Investigation 26Humble. The accused is charged with - in brief - the following offences: 1. Co-perpetration…

This judgment was rendered as a result of the examination at the hearing in the first instance and the examination at the hearing in the appeal proceedings of this Court of Appeal.

The Court of Appeal has taken cognisance of the request of the Advocate General and of that which has been put forward by and on behalf of the accused.

In the first instance, the accused was sentenced to a term of imprisonment of 6 years, with credit for the time spent in pre-trial detention, with regard to the charges under Counts 1, 2, 3, 4 and 5 in the case bearing Public Prosecutor's Office number 09-748012-19-P. Furthermore, she was ordered to be placed in detention under a Forensic Psychiatric Order (hereinafter: Detention under a Forensic Psychiatric Order) and a decision has been made concerning the seized items, as stated in the decision appealed against.

An appeal was lodged against the judgment on behalf of the accused.

At the appeal hearing, counsel requested that her client be declared inadmissible in the appeal insofar as it is directed against the partial acquittals pronounced in the judgment appealed against.

The Court of Appeal has considered as follows.

Pursuant to the provisions of Article 404, fifth paragraph of the Code of Criminal Procedure, the accused can only lodge an appeal in joined cases in which he has not been acquitted of all charges. The Court of Appeal is of the opinion that this situation does not exist in the present case, so that the indents of which the accused was acquitted in the first instance are also subject to the judgment of the Court of Appeal.

The accused has been charged with what is set out in the summonses bearing Public Prosecution's Office numbers 09-748012-19 and 09-748012-19-P. The summonses were amended at the first instance hearing and on appeal. The text of the amended indictment has been attached to this judgment as Annex 1.

The annexes referred to in this judgment form part of this judgment.

The Advocate General has requested that the accused be sentenced to a term of imprisonment of 5.5 years with regard to the charges in Public Prosecutor's Office number 09-748012-19 under Counts 1, 2, 3, 4 and 5 and the charges in Public Prosecutor's Office number 09-748012-19-P, and that also uncapped Detention under a Forensic Psychiatric Order with compulsory treatment be imposed on the accused.

The judgment appealed against cannot be upheld, because the Court of Appeal does not agree with it.

Assessment framework

The prohibition of outrages upon personal dignity, by humiliating and degrading treatment, as charged under Count 5, is also stipulated in Common Article 3 of the Geneva Conventions of 1949. This prohibition has been reaffirmed in the Additional Protocols and is considered applicable customary international law. However, neither the Geneva Conventions nor the Additional Protocols define what constitutes outrages upon personal dignity.

The Court of Appeal will also follow the line previously set out in case law regarding outrages upon personal dignity through humiliating and degrading treatment, specifically addressing offences committed against deceased persons.

In order to determine whether the alleged conduct qualifies as the war crime of outrages upon personal dignity, the following requirements must be met, according to the ICC Elements of Crimes:

However, which specific conduct qualifies as an outrage upon personal dignity is not further defined. The severity of the humiliation, degrading treatment or other violation of human dignity must therefore be assessed on a case-by-case basis according to objective criteria. In this respect, the decisive factor is whether the humiliation was so intense that it might provoke deep indignation and anger in any reasonably thinking person. Yet it is not required that the victim suffer lasting or prolonged consequences of the outrage.

As with cruel or inhuman treatment, outrages upon personal dignity may consist of a single isolated act but may also result from a combination or accumulation of different acts, which separately would not qualify as cruel or inhuman treatment. The Court of Appeal follows what was determined by the ICTY in the Aleksovski case:

'The seriousness of an act and its consequences may arise either from the nature of the act per se or from the repetition of an act or from a combination of different acts which, taken individually, would not constitute a crime within the meaning of Article 3 of the Statute. The form, severity and duration of the violence, the intensity and duration of the physical or mental suffering, shall serve as a basis for assessing whether crimes were committed.'

In the Al-Hassan case, the ICC recently found that outrages upon personal dignity can include the public infliction of corporal punishment. In this case, prisoners were subjected to severe humiliation by, inter alia, being flogged in public or having to undergo forced amputations. In that connection, the ICC considered that: 'the very public nature of the floggings intensified the associated humiliation and disgrace inflicted upon the victims by members of Ansar Dine/AQIM.'

The public shame and humiliation associated with such corporal punishments is reflected in the shock that it has caused among the civilian population.

With regard to victims, the prohibition of outrages upon personal dignity, in particular degrading and humiliating treatment, includes conduct manifested against deceased persons. Examples include mutilation of dead bodies, reburial of deceased persons to conceal offences, severance of body parts as trophies and exposing a corpse to public display.

Outrages upon personal dignity does not require special intent, as is the case with torture, for example. However, the accused must have been able to realize that the victim could in all reason feel humiliated as a result of his or her conduct.

The Court of Appeal cited only those elements of outrages upon personal dignity by humiliating and degrading treatment from case law that is relevant to the assessment of that which the accused has been charged with in the present case. The Court of Appeal emphasises that this is not an exhaustive enumeration of elements of the offence.

Assessment by the Court of Appeal

The defence has adopted the position that at the time to which the charges pertain there was no longer any armed conflict in Syria and/or Iraq, that the victims were no longer protected by international humanitarian law, because they had already died several years before the accused shared the videos, and that the severity of the conduct with which the accused is charged is not sufficient to be able to speak of humiliating or degrading treatment affecting personal dignity. Counsel also disputes that - particularly in view of the geographical distance between the accused on the one hand and the conflict on the other - there was sufficient nexus between the armed conflict present at the time and the sharing of the videos, and that co-perpetration can be ascertained.

In contrast, the Public Prosecution Service has argued that a protracted non-international armed conflict between the (Syrian and) Iraqi government forces and IS was still ongoing in 2019. The victims were captured persons who were therefore entitled to protection at any point in the videos, and the accused was aware of this protected status. Moreover, the entirety of the accused's conduct is of such a nature and severity that she was guilty as a perpetrator of the war crime of outrages upon personal dignity. Finally, the required nexus is, in the opinion of the Public Prosecution Service, not bound by national borders, but should be viewed in the light of new digital developments.

The Court of Appeal has ruled as follows.

In line with the Court of Appeal and the Public Prosecution Service, the Court of Appeal finds that, on 25 and 26 September 2019, the accused disseminated two videos that are official publications of IS, in a Telegram group with 80 like-minded members who widely shared imagery of IS glorifying and promoting gruesome violence against people of other faiths. To the first video, the accused added the text 'like roasted chicken'.

Video 1 shows four men in orange overalls hanging chained by their hands and feet from a frame and set on fire alive using a flammable substance. After the men have been burnt, their charred bodies are shown still hanging from the frame. The video is accompanied by an Arabic caption whose translation reads: This is torment for the enemies of Allah the Exalted. Spread and share it #burning of the_islam_enemies.

Video 2 shows a seated man dressed in camouflage clothing with the Iraqi flag on his chest. He is told that he will never be accepted and that he must choose between the bullet or the knife. After black-and-white photographs of the victim in the army are shown, he is shot twice in the head while his hands are tied behind his back. Meanwhile, 'Allahu akbar' is shouted and a nashid (song) in Arabic can be heard. The caption for the video is in Arabic and includes emoticons of laughing faces and a knife. The caption states, 'you are a rafidi', followed by an emoticon of a knife.

The executions committed by IS shown in these two videos are exceptionally gruesome and sadistic in nature. The victims are in captivity and thus at the mercy of their executioners. The videos show them being informed of their impending death, after which the men in the orange overalls die a very painful death and the man in the camouflage clothing is mercilessly executed. There is no doubt that the actions of the IS fighters in both videos are war crimes of the cruellest kind.

The manner in which the victims are killed in these two videos can be classified as both the war crime of murder and outrages upon personal dignity. The fact that the men in the orange overalls were chained by their hands and feet in a stress position to a frame, after which the fire was deliberately lit from a distance so that they would see it coming, was aimed not only at killing the victims but also at degrading them. The man in camouflage clothing is faced with the impossible choice of how he is to be killed in order to further humiliate him. Moreover, both executions were filmed, edited into IS propaganda footage and then disseminated on the Internet through IS's official media channel. The victims are clearly recognisable in the images, making it easy to imagine that their next of kin will also have been confronted with these gruesome images. The shock that such executions - not only in Syria and Iraq, but worldwide - have caused is indicative of the severe manner in which the human dignity of the victims has been affected.

