ECLI:NL:RBDHA:2024:24038

1. The examination in court

The examination was held at the hearings on 14 February 2023, 25 April 2023, 27 June 2023, 22 September 2023, 12 December 2023, 8 March 2024 (all pro forma), 22 March 2024 (substantive hearing) and 12 April 2024 (closure of investigation).

2. The indictment

After amendment of the indictment at the hearing on 22 March 2024, the accused was charged with:

3. Introduction

4. Admissibility of the Public Prosecutor

Position of the defence

The defence took the position that the Public Prosecutor is inadmissible in the prosecution of the accused in respect of Counts 1 and 4 for acting contrary to the principles of due process, in particular the principle of equality and the prohibition of arbitrariness.

To that end, the defence argued that [name 1] was not prosecuted for pillaging and for placing and leaving [child 1] and [child 2] in a helpless state, although he was the initiator of the family's exit to Syria. Furthermore, he arranged the residences in Syria. Nor was [name 2] prosecuted for pillaging, although it can be inferred from the evidence in the case file that she presumably also stayed in (some of) the same residences in Tabqa and Raqqa as the accused.

There are therefore very similar situations, although [name 1] and [name 2] are not or are not being prosecuted for the same acts.

In the alternative, the defence requested that the Public Prosecutor be declared inadmissible with regard to Count 4 for the period to which the indictment pertains until 1 January 2021, as from that date the Public Prosecutor started prosecuting accused persons in respect of Article 255 of the Dutch Criminal Code (Sr).

Position of the Public Prosecutor

The Public Prosecutor has taken the position that the defence arguments should be rejected.

To this end, the Public Prosecutor argued that, on 19 July 2018, [name 1] was convicted in absentia by the Rotterdam District Court for participation in a terrorist organisation and for preparatory acts related to terrorist offences. The Public Prosecutor only revised its prosecution policy as of 1 January 2021, as a result of which, from that date onwards, suspects who travelled to Syria with minor children have been subject to prosecution. There is therefore no violation of the principle of equality. The Public Prosecutor referred to a judgment of the Rotterdam District Court dated 13 April 2023 (ECLI:NL:RBROT:2023:3082) in which a similar defence was rejected by the District Court.

With regard to the charge of pillaging, the cases of the accused persons [name 1] and [name 2] are, according to the Public Prosecutor, not comparable to the case against the accused, particularly with regard to the evidentiary position.There is therefore no violation of the principle of equality, nor of the prohibition of arbitrariness.

Judgment by the District Court

Pursuant to Article 167, paragraph 1, of the Dutch Code of Criminal Procedure (Sv) the Public Prosecutor is vested with the authority to independently decide, following a criminal investigation, whether to initiate a prosecution. According to established case law, this decision is subject to only very limited judicial review. A declaration of inadmissibility of the Public Prosecutor is possible only in exceptional cases, namely where the Public Prosecutor violates the principles of due process, such as the principle of equality or the prohibition of arbitrariness.

In the District Court's view, the present case does not constitute such an exceptional case.

With regard to the decision to prosecute the accused for violation of Article 255 Sr, the District Court finds that a change in the prosecution policy, viewed in isolation, does not constitute a violation of the principle of equality or of the prohibition on arbitrariness. The Public Prosecutor has sufficiently substantiated the reason for changing the prosecution policy. The arguments are therefore rejected.

The defence argument with regard to the decision to prosecute the accused for pillage is likewise rejected. The District Court does not consider the Public Prosecutor's argument that the cases are not comparable, partly due to differences in the evidentiary position, to be incomprehensible. It was argued that in the case of [name 2] no extensive chat messages or photos are present. In the case of [name 1], the evidentiary position likewise differs from that of the accused, partly because the accused's case file also contains additional evidence that could support the chat messages and photos. The assessment of such matters falls within the Public Prosecutor’s discretion in this area, which the District Court can only review marginally. In light of the foregoing, no violation of the principle of equality or the prohibition of arbitrariness has been established.

The Public Prosecutor is therefore admissible to prosecute the accused, including with regard to Counts 1 and 4.

5. Possible procedural irregularities in the preliminary investigation

Position of the defence

The defence has argued that the chat conversations between the accused's mother, [name 4], and the accused containing the messages, voice messages and photos were unlawfully obtained by the police and should be excluded from evidence.

In the alternative, it has been argued that a reduction of the sentence should be granted.

That position was based on the argument that there was no legal basis for provision of the chat messages after the termination of the Article 126v Sv agreement, and that this constituted a breach of Article 1 Sv.

Moreover, [name 4] was induced to provide information on the basis of a misrepresentation of the facts. She was under the assumption that the information would be used exclusively against [name 1] and not against her daughter. This violated the principles of due process. After the termination of the agreement, [name 4] was also not informed of her privilege to be excused from giving evidence, which is contrary to Article 217 Sv.

Moreover, [name 4] was a vulnerable witness who, for that reason, should not have been deployed by the police and prosecution authorities to gather information.

Finally, the way Article 126v Sv was deployed is not in line with the legislature's intention. As a result, a serious infringement of the accused's privacy has occurred within the meaning of Article 8 of the European Convention on Human Rights (ECHR), with the deployment of [name 4] not meeting the requirements of proportionality and subsidiarity.

Position of the Public Prosecutor

The Public Prosecutor submits that there was no procedural irregularity in the preliminary investigation against the accused. All information provided by [name 4] may be used as lawful evidence.

The basis for this claim is that after the 126v Sv agreement was terminated, [name 4] spontaneously and voluntarily provided information and chat messages to the police. Voluntary provision of information does not require a 126v Sv agreement: Article 3 of the Police Act provides a sufficient basis in that case.

Furthermore, from the beginning of the contact in September 2014, the police informed [name 4] about the consequences for her daughter of cooperating or not cooperating with the police and providing the information, whereby [name 4] was also made aware of her privilege to be excused from giving evidence. [Name 4] made it clear several times that she understood what the consequences could be for her daughter. While it is true that the purpose of the Article 126v Sv agreement was, in particular, to obtain more information and insight into [name 1], [accused] was never lost sight of as an accused in the process. This was also clear to [name 4], all the more so because she was assisted by a specialised lawyer throughout the entire process and her privilege to be excused from giving evidence was also pointed out at that time. There was no signal from this lawyer that there was something [name 4] did not understand. The police and judicial authorities observed a careful procedure. In view of this, there is no violation of the principles of due process.

Furthermore, [name 4]'s vulnerability was considered throughout the entire process. For this reason, among others, a criminal investigation psychologist was deployed, and she was assisted by a specialised lawyer. Moreover, [name 4] has always been able to decide for herself and has indeed decided whether, and if so, what information she provided to the police.

Finally, the detailed information that emerged from the chat messages is inherent to the facts charged. There is no violation of Article 8 ECHR.

Findings of the District Court

Factual findings

Based on the case file, the District Court finds the following facts and circumstances, in so far as relevant to the assessment of this defence.

On 4 September 2014, the District Public Prosecutor's office of East Netherlands initiated the criminal investigation under the name '[code name 1]', following the departure of the [family] family.

On 24 September 2014, [name 4] was interviewed by the police as a witness. In this interview, [name 4] was informed of her privilege to be excused from giving evidence and stated that her daughter [accused] had called her from Syria.1

On that same day, [accused] was formally identified as a suspect in investigation [code name 1].2

On 29 September 2014, the interview of [name 4] was continued, during which, as far as relevant, the following was discussed:3

R: On Friday, you called reporting officer [reporting officer 1] (). You also indicated that there had been further contact with [accused] on Thursday evening. ()

W: She sent a text. Shall I read out the message?

()

R

R: We draw up an official report of everything, and that will be used.

W: What does that official report entail?

R: Suppose they come back, then they will be arrested to interview them about what they have done there.

W: She does know that when she comes back that she will be sent down, as she puts it. She did say that once. She knew what she was getting into.

R: In any case, she will be arrested, and interrogations will take place, ultimately the Public Prosecutor and the judge will have their opinion on whether they should then be detained longer. In a case we can use the official reports, the interview we just had with you, which also involved that privilege to be excused from giving evidence. Like that bit of the WhatsApp conversation, those are things we can use to say: we have a conversation in which you indicate that you have been in Syria. So, you have to see that we do have to refute the information that way. [ ]

W: Yes, you can have it. When she comes back, she’ll just have to feel it. .

R: If they stay there and don't come back, the information is still interesting for us. Also to look at other people who want to leave, how can we prevent that. That concerns the public interest and does not directly relate to your daughter.

W: I'll just leave it at that, but you can have them. There are also photos included in case they’re of interest to you.

( )

R: You said, 'certainly with the children' but if they ever come back there might be consequences. If they are arrested, the children will have to go somewhere.

W: I also suspect she knows that. She just knows that. Also that she will be sent down or to jail or whatever.

In the period thereafter, conversations took place between the police and [name 4], both by telephone and in person, as recorded in the official reports dated 8 December 2014, 4 February 2015, 8 February 2015, 12 March 2015, 13 March 2015, 18 March 2015, 24 March 2015, 13 May 2015 and 17 June 2015. The case file shows that, in the interim, [name 4] provided the police (very frequently) with WhatsApp conversations as well as with image and/or audio material concerning her daughter and family.

According to the statement of reporting officer [reporting officer 2], the initiative for the contacts came from both sides.4 The contact with the police was desired and was initiated in particular by [name 4], as appears from several official reports.5

On the advice of the police, [name 4] sought psychological help since March 2015 (p. 197 [code name 1]). Furthermore, the police and judicial authorities proceeded to employ a police psychologist at some point thereafter.6

On 14 July 2015, an exploratory conversation took place between Public Prosecutor Kuipers and [name 4] about the intention to involve her in the collection of systematic information under Article 126v Sv.

An official report regarding this exploratory conversation set out the investigation in question, the persons identified as suspects, the information provided by [name 4] up to that point and the reason for proceeding with systematic information gathering. The following was related on this:7

‘It can be deduced from these conversations that [accused] has a good information position regarding what is currently taking place in the capital of IS/ISIL and what role [name 1] plays in it.

In order to gain more insight into this and to better interpret [accused's] involvement, I consider it in the interest of the investigation that members of the investigation team systematically gather information. Now that the contacts with [accused] and her housemate take place exclusively through Ms [name 4] aforementioned, the intention is to have Ms [name 4] assisted by members of the investigation team in this systematic information gathering.’

What was said about it in the conversation itself is reflected as follows in the official report:

‘During the conversation, I explained the investigative interest as shown above. I also formed a picture of the emotional bond that Ms [name 4] has with her daughter. In the course of the conversation, I asked Ms [name 4] if she would be willing to think about cooperating with the police by asking her daughter specific questions.’

Regarding the position of [name 4], the official report states:

‘In this case, however, the special circumstance arises that the citizen whose cooperation in the investigation is requested has a close and emotional relationship with the subjects of the investigation. In my opinion, this circumstance creates an independent interest for the citizen whose cooperation in the investigation is being requested to be taken into consideration in the assessment, whereby higher standards must be applied to the requirement of voluntariness. In view of this, I find it important that a specialist lawyer be appointed for Ms [name 4] in order to assist her and to safeguard her interest.’

