Prosecutor v. Burcu T.

Court	District Court of Rotterdam, The Netherlands
Case number	10/960021-10
Decision title	Judgment
Decision date	22 July 2015
Parties	Prosecutor Burcu T.
Categories	Terrorism
Keywords	Financial Support, Membership, participation, Terrorism, Terrorist group, Foreign fighters
Links	http://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:RBROT:2015:5254

Summary

On 22 July 2015, Burcu T., a Dutch national, was found guilty of violating the 1977 Dutch Sanction Law by transferring just over €2000 to an intermediary in Turkey as she ought to know the money would end up in the hands of terrorist groups. Burcu T. had been engaged to [T], who had informed her he was a member of the Taliban, and the court found that she ought to have known it was likely that the money she transferred would go to jihadist groups. In the same judgment, Burcu T. was acquitted of participating in a terrorist organisation due to a lack of adequate proof; the fact that the defendant was in a relationship with a terrorist and that she possessed documents, photos and videos linked to the jihad did not mean that she was a terrorist herself. She was sentenced to six months of imprisonment.

Procedural history

The defendant was first apprehended on the 21^st of January 2010 and was interrogated later that day. At that moment in time, the Prosecutor decided not to proceed with the case. The defendant subsequently moved to Turkey where she got married and lived for a few years. On the 14^th of March 2012, she returned to the Netherlands for a family visit. A couple of days later, on the 19^th of March, she was arrested again and put in preventive custody. On the 17^th of April, the defendant was placed on the Dutch National terrorist list. This decision was made jointly by the Dutch Minister of Foreign Affairs, the Minister of Security and Justice and the Minister of Finances.

Related developments

Both parties have appealed the Rotterdam District Court’s decision. The Hague Appeals Court held that facts 1 and 2 – this will be explained in greater detail below - had not been sufficiently proven as it was not clear that the defendant had been a member of the Islamic Jihad Union (IJU) and/or the Deutsche Taliban Mujahideen (DTM). Consequently articles 140 and 140a DCC had not been violated.

The Court of Appeal did however decide there was a violation of the Dutch Sanction Law 1977.

The defendant was thus convicted to 12 months of imprisonment, with an 11-month suspension and a two year probation.

Legally relevant facts

The case dealt with acts which occurred in 2009 and 2010 when the defendant was living in the Netherlands. During this period she was in a relationship with [T] with whom she had plans to get married. (para. 7.2).

On the 21^st of January 2010, she was carrying an external hard drive containing video material which featured footage of Mujahideen carrying weapons and glorifying martyrdom. When looking through her personal effects, investigators also found several documents, pictures and CDs relating to the jihad. In addition to this, her internet history showed she had visited websites linked to the Islamic Jihad Union (IJU) and the Deutsche Taliban Mujahideen (DTM) (para 7.2).

Finally, between the 14^th of August 2009 and the 18^th of February 2010, on 4 different occasions, she transferred money to two individuals who acted as intermediaries for [T] in Istanbul, Turkey (para. 7.2).

Core legal questions

Has there been a violation of the due process requirement that the matter be finalised within a reasonable time period, in which the case would no longer be admissible?
Did the defendant have the (terrorist) intent required to be part of a criminal (terrorist) organisation and to participate in the activities of such an organisation?
Did the defendant transfer money to a terrorist group in contravention of the Dutch Sanction Law 1977?

Specific legal rules and provisions

Articles 57, 83a, 134a, 140, 140a of the Dutch Criminal Code (DCC).

Articles 2 and 3 of the Dutch Sanction law of 1977.

Article 2 of the Dutch Sanction Law Osama bin Laden, Al-Qa’ida and Taliban 2002.

Articles 2 and 4 of Regulation nr. 881/2002 of the Council of the European Union.

Article 1 of Regulation nr. 198/2008 of the European Commission of 3 March 2008.

Article 6 of the European Convention on Human Rights.

