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Netherlands: Acquittal for alleged terrorists

28 March 2012

Source: Rechtbank Rotterdam, press statement from the Court, dated: 5-06-2003

"In the criminal proceedings against twelve alleged terrorists, all accused have been acquitted of the most serious crimes they were charged with. Two accused were convicted for the possession of forged documents and received a prison sentenced of two and four months. The charges included participation in a criminal organisation, forging travel documents, providing assistance to the enemy at times of war and drug trafficking. The public prosecutor had demanded prison sentences varying from six months to three years. During the trial, the Public Prosecutions Service (OM) amended the initial charges and demanded acquittal for a number of offences. For four of the accused, the Court had already ordered their immediate release. With regard to the remaining eight accused that were still in pre-trial detention, the Court now also orders their release.

With regard to the defence attorneys pleas against the Public Prosecutions Services (OM) mode of operation in the criminal investigation, the Court holds that the Public Prosecutions Service (OM) made mistakes and has been inaccurate.

The Public Prosecutions Service (OM) caused arrests to be made and searches conducted on the basis of information from the National Security Service (BVD) and its successor the General Intelligence and Security Office (AIVD), supplied to the National Public Prosecutor responsible for combating terrorism. A large number of books, documents and video and audiotapes were seized. Also because of the fact that two criminal investigations were joined it is difficult to trace where what was found. Because of the sheer amount of material that was seized and the fact that this material was in Arabic, it was inevitable that only part of the material could be translated. However, the selection that was made may lead to a biased view. The Court holds that the selection can be said to be inaccurate. In addition, the Court holds that the way of presenting the material to the experts was inaccurate.

The Court finds the way in which conclusions were drawn in the review official report with regard to the organisational structure the accused allegedly operated in and the role each accused allegedly played, as well as the way the public prosecutor during his closing speech suddenly distanced himself from a number of these conclusions, inaccurate and troubling. Should there be a judicial finding of fact with regard to the charges and sentencing, compensation in the form of a mitigation of the sentence, would be appropriate.

The fact that it is impossible to assess the source of the information provided by the National Security Service (BVD)/the General Intelligence and Security Office (AIVD) and its factual accuracy, should affect the assessment of evidence originating from the National Security Service (BVD)/the General Intelligence and Security Office (AIVD). The Court sees no ground for barring the prosecution; the Court does hold, however, that the contents of the reports from the National Security Service (BVD)/the General Intelligence and Security Office (AIVD) attached to the record, should not serve as evidence for any offences with which the accused was charged, because the contents cannot be tested with regard to factual accuracy.

With regard to the suspicion against the accused of participation in a criminal organisation the Court takes the grounds that in accordance with legal precedent this means there should be a structured and continuing cooperation of two or more individuals with a certain degree of organisation. Such cooperation can be seen to exist if within the cooperation there are common rules and a common objective. The Court holds that it is true that it can be established that some of the accused were in contact with each other, but that neither the statements made by the accused, nor the intercepted telephone conversations or the material found during the searches, prove that the accused were participating in a cooperative venture. Nor does the record provide sufficient clues to say that there is an organisation in which the accused were in continuing, mutual cooperation. In the record, the Court did not find any support for conclusions to the effect that there would be a network organisation.

With regard to the suspicion of providing assistance or attempt to provide assistance to the enemy at times of war or an armed conflict that involves the Netherlands, the Court takes the following grounds.

The Court's answer to the question whether - during the period of time of the charges - the Netherlands were at war with Afghanistan and/or the Taliban and their allies Al Quaeda and/or other pro-Taliban fighters is negative. The permission by the States General as provided for by Section 96 of the Constitution was not granted.

The question subsequently arises whether - during the period of time of the charges - there was an armed conflict that involved the Netherlands. In this respect two operations in Afghanistan can be identified, namely Operation Enduring Freedom and the ISAF operation to guard peace and security in and around Kabul. The Court holds that the ISAF operation cannot be regarded as an armed conflict as provided in Section 107a of the Dutch Criminal Code (WvS), as this concerns a peacekeeping operation by the United Nations, and the Netherlands does not act as a military party and neither is there an enemy.

With regard to Operation Enduring Freedom the Court holds that this operation undoubtedly concerns an armed conflict for individual and collective self defence between an international coalition of nations (including the United States of America, the United Kingdom and - from a certain moment - the Netherlands) on the one hand and Afghanistan, or, as the case may be, the Taliban government on the other hand. Involvement of the Netherlands as meant by Section 107a of the Dutch Criminal Code (WvS) requires actual military involvement of the Netherlands in this conflict. There is ambiguity about the moment the Netherlands actually became involved in Operation Freedom as a military party. Viewed from the actual actions this moment cannot have been before early April 2002 at the earliest. For one of the accused this results in acquittal and that - whatever his possible activities - the period of the charges is outside the period the Netherlands may have participated in an armed conflict. With regard to one of the other accused who allegedly recorded a farewell message on a cassette tape, indicating that he has decided to be a martyr, go to the jihadand possibly die, the Court holds that only the recording of such a farewell message on a cassette tape is not the start of the carrying out of an intention to provide assistance to the enemy at times of (mutual) war or armed conflict that cannot be said to be a war and in which the Netherlands is not involved, therefore also this accused should be acquitted of this.

Together with the public prosecutor the Court declares the following offences with which a number of accused were charged, unproved: participation in a criminal organisation, providing assistance to the enemy at times of war or an armed conflict, forging travel documents, human smuggling, drug trafficking, violation of the Arms and Ammunition Act, handling identity documents and forgery."