Prosecutor v. Shukri F.

Court	Court of Appeal of The Hague, The Netherlands
Case number	22-005387-14
Decision title	Judgment
Decision date	7 July 2016
Parties	Prosecutor Shukri F.
Categories	Terrorism
Keywords	Terrorism, Foreign fighters, Incitement, Dissemination, recruitment
Links	http://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:GHDHA:2016:1979

Summary

On 1 December 2014 Ms. Shukri F., a young Dutch woman, was acquitted on two charges by the District Court of The Hague. She was charged with 1) recruiting people to join the armed struggle in Syria, and; 2) incitement to commit terrorist crimes and dissemination of and collecting inciting material. Although the Court acquitted her, the Prosecutor appealed.

The defendant was allegedly active in spreading the virtues of Islamic orthodoxy in multiple ways. First, she used social media and gave lectures about Islam. Second, she encouraged multiple women (some underage) to marry and to depart to Syria. Third, she married a man who she supported in his wish to go to Syria. After he had left for Syria she divorced him and married another man, Maher H., who she also encouraged to depart to Syria.

The Court of Appeal ruled that it could not establish that the defendant recruited people to join the armed struggle in Syria. It could establish, however, that 2 videos she had posted on Twitter amounted to the dissemination of inciting materials. For that reason she was sentenced to a suspended imprisonment term of 6 months and a probation period of 2 years.

Procedural history

Shukri F. was acquitted on two charges by the District Court of the Hague on 1 December 2014. The first charge was that she recruited several people to participate in the armed struggle in Syria between 1 February 2013 and 17 July 2013. The second charge was public incitement to commit terrorist crimes and the dissemination and collection of writings, images and files that incite to commit terrorist crimes in the same period (para. 1).

The Court annulled parts of the summons that were insufficiently clear and precise (para. 3). The District Court could not establish that the defendant had recruited women to join the armed struggle, as it is unclear what roles women hold in the Islamic groups that fight in Syria (para. 4.5.2). The Court also could not establish that the defendant had recruited men to join the armed struggle (para. 4.5.2). She was thus acquitted on the first charge.

The Court could not establish that the defendant had publicly incited others to commit terrorist crimes either (para. 4.8.2). It was also unable to hold that the defendant had disseminated and collected writing, images, and files that incite to commit terrorist crimes (para. 4.8.3). The defendant was thus acquitted on the second charge as well.

Legally relevant facts

Between 13 June 2012 and 30 March 2013 the defendant had 474 telephone conversations with [person 2] (para. 7).
The phone of the defendant contained several encouragements sent to [person 2] to join the armed struggle in Syria and expressions of full support (para. 7).
On 8 February 2013 the defendant married [person 2] for the Islamic law, who departed to Syria shortly after 30 March 2013 (para. 7).
Shortly after [person 2] had departed to Syria, the defendant told him that she wanted to divorce him (para. 7).
From March 2013 until June 2013 the defendant posted 29 videos via her Twitter account that all concerned the Islamic faith (para. 7).
In June 2013 the defendant actively encouraged other women to marry 'a brother' and to depart to Syria (para. 7).
In March 2013 the defendant got to know Maher H. via Instagram. They married for the Islamic law on 10 July 2013 (para. 7).
On 10 July 2013 the defendant sent Maher H. a chat message that warned for the scorn of Allah if a person does not fight (para. 7).
On 17 July 2013 the defendant and Maher H. were arrested in the Netherlands when they were departing for Syria (para. 7).

Core legal questions

What actions amount to recruitment of others to participate in armed struggle (para. 6.2)?
What actions and forms of communication fall under the dissemination of inciting materials (para. 6.3.2)?

Specific legal rules and provisions

Article 205 Dutch Criminal Code
Article 131(1) and (2) Dutch Criminal Code
Article 132(2) Dutch Criminal Code

Court's holding and analysis

The Court cannot establish that the defendant had recruited women for the armed struggle in Syria. Although it was clear that the defendant had encouraged women to depart to Syria, the Court cannot hold that this encouragement extended to participating in the armed struggle (para. 8.1.2). The Court can also not establish that the defendant had recruited men to join the armed struggle in Syria. Although the defendant supported [person 2]’s wish to depart to Syria, this does not prove that she recruited him to join the armed struggle (para. 8.1.3). Although the Court holds that the chat message sent to Maher H. on 10 July 2013 can be seen as recruitment, this is not sufficient to meet the criterion of recruitment as a process (para. 8.1.3). In addition, Maher H. had already determined he would depart to Syria (para. 8.1.3.). The defendant was thus acquitted on the first charge.

The Court cannot establish that the defendant incited others to commit terrorist crimes via lectures, flyers, expressions on social media and films and messages on Facebook (para. 8.2). The defendant posted 7 videos on Twitter that, according to a police officer, were specifically ‘unbearable and militant’. Of those videos, five do neither prove incitement nor dissemination of inciting materials. The other two videos do not prove incitement to join the armed struggle in Syria, but do prove the dissemination of inciting materials (para. 8.2).

The Court sentences the defendant to a suspended imprisonment term of 6 months and a probation period of 2 years (para. 15).

Further analysis

M. Zwanenburg, ‘Foreign Terrorist Fighters in Syria: Challenges of the “Sending” State’, International Law Studies, Volume 92 (2016), p. 217.
L. Huey, and E. Witmer. ‘# IS_Fangirl: exploring a new role for women in terrorism.’ Journal of Terrorism Research Volume 7(1) (2016).

Instruments cited

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

Related cases

District Court of The Hague, the Netherlands, Prosecutor v Maher H. case No. 09/767/116-14: the defendant’s husband, Maher H., was convicted to three years’ imprisonment for preparing to commit terrorist crimes, including murder and manslaughter; and disseminating inciting materials.

Court of Appeal of The Hague, the Netherlands, Prosecutor v Maher H. case No. 22-005306-14: the defendant’s husband, Maher H., was convicted to four years’ imprisonment for preparing to commit terrorist crimes, including murder and manslaughter; training for terrorism; and disseminating inciting materials.