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Prosecutor v. Omar H

Court Supreme Court of The Netherlands, The Netherlands
Case number 15/01915
Decision title Judgment
Decision date 31 May 2016
  • Prosecutor
  • Omar H
Categories Terrorism
Keywords Foreign fighters, Preparatory Acts, Syria, Terrorism, Training, Travel
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In May 2016, the Dutch Supreme Court dismissed the appeal against the Court of Appeal’s judgment in the case of Omar H, a foreign fighter convicted of training for terrorism. In upholding the Court of Appeal’s judgment, the Supreme Court decided that training for terrorism in this context would be interpreted broadly. Thus, researching how to make bombs online, and buying items to make explosive devices in light of Omar H’s other interests in jihad and travel to Syria were sufficient to prove he had trained himself to commit a terrorist crime. In dismissing the appeal, the Supreme Court also confirmed Omar H’s sentence of 18 months’ imprisonment. 

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Procedural history

On 23 October 2013, Omar H was convicted of “preparing arson and/or an explosion and of spreading, showing publicly or having in stock to spread or show publicly a text and/or a picture which incites to committing a (terrorist) crime”.

The initial decision was appealed and, on 27 January 2015, the Court of Appeal in The Hague found Omar H guilty of gaining resources or knowledge to commit a terrorist offence and of preparing for arson or causing an explosion (Part 15). Omar H was sentenced to 18 months’ imprisonment. Prior to this decision, Omar H had left the Netherlands. 

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Legally relevant facts

The Court of Appeal previously found that Omar H had in between January 2012-March 2012 and May 2012-June 2013:

  • Visited websites with information about making bombs / explosives;
  • Visited websites with information on jihad and martyrdom;
  • Visited websites with information on travelling to Yemen, Saudi Arabia and Syria;
  • Had discussions in online forums about jihad;
  • Posted videos on websites about committing attacks;
  • Expressed “a wish to visit” Yemen, Saudi Arabia and Syria and “asked how he could contact one or more persons of undisclosed identity after his arrival”;
  • Purchased a detonating fuse, aluminium powder and a gas canister;
  • Obtained a visa for travel to Saudi Arabia;
  • Obtained a plane ticket to Turkey; and
  • Travelled to Turkey via Germany with a final destination of Syria (para. 2.2.1.).  
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Core legal questions

  • Does Omar H’s conduct meet the requirements under article 134a of the Criminal Code, which criminalises participating and cooperating in training for terrorism (paras. 2.1 and 2.2.2.)? 

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Specific legal rules and provisions

Articles 46 and 134a of the Dutch Criminal Code

Article 7 of the European Convention on the Prevention of Terrorism

Article 3 of the Framework Decision of the Council of the European Union of 13 June 2002 on combatting terrorism, as amended on 28 November 2008

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Court's holding and analysis

The Supreme Court first sets out the Court of Appeal’s findings in relation to the factual background of the case (para. 2.2.1.) and then the contested section of the Appellate judgment (para. 2.2.2.).

The Court of Appeal held that visiting websites and searching for information about making bombs or explosives as well as purchasing a detonating fuse, aluminium powder and a gas canister came within the scope of “obtaining means for oneself and acquiring knowledge and skills (participation in training)” under article 134a of the Dutch Criminal Code (para. 2.2.2). While the remaining conduct could not be described as training under article 134a, “the combination of these acts … [served] as proof of the defendant’s intent to obtain means for himself and acquire the knowledge and skills needed to commit a terrorist offence” (para. 2.2.2.).

Among the Court of Appeal’s other findings with regards to the interpretation of article 134a are:

  • The article was introduced to implement article 7 of the European Convention on the Prevention of Terrorism and article 3 of the Framework Decision of the Council of the European Union of 13 June 2002 on combatting terrorism, as amended on 28 November 2008;
  • Article 134a was intended to “fill possible gaps” as “the existing criminal provisions on preparatory acts were not sufficient to cover all possible cases in which training for terrorism could occur”;
  • While article 134a does not use the term “training”, its legislative history demonstrates that it is “a prohibition on participating and cooperating in training for terrorism”. As such, it is an offence “to cooperate (as a person providing instruction) and participate (as a person receiving instruction) in training for terrorism”;
  • “Training” can include “not only a training camp in the Netherlands or abroad but also other forms of instruction … [; it] may involve acquiring both physical skills and intellectual know-how” and can “take place either through personal contact or through consultation on the internet or the use of other ‘learning materials’”; and
  • For individuals who undertake “self-study”, this may constitute a criminal offence under art 134a depending “on the factual conclusions about the type of materials consulted, any link between the materials and in some cases on the frequency with which they are consulted” (para 2.2.2.).

Subsequently, the Supreme Court analysed article 134a and examined its drafting history, replicating pertinent parts of the bill’s explanatory memorandum and its memorandum of reply (paras. 2.3.1.-2.3.3.). The Court held that article 134a is connected to training for terrorism and that alleged acts carried out by a defendant require a connection to this training in order to come within the ambit of article 134a (para. 2.4.1.). In light of the legislative history, “training” is to be interpreted broadly as “‘acquiring knowledge or skills or imparting knowledge or skills to another person’” (para. 2.4.1.). Similarly, the Supreme Court rejected an argument that article 134a only addresses “acts that precede a criminal preparatory act … or that such acts must point to the following of instructions from which specific skills, methods or techniques for the commission of a terrorist offence are learned” (para. 2.4.3.).

The Supreme Court then upheld the Court of Appeal’s interpretation of the law and found that the Appellate Court had provided adequate reasons for its determinations (para. 2.4.2.). It took into account the Court of Appeal’s finding that “the purpose of the defendant’s activities … , when viewed in conjunction with one another … , was to obtain for himself the means and acquire the knowledge needed to make explosives and to become proficient in this skill by searching for information …. , in combination with the purchase of the raw materials for making an explosive” (para. 2.4.2.).

Accordingly, the appeal was dismissed. 

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Further analysis

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Instruments cited

Dutch Criminal Code

Council of Europe Convention on the Prevention of Terrorism, CETS No. 196 (2005)

Framework Decision of the Council of the European Union of 13 June 2002 on combating terrorism (OJ L 164), as amended on 28 November 2008 (OJ L 330). 

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Additional materials

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Social media links