitement to hatred, discrimination or violence depends strongly on the context in which the utterance is made. What needs to be taken into consideration is whether the contested utterance can contribute something to the social debate.818

With regard to art. 137c DCC the framework for assessment is as follows. It must be established whether the utterance:

What was said about the context of social debate above applies here, too.820

The court will first assess the statement Khaybar, Khaybar, woe ye Jews, the army of Mohamed will return’.

This statement refers to an incident in the life of the prophet Mohammed in the year 628 AD. In that year Khaybar, a Jewish city near Medina was attacked by the prophet’s army. Many inhabitants of Khaybar were killed.821
19.26 With ‘Khaybar, Khaybar, woe ye Jews, the army of Mohamed will return’ Jews are reminded of the incidents in Khaybar, when the prophet’s army used violence. The prospect of a repetition of these events is held out to them. The utterance implies an incitement to others to commit (organized) acts of violence against the Jews. The court finds support for this opinion in the supplementary report of the expert Peters.822

The court holds that the context in which the utterance was made contributes to the aforesaid conclusion. First of all there are the utterances made by the others during the demonstration; those almost without exception called on people to kill Jews. Not did Azzedine C. restrict himself to expressing the utterance under discussion here; for he also used the words ‘dirty Jews’. Important are also the flags flown during the demonstration. At the time the demonstration was held they symbolized IS. The leader of IS had announced a caliphate in Syria, a society in which there is no place for people who practice a different religion that the Islamic faith. The way in which this utterance was made, i.e. repeatedly and with the assistance of a microphone, is also important, as well as the circumstance that the utterance was copied and chanted by other participants to the demonstrations.

the defence has argued, and it has also been submitted by Azzedine C. himself, that the contested utterance should be regarded against the background of the theme of the demonstrations, i.e. the Gaza conflict in July and August 2014,during which many Palestinians were killed. In that light the punishable nature is take away from this utterance, according to the defence and Azzedine C. In this connection the court considers as follows.

The 4 July 2014 demonstration did not have the Gaza conflict for a theme; the demonstrators stood up for (the fate of) Islamic detainees. The defence fails, therefore, where this demonstration is concerned. With regard to the 24 July 2014 demonstration, the following applies. The words ‘Israel’ and ‘Gaza’ are not part of the utterance. It is also important that the line ‘Khaybar, Khaybar, Khaybar, woe ye Jews, the army of Mohamed will return’ has been made more often by Azzedine C., also outside the context of demonstrations around the theme of the situation in Israel, namely during the 4 July 2014 demonstration and the one on Museumplein in Amsterdam on 16 September 2012.823 In this connection importance is also attached to what has been considered before about what was chanted by the other participants in the demonstration and the flags flown there.

In view of the above the court holds that Azzedine C. with the statement ‘Khaybar, Khaybar, woe ye Jews, the army of Mohamed will return’ incited to hatred and violence against Jews. In the utterance the court does not construe a call upon people to discriminate against Jews. Azzedine C. will therefore be acquitted of the part of the charges relating to this. Furthermore, the court holds that it cannot be said that Azzedine C. with this utterance has injured the reputation of the Jewish population, and thus insulted them. With regard to this, too, Azzedine C. is acquitted.

On 27 July 2014 Azzedine C. posted a picture of a community police officer in uniform on one of his Twitter accounts. At the time [the community police officer] worked at the Hoefkade police station of Police Unit The Hague. In this picture [the community police officer] holds one side of a tawhid flag. Azzedine C. put a caption to this picture reading: “The officers of Hoefkade participated busily in the anti Jew protest, as it was called. Even flew an ‘ISIS flag!’” The picture was taken during the demonstration referred to in chapter 18, which took place in Hoefkade, Dan Haag on 24 July 2014.826

On 31 July 2014 [the community police officer] laid information of defamation.827 In her report [the community police officer] says that she feels her reputation is injured as a result of the posting of the picture and its caption. [The community police officer] also states in her report laying the information that during the demonstration she was engaged in a discussion with someone who tried to put a tawhid flag round her shoulders, and that when she tried to stop this person, she may have got hold of or pushed away the flag.

Azzedine C. is charged with libellous defamation as a result of posting the aforesaid picture and caption.