It is also recorded in the official report that it was explicitly said to [name 4] that entering into an agreement does not affect her continued control over the content of the conversations during contact with her daughter and her daughter's housemate and that cooperation can be terminated at any time.

In response to written questions from the examining magistrate about this exploratory interview, Public Prosecutor Kuipers stated that, in the conversation he warned [name 4] that any information obtained through her assistance could also be of interest in the case against her daughter.8

In his examination before the examining magistrate on [day of birth 4] 2024, the Public Prosecutor noted the following about [name 4]'s position:9

‘The reason that the agreement came about is that the investigative authorities observed contact between someone who had remained in the Netherlands and someone at the heart of the conflict zone. That was the contact between mother and daughter. For the investigative authorities, especially at that time, that was an excellent opportunity to obtain information from the heart of the conflict zone.’

‘() from 2012, [there were] mainly concerns about male individuals who travelled to a conflict zone. During the period in which this took place, one saw that the awareness was growing regarding the role women played in the Islamic State, so the fact that we were mainly concerned about the role that [name 1] had is one thing, but that does not alter the fact that Ms [accused] was also the subject of the investigation. After all, the contact took place with her. Therefore, what she said about herself fell fully within the criminal investigation.'

‘What I saw in the contact between the police and Ms [name 4], are two things that demanded my attention. The first is that of a mother who had remained behind and had placed great hope in the police to get her daughter back, how unrealistic that hope may have been. And on the other hand, I had detectives who of course saw a relevant lead in the screenshots of WhatsApp conversations that Ms [name 4] showed. In that contact that had grown, there came a moment when I felt that the boundaries of Article 3 of the Police Act came into play. At that stage, being the police, you find yourself in the situation, as it were, where targeted questions are being asked, and if such questioning regarding a private exchange between mother and daughter continues for a long time and with intensity, then in my view it exceeds the scope of Article 3 of the Police Act. That was the reason why we proceeded to formalise the arrangement through an agreement, and I deemed it necessary to involve a behavioural expert in order to appropriately balance the two interests () within the investigative process..'

A few hours after the conversation between the Public Prosecutor and [name 4], [name 4] called and indicated that she was willing to have the conversation with a lawyer. After having been advised by that lawyer, [name 4] indicated her willingness to cooperate.

Subsequently, the Article 126v Sv agreement was drawn up in consultation with [name 4]'s lawyer. It was concluded on 19 August 2015 and agreed for the duration of three months.10 [Name 1] is identified as the sole accused. In addition, point 4 states:

‘Contracting party [ [name 4] ] shall maintain contact with the aforementioned suspect, his immediate circle, spouse, housemates or associates (whether or not via social media), in order to obtain information regarding the actions of the aforementioned suspect and/or co-suspect(s)’.

Annexed to the agreement is, among other things, the legal text of Article 217 Sv, which contains the privilege to be excused from giving evidence.11

As a result of the agreement, an application for the systematic information gathering order [accused] and [name 5] was filed on 27 August 2015.12 This states, among other things:

‘Since it cannot be ruled out that in the execution of the agreement within the meaning of Article 126v, information will be obtained about [name 1]'s partner, namely [accused], and taking into account that she is also a suspect in this investigation, this order also relates to obtaining information regarding her involvement.’

On that same day, the order is issued, in which both [accused] and [name 5] are designated as suspects.13

The criminal investigation carried out under the agreement is separately placed under an investigation called '[code name 2]'.

On 20 September 2015, the following WhatsApp conversation takes place between [name 4] and the suspect,14 in which [name 4] writes the following:

‘I don't think the kids will be taken away as long as you just adjust to Dutch things like school and so on again then it will come eventually

( )

But if you just tell it went like this, they can't do anything to you

Only you will be interrogate and with this situation you will get nothing.’

On 25 September 2015 and 5 October 2015, the police informed [name 4] that she determines what information she does and does not want to share with the police.15

Late October 2015, the police informed [name 4] of their intention to terminate the agreement due to the safety of [name 4].16

On 27 October 2015, the Public Prosecutor decided to terminate the 126v Sv agreement with [name 4].17 She was informed of this that same day. A final conversation took place on 4 November 2015.18

On 6 November 2015, telephone contact took place between the police and [name 4], following a text message from [name 4] to the police.19 Also on 13 November 2015 and 4 December 2015, contact was again initiated by [name 4], in which she provided information.20 Ultimately, contact took place until January 2021.

The findings of the District Court

Legal basis for the provision of chat messages after termination of the 126v Sv agreement?

Article 126v Sv allows the Public Prosecutor to order, in the interests of the investigation, that an investigating officer agrees with a person who is not an investigating officer to assist the investigation by systematically gathering information about a suspect for the duration of the order.

Only if there is systematic information gathering does Article 126v Sv apply. The purpose is to obtain a more or less complete picture of certain aspects of a person's life. According to established case law, the determining factors for this are the duration, intensity, location, frequency, purpose and whether or not a technical aid is used. In addition, there must be active police involvement, which may consist of, for example, initiating the actions of a third party, or facilitating or assisting that third party's conduct. The authorities' contribution must be substantial.

The overview presented above shows that the police wanted to actively deploy [name 4] in the summer of 2015 to gather more information about [name 1] and the accused, as the contact between [name 4] and the accused offered an excellent opportunity to do so. In this regard, it was rightly and timely recognised that this active deployment went beyond the general tasking power of Article 3 Police Act 2012, and a 126v Sv agreement was concluded.

Even after termination of the agreement, [name 4] shared the content of the chat messages with her daughter and provided them to the police for several years, namely in the period from 6 November 2015 up to and including January 2021. Although the frequency and intensity of these chat messages declined to an increasing extent compared to the preceding period, there were years of provision of information that gave the police a more or less complete picture of certain aspects of the accused's life during the period in question.

However, the District Court cannot establish that this picture was obtained through active police involvement. The case file shows that [name 4] was troubled by the termination of the agreement and that, a few days later, on her own initiative and spontaneously, she still passed on the content of the conversations with her daughter and forwarded the chat messages to the police. She continued to do so in the period thereafter. There are no indications in the case file that the police and judicial authorities gave any substantial direction to [name 4]'s actions. Therefore, based on the case file and the hearing, the District Court cannot establish that in the period after the termination of the agreement the police and/or judicial authorities initiated or facilitated [name 4]'s actions.

The examples provided by the defence do not lead to different findings, as they were either within the term of the Article 126v Sv agreement or did not relate to the accused's actions.

The above leads the District Court to conclude that, once the active deployment from the police had ended, it was possible to fall back on the general basis of Article 3 of the 2012 Police Act. Even after the termination of the Article 126v Sv agreement, there remained a legal basis for the contact with [name 4]. In the opinion of the District Court, there was therefore no violation of Article 1 Sv.

Induced to provide information under a misrepresentation of the actual state of affairs?

In the opinion of the District Court, the facts and circumstances mentioned under 5.3.1 do not in any way show that a misrepresentation of the actual state of affairs was made on the basis of which [name 4] shared the information and chat messages with the police. Nor does it show that [name 4] should have assumed that the information would not be used against her daughter.

In an initial conversation, [name 4] was made aware of her privilege to be excepted from giving evidence, while she was also told in a follow-up conversation what the police would do with the information she provided. That [name 4] was aware of the possibility that also her daughter could be prosecuted is evidenced by her comments that her daughter knew that she would be sent go to jail and that she should feel it.

At the time of exploring the possibility of an Article 126v Sv agreement, the police appointed a specialised lawyer for [name 4], who represented her interests and assisted her until the termination of the agreement.

The mere fact that in the Article 126v Sv agreement only [name 1] was identified as a suspect is insufficient to conclude that [name 4] could reasonably assume that her daughter was not the subject of investigation and possible prosecution, given the conversations that took place during the drafting of the agreement: both the reporting officers with whom [name 4] had contact, and the Public Prosecutor explicitly pointed out this possibility to her and even warned her of it. Furthermore, the fact that the agreement refers to information gathering in relation to the suspect and ‘co-suspect(s)’ indicates that [accused] could indeed be subject to investigation and prosecution. [Name 4] was expressly informed of her privilege to be excepted from giving evidence, as evidenced by the inclusion of the text of Article 217 Sv as an annex to the agreement.

Given that [name 4] was assisted by a lawyer, it must have been clear to her that the information her daughter gave her about herself was also part of the investigation. That [name 4] was also aware during the term of the Article 126v Sv agreement that her daughter was in the crosshairs of the police is evidenced by her comments to her daughter in the chat conversation of 20 September 2015 (‘if you tell them it went like this, they can't do anything to you, you will be interrogated but with this situation you will get nothing’).

That the attention of the police and judicial authorities at the time focused mainly on [name 1] was a policy choice and does not detract from the fact that [accused] also continued to be regarded as a suspect, as, in addition to the above, is evident from the order issued after the agreement was concluded.

Furthermore, the District Court is of the opinion that, also with regard to the period after the termination of the Article 126v Sv agreement, there was no misrepresentation of the actual state of affairs. The defence did not present any facts and circumstances that could lead to that conclusion. The fact that [name 4] was not reminded again of her privilege to be excused from giving evidence is insufficient for that purpose, considering the fact that she had been reminded of it several times before. The fact that [name 4], following the (alleged) death of [name 1] (which the District Court understands occurred in 2019), is said to have asked the police what would happen to the information provided, cannot, in light of the above considerations regarding [name 4]’s knowledge, in itself lead to that conclusion.

Finally, the District Court also cannot conclude from the case file that [name 4] was incited to lie to her daughter about her contact with the police. The remark cited by the defence, dated 29 September 2014 (‘We do think that, at the moment you say that you had contact with us, I think the contact may possibly be terminated. That has been our experience.’) is, given the context of the conversation, insufficient to reach such a conclusion.

Therefore, in the opinion of the District Court, there was no question of acting contrary to the principles of due process. Nor was there any violation of the privilege to be excused from giving evidence.

Should [name 4], as a vulnerable witness, not have been deployed?

The facts and circumstances presented under 5.3.1 show that the police and judicial authorities were aware of the fact that [name 4] was a vulnerable witness. In this regard, the District Court points out that, in March 2015 [name 4] was advised to seek psychological support, that a police psychologist was consulted by the police, that [name 4] received assistance from a specialised lawyer and that Public Prosecutor Kuipers made statements to this effect. Furthermore, the police indicated on several occasions that if [name 4] did not want to forward conversations, she did not have to.

The District Court is of the opinion that the police and the judicial authorities recognised [name 4]'s vulnerable position at an early stage and subsequently built safeguards into their contact with [name 4] so that they could deal with [name 4] and her interests in a careful manner. As also acknowledged by the defence, the contact with the police was highly desired by [name 4]. The case file contains no indications that the police would have acted carelessly in this respect, nor that [name 4]'s vulnerability would have meant that she could not voluntarily make the choice to cooperate (or not) with the police.

In this regard, the District Court reiterates that the case file correctly shows that [name 4] voluntarily provided the information to the police and that there was no active interference to a substantial extent from the side of the police and judicial authorities.

Accordingly, no violation of any rule of law or the principles of due process has been found.

Article 126v Sv not applied as intended by the legislature, and violation of Article 8 ECHR?