Court's holding and analysis

The admissibility of the case

The judgment commenced by examining the merits of an admissibility challenge. The defence argued that the case was inadmissible as the defendant had not been judged within a reasonable time and that there had consequently been a violation of the principles of due process enshrined in article 6 of the European Convention on Human Rights (ECHR). While the court conceded that there had been a violation in this regard, as three years and four months had lapsed since the defendant was first arrested, it then referred to a decision of the Dutch Supreme Court from 17 June 2008 that argued that this type of violation did not necessarily mean that the case had to be dismissed. Accordingly, the court decided the case was admissible. (para. 4.2).

The substance of the case

The Prosecutor claimed that the defendant had committed three different illegal acts, namely: participating in the activities of an organisation that intends to commit terrorist offences; the carrying out of the activities of a prohibited organisation; and a violation of the 1977 Dutch Sanction Law. The court analysed the first and second facts together (para. 2).

Participation in a terrorist organisation (article 140a, para. 1 DCC) and carrying out the activity of a prohibited organisation (article 140, para. 2 DCC)

This part of the judgment started with an analysis of the requirements to prove the necessary intent under these articles. Regarding article 140 DCC and the carrying out of criminal acts, the court noted that the notion of intent was contained in the first paragraph of the article and that it was sufficient for the party concerned to have general knowledge that the organisation aimed to commit offences. The accused person thus did not need to know of any concrete offence planned by the organisation. On the other hand, article 140a required that the organisation aimed to commit offences with terrorist intent (see article 83a DCC) (para. 6).

Regarding the facts, the court decided the following :

The fact that the defendant was in a relationship with [T], who was a member of the terrorist organisation IJU, did not automatically prove that the defendant was a member of the organisation as well. “Being in a relationship with a terrorist, does not make you a terrorist per se” (para. 7.2).
The defendant possessed several documents, pictures and videos relating to the jihad and had visited websites linked to the IJU/DTM. However, in the court’s view, these facts could, at most, amount to a violation of article 134a DCC if the defendant had demonstrated a particular interest in terrorist training. This interest had not been demonstrated by the Prosecutor (para. 7.2).
Regarding the payments the defendant made to intermediaries, the court decided that it was clear from the collected evidence that [T] eventually received that money. The mere fact of making these payments is prohibited in both the Dutch Sanction Law 1977 and the Dutch Sanction Regulation Osama bin Laden, Al-Qa’ida and Taliban 2002. Furthermore, these payments could possibly also be an act of participation in the sense of article 140, para. 4 DCC. However, this did not mean that she had the unconditional intent to participate in a terrorist organisation or carry out its acts (para. 7.2).

Bearing this in mind, the court found that the charges were not legally and convincingly proven as there was no substantial proof that the defendant had the unconditional intention of being part of a terrorist organisation (para. 7.2).

Violation of the Dutch Sanction Law 1977

Contrary to the defence’s claims, the court held that the evidence collected was sufficient to conclude that the defendant had violated articles 2 and 3 of the Dutch Sanction Law (para. 8.3). The court based its analysis on the following facts:

In March 2009, the defendant had been in contact with [T] and, on the 18^th of March, she received a message from him in which he admitted to be part of the Taliban. It is general knowledge that the Taliban is a terrorist organisation. In this period of time, the defendant had also been in possession of a picture of [T] with an automatic firearm in front of a flag on which the words Islamic Jihad Union were partly discernible (para. 8.2).
The defendant also declared that she made several money transfers through Western Union in the period between August 2009 and February 2010. Even though she made the payments to an intermediary, she knew that [T] and the intermediary were in contact. Accordingly, the court concluded that she had at least accepted the significant probability that the money she transferred to the intermediary would end up with [T], who she likely knew was part of the Taliban (para. 8.2).

Based on these facts, the court concluded that the defendant knew that there was a substantial possibility that the money would go to the Taliban and other related terrorist organisations as well (para. 8.2). The defendant was thus convicted to six months of imprisonment (para. 15).