ECLI:NL:RBDHA:2024:24040

1. Examination at the hearing

The examination was held at the hearings on 8 July 2022 (pro forma), 1 March 2024 (substantive hearing) and 12 April 2024 (closure of the examination).

2. Indictment

After amendment of the indictment at the hearing on 1 March 2024, the accused was charged with the following:

- arson and/or causing an explosion,

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

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

- attempted to persuade another person to commit the offence, to cause another person to have a third person commit the offence and/or to assist in this and/or to provide opportunity, means and/or information, and/or

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

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

- “ How did you get our profiles? All the info? You're not around the corner, otherwise I'd walk up to you with my AK-47. Yes and this is a threat you ugly offspring of the apes and pigs. I would love to let your head roll. Ugly bitch yuck”;

- “ Is eagerly waiting for you. Better for you that you remove everything from your Twitter account And remove yourself from our lists.”

3. Introduction and investigation

4. Competence and jurisdiction of the District Court

5. Assessment of the indictment

Position of the Public Prosecutor

The Public Prosecutor requested a declaration of charges proven in respect of the charges under Counts 1 through 5 and, with regard to Count 3, an acquittal in respect of the conduct charged under part D.

Specific arguments will – where relevant – be discussed in more detail below.

Position of the defence

On behalf of the accused, the defence argued for an acquittal in respect of the charges under Counts 1, 4 and 5, and with regard to the charges under Counts 2 and 3, the defence deferred to the judgment of the District Court insofar as it concerned the period to which the accused was married to [name 1] (hereinafter also: [name 1]). For the remaining period she should be acquitted. With regard to the charges under Count 3, the accused should be acquitted of the conduct charged under parts D and F.

Specific arguments will – where relevant – be discussed in more detail below.

Factual findings and interim conclusions

In the annex, the District Court has included the lawful evidence with the facts and circumstances underlying the declaration of charges proven. Based on this evidence, the District Court establishes the following facts.

Preparation for departure to Syria

In August 2013, the accused converted to Islam and adopted Imane as her Islamic name. Shortly before and after her conversion, the accused conducted various Google searches in order to gather information, including:

- ‘marrying a brother’ on 15-08-2013,

- ‘members of sharia 4 belgium’ on 12-10-2013,

- ‘mujahideen’ on 17-11-2013,

- ‘women muhajideen’ on 17-11-2013,

- ‘Mufti lsmail Menk’ on 26-11-2013,

- ‘hadith on marriage’ on 01-12-2013,

- ‘niqab sisters’ on 04-01-2014,

- ‘who is Abu Al-Yazeed’ on 20-01-2014,

- ‘salifi mosque den haag’ on 20-01-2014,

- ‘hadith on marriage’ on 21-01-2014,

- ‘countries where sharia is applied' on 26-01-2014,

- ‘blowing yourself up’ on 09-02-2014,

- ‘anwar al awlaki lectures’ on 06-02-1014,

- ‘kalashnikov’ on 10-02-1014,

- ‘shiites unmasked’ on 11-02-2014.

Various photos were found in the 'Facebook pictures' folder on the computer of the accused, including an image of the IS flag (IS being short for Islamic State), a photo of a group of women in black burqas holding rifles, and a photo of a group of women in black burqas with IS flags. The accused stated that she had watched several lectures by Mufti Ismail Menk, a Salafist preacher, on YouTube.

The accused announced her conversion to Islam on Facebook in August 2013, after which she received many new Facebook contacts. One of those contacts was [name 2]. The accused and [name 2] met several times after becoming acquainted via Facebook. During their meetings, the accused and [name 2] discussed, among other things, Islam and its various branches. For instance, [name 2] told the accused about a narration which holds that the victors on the Day of Judgment will gather in Syria. At the hearing, the accused testified that this narration appealed to her. [Name 2] introduced the idea of travelling to Syria to the accused and put the accused in touch with [name 1], as an unmarried woman she was not permitted to travel alone. The accused and [name 1] subsequently spoke via Skype and entered into a marriage under Islamic law three days after they met. At that time, the accused had only seen a photo of [name 1]. At the hearing, the accused stated that she had married [name 1] without getting to know him further, because that is how it works in Islam, and that she had focused on her faith and placed her trust in it.

In preparation for her journey to Syria, the accused compiled a sort of to-do list, which included the following items: ‘wait for bank card’, ‘put money on’, ‘leave ASAP’, ‘pack things’, and ‘call to have the IUD removed’. The same notebook also contained the texts: ‘I’m leaving on Wednesday, [name 1] my hottie, and [name 14] & [name 11]’. To finance her departure, the accused sold her camera. At the hearing, the accused testified that she had her IUD removed because [name 1] had told her he wanted children and that this was an obligation.

The accused subsequently travelled to Syria on Wednesday, 12 March 2014, arriving there on 17 March 2014. [Name 1] picked the accused up by car at the Turkish-Syrian border. A Kalashnikov was lying on the back seat of the car.

Stay in Syria

The accused stated that during her marriage to [name 1], she abided by the rules that were imposed. She accepted everything that was said about IS and supported the sharia rules enforced by IS. The accused viewed anyone who did not belong to IS as her enemy and believed it was justified that people who did not adhere to the rules were punished. Her role was to take care of [name 1] and to bear children. The accused stated that while she lived in IS-held territory with [name 1], they were financially supported by IS. [Name 1] received monthly payments, which he used to provide for her and his other wives. In Tell Abyad, [name 1] received one hundred euros per person and in Raqqa fifty euros per person. After [name 1] had died, the accused also received financial support from IS during her mourning period.

The accused lived in various locations in Syria. Upon arrival, [name 1] took her to his house in Teftenaz, where she stayed for two to three weeks. The accused then moved to Atme, where she lived from April 2014 to May 2014. Thereafter, the accused lived in Tell Abyad from May 2014 to February 2015. During her stay in Tell Abyad, [name 1] married his second wife, [name 3] (hereinafter also: [name 3]). [Name 3] moved in with the accused and [name 1] in November 2014. The accused, [name 1], and [name 3] subsequently moved to Raqqa. The accused lived in various houses in Raqqa until December 2016. While they were living in Raqqa, [name 1] also married [name 4] and [name 5]. [Name 1] died in December 2016 as a result of a suicide attack carried out by himself.

After the death of [name 1] and completion of the iddah (mourning period), the accused entered into a marriage under Islamic law with [name 6], also known as [name 7] (hereinafter also: [name 6]), on 29 April 2017. The accused came into contact with [name 6] through the IS marriage office. [Name 6] was listed in a marriage register of available men. The accused lived with [name 6] in Raqqa and Mayadeen. The accused later fled to Turkey with [name 6], where she arrived on 1 January 2018. She was subsequently arrested by the Turkish authorities on 5 January 2018.

That the accused continued to support the ideology of IS during her marriage to [name 6] is evidenced by a WhatsApp conversation she had with her mother [mother] on 26 May 2017. In this WhatsApp exchange, the accused stated namely that, as a muslim, she is obliged to live under an Islamic State, and that such a state exists in Syria.

Regarding the partners of the accused

[Name 1]

was convicted in absentia by the District Court of The Hague on 10 December 2015 for preparing, abetting and participating in offences committed with terrorist intent. The District Court held that [name 1] had travelled to Syria and had joined ISIL/ISIS, Jabhat al-Nusra, and later, following the name change of ISIL on 29 June 2014, IS.

Contrary to and prior to the accused’s own statements regarding [name 1]’s membership of IS, [name 3] stated in a WhatsApp conversation on 17 November 2014 that she is living in IS-controlled territory and that her husband receives money each month. According to [name 3], everything was free because [name 1] was fighting for IS. On 4 March 2015, [name 3]’s parents told the police that [name 3] had married [name 1], and that [name 1] had been with IS for two years already. [Name 3] had told her family that she was living in Raqqa and that [name 1] regularly left for the battlefield for several days at a time to fight.