According to the prosecution this act of Azzedine C.’s can be proved to constitute libellous defamation. The defence argued he should be acquitted of this charge as it believes dissemination of the picture and caption served the social interest and social debate, and that the caption was an example of ‘sarcasm’.

The court finds as follows.

By intentionally inpugning the honour or reputation of another person by alleging he committed a particular act, with the clear intent of giving publicity to the allegation is liable to prosecution for slander (art. 261(1) DCC). Where such is done by means of written material or images, which are disseminated or publicly uttered, then this may be punishable as the more serious (as to the penalty carried by the offence) libellous defamation (art. 261(2) DCC).

The terms ‘honour’ and ‘reputation’ can be described as the recognition of a person’s moral integrity. Charging someone with a certain offence equals accusing someone of a certain offence. This offence should be appropriate to injure a person’s integrity. It should also concern an offence that can be qualified under current legislation as a serious offence which is considered objectionable within the legal community.828 It should also be a ‘particular offence’; it should constitute a clearly recognizable, specific historical act.829 It is not necessary for the accusation to be ‘true’.830The perpetrator should injure another person’s honour and reputation intentionally; what is particularly important is that the perpetrator had knowledge of the insulting character of his utterance.831 In addition, the perpetrator of libellous defamation should have had the apparent intention to communicate the accusation to a broader circle of relatively random third parties.832 Nowadays, obviously, this can also be done via social media. The context in which the libellous utterance was done can take away the libellous nature.833

By written material in the sense of ar. 261(2) DCC is meant information which has been recorded in a sustainable and legible from. Information passed on electronically can also constitute written material. Pictures can be regarded, inter alia, as images. There is question of dissemination if more than one copies of the written material or images end up with more than on person.834

In the above (in chapter 18) the court assessed that Azzedine C. during the 24 July 2014 demonstration committed the offence of inciting to hatred and violence against the Jewish population by chanting ‘Khaybar, Khaybar, woe ye Jews, the army of Mohamed will return’ and the offence of slandering the Jewish population by using the words ‘dirty Jews’. In the process, the court also took into consideration the utterances of the other demonstrators, as well as the flying of tawhid and seal flags during the demonstration. In the caption to the aforesaid picture Azzedine C. accuses [the community police officer] of having participated in the demonstration and having committed similar offences (to the ones he is charged with). In doing so Azzedine C. injures the reputation that a community police officer enjoys in society, as can also be inferred from the information laid by [the community police officer]. From the information laid by the community police officer and the picture it is also clear that the accusation made by Azzedine C. is unsubstantiated.835

That Azzedine C. was aware of the insulting nature of his utterance is not only inferred by the court from that nature and seriousness of the accusation uttered, but also from het medium chosen and one of the reactions posted by Azzedine C. on Twiter to another Twitterer’s post. This Twitter user said that it was very clear that the community police officer tried to take away the tawhid flag, to which Azzedine C. responded with the message that this was clearly not her intention (‘this butch clearly wanted to have her picture taken with it, you little fool’).836

By posting this message on one of his Twitter accounts, Azzedine C. apparently wished to disseminate the accusation uttered by him. The Twitter post can also be regarded as written material combined with an image, and there was also question of dissemination. The court has also taken into account that other Twitter users responded to the picture with caption.

The defence argued that Azzedine C. by posting this message wished to expose the police’s conduct and that posting it therefore serves a social interest and serves social debate. The court fails to see, however, in light of has been considered above, that the utterance in this case is a matter of public interest in a democracy. Azzedine C. has not been able to substantiate this at the trial.

Furthermore, the court holds that the tone of alleged sarcasm precludes that there is question of slander. It is also important that the court fails to see that the purpose of the message served the general interest or social debate. Anyway, in Azzedine C.’s responses to messages posted by other Twitter users no sarcasm can be found anymore; in this connection the court refers to the reaction quoted above (in 19.41). The court further notes that Azzedine C. said in one of his other responses ‘that he hates her [the community police officer, court’s addition] as well’.

In view of the above the court declares proven that Azzedine C. committed the offence of libellous defamation.