Article 126v Sv provides a specific legal basis for the use of informants. Contrary to the argument advanced by the defence, it is explicitly consistent with the legislative history of Article 126v Sv that information provided by a civilian, at the instigation of the police and judicial authorities, may serve to build a more or less complete picture of certain aspects of the life of a suspect, in this case [name 1] and the accused.

In this regard, the legislature noted the following in the explanatory memorandum:21

‘The question is whether the use of informants for the purpose of criminal proceedings is contrary to the right to respect for private life. In general, this is not the case. Only where information is gathered systematically about an individual does the risk arise that that person's privacy may be infringed, for which a legal basis is required. For that reason, only this specific scenario is governed in Article 126v.’

()

Services provided by an informant other than the systematic gathering of information about a person () do not require an order within the meaning of Article 126v. Such a request will not affect privacy. Nor does Article 126v cover gathering data on one's own initiative and providing it to the police.

()

The question may arise as to when an informant is considered to be acting in the manner described in Article 126v. As mentioned, if the informant informs the police on his own initiative, without this being based on an agreement between him and the police, this does not fall under the regulation. From the moment the police asks him to continue to systematically gather information about a person, this changes and the deployment of an informant within the meaning of in Article 126v exists.’

Furthermore, contrary to what the defence put forward, during the Article 126v Sv agreement, the police and judicial authorities focused on gathering specific information, as intended in that article. After all, the purpose was to obtain more information about [name 1] and the accused and how they lived within IS territory, now that they were in the centre of the caliphate and the conflict zone. The fact that this ultimately included information that was not so much relevant to that purpose does not detract from this.

Article 126v Sv has, evidently, been characterised by the legislator as a ‘less intrusive power’. If a large amount of relevant material is subsequently obtained through the deployment of that power, this does not mean that, for that reason alone, this power should not have been deployed. After all, the use of a power is independent of the material obtained through it, as long as the legal requirements applicable to that power are met. As previously set out, no violation thereof has occurred. The argument put forward by the defence that application of Article 126m Sv would have been more obvious, is for that reason alone not valid. Moreover, the District Court does not consider this to be relevant, as it is for the Public Prosecutor to determine which powers to exercise, provided that he acts in accordance with the law and the applicable legal requirements.

With regard to Article 8 ECHR, the District Court considers the following. For the period during which the power under Article 126v Sv was deployed, and information was gathered by a civilian at the instigation of the police and judicial authorities, there has been, in view of its systematic nature thereof, an interference with the accused's right to privacy as referred to in Article 8, paragraph 1 of the ECHR. The inference with the right to privacy must, however, be regarded as relatively limited, given the duration of the agreement of approximately 2.5 months. Furthermore, the interference is foreseen by law, as the power to do so is laid down in Article 126v Sv and the requirements of this article have been met. The District Court further deemed the interference necessary in the interest of national or public security and the prevention of criminal offences. There was no less intrusive interference in the accused's private life open to achieve a comparable investigation result and the interference was relevant and sufficient. In the opinion of the District Court, there has therefore been no unlawful interference by the public authorities with the accused's private life within the meaning of Article 8 ECHR.

Insofar as the defence has sought to argue that there would be a violation of Article 8 ECHR because [name 4] shared the content of the conversations with her daughter and the chat messages with the police prior to and after the termination of the Article 126v Sv agreement, the District Court is of the opinion that there was no interference by the government within the meaning of Article 8 ECHR here.

Conclusion

The District Court concludes that there has been no unlawful acquisition of evidence. No rule of law was violated, nor were there any procedural irregularities in the preliminary investigation into the accused. The chat conversations containing the messages, voice messages and photos between [name 4] and the accused may therefore be used as evidence.

6 Decision on the evidence

Position of the Public Prosecutor

The Public Prosecutor has taken the position that the offences charged under Counts 1, 2, 3 and 4 can be deemed legally and convincingly provable, with the qualification that, with regard to Count 1, the Public Prosecutor considers the period to which the indictment pertains up to 27 April 2017 and, with regard to Counts 2, 3 and 4, the period to which the indictment pertains up to 1 February 2019 to have been legally and convincingly proven.

Position of the defence

The counsel has pleaded acquittal of the offences charged under Counts 1, 2 and 3 for lack of legal and convincing evidence.

Regarding Counts 2 and 3, the counsel alternatively pleaded acquittal for the period to which the indictment pertains from 1 February 2019.

With regard to Count 4, counsel has deferred to the District Court's finding, with the understanding that, in his opinion, the charged offence can be legally and convincingly proven until 1 February 2019. From the remaining period to which the charges pertain, the accused should be acquitted.

To the extent necessary, the District Court will address the defence's arguments below.

Evidence used

In the annex, the District Court has included the lawful evidence along with the facts and circumstances that form the basis for the declaration of charges proven.

Evidentiary considerations

General evidentiary defence submitted by the defence

The defence argued that the accused was not always the one who sent the chat messages to [name 4] and that some of the messages, particularly the incriminating ones, were sent by [name 1] to [name 4].

Furthermore, counsel argued that the accused was not always free to chat with [name 4] and that she also sent certain messages on the instructions of [name 1], as she was checked by [name 1] on each occasion.

The District Court sees no reason to assume that some of the (incriminating) chat messages attributed to the accused by the police were not sent by the accused but by [name 1] to [name 4], or that the accused would not have written them at liberty.

The content, context and wording of the chat conversations with [name 4] show that these chat messages were conducted in a confidential and personal setting between a mother and a daughter. They consist largely of ongoing conversations about day-to-day matters, with responses being exchanged within short intervals. The accused did not dispute that she sent most of these messages herself. The District Court does not find it plausible that precisely a few incriminating messages against the accused, which occurred in the midst of such conversations, were sent by [name 1] or at [name 1]’s instruction, while similar messages were sent between mother and daughter again shortly before and after.

Moreover, it can be inferred from the chat messages that some of the (incriminating) messages were sent while [name 1] was absent at the time, whether or not for a longer period. It is true that there are indications in the chat messages that [name 1] was checking and keeping an eye on the accused from time to time, but it can also be deduced from the chat messages that the accused had found a way to maintain free and undisturbed contact with [name 4] via the chat. The District Court refers, among other things, to the messages in which the accused and [name 4] had agreed on a code in the chat messages to verify their identity and to the fact that in the chat messages between the accused and [name 4] it was expressly discussed that the messages sent between them should be deleted.

The defence's argument is therefore rejected. The District Court accordingly proceeds on the basis that it was the accused who sent the chat messages to [name 4], which the District Court has relied upon as evidence.

Factual findings

On the basis of the evidence included in the annex, the District Court establishes the following facts and circumstances, insofar as relevant.

The accused converted to Islam when she was 16. At 18, she met [name 1]. Shortly afterwards, they married under Islamic law. They had two children together, namely [child 1], born on [day of birth 2] 2008, and [child 2], born on [day of birth 3] 2010.

At the end of July 2014, the accused informed [name 4] that the family would leave for Morocco because [name 1]'s faith had grown stronger.

On 12 August 2014, the accused left with [name 1] and her two children [child 1] and [child 2] not for Morocco, but for Turkey, in order to subsequently travel on to Syria. At the time of departure, [child 1] was five years old and [child 2] was four years old. The accused was also pregnant with their third child. Later, the accused had two more children in Syria, namely [child 3], born on 8 February 2015 in Tabqa, and [child 4], born on 29 September 2017 in (AI-)Mayadin. Tabqa was controlled by IS at the time of [child 3]'s birth. In the period from January 2017 up to and including October 2017, IS's headquarters was located in (AI-)Mayadin.

On 29 August 2014, the [name 1] family arrived in Raqqa, after travelling for several days and routes in and through Turkey towards the border area with Syria.

[Name 1] joined IS immediately upon arrival in Syria and pledged allegiance to the group. In one of the photos in the case file, [name 1] is pictured with a man wearing a black knitted hat bearing 'the seal of Mohammed', as used in IS's flag at the time. In another photo, [name 1] can be seen holding a weapon similar to a Kalashnikov AK-47 in his left hand. His right index finger is raised (finger of Tawheed). Also present in the case file is a sworn translation of a transfer request in the Arabic language from the ‘Diwan al Jund’ (ministry of the army) of IS. The transfer request entails a request to transfer '[nickname 2]', identified by the police as [name 1], to the ‘Al-Qadisssya Battalion’. The reason for the transfer request is that 'Abu Muhammad al-Hollandi' feels like participating in the conflict.

On 23 September 2014, the accused told [name 4] in a telephone conversation that she was not in Morocco, but in Syria, and that she had initially spent several weeks in a 'madafa', a women’s house. The accused stated that [name 1] was, at that time, at a training camp, which was mandatory for all newcomers: 'First two weeks to assess whether he adhered to Islam and to check whether he wasn't a spy, followed by four weeks to learn how to handle firearms'.

During this phone call, [child 2] came on the line briefly and told [name 4] that he wanted to go home.

On 25 September 2014, the accused confirmed in WhatsApp contact with [name 4] that she had already known in the Netherlands that the family would travel out to Syria. When asked why she went to Syria, the accused replied that it was for faith:

‘Yes because Islamic rules apply here.. stealing hand off.. cheating whipping no smoking no alcohol or disco. Women are not allowed to walk around naked. () If it were actually that bad, why d sooo many people come here from outside. To live here according to islaam.. only if you really believe in the Qur'an and follow the Islam you can understand that. Even his parents don't understand that because they are really not involved with Islam at all. [name 6] slept here yesterday with me and now he is also here.. today he is going to look for our own little house. And then he can come to home every day from training. So that's also positive if I was still in rakkah I couldn't see him for a month. He arranged for me to come here ...You have everything here and can buyeverything it's cheap here.. haha a durum costs 1 euro.. and if the baby comes we get 800 dollars for getting stuff.. we pay no rent and everything we get from the dawla. (The Muslims here) from IS. so if they were actually that bad would they do that. You can sign up if you want to fight yes or no. If yes you get a weapon.. if not then you just live as a normal citizen.. also the story’s you hear about being forced to blow yourself up.. is not true. You can sign up if you want to do that.. and indeed there are people who do that. But what I mean by it is that there is no coercion.. you are not forced into anything. And passports we simply still have.. so is also myth that you have to hand that in.. that's the bad thing that they talk so badly about dr islaam and the IS and have absolutely no knowledge of what things are really like here.’

On 29 September 2014, [name 4] stated in a police interview that the accused had clearly chosen to go to Syria and stay there. Furthermore, according to [name 4], the accused knew that, upon her return, she 'would go to jail’. According to [name 4], the accused knew what she was getting into.

On 27 October 2014, the accused messaged [name 4] via WhatsApp that the family would possibly be given another ground- or second-floor residence the next day by someone from the city who arranged houses. At that time, the family was staying in Tabqa in a fourth-floor residence. The accused indicated that there were enough shops nearby where she could get groceries or buy clothes and that she had enough money. The accused also informed that she received potatoes and rice from IS, among other things, and that she did not need to buy such articles herself. She was not watched by IS people during [name 1]'s absence and there were also plenty of women walking around outside. Furthermore, in that conversation, the accused informed that [name 1] had only attended the training camp for twenty days because he had broken his leg during an exercise, and that if he had not broken his leg, he would have been sent to the fight in Kobani. [Name 1] himself wanted to undergo more training, before being sent to a fight.

