Prosecutor v. Omar H.
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||Court of Appeal of The Hague, The Netherlands
||27 January 2015
||Terrorism, Foreign fighters, Preparatory Acts, Training, Travel, Incitement, Syria
On 27 January 2015, the Hague Court of Appeal convicted Omar H. for training for terrorism and making preparations to commit arson and/or an explosion. Thus, the Appeals Court agreed with the District Court of Rotterdam that Omar H. had prepared to commit arson and/or an explosion. However, it distanced itself from the District Court’s finding that Omar H. had not trained for terrorism as, according to the District Court, his actions could not be considered as “training”. On the contrary, the Hague Court of Appeal decided that training for terrorism had to be interpreted broadly. Researching how to make bombs online, and buying items to make explosive devices in light of Omar H’s interest in jihad and travel to Syria were sufficient to prove he had trained himself to commit a terrorist crime. Omar H. was sentenced in total to 18 months’ imprisonment by the Court of Appeal.
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After receiving evidence that concerned the defendant, the prosecutor opened an investigation into Omar H. on 30 January 2012. He was arrested and held in pre-trial detention, but was ultimately released on the condition he would remain in the Netherlands. In June 2013, however, he was arrested again in Germany.
The first judgment on the case was handed down by the District Court of Rotterdam on 23 October 2013. In this case, the Court acquitted Omar H. of training for a terrorist crime. However, he was found guilty of preparing acts of arson/explosion and incitement, and he was sentenced to 12 months in prison (4 months suspended).
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After the judgment of 27 January 2015, the defendant appealed the decision of the Court of Appeal of The Hague and, on 31 May 2016, the Dutch Supreme Court dismissed the appeal, thus confirming the Court of Appeal’s sentence. The Supreme Court held that Omar H. had indeed trained himself to commit a terrorist crime. In upholding the Court of Appeal’s decision, the Supreme Court also reaffirmed the sentence of 18 months’ imprisonment.
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Legally relevant facts
The case dealt with acts which allegedly occurred between 23 January 2012 and 13 June 2013 (note that the indictment was amended after the first instance case). In its decision from 23 October 2013, the District Court of Rotterdam held that, in order to commit arson/an explosion as well as incitement, Omar H. had:
- Visited websites and/or searched the internet for information about how to make “homemade bombs and explosives”, an “action man detonator” and “how to make flash powder”;
- Bought a detonation cord, aluminum powder and a gas bottle;
- 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; and
- Visited websites which contained information about travelling and how to obtain a visa for Yemen, Saudi Arabia or Syria. After this, he obtained a visa to go to Saudi Arabia and a plane ticket to Turkey.
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.
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Core legal questions
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- Does Omar H.’s behavior constitute “training” for terrorism and thus violate article 134a of the Dutch Criminal Code (DCC)?
- Did the defendant’s acts take place with the intent of committing a terrorist offence in the sense of article 134a of the DCC?
- Did Omar H. prepare to commit arson and/or an explosion as is proscribed in articles 46 and 157 of the DCC?
Specific legal rules and provisions
Articles 24, 33, 33a, 36b, 36d, 46, 57, 134a and 157 of the Dutch Criminal Code (DCC).
Article 7 of the Council of Europe Convention on the Prevention of Terrorism of 16 May 2005.
Article 3 of the Council Framework Decision on combating terrorism of 28 November 2008.
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Court's holding and analysis
The Court commenced by delimiting the scope of the appeal. It noted that the appeal focused on the charges relating to training for terrorism under article 134a of the DCC and the charges concerning the preparation to commit arson and/or an explosion in contravention of articles 46 and 157 of the DCC. Thus, the judgment did not consider the conviction relating to incitement (para. 3).
The Court then proceeded by examining the merits of the defence argument that the indictment was partially nullified. The defence argued that the prosecutor had not clearly stated which crime he intended to be covered by article 134a DCC and that, as a result, the defence did not know what the accusation was about (para. 5).
The Court found that it had been sufficiently clear what the principal offence was.. The Court added that a certain degree of indeterminacy is normal for penal provisions that prohibit preparatory acts. Therefore, the Court rejected the objection (para. 5).
The substance of the case
- A. Training for terrorism under article 134a of the DCC
The Court held that it had been convincingly proven that the defendant had trained for terrorism because, in the period between 23 January 2012 and 13 June 2013, he had acquired means, knowledge and skills to commit a terrorist offence, namely:
- Arson and/or an explosion with terrorist intent; and/or
- Murder with terrorist intent; and/or
- Manslaughter with terrorist intent; and/or
- Destroying/damaging a building with terrorist intent.
The Court, however, did not think it was sufficiently proven that Omar H. intended to participate in a terrorist organisation (para. 6). The Court of Appeal came to this conclusion taking the following facts into account:
- He visited websites and/or searched online for information on how to make “homemade bombs and explosives”, an “action man detonator” and “how to make flash powder”;
- He bought a detonation cord, aluminium powder and a gas bottle;
- He visited websites on which information about the jihad and martyrdom was to be found;
- 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 to and obtaining a visa for Yemen, Saudi Arabia or Syria and he expressed his wish to travel to these countries. Subsequently, he obtained a visa to go to Saudi Arabia and a plane ticket to Turkey, and Omar H. then actually attempted to travel to Syria via Germany and Turkey; and
- He was in possession of DVDs containing information about the jihadi state of mind and martyrdom (para. 6).