However, these specific forms of conduct cannot be blamed on the accused and therefore do not form part of the indictment. After all, she did not film the executions, does not appear in the videos (unlike in a previous case that the Court of Appeal ruled on), was not present at the time that these war crimes were committed, nor did she have any knowledge of them being carried out. She had no involvement either in the editing of the video footage into war propaganda or its initial dissemination.

The accused is on trial for the further dissemination of this video footage and the message she posted accompanying one of them. Although this caption is extremely reprehensible and reflects a disrespectful attitude towards the deceased victims, this does not also mean that there has been 'outrages upon personal dignity, in particular humiliating and degrading treatment' as referred to in Article 6 paragraph 1 under c WIM. The threshold for this is higher. The Court of Appeal shall explain.

War crimes are among the gravest category of offences in criminal justice. In Dutch law, this is reflected, inter alia, through broad jurisdictional provisions, in the fact that there is no statute of limitations, and in the high maximum penalties. This necessitates caution against an overly broad application.

ICTY case law shows that severe humiliating or degrading treatment must occur for this to constitute the war crime of outrages upon personal dignity. Examples include forced nudity, rape and other sexual violence, poor detention conditions, serving as a human shield or forced trench-digging. Although, in the opinion of the Court of Appeal, the dissemination of video images on social media with derogatory captions is also a factor that may contribute to the finding that the human dignity of the victims has been severely affected in a specific case, in the present case the required lower threshold for a war crime was not reached. The Court of Appeal weighs in its judgment the fact that no other, additional reproaches can be made against the accused. Also, the fact that the video footage had already been widely disseminated through IS's official media channel, and that the accused only shared this footage in a closed Telegram group with 80 like-minded members a few years after the victims were executed somewhat mitigates the severity of the accused's conduct.

Finally, the Court of Appeal considers that the interests of next of kin may also play a role in the question of whether there has been an outrage upon personal dignity. As already considered, it is possible that relatives of the victims will have seen the images. However, it has not become plausible that this may have happened due to the accused, who shared the images in a closed Telegram group consisting of IS sympathisers.

The conclusion is that the conduct described is disrespectful, but in this case does not equate an 'outrage upon personal dignity'.

Conclusion

In view of the above, the Court of Appeal does not deem the charge under Count 5 to have been legally and convincingly proven and will acquit the accused thereof.

Under these circumstances, the Court of Appeal has excluded any discussion as to the requirement of a nexus.

The Court of Appeal considers it legally and convincingly proven that the accused committed the offences charged in the case bearing Public Prosecution's Office number 09-748012-19 under Counts 1, 2, 3, 4 and 5 and the offence charged in the case bearing Public Prosecution's Office number 09-748012-19-P, on the understanding that:

Case bearing Public Prosecution’s Office number 09-748012-19:

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 Criminal Code), (to be) committed with terrorist intent (within the meaning of Article 176a Criminal Code) and/or

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

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

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 Criminal Code) and/or

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 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);

AND

at one (or more) point(s) in time in or around the period from 1 January 2019 up to and including 10 October 2019 in [place of the offence], or at least in the Netherlands, she participated, either alone or jointly and in conjunction with (an)other person(s), in an one or more organisation(s), namely Islamic State (IS) or Islamic State of Iraq and al-Sham (ISIS) and/or Islamic State of Iraq and the Levant (ISIL), or at least a jihadi combat group associated with the aforementioned organisation(s), or at least (an) organisation(s) advocating the armed jihad struggle, whose intent it is/was to commit (war) crimes, namely:

A. attacks on life or physical violence, in particular killing by whatever means these may be (within the meaning of Article 6, paragraph 1 under a International Crimes Act) and/or

B. outrages upon personal dignity, in particular humiliating and degrading treatment (within the meaning of Article 6, paragraph 1 under c International Crimes Act),

of persons who(, at the time,) did not take (or no longer took) part directly in the hostilities, namely civilians and/or armed forces personnel who had laid down their arms and/or persons who had been placed hors de combat by sickness and/or injuries and/or detention and/or any other cause, in the event of a non-international armed conflict within the territory of Iraq and/or Syria, in violation of the provisions of Common Article 3 of the Geneva Conventions of 12 August 1949;

indeed, the accused and/or her co-perpetrator(s), several times, or at least once (on each occasion),

A. has/have acquired the radical extremist ideology of the armed jihad struggle with a terrorist intent conducted by the (terrorist) organisation Islamic State (IS), or Islamic State of Iraq and al-Sham (ISIS) and/or Islamic State of Iraq and the Levant (ISIL), or at least a Jihadist combat group affiliated to the above-mentioned organisation(s), or at least (an) organisation(s) advocating the armed jihad struggle, and/or

B. managed and/or followed and/or visited one a or more Telegram group(s) and (subsequently) from/in these this group(s) downloaded and/or stored and/or possessed and/or shared and/or disseminated and/or allowed to be shared and/or disseminated and/or had shared and/or had disseminated one a or more (digital) files (such as documents and/or videos and/or images) containing information related to jihadist ideology and/or beheadings and/or guidance and/or instructions about/for (the support and/or encouragement of) the armed jihad struggle, which file(s) consisted of:

C. visited one or more website(s) and/or (a) social media channel(s), on which one or more (digital) file(s) (such as documents and/or videos and/or images) containing information (being shared) about ((an) instruction(s) for) the making/manufacturing of explosives and/or (subsequently) downloaded and/or stored and/or shared and/or disseminated and/or possessed information about ((an) instruction(s) for) the making/manufacturing of explosives, which file(s) consisted of:

by (co-)administrating and/or following (various) Telegram groups (each time) with the name Greenb1rds and posting messages and/or images and/or videos in these groups, namely:

outrages upon personal dignity, in particular humiliating and degrading treatment, of persons who(, at the time,) did not take (or no longer took) part directly in the hostilities, namely civilians and/or personnel of armed forces who had laid down their arms and/or persons who had been placed hors de combat due to illness and/or injuries and/or imprisonment and/or any other cause, in the case of a non-international armed conflict within the territory of Iraq and/or Syria, in violation of the provisions of common Article 3 of the Geneva Conventions of 12 August 1949,

by (co-)managing and/or following (various) Telegram groups (on each occasion) with the name GreenB1rds and by posting messages and/or images and/or videos in these groups:

while she, the accused, and/or her co-perpetrator(s) knew or had serious reason to suspect that the written text(s) and/or image(s) contained such incitement,

indeed, she, the accused and/or her co-perpetrator(s) (on each occasion) (co-)administrated and/or followed and/or visited (various) Telegram groups with the name GreenB1rds and posted and/or shared the following messages and/or images and/or videos in these group(s), or at least stockpiled these messages and/or images and/or videos:

outrages upon personal dignity, in particular humiliating and degrading treatment, of persons who(, at the time,) did not take (or no longer took) part directly in the hostilities, namely civilians and/or armed forces personnel who had laid down their arms and/or persons who had been placed hors de combat by sickness and/or injuries and/or detention and/or any other cause, in the event of a non-international armed conflict within the territory of Iraq and/or Syria, in violation of the provisions of Common Article 3 of the Geneva Conventions of 12 August 1949;

she disseminated and/or stockpiled for dissemination,

while she, the accused, and/or her co-perpetrator(s) knew or had serious reason to suspect that the written text(s) and/or image(s) contained such incitement,

indeed, she, the accused and/or her co-perpetrator(s) (on each occasion) (co-)administrated and/or followed and/or visited (various) Telegram groups with the name GreenB1rds and posted and/or shared the following messages and/or images and/or videos in these group(s):

or at least utterances of a similar nature and/or purport which, whether or not in combination, are of an inciting nature;

Case bearing Public Prosecution’s Office number 09-748012-19-P:

she acted (at one (or more) point(s) in time) in or around the period from 1 September 2019 up to and including 10 October 2019 in [place of the offence], at least in the Netherlands, and/or Turkey, several times, at least once, (on each occasion) in violation of the prohibition laid down under Article(s) 2 and/or 3 of the Sanctions Regulations on Terrorism 2007-II by directly or indirectly making funds available, namely:

intentionally or unintentionally

through one or more intermediary person(s) to [person 1] and/or [person 2], while [person 1] was designated by the Foreign Secretary by decision of 24 March 2017 and [person 2] by decision of 16 October 2017 as (a) person(s) to whom the Sanctions Regulations on Terrorism 2007-II apply.

Any additional charges or charges formulated otherwise have not been proven. The accused should be acquitted of these.

