Prosecutor v. Omar H.

Court	District Court of Rotterdam, The Netherlands
Case number	10/960019-12
Decision title	Judgment
Decision date	23 October 2013
Parties	Prosecutor Omar H.
Categories	Terrorism
Keywords	Foreign fighters, Incitement, Preparatory Acts, Syria, Terrorism, Training, Travel
Links	http://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:RBROT:2013:8266

Summary

In one of the first cases concerning (potential) foreign fighters, Omar H., a Dutch citizen, was found guilty of preparing to commit arson and/or an explosion, and of incitement to commit a terrorist crime on 23 October 2013. The District Court of Rotterdam found that Omar H.’s actions of searching online for information about how to make homemade bombs, visiting certain websites, and his purchase of the necessary objects to make a bomb demonstrated he was preparing to commit an act of arson and/or explosion. However, the Court rejected the Prosecutor’s submission that this constituted training for a terrorist crime as there was a need for actual preparation or execution in order to speak of training. Omar H. was also found guilty of inciting terrorist crimes as he had put a film and text about terrorist attacks online, and he had started an online discussion about jihad in a public forum. Omar H. was sentenced to 12 months in prison, four of which were suspended.

Procedural history

This case is one of the first dealing with (potential) foreign fighters. In March 2013, a couple of months before this case was decided, the terrorism threat level in the Netherlands was raised from limited to substantial. This was among others linked to the increase in the number of foreign fighters travelling to Syria.

After receiving a general office notice attesting that the defendant had shown his intention of participating in the jihad multiple times and the fact that he had recently bought aluminium powder and a detonation cord, the Prosecutor started an enquiry on 30 January 2012. The defendant was arrested in March of that same year and put in pre-trial detention. Thereafter, his detention was lifted on the condition he would stay in the Netherlands.

However, in June 2013 Omar H. was arrested in Germany as he was planning to travel to Syria via Turkey. As he later told the police, his plan was to join rebels fighting the regime of President Bashar al-Assad.

Related developments

The Prosecutor appealed the Court’s decision to acquit Omar H. for training for a terrorist crime. In the meantime, Omar H. had left the Netherlands again and was presumed to be in Syria.

The Court of Appeal in The Hague held, on 27 January 2015, that Omar H. was guilty of acquiring resources or knowledge to commit a terrorist offence, and of preparing to commit arson or an explosion. He was sentenced to 18 months of imprisonment.

The defendant appealed this decision and, on 31 May 2016, the Dutch Supreme Court dismissed the appeal, confirming the Court of Appeal’s sentence.

Legally relevant facts

The case dealt with acts which occurred between 1 November 2011 and 13 March 2012, when the defendant was living in the Netherlands. In that period of time he committed the following acts:

He visited websites and/or searched the internet on how to make “homemade bombs and explosives”, an “action man detonator” and “how to make flash powder”;
He bought a detonation cord, aluminum powder and a gas bottle;
He put a film about the commission of violent attacks and a text about jihad on public websites, after which he started a discussion about jihad on their forums;
He visited websites which contained information about travelling and the obtaining of a visa to Yemen, Saudi-Arabia or Syria. After this, he obtained a travel visa to go to Saudi-Arabia and a plane ticket to Turkey.

In June 2013 the defendant was apprehended in Germany as he was on his way to Syria via Turkey. The defendant, who clearly adhered to jihadist ideas, later told the police that he wanted to go to Syria to exterminate the army of President Assad and affirmed that he was ready to die there.

Core legal questions

Did the defendant prepare to commit arson and/or an explosion under articles 46, 47 and 157 of the Dutch Criminal Code (DCC)? (1B) Also, did this behaviour consist in training for terrorism? (1A)
Did the defendant publicly show or disseminated a text or picture, which incites people to commit a (terrorist) crime under article 132 of the DCC? (2)

Specific legal rules and provisions

Articles 14a, 14b, 14c, 33, 33a, 46, 57, 132, 134a and 157 of the Dutch Criminal Code (DCC)

Court's holding and analysis

Training for terrorism and preparing arson and/or an explosion

The Court analysed the allegations that Omar H. trained for terrorism and prepared to commit arson and/or an explosion together.

The Court first held that Omar H.’s actions could not amount to training for terrorism and, thus, a violation of article 134a DCC. It based its decision on the fact that training could only consist in a factual preparation or execution, which was not the case here. The Court held that searching for information or for contacts to travel to the Middle East did not mean the defendant was training for jihad.

However, the Court did consider it proven that the defendant wanted to commit arson and/or an explosion and, thus, that he had violated articles 46, 47 and 157 of the DCC. The Court concluded that Omar H. had the necessary intent as:

He searched the internet for information about the jihad;
He put films regarding attacks online and started discussions about the jihad;
He had plans to go to Yemen, Saudi Arabia and/or Syria; and
He had information about jihadi philosophy.

All of these elements, when combined with the various items he had purchased, enabled the Court to conclude that he had prepared to commit arson and/or an explosion under the DCC.

Incitement by showing publicly or disseminating a text and/or a picture inciting to commit a (terrorist) crime

Regarding the second charge, the Court concluded that the defendant had in fact committed incitement as he had shared a film and text on public websites. The Court held that the main point was that the defendant had wanted to publicise an inciting text or image.

Taking all of the above into account, the Court held on 23 October 2013 that Omar H. had to be acquitted of training for a terrorist crime. He was however found guilty of preparing acts of arson/explosion and incitement and was sentenced to 12 months in prison (4 months suspended).

It is important to note that the Court emphasised that this decision had to be seen in a terrorist context (of the armed jihad in Syria). However, the Court did not expressly state that it is illegal to go to Syria to fight. It just mentioned that it is illegal to prepare acts such as murder or arson.

Further analysis

C. Paulussen, ‘The Syrian Foreign Fighters Problem: A Test Case from The Netherlands’, International Centre for Counter-Terrorism, 2 December 2013.
E. Bakker, C. Paulussen and E. Entenmann, ‘Dealing with European Foreign Fighters in Syria: Governance Challenges and Legal Implications’, International Centre for Counter-Terrorism, December 2013.
C. Paulussen and E. Entenmann, ‘National Responses in Select Western European Countries to the Foreign Fighter Phenomenon’, in: A. de Guttry, F. Capone and C. Paulussen, Foreign Fighters under International Law and Beyond, T.M.C. Asser Press, 2016, at pp. 410-412.

Instruments cited

Dutch Criminal Code (DCC)

Related cases

Prosecutor v. Omar H., 27 January 2015, The Hague Court of Appeal, case no. 2200477013.
Prosecutor v. Omar H.,31 May 2016, Dutch Supreme Court, case no. 15/01915.