Prosecutor v. Mohammed G.

Court	District Court of Rotterdam, The Netherlands
Case number	10/960138-15
Decision title	Judgment
Decision date	29 August 2016
Parties	Prosecutor Mohammed G.
Categories	Terrorism
Keywords	Attempted Travel, Murder, Syria, Terrorism
Links	http://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:RBROT:2016:6681

Summary

On 9 October 2015 the Dutch citizen Mohammed G. was arrested because the Netherlands General Intelligence and Security Service AIVD believed he was about to travel to Syria or Iraq. This was not the first time the defendant was arrested; in an earlier judgment Mohammed G. was ordered to spend a year in a psychiatric hospital because he suffered from hallucinations that ordered him to join the jihadi armed struggle in Syria or Iraq.

In the current case, the Court held that the defendant was well aware of the things he would participate in if he were to travel to Syria or Iraq. For example, the defendant was recorded saying ‘I want to fight, I want to kill, I want to be’. The Court therefore ruled that the defendant was guilty of seeking to obtain for himself or for others the opportunity, means or information for the commission of arson and/or causing explosions and/or murder and/or manslaughter. According to the Court, the participation in the jihadi armed struggle can be qualified as those crimes. The defendant committed the crimes with terrorist intent.

A psychological report of the defendant was drawn up, which concluded that the defendant’s intelligence bordered on him being mentally handicapped. The Court concurred with these findings and concluded that the defendant was in a state of partially diminished responsibility. The Court therefore sentenced the defendant to three years imprisonment and a hospital order (TBS), to reduce the risk of recidivism.

Procedural history

In an earlier judgment on 23 October 2013, the District Court of Rotterdam established that the defendant was guilty of preparatory acts to commit murder. Booking airplane tickets and packing a suitcase was seen as premeditation, as the defendant expressed multiple times that he wished to travel to Syria to participate in the armed jihad and discussed the matter with others (p. 7). The defendant, for example, said that all those who fight the mujahideen in Syria deserve to be decapitated (p. 7).
However, the Court concurred with the psychiatrists’ report that the defendant could not be held criminally responsible. Two psychiatrists had separately concluded that the defendant suffered from a psychotic disorder (pp. 8-9). Therefore the defendant was acquitted from prosecution. Instead, the Court ordered the defendant to spend a year in a psychiatric hospital (p. 11), with the aim of convincing him of the necessity to take medication for his psychiatric disorder (p. 10).

On 9 October 2015 the defendant was arrested again, because it was believed that he would possibly depart to Syria or Iraq with a false passport (para. 4).

He was charged with seeking to obtain the opportunity, means or information to travel to the conflict zone in Iraq or Syria in order to participate in the jihadi armed struggle on behalf of the Islamic State. The defendant is thus charged with preparatory acts for the commission of terrorist crimes (para. 2).

Legally relevant facts

On 30 July 2015 the prosecutor received a report from the Netherlands General Intelligence and Security Service (AIVD) about the defendant. In this report the AIVD concluded that the defendant adheres to jihadi ideology and that he would like to travel to Islamic State territory with a false passport to join the fighting. In addition, the AIVD concluded that if the defendant failed to depart to Syria or Iraq, he wanted ‘to do something in the Netherlands’ and possibly had access to arms (para. 4).
On 17 August 2015 the AIVD sent another report to the prosecutor. This report contained information that the defendant now possessed the phone number of an arms trader who would provide him with an automatic fire arm, and that the defendant deemed this type of weapon suitable for a ‘lone wolf attack’ (para. 4). In response, the AIVD used far-reaching investigative measures. A police informant was placed in the vicinity of the defendant, and the defendant was gradually led to a house that was bugged (para. 4).
On 19 September 2015 the defendant said: ‘I want to fight, I want to kill, I want to be’ (which was recorded by bugging devices) in the context of his wish to depart to Syria or Iraq (para. 9).
On 4 April 2017 a psychologist, a psychiatrist and a forensic researcher drew up a report about the defendant. This report concluded that the defendant had a poor development of his mental capacities. This poor development does, however, not reach the level of a personality disorder. In addition, the report concluded that the defendant was intellectually challenged, bordering on being mentally handicapped. This did not normally constrain his day-to-day functioning, but it did make it difficult for him to oversee more complicated situations. The report advised to consider the defendant in a state of partially diminished responsibility (para. 13).