Insofar as the indictment contains linguistic and/or writing errors, these have been corrected in the declaration of charges proven. As appears from that which was discussed during the hearing, the defence of the accused was not harmed as a result.

The Court of Appeal bases its conviction that the accused has committed the offences as charged on the facts and circumstances that are included in the evidence and which substantiate the declaration of charges proven.

In those cases in which the law requires the judgment to be supplemented with the evidence or, insofar as Article 359, third paragraph, second sentence, of the Code of Criminal Procedure is applied, with a statement thereof, this will be done in a supplement which will be attached to this judgment as an annex.

The armed conflict in Syria

In earlier rulings, the Court of Appeal has already established that from 2012 - and therefore also in the period to which the indictment pertains - there was a non-international armed conflict in Syria between the Syrian government army and various organised, armed groups. As this has not been disputed by the parties, the Court of Appeal will limit itself for the existence of the non-international armed conflict as such to referring to those earlier rulings.

Syria is a signatory to the Geneva Conventions. In the period to which the indictment pertains there was a non-international armed conflict within Syrian territory, the Court of Appeal finds that international humanitarian law applies.

That it was IS's intent to commit terrorist offences in the period to which the indictment pertains follows from the evidence and has, apart from that, not been disputed.

The accused has stated that she followed events in Syria including the establishment of the caliphate on television. She was also aware of 'all these groups' fighting each other. In 2019, the accused visited the website Jihadology.com. According to the accused, this website had a library where videos of IS and Al-Qaida were shared. The accused also participated in Telegram groups that were about Islam, including Greenb1rds. The accused watched videos about the armed struggle in Syria. She also saw videos of massacres. The Court of Appeal finds that the accused had knowledge of the armed conflict in Syria and that she was aware of the intensity of the conflict.

IS media strategy

IS(IL) has been professionally active on the Internet and social media in Syria. For instance, an IS(IL)-affiliated media organisation produced videos of attacks committed by IS(IL), and these were disseminated through social media. Videos were used by IS(IL) to 'sell' their ideology. IS had developed a particularly successful media strategy. Official IS publications emphasised the central role of the media in jihad. For online dissemination of its publications, IS depended on members and supporters. IS also relied heavily on the use of 'online supporters'. Telegram was at the centre of IS supporters' online communication strategy from 2015 up to and including October 2018. On Telegram, (un)official IS propaganda was disseminated, alongside audio messages, documents, photos and calls to action.

The accused on Telegram

At the appeal hearing, the accused stated that she was highly active in Telegram groups and that she had created the accounts GB and NesmuMutawahideen on Telegram. She also stated that she forwarded messages and other content on Telegram, inter alia via the Telegram channel Greenb1rds.

Counsel argued that the accused does not dispute (any longer) that much material was sent through her Telegram accounts, but that given the passage of time, she cannot say with certainty whether she shared each message or file.

The accused's claim that another person had access to her Telegram accounts and had sent messages through them is wholly unsubstantiated. With regard to the chat mentioned by the defence in which GB responded to NesmuMutawahiddeen (as said, both in use by the accused), the Court of Appeal notes that this does not fully support her defence, as the accused may have responded on this Telegram channel - for instance for the benefit of other participants - with GB to a message posted by herself with NesmuMutawahiddeen. The Court of Appeal will disregard that defence.

In the opinion of the Court of Appeal, the evidence shows that the accused shared messages in several Telegram groups, such as Greenb1rds. These groups support IS's media strategy. In view of her aforementioned knowledge of the conflict and the armed struggle as well as her active participation in the chats on Telegram, the accused must have known about them.

The content of these messages includes lectures by radical speakers, exhortations to contribute financially to the armed struggle and calls to participate in the armed struggle. By disseminating these messages, the accused deliberately supported IS's media strategy, which was aimed at carrying out propaganda for the armed struggle waged by IS in Syria - and thus the organisation itself. She thus contributed to IS.

The Court of Appeal considers it legally and convincingly proven that the accused participated in an organisation intent on committing terrorist offences.

Position of the defence

Using her plea notes, counsel argued in favour of acquittal for Count 2. The defence disputed that the accused had adopted a strict extremist ideology. The accused's intention with her behaviour on social media was: to get attention and seek excitement. In addition, counsel argued that there was no intention to train others or to acquire certain techniques. Finally, counsel argued that the accused did not work closely and knowingly together with another person, so that there is no question of co-perpetration.

Position of the Public Prosecution Service

Using his indictment notes, the Advocate General concluded that based on the outward appearance of the accused's actions, it can be inferred that the accused had the intention to train to commit terrorist offences. The accused additionally engaged in managing Telegram groups with pro IS content and sharing jihadist and extremist material. The Advocate General also argued that the accused had already been advocating the IS armed jihad struggle for a long time. The Public Prosecution Service is asking for entire conviction for Count 2, whereby the accused should be considered a co-perpetrator regarding the 'Knife Attacks' manual.

Legal framework

The Court of Appeal has taken as its starting point the fact that Article 134a Sr covers conduct that has some connection with terrorist training.

This connection is already expressed in Art. 134a Sr insofar as it criminalises acquiring or teaching another person knowledge or skills to commit a terrorist offence or an offence in preparation or facilitation of a terrorist offence.

With regard to the other conduct made punishable in Art. 134a Sr, namely: intentionally providing or attempting to provide oneself or another person with the opportunity, means or information to commit a terrorist offence or an offence in preparation or facilitation of a terrorist offence, it must be assumed that qualification under Art 134a Sr is not possible if a sufficient connection between those acts and any form of training - which, in accordance with the aforementioned legislative history, is to be understood in a broad sense: 'acquiring or imparting knowledge or training oneself or another person in skills or techniques' - for terrorism is lacking (Supreme Court 31 May 2016, ECLI:NL:HR:2016:1011).

The offender's intention should be aimed 'at using the knowledge or skills acquired to commit a terrorist offence or an offence to prepare or facilitate in preparation or facilitation thereof' (Parliamentary Papers II 2007/08, 31386, 3, (https://zoek.officielebekendmakingen.nl/kst-31386-3.html) p. 9).

Assessment by the Court of Appeal

Sub A: To internalise IS ideology

The accused acquired the radical extremist ideology of IS. Considering the type of material consulted and the frequency with which it was consulted, the accused's perusal of information linked to IS ideology can be classified as self-study. The repeated viewing of new terror propaganda will have further strengthened the accused in the extremist ideology already present in her and by viewing that propaganda, the accused will have been encouraged in this again and again. In these files and videos, violence against infidels and apostates is glorified and presented as legitimate.

The Court of Appeal deems it proven that the accused 'internalised' the radical extremist ideology (of IS) in the period to which the charges pertain. This is confirmed by the intercepted conversations the accused had at home with her young children and by the discovery of a small and large IS flag during a search of the accused's home.

Sub B: `Take precautions 7, Traps on the path of Jihad'

The message posted by the accused entitled `Take

precautions, traps on the path of Jihad' can be categorised as training for terrorism, as this post mentions various ways in which a Muslim strives to do good, for instance by leaving and participating in the `fields of jihad' or through financial support and mentions measures that can be taken to avoid being noticed by intelligence agencies. To claim an action/attack, the message advises carrying a paper stating that the action/attack was carried out by one of the soldiers of the caliphate.

The accused shared this message in a Telegram group (TG4) with like-minded people. In so doing, the accused knowingly exposed herself to the considerable likelihood that members in the Telegram group took note of this information with a view to committing a terrorist offence. In so doing, the accused trained herself and others to commit terrorist offences.

Sub B: 'Knife attacks'

The content of the message entitled 'Knife attacks' can in principle be classified as training for terrorism, as it includes concrete instructions on which knives are suitable for committing an attack.

Not the accused, but another person with Telegram account with ID 825940942 (hereinafter ID *0942) posted this message in the Telegram group (TG7). This user's ID number is marked as 'admin' (being an administrator). The accused was also an administrator of this Telegram group.

However, the evidence does not show that user ID *0942 was part of the admin chat.

There is no evidence either to show that the accused actually took cognisance of the message in question. From the mere fact that she was an administrator of that Telegram group and had previously posted a message on that Telegram group on 30 September 2019 at 15.31 hours, it cannot be inferred that the accused also took cognisance of a message posted in that group more than 4.5 hours later.

There is insufficient legal and convincing evidence that there was close and conscious cooperation between the accused and the user of Telegram account with ID *0942, so that she will be acquitted of this indent. The mere circumstance that the accused was also an administrator, with corresponding powers, is insufficient for this in the light of the foregoing.