On 10 August 2014 Officer 1 and Officer 2, both police officers of Police Unit The Hague, reported they had been insulted as a public servant. On that day they were driving along Hoefkade, The Hague. They were on duty as police officers, but in civilians clothes and therefore not readily identifiable as police officers. They saw two individuals walking along Hoefkade whom they recognized by virtue of their office as Moussa Moussa L. and Subject no. 54. Moussa L. walked towards them and approached the vehicle to a distance of one metre. At that moment in time Hoefkade was packed with people. The car window of the reporting officers was wound down. Moussa L. looked at the police officers and raised his middle finger, While shouting loudly: “Fucking dogs”.837The incident has been filmed. The footage has been secured. A still of the raised middle finger is in the case file.838

At the trial Moussa L. stated that he did raise his middle finger and shout the words “Fucking dogs”, but that he didn’t know they were police officers. The car was driving around there all the time and the men inside were taking pictures. He became annoyed because he was followed continuously. The police had been taking pictures and filming in the past. Moussa L. stated: “Something snapped. Enough is enough”. From these circumstances the court infers that Moussa L. did suspect that the men were police officers.

An utterance - expressed orally to another person in this person’s presence - is considered an insult if it purports to impugn someone’s honour or reputation. The court holds that the words used by the accused are regarded in common present-day parlance as a term of abuse, and undeniably purported to impugn the honour and reputation of the reporting officers. Also, raising the middle finger can only be understood as an expression of gross contempt for the reporting officers in question, and therefore as a gesture that purported to impugn the honour and reputation of the reporting officers at whom the gesture was directed. Furthermore, the reporting officers in question did in effect feel their honour and reputation were injured. Thus, the court considers this charge proved.

On 4 January 2015 Moussa L. posted a message reading “She has been posting outside my door very often katalahummuAllah”. The message also contained a picture recognizably showing [the community police officer] in uniform.839The expression “katalahummuAllah” is from the Qur’an and means “Allah will fight and curse them”.840 The use of the word suggests great animosity towards the person against whom it is directed.841 Besides this message Moussa L. posted a further message in that period reading “The police are provoking, pursuing and fining brothers katalahumuAllah”842 and another one with a picture of a police officer and the text “There is no fear of the uppressors”.843These messages suggest aversion to the police and even hatred. The Islamic context of the expression is an appeal to Allah to fight the person it is directed against. The court holds that such an appeal can only be seen as Moussa L.’ s explicit wish to achieve that goal. This wish can only come true if one or more persons try and realize the desired outcome and in doing so, carry out Allah´s will.

The officer laying the information is a community police officer in Schilderswijk, The Hague, the neighbourhood in which Moussa L. lives. She felt effectively threatened by this Tweet.844 Moussa L. stated that he did post this Tweet. He just felt angry. He did not intend to threaten [the community police officer], in the old days he would have said ‘fucking dog’, now he says katalahumuAllah.845

Thecourt holds that this is an indirect threat of a serious offence against the life of a person by Moussa L. against [the community police officer]. By posting this message on his public Twitter account Moussa L. wilfully took the substantial chance that the threat would end up with the officer laying the information. It is not relevant that there is no question of a crime to be committed by Moussa L. himself.846 In view of the circumstances set out above the court finds that the tweet by Moussa L. was of such a nature and posted under such circumstances that it could give rise to the reasonable fear with the officer laying the information that the offence threatened to be committed would in effect be committed.

The charges the court declares to be proved per accused are part of this judgment as appendices B1 through B9. In summary, the charges proved are:

 Dissemination of written material and an image inciting to commit a terrorist crime by posting them on a Twitter account.

With respect to Oussama C. (09/767038-14 and 09/767313-14)

 Recruitment for the armed jihadi struggle of one person;

 Incitement to commit 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

 Dissemination of these inciting speeches, messages and videos;

 Participation in an organization whose object it is to commit terrorist crimes, and

 Participation in an organization that has as its object the commission of serious offences.

 Incitement to commit terrorist crimes by posting messages and images on Twitter and Facebook, and

 Dissemination of these inciting messages and videos;

 Participation in an organization whose object it is to commit terrorist crimes, and

 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

 Defamation of people of Jewish descent on the basis of their race and/or religion;

 Libellous defamation against a civil servant.