The Court added that it had been proven that Omar H. wanted to go to Syria via Germany because he had declared himself ready to fight in the Middle East and even claimed he was ready to die there. He further declared on Twitter and to the police that his plan was to help his Sunni brothers and destroy Bashar al-Assad’s army. Finally, he violated the conditions of his pre-trial release by leaving the Netherlands and travelling to Germany on 13 June 2013. Bearing all of the above in mind, the Court decided it had been proven that Syria, not Turkey, was Omar H.’s final destination (para. 7).
The Court then provided some clarifications regarding article 134a of the DCC and its contents. In this regard, the Court examined the two questions discussed below.
(1) Do Omar H.’s actions, as established by the evidence, constitute “training for terrorism” as prohibited under article 134a of the DCC?
To answer this question, the Court found that article 134a of the DCC criminalises preparatory acts and is a stand-alone provision (para. 8.2.1). It then gave some insight on how the concept of training should be interpreted. The Court highlighted that it could be summarised as a prohibition of the participation in and contribution to training for terrorism. Hence, a passive form (as a trainee) and an active form (as a trainer). This is a broader concept than can be found in Article 7 of the Council of Europe Convention on the Prevention of Terrorism, which only looks at the active form of training someone else. The Court further detailed that training could entail:
- Training in camps or other forms of education;
- Training abroad or in the Netherlands;
- Training via the internet or through personal contact;
- Group training or individual training;
- Developing physical skills or intellectual knowledge; and/or
- Independent self-study undertaken by the perpetrator (para. 8.2.2).
With regards to the necessary intent for this offence, the Court said a distinction was to be made between the intent of the trainer and the intent of the trainee. For the trainer to have intent, it is enough that a significant chance exists that the trainee is following the training to commit a terrorist offence. However, the trainee must have a concrete aim, which is the intent of following the training in order to prepare for a terrorist attack (para. 8.2.5).
Thus, the Court came to the conclusion that the combination of Omar H.’s acquisition of means and knowledge, and the fact that he could not deliver a plausible explanation for these actions, were sufficient to determine that these acts could fall within the conduct prohibited by article 134a of the DCC (para. 8.3.1).
(2) Did the defendant’s acts take place with the intent of committing a terrorist offence in the sense of article 134a of the DCC?
The Court explained that in order to show this intent, it looked at the information that is available about the person concerned. In this particular case, the Court based the defendant’s intent on the following information:
- The defendant did not consider the Netherlands as his country and did not want to stay there;
- He stated that if national law deviates from Islamic law, the latter should prevail;
- He was of the opinion that jihad is an individual duty for every Muslim;
- The defendant showed very anti-American behaviour;
- He stated he was ready to go to the Middle East to fight and destroy Bashar al-Assad’s army. He also mentioned on Twitter and to the police that he intended to fight in Syria. Subsequently, he made plans to travel there; and
- On 13 June 2013, he was arrested in Germany and he said he was going to Turkey (para. 8.3.2).
Given these circumstances, the Court established that the defendant had an excessive interest in terrorist violence and, by combining the defendant’s state of mind with his searches on the internet and the goods he bought, the Court believed that the defendant intended to prepare a bomb attack with a terrorist intent for which he trained himself (para. 8.3.2).
B. Preparing to commit arson and/or an explosion as a violation of articles 46 and 157 of the DCC
The Court considered that it had been legally and convincingly proven that around the period between 23 January 2012 to 13 March 2012, Omar H. prepared to commit arson and/or an explosion by:
- Visiting websites and/or searching online about how to make “homemade bombs and explosives”, an “action man detonator” and “how to make flash powder”; and
- Buying a detonation cord, aluminium powder and a gas bottle.
These objects and materials combined were clearly meant to commit arson or an explosion (para. 6).
It is important to note that the Court highlighted that terrorist offences, together with a few other international crimes, are part of the worst category of offences. Terrorism is considered to be one of the most serious violations of the principle of the rule of law, and directly affects the public order and/or the security and stability of society (para. 12.3).
Taking all the above into account, the Court held on 27 January 2015 that Omar H. was guilty of training for a terrorist crime and of preparatory acts for arson/explosion. He was sentenced to 15 months’ imprisonment (para. 12.4). In addition, he received a sentence of three months for incitement (which was not part of this appeal) (para. 12.2), bringing the total sentence to 18 months (para. 15).
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- 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.
- M. van Noorloos, ‘De strafrechtelijke aanpak van terrorisme en Syriëgangers vanaf 2014’, Delikt en Delinkwent 2015, nr. 7, pp. 568-597.
Dutch Criminal Code (DCC)
Council of Europe Convention on the Prevention of Terrorism of 16 May 2005.
Council Framework Decision on combating terrorism of 28 November 2008.
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- ANP, ‘'Syriëganger' Omar H. krijgt 1,5 jaar cel in hoger beroep’, NU, 27 January 2015.
- D. Haakman, ‘Anderhalf jaar cel voor ‘Syriëganger’ Omar H.’, NRC, 27 January 2015.
- M. Remie, ‘Veroordeelde jihadist Omar H. ontsnapte aan veiligheidsdiensten’, NRC, 3 February 2015.
- J. Groen, ‘Had de jihadgang van Omar H. voorkomen kunnen worden?’, De Volkskrant, 3 February 2015.
- J. Pieters, ‘Prosecutor Demands 2 Year Prison Term for Jihadist In Appeal’, NL Times, 16 December 2014.
- J. Pieters, ‘Fugitive Amsterdam jihadist Omar H. dies in Syria battle’, NL Times, 22 April 2015.
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