Sub C: Making manuals for explosives and a bomb belt

An instruction for making explosives, more specifically lead azide (the instruction originated from 'The jihadist cookbook') and TATP was found on the accused's Huawei tablet. This instruction included supplies, proportions and instructions for making TATP and lead azide. An instruction for making a bomb belt was also found on the accused's Huawei tablet.

These instructions should be qualified as training with a view to committing a terrorist offence. As the accused herself stated that she herself downloaded these instructions and the instructions were found on the accused's Huawei tablet, she must have taken cognisance of them. The accused thus trained herself to commit terrorist offences.

Conclusion

On the basis of the foregoing, the Court of Appeal finds - viewed together and jointly - that in the period to which the charges pertain, the accused was a follower of a radical Islamic ideology and supported the armed jihad waged by IS.

The accused engaged in gathering knowledge and information via IS-affiliated social media channels and/or media platforms about IS's latest propaganda material. In this way she acquired, inter alia, knowledge and/or provided intelligence on killing infidels, committing attacks, making explosives (such as lead azide and TATP) and a bomb belt.

Therefore, based on the above and on the outward appearance, it can be inferred that the accused had the intention to train to commit terrorist offences.

The Court of Appeal deems it lawfully and convincingly proven that the accused committed the offence as charged under Count 2.

Explanation of the indictment, Counts 3 and 4

The charges under Counts 3 and 4 comprise incitement and dissemination for the purpose of incitement to commit a terrorist offence or offences preparing or facilitating the commission of a terrorist offence. In the present case, without being specified in the indictment, this could include incitement to participate in IS (by joining the armed struggle), the perpetration of attacks (killing the 'infidels') and, for instance, financial support for IS.

The charges under Counts 3 and 4 also include the incitement and dissemination for the purpose of incitement to commit (a) war crime, namely outrages upon personal dignity. This involves two videos and one caption. On elucidating the question as to the type of war crimes that this refers to exactly, the Court of Appeal took the following into account.

The District Court considered in the decision appealed against (p. 70): 'The question now before the Court of Appeal is whether these videos, one of which with a caption, also qualify as incitement to the war crime of outrages upon personal dignity. This war crime - as considered earlier - concerns protecting the honour and dignity of anyone who does not (or no longer) participate(s) in armed struggle. As considered in Chapter 6, the District Court is of the opinion that by posting these videos and caption I in a Telegram group, the accused committed outrages upon the personal dignity of the victims in these videos and thus perpetrated a war crime. The question now is whether by posting these messages the accused encouraged others to do the same.'

On appeal, the Advocate General put forward the following in his closing statement (p. 58): 'By disseminating videos with captions as an administrator, in which persons protected by the law of war are severely humiliated, the accused not only indicated that messages of such atrocity are tolerated in the Greenb1rds group(s), but also set the tone for further reporting by other members.'

The Court of Appeal interprets this part of the indictment to mean that the war crime being incited must therefore consist of others posting or sharing messages/videos/images digitally, as the accused is alleged of having done under Count 5, thereby committing outrages upon the personal dignity of persons protected by war law.

According to her written plea, the defence also relied on that interpretation of the charge.

Counts 3 and 4 in substantive terms

The position of the Public Prosecution Service

The Public Prosecution Service deems it proven that the accused disseminated and/or stockpiled various extremist and jihadist videos, images and text messages, with or without captions, in various Telegram groups for dissemination. Unlike the District Court, however, the Public Prosecution Service believes that the accused did indeed stockpiled the beheading video found on her Huawei tablet in the 'Telegram > Telegram Documents' folder with the intention of further disseminating it.

The position of the defence

The defence had adopted the position that the accused should be acquitted of the charges under Count 3 and Count 4. The defence primarily argued that the accused lacked intention, as the dissemination of the digital material as well as her role in the Telegram groups were inspired by underlying psychological problems and not by a genuine interest in the ideology. In the alternative, the defence argued that the video with caption showing four men in orange overalls being burned alive cannot in itself be considered incitement to a terrorist offence. The same applies to the video showing a man in camouflage clothing being shot through the head. Furthermore, the defence took the position that the context in which these videos were placed - namely in a series of messages, some of which could already be regarded as inciting due to their content - does not alter this. It was further argued that there was nothing to show that the accused had the video in which persons are beheaded with the goal of actually disseminating it. The videos and captions do not incite the commission of war crimes, so that this cannot be proven either. Finally, there is no question of co-perpetration, according to the defence.

The opinion of the Court of Appeal

Assessment framework

Articles 131 and 132 Sr criminalise incitement and dissemination for the purpose of inciting to any criminal offence. These provisions aim to protect public order and to prevent incitement to commit offences or violent action against public authority by certain means. 'Public authority' implies Dutch public authority. 'Criminal offences' refers to offences under Dutch law.

It must be sufficiently clear from the facts and circumstances that, if the act incited to is carried out, this would constitute a criminal offence. This is anyway the case if there is direct incitement - i.e. in so many words - to commit punishable acts (in this case, in brief, to commit terrorist offences and/or war crimes). What is decisive is not whether someone feels incited to that act, but whether the utterances are such that someone could be incited to commit that offence.

Indirect influence can also be inciting, namely if the aim of certain utterances is to rouse minds for punitive action.

The purpose must be to do so by working on the minds of those who are susceptible. In this case, this could be, for example, because he or she is easily influenced or is already considering travelling to the combat zone in Syria and joining IS or committing terrorist outrages upon Dutch soil. Expressing great appreciation for the struggle of terror groups in Syria and admiration for those fighting alongside those terror groups implies that joining in is worthy of emulation and is therefore inciting. Glorifying martyrdom in that struggle is an expression of such intense admiration that it in itself also incites emulation.

In Article 131 Sr intention is inherent in the actus reus of 'incitement'. The person who is inciting need not know that what he is inciting is punishable. However, the intention, possibly in a conditional sense, must be aimed at all components of the offence that the incitement is targeting. It needs to be established that the accused knowingly and willingly accepted the considerable chance that third parties might be induced to actually commit criminal offences. What is also important is whether the purpose of the person making the utterances is to make them 'public'.

The point of Article 132 Sr is that the perpetrator wishes to publicise the content of an inciting written text or picture.

In Article 132 Sr, the verbs used (to disseminate, to publicly display, to affix, to stockpile) imply intention, which includes conditional intent. The person disseminating the inciting written texts does not need to know exactly what kind of criminal offence the incitement therein is targeting. His own goal does not have to be incitement either. What is required, however, is that the person doing so has at least serious reasons to suspect that the written texts or images that are being disseminated are inciting. Articles 131 and 132 Sr require that the incitement take place in public.

In public does not mean 'in a public place'. The utterance of inciting words must take place under such circumstances and in such a way that they can be heard by the public. Posting utterances on social media places them in the public domain. The Internet qualifies as a public place, provided the public has access to the Internet page on which the texts are displayed.

In principle, when assessing social media messages (such as also Telegram messages), the Court of Appeal will not separately address the question of whether each file relating to the charges is inciting when viewed in isolation. Naturally, the content of those individual messages does play a role, but the decisive question is what the purport of the messages is when viewed together. The Court of Appeal will take the following circumstances into account when assessing whether one may speak of an inciting utterance:

Moreover, when assessing whether or not an utterance or written text should be considered inciting in the legal sense, it should be gauged against the freedom of expression as protected under Article 10 of the ECHR. Indeed, it relates to the fundamental principles of the Dutch legal order. Restrictions of this fundamental right are only allowed if they are (i) provided for by law, (ii) serve a legitimate purpose and (iii) are necessary in a democratic society. The Court of Appeal deduces from European case law that 'necessary' means: a pressing social need, leaving the Member States a certain degree of discretion in evaluating that need. That evaluation must balance the fundamental importance of freedom of expression (the individual fundamental right) and the fundamental importance of protecting the democratic rule of law (the general fundamental societal interest). In any case, an acceptable restriction on this freedom should meet the requirements of proportionality. Against this background, while the question of the extent to which the government is entitled to infringe upon fundamental right cannot be answered in a general sense, the circumstances will, alongside the literal meaning of the utterance or message, need to provide a decisive answer to it.

Incitement and dissemination for the purpose of inciting to commit a terrorist offence

The Court of Appeal finds that on 21 and 27 June 2019, the accused posted a text message in English as described in the indictment in two group chats with 6 and 8 participants, respectively. Furthermore, in the period from 25 up to and including 27 September 2019, the accused, as an administrator of the Telegram groups Greenb1rds TG4, TG5 and TG6, shared six videos of IS and an image of a blood-stained hand with a text about shedding blood of polytheists (mushrikin) followed by 5 posters/images, in these Telegram groups with 56, 80 and 137 members respectively.

The question before the Court of Appeal is whether these Telegram messages can be qualified as incitement to commit a terrorist offence within the meaning of the law.

With regard to the text message in English posted by the accused on 21 and 27 June 2019, the Court of Appeal, in line with the District Court, is of the opinion that the content in itself in this message is already inciting. In the message, the question arises as to where the men are who 'defend this ummah [Islamic community]' and whether they do not fear hell. They can buy a ticket to paradise by killing an infidel, for example by running over them or stabbing them with a knife. By glorifying martyrdom in such a way in chat groups made up of IS sympathisers, the accused willingly and knowingly accepted the substantial likelihood that others would feel called upon to commit such terrorist attacks and kill infidels.

With regard to the IS propaganda videos and images relating to the charges, which the accused shared between 25 and 27 September 2019, the Court of Appeal considers the following.

The file reveals that the Telegram groups Greenb1rds TG4, TG5 and TG6, in which the accused acted as an administrator, were used to disseminate IS propaganda material glorifying gruesome violence against infidels. The Public Prosecution Service charged only some of these messages as incitement and/or dissemination for the purpose of incitement to a terrorist offence and/or to a war crime. The Court of Appeal is of the opinion that a number of these messages are, according to their content, inciting (e.g. the posters calling for infidels to be run into with vehicles or for their throats to be cut). As a result, shared files that may not in themselves be considered inciting (although, as far as visible in the file, usually testify to glorification of the fight of IS) due to the fact that they were posted in these Telegram groups or shared with like-minded IS sympathisers, are - in view of the purport of that page - nevertheless considered as such.

In addition, the Court of Appeal notes the following.

It is a generally known fact that social media are about finding an audience and enticing 'followers' to read, 'like' and preferably react to and further disseminate the shared messages and thus (ultimately) the underlying message. Messages and (audio)visual files that do not directly contain a call to commit offences also fulfil a useful function, as they can attract and hold the attention of potentially interested parties. Finally, another factor that plays a role for the inciting nature of the accused's Telegram accounts is that the files can be viewed repeatedly. Files posted on Telegram cannot simply be deleted. Their inciting effect is reinforced by the fact that the contents of those messages can be accessed permanently.

The defence's argumentation on this point has therefore proven unsuccessful.

With regard to the decapitation video found on the accused's Huawei tablet, the Court of Appeal considers the following.

In line with the District Court, the Court of Appeal is of the opinion that there is insufficient legal and convincing evidence to assume that the accused stockpiled this video in order to actually disseminate it. The report from the digital investigation dated 30 March 2020 shows that the location of this video on the Huawei, namely in the 'Telegram > Telegram Documents' folder, provides a strong indication that it was obtained via Telegram. Contrary to what the Public Prosecution Service has argued, it cannot be inferred from this that the accused stockpiled this video with the intention of disseminating it further. For this reason alone, the accused will therefore be acquitted of this part of the indictment.

Incitement and dissemination for the purpose of inciting to commit a war crime

Above, the Court of Appeal has already found that on 25 and 26 September 2019, the accused, as an administrator of the Telegram group Greenb1rds TG4, shared two videos showing IS opponents being executed in a gruesome manner. The accused also captioned one of these videos.

The Court of Appeal is faced with the question as to whether the accused, by posting these two videos and the caption, is guilty of incitement or dissemination for the purpose of inciting to commit a war crime, i.e. outrages upon personal dignity. Decisive in that context is whether what is being called for can be qualified as such. To this end, the Public Prosecution Service argued that the accused, by sharing these files in the Telegram group, not only seriously affected the human dignity of the victims herself, but also (indirectly) incited the 80 members of this group to further disseminate these videos and to provide them with (similar) derogatory comments. Since the Court of Appeal, unlike the District Court, has acquitted the accused of committing the war crime of outrages upon personal dignity as charged under Count 5, the offence that she allegedly incited others to commit cannot be qualified as such either. The accused will therefore be acquitted of this part of the indictment.

With regard to the intention

Earlier in this judgment, the Court of Appeal already considered that the evidence shows that the accused had internalized IS ideology. The Court of Appeal therefore rejects the defence's argument that the accused lacked intention as the dissemination of the digital material as well as her role in the Telegram groups were inspired by underlying psychological problems only. According to established case law of the Supreme Court, a psychological disorder only stands in the way of a declaration of intention proven if the accused, at the time of his actions, lacked any insight into the scope of his conduct and the possible consequences thereof. This will only happen in very exceptional cases. Unlike the defence, the Court of Appeal is, in line with the District Court, of the opinion that there is no such exception.

With regard to co-perpetration

In line with the District Court, the Court of Appeal is of the opinion that it cannot be established that the accused engaged in her conduct in close and conscious cooperation with one or more other persons. The Court of Appeal will therefore uphold the decision of the District Court to acquit the accused on this count.

Conclusion

The Court of Appeal deems it lawfully and convincingly proven that the accused committed the charges under Counts 3 and 4, on the understanding that she will be acquitted of stockpiling the decapitation video found on her Huawei tablet for the purpose of dissemination, and of incitement and dissemination for the purpose of incitement to commit a war crime.

Further considerations with regard to the charges in the case bearing Public Prosecution’s Office number 09-748012-19-P

The accused is charged - in short - with making means (sums of money) available to [person 1] and [person 2] in violation of the laws and regulations referred to in the indictment.

Violation of the said provisions is an offence under Article 1 under 1 in conjunction with Article 2 paragraph 1 of the Economic Offences Act insofar as it is committed intentionally. Insofar as intention cannot be proven, a violation of these provisions in the violation variant can be said to exist, pursuant to Article 6 paragraph 1 under 4.

In order to prove that the regulations were intentionally violated, it is not necessary for an intention to violate the norms contained in the indictment to be proven. The intention is colourless. However, it must be proven that it was the accused's intention for the sums of money to reach directly or indirectly [person 1] and [person 2], against whom the Sanctions Regulations on Terrorism 2007-II applied at the time.

Since the accused stated at the first instance hearing on 11 February 2021 that she had transferred the money to [person 1] and [person 2] to help them, the Court of Appeal is of the opinion that the implicit primary charge has been legally and convincingly proven.

The charges proven in the case bearing Public Prosecution’s Office number 09-748012-19 under Count 1 constitute:

a convergence in the same act of two or more offences, i.e.

participation in an organisation whose intent it is to commit terrorist offences

and

participation in an organisation whose intent it is to commit war crimes.

The charges proven in the case bearing Public Prosecution’s Office number 09-748012-19 under Count 2 constitute:

Intentionally obtaining or attempting to obtain information and acquiring knowledge and/or imparting knowledge to another person for a terrorist offence to be committed and/or an offence in preparation or facilitation of a terrorist offence, committed on several occasions.

The charges proven in the case bearing Public Prosecution’s Office number 09-748012-19 under Count 3 constitute:

publicly inciting to any offence in written texts and pictures, when the offence incited involves a terrorist offence or an offence in preparation of a terrorist offence, committed on several occasions.

The charges proven in the case bearing Public Prosecution’s Office number 09-748012-19 under Count 4 constitute:

disseminating and stockpiling for dissemination, written texts and pictures inciting to any offence, knowing that they contain such incitement, when the offence being incited is a terrorist offence, committed on several occasions.

The charges proven in the case bearing Public Prosecution’s Office number 09-748012-19-P constitute:

the intentional violation of a regulation enacted by virtue of Article 2 of the Sanctions Act 1977, committed on several occasions.

No circumstance has become plausible that might exclude the criminal liability of the accused. The accused is therefore criminally liable.

The Court of Appeal has determined the punishment and measures to be imposed on the basis of the seriousness of the offences and the circumstances under which they were committed and on the basis of the person and the personal circumstances of the accused, such as these have transpired from the Court of Appeal hearing.

In so doing, the Court of Appeal has particularly taken the following into account.

The severity of the facts

The accused participated in the terrorist organisation IS that had as one of its goals the commission of terrorist offences and war crimes. In addition, the accused gave and followed training for the commission of a terrorist offence, incited to a terrorist offence and disseminated and possessed images and written texts inciting to a terrorist offence.

What is certain is that the violence that is used by IS to achieve its goals is extraordinarily brutal and that severe human rights violations such as summary executions, murder, torture and mutilation of prisoners of war and civilians are perpetrated against dissenters on an extensive scale. Numerous attacks have been carried out in the name of IS, not only in Syria and Iraq, but also precisely in Europe and the rest of the world. These have involved many casualties. All this has caused feelings of fear and insecurity among the global population on a large scale from 2014 onwards. This is also the adjacent goal of IS: sowing fear and division among the - in their eyes - infidel world population.

Digital dissemination of IS's ideas and deeds is an essential part of IS's strategy. The accused (as an administrator) has disseminated in several

Telegram groups with like-minded people jihadist extremist ideology and propaganda material. These were often gruesome videos, instructions for violence and hate speeches. She also sought more participants for the violent jihad struggle. In so doing, she contributed to IS's media strategy and the organisation's intent to commit terrorist offences and war crimes, with all their (horrific) consequences.

The international community considers the offences committed by the accused to be the most severe offences. The Netherlands is therefore subject to an international

obligation to fight terrorism. Participating in the armed jihad struggle should therefore be discouraged. For relatives of the deceased, it must be terrible to be confronted on the Internet with images of their loved ones being killed in a degrading manner, and that the images of this may continue to circulate on the Internet for a long time thanks in part to the actions of the accused.

In determining the sentence, the Court of Appeal has taken into account the fact that the accused herself did not directly use violence.

Finally, she transferred money in violation of the Sanctions Act 1977 to two women who at the time were also believed to be participating in IS. By transferring sums of money, the accused disregarded both European regulations and national legislation. These regulations are internationally significant. Their purpose is to achieve the joint maintenance or restoration of international peace and security, as well as to promote the international rule of law and the fight against terrorism. Through her actions, the accused contributed to (further) destabilisation and insecurity in (the region of) Syria. After all, it is a fact of general knowledge that jihadist groups in Syria are guilty of gross human rights violations on a large scale.

The personality of the accused

The Court of Appeal has taken note of an extract pertaining to the accused from the Judicial Records dated

18 June 2024, revealing that the accused has not been previously convicted for committing similar offences.

During the appeal proceedings, further investigations into the accused's mental capacity were conducted. This was done by different experts from those who reported on the accused in the first instance. This resulted in an expert evidence report dated 25 April 2024 by the Pieter Baan Centre, drawn up and signed by [psychologist], healthcare psychologist, and [psychiatrist], psychiatrist. The accused cooperated fully in the report's generation.

The behavioural experts reported in relation to all charges.

In their reports, they concluded that the accused has extensive neurocognitive impairment, caused by multiple sclerosis (MS), with behavioural disorders. These behavioural disorders result from a decreased inhibition on behaviour, a decreased perception of the meaning of her behaviour in a broader context and, in a more general sense, from a lack of overview and the ability to deal adequately with the (complex) reality surrounding her. Furthermore, a narcissistic personality disorder with antisocial features has been diagnosed and, in addition, the accused meets the criteria for psychopathy. In this regard, the behavioural experts noted that it is no longer possible to completely separate, on a behavioural level, the role of the personality problems from the role of the increasing cognitive problems caused by MS. At the time of the charged offences, the accused had the described personality problems intertwined with the described neurocognitive impairment due to MS. During this period, she struggled with severe motor impairments, while on the basis of neurological imaging at the time, there are also clear indications of neurocognitive impairments as observed during the present examination. It is not clear to the behavioural experts whether and to what extent, in addition to these impairments, there was also a psychological disturbance, as seen during various periods in detention. Psychological disturbance leads to a further magnification of the underlying impairments in the person concerned, including a further decrease in grip on her actions. The behavioural experts recommend that the offences charged, if proven, be imputed to the accused to a reduced extent.

With regard to the recidivism risk, the behavioural experts used, inter alia, a risk assessment instrument (hereinafter: VERA-2R). With regard to the 'beliefs - opinion - ideology' domain, they note that the accused has a limited integration of religious/ideological ideas, but that she can (still) come to quick and extreme turns in her beliefs in (verbal) expressions thereof. With regard to the 'social context and intention' domain, it is apparent that the accused has shown that she has assumed a role within extreme ideological ideology, propagating it and facilitating acts in this area. Only with regard to the 'history, deeds and ability' domain is a relatively mild profile apparent, apart from the aspects related to her actions since affiliation with radical Islamist ideology. With regard to the 'commitment and motivation' domain, the person can be seen to be significantly motivated by the desire to 'be somebody', 'belong' and experience excitement. This causes the risk of 're-entry' to be seen by the behavioural experts as real. Protective indicators are only present to a limited extent or have little influence on the accused's thoughts and actions. Attempts from youth services to play a role in the best interests of the children have only led to increased anger and resistance. The current clinical condition is largely determined by the outlined personality problems that are exacerbated by increasing neurocognitive impairments. In the opinion of the behavioural experts, the increasing neurocognitive impairments increase the recidivism risk, due to a decrease in inhibition and vision of the person's own behaviour.

Based on the clinical condition in conjunction with the information on the domains described in the VERA-2R, resistance to interventions is considered likely, while the accused's search for excitement and desire to 'want to be somebody' will not diminish. This contributes to an increased risk of relapsing into similar conduct as currently charged, if proven. The accused does not unequivocally reject the use of aggression and the ideology previously expressed by her but speaks about this in an inconsistent manner. This ideology was a vehicle for channelling her frustration and may again take on this function. In short, the risk of repetition of similar conduct as currently charged is assessed as high, while the risk of more active 'hands-on' involvement in ideologically inspired violence cannot be ruled out. In this context, the behavioural experts fear that as the accused loses more opportunities (partly related to the progressive disease, but also to judicial interventions), the threshold for committing violent acts from an ideological perspective could be lowered.

The behavioural experts conclude that the accused has severe and complex psychopathology and that she lacks problem awareness regarding the offences that she has been charged with and previous conduct in this area to a significant extent. She also lacks problem awareness and insight with regard to the psychological consequences of the problems identified in her. The accused speaks inconsistently about her willingness to cooperate with conditions in the context of special conditions in the case of a conditional sentence or in the context of Detention under a Forensic Psychiatric Order subject to conditions. This is related to the lack of problem awareness and is therefore primarily seen by the behavioural experts as an incapacity rather than mere unwillingness. Due to her personality problems, she has

also evidenced, through her history with youth welfare and the municipality, considerable difficulty in making appointments, relinquishing freedoms and accepting supervision or mediation.

Based on the current condition and using a structured risk analysis, the likelihood of repetition of offences similar to those currently charged is considered to be high. This is partly related to the established psychopathology. To reduce the risk of recidivism, treatment and supervision are deemed necessary. The treatment should focus on a further analysis of the realisation of the charged offences, on the underlying personality problems and the increasing cognitive problems associated with MS. The behavioural experts feel that resocialisation is only warranted if the accused has more insight into her problems and shows willingness to be supported in those areas of life where this is needed. In view of the progressive course of the MS, it is not yet clear which context the accused will need in the long run with regard to help and guidance. What is clear, however, is that the options that she still has contrast with the image that the person concerned wants to show of herself. This discrepancy will need to be a focus for (psycho)therapeutic treatment, which should include taking responsibility for one's own choices. The accused is currently focusing in particular on regaining her role as a mother to her children. Care, attention and guidance will also be needed in this domain.

Given the outlined risk and the lack of realistic possibilities to provide the necessary treatment within a conditional framework, the behavioural experts see no other realistic recommendation possible than the recommendation to impose the measure of Detention under a Forensic Psychiatric Order. From this context, it may be possible to gradually work towards a form of independent or assisted living with the then necessary care and guidance as well as with sufficient monitoring in relation to the contacts mentioned by the accused.

Furthermore, the behavioural experts note that the accused is capable of expressing herself in a charming and self-determining manner, which threatens to overshadow the severity of the impairments each time. There is therefore a risk of overestimation, while she herself also tends towards considerable self-overestimation. During the treatment process, these dynamics will need to be taken into account.

The Court of Appeal is of the opinion that the findings of the behavioural experts are supported by sound and insightful substantiation. The Court of Appeal endorses these findings and the conclusions drawn.

Based on the above, the Court of Appeal has formed the opinion that the accused had a pathological disorder in the mental faculties at the time that the offences charged and proven were perpetrated, as referred to in Article 37a, first paragraph of the Criminal Code. Furthermore, the Court of Appeal is of the opinion that this pathological disorder influenced the accused's behavioural choices and actions at the time of the offences charged and proven to such an extent that the offence can only be attributed to her to a reduced extent.

In addition, the Court of Appeal is of the opinion that the likelihood of repetition of similar conduct as currently proven is estimated to be high.

Thereupon, the question before the Court of Appeal is whether Detention under a Forensic Psychiatric Order subject to conditions or Detention under a Forensic Psychiatric Court Order with compulsory treatment should be imposed.

Unlike the counsel argued, the Court of Appeal is of the opinion that there is insufficient reason to order the conditional Detention under a Forensic Psychiatric Order of the accused. Indeed, it follows from the report of the behavioural experts and from what they stated at the appeal hearing that this possibility was examined and rejected. Given the erratic nature of the accused's motivation, this is not advised. Indeed, the accused finds it difficult to be restrained, which is reinforced by the MS. The behavioural experts estimate the likelihood that the accused will resist during treatment to be so high that they recommend Detention under a Forensic Psychiatric Court Order. Even if the accused were to cooperate initially, they do not expect the accused to sustain it. Furthermore, the accused's complex problems, her limited awareness of problems and her inability to (partly) comply with agreements, prevent the imposition of detention under a Forensic Psychiatric Order subject to conditions as described by the experts in their report. Therefore, the Court of Appeal is of the opinion that in view of the nature and severity of the offences charged and proven under Counts 1 up to and including 4 - each of them an offence punishable by a term of imprisonment of four years or more according to the legal definition - as well as what has been considered above concerning the personality of the accused, the general safety of persons demands the imposition of the measure of Detention under a Forensic Psychiatric Order. In accordance with the experts' advice, the Court of Appeal will decide that the accused receive treatment by the state.

Maximised duration of Detention under a Forensic Psychiatric Order

The next question in this case is whether the offences that have been proved are so-called 'offences of violence', as referred to in Article 38e, paragraph 1 Sr.

Legal framework

In that context, the Supreme Court (Supreme Court 2 March 2021, ECLI:NL:HR:2021:336) has considered the following.

'If the measure of Detention under a Forensic Psychiatric Order has been imposed on the accused, the judge should express - preferably in the wording of Article 359 paragraph 7 Sv - in his reasons for the measure whether it was imposed in respect of an offence of violence, i.e. as an offence that was directed against or caused danger to the inviolability of the body of one or more persons. This is especially important if the offence in respect of which the Detention under a Forensic Psychiatric Order was imposed cannot be characterised as an offence of violence without further ado, for example in the case of threatening (Article 285 Sr) or stalking (Article 285b Sr), in respect of which the present measure can be imposed on the basis of Article 37a paragraph 1 under 1° Sr. (Cf. Supreme Court 27 March 2018, ECLI:NL:HR:2018:443, paragraph 3.4.)

In such cases, the judge will have to form an opinion as to whether, considering all the facts and circumstances, the offence charged and proven equates an 'offence of violence'. In so doing, he will be able to consider not only whether the offence - in this case: threatening and stalking - was preceded, accompanied or followed by non-verbal aggressive behaviour towards the threatened person or supported in any (other) way, but also whether it is plausible that the threat would have been carried out. (Cf. Supreme Court 25 August 2020, ECLI:NL:HR:2020:1316).'

Assessment by the Court of Appeal

The offences for which the accused was convicted, are all classified in the Criminal Code under the Second Book of Title V 'Offences against Public Order'. In this context, however, the legislative history does not provide a definitive answer as to whether the specific offences in the present case can also (by definition) be characterised as 'offences of violence'.

The Court of Appeal has therefore considered the following facts and circumstances in assessing this. The criminal behaviour of the accused was, without exception, of a digital nature. In essence, she shared messages with texts, images and videos via Telegram in certain groups (as an administrator), or she had that digital material in her possession. This action by the accused took place solely from her home in [place of the offence]. At no time did she herself commit violence or otherwise display (non-verbal) aggressive behaviour. In view of these facts and circumstances, the offences for which the accused was convicted cannot be regarded as offences of violence within the meaning of Article 38e Sr. Thus, in weighing all relevant facts and circumstances in this context, the Court of Appeal has attached more value to the accused's own actions or contributions and the circumstances under which they took place than, for example, to the fact that IS as an organisation has committed crimes that were directed against or caused danger to the inviolability of the body of one or more persons (as has been proven under Count 1).

Detention under a Forensic Psychiatric Order is thus being imposed for an offence that is not directed against or causes danger to the inviolability of the body of one or more persons, as referred to in Article 38e, first paragraph of the Criminal Code. This means that the duration of the measure is maximised (up to 4 years).

Measure under 38z

Since, in view of the nature of the accused's disorder, long-term safeguards with a view to future risks to the safety of others or the general safety of persons or goods, seem necessary, the Court of Appeal considers it advisable to impose a behaviour-influencing or freedom-restricting measure (GVM) within the meaning of Article 38z of the Criminal Code, in addition to the measure of Detention under a Forensic Psychiatric Court Order. In view of the foregoing, this can thus ensure - if the risks existing at the time make this necessary - that the accused is placed under supervision after the end of the Detention under a Forensic Psychiatric Order measure.

The legal requirements within the meaning of Article 38z, first paragraph of the Criminal Code have been met.

The assessment of the need to implement the measure and, if necessary, under what conditions, will take place in the final phase of the Detention under a Forensic Psychiatric Order imposed on the accused. A risk assessment of the then existing risk of recidivism should take place within the framework of that assessment.

Conclusion regarding punishment and measures

The Court of Appeal - all in all - is of the opinion that a wholly unconditional prison sentence for a term of 54 months combined with the aforementioned measures constitute, in principle, an appropriate and warranted response.

However, the Court of Appeal finds that the reasonable time limit within the meaning of Article 6, paragraph 1 of the European Convention on Human Rights and Fundamental Freedoms, has been violated both in the first instance and on appeal. The Court of Appeal will take this transgression into account in the sentencing in the sense that instead of the aforementioned sentence deemed appropriate and warranted in principle, a sentence of 48 months' imprisonment shall be imposed.

Enforcement of the imposed prison sentence will take place entirely within the prison facility, until such time as the convicted person becomes eligible for participation in a prison programme within the meaning of Article 4 Prison Principles Act, or arrangements for conditional release, within the meaning of Article 6:2:10 Code of Criminal Procedure, can be made.

At the appeal hearing, the Advocate General requested that the Court of Appeal should decide on the seizure in accordance with the District Court. He also requested that the sum of money in the amount of € 1,300.00, as mentioned under 10 on the attached seizure list, be returned to the accused.

Counsel requested the return of the Alcatel, listed under 7 on the attached seizure list. With regard to the remaining goods, she referred to the judgment of the Court of Appeal.

NATO tear gas and Riot Gun taser

These objects, listed under 1 and 2 on the attached seizure list, were found during the investigation into the offences committed by the accused and belong to the accused. These objects may serve to commit or prepare similar offences. These objects are of such a nature that their uncontrolled possession is contrary to the law and the public interest, so that these objects should be withheld from circulation.

IS flags

The two IS flags, listed under 5 and 8 on the attached seizure list, were found in the accused's residence on the occasion of the investigation into the offences committed by the accused. These flags may serve to

commit similar acts as those proven, because those IS flags could be used for the purpose of incitement. The possession of these flags symbolises a certain sympathy for, or membership of, IS, an organisation whose intent it is to commit terrorist offences and war crimes. These objects are therefore of such a nature that their uncontrolled possession is contrary to the law and the public interest, so that these objects should be withdrawn from circulation.

HUAWEI tablet

Using this object, listed under 6 on the attached seizure list, the charges under Counts 2, 3 and 4 were committed. Since the possession of the material found on the tablet is contrary to the law and public interest, this object should be withdrawn from circulation.

The remaining objects

As the interests of criminal procedure no longer oppose it, the Court of Appeal will order the return to the accused of the seized objects to be specified, as listed under 3, 4, 7, 9 and 10 on the attached seizure list.

The Court of Appeal has taken into account

Articles 36b, 36c, 36d, 37a, 37b, 38z, 55, 57, 63, 131, 132, 134a, 140 and 140a of the Criminal Code,

Articles 1, 2 and 6 of the Economic Offences Act,

Articles 2 and 3 of the Sanctions Act 1977,

Article 2 of the Sanctions Regulations on Terrorism 2007-II, as they apply or applied in law.

The Court of Appeal:

Sets aside the decision appealed against and pronounces judgment anew:

Declares not proven that the accused committed the offences charged in the case bearing Public Prosecution’s Office number 09-748012-19 under 5 and acquits the accused thereof.

As considered above, declares proven that the accused committed the offences charged in the case bearing Public Prosecutor's Office number 09-748012-19 under Counts 1, 2, 3 and 4 and the offences charged in the case bearing Public Prosecutor's Office number 09-748012-19-P.

Declares that any additional charges or charges formulated otherwise than those proven above have not been proven and acquits the accused thereof.

Declares the charges proven in the case bearing Public Prosecutor's Office number 09-748012-19 under Counts 1, 2, 3 and 4 and the charges proven in the case bearing Public Prosecutor's Office number 09-748012-19-P punishable, qualifies this as stated above and declares the accused criminally liable.

Sentences the accused to a term of imprisonment of 48 (forty-eight) months.

Orders that the time spent by the accused in any form of pre-trial detention within the meaning of Article 27, paragraph 1 of the Criminal Code before the execution of this judgment, shall be deducted when implementing the prison sentence imposed, insofar as that time has not already been deducted from another sentence.

Rules that the accused be placed in Detention under a Forensic Psychiatric Order and rules that she receive treatment by the state.

Imposes on the accused the measure aimed at influencing behaviour or restricting freedom within the meaning of Article 38z of the Criminal Code.

Orders the withdrawal from circulation of the seized items not yet returned, namely:

Instructs the return to the accused of the seized items not yet returned, namely:

This judgment was delivered by B. Stapert LLM,

D.M. Thierry LLM and W.S. Korteling LLM,

in the presence of

T.A. van den Berg LLM and R. de Geus LLM, Court Clerks.

It was pronounced at the public hearing of the Court of Appeal on 11 September 2024.

The accused was charged - after amendment of the indictment at the first instance hearing and on appeal - with:

Case bearing Public Prosecution’s Office number 09-748012-19:

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 Criminal Code), (to be) committed with terrorist intent (within the meaning of Article 176a Criminal Code) and/or

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

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

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 Criminal Code) and/or

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 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);

AND

at one (or more) point(s) in time in or around the period from 1 January 2019 up to and including 10 October 2019 in [place of the offence], or at least in the Netherlands, she participated, either alone or jointly and in conjunction with (an)other person(s), in one or more organisation(s), namely Islamic State (IS) or Islamic State of Iraq and al-Sham (ISIS) and/or Islamic State of Iraq and the Levant (ISIL), or at least a jihadi combat group associated with the aforementioned organisation(s), or at least (an) organisation(s) advocating the armed jihad struggle, whose intent it is/was to commit (war) crimes, namely:

A. attacks on life or physical violence, in particular killing by whatever means these may be (within the meaning of Article 6, paragraph 1 under a International Crimes Act) and/or

B. outrages upon personal dignity, in particular humiliating and degrading treatment (within the meaning of Article 6, paragraph 1 under c International Crimes Act),

of persons who(, at the time,) did not take (or no longer took) part directly in the hostilities, namely civilians and/or armed forces personnel who had laid down their arms and/or persons who had been placed hors de combat by sickness and/or injuries and/or detention and/or any other cause, in the event of a non-international armed conflict within the territory of Iraq and/or Syria, in violation of the provisions of Common Article 3 of the Geneva Conventions of 12 August 1949;

indeed, the accused and/or her co-perpetrator(s), several times, or at least once (on each occasion),

A. has/have acquired the radical extremist ideology of the armed jihad struggle with a terrorist intent conducted by the (terrorist) organisation Islamic State (IS), or Islamic State of Iraq and al-Sham (ISIS) and/or Islamic State of Iraq and the Levant (ISIL), or at least a Jihadist combat group affiliated to the above-mentioned organisation(s), or at least (an) organisation(s) advocating the armed jihad struggle, and/or

B. managed and/or followed and/or visited one or more Telegram group(s) and (subsequently) from/in these group(s) downloaded and/or stored and/or possessed and/or shared and/or disseminated and/or allowed to be shared and/or disseminated and/or had shared and/or had disseminated one or more (digital) files (such as documents and/or videos and/or images) containing information related to jihadist ideology and/or beheadings and/or guidance and/or instructions about/for (the support and/or encouragement of) the armed jihad struggle, which file(s) consisted of:

C. visited one or more website(s) and/or (a) social media channel(s), on which one or more (digital) file(s) (such as documents and/or videos and/or images) containing information (being shared) about ((an) instruction(s) for) the making/manufacturing of explosives and/or (subsequently) downloaded and/or stored and/or shared and/or disseminated and/or possessed information about ((an) instruction(s) for) the making/manufacturing of explosives, which file(s) consisted of:

by (co-)administrating and/or following (various) Telegram groups (each time) with the name Greenb1rds and posting messages and/or images and/or videos in these groups:

outrages upon personal dignity, in particular humiliating and degrading treatment, of persons who(, at the time,) did not take (or no longer took) part directly in the hostilities, namely civilians and/or personnel of armed forces who had laid down their arms and/or persons who had been placed hors de combat due to illness and/or injuries and/or imprisonment and/or any other cause, in the case of a non-international armed conflict within the territory of Iraq and/or Syria, in violation of the provisions of common Article 3 of the Geneva Conventions of 12 August 1949,

by (co-)managing and/or following (various) Telegram groups (on each occasion) with the name GreenB1rds and by posting messages and/or images and/or videos in these groups:

while she, the accused, and/or her co-perpetrator(s) knew or had serious reason to suspect that the written text(s) and/or image(s) contained such incitement,

indeed, she, the accused and/or her co-perpetrator(s) (on each occasion) (co-)administrated and/or followed and/or visited (various) Telegram groups with the name GreenB1rds and posted and/or shared the following messages and/or images and/or videos in these group(s), or at least stockpiled these messages and/or images and/or videos:

outrages upon personal dignity, in particular humiliating and degrading treatment, of persons who(, at the time,) did not take (or no longer took) part directly in the hostilities, namely civilians and/or armed forces personnel who had laid down their arms and/or persons who had been placed hors de combat by sickness and/or injuries and/or detention and/or any other cause, in the event of a non-international armed conflict within the territory of Iraq and/or Syria, in violation of the provisions of Common Article 3 of the Geneva Conventions of 12 August 1949;

she disseminated and/or stockpiled for dissemination,

while she, the accused, and/or her co-perpetrator(s) knew or had serious reason to suspect that the written text(s) and/or image(s) contained such incitement,

indeed, she, the accused and/or her co-perpetrator(s) (on each occasion) (co-)administrated and/or followed and/or visited (various) Telegram groups with the name GreenB1rds and posted and/or shared the following messages and/or images and/or videos in these group(s):

or at least utterances of a similar nature and/or purport which, whether or not in combination, are of an inciting nature;

either alone or jointly and in conjunction with (an)other person(s)

several times, or at least once, (on each occasion),

in the event of a non-international armed conflict within the territory of Iraq and/or Syria, in violation of the provisions of Common Article 3 of the Geneva Conventions of 12 August 1949,

she committed outrages upon the personal dignity (and/or) (in particular) humiliated and/or treated in a degrading manner persons who (, at the time), did not take (or no longer took) part directly in the hostilities, namely civilians and/or armed forces personnel who had laid down their arms and/or persons who had been placed hors de combat by sickness and/or injuries and/or detention and/or any other cause,

indeed, she, the accused and/or her co-perpetrator(s) (each time) (co-)managed and/or followed and/or visited (various) Telegram groups with the name GreenB1rds and posted and/or shared messages and/or images and/or videos in these group(s):

and thereby (thus) disseminated and/or made public these messages and/or images and/or videos.

Case bearing Public Prosecution’s Office number 09-748012-19-P:

she acted (at one (or more) point(s) in time) in or around the period from 1 September 2019 up to and including 10 October 2019 in [place of the offence], at least in the Netherlands, and/or Turkey, several times, at least once, (on each occasion) in violation of the prohibition laid down under Article(s) 2 and/or 3 of the Sanctions Regulations on Terrorism 2007-II by directly or indirectly making funds available, namely:

intentionally or unintentionally

through one or more intermediary person(s) to [person 1] and/or [person 2], while [person 1] was designated by the Foreign Secretary by decision of 24 March 2017 and [person 2] by decision of 16 October 2017 as (a) person(s) to whom the Sanctions Regulations on Terrorism 2007-II apply.