The Public Prosecutor v. Habibullah Jalalzoy

Court	Supreme Court of the Netherlands, Criminal Division, The Netherlands
Case number	07/10064 (LJN: BC7418)
Decision title	Judgment
Decision date	8 July 2008
Parties	Public Prosecutor Habibullah Jalalzoy
Categories	Torture, War crimes
Keywords	Torture; universal jurisdiction; war crimes; asylum
Links	Judgment of the Supreme Court (in Dutch) Judgment of the Supreme Court (in English)
Other countries involved	Afghanistan

Summary

The Afghani Habibullah Jalalzoy applied for political asylum in the Netherlands in 1996, but this was refused due to suspicion of his involvement in torture and war crimes during the war in Afghanistan in the 1980’s. However, Jalalzoy stayed in the Netherlands, and after investigations he was arrested in 2004. The Hague District Court convicted him for war crimes and torture committed by him as member of the military intelligence agency KhaD-e-Nezami (KhAD). He was sentenced to nine years’ imprisonment. The Court of Appeal affirmed this decision. Consequently, Jalalzoy appealed at the Supreme Court, arguing that both the District Court and Court of Appeal had erred in law on several points. The Supreme Court disagreed, and held that Dutch courts had jurisdiction over the crime, that prosecution was admissible, that the crimes were not time-barred (as Dutch law excludes war crimes from becoming so), and that the convictions had been in conformity with the law. Accordingly, the appeal was dismissed.

Procedural history

After criminal investigations in 2003, Jalalzoy was arrested in the Netherlands on 2 December 2004. On 14 October 2005, he was sentenced to 9 years' imprisonment by The Hague District Court for torture as a war crime (in Dutch and in English). Jalalzoy appealed against this decision, but on 29 January 2007, The Hague Court of Appeal affirmed the District Court’s judgment, again convicting Jalalzoy as co-perpetrator of torture and war crimes (in Dutch and in English). Jalalzoy was tried in parallel with Heshamuddin Hesam, who was his KhAD superior.

Legally relevant facts

Jalalzoy was head of the interrogation department of the Afghan military intelligence service KhAD, and a subordinate of Heshamuddin Hesam in the period from 1979 to 1989, including during the war with the Soviet Union and the civil war in Afghanistan – armed conflicts to which the KhAD was a party. In first instance – and upheld by the Court of Appeal – Jalalzoy was found guilty of having tortured, individually and together with KhAD-colleagues, prisoners in order to extract a confession and/or cause fear (by, inter alia, depriving them from sleep, applying electrical currents to their bodies, cutting off toenails and fingers, and putting them, almost naked, in the cold for days), offences which appeared to constitute ‘a fixed pattern of behaviour within the military intelligence service of Afghanistan (first-instance judgment).

After the Court of Appeal’s approval of the conviction, Jalalzoy appealed to the Supreme Court on five grounds, most of which were similar to those in the Hesam case: (1) the Dutch courts did not have jurisdiction regarding the war crimes charges; (2) Jalalzoy, as (former) official, enjoyed functional immunity and could therefore not be prosecuted; (3) the war crimes charge had become time-barred; (4) the specifically mentioned victim in the war crimes charge was not entitled to protection under the laws of war; and (5) torture was not prohibited under the laws of war in 1985-1989 (paras. 6-12 of the Advocate-General’s conclusion). Additionally, Jalalzoy claimed that he was not a commander and could therefore not be held responsible for crimes committed by subordinates, para. 13. Moreover, ‘by using in the present criminal case statements made by the defendant to the Immigration and Naturalisation Service (IND), the Public Prosecution Service had acted in breach of the privilege against self-incrimination (nemo tenetur) enshrined in article 6 of the European Convention on Human Rights (ECHR) and in breach of Article 8 of the ECHR because the right of the defendant to respect for his private life had been violated’ (para. 14.1).

Core legal questions

Has the Court of Appeal erred in law in affirming the judgment convicting Jalalzoy of war crimes?