 Incitement to commit terrorist crimes by administering www.dewarereligie.nl, and posting speeches on it, as well as administering and broadcasting speeches via Radio Ghurabaa and posting messages and videos on Twitter, and

 Dissemination of these and other inciting messages and videos;

 Participation in an organization whose object it is to commit terrorist crimes, and

 Participation in an organization that has as its object the commission of serious offences.

 Preparation of terrorist crimes by taking part in training for the armed jihadi struggle in Syria.

 Incitement to commit terrorist crimes by posting messages on Facebook, and

 Dissemination of these inciting messages;

 Defamation of two police officers;

 Threatening a police officer.

 Conspiracy, and

 Preparation or promotion of murder with terrorist intent and manslaughter with terrorist intent and causing explosions with terrorist intent, and

 Preparation of terrorist crimes by taking part in training for the armed jihadi struggle in Syria;

 Participation in an organization whose object it is to commit terrorist crimes, and

 Participation in an organization that has as its object the commission of serious offences.

 Dissemination of these inciting messages and videos;

 Participation in an organization whose object it is to commit terrorist crimes, and

 Participation in an organization that has as its object the commission of serious offences.

 Conspiracy, and

 Preparation or promotion of murder with terrorist intent and manslaughter with terrorist intent and causing explosions with terrorist intent, and/or

 Preparation of terrorist crimes by taking part in training for the armed jihadi struggle in Syria;

 Participation in an organization whose object it is to commit terrorist crimes, and

 Participation in an organization that has as its object the commission of serious offences.

As considered in chapter 17 Hicham el O., Hatim R. and Anis Z. must be acquitted of all charges that do not capture training but have been charged in relation to art. 134a DCC in as far as they have not yet been acquitted thereof.

The charges proved are punishable pursuant to the law, as no facts or circumstances have become plausible which would exclude the punishability of the offences.

The charges proved constitute the punishable offences referred to in the judgments.

The accused are also punishable, as no facts or circumstances have become plausible which would exclude criminal liability of the accused.

The sentences hereinafter are in keeping with the seriousness of the offences committed, the circumstances in which they were committed and based on the person and personal circumstances of the accused as have come to the fore during the examination in court.

The following is considered particularly.

As has been described succinctly in this judgment, president Assad’s regime has tried to suppress peaceful protests in an extremely brutal manner. Opposition to this dictatorial regime met with broad sympathy.

From 2012 until mid-2014 an organization was active in Schilderswijk, The Hague which was involved (apart from a number of legal activities) in inciting and recruiting young people to participate in the armed jihadi struggle in Syria and facilitating the youngsters who wished to set off for Syria for that purpose. The organization contributed on a large scale to a climate in which young people felt called on to set off for Syria to participate in the struggle there. In doing so they gratefully exploited the influence of social media on the present generation. With a bombardment of messages full of propaganda, the justification of the armed struggle and martyrdom, indirect and sometimes even direct invitations their minds were matured to the radical view that participation in the armed jihadi struggle in Syria is an individual obligation for every Muslim. A considerable part of those who had travelled to Syria consisted of vulnerable, impressionable young persons who were less mentally resilient and therefore more susceptible to the radical views of the recruiters. Their incitement occurred in a professional and organized manner, and they paid close attention to operating within or balancing on the boundaries of the law as far as their legal activities were concerned.

In the said period dozens of young persons from The Hague departed for Syria. The majority of these youths ended up with the terrorist organizations ISIS and Jabhat al-Nusra. A number of them have died in the armed struggle, which has caused infinite grief for the next of kin. This led to unrest in the neighbourhood and great concern amongst parents of Muslims youths. Many parents wondered in despair whether their child would be next to depart.

The court observes once again that the civilian population in Syria justifiably opposed the despicable regime of president Assad. However, their revolution was high-jacked by groups who terrorized the civilian population with their extremist views by dispelling or killing dissenters. The international obligation to fight terrorism lies with the Netherlands, even if this terrorism occurs in a foreign country. As considered above participation in the armed jihadi struggle in Syria is a terrorist crime. Travelling to Syria for that purpose must therefore be discouraged.

It has not been established that Imane B. participated in this recruitment organization based in The Hague. Only one of the messages disseminated by her is considered inciting.

From criminal records it has become evident that the accused has no previous convictions for the commission of similar punishable offences.

Oussama C. was a major influence on the development of radical views amongst young persons. In spite of his young age he was held in high regard within the Muslim community due to the success of his sermons oriented at young people. With these sermons he tried to induce young people to adhere to the orthodox view of Islam, which is of course not illegal. Besides, however, he disseminated speeches within the recruitment organization in which he linked up Islamic traditions, Quran texts and the current situation in Syria and young persons were called up to participate in the armed jihadi struggle. In that connection he also effectively recruited Witness no. 1, who was mentally vulnerable, for the armed struggle. Lastly, he disseminated a large stream of inciting messages via his personal Facebook account and very objectionable inciting videos via the YouTube channel Nusrah bil-Jihaad.

From criminal records it has appeared that the accused has no previous convictions for the commission of similar punishable offences. Oussama C. has spent his pre-trial detention in a terrorist ward, which has a strict regime. The court will take this into account when passing sentence, albeit only to a degree.

The court has also taken into consideration the recommendation of 21 August 2015 of the Dutch Probation Service, advising comprehensive probation supervision and application of adult criminal law.

At the time a large part of the criminal offences were committed, Oussama C. had not yet reached the age of eighteen. In view of the gravity of the offences, his character and the circumstances in which they were committed, the court will apply adult criminal law pursuant to art. 77b DCC.

Taking all circumstances into consideration, including the young age of the accused, the court holds that only a long custodial sentence is appropriate. The court will suspend part of it and attach special conditions to that in order to persuade the accused to avoid repetition.

Together with Soufiane Z., Azzedine C. was the driving force behind the The Hague based recruitment organization. Driven by religious fanaticism he played a prominent role, he was the initiator and the booster. Azzedine C. abused his democratic fundamental rights by disseminating poisonous messages and inciting videos under the guise of freedom of speech, chanting slogans that incited to hatred and injuring the reputation of a community police officer. Besides he was active as a facilitator of those who set off for Syria.

From criminal records it has appeared that the accused has no previous convictions for the commission of similar punishable offences. Azzedine C. has spent his pre-trial detention in a terrorist ward, which has a strict regime. The court will take this into account when passing sentence, albeit only to a degree.

Taking all circumstances into consideration, the court holds that only a long custodial sentence is appropriate.

Rudolph H. played an important role in the organization in disseminating one-sided and propagandist messages via De Ware Religie and Radio Ghurabaa. These did not constitute prohibited activities, however. Nevertheless, he did disseminate some inciting speeches via these websites. In addition, he played an active and facilitating role during meetings that incited to and/or recruited for the armed jihadi struggle in Syria. He also disseminated inciting messages and the inciting video ‘Oh oh Aleppo’ via Twitter and in doing so, contributed to a climate in which young persons felt called upon to depart for Syria.

From criminal records it has appeared that the accused has no previous convictions for the commission of similar punishable offences. Rudolph H. has spent his pre-trial detention in a terrorist ward, which has a strict regime. The court will take this into account when passing sentence, albeit only to a degree.

Taking all circumstances into consideration, the court holds that only a long custodial sentence is appropriate. The court will suspend part and attach special conditions to it in order to persuade the accused to avoid repetition.

From criminal records it has appeared that the accused has no previous convictions for the commission of similar punishable offences.

The court has also taken into consideration the recommendation of 10 August 2015 of the Dutch Probation Service, advising - succinctly put - comprehensive probation supervision.

Further, the court has taken account of a (forensic) psychiatric report of 8 September 2015, a (forensic) psychological report of 9 September 2015, and a social background report of 9 September 2015. The psychiatrist recommends to declare the accused to have diminished responsibility. The court adopts this recommendation. For the accused the greatest risk of recidivism is his high impressionability, strong need of something to hold onto and clarity with clear rules of life, and his poor social integration, as well as his inclination to develop obsessions. For this reason outpatient treatment is recommended by a coach with expertise of autism spectrum disorders.

Taking all circumstances into consideration, the court holds that only a custodial sentence is appropriate. The court will suspend part and attach special conditions to it in order to persuade the accused to avoid repetition.

Moussa L. belonged to the ‘outer circle’ of the recruitment organization. He has not performed any acts, however, that the court regards as participation in that organization. Moussa L. did post a number of Facebook and Twitter messages that were inciting, however. Besides, he insulted two police officers, and seriously threatened a community police officer in Schilderswijk. This threat had a grave impact on the Schilderswijk police force and particularly on the community police officer in question, as appears from the victim impact statement submitted. This, the court finds, counts against the accused.

