Uitspraak
Court: The Hague Court of Appeal
Date of decision: 19/02/2021
Date of publication: 19/02/2021
Case number: 2200546019
Areas of law: Criminal law
Special features: Appeal
Judgment
Cause list number: 22-005460-19
Public Prosecutor’s office number: 09-767332-18
Date of judgment: 19 February 2021
DEFENCE
Court of Appeal, The Hague
three-judge division for criminal cases
Judgment
given on the appeal against the judgment of the District Court of The Hague of 18 November 2019 in the criminal case against the accused:
[accused],
born in [city of birth] (Pakistan) on [date of birth] 1992,
with no fixed place of residence in the country,
currently detained at the Vught correctional facility, Terrorist Department, in Vught.
Table of contents
I Introduction
II Examination of the case in court
III Procedure
IV Charge
V Demand by the Advocate General
VI The judgment appealed against
VII Further (evidentiary) considerations
- ( Evidentiary) considerations with regard to Count 1: Criminal acts of preparation and facilitation of committing murder with terrorist intent
- ( Evidentiary) considerations with regard to Count 2: Threat with terrorist intent
- Discussion of the defence with regard to Counts 2 and 3 in relation to Article 10 of the ECHR
VIII Declaration of charges proven
IX Argumentation
X Penalization of charges proven
XI Punishability of the accused
XII Grounds for the punishment
XIII Seizure
XIV Request to lift the pre-trail detention order
XV Applicable legal provisions
XVI Judgment
Introduction
The accused in this case is on trial for three offences:
1. Preparing and/or facilitating the carrying out a terrorist attack on Wilders (Article 96, second Paragraph CC and Article 289a CC).
2. Threatening Wilders with a terrorist offence (Article 285, third Paragraph CC).
3. Incitement and/or distribution of inciting writings or images (Articles 131 and 132 CC).
The grounds for the suspicions raised against the accused were as follows.
Cartoon competition
On 17 May 2018, Geert Wilders (hereinafter Wilders),
chairman of
Partij voor de Vrijheid(PVV) and working on behalf of this political party as party chairman in the House of Representatives of the States General, announced that he wanted to organise a cartoon competition relating to the Prophet Mohammed in the House of Representatives.
Partij voor de Vrijheid(PVV) and working on behalf of this political party as party chairman in the House of Representatives of the States General, announced that he wanted to organise a cartoon competition relating to the Prophet Mohammed in the House of Representatives.
This announced cartoon competition attracted much attention, also abroad. In Pakistan, the announcement of the competition led to protests and demonstrations. The Pakistani government also expressed its displeasure with the cartoon competition. During the month of August 2018, the demonstrations grew in size. Through diplomatic channels, attempts were made to stop the cartoon competition. The tone of various protests became more threatening in the process. For example, a Pakistani cricket player put a price on Wilders' head.
Notification of a video on Facebook
On 27 August 2018 at 3:25 p.m., a message in the English language was posted on www.politie.nl.
The message – sent from the United Kingdom – stated that a video had been found on Facebook of a person called [accused]. This man had allegedly entered the Netherlands with the intent of killing Wilders. Furthermore, this man would call on other people to help him succeed in his mission and he would talk about the preparations for his task without giving details, so that his mission would remain secret. The charges person indicated that he wanted to share this information because he wanted to do this as a good citizen, so that this information would contribute to the prevention of a possible terrorist attack.
Charges brought by Wilders
On 28 August 2018, Wilders was notified of the video on Facebook by the National Coordinator for Counterterrorism and Security. On 28 August 2018 at 11:10 a.m., the accused was arrested at The Hague Central Station.
On 30 August 2018, Wilders issued a statement in which he indicated that he could not allow the cartoon competition to go ahead, because of threats and increasing danger to himself and to the Netherlands.
On 4 September 2018, in response to the video on Facebook, Wilders brought charges of threat.1
Hearing of the case
This judgment has been rendered as a result of the hearing in the first instance and the hearing in the appeal proceedings of this Court of Appeal.
The Court of Appeal has taken cognisance of the demand of the Advocate General and of that what has been put forward by and on behalf of the accused.
Procedure
In the first instance, the accused was sentenced in respect of charges 1, 2 and 3 to 10 years’ imprisonment, with credit for pre-trial detention. Furthermore, in the first instance a decision was made regarding the seizure, as described in more detail in the judgment against which the appeal was lodged.
On behalf of the accused, an appeal was lodged against the judgment.
Charge
The accused – after the charge was amended during the court session in the first instance – has been charged with the offence that
1.
he, in the period from 20 August 2018 up to and including 28 August 2018, in The Hague and/or Amsterdam, at any rate in the Netherlands, jointly and in conjunction with others, at any rate alone, with the intention of preparing and/or facilitating the offence(s) to be committed, as described in Articles 157 and/or 289(a) and/or 288a of the Criminal Code, namely:
intentionally setting fire and/or causing an explosion, while there is fear for collective danger to property and/or danger of serious bodily harm and/or danger to the life of another person, and/or murder and/or manslaughter of G. Wilders (member of the House of Representatives), or at any rate of the organiser of the cartoon competition, to be committed with terrorist intent,
- tried to induce another to commit, to cause to commit or to participate or to assist in committing the offence, or to provide opportunity, means or information to that end and/or
- provided himself or others with the opportunity, means and/or information to commit the offence,
after all, he, the accused,
- obtained and/or provided information about the cartoon competition and/or the organiser and/or
- made inquiries and/or obtained information about the journey from Italy and/or France to the Netherlands and/or (subsequently)
- bought a bus ticket for his journey to the Netherlands and/or made use of it and/or
- left Italy and/or France by bus to Amsterdam and/or
- stayed in Amsterdam and obtained further information about the (exact) location of the cartoon competition and/or
- travelled one or more times from Amsterdam to The Hague and/or back and/or
- by posting a video on the Internet, asked for financial help and/or shelter for his mission in order to ‘send that dog, that uncivilised one, to hell’ and/or
- acquired and/or subsequently hid items for his mission and/or
- made inquiries and/or obtained information about where the cartoon competition was held and/or how the House of Representatives is organised and/or who the President of the House of Representatives is and/or (subsequently)
- explored the route to and/or surroundings of the Parliament and took photos of the binnenhof.
2.
he, on or around 27 August 2018, in
The Hague, at least in the Netherlands, threatened G. Wilders (member of the House of Representatives), or at any rate the organiser of the cartoon competition, with a terrorist offence, after all, the accused intentionally posted a video on Facebook in which he makes an appeal to his Muslim brothers to sacrifice everything in the name of the Prophet and/or to help him, the accused, and/or by saying in the video that the insulter of Mohamed is his only target and, with God's will, will reach that person and send him to hell, at any rate words of a similar threatening nature and/or purport,
3.
he, on or around 27 August 2018, in
The Hague, at any rate in the Netherlands, publicly incited, orally and by means of image(s), at any rate in a video, to any punishable offence, while that which is incited constitutes a terrorist offence, by means of:
making a video on Facebook in which he, the accused, makes an appeal to his Muslim brothers to sacrifice everything in the name of the Prophet and/or to help him, the accused, and/or by saying in this video that the insulter of Mohamed is his only target and that, with God's will, he will reach that person and/or if he will stay alive, he, the accused, will (continue to) reach his goal:
and/or
he, on or about 27 August 2018, in
The Hague, at any rate in the Netherlands, distributed, publicly exhibited for distribution and/or public exhibition, or had in stock, a writing and/or image, at any rate a video, inciting to a terrorist offence or any punishable offence and/or acts of violence against public authority, while he knew or had serious reason to suspect that the writing and/or image contains such incitement, after all the accused:
posted a video on Facebook in which he makes an appeal to his Muslim brothers to sacrifice everything in the name of the Prophet and/or to help him, the accused, and/or by saying in this video that the insulter of Mohamed is his only target and that, with God's will, he will reach that person and/or says that if he will stay alive, he, the accused, will (continue to) reach his goal and/or (thereby) requested to share this video appeal.
Demand by the Advocate General
The Advocate General has demanded that the judgment appealed against be set aside and that the accused be sentenced to 10 years’ imprisonment, with credit for pre-trial detention, in respect of the charges under 1, 2 and 3.
The judgment appealed against
The judgment appealed against cannot be upheld, as the Court of Appeal does not agree with it.
Further evidentiary considerations
(Evidentiary) considerations regarding Count 1:
Punishable acts of preparation and facilitation for committing murder with terrorist intent
Punishable acts of preparation and facilitation
Position of the defence
At the appeal hearing, the defence counsel – based on the pleading notes he submitted – took the position that the accused came to the Netherlands to demonstrate against a cartoon competition in response to reports about the competition and to get the organiser of the competition, Wilders, to stop organising it. The actual actions the accused performed are not punishable, not even in conjunction with each other, and cannot lead to a punishable offence within the meaning of the charges, namely preparatory actions within the framework of murder. The accused has stated that he only came to the Netherlands to protest against the cartoon competition organised by Wilders and that in his video that was posted on Facebook he asked for help in that context.
The counsel argued for acquittal with regard to Count 1.
Position of the Public Prosecution Service
At the hearing on appeal, the Advocate General – in accordance with his submitted written demand – took the position that the case file unmistakably shows that the accused had one goal with his trip to the Netherlands, namely, to punish the insulter of the Prophet, Wilders, and therefore to kill him. The accused is guilty of (punishable) acts of preparation and facilitation to commit the murder of Wilders. Count 1 can thus be proven.
Legal framework
The acts of preparation and facilitation described in Article 96, Paragraph 2 Criminal Code (hereinafter: CC) are punishable regardless of their result. The requirement is that the perpetrator undertakes the act with the intention of preparing or facilitating the terrorist offence in question. Conditional intent to prepare or facilitate a terrorist offence is not sufficient.
In order to conclude that the preparation or facilitation of the offences described in Article 96, Paragraph 2 CC have been proven it is sufficient that the intention of the accused is aimed at preparing or facilitating these offences, without it being necessary to specify the time, place and manner in which the offence is to be prepared or facilitated. It is therefore only required that it appears with sufficient certainty at which offence, as described in Article 289a CC, the preparatory and facilitating acts derived from Article 96, Paragraph 2 CC were directed.2
The preparatory and facilitating acts charged may be viewed in conjunction with each other. Even if isolated acts do not constitute punishable preparations, the intention to prepare a offence can be deducted from the combination of all the acts and the accused's ideology.
Assessment by the Court of Appeal
The charge under Count 1 is tailored to the penalization of Article 96, Paragraph 2, CC.
Based on the case file and the hearings in the first instance and in appeal, the Court of Appeal establishes the following facts and circumstances within the framework of Count 1.
On 25 August 2018, the accused travelled to the Netherlands because he had heard that member of the House of Representatives Wilders wanted to organise a cartoon competition with the prophet Mohammed as the subject. Through social media and through conversations held in the Netherlands, the accused informed himself about the cartoon competition and the exact place where the competition would be held, namely in the Dutch Parliament Building in The Hague.
On 27 August 2018, at The Hague Central Station, the accused recorded a video of himself and posted it online via his Facebook account at 10:16 a.m. In the video, the accused says, among other things, the following:
(...) I ask you, all lovers of the Prophet, to watch this video once (...) (...) that I have been in the Netherlands for three or four days, because of the fact that these people here are mocking our beloved Prophet. (...) I request you not to use foul language against them on Facebook or to demonstrate against them; such things are of no use. The results thereof are simply zero.
I ask you to share this, I really need your help, brothers. (...) that I am looking for someone, a person who can sacrifice everything for the name of the Prophet. (...)
I am in the Netherlands now I am five minutes away from the location, the parliament building, where they are going to hold the exhibition. If I walk, I will be there in five minutes. They have taken a lot of security measures here. (...)
My enemy right now, my target is only that uncivilised one. I want to reach him. If Allah wills, I will reach him. (...) I will return only if I succeeded in my mission, for which I have come. (...)
Many things, with what my budget was, I bought what I needed. (...) And right now, my enmity, and whatever it is, is against that uncivilized one, I have nothing else here. (...) And I ask those who are demonstrating, that demonstrating is of no use, if you are calling names, that is of no use either because they cannot understand anyway.
(...) And I promise you that until my last breath I will not fail you. As Allah wills, I will send that dog, that uncivilised one to hell. That is my attempt, it is not just an attempt, I will accomplish it if I live. During my life, I will not abandon this mission. (...) I need all kinds of help, I am not saying this and that, but different kinds of help.'
In this video message, the accused addresses his brothers in the faith and asks them for help, telling them that demonstrating is pointless and that he is looking for a person who can sacrifice everything in the name of the Prophet. The accused also says that he will only return if his mission is successful; that he has bought what is needed, that he will send 'that dog, that uncivilised one to hell' and that he is five minutes away from the Dutch Parliament Building.
The accused stated that by 'that dog, that uncivilised one' he meant Wilders. After the accused posted the video on Facebook, he walked to the Dutch Parliament Building carrying a rucksack. He explored the Binnenhof and took photos of it. Via the Buitenhof, the accused walked back to The Hague Central Station, where – with his rucksack – he took the train to Amsterdam Sloterdijk.
In the following hours, after the video had been posted online, many chats on WhatsApp and Facebook started between the accused and various other people who had apparently seen the video. The accused also records voice messages on WhatsApp. The chat messages and voice messages include the following:
Chat 516 (WhatsApp): 27 August 2018 with [party involved 1]
11:28:12 a.m. audio message [party involved 1]:
before you go and kill that damned person, block/remove all data from your mobile phone.
11:29:08 a.m. audio message [person concerned 1]:
Secondly, if you need any other kind of support. I have no means, otherwise I would have helped you financially. You can tell me a procedure, how something can be delivered to you.
11:33:36 a.m. accused:
I and I alone... that person, we are a short distance away. By God's will, whenever... the building, where the exhibition will take place, I will stay in a place five or six minutes away from there. With God's will, I promise you all, he will only stay alive until I have met him. When I have met him, I will break through all the barriers of the world. Everything that comes against my mission, I will set on fire ... will destroy. I will sacrifice everything on the Prophet (words of honour). (...)
Chat 517 (Facebook): 27 August 2018 with [person concerned 2]
11:52:12 a.m. - 11:52:29 a.m. incoming
Brother, you should not worry. Allah will help you. With God's will. You must behead him.
11:52:34 a.m. outgoing
I will do/with God's will.
Chat 429: 27 August 2018 with [person concerned 3]
1:14 p.m.:
the accused sends an audio message in a chat on WhatsApp, saying:
the accused sends an audio message in a chat on WhatsApp, saying:
At this moment, I cannot speak to you at length and in detail. Your prayers are with me and I will not disappoint the Muslim people. As long as I keep breathing, I will not return, just until I have succeeded in my mission.
Chat 439: 27 August 2018 with [person involved 4]
10:53:36