At the hearing, the accused stated that [name 1] held the position of emir within IS and was responsible for a group of men who fought for IS. After being wounded, [name 1] became involved in planning drone attacks. He initially possessed one firearm but eventually had two. One of them, according to the accused, was a kalashnikov with a white circle and black stripes on it. During the time the accused and [name 1] lived together, [name 1] also had an explosive belt in their home. After his death, the accused inherited this explosive belt along with one of [name 1]’s kalashnikovs.

[name 6]

According to an official report by the Dutch General Information and Security Service (hereinafter also: AIVD), [name 6] travelled to IS-controlled territory around July 2015. According to the AIVD, [name 6] joined IS and participated in the armed conflict.

The police investigated [name 6] on Facebook. According to the official police report dated 20 November 2019, on 5 February 2017, several photos of [name 6] were posted on the timeline of Facebook account Abou Khataab Zizo. The profile photo also featured [name 6]. The reporting officer recognised [name 6] by his appearance. In these photos, the reporting officer observed [name 6] holding two kalashnikovs, with ammunition belts draped over his body. In two other photos, [name 6] was seen wearing combat gear, including a so-called combat vest. At the hearing, the accused stated that [name 6]’s kunya was [name 14].

The police also established that [name 6] appears in the documentary De Lokroep. [Name 6] was interviewed, and this interview is featured in the third episode of said documentary. The police watched this episode and, according to the official report of findings dated 6 April 2020, several photos were shown during the episode. One of these photos depicted [name 6] holding an automatic firearm and posing in front of an IS flag. Another photo showed [name 6] wearing blue overalls and sitting among a group of men all dressed in green uniforms. Several of these men were making the tawheed gesture with their index finger. The reporting officer explained that this gesture is frequently used by IS fighters when posing for photos. Furthermore, the reporting officer stated that, based on [name 6]’s position and the difference in clothing compared to the rest of the group, it could be inferred that he possibly held a leadership role within this group.

On 26 January 2018, Turkish news agency YeniKapiHaber6 published an article. According to this article, [name 6] stated during his interrogation by the Counter-Terrorism Department that he had used codename [codename] during the two years he spent with IS.

In light of the foregoing, the District Court is of the opinion that, in any case during the period prior to his marriage to the accused, [name 6] fought for IS.

Gathering knowledge whilst in Syria

During her stay in Syria, the accused engaged, among other things, in acquiring knowledge about her faith, about violent Salafism, and about jihad. At the hearing, the accused stated that she had learned in Syria that the shedding of blood was permissible when it concerned non-believers, that violence against Shiites was legitimate, that takfir was allowed, that carrying out attacks was permitted, and that rules should be derived exclusively from the Quran and the Sunnah. The accused acquired this knowledge in part from the women she met in Syria, including [name 5] (the fourth wife of [name 1]) and [name 6]. The accused also obtained information via [name 1]’s laptop. According to her statement, the accused studied the following on the laptop:

• The Nullifiers by Abdul Wahhab;

• Lectures on Tawheed by Ahmad Jibril;

• The Tawheed ur-Rububiyyah, Tawheed ul-Uluhiyyah en Tawheed al-Asmaa was Sifaat;

• The Three Fundamental Principles by Abdul Wahhab;

• Lectures by Salafist preachers Al-Fawzan and Abu Ismail.

Threat to [injured party 1]

On 9 January 2015, a person using Twitter account [account 1] posted the following tweet: ‘Making preparations to take @[name 9]'s life. Kind regards, from the caliphate.’ Attached to this tweet was a photo showing a firearm and several travel documents. [Name 9] is the Twitter account of journalist [injured party 1] (hereinafter also: [injured party 1]). On 30 June 2020, [injured party 1] made a formal complaint of threats. In her statement, she explained that she saw the tweet immediately and became acutely aware of the seriousness of the situation and the fear that someone intended to kill her.

The police established that the firearm shown in the photo is a (semi-)automatic weapon, specifically an AK-47. The wooden stock of the firearm features a white dot with two black markings. The accused stated that she recognised the firearm depicted as belonging to [name 1].

Threat to [injured party 2]

(Hereinafter also: [injured party 2]) made a formal complaint of threats on 17 July 2020. [Injured party 2] is a journalist and stated that she had written an article in which she mentioned the kunya of a Dutch jihadist named [name 10], the brother of [name 1]. This jihadist became angry about this, and following this, the reporting person received, among other things, messages from Facebook account [account 2]. Late 2014 / early 2015, an individual using the name [account 2] on Facebook posted multiple messages on the public timeline of [injured party 2], namely:

- ‘How did you get our profiles? All the info? You're not around the corner, otherwise I'd walk up to you with my AK-47. Yes and this is a threat you ugly offspring of the apes and pigs. I would love to let you head roll. Ugly bitch yuck’;

- ‘First you contact my family for interview this that, and then you go undercover’;

- ‘Is eagerly waiting for you. Better for you that you remove everything from your Twitter account’;

- ‘And remove yourself from our lists.’

In addition to the above messages, the user of Facebook account [account 2] also posted a photo of a firearm on [injured party 2]’s timeline. The police established that the weapon shown in the photo bore the appearance of a (semi-)automatic firearm, namely an AK-47.

[Injured party 2] stated that she was frightened and deeply alarmed by these messages, especially given that, in the same period – namely late 2014 – many journalists were being beheaded by IS.

Social media

The AIVD has drawn up an official report concerning the accused. This report states that, at least in early 2015, the accused used Twitter accounts @[account 3] and @[account 4]. Based on the annex to the AIVD report, the District Court finds that the profile name linked to @[account 3] is [name 11], and that the profile name linked to @[account 4] is The Real [name 11]. The report further states that the accused used Facebook account [name 12] in late 2014 and early 2015, and most likely Facebook account [name 11] in late 2014.

The accused has stated that Twitter account [name 11] is hers. The following tweets were posted on that account:

- ‘The love of Jihad, till martyrdom do us part zawji’; and

- ‘From a lovely life under the Islamic State, drinking tea with moi, gaining knowledge. To Dar al-Kufr, into the cell o.O’.

The accused also stated at the hearing that Twitter account [account 1] is hers.

The District Court establishes that the accused is the user of the Facebook account [name 11]. The District Court bases this conclusion on the following: during the hearing, the accused stated that she went by the name [name 11] while in Syria. According to the information listed on the Facebook account, the user lives in Raqqa and is originally from Apeldoorn. The accused lived in both Raqqa and Apeldoorn. Furthermore, the police report titled Facebook Investigation dated 10 July 2014 states that an individual with the same surname as the accused commented on a photo.

A screenshot of the timeline of Facebook account [name 11] shows that the following message was posted on 6 July 2014:

‘Abu Bakr radi Allahu 'anhu said in his first speech as caliph: 'Oh people, I have been given authority over you, and I am not the best of you. If I do well, support me; if I do wrong, correct me. Truth is honesty, and lying is betrayal. The weak among you will be strong in my eyes until I have secured his rights, in sha Allah; and the strong among you will be weak in my eyes until I have taken the rights of others from him, in sha Allah. If a people abandon jihad in the cause of Allah, Allah will disgrace them. And if foul language becomes widespread among a people, Allah will strike them with calamity. Obey me as long as I obey Allah and if I disobey Allah and His Messenger, then you owe me no obedience. Stand up for the Salat, may Allah have mercy on you.'

The District Court further finds that the accused is the user of Facebook account [name 12]. In reaching this conclusion, the District Court considers the following: the AIVD report mentioned above states that the accused used Facebook account [name 12] in late 2014 and early 2015. Further police investigation into this account revealed that the date of birth of the user of this account matches that of the accused. Moreover, on 27 January 2015, the accused’s mother posted messages on the timeline of that account, including: ‘Love you, big kissssssss mummy xxx’ and ‘Child of mine, weeds grow in your garden, child of mine, I did not plant this.’