The court has also taken into consideration the recommendation of 11 September 2015 of the Dutch Probation Service which advises to impose an unconditional custodial sentence if the facts are proven.

Further, the court has taken account of the tripartite (forensic) report (psychiatric, psychological and with respect to the accused’s social background) of 17 September 2015, which estimates the feasibility of supervision and counselling as pessimistic and therefore advised against.

Lastly, it has appeared from criminal records that the accused has no previous convictions for the commission of similar punishable offences.

Taking all circumstances into consideration, the court holds that only a custodial sentence is appropriate. The court will suspend part and attach special conditions to it in order to persuade the accused to avoid repetition.

Hicham el O. departed for Syria and joined a jihadi militant group there. In doing so he committed preparatory acts towards murder and manslaughter with terrorist intent. The sentence is intended to imbue the accused with the fact that his actions are punishable and deserving punishment. The sentence in this case should send a signal of deterrence in no uncertain terms to others who intend to do the same. In determining the length of the custodial sentence to be imposed on the accused the court, however, also takes into account that it is unknown whether, and if so, which violence against human life or threat thereof the accused committed in the course of his participation in the armed struggle.

Besides, within the recruitment organization Hicham el O. played a substantial role in facilitating young persons in The Hague who travelled to Syria.

The court has also taken into consideration the recommendation of 25 August 2015 of the Dutch Probation Service, advising - succinctly put - comprehensive probation supervision.

Further, the court has taken account of the tripartite (forensic) report (psychiatric, psychological and with respect to the accused’s social background) of 11 September 2015 from which it appears that the accused refused to cooperate in the forensic assessments. The accused made a well-considered impression on the examiners, and gave several grounds to substantiate his decision. The reporters have no evidence that his refusal can be explained from any psychopathology.

Lastly, it has appeared from criminal records that the accused has no previous convictions for the commission of similar punishable offences.

The court finds, considering all circumstances, that the demand made by the prosecution does not do justice to the gravity of the offences. The court will therefore impose a more severe sentence than has been demanded.

Hatim R. departed for Syria and joined a jihadi militant group there. In doing so he committed preparatory acts towards murder and manslaughter with terrorist intent. The sentence is intended to imbue the accused with the fact that his actions are punishable and deserving punishment. The sentence in this case should send a signal of deterrence in no uncertain terms to others who intend to do the same. In determining the length of the custodial sentence to be imposed on the accused the court, however, also takes into account that it is unknown whether, and if so, which violence against human life or threat thereof the accused committed in the course of his participation in the armed struggle.

Hatim R. also committed the offence of disseminating inciting messages and images, in which he also indirectly incited to the commission of attacks in the Netherlands. The accused attempted, for instance, to incite people to commit terrorist crimes. He is still using his status as a jihadi fighter to stimulate others to follow his example. This, the court finds, also counts seriously against the accused.

Besides, within the recruitment organization Hatim R. played a substantial role in facilitating young persons in The Hague who travelled to Syria.

From criminal records it has appeared that the accused has no previous convictions for the commission of similar punishable offences.

Taking all circumstances into consideration, the court holds that only a long custodial sentence is appropriate.

Anis Z. departed for Syria and there joined a jihadi militant group. In doing so he committed preparatory acts towards murder and manslaughter with terrorist intent. The sentence is intended to imbue the accused with the fact that his actions are punishable and deserving punishment. The sentence in this case should send a signal of deterrence in no uncertain terms to others who intend to do the same. In determining the length of the custodial sentence to be imposed on the accused the court, however, also takes into account that it is unknown whether, and if so, which violence against human life or threat thereof the accused committed in the course of his participation in the armed struggle.

Besides, within the recruitment organization Anis Z. played a substantial role in facilitating young persons in The Hague who travelled to Syria.

From criminal records it has appeared that the accused has no previous convictions for the commission of similar punishable offences.

The court finds, considering all circumstances, that the demand made by the prosecution does not do sufficient justice to the gravity of the offences. The court will therefore impose a more severe sentence than has been demanded.

The court sentences Imane B. to a custodial sentence of seven days, with credit for pre-trial detention.