From a conversation between the accused and [name 4] on 29 October 2014, the accused revealed that she had spoken to [name 1] about Syria before leaving and that she knew the country is at war.

In a later conversation on 15 November 2014, the accused told [name 4] about her departure abroad. She further indicated that [name 1] would be allowed to choose whether he wanted to fight but that this was not possible now anyway ‘with his leg’ and because she was pregnant.

During the period from 16 to 18 November 2014, the accused wrote to [name 4] that they did not pay rent and that ‘they’ came to bring food once a week. They also did not have to pay for power.

In several conversations on 18, 20, 21, 25 and 27 November 2014 with [name 4], the accused informed that they had to move to another house in the same city but in a different neighbourhood. The accused further stated that the house they were staying in had been arranged by [name 1] through intermediaries, however, the individuals who arranged the houses wanted the house, because they had evicted those Syrian people from the house. Therefore, the house belonged to them. A judge also ordered [name 1] to vacate the house.

On 4 February 2015, [name 4] was visited at home by the police. [Name 4] stated having daily contact with the accused and that [child 1] and [child 2] had cried for over an hour and a half the week before because they wanted to go back to the Netherlands, especially [child 1], but that the accused did not feel like returning to the Netherlands because she was afraid her children would be taken away from her. Furthermore, the accused followed a lot of news on the internet and was well informed about the issues surrounding Syria.

On 10 February 2015, the accused told [name 4] via WhatsApp that she might want a fourth child because she was getting money for each child anyway. The accused explained that she would then receive extra money each month for the living expenses.

On 27 February 2015, the accused sent a message via WhatsApp to on the stating that she 'could return to Holland at any time but does not want to.'

On 2 March 2015, the accused informed [name 4] that three bombs had fallen during the night at a distance of three kilometres from where the family was staying. The accused further indicated that they could hopefully get a ground-floor residence soon. It was yet to be found out if anyone lived in that residence. According to the accused, one could, if a house appeared to be vacant, request to be given that house.

On 4 March 2015, the accused wrote that [name 1] was fed up and had ‘taken' the house. They wanted a ground-floor residence and were told that no houses were available, while according to the accused, there were. The reason was, ‘Because there is a rotten syrian in there who's never there’, ‘those syrians here take everything every x [. . .] Rotten people’.

In the succeeding period, the accused spoke to [name 4] about this residence. The accused indicated that it was a large residence on the ground floor with five rooms. The residence was located in Raqqa and the accused was glad they were no longer on the fourth floor. The accused was busy furnishing the residence.

On 6 March 2015, [name 4] asked the accused if she and [name 1] had to do something in return ‘Now that you got that house from the is state again’. The accused responded that everyone is entitled to a house.

On 7 March 2015, the accused sent [name 4] a message via WhatsApp that she was receiving forty dollars per child each month in Syria, in addition to ‘something like 300 dollars’ per month.'

On 19 March 2015, the accused sent [name 4] a message via WhatsApp that they had to move again because a ‘syrian who is also with the dawla' wanted the residence for his second wife. This man had done a lot for ‘Dawla’ in the beginning, ‘Weapons and cars when they had won from assad’. The family was still waiting for a new residence, preferably on the ground floor.

19 Mrch, 16:24 The accused: Is just heavy nonsense I hate that so much about here.

19 Mrch, 16:24 - The accused: That's just the muslims who ruin everything.

[. . . ]

19 Mrch, 16:25 - The accused: Those syrien men then joined dawla only because they have nothing

19 Mrch, 16:25 - The accused: And ruin everythng

19 Mrch, 16:25 - The accused: I had syrien people

19 Mrch, 16:25 - The accused: Are really rotten people

19 Mrch, 16:25 - The accused: Who have no fear of god

19 Mrch, 16:26 - The accused: And only think about worldly things

[]

19 Mrch, 16:27 - The accused: But those rotten syrians take and can get away with anything if they are with dawla.

The accused further indicated that everyone who came from outside, belonged to ‘Dawla’ and was financially supported by ‘Dawla’.

On 22 March 2015, the accused said that due to the housing problems, they wanted to move to Raqqa, where there was power all day. They could rent a residence there through an estate agent for 40 euros a month, while they were now paying nothing.

On 25 March 2015, the accused stated that the family had been given another house. This was a house in a different neighbourhood five minutes from the previous house. The accused described the house as being on the ground floor and that no one lived upstairs.

On 3 April 2015, the accused informed that she was in the middle of a move and that the family might actually move out during the week. The accused indicated that ‘they had to move out of the previous residence'. The accused further informed that [child 1] ‘has become naughty’. She scolded the accused and fought constantly with [child 2]. The accused punished [child 1] but that did not help.

On 7 April 2015, the accused sent [name 4] a message via WhatsApp that she would go and look at the new residence herself that day. This contact revealed, among other things, that the new residence was disappointing. The sewer was clogged, it stank and there was water in the walls. Also, all belongings were in the garden as they had to leave the previous residence quickly. The accused indicated that they ‘didn't even have a normal house’. They were going to talk to ‘those people’ and would otherwise leave ‘Dawla’. That would mean that they would no longer receive money and ‘rent a little house' themselves’. [Name 1] would have to work just like in the Netherlands.

The accused also indicated in this app conversation that ‘Dawla’ was not bad and that the people living in Syria were ‘just rotten people’. The accused explained that the new residence, which she went to look at, had belonged to non-believers who were fighting for Assad. The non-believers had fled when ‘Dawla’ arrived. The accused stated that the house had been luxurious before the arrival of ‘Dawla’.

The accused further wrote that before ‘Dawla’ arrived, the situation was not good. Raqqa was a city of whores where everyone cheated and there were alcohol and drugs. That is why the people had fled from ‘Dawla’.

Finally, the accused stated that they were returning to the old house and that [name 1] had, by that time, seen the big boss of Tabqa. This man was a sort of mayor. The man would engage in conversation with ‘the man of the houses’. If they had to leave the residence they were going to ‘get away from Dawla and simply live without them’.

On 9 April 2015, the accused stated that the new home was ‘nothing’. [Name 1] would have to go to Raqqa and live there. The accused indicated that she first wanted to ‘Just wait and see what kind of house they want to give us and what kind of work he has to do there'.

On 10 April 2015, the accused stated that she was still living in the house where ‘they want to get us out of’. The accused also stated the following:

'Still don't know what kind of house we will get now. But he just wants to keep living in Syria. But he says the Syrian people who are in dawla are rotten. Because in raqqa you don't have so many syrians who have something to say. And we are going to file complaint against the people from here and that will be sent directly to that bagdadi’.

On 11 April 2015, the accused stated that the accused and [name 1] did not want to leave the house for the time being. The accused also stated that [name 1] 'would be doing a kind of work with the police in Raqqa’. [Name 1] would go to work to ‘monitor people who smoke and do bad things and then arrest them’.

The accused stated that she would also like to do this work, but that she did not speak Arabic.

At the time of these messages, [name 1] was employed by IS in Raqqa and working with the ‘Hisba’ (the morality police).

On 16 April 2015, the accused wrote via Telegram to [name 4] that the family had been given a house nearby on the ground floor. The house was big and beautiful. It did need refurbishing, but ‘people’ were going to do that. [Name 4] asked the accused if they didn't have any new construction there. The accused replied, ‘Hahah no if only it were such new construction. They do have. But don't give them to People Only those high people or syrian people take those.’

Between 17 and 19 April 2015, the accused wrote to a question from [name 4] that she did not think she would ever return. The accused explained that ‘it is obligatory for every muslim to move from a non-believing country to a believing country, where the laws of Allah apply.’

The accused further stated that [name 1] would leave the next day for ten days because of a training course in Raqqa. According to the accused, this training consisted among other things of acquiring knowledge of Islam in order to subsequently be able to address people. Upon completing of the training, [name 1] was permitted to begin working.

The accused also stated that [child 3] was startled because ‘bombs had been thrown’. The accused was home alone with the children. The children had been at home for a week and were not attending school.

Between 22 and 24 April 2015, the accused messaged [name 4] via WhatsApp that [child 2] was accompanying [name 1] to work for a few days.

On 4 May 2015, the accused informed [name 4] that [name 1] was away for several days for work in Raqqa and that [name 1] might be able to get a residence again in Raqqa. The accused was hesitant to move back to Raqqa because there were still too many bombs falling there.

Between 11 and 13 May 2015, the accused told [name 4] that she was in Raqqa and had gone into the city with [name 1]. The accused then sent messages about a friend with whom ‘they’ had lived for five months. Her friend's husband had died 25 days earlier in a battle.

On 17 May 2015, the accused stated that she had moved to the new house. The house was located on the same street where the accused had already been residing, and she expressed the hope of staying here ‘forever’.

Between 18 and 20 May 2015, the accused wrote to [name 4] about her departure from the Netherlands at the time that it had been a matter of ‘Are you coming along to Syria or not?’. The accused stated that the decision for her departure had been made within three weeks. [Name 1] had decided within a month that he would go to Syria. The accused indicated that [name 1] had already booked for himself, after which the accused followed him.

The accused indicated that she had to make a choice: ‘Stay in the Netherlands or come along'.

When [name 1] booked a ticket, the accused initially did not want to join him. The next day, the accused asked [name 1] if he would also book for her. The accused knew where they were going. The accused indicated that it had been [name 1]'s intention to fight in Syria, but this was no longer possible after he had broken his leg.

Between 20 and 21 May 2015, the accused stated that ‘shots had just been fired’ and that [name 1] went outside to ask what was going on. A victory was being celebrated, which had apparently been achieved in Iraq. The accused informed that [name 1] responded by taking his weapon from his car. The accused further stated that ‘we' had possessed a weapon since ‘we’ had been in Syria. The accused stated that she also had a weapon for self-defence, a Kalashnikov. The accused found this weapon ‘too big and heavy’ and preferred a handgun. The accused also stated that she had ‘shot for the first time’ and found it ‘pretty cool’.

Between 25 and 26 May 2015, the accused messaged [name 4] via WhatsApp that a water supply had been bombed in Raqqa, leaving the city without water, and that [name 1] had to leave again the next day for a few days. The accused indicated that she might be staying with a friend, a woman from the Netherlands. According to the accused, the bombings and the enemy were getting closer and closer and everyone had to be on standby, even doctors.

Between 29 May 2015 and 1 June 2015, the accused stated that she was still staying with a friend. The accused mentioned that she was also in contact via WhatsApp with other girls who were staying in Raqqa. The accused informed that her friend had arrived in Syria just two weeks earlier, had come with two children, and was originally from [place 2].'

On 1 June 2015, [name 1] had contact with the accused's brother via WhatsApp. [Name 1] stated that he worked with the police in the capital Raqqa. He stated that he was engaged in surveillance operations and raids (in houses). [Name 1] explained that he patrolled by car, arrested criminals and occasionally issued fines. [Name 1] further stated that he worked 15 hours a day and that it was very busy at his work.

On 2 June 2015, the accused told [name 4] that she knew that bombs could fall on the location where the family was staying.