Specific legal rules and provisions

Geneva Convention (I), 1949:

Article 3

Wartime Offences Act, 1952, the Netherlands [in Dutch only] (replaced by the International Offences Act, 2003, the Netherlands):

Section 1(3)
Section 3(1)
Section 8
Section 9

Convention for the Protection of Human Rights and Fundamental Freedoms, 1950, Council of Europe:

Article 6(1) - Right to a fair trial
Article 8 - Right to respect for private and family life

Court's holding and analysis

On the outset, it should be noted that the (old) Wartime Offences Act (Wet Oorlogsstrafrecht), under Section 3(1), provides that Dutch courts can exercise universal jurisdiction over war crimes committed anywhere in the world.

The Supreme Court did not address the first five grounds of appeal, since the Advocate-General’s conclusion on the answers to these questions was identical to the Hesam judgment, which was issued on the same day. The argument that the Court of Appeal had failed to explain why Jalalzoy had been a commander was also dismissed because he had been convicted for the crimes he had committed himself, jointly with his colleagues (para. 13.2 of the A-G’s conclusion). The last ground of appeal, however, arguing that the prosecution should be barred due to violation of the defendant’s human rights as enshrined in the European Convention on Human Rights (ECHR), was explicitly rejected by the Court itself, referring to the A-G’s conclusion (para. 3.2).

The Advocate-General emphasised that a ruling stating that the prosecution’s case is inadmissible is made only in exceptional cases, namely, ‘if the procedural defect consists in the fact that investigating or prosecuting officials have seriously infringed the principles of due process in such a way as deliberately to prejudice the defendant's right to fair treatment of his case or grossly violate his interests’ (para. 14.8 of the A-G’s conclusion). In the current case, the main issue was whether information found in the asylum procedure was used in the criminal investigations to circumvent the nemo tenetur principle. This had not been the case, as no IND documents had been used by the Court of Appeal as evidence, except for two statements made by the defendant to the police in early December 2004, wherein nothing was said about personal involvement in the offences (‘In response to only one question, namely 'Did torture take place at the KAM at the time of Amin, whether or not you were present?' did the defendant reply, 'Yes, it did occur.'’) (para. 14.5 of the A-G’s conclusion). Furthermore, undue coercion could not be established since the defendant had been ‘informed in the criminal investigation that he was not obliged to reply and, with the exception of a few statements made in the course of the preliminary investigation that were themselves not relevant to the acts with which he was charged, invoked his right to silence both at first instance and on appeal’ (para. 14.11 of the A-G’s conclusion). Additionally, no link could be found between the asylum procedure and the criminal investigation: the IND investigation had been instituted years earlier, for a completely different purpose, and without any involvement on the part of the police or criminal justice authorities – Jalalzoy was, at that time, merely asked, and required by asylum law, to provide factual information. At this time, proceedings were not even anticipated (para. 14.15 of the A-G’s conclusion). Finally, with regard to the alleged violation of Article 8 ECHR (right to respect for private life), it was pointed out by the Advocate General that Article 8(2) provides that exceptions are allowed in the interest of public security: obviously, ‘the protection that the defendant enjoys from, in brief, the danger of violation of his human rights should not indemnify him from responsibility for war crimes committed in his previous position’ (para. 14.18 of the A-G’s conclusion).

Instruments cited

Geneva Convention (I), 1949.
Geneva Convention (II), 1949.
Geneva Convention (III), 1949.
Geneva Convention (IV), 1949.
Convention for the Protection of Human Rights and Fundamental Freedoms, 1950, Council of Europe.
Wartimes Offences Act, 1952, the Netherlands [in Dutch only] (replaced by the International Offences Act, 2003, the Netherlands).

Related cases

Together with Habibullah Jalalzoy, two other former KhAD members were also identified during the investigations conducted in the Netherlands: Heshamuddin Hesam and Abdullah Faqirzada. Jalalzoy was prosecuted and convicted in parallel with Hesam, see: Public Prosecutor v. Heshamuddin Hesam.

Faqirzada, however, was acquitted of all charges in 2011, see: Public Prosecutor v. Abdullah Faqirzada.