The court sentences Oussama C. to a custodial sentence of three years, with credit for pre-trial detention, of which one year suspended, with an operational period of three years. The court attaches the special condition that Oussama C. has no contact with the co-accused in this case and that he should refrain from posting messages of any kind on the Internet and social media. In the accused’s attitude as seen at the trial the court sees no basis for probation supervision as was recommended.

The temporary release from pre-trial detention granted to the convict has ended with this judgment. The court holds that the convict’s risk of recidivism has been contained sufficiently during the past few months by the conditions attached to the temporary release. The court therefore upholds its detention order and again grants the convict temporary release, upon conditions.

The court sentences Azzedine C. to a custodial sentence of six years, with credit for pre-trial detention.

The court sentences Rudolph H. to a custodial sentence of three years, with credit for pre-trial detention, of which one year suspended, with an operational period of three years. The court attaches the special condition that Rudolph H. has no contact with the co-accused in this case and that he should refrain from posting messages of any kind on the Internet and social media.

The temporary release from pre-trial detention granted to the convict has ended with this judgment. The court holds that the convict’s risk of recidivism has been contained sufficiently during the past few months by the conditions attached to the temporary release. The court therefore upholds its detention order and again grants the convict temporary release, upon conditions.

The court sentences Jordi de J. to a custodial sentence of 155 days, which equals time spent in pre-trial detention, and six months suspended, with an operational period of three years. The court attaches the special condition that Jordi de J. has no contact with the co-accused in this case. Furthermore, the court imposes probation supervision as was recommended.

The court terminates the pre-trial detention order from which the convict was already granted temporary release.

The court sentences Moussa L. to a custodial sentence of 43 days, which equals time spent in pre-trial detention, and two months suspended, with an operational period of three years. The court attaches the special condition that Moussa L. has no contact with the co-accused in this case and that he should refrain from posting messages of any kind on the Internet and social media.

The court terminates the pre-trial detention order from which the convict was already granted temporary release.

The court sentences Hicham el O. to a custodial sentence of five years, with credit for pre-trial detention.

With regard to the convict’s pre-trial detention, the court considers as follows. In its decisions regarding pre-trial detention the court considered on each occasion that the release of persons who have participated in a criminal terrorist organization would lead to social unrest, except if their role in the alleged organization was slight and/or if there existed compelling personal circumstances. As the court has arrived at the final assessment that Hicham el O. played a substantial role within the organization and the convict’s asserted mental problems have not been assessed by independent examiners, social unrest is feared if the convict remained free any longer. Therefore, the court does not grant Hicham el O. temporary release again. The court notes that this decision is wholly independent of this court’s decision of 8 December 2015 under which the temporary release granted was terminated.

The court sentences Hatim R. to a custodial sentence of six years.

The court sentences Anis Z. to a custodial sentence of six years.

The prosecution has demanded that a number of items on the list submitted at the trial (list of items seized attached to this judgment as Appendix C) is returned to the convict entitled. The items concerned are a diary of Azzedine C., handwritten texts and a juvenile book with Arabic text of Oussama C., and an iPhone belonging to Jordi de J. The defence have not expressed an opinion on them. The court will order that the above items are returned to Azzedine C. Oussama C. and Jordi de J., respectively.

The prosecution has also demanded that the other items seized as referred to in the list of items seized are forfeited. The demand has not been explained or substantiated per item by the prosecution. Defence counsels have not expressed an opinion about the items seized.

The court established, in its considerations, that the items concern, predominantly:

With regard to the other items seized in this list of items seized the court orders their return to the convict entitled. There is no or insufficient evidence that they are subject to forfeiture due to any direct connection to a fact proven as referred to in art. 33a DCC. Even if the computers, laptops, tablets, telephones and/or hard discs contain writings, images and/or videos of an inciting nature, there is no evidence that the convicted persons had them in stock to disseminate them. The mere possession of such writings, images and/or videos, as well as of the seized flags, buttons, bandanas, bag and stickers is not punishable. The flyers are, evidently, no items with which any criminal offence can be prepared or committed. In addition the court orders the return to Imane B. of the money seized (to the sum of 2,500.05 euros) as it is no longer against the interest of the criminal proceedings/prosecution.