Uitspraak Nº (09/842489-14), (09/767038-14 en 09/767313-14), (09/767174-13 en 09/765004-15), (09/767146-14), (09/767256-14), (09767238-14 en 09/827053-15), (09/767237-14), (09/765002-15), (09/767077-14) (english). Rechtbank Den Haag, 2015-12-10
| ECLI | ECLI:NL:RBDHA:2015:16102 |
| Date | 10 Diciembre 2015 |
| Docket Number | (09/842489-14), (09/767038-14 en 09/767313-14), (09/767174-13 en 09/765004-15), (09/767146-14), (09/767256-14), (09767238-14 en 09/827053-15), (09/767237-14), (09/765002-15), (09/767077-14) (english) |
| Court | Rechtbank Den Haag (Neederland) |
Criminal Law Section
CONTEXT TRIAL
Case numbers (09/842489-14), (09/767038-14 en 09/767313-14), (09/767174-13 en 09/765004-15), (09/767146-14), (09/767256-14), (09767238-14 en 09/827053-15), (09/767237-14), (09/765002-15), (09/767077-14)
Date of judgement: 10 December 2015
Contents
Chapter 1: Introduction
Chapter 2: The charges
Chapter 3: Jurisdiction
Chapter 4: The investigation
Chapter 5: Investigation on the Internet (Facebook and Twitter)
Chapter 6: Developments in Syria
Chapter 7: Applicable law
Chapter 8: Terrorist crimes
Chapter 9: Other defences of inadmissibility
Chapter 10: Views of the accused on the armed jihadi struggle in Syria
Chapter 11: Incitement and dissemination of matter containing incitement, the legal framework
Chapter 12: Incitement and dissemination of matter containing incitement as charged
Chapter 13: Recruitment for armed struggle, the legal framework
Chapter 14: Recruitment for armed struggle as charged
Chapter 15: Conspiracy to, preparation and promotion of and participation in training to commit terrorist crimes, the legal framework
Chapter 16: Participation in training to commit terrorist crimes, as charged
Chapter 17: Conspiracy to, preparation and promotion of and participation in training to commit terrorist crimes, as charged
Chapter 18: Participation in a criminal (terrorist) organization
Chapter 19: Other charges Azzedine C.
Chapter 20: Other charges Moussa L.
Chapter 21: Legal findings, punishability of the offences and criminal liability
Chapter 22: Sentencing considerations
Chapter 23: Items seized
Chapter 24: Applicable sections of the law
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...
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