According to the police report dated 18 January 2022, the following posts were published on the timeline of Facebook account [name 12] on 23 November 2014 and 5 January 2015:

- 'We of #IS warmly welcome the NL soldiers in 2015!' The police described that this message was accompanied by a photo depicting what appeared to be an execution;

- 'Dawlah has shot down helicopters!! Takbeer!!!!! Dawlatul Islam Baqiyah Bi Indi Allah …'

The phrase 'Dawlatul Islam Baqiyah Bi Allah’ has been translated and means: 'The Islamic State shall remain, with the permission of Allah.'

- A caricature in which IS is admonished as 'mujahideen defending the ummah', and is referred to as 'takfiris’;

- An image showing a convoy of IS vehicles with the text 'the dogs bark, but the caravan moves on', accompanied by the caption: 'Baqiyah Baqiyah Baqiyah Bi Indi Allah'.

Regarding Count 1 - pillaging

Introduction

Under Count 1, the accused is charged with pillaging, either alone or in conjunction with other persons. She is alleged to have pillaged residences and other properties (i.e. household goods) in the Syrian towns of Atme, Tell Abyad and Raqqa during the period from 1 April 2014 up to and including 30 November 2016.

The indictment is based on Article 6, paragraph 3, under e, Wim, which criminalises the pillaging of a town or place. This provision reflects Article 8, paragraph 2, under e (v) of the Rome Statute, which qualifies pillaging as a war crime.

Legal framework

Pillaging is not further defined in the Wim. The District Court has taken into account the case law of international criminal tribunals and the International Criminal Court. In addition, the District Court has taken into account the Elements of Crimes relating to Article 8, paragraph 2, under e (v) of the Rome Statute. For a declaration of charges proven regarding pillaging, the following elements must be satisfied:

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.

Assessment

Accordingly, the District Court must establish, among other things, whether property was appropriated without the consent of the owner.

Atme

The accused has stated that [name 1] arranged the residences and that she stayed in a residence in Atme during the period April-May 2014. At that time, Atme was under the control of Jabhat al-Nusra, after ISIL had withdrawn from Atme in January 2014. Regarding the residence in Atme, the accused stated that the residence contained belongings of other people, that there was still food in the pans, and that she had the impression that the original residents could have returned. According to the accused, the items were thrown away and [name 1] purchased new ones. The accused further stated that she did not give any thought to the fact that the owners had fled, because she assumed they had failed to comply with the rules and that this was what would happen in such cases.

Neither the case file, nor the accused’s statements at the hearing provide any indication as to whom the residence belonged to. It also remains unclear how the accused and [name 1] acquired the residence; the accused stated only that [name 1] had ‘arranged’ that residence. Moreover, the file contains no information about Atme after ISIL’s withdrawal in January 2014, during the period in which the accused stayed there.

The District Court finds that the accused made use of the residence in Atme for one month. Although certain circumstances in relation to this residence may suggest that the owners had fled, there is no information in the file that indicates who the owners were or under what circumstances they left. As it is not evident that the residence was pillaged, more information about the origin of the residence is required to reach such a conclusion. Therefore, it cannot be established that the accused, either alone or in conjunction with other persons, appropriated the house without the owners’ consent.

Tell Abyad and Raqqa

After her stay in Atme, the accused lived in a residence in Tell Abyad in the period from May 2014 to February 2015. Tell Abyad had been under IS control since 2013. Regarding this residence, the accused stated that it was more attractive than the one in Atme and that the residence was furnished. At the hearing, the accused stated that [name 1] had arranged this residence and that she did not ask any further questions.

Following Tell Abyad, the accused lived in various residence in Raqqa from February 2015 to December 2016. In early 2014, the city of Raqqa came under the complete control of IS and was considered the capital of the caliphate declared in June 2014.

The accused stated that [name 1] had also arranged the residences in Tell Abyad and Raqqa. The case file contains no information as to who owned these residences (including their contents) where the accused stayed, how [name 1] obtained these residences, or under what circumstances the owner had left the house. Therefore, the mere absence of the owner is not sufficient to conclude that the appropriation took place without the owner’s consent. In the opinion of the District Court, as with the residence in Atme, it cannot be established that the accused appropriated the residences in Tell Abyad and Raqqa, either alone or in conjunction with other persons, without the owners’ consent.

The District Court further notes that neither the knowledge document ‘The Islamic State: Spoils of War and Pillaging’ included in the case file nor the statement given by witness Moussa alter this conclusion. While the knowledge document and the witness statement do indicate that IS engaged in pillaging on a large and systematic scale, this alone does not allow the conclusion to be drawn that the residences in Tell Abyad and Raqqa in which the accused stayed were the result of pillaging. This applies even more strongly to the house in Atme, given that IS was not in power there during the period that the accused stayed there.

In conclusion, the District Court finds that it has not been proven lawfully and convincingly that the accused, either alone or in conjunction with others, committed the war crime of pillaging. The accused will be acquitted of the charges under Count 1.

Conditional request to hear witness [witness]

The defence submitted a request to hear witness [witness], should the District Court find the charges under Count 1 proven insofar as it relates to the period during which the accused resided in Tell Abyad. As the District Court will acquit the accused of the charges under Count 1, this conditional request requires no further consideration, as the condition for the request has not been met.

Regarding Count 2 participation in a terrorist organisation

Introduction

Under Count 2, the accused is charged, in brief, with participation in terrorist organisation IS, during the period from 16 March 2014 up to and including 5 January 2018, in Syria, either alone or together and in conjunction.

Legal Framework

Terrorist organisation

Pursuant to Article 140a, paragraph 1, Sr, it should concern a terrorist organisation whose objective it is to commit terrorist offences. The objective of the organisation – which may consist of a fixed or changing group of persons – must therefore be aimed at committing (specific) offences as listed in Article 83 Sr, provided that these are committed with the terrorist intent as defined in Article 83a Sr.

In Article 83a Sr, terrorist intent is defined as the intent to instil serious fear in a country’s entire population or a specific group thereof, or to unlawfully force a government or international organisation to do, 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 context of the organisation may be taken into account; to the more sustained or structured nature of the cooperation – as may be evidenced by the mutual division of work or the mutual coordination of activities among participants within the organisation with a view to achieving the organisation's common objective – and, more generally, to the planned or systematic nature of the activities of participants carried out for this purpose within the organisation.

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

Participation

Participation in a terrorist organisation can only be established if the accused belongs to the association and has a share in acts that serve or are directly related to the realisation of the objective to commit terrorist offences, or if the accused supports the aforementioned acts.

Such a share may consist of (co-)committing any offence but may also take the form of providing assistance that is not punishable in itself, as long as it furthers the terrorist organisation’s objective. It is sufficient that the accused is aware, in general terms within the meaning of unconditional intent, that the organisation's objective is to commit terrorist offences. It is not required that the accused has any form of intent with regard to the specific offences envisaged by the terrorist organisation. Nor is it required that the accused has participated or participates in the commission of offences committed or to be committed by (members of) the organisation.

Assessment

IS as a terrorist organisation

It is a matter of general knowledge that, in the spring of 2011, a large part of the Syrian population began peacefully opposing the regime of president Bashar al-Assad. Over the course of 2012, it became evident that jihadist groups such as IS, composed of both local and foreign fighters, became increasingly involved in the uprising in Syria.

It is now established case law that during the period to which the charges pertain, IS had the objective of destroying Syria’s fundamental political structure and of instilling serious fear in the population and that participation in the armed conflict in Syria on the side of IS entails the commission of terrorist offences.1 During the period to which the charges pertain, IS reached its goals – including the replacement of the existing political structure with a structure based on sharia – in part by sowing death and destruction among all those who did not share its extremely fundamentalist ideology. Therefore, IS can be regarded as an organisation whose objective it is to commit terrorist offences within the meaning of Article 140a Sr.

Participation of the accused in IS

The District Court, based on the examination during the hearing and the content of the legally admissible evidence, is of the opinion that the accused participated in IS, and will set out its reasoning below.

Based on the facts previously established, it is not in dispute that [name 1], the accused’s first husband, participated in terrorist organisation IS as a fighter during the period to which the charges pertain in Syria. He was a member of this organisation and carried out acts aimed at or directly related to achieving the terrorist objectives of this organisation. He was a fighter, a commander, and planned drone attacks. He died in late 2016 after carrying out a suicide attack in the name of IS.

Based on the facts previously established, it is not in dispute that the accused’s second husband, [name 6] (or: [name 7]), fought for IS prior to their marriage. What is in dispute is whether he continued to be a fighter for IS during their marriage. According to the accused, he was no longer with IS and worked solely as a baker. The District Court finds this explanation to be utterly implausible. The alternative scenario presented by the accused finds no support in the case file either. It is from the outset entirely unlikely that in IS-held territory [name 6], as an IS fighter, would have been able to withdraw from IS combat and simply work as a baker. The accused further told the police that she came into contact with [name 6] through an IS marriage office, where he was registered as a potential marriage candidate. According to the knowledge document Women of the Islamic State, such offices registered single women and widows in order to marry them to IS fighters. The District Court therefore also concludes from this that [name 6] was an IS fighter. That [name 6] also remained an IS fighter during their marriage is, in the District Court's view, further supported by a message the accused sent to her mother on 3 June 2017, after fleeing Raqqa. She stated, after all, that her husband had stayed behind because he had to protect the city. On 23 July 2017, the accused sent a WhatsApp message to her mother indicating that she was due to give birth on 24 January 2018, followed by another message on 30 July 2017 in which she stated that she was now only receiving thirty-five dollars a month. The District Court concludes from this that the accused was also financially supported by IS during her marriage to [name 6]. In light of all the foregoing, the District Court finds that [name 6], the accused’s second husband, also was an IS fighter during their marriage.

The evidence shows that the accused, while already having some knowledge of jihadist ideology, entered into a marriage under Islamic law and subsequently travelled to Syria, where she placed herself – initially with her first husband and later with her second husband – under the authority and rules of sharia as imposed by terrorist organisation IS. The accused maintained a joint household with her husbands, while [name 1] and [name 6] actively participated as fighters for IS and received salaries from IS. During her time in Syria, the accused studied IS’s jihadist ideology and fully supported it at that time. She also posted messages on social media glorifying life under IS rule. Through such actions, the accused contributed to increasing the numerical strength of IS’s sphere of influence and potentially encouraged others to join IS. In addition, the accused, together with her first husband, possessed firearms and an explosive belt. In doing so, the accused committed acts that served or were directly related to the realisation of IS’s terrorist objective. According to her own statement at the hearing, the accused was generally aware of IS’s terrorist intent. She testified, for instance, that during her stay in Syria she was aware of the executions that were taking place in Raqqa. In light of the above, considered in conjunction, the District Court finds it legally and convincingly proven that the accused participated in the terrorist organisation, within the meaning of Article 140a Sr.

From 6 July 2014

The District Court assumes that the accused participated in terrorist organisation IS at least from 6 July 2014, the day on which the accused, through her Facebook account [name 11], quoted the words of Abu Bakr al-Baghdadi, who had declared the caliphate on 29 June 2014 and presented himself as caliph.

Partial acquittal

Together with the Public Prosecutor, the District Court is of the opinion that the case file does not show that the accused acted jointly and in conjunction with (an)other person(s). The accused will therefore be acquitted of the co-perpetration charged against her.

Conclusion

In view of the above, the District Court finds that, in the period from 6 July 2014 up to and including 1 January 2018, in Syria, the accused participated in an organisation whose objective it was to commit terrorist offences, namely IS.

Regarding Count 3 - preparatory acts

Introduction

Under Count 3, the accused is charged, in brief, with having committed preparatory or facilitative acts, in the period from 4 August 2013 up to and including 5 January 2018 in the Netherlands, Syria and/or Iraq, either alone or in conjunction with (an)other person(s), to commit offences such as arson, manslaughter and/or murder with terrorist intent.

Legal Framework

The preparatory and facilitative acts described in Article 96, paragraph 2, Sr are punishable regardless of their outcome. It is required that the perpetrator engages in the conduct with the intent of preparing for or abetting the commission of the relevant terrorist offence.

Conditional intent with regard to the preparation or abetment of a terrorist offence is not sufficient. The offence being prepared or abetted must be sufficiently concrete to determine that it is an offence as referred to in Article 96, paragraph 2, Sr of which the preparation and abetment is punishable. Accordingly, the time, place and manner of execution must be concrete to some extent. The charged preparatory and facilitative acts may be considered in conjunction. Even if individual acts do not constitute punishable preparation on their own, the combination of all acts, together with the accused’s ideological convictions, may establish the intent of the accused to prepare for the commission of a terrorist offence.

Assessment

The District Court considers the following, referring to its reasoning regarding Count 2.

In light of the factual findings set out above, in conjunction with the other evidence relied upon by the District Court, the District Court finds that the acts charged under A, B, C, E, F, G and H have been lawfully and convincingly proven, as reflected in the declaration of charges proven. The District Court agrees with both the Public Prosecutor and the defence counsel that this does not apply to the acts charged under D. The accused will therefore be acquitted of that part of the charge.

Contrary to the position of the defence counsel, the District Court does find the acts charged under F to have been proven. The accused joined IS, facilitated her husbands in their contributions to IS’s armed jihad, and promoted life under IS rule via social media. Through such actions, the accused participated in and contributed to IS’s armed jihad.

By acting in this way, the accused provided herself or others with the opportunity, means and information necessary to commit the terrorist offences mentioned under Count 3 of the indictment, and, by possessing a firearm and an explosive belt, possessed objects which she knew were intended for the commission of such an offence.

From the combination of the acts found proven under A, B, C, E, F, G and H, considered in their mutual context, the intent of the accused to prepare for the commission of these offences can be inferred.

Partial acquittal

The District Court finds that the case file does not show that the accused acted jointly and in conjunction with one or more other persons. The accused will therefore be acquitted of the charge of co-perpetration.

Conclusion

Based on the foregoing, the District Court concludes that the accused, in the period from 15 August 2013 to 1 January 2018, committed preparatory or facilitative acts to commit offences such as arson, manslaughter and/or murder with terrorist intent.

Regarding Counts 4 and 5 - threat with a terrorist offence

Introduction

Under Counts 4 and 5, the accused is charged, in brief, with having threatened [injured party 1] and [injured party 2] in Syria and/or the Netherlands with a terrorist offence, or alternatively, with an offence against life and/or with grievous bodily harm.

Threat against [injured party 1]

On 9 January 2015, a person posing on Twitter as [account 1] posted the following tweet: ‘Making preparations to take @[name 9]'s life. Kind regards, from the caliphate.’ This threatening tweet was accompanied by a photo showing a firearm and several travel documents. ‘[Name 9]’ is the Twitter account of journalist [injured party 1] (hereinafter also: [injured party 1]).

The accused, who used the name [name 11] while in Syria, had a Twitter account named [account 1]. She lived in Tell Abyad from May 2014 to February 2015, where, according to her own statement, she had access to the internet and social media. The accused’s sister, [sister of the accused], also stated that at one point the accused had internet access and that they communicated via WhatsApp.

The question is whether it was the accused herself who posted the threatening tweet to [injured party 1], or whether someone else did, as the accused has claimed, referring to her husband [name 1], who also used her social media accounts.

The accused stated that, on 9 January 2015, she herself had posted the following tweet from account [account 1]: ‘Still getting letters from DUO asking me to repay six months of student finance +- €7200, you can all go and get lost #jihadbride#IS.’ This tweet follows immediately on 9 January 2015 under the article on geenstijl.nl titled ‘Caliphate bride announces attack on [injured party 1]’ and the aforementioned threatening tweet directed at [injured party 1]. Immediately following these tweets, two more were posted in which [injured party 1] was tagged: ‘@[account 5] @[name 9] no worries, then I can put it into practice to seek her out from the caliphate and return’ and ‘@[account 5] @[name 9] they haven’t been confiscated yet so ready for use’. The District Court understands the statement 'they haven’t been confiscated yet so ready for use' to mean that the travel documents shown in the photo have not in fact been confiscated and can still be used for travel purposes.

Given that the tweet concerning DUO and the tweets about seeking out [injured party 1] contained personal details relating to the accused – namely, that the accused had a student debt with DUO and that her passport had been confiscated on 18 February 2014 – and that these tweets were posted directly following the threatening tweet to [injured party 1], it has not become plausible that someone other than the accused posted the threatening tweet. On the basis of the above, the District Court finds that the accused was the one who did that.

The question is furthermore whether the threatening tweet to [injured party 1] constitutes a threat with a terrorist offence.

Legal framework of threat with a terrorist offence

Threat with a terrorist offence is criminalized under Article 285, paragraph 3, Sr. This article requires that a threat with a terrorist offence is made. Accordingly, the offence in question must be one of those listed in Article 83, Sr. Insofar as Article 83 requires that this terrorist offence be committed with terrorist intent as defined in Article 83a Sr, that circumstance, however, does not imply that the accused himself must have acted with such terrorist intent when issuing the threat with a terrorist offence under Article 285, paragraph 3, Sr. It is required, however, that the threat be of such a nature and made under such circumstances that the person threatened could reasonably have feared (a) that the offence threatened was a terrorist offence, and (b) that the offence would actually be carried out. In light of the definition of terrorist intent in Article 83a, for those terrorist offences that require such intent, a conviction for threatening with such a terrorist intent requires that the evidence demonstrate that the person threatened could reasonably have feared that the offence to be committed was aimed at (i) instilling serious fear in a country’s entire population or a specific group thereof, or (ii) unlawfully forcing a government or international organisation to do, not do or to tolerate something, or (iii) seriously disrupting or destroying the fundamental political, constitutional, economic, or social structures of a country or an international organisation.Additionally, such a conviction requires that the accused had – at least conditional – intent aimed at instilling this fear to arise.2

Assessment

The District Court considers that the offence the accused threatened with – namely, the killing of [injured party 1] (murder) – is listed in Article 83, paragraph 1, Sr. This means that the offence may be qualified as a terrorist offence if committed with terrorist intent within the meaning of Article 83a Sr. Contrary to the defence, the District Court finds that this is the case and considers as follows.

The threatening tweet was posted at a time when IS was kidnapping and executing journalists and distributing footage of these executions online. These events and images also reached the Netherlands and were widely reported in the media – for example, the beheading of photojournalist James Foley in August 2014. By closing the threatening tweet with ‘Kind regards, from the caliphate’ and using the IS flag as a profile picture, the accused presented herself as a participant in IS, which at that time she indeed was. Taken together with the fact that the accused posted the statement on Twitter, a public social media platform, means that the offence ‘to kill [injured party 1’] can, by objective standards, be considered an offence committed with the intent to instill serious fear in the Dutch population or a part thereof. In view of the considerations above, the person threatened could also reasonably have feared that the offence threatened was intended to instill serious fear in the Dutch population or a part thereof, and that this offence would also be carried out.

Finally, the District Court finds that – in light of the nature and wording of the statement and the circumstances under which the accused used these words – the accused at the very least consciously accepted the significant likelihood that this fear would arise in the person threatened.

Threat against [injured party 2]

In late 2014/early 2015, a person using Facebook account [account 2] posted several messages on the public timeline of [injured party 2], namely:

- ‘ How did you get our profiles? All the info? You're not around the corner, otherwise I'd walk up to you with my AK-47. Yes and this is a threat you ugly offspring of the apes and pigs. I would love to let you head roll. Ugly bitch yuck’;

- ‘ First you contact my family for interview this that, and then you go undercover’;

- ‘ Is eagerly waiting for you. Better for you that you remove everything from your Twitter account’;

- ‘ And remove yourself from our lists.’

In addition to the above messages, the user of Facebook account [account 2] posted a photo of a firearm on [injured party 2]’s timeline, which the police identified as an AK-47.

The first question is whether the accused is the user of Facebook account [account 2]. The accused denies this.

As previously established, the accused lived in Tell Abyad from May 2014 to February 2015 and had access to the internet and social media at that time. One part of the messages posted on [injured party 2]’s timeline – namely with the text ‘First you contact my family for interview this that, and then you go undercover’ – can be linked to the accused personally. After all, both the accused and her stepmother stated that [injured party 2] had appeared at the home of the accused’s mother pretending to be a police officer in order to gather information, in other words: ‘went undercover’. That [injured party 2] was seeking information also follows from a WhatsApp conversation dated 4 August 2019 between the accused and her mother, in which her mother writes: ‘that is what she wants… for you or me to react… she never got what she wanted because she even called me at work and I never wanted to talk to her’. This WhatsApp conversation also shows that both are angry with her. In this context, it is also notable that the accused, in one of the messages, used the word ‘pigs’, and that the accused in a WhatsApp conversation with her mother on 4 August 2019 stated the following about [injured party 2] ‘That pig only wants to make money’.

Finally, the District Court considers it significant that the AIVD has established that the accused very likely used Facebook account [account 2] in late 2014.

In light of all this and viewed in their mutual context, the District Court finds that the accused was the user of Facebook account [account 2] and that she posted the threatening texts on [injured party 2]'s public timeline.

Again, the question here is whether the charged texts combined with the photo of the AK-47 can be classified as a threat with a terrorist offence.

The District Court considered that the offence with which the accused threatened, to shoot down [injured party 2] (murder), is included in Article 83, paragraph 1, Sr. This means that the offence qualifies as a terrorist offence if it is committed with terrorist intent within the meaning of Article 83a Sr. Unlike the defence, the District Court is of the opinion that this is the case and considers the following in this regard.

As also considered above, the messages were posted on Facebook at a time when IS was taking journalists hostage and executing them and distributing footage of these executions online. The accused was residing in Syria at the time the messages were posted and was an IS participant. This viewed in conjunction with the fact that the accused posted the utterance on the public timeline of the reporting person, who is a journalist and has written about the Middle East, means that threatening to shoot [injured party 2] with an AK-47 can, according to objective standards, be regarded as an offence whose objective it is to instil serious fear in the Dutch population or a part thereof. Furthermore, the District Court is of the opinion that this means that the person threatened could also reasonably fear that the offence threatened was aimed at instilling serious fear in the Dutch population or a part thereof and that this offence would also be carried out. All the more so since the reporting person was approached by the accused after she wrote about a Dutch jihadist and this jihadist did not like this. Finally, the District Court is also of the opinion that, in view of the nature and wording of the utterance and the circumstances under which the accused used these words, the accused at least consciously accepted the substantial chance that this fear would arise in the person threatened.

Conclusion

In view of what has been considered above, the District Court finds that, on 9 January 2015, the accused threatened [injured party 1] and in late 2014/early 2015 [injured party 2] with a terrorist offence.

Declaration of charges proven

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

2

she in or around the period from 6 July 2014 up to and including 1 January 2018 in places in Syria, participated in a terrorist organisation, namely Islamic State (IS), whose objective it was to commit terrorist offences, namely,

A. arson and/or causing an explosion, this constituting a general danger to property and/or danger of grievous 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 Dutch Criminal Code), (to be) committed with terrorist intent and

B. manslaughter (to be) committed with terrorist intent (within the meaning of Article 288a of the Dutch Criminal Code) and

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

D. 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 Dutch Criminal Code) and

E. 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 Dutch 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 Dutch Weapons and Ammunition Act);

3.

she in or around the period from 15 August 2013 up to and including 1 January 2018 in one or more place(s) in the Netherlands and in Syria, with the intention of committing, in preparation for and/or in abetment of the offence(s) to be committed (on several occasions):

- arson and/or causing an explosion, this constituting a general danger to property and/or danger of grievous 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 Dutch Criminal Code), (to be) committed with terrorist intent and/or

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

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

- attempted to persuade another person to commit the offence, to cause another person to have a third person commit the offence or to assist in this or to provide opportunity, means or information, and/or

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

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

after all, she, the accused,

A. adopted the radical extremist ideology of armed jihad with terrorist intent, waged by the (terrorist) organisation Islamic State (hereinafter IS);

B. sought information about travelling to Syria and/ joining terrorist organisation IS;

C. undertook the journey to Syria with the aim of going to the conflict zone there, and joining terrorist organisation IS;

E. joined IS fighters and entered into a marriage (under Islamic law) with IS fighters;

F. participated in and contributed to the armed jihad conducted by terrorist organisation IS,

G. expressed herself (via internet/social media channel(s)/media platform(s)) and

communicated with (another) person(s) and posted and shared messages and images relating to and/or containing (inter alia) (violent) jihadist-tinted and/or (pro)IS-related content;H. possessed firearms and a bomb belt,

in which armed jihad murder and/or manslaughter and/or arson and/or causing explosions is committed, on each occasion with terrorist intent;

4.

she on 9 January 2015 in the Netherlands, threatened [injured party 1] with a terrorist offence, by posting via the publicly accessible Twitter account [account 1] a message (tweet), which message contains a picture of an AK-47 and the text: ‘Making preparations to take @[name 9]'s life. Kind regards, from the caliphate’;

5.

she in the period from 1 July 2014 up to and including 31 May 2015 in the Netherlands, threatened [injured party 2] with a terrorist offence by using Facebook account [account 2] to place a message (post) on the public timeline of [injured party 2]'s Facebook page, which message contains a picture of an AK-47, and the text:

- ‘ How did you get our profiles? All the info? You're not around the corner, otherwise I'd walk up to you with my ak-47. Yes and this is a threat you ugly offspring of the apes and pigs. I would love to let your head roll. Ugly bitch yuck’;

- ‘ Is eagerly waiting for you. Better for you that you remove everything from your Twitter account And remove yourself from our lists’.

6. Criminal nature of the proven facts

7. Criminal liability of the accused

8. Sentencing

Request of the Public Prosecutor

The Public Prosecutor requested that the accused be sentenced to a term of imprisonment of 860 days, with deduction of the time spent in pre-trial detention, of which 720 days are to be suspended, subject to a probation period of five years, and with the following special conditions: the obligation to report, residence in forensic supported accommodation provided by Transfore, outpatient treatment, guidance in independent living, other behaviour-related conditions, and a restraining order with [name 13], [injured party 1], and [injured party 2]. The Public Prosecutor requested that the special conditions be enforced immediately. Furthermore, the Public Prosecutor requested that the accused be sentenced to a community service of 240 hours, or alternatively, 120 days of detention.

Position of the defence

The defence, on behalf of the accused, requested the District Court to take into account, when determining the sentence, the already lengthy duration of the suspension of pre-trial detention, the substantial exceeding of the reasonable time limit, the detention already served both in the Netherlands and in Turkey, and the freedom-restricting measures imposed over the past four years. The defence further requested the District Court to consider the conclusions of the Pro Justitia reports concerning the accused’s criminal responsibility. It has also been argued that the accused agrees with the conditions currently proposed by the probation service, with the exception of the recommended behavioural intervention and freedom-restricting measure.

Decision of the District Court

The punishments below are in accordance with the severity of the offences committed, the circumstances under which they were committed and based on the person 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 offences

In March 2014, the accused travelled to Syria, where she joined her first husband, whom she had married under Islamic law just a few days prior to her departure. On 6 July 2014, the accused joined terrorist organisation IS. After the death of her first husband, she entered into another marriage under Islamic law shortly thereafter with another IS fighter. Throughout both marriages, she facilitated her husbands by running the household and caring for them. Until the end of her stay in Syria, the accused participated in IS. In addition, in preparation for and in abetment of terrorist offences, the accused adopted the ideology of IS, travelled to the conflict zone in Syria, entered into marriages under Islamic law with IS fighters, contributed to the armed jihad of IS, promoted IS through the internet or social media, and possessed firearms and an explosive belt.

Battle groups such as IS aim to establish an Islamic state in which the rights of dissenters are systematically and extremely violently violated. Such groups commit widespread and grave human rights violations, including summary executions, murder, torture, and mutilation of prisoners of war and civilians. Moreover, many of these crimes are committed with the explicit aim of instilling fear in the local population and therefore undoubtedly qualify as terrorist offences.

Terrorism is internationally recognised as one of the most severe forms of offences. The accused entirely disregarded this and showed no regard for the unimaginable suffering inflicted on many people in the conflict zone and beyond.

In addition, the accused is guilty of threatening with a terrorist offence by, in brief, announcing on social media her intention to kill two journalists. These threats were directed at the two journalists but were visible to the public, as they were posted on the open platforms Twitter and Facebook. At the time of posting the messages, the accused was residing in Syria, and she made these statements shortly after, among other incidents, the IS execution of photojournalist James Foley. The messages sent by the accused caused, as evidenced by the formal reportings and victim statements, genuine fear in the victims. Fear they did not only feel at the time of receipt of the messages but especially also years later, when it became known that the accused had returned to the Netherlands. Threatening with a terrorist offence is a grave and deeply frightening offence, particularly in a time when also many other countries face the reality or threat of terrorist attacks. The accused failed to recognise the impact of her actions on the victims and on society at large. The District Court considers this to weigh heavily against the accused.

Criminal record

The District Court has taken cognisance of the criminal record of the accused dated 16 January 2024. It shows that the accused has not previously been convicted of a criminal offence.

The person of the accused

With regard to the person and personal circumstances of the accused, the District Court has taken into consideration the following documents:

– the Pro Justitia triple assessment concerning [accused], dated 25 October 2020;

– the letter Supplementary questions regarding [accused];

– the supplementary psychological and psychiatric Pro Justitia examination concerning [accused], dated 21 December 2022;

– the probation service advice TBS [court-imposed psychiatric measure] with conditions, dated 5 July 2023;

– the probation service advice Court hearing, dated 26 February 2024.

Mental disorders and/or developmental deficiencies

Experts Grochowska and Van Casteren concluded in the Pro Justitia report of 25 October 2020 that, at the time the offences charged under Counts 2 and 3 were committed, the accused was suffering from a borderline personality disorder. The experts concluded that this psychiatric disorder had influenced the accused’s behavioural choices and actions at the time of the alleged offences.

The borderline personality disorder manifested itself in the accused through an unstable self-image, unstable personal relationships, and a poorly integrated emotional life. This led to an underdeveloped sense of identity and limited autonomy. Driven by a need for safety, calm, stability and structure, the accused sought something that could offer her these things. Islam offered the accused a sense of structure – a clear guide in life. The fundamentalist version in particular, propagated by IS, with its unambiguous rules that allowed no discussion or deviation, appealed to the accused. She threw herself into these rules and prohibitions and radicalised very rapidly. When youth care services removed her son from her custody, the accused’s world collapsed. In her loneliness and despair, she seemed to cling even more desperately to religion, seeing as her only solution a life in Syria where she could live undisturbed as a Muslim woman, free from the interference of youth care services or other institutions. The fact that she would have to leave her son behind in the Netherlands was something she was willing to accept. In her perception, she had already lost him. The experts conclude that this illustrates the depth of her despair.

In the supplementary psychological and psychiatric report of 21 December 2022, the experts conclude that, in relation to the offences charged under Counts 1, 4 and 5, her behaviour could partly be attributed to her borderline personality disorder. Regarding Counts 2 and 3, the opinion of the experts remains unchanged.

Criminal responsibility

Experts Grochowska and Van Casteren advise the District Court to hold the accused criminally responsible to a diminished extent for the offences charged. The accused’s personality disorder significantly influenced her thoughts, emotions and actions at the time of the charged offences. However, there was no complete absence of free will or such a severely impaired judgement that full criminal irresponsibility could be established.

Risk of recidivism

In the Pro Justitia report dated 25 October 2020, experts Grochowska and Van Casteren assessed the risk of violent extremist behaviour as moderate to high. In the short term, given the supervision in place and the restrictions imposed, they estimated the risk as low. However, they warned that the long-term risk could rise to high. The experts substantiated this by noting that the accused, due to her personality disorder and underdeveloped identity, finds it extremely difficult to distance herself from old patterns of thinking. The accused is highly suggestible and particularly susceptible to extremist Islamic beliefs. According to the experts, she also strongly identifies with the IS interpretation of Islam. Due to her uncritical attitude, the accused is inclined to unthinkingly adopt whatever she is told. She also has a strong need to be accepted, to belong, and to be approved of. In addition, the experts concluded that there is a substantial risk that the accused may once again fail to resist Muslim extremist influence if exposed to such individuals or groups in the future.

In the additional psychological and psychiatric assessment of 21 December 2022 – over two years later – the experts reassessed the risk of recidivism as moderate to low. In the current assessment, the experts note that the accused has turned away from IS ideology and has also undergone significant change in her religious outlook. As a result of treatment over the past two years, the accused has become less rigid in her beliefs and more receptive to differing viewpoints. She now also demonstrates greater self-reflection, increased awareness of others and their rights and needs, and shows empathy.

In addition, at the time of the report, many protective factors were identified. Apart from the personal development of the accused – which has strengthened her identity and resilience against negative influences by persons with extreme ideology – there is also a structured and intensive therapeutic framework in place, operating within a legal context, including supported accommodation and close supervision from the probation service. The accused is receptive to treatment, engages actively, and is clearly showing positive progress. She also has a supportive social network, particularly her family, and maintains good contact with her children. The accused is focused on the present, her treatment, and her children, and has cautiously started to consider her future.

Treatment options

In the Pro Justitia report dated 25 October 2020, experts Grochowska and Van Casteren conclude that, given the severe personality pathology of the accused and the moderate to high risk of recidivism, an intensive and long-term clinical treatment is indicated. In addition, the experts deem a deradicalisation programme necessary in order to alter the extremist beliefs of the accused. The experts advise that a hospital order with conditions be imposed, in order to safeguard the treatment deemed necessary should the accused fail to cooperate adequately or prematurely terminate treatment. Should the accused demonstrate no willingness or motivation to engage in treatment, the experts state that a hospital order with compulsory confinement could be considered. Furthermore, the experts strongly advise against any custodial sentence being served in a special department for individuals with a background in Islamist extremist violence or ideology, as the accused is highly susceptible to influence and remains strongly attached to extremist Islamist thinking patterns.

In the supplementary psychological and psychiatric assessment of 21 December 2022, the experts conclude that the accused’s borderline pathology requires prolonged treatment. The experts recommend continuation of the current outpatient treatment at Transfore and the supported housing trajectory. The (outpatient) treatment may be imposed within the legal framework of special conditions attached to a (partially) suspended sentence, or within the framework of a hospital order with conditions. The experts express a preference for a hospital order with conditions, as although the accused functions well in a protected environment, it will only become clear during the further reintegration process to what extent the convicted person is actually resilient to radical networks of which she was previously part. The background of the accused as a 'Syria traveller', and the associated criminal case, may act as an obstacle to her social reintegration in the Netherlands, potentially leading to frustration on her part and a relapse into old behavioural patterns and she may seek refuge in former networks. A legal treatment framework for the longest possible duration is therefore warranted, allowing her to continue receiving outpatient treatment for an extended period, to be properly monitored, and to enable immediate intervention should she relapse into former patterns. Moreover, the experts consider placement in a correctional facility – particularly in a Terrorism Wing – to be risk-enhancing, as protective factors would then disappear and her treatment would be disrupted, increasing the likelihood of a relapse into previous (thinking) patterns and risk factors that have now receded into the background.

The probation service revised its position in their advisory report of 26 February 2024, compared to the earlier report of 5 July 2023. In view of the accused’s attitude, commitment and positive development throughout the entire duration of the suspension of pre-trial detention, from 8 May 2020 to the present, the probation service advises imposing a suspended sentence instead of a hospital order with conditions. As with the previously proposed hospital order with conditions, it is recommended that the special conditions attached to the suspended sentence be declared immediately enforceable, since there is in their view a risk of an offence resulting in harm to others. The probation service concludes that without a forensic framework, the current housing and support trajectory would lapse, which would be highly undesirable, as the risk of relapse and recidivism would then increase, partly in view of the vulnerability of the accused. It is further advised to impose a behavioural influencing and freedom-restricting measure.

The probation service shares the view of the experts that placement in a correctional facility – and especially in a Terrorism Wing – would increase the risk. The protective factors currently in place would disappear during detention, and the accused’s personal development would stagnate. According to the probation service, it cannot be ruled out that such a situation would have the undesirable effect of causing the accused to fall back into old (thinking) patterns – such as her suggestibility and lack of assertiveness – which have now been pushed into the background through treatment.

Conclusion

In the opinion of the District Court, the reports drawn up by the above-mentioned experts have been produced with due care and the conclusions are supported by a sound and clearly reasoned justification. The District Court therefore adopts these conclusions and makes them its own.

In light of the foregoing, the District Court finds that it has been sufficiently established that the accused was suffering from a borderline personality disorder at the time of the offences, that the accused must be regarded as having diminished criminal responsibility, and that the risk of recidivism under the current framework of suspension conditions is moderate to low.

Type and severity of the sentence

In determining the type and severity of the sentence, the District Court has taken as a point of reference the sentences that are typically imposed in comparable cases. The District Court applies as a guideline a custodial sentence of six years for offences under Articles 140a and 96 Sr, and a custodial sentence of six months per threat for an offence under Article 285, paragraph 3, Sr.

In determining the severity of the sentence, the District Court takes into account the following. The accused spent eighteen months in detention in Turkey and a further five months in pre-trial detention in the Netherlands. She also followed a lengthy clinical treatment programme with commitment and success. Furthermore, since the suspension of the pre-trial detention was granted on 2 April 2020, the accused has been under outpatient treatment. During this suspension, she has complied with all imposed special conditions, including wearing an electronic ankle monitor for a period of time, and has shown a positive development. In addition, the District Court considers that the risk of reoffending under the current framework of suspension conditions is moderate to low and that the offences should be imputed to the accused to a reduced extent.

The District Court cannot, in light of the above considerations, suffice with a lighter or alternative sanction than a sentence which entails, in part, unconditional deprivation of liberty for the duration to be specified below. However, given the positive development shown by the accused as evidenced in the above-mentioned reports, the District Court does not find it appropriate to impose an unconditional custodial sentence that exceeds the number of days already served in pre-trial detention. The reports drawn up regarding the accused indicate that such positive development would be seriously disrupted if she were to be detained again. In this regard, the District Court attaches great weight to the special preventive effect of the sentence to be imposed: by imposing a sentence consisting largely of a suspended term with attached special conditions, the District Court aims to deter the accused from committing further offences in the future. As set out in the submitted reports, the special preventive effect of the sentence would be nullified if the accused were to be imprisoned again.

To the suspended part of the sentence The District Court will attach the conditions as advised by the probation service, with a probation period of five years. The District Court considers a five-year probation period appropriate and necessary in order to ensure long-term support for the accused in maintaining a stable and safe living environment. In line with the Public Prosecutor, the District Court considers that the imposition of the behavioural influencing and freedom-restricting measure, as recommended by the probation service, is not possible: this measure was introduced on 1 January 2018, and the principle of legality prevents its imposition for offences committed before that date.

To mark the severity of the offences proven under Counts 4 and 5, the District Court will also impose the maximum community service order per offence.

Finally, the District Court takes into account, when determining the sentence, the violation of the reasonable time limit for adjudication. That time limit began on 20 November 2019, the date on which the accused was taken into police custody. The general rule in cases such as this is that the trial at first instance should, in principle, be completed with a final judgment within two years. This means that the reasonable time limit has been exceeded by approximately two years and five months. This delay cannot be attributed to the defence, nor can it be justified by the complexity of the case.

Immediate enforceability of special conditions

The accused has, among other things, committed offences that endanger the inviolability of the physical integrity of multiple persons, namely participation in a terrorist organisation and, in brief, the preparation and/or abetment of offences with terrorist intent. In view of the increased risk of recidivism should the suspension conditions lapse, the District Court is of the opinion that there is a serious risk that the accused will commit such an offence again. Therefore, the District Court will order that the conditions to be imposed pursuant to Article 14c Sr and the supervision to be exercised under Article 14c Sr shall be immediately enforceable.

9. Claims of the injured parties

Position of the Public Prosecutor

The Public Prosecutor has concluded that the claims of the injured parties should be granted, along with the imposition of the compensation order. Furthermore, the Public Prosecutor has concluded that the legal assistance costs should also be awarded.

Position of the defence

The defence has argued, insofar as relevant, that the claims of the injured parties should be dismissed on the grounds that they are insufficiently substantiated. The existence of psychological harm has not been supported with concrete evidence. The defence also disputes the causal link. Furthermore, insufficient concrete data have been provided to demonstrate a violation of the person in any other manner. Moreover, the present case does not concern such a clear-cut situation that would justify waiving the requirement for such substantiation.

The defence further argued that, if establishing causality is too complex for criminal proceedings, the injured party should be declared inadmissible, as handling such claims would place a disproportionate burden on the criminal trial.

Finally, the defence argued that the amount claimed is not substantiated and that the requested sums are excessive in light of amounts usually awarded in threat cases. The defence requested the District Court to reduce the claims to an amount between € 400 and € 500. If the claim is granted, the compensation for legal assistance should be reduced, and aligned with the ‘standard fee rates applicable in subdistrict court cases’.

Decision of the District Court

The District Court considers that Article 6:106 of the Dutch Civil Code (hereinafter also: BW) contains an exhaustive list of cases in which this provision grants entitlement to compensation for non-material damage. Pursuant to Article 6:106, opening words and under b, BW, the injured party is entitled to compensation to be determined in fairness for damage that does not consist of financial loss, if the injured party has suffered physical injury, has been insulted in their honour or reputation, or has otherwise been violated in their person. The question in the present case is whether the injured parties have been violated in their person ‘in another manner’.

In its landmark judgment of 28 May 2019, the Dutch Supreme Court held the following with regard to violating the person in another manner:

‘A violation of the person in another manner as referred to in [Article 6:106, opening words and under B] is in any case present if the injured party has suffered mental harm. The person invoking this must put forward sufficiently concrete data from which it can be deduced that, in connection with the circumstances of the case, psychological damage has arisen. For this, it is required that, according to objective standards, the existence of mental injury can be established. Even if the existence of such mental injury cannot be assumed in the aforementioned sense, it is not excluded that the nature and severity of the breach of a rule and of its consequences for the injured party entail that a violation of the person in another manner, as referred to in Article 6:106, opening words and under (b), BW, is present. In such a case, the person invoking this must substantiate the violation of his person with concrete data. This is only different if the nature and severity of the breach of the rule entail that the relevant adverse consequences thereof for the injured party are so obvious that a violation of the person can be assumed. A violation of the person in another manner, as referred to in Article 6:106, opening words and under b, BW, is not already present by the mere infringement of a fundamental right.’3

The District Court therefore concludes – contrary to the counsel for the injured parties – that the mere infringement of the right to freedom of expression is insufficient to constitute a violation of the person ‘in another manner’. The injured parties must therefore demonstrate, on the basis of concrete data, that psychological damage has occurred, or that the nature and severity of the violation of the norm makes the relevant adverse consequences self-evident. Taking into account the short time available for the injured parties to submit their claim, the District Court finds that they have not sufficiently substantiated their claims at this stage to establish that they were affected in their person ‘in another manner’ by the actions of the accused. The District Court is of the opinion that the nature and severity of the breach of the rule and its consequences are not so evident that such a violation can be assumed. However, giving the injured parties the opportunity to further substantiate their claims would constitute a disproportionate burden on the criminal proceedings, also in view of the fact that in this case the reasonable time limit has already been considerably exceeded. The District Court will therefore declare the injured parties inadmissible in their claims. The injured parties may still bring their claim before the civil court.

Since the District Court declares the injured parties inadmissible, it will not address the issue of compensation for legal assistance.

10. Applicable articles of law

11. The judgment

- shall report to the Netherlands probation service during the probation period at times to be determined by the probation service, as frequently and for as long as the probation service deems necessary. This includes cooperating in home visits. The probation service determines which topics of conversation are important to assess recidivism and safety risks, while respecting the privacy of the convicted person as much as possible;

- continues to reside at Forensic Protected Housing Transfore. The convicted person shall accept guidance in this and comply with the agreements and rules of Transfore. This special condition serves as a transitional arrangement towards independent living and shall continue until the convicted person obtains independent housing;

- receives outpatient treatment from Transfore, or a similar care provider. The convicted person shall comply with the house rules and the instructions given by the care provider for the treatment. The treatment shall last as long as deemed necessary by the probation service and/or the Public Prosecution Service;

- cooperates with the assessment and placement if the probation service deems the transition to outpatient support during independent living desirable/necessary. The convicted person shall also cooperate with the relevant guidance and comply with the instructions of the relevant institution. This guidance will be provided by an institution to be determined and shall continue as long as deemed necessary by the probation service;

- provides the probation service with insight into the progress of the support and/or treatment from other involved institutions or care providers;

- does not change residence without permission from the probation service. If the convicted person leaves Forensic Protected Housing Transfore to move into other or independent housing, she shall, if and for as long as deemed necessary by the probation service, cooperate with the municipality and/or other institutions;

- cooperates in the sharing of information with individuals and institutions she has contact with, if this is relevant to the supervision;

- does not establish or allow direct or indirect contact, seeks or has contact with the persons listed below, for as long as the Public Prosecution Service deems this necessary:

- shall cooperate in establishing her identity by providing one or more fingerprints and/or by presenting for inspection an identity document as referred to in Article 1 of the Dutch Compulsory Identification Act;

- shall cooperate with probation supervision as referred to in Article 14c, paragraph 6, of the Dutch Criminal Code, cooperate with home visits and report to the probation service as often and for as long as deemed necessary by the probation service.

1. See, inter alia, The Hague Court of Appeal 25 May 2018, ECLI:NL:GHDHA:2018:1249 and Rotterdam District Court 29 October 2020, ECLI:NL:RBROT:2020:9659.

2 ECLI:NL:HR:2019:1890.

3 ECLI:NL:HR:2019:793, reasoning 2.4.5.