On 2 June 2015, the accused messaged [name 4] via WhatsApp that [name 1] had to work a lot. The accused stayed with her friend during his absence. According to the accused, her friend had travelled to Syria ‘for the islam’. The accused also stated that [name 1] had almost been selected that day to go and fight in Kobani, near the Turkish border. The accused stated that [name 1] had wanted this for a long time. [Name 1] had come home to say goodbye and several photos were taken together. The accused was emotional as the photos might have been the couple's last moment together. A few hours later, it turned out that [name 1] had not been selected that day to fight. Ten other brothers had been chosen, which meant that [name 1] could return home.

Between 3 and 5 June 2015, the accused told [name 4] that [name 1] had been married for three weeks to the ‘brown woman from [place 2] ‘. [Name 1] was with her in Raqqa at the time. The second wife had a home of her own for her and her children.

Between 8 and 10 June 2015, the accused wrote to [name 4] that [name 1] would probably get a transfer to Tabqa, where the accused lived. The accused thought it was ‘ok’ that [name 1] had a second wife because it was in the Qur'an. The accused stated that she had previous contact with [name 2] before [name 2] married [name 1] and became his second wife.

The accused further stated that problems had arisen between her children and the children of a friend. [Name 1] was even approached by a brother concerning the behaviour of [child 2]. The accused was upset that there was always something going on with her children. The accused stated that ‘her children had really changed in Syria, they weren't like that in the Netherlands'.

Between 15 and 16 June 2015, the accused told [name 4] that there was fighting at the borders and that the borders were closed.

Between 17 and 19 June 2015, the accused messaged [name 4] via WhatsApp that [name 1] would be spending the night with her. [Name 1] had ‘taken the big house in Raqqa with 5 rooms’ and the accused indicated that renovations and cleaning were underway. The accused expected to move into the new house in Raqqa within a month. The house has a balcony and is located in the city centre.

Between 19 and 21 June 2015, the accused wrote to [name 4] that she was already in Raqqa in the new house. The accused lived together in the new house with the second wife and her children.

Between 24 and 25 June 2015, the accused told [name 4] that [name 1] was getting money from ‘Dawla’ to support his second wife.

In July 2015 in Raqqa, the accused had contact with [name 3], from Belgium. [Name 3] was also living in Raqqa at the time and was at that time heavily pregnant by her husband named [name 7] (hereinafter: [name 7]). [Name 7] was originally from Maaseik and was killed in July 2015 in Tell Abyad in Syria while fleeing from PKK fighters.

Between 1 and 3 July 2015, the accused messaged [name 4] via WhatsApp that she was with her friend at that time. The accused further informed that her friend's husband had died shortly before on 29 June 2015, during a battle 45 kilometres away from them. The accused indicated that this friend had been living in Syria for a year and that her husband was a Moroccan, like [name 1].

Between 3 and 6 July 2015, the accused stated that her friend was very young and broken ‘with grief'. [Name 1] had asked the accused to stay with her pregnant friend that day as many sisters were expected to visit. The accused stated that [name 1] was helping her friend with everything and also arranging money.

Between 10 and 12 July 2015, the accused wrote to [name 4] that she missed Tabqa, but that ‘they still have the house there’. Her friend from Maastricht was living there temporarily. After a brief conversation about planes and bombs, the accused again indicated that the children were scared and that [name 1] had not forced her to go with him.

Between 14 and 16 July 2015, the accused messaged [name 4] via WhatsApp that [name 1] was looking after her Belgian friend in the meantime. According to the accused, [name 1] did shopping and everything for her. Finally, the accused stated that she did not want to leave as long as [name 1] was alive. The accused had gone with [name 1] for the sake of the children. The accused was afraid that the children would be taken from her on her return.

The accused further informed that [child 2] was already ‘into killing people’ which is why the accused could not send him to school. [Child 2] would display this behaviour after watching videos of ‘Dawla’.

On 20 July 2015, the accused had contact with [name 4] via WhatsApp. The accused stated that ‘the internet was being shut down'. According to the accused, IS would block internet access throughout Syria because there were many spies causing a lot of bombs to fall. ‘They’ are taking out the signal boosters, meaning that internet access was only available in cafés, which could only be accessed by brothers. As a result, the accused would have to give her phone to [name 1].

Between 1 and 2 August 2015, the accused had contact with [name 4] via WhatsApp. The accused stated that the second wife had been given another house in Raqqa where she would take up residence in a week's time.

Between 3 and 4 August 2015, the accused had contact with [name 4] via WhatsApp. The accused stated that [name 3] would be staying with the accused for a few days. The accused informed that she would soon be alone in a large house. [Name 1] would then be with the second wife every other day.

Between 17 and 18 August 2015, the accused had contact with [name 4] via WhatsApp.

The accused stated that she did not know what to do with [child 1]. [Child 1] had changed and lied all the time. The accused did not like seeing her daughter like this.

The accused further indicated that they rented the residence for 90 euros a month and that he got the money back from his work. The accused stated that they were therefore ‘basically living for free. Aren't paying for power or water’. The accused then sent a number of photos of the house the accused lived in, including a photo of [child 2] in the living room. The photo shows [child 2] sitting on the floor. Opposite [child 2] is a dresser containing an assault rifle similar to a Kalashnikov.

It can be inferred from the photos that the accused's residence was located at Na'im square in Raqqa.

On 19 August 2015, the accused had contact with [name 4] via WhatsApp. The accused stated that a rocket had struck about nine minutes away from her. The accused further stated that a bomb had just been ‘thrown’ from close range and she subsequently sent a photo of a cloud of dust and/or a plume of smoke. The accused also stated that [name 1] had just returned home and that he had been hit. [Name 1] had a cut on his head and scratches on his arms. The accused added that many children and babies had died. The children were frightened but handled it well according to the accused.

Between 26 and 27 August 2015, the accused sent a photo via WhatsApp to [name 4] of her and [name 1] together on the sofa. A flag is visible in the background. This was an IS flag.

Between 26 and 27 August 2015, the accused stated that she had followed [name 1] to Syria because she did not want to take [name 1]'s children away from him. The accused further stated that [name 1] took good care of her and the children.

On 28 August 2015, the accused told [name 4] via WhatsApp that she had already moved seven times in one year.

On 5 September 2015, the accused told [name 4] that she had both ‘dawla power’ and ‘paid power’. Also, ‘they’ were going to cut down and the accused was afraid she would no longer be able to pay the rent if she got less money. Then she wanted to return to Tabqa, but there was no internet in the house there.

On Friday 11 September 2015, the police had telephone contact [name 4].

[Name 4] said that she had posted something about refugee flows, which might have included IS fighters, on her Facebook timeline. In response, the accused had written: First of all, it is not even true that IS has let 4,000 fighters go to eu. Then they would be crazy to do so. We need them more here.

On 17 September 2015, the accused told [name 4] that she was afraid because the enemy of IS was slowly advancing towards Tabqa, where the family lived. According to the accused, the enemy was three hours away from them.

On 18 September 2015, the accused wrote to [name 4] that eight bombs had fallen near the house that day.

The accused was mainly in a room with [name 3] and the children.

On 19 September 2015, the accused notified [name 4] that [name 3] would be staying with her in the house permanently.

On 20 September 2015, the accused messaged [name 4] via WhatsApp that she hoped Assad would step down, thereby bringing an end to the war. The accused stated that life there could be good without the bombings.

Furthermore, the accused instructed [name 4] that, should she ever return to the Netherlands, she should say that the accused had not travelled to Syria voluntarily.

The accused: that suppose it all works out and you are going to call that you will then say that I didn't go to Syria voluntarily.

The accused: That I had to come along

[Name 4]: You ddid follow himm didn't you

The accused: Yes but they don't know anyway

On 21 September 2015, the accused informed [name 4] that she intended to return to Tabqa together with [name 3]. The accused indicated that there was a lot of bombing in the capital, Raqqa.

At the end of September 2015, the accused notified [name 4] that she would like to return to Tabqa and that they had to leave the residence on 22 September 2015. On 22 September 2015, the accused stated that she had not yet heard about the house.

In WhatsApp messages dated 3 October 2015, the accused stated that the family had been given time to look for a new house and did not have to pay rent until then.

On 5 October 2015, the accused messaged [name 4] via WhatsApp that she, together with [name 1] and the children would be spending the night from Wednesday to Thursday in Tabqa. The accused mentioned that she still had a house in Tabqa on the fourth floor, and that everything was still in place. The reason for this overnight stay was the peace and quiet in Tabqa and the accused could walk outside with the children, shop and take photos. Also, [name 1] would soon have to ‘go into battle', in the place Help in Syria. This was said to be an airbase and located near the town of Hams. The accused was aware of the rules regarding bombing. She stated ‘simply throwing [. . .] is just civilian murder [] No country approves of that [. . .] But this assad simply throws’. The accused also mentioned that they did not yet have another residence.

On 7 October 2015, the accused told [name 4] that she would drive to Tabqa later in the evening with [name 1] and the children. The accused had heard from ‘Dawla News’ that the borders were reopened.

On 9 October 2015, the accused wrote [name 4] among other things: ‘Pfff had just turned off my internet and suddenly planes come. were definitely Russian planes because they surely threw 5 bombs at the same time [...] Pff why does Russia have to interfere in everything and why doesn't that assad just piss off. because America don't want Russia to interfere or does it? [...] He was just here and said that if they start hitting tonight, he’ll probably take us to Tabqa tomorrow

[...] they want to destroy raqqa. [] those rotten Kurds are also quite active here [...]

They have taken places near the Syrian border [] And are against dawla

On 14 October 2015, the accused stated that [name 1] would have to fight in the town of Help in Syria in two weeks' time. The accused further stated that she was in a residence on the ground floor and that the houses were very solid. ‘So, if a bomb falls, I think it will just miss me.’

On 23 October 2015, the accused stated that there was a lot of bombing. The accused was at home with ‘[name 29] and [name 34] and her kids and [name 6]‘ and because of the bombs, [name 1] would leave the women and children with her.

On 26 October 2015, [name 4] sent a photo of [child 2] to the police. The photo shows [child 2] dressed in a military uniform, lying in a firing position with a rifle resembling an AK47. This uniform is identical to the military uniform of ‘the Cubs of the Caliphate’. The photo had been sent from phone number +[phone number], which had the following WhatsApp status: ‘In the land of Jihad...until martyrdom separates us’. At that time, this phone number was in use by [name 5].

On 27 October 2015, [name 4] asked the accused if she had seen the photo of ‘[nickname 1]‘ on his profile. The accused responded that she had known and seen it a long time ago. The accused further stated that they were still together in her house in Raqqa.

A conversation between [name 4] and the police in November 2015 revealed that ‘they’ had left for Tabqa. [Name 3] no longer lived with the accused as it would be too crowded.

In December 2015, the accused's family stayed in Tabqa and Raqqa. The three wives of [name 1] took turns staying with [name 1] in Raqqa for a week.

In January and February 2016, the family also stayed in Raqqa.

On 1 July 2016, the accused told [name 4] in a telephone conversation that due to the bombings in Raqqa, the entire family had fled to Tabqa. The accused lived with [name 3] and the children in one house. [Name 1] was looking for a home for his third wife, namely [name 3].