Core legal questions

Can the results of the far-reaching investigative measures be used as evidence?
If information gathered by the AIVD is used as evidence, does this conflict with art. 6 of the European Convention on Human Rights (ECHR) (the right to a fair trial)?
What crimes can be deduced from participation in the jihadi armed struggle?

Specific legal rules and provisions

Article 83a Dutch Criminal Code
Article 96 Dutch Criminal Code
Article 157 Dutch Criminal Code
Article 176a Dutch Criminal Code
Article 288a Dutch Criminal Code
Article 289a Dutch Criminal Code
Article 6 European Convention on Human Rights

Court's holding and analysis

The Court refers to the ‘Tallon criterion’ established by the Dutch Supreme Court to assess whether the information gathered by the undercover agent can be used as evidence. Since the defendant was not incited to commit any other crimes than he was already pre-disposed to commit (he already planned on acquiring a false passport before the undercover agent was employed) the ‘Tallon criterion’ is met. The information gathered by the undercover agent can thus be used as evidence, in line with art. 6 ECHR and EU jurisprudence (para. 7).

The reports written by the AIVD are supported by other evidence in the dossier. The Court can therefore assess that the reports are reliable. Therefore, the use of the information gathered by the AIVD is in line with art. 6 ECHR (para 8.1).

According to the Court, the participation in the jihadi armed struggle can be qualified as arson, causing explosions and murder and manslaughter (para. 9). The Court establishes that the defendant was planning on traveling to Syria or Iraq to join the Islamic State in order to participate in the jihadi armed struggle. According to the Court it was clear to the defendant what his participation in the armed struggle would entail (para. 9). The Court therefore holds that the defendant is guilty of seeking to obtain for himself or for others the opportunity, means or information for the commission of serious crimes (art. 96 of the Dutch Criminal Code (DCC)). The serious crimes concern arson and/or causing explosions (art. 157 DCC) and/or murder (art. 289a DCC) and/or manslaughter (art. 288a DCC). All these crimes were committed with terrorist intent (art. 83 DCC) (para. 9).

The Court concurs with the psychological report about the defendant and holds that the defendant is in a state of partially diminished responsibility due to the poor development of his mental capacities. The Court sentences the defendant to a 3-year prison sentence and a hospital order (TBS) (para. 17). Although a hospital order is not strictly necessary according to the psychological report, the Court holds that there is a causal relationship between the defendant’s poor mental capacities and the chance of recidivism, and thus nevertheless chooses to impose such an order (para. 13).

Further analysis

M. van Noorloos, ‘De strafrechtelijke aanpak van terrorisme en Syriëgangers vanaf 2014’, Delikt en Delinkwent 2015, nr. 7, pp. 568-597.

Instruments cited

Dutch Criminal Code: http://www.ejtn.eu/PageFiles/6533/2014%20seminars/Omsenie/
WetboekvanStrafrecht_ENG_PV.pdf

Related cases

Prosecutor v. Mohammed G. 23 October 2013. District Court of The Hague, case no. 10/960233-12.

Prosecutor v. Omar H. 23 October 2013. District Court of Rotterdam, case no. 10/960019-12.

Prosecutor v. Omar H. 27 January 2015. Court of Appeal of The Hague, case no. 2200477013.

Prosecutor v. Omar H. 31 May 2016. Supreme Court of The Netherlands, case no. 15/01915.

Additional materials

‘Rechtszaak tegen eerste veroordeelde jihadganger gestart’, De Telegraaf, 4 August 2016.

‘Drie jaar cel en tbs voor plannen jihad-reis’, NRC, 29 August 2016.