On 25 September 2016, the accused told [name 4] over the phone that there was war and that the accused experienced bombings at close quarters. Also, if ‘she ever had to leave here’, the accused did not want to go to Holland, but to Morocco where Islam could still be found.

On 18 January 2017, [name 4] was contacted via WhatsApp by a person called Madina. Madina informed that the accused and the children were doing well, and that the family had moved to Raqqa.

On 27 April 2017, the accused messaged [name 4] via WhatsApp that she and the family had left again from Raqqa and Tabqa. According to the accused, Tabqa was surrounded. The accused indicated that the family was staying in a town near the Sahara, close to Lebanon.

On 12 July 2017, the accused informed [name 4] that she was in Deir Ez-Zorte.

On 16 July 2017, the accused messaged [name 4] via WhatsApp that she felt very guilty about what ‘she had done to her children’, especially [child 2] and [child 1]. According to the accused, [child 1] had changed. She had a big mouth to everyone and did not listen to the accused. [Child 1] missed her grandmother very much. The accused indicated that [child 1] was not happy. [Child 1] was always being blamed by everyone. The accused indicated that she even scolded and hit [child 1]. The accused further stated that she lived together with the second wife and her children.

On 25 February 2019, [name 4] informed the police that she had been in contact with the accused on 1, 8 and 20 February 2019 via Telegram and Facebook Messenger and that the accused had stated that she was staying in a reception camp in the town of Manbij at that time. [Child 1] and [child 2] had been ill since 9 February 2019. Furthermore, the accused had said that, on 1 February 2019, there was bombing that left the family under rubble. As a result, the accused had suffered bruises and [child 1] had a bruised pelvis. [Name 1] had severe bruises on both ankles and his lower legs were burnt.

The accused also stated that [name 1] had very presumably died. The accused said that [name 1] had gone to get food from the reception camp and never returned.

Assessment of the facts charged

6.4.3.1 With regard to Count 1

Under Count 1, the accused is charged with pillaging in Syria, either alone or together with others, by using various houses there, without the consent of the owners and with the intent of dispossessing the owners.

The indictment is tailored to Article 6, paragraph 3, under e of the Wim [Dutch International Crimes Act], which criminalises the pillaging of a city or place. This provision reflects Article 8, paragraph 2, under e (v) of the Rome Statute. In that Article, pillaging is classified as a war crime.

The Wim does not specify pillaging. Nor does the Rome Statute contain a definition. However, the Elements of Crimes, which accompany Article 8, paragraph 2, under e (v) of the Rome Statute, offer interpretive guidance for the application of that provision. The following elements are listed (in the English version):

1. The perpetrator appropriated certain property.

2. The perpetrator intended to deprive the owner of the property and to appropriate it for private or personal use.

3. The appropriation was without the consent of the owner.

4. The conduct took place in the context of and was associated with an armed conflict not of an international character.

5. The perpetrator was aware of the factual circumstances that established the existence of an armed conflict.

The District Court has also taken into account judgments by international criminal tribunals and the International Criminal Court, in which pillage was addressed.22

According to the knowledge document The Islamic State: Spoils (of War) and Pillaging, IS looted the property of (displaced) ethnic or religious minorities and confiscated their houses when occupying several areas. The management and distribution or allocation of looted property including houses was an institutionalised affair and in the hands of institutions similar to government departments, such as the Ministry of Real Estate and Land Taxation and its subordinate provincial property departments. This department's duties included the allocation of houses to IS members (eligible brothers), whether or not in exchange for a user fee or rental payment. When there was a shortage of available houses, IS members who rented houses from local population could qualify for compensation for rent payments.

The District Court finds that, after her arrival in Syria and her stay in a women's house, the accused resided in various houses from October 2014 until her arrival at a reception camp in Manbij in February 2019, primarily in Tabqa and Raqqa.

In Tabqa, the accused together with her husband [name 1] had access to a flat in a residential building from October 2014 until the beginning of 2017. For at least part of that period, the accused shared this apartment with one or more other families. From June 2015 until early 2017, the accused also had access to a large house with five rooms in Raqqa. In addition, the accused resided, for shorter or longer periods in four other properties in Tabqa.

The District Court finds, based on several chat messages between the accused and her mother, that the accused did not pay rent for these residences, or, in the case of the residence in Raqqa, that the rent was refunded to [name 1].

The District Court further finds, contrary to the accused's statement to the contrary, that the accused obtained the disposal of these residences through the intervention of IS. After all, the accused has written in chat messages to her mother that they decide whether or not to assign houses, or that they want the accused to leave a house. 'They' are, according to the chat messages, the same ones who decide where [name 1] is placed. This leaves no other conclusion than that they belong to IS. This is also confirmed by two messages from the accused, expressing dissatisfaction with the residence assigned to her, speaking of ‘leaving dawla [IS], no longer receiving money from them, and renting a small house themselves’ and ‘we will stay in this house until they give something else. If we don’t like it, we’ll rent a place ourselves.’

Nevertheless, the findings set out above are insufficient to support the conclusion that the accused also pillaged the houses she occupied, either alone or together with others.

The case file contains no information regarding the (original) ownership of the residences, nor does it provide any conclusive evidence as to whether the accused’s stay in the aforementioned residences was without consent. The fact that IS confiscated homes in occupied territories and distributed them to its members in an institutionalised manner is a circumstance that is too general to base the conclusion upon that the properties in question were also (on each occasion) confiscated residences. Apart from a single message (‘That [residence] belonged to a non-believer who is fighting for Assad and fled when dawla arrived’), the case file contains no information clearly identifying the owners of the residences or establishing that the accused's stay in those residences was against the will of the rightful owner. Moreover, this particular message must be considered in the context of the full chat conversation between the accused and her mother, which shows that the accused appears to be quoting [name 1]’s superior when referring to the residence of a non-believer. In this regard, there is also a distinction from the two German judgments included in the case file: in those cases, the German court was able to make findings regarding the (original) owners of the residences (and/or their contents), as well as the circumstances under which they had involuntarily relinquished ownership. Contrary to the Public Prosecutor, the District Court is of the opinion that, given the specific circumstances mentioned above, the mere absence of the owners is insufficient to conclude that consent from the owners is lacking.

Since the lack of consent is a constituent element of pillaging according to the aforementioned Elements of Crimes, and since the District Court cannot establish this element of the indictment (without the consent of the owner(s)) on the basis of the documents in the case file or the proceedings at the hearing, for this reason alone, no declaration of charges proven can follow.

Moreover, the District Court is likewise unable to establish that the accused acted with the intent to dispossess the owners of the residences, as charged. Although in her messages to her mother she referred on several occasions to 'our house' or 'my own house', and although she lived in and made use of the residences, it has not been established that she did so with the intention that should be regarded as intent23 to deprive the rightful owners of their property or to deny them the use of those residences.

In short, the District Court cannot conclude that there is sufficient legal and convincing evidence that the accused, by staying in the aforementioned residences, appropriated these residences either alone or together with others, against the will of the owner, and with the intent to deprive the owner of his property. Accordingly, the accused is acquitted of pillaging as set out in the indictment.

6.4.3.2 With regard to Count 2

Under Count 2, the accused is charged with participation in a terrorist organisation. The relevant legal framework by which this count is to be assessed can be summarised as follows.

Terrorist organisation

Pursuant to Article 140a, paragraph 1 Sr, the organisation in question must have the objective of committing terrorist offences. The objective of the organisation, a collaborative association, whether fixed or varying in composition, must therefore be directed towards the commission of (specific) offences listed in Article 83 Sr, provided that these are committed with the terrorist intent as defined in Article 83a Sr.

Under Article 83a Sr, terrorist intent means the intent to cause serious fear to the population or part of the population of a country, or to unlawfully force a government or international organisation to do, to not do or to tolerate something, or to seriously disrupt or destroy the fundamental political, constitutional, economic or social structures of a country or an international organisation.

In establishing intent, significance may be attached, inter alia, to offences already committed within the framework of the organisation, to the more sustained or structured nature of the cooperation as may be evidenced by a mutual division of tasks or coordination of activities among participants within the organisation with a view to achieving the common purpose of the organisation and, more generally, to the planning or systematic nature of the activities of participants within the organisation carried out for this purpose.

The offence under Article 140a Sr is therefore not about the actual commission of terrorist offences, but about the intent to commit them. For that intent, the organisation's closest objective may also suffice. It is not required that committing terrorist offences is the organisation's main raison d'être.

Participation

Participation in a terrorist organisation as referred to in Article 140a Sr can only exist if the accused is a member of the alliance and has a share in, or supports conduct that is aimed at or directly related to achieving the objective referred to in that article.

Such involvement may consist of the (co-)commission of any offence, but may also take the form of providing assistance which, while not punishable in itself, is nonetheless aimed at achieving the organisation's objective. It is sufficient that the person involved is generally aware – in the sense of unconditional intent – that the purpose of the organisation is the commission of terrorist offences. It is not necessary for the person concerned to have any form of intent on committing the concrete offences intended by the terrorist organisation. Nor is it required for the person concerned to have personally participated or to participate, in the offences committed or to be committed by (members of) the organisation.

IS

In the opinion of the District Court, IS was (and is) an organisation as referred to in Article 140a Sr whose objective it is to commit terrorist offences, as has been ruled in previous judgments. The District Court referred to the knowledge appendix ‘140a WvSr PV de Islamitische Staat’ by Dr J. Jolen, included in the appendix as evidence, and, among other things, to the judgment of the The Hague Court of Appeal of 20 December 2023, (ECLI:NL:GHDHA:2023:2570).

Participation in IS by [name 1]

The District Court further held that [name 1] participated in terrorist organisation IS.

[Name 1] travelled out to Syria with the accused. The accused has stated that [name 1] joined IS immediately upon arrival in Syria and that he took the oath to that end. On the basis of the case file, it can further be established that he carried out acts that unmistakably aimed at or were directly related to the realisation of the terrorist intent of these organisations. For instance, he attended various (combat) training courses and worked for ‘Hisba’, IS's morality police. He received wages, goods and accommodation from IS and had a Kalashnikov at his disposal. [Name 1] intended to go into battle in favour of jihad for IS, which only failed to materialise due to various unforeseen circumstances. Finally, the District Court points to the photos in the case file showing [name 1] with a weapon and an IS-affiliated flag and gesture.

[name 1] was also convicted (in absentia) of participation in IS by judgment of the court of [place of birth 13] of 19 July 2018 (ECLI:NL: RBROT:2018:5872).

Participation in IS by the accused

The District Court further finds that the accused also participated in this organisation. To this end, the District Court considers the following.

It has been established that, on 12 August 2014, the accused travelled with her family to Syria via Turkey. The accused knew in advance that the family would be travelling to Syria when just before that the caliphate had been declared, and the accused also knew that there was a war in Syria.

It has not been established that the accused was subjected to coercion by [name 1] to travel to Syria, which she was unable to resist, as submitted by the defence. The District Court is willing to assume that it is plausible that the marriage with [name 1] and their children played a role in the accused's choice to go with [name 1] to Syria and that it was a difficult circumstance that [name 1] threatened to take the children with him to Syria regardless of whether the accused went with him or not. However, it has not been established that this created such coercion or pressure for the accused that she had no other option but to go to Syria with [name 1]. The chat messages show that the accused knowingly made the choice to follow [name 1] to Syria and that she was aware of the possible consequences of her leaving for Syria, such as arrest or the removal of her children from her custody. The accused also indicated several times in the chat messages to [name 4] that she could return to the Netherlands if she wished, but that she did not want to. The accused also instructed [name 4] almost a year after the exit to declare, should she ever return to the Netherlands, that she did not voluntarily go with [name 1] to Syria. This was contrary to what the accused had stated about it before, but ‘they don't know that anyway’. In view of this, it has not been proven that the accused went to Syria with [name 1] under coercion or pressure.

After a short stay in the women's shelter, the accused travelled on to Tabqa with [name 1] and her children, where they settled in IS's caliphate for an extended period, even up to its eventual fall. While there, the accused, together with [name 1], placed herself under the authority of IS and subjected herself to the rules of its interpretation of Sharia law.

The accused and [name 1] ran a joint household in the caliphate in Syria, while [name 1] actively participated in IS and the accused knew about it. With his earnings from IS, [name 1] was the breadwinner. The accused and her family thus benefited financially from IS. They also received a monthly financial allowance, and were provided with gas, water and light and (regularly) food. IS also provided housing, [name 1] and the accused were further in possession of firearms provided by IS, including a Kalashnikov that [name 1] received in connection with his work for the Hisba and which he kept in their shared home with the knowledge of the accused. The accused also possessed a firearm that she fired once. An IS flag also hang on the wall in one of their homes.

The accused did not only form a household with [name 1], but also for steady periods with the two other wives of [name 1] who were supporters of IS’ armed fight. Furthermore, the chat messages show that the accused and [name 1] visited and financially and emotionally supported women of fallen IS fighters, [name 1] even married the wife of a fallen IS fighter (namely [name 3]).

It can also be established that at least shortly after her arrival in Syria, the accused identified herself with the ideas of IS. During that period, the accused wrote that she wanted to live by the rules in force in the caliphate, citing, among other examples, that if someone steals, his hand would be cut off, or that whippings would be administered to persons who cheated. In later chat messages, she repeatedly made negative utterances about locals and Assad, mentioning that Raqqa had been a city of whores before the caliphate was declared, and writing about ‘brothers’ and 'sisters’ when referring to IS. Finally, the accused wrote on Facebook in response to a message that IS may have sent fighters to Europe that it was not true and that ‘we’ needed them here more.

In addition, through her actions, prompted by her conscious choice to stay there with [name 1], the accused has numerically strengthened IS's sphere of influence on each occasion.

That the accused would have merely stayed at home and engaged in raising the children, as the defence has put forward, is not consistent with the circumstances outlined above. For that matter, within IS, this was regarded as an important role for woman, to support the man as a fighter in jihad and to promote IS ideology by raising the children in the spirit of jihad, as appears from the report Women of the Islamic State. In light of the foregoing, the District Court also points to the presence in the case file of various photos of [child 2] in a military uniform. One of the photos shows [child 2] dressed in a military uniform and lying in a shooting position, presumably holding a Kalashnikov.

The accused thus engaged in conduct aimed at or directly related to the realisation of the terrorist intent of IS. This while it can be seen from the chat messages that the accused was aware of the terrorist intent of this organisation in general. Illustrative of this are her utterances in the chat messages about armed struggle and her statement at the hearing that she was aware of (some of) the atrocities taking place in Syria.

The defence's arguments that there was no participation or a terrorist intent are therefore rejected.

All the aforementioned facts and circumstances mean that the accused can be considered a member of and (thus) a participant in the terrorist organisation IS.

Co-perpetration

The District Court is also of the opinion that it can be deduced from the evidence that the foregoing involved close and conscious cooperation between the accused and [name 1], which at its core consisted of joint execution, so that the co-perpetration charge can also be declared proven.

The period

It follows from the evidence that the accused stayed in Kurdish reception camps since the end of February 2019. It does not follow from the case file that the accused has carried out any acts of participation from then on. The District Court will acquit the accused of the charged period from 1 March 2019.

Conclusion Count 1

In view of the above, the District Court finds that during the period from 1 July 2014 to 1 March 2019 in Syria, the accused participated, together and in association with others, in an organisation whose objective it was to commit terrorist offences, namely IS.

6.4.3.3 With regard to Count 3

Under Count 3, the accused is accused of having committed various criminal preparatory acts as set out in the indictment under A through F. The following legal framework applies to the assessment of this charge.

The acts of preparation and promotion described in Article 96, paragraph 2 Sr are punishable regardless of their result. The requirement is that the perpetrator undertakes the acts with the intention of preparing or promoting the terrorist offence in question.

Conditional intent to prepare or promote a terrorist offence is not sufficient. The offence being prepared or promoted will have to be established to the extent that it can be determined whether it is an offence the preparation and promotion of which is punishable under Article 96, paragraph 2 Sr. Time, place and manner of execution will thus have to be somewhat concrete. The attributed acts of preparation and promotion may be assessed in conjunction with one another. Even if individual acts do not, in themselves, constitute a punishable act of preparation, the combination of all acts, together with the accused's underlying ideology, may support the conclusion that the accused had the specific intent to prepare for the commission of an offence.

Following on from the considerations set out above in relation to Count 2, the District Court considers the following.

With regard to the conduct charged under A, the District Court considers that it cannot be sufficiently inferred from the evidence that the accused, before the family's departure to Syria, had already internalised the ideology of IS in the Netherlands and that she was then already a supporter of the armed struggle by IS. As considered above, this is different in the case after her arrival in Syria. In the District Court's view, the accused promoted the conduct charged under A from then on. After all, the accused had knowledge of the ideology of IS at that time and she identified with the ideology, while [name 1] was already a member of IS and had taken the oath.

The District Court does not consider the conduct charged under B to have been legally and convincingly proven. It cannot be sufficiently deduced from the case file that the accused had already gathered information in the Netherlands about her departure for Syria prior to her departure. The accused will be acquitted of that part of the indictment.

Nor does the District Court consider the conduct charged under E to have been legally and convincingly proven. There is no concrete evidence in the case file that the accused and/or a co-accused actually participated in armed jihad, or that they made a significant contribution to it. The fact that [name 1] followed a (prematurely aborted) training course is insufficient for that purpose and, moreover, it has not been shown that [name 1] actually participated in the armed fight. The accused will be acquitted of that part of the indictment.

In view of the above and the factual findings and considerations already set out above with regard to Count 2, the District Court considers the conduct listed under A, C, D and F to have been legally and convincingly proven, as reflected in the declaration of charges proven.

In the opinion of the District Court, it follows from the evidence that there was a close and conscious cooperation between the accused and [name 1] which, at its core, consisted of a joint execution, so that the charged co-perpetration can also be proven.

By so acting, the accused together with [name 1] provided themselves or others with opportunities, means and intelligence to commit the terrorist offences listed in indictment item 3 and, by having firearms at their disposal, possessed objects which they knew were intended for the commission of such an offence.

Finally, from the combination of the acts proven under A, C, D and F, considered together, the accused's intent on preparing these offences can be deduced. The argument of the defence that there was no terrorist intent is therefore rejected.

The District Court will acquit the accused (in part) of the period from 1 March 2019, as the accused then surrendered and was placed in Kurdish reception camps.

The District Court therefore finds that the accused is guilty of promoting and preparing terrorist offences together and in association with [name 1] during the period from 1 July 2014 up to and including 1 March 2019.

On that basis, the District Court finds the offence charged under Count 3 to have been proven.

6.4.3.4 With regard to Count 4

Under Count 4, the accused is accused of placing and leaving her minor children in a helpless state. The District Court considers as follows.

It has been established that the accused took her two minor children to the conflict zone in Syria. The accused has stated that she knew at the time of travelling that there was a war going on in Syria. Nevertheless, she took her children to an area where there was an armed conflict and war violence. The accused therefore deliberately took her children to an area where there was danger to life and health, and allowed them to stay there. She also did not dispute this at the hearing.

The app messages reproduced above show that the accused's children were exposed to numerous dangers, including bombings, rocket attacks and shootings. Moreover, they were deprived of regular education. The stay in Syria thus had adverse effects on the mental and physical well-being of the accused's children. The District Court referred to the various chat messages in which the accused described negative behavioural changes in her children. At least one of her children sustained actual injuries during a rocket attack on the family's home.

Through her actions, the accused placed and left both her children in danger, and thus in a helpless state. The accused made the choice to stay in Syria with her children and she made this decision deliberately.

The District Court therefore considers the acts charged under Count 4 to have been legally and convincingly proven as far as the period up to 1 March 2019 is concerned. The District Court will acquit the accused (partially) of the period from 1 March 2019.

Declaration of charges proven

The District Court declares the following proven with regard to the accused:

2.

in the period from 1 July 2014 up to and including 1 March 2019 in Syria,

jointly and in conjunction with another person,

she participated in a terrorist organisation, namely Islamic State (IS), whose objective it is to commit terrorist offences, namely,

arson and/or causing an explosion, this constituting a general danger to property and/or danger of serious bodily harm and/or danger to the life of another person, and/or this act resulting in someone's death (within the meaning of Article 157 Criminal Code), (to be) committed with terrorist intent (within the meaning of Article 176a Criminal Code) and/or

manslaughter (to be) committed with terrorist intent (within the meaning of Article 288a of the Criminal Code) and/or

murder (to be) committed with terrorist intent (within the meaning of Article 289 in conjunction with Article 83 of the Criminal Code) and/or

conspiracy and/or deliberate preparation of and/or abetment to commit the aforementioned offences (within the meaning of Article(s) 176a and/or 289a and/or 96, paragraph 2 of the Criminal Code) and/or

possession of one or more weapons and/or ammunition in categories II and/or III (within the meaning of Article 26, paragraph 1 of the Weapons and Ammunition Act) (to be) committed with terrorist intent and/or with the intent to prepare or facilitate a terrorist offence (within the meaning of Article 55, paragraph 1 and/or paragraph 5 of the Weapons and Ammunition Act);

3.

in the period from 1 July 2014 up to and including 1 March 2019, in Syria,

jointly and in conjunction with another person,

with the intention of committing (an) offence(s) described in Article 83 and/or 157 and/or 176a and/or 176b and/or 289(a) and/or 288a of the Criminal Code, namely:

- murder and/or manslaughter with a terrorist intent and/or- to commit arson and/or causing an explosion, this constituting a general danger to property and/or danger of serious bodily harm and/or danger to the life of another person, and/or this act resulting in someone's death, (to be) committed with terrorist intent, to prepare and/or to advance this, she

provided herself and/or others with opportunity, means and/or intelligence to commit the offence, and

3. possessed one or more objects that she, the accused, knew were intended for the commission of the offence,

by,

adopting the radical extremist ideology of armed jihad with a terrorist intent, as propagated by the terrorist organisation Islamic State (IS) and

undertaking the journey to Syria with the aim of going to the territory controlled by the terrorist organisation IS and to stay in the conflict zone in Syria and

joining co-perpetrators and persons affiliated with a terrorist organisation advocating armed jihad and maintaining a jint household with a person who participated in IS and

using and carrying and possessing automatic firearms in Syria,

in which armed jihad murder and/or manslaughter and/or arson and/or setting off explosions are committed, on each occasion with a terrorist intent;

4.

in the period from 12 August 2014 up to and including 1 March 2019 in Syria,

she deliberately placed or left her minor children named [child 1], born on [day of birth 2] 2008 and [child 2], born on [day of birth 3] 2010,

to whose maintenance, nursing and care she was obliged by law as parent of [child 1] and [child 2], placed in a helpless state and left in a helpless state, while knowing that, during the aforementioned period, [child 1] and [child 2],also in view of their minority, could not defend and protect themselves and bring themselves in a safe situation,

by,

travelling with [child 1] and [child 2] and taking [child 1] and [child 2] along to and allowing them to stay for a long period of time in areas where armed conflicts were going on and war violence prevailed and having firearms at hand in the vicinity of [child 1] and [child 2] and thereby repeatedly exposing [child 1] and [child 2] to and placing them in a situation of danger and the direct consequences of armed conflict and war violence, such as bombardments and shootings and threats of violence by persons, and thereby repeatedly endanger the life and the mental and physical health and well-being of [child 1] and [child 2].

Insofar as the indictment contains linguistic and/or writing errors, these have been corrected and italicized in the declaration of charges proven, without the defence of the accused having been harmed as a result.

7. Criminal nature of the proven charges

The proven charges are punishable under the law because no facts or circumstances have become apparent that might exclude the criminal nature of the offences.

8. Criminal liability of the accused

The accused is also punishable because no facts or circumstances have become apparent that might exclude her criminal liability.

9. Sentencing

Request of the Public Prosecutor

The Public Prosecutor demanded that the accused be sentenced to a term of imprisonment of six years, with deduction of the time spent in pre-trial detention.

Position of the defence

The defence requested that, should the District Court find the charges proven, a significantly more lenient sentence be imposed on the accused than that demanded by the Public Prosecutor, referring to sentences imposed in comparable cases. In doing so, the defence pointed to the personal circumstances of the accused, the fact that she did not go to Syria of her own free will and her limited role in the offences charged. Furthermore, the relationship with [name 1] was characterised by systematic threats and physical abuse. The defence also argued that the accused's prolonged stay in the Kurdish camps should be regarded as a mitigating factor, as should the circumstance that the offences are attributable to the accused only to a limited extent, due to her reduced culpability. In addition, the defence submitted that the reasonable time limit has been exceeded in this case.

The defence also requested that no contact or location ban with electronic monitoring be imposed on the accused as a special condition, or at least not a contact ban in respect of [name 31], [name 35] and [name 33].

Decision of the District Court

The punishment below is in accordance with the severity of the offences committed, the circumstances under which they were committed and based on the personality and personal circumstances of the accused, as revealed during the investigation at the hearing. In this context, the District Court particularly takes the following into account.

Severeness of the facts

The accused travelled to Syria in 2014, after the caliphate had been declared, together with her husband and two children, aged five and four at the time. Prior to her departure, the accused knew that an armed conflict was going on in Syria, yet she chose to travel there nonetheless. This deliberate decision to do so had irreversible consequences for the accused and her children. Her young children were forced to spend part of their lives in a war zone and in a territory controlled by IS, with all the inherent dangers and risks. The District Court considers this to weigh heavily against the accused.

During her stay in Syria, the accused participated in the terrorist organisation IS and remained in areas controlled by this organisation until the fall of the caliphate. During the period to which the charges pertain, the accused, together with her husband, was also guilty of acts of preparation and/or promotion aimed at committing, among other things, murder and manslaughter with a terrorist intent.

There is no doubt that the violence used by IS to achieve its aims is extremely brutal and that serious human rights violations, such as summary executions, murder, torture and mutilation of prisoners and civilians, were committed on an extensive scale. IS is also partly responsible for the destruction or damaging of houses, agriculture and infrastructure. Terrorised residents have fled and had to leave everything behind as a result. There have also been numerous attacks in the name of IS, not only in Syria and Iraq, but also in Europe and the rest of the world. These have resulted in many victims. These acts of terror have had a disruptive effect on society. All this has caused widespread feelings of fear and insecurity among the world's population from 2014 onwards. This is also the core purpose of IS: sowing fear and division among what they see as the non-believing part of the world's population. The accused has joined IS, strengthened the organisation, defended and condoned its actions, and refused to acknowledge the indescribable suffering that has affected many in the battle zone and beyond.

Criminal record

The District Court has taken cognisance of the accused's criminal record dated 11 March 2024, which shows that the accused has not been previously convicted of similar offences.

NIFP report

The District Court has also taken cognisance of the psychological examination Pro Justitia dated 27 December 2023. The personality test showed that the person concerned had an avoidant personality disorder with borderline traits, a post-traumatic stress disorder and a disharmonious intelligence profile. This was already present at the time of the charges. Because of her problems, she was less able to resist her husband's demands. It is recommended that the charges, if proven, be attributed to the person in question to a lesser extent.

Given the person's psychological problems, it is recommended that outpatient treatment be continued within a specialised mental health institution after detention. Treatment should focus on the personality problems and the PTSD.

With regard to the punishment and/or measure to be imposed, the psychologist advised, if the severity of the punishment allowed, to impose a (partly) suspended sentence, to which a number of special conditions should be attached, such as an obligation to undergo treatment in combination with the condition of assisted living. The person involved is motivated to seek treatment and supervision and is expected to comply with the special conditions imposed.

Interim conclusion of the District Court

The District Court is of the opinion that the psychologist's conclusions and advice are supported by its findings and the underlying research that, in the opinion of the District Court, were carefully produced. The District Court therefore partly bases its judgment on that conclusion. The District Court is of the opinion that the accused has the mental disorder as appointed by the expert. The District Court concludes that the offences can be attributed to the accused to a limited extent.

Ideological interpretation report

Furthermore, the District Court has taken cognisance of Nuance's ideological interpretation report by Training and Advice (NTA), prepared in November 2023, containing the findings of the investigation into whether there was and is a (violent) ideological conviction. It concludes as follows.

The accused has received limited Islamic education. Prior to her departure, the accused had a basic Islamic religious orientation in which she mostly made use of non-extremist Salafist sources of knowledge. Her knowledge of Islam is fragmented and superficial and the accused's views on her faith do not translate into a political-ideological character.

In general, the accused distances herself from the use of violence and does not employ extremist interpretations of theological concepts (including jihad and takfir) and does not legitimise violence and intolerant behaviour. She values personal freedom of herself and others as a result of the unfreedom she experienced in her relationship and in IS territory and elsewhere. It is noted, however, that the accused is (unconsciously) impressionable for extremist views.

Probation report

The District Court has further taken cognisance of a probation report on the accused dated 13 March 2024. The probability of recidivism is estimated as medium-low. This outcome is determined by the fact that the accused's spouse is no longer in the picture and, given the current situation in Syria and terrorist group IS, return to the conflict zone is no longer realistic for the accused.

The probation service has concerns about the accused's psychosocial functioning, her housing and daytime activities. The personality issues affecting the accused have previously contributed to unhealthy partner relationships in which the accused allowed herself to be controlled. With these problems still unabated, the accused will have to accept long-term counselling and support after detention.

When imposing a (partially) suspended sentence, the probation service recommends attaching special conditions to it, including a contact and location ban and a long-term probation period. The purpose of the probation service's recommended contact bans is to protect the accused from contact with persons with (possible) extremist views.

Level of punishment

In determining the level of punishment, the District Court looked at the level of sentences in cases somewhat similar to the present case. The basis for participation in a terrorist organisation, regardless of the proven period, is an unconditional term of imprisonment of six years (cf. The Hague Court of Appeal 13 March 2024, ECLI:NL:GHDHA:2024:394). Because of the substantive connection of this offence with the acts of preparation and promotion, the latter offence does not carry additional weight in terms of the punishment to be imposed.

The offence of placing and leaving minor children in a helpless state has a maximum term of imprisonment of two years. By travelling to a war zone and staying in the IS caliphate, the accused placed and left her minor children in such danger that, in view of the severeness of this, the District Court considers that a term of imprisonment of two years, being the maximum term of imprisonment, should be taken as the basis.

With regard to mitigation, the District Court will take into account that the accused herself did not take part in the armed struggle. The District Court will also take into account as a mitigating factor that after her capture in Syria, she stayed in the al-Hol and al-Roj detention camps, under very poor conditions, and thus already suffered significant negative consequences of her actions.

In determining the term of imprisonment, the District Court further takes into account the accused's diminished culpability.

In the opinion of the District Court, all things considered, the response cannot be other than a partially unconditional term of imprisonment. The severeness of the proven facts unquestionably justifies the accused undergoing unconditional detention longer than the time she has spent in pre-trial detention to date.

In view of the probation service's advice and the great importance of preventing recidivism, the District Court will impose a portion of the sentence to be imposed conditionally. The purpose of the conditional sentence is to prevent the accused from committing crimes again in the future. The probation period will be set at three years.

In view of the contents of the reports, the District Court will attach to the conditional part of the term of imprisonment the special conditions as advised in the probation advice of 13 March 2024, all at the discretion of the probation service. Should the probation service, for example, deem the contact ban with the persons mentioned by the accused not necessary (in the long term), the probation service may decide not to enforce it (further). The accused has stated that she is willing to comply with any special conditions to be imposed.

Reasonable term

With regard to counsel's defence that the reasonable time limit was exceeded, the District Court considers the following.

The principle is that criminal cases of preventively detained accused persons should, in principle, be completed within a 16-month period. The accused was arrested by the police on 2 November 2022. The District Court will pass judgment today on 26 April 2024, after more than 17 months.

However, given the complexity of the case and the proactive manner in which the case was investigated and handled, the District Court sees no reason to reduce the sentence. It suffices to note that the reasonable time limit was exceeded to a limited extent.

Immediate enforceability

The accused is guilty of offences directed against or endangering the inviolability of the body of one or more persons, namely co-perpetration of participation in terrorist organisations, co-perpetration of preparation and/or promotion of terrorist offences and endangering and causing danger to her two minor children by taking them to conflict zone.

The District Court takes into account the radical ideas with which the accused has engaged, her influenceability, as well as the circumstance that the aforementioned probation advice indicates a risk of recidivism. Finally, in view of the fact that terrorist offences entail a very high risk of bodily harm, the District Court – taking all the circumstances into account – is of the opinion that serious consideration must be given to the possibility that the accused will again commit an offence directed against, or posing a threat to, the physical integrity of one or more persons. The District Court will therefore order that the conditions to be imposed hereafter pursuant to Article 14c Sr and the supervision to be exercised pursuant to that article be immediately enforceable.

Conclusion

On balance, the District Court considers that a partly unconditional term of imprisonment of a term to be specified below constitutes an appropriate and required response.

10. Applicable articles of law

The punishment to be imposed is based on Articles 14a, 14b, 14c, 57, 83, 83a, 96, 140a, 157, 176a, 176b, 255, 288a, 289 and 289a of the Dutch Criminal Code.

11. The judgment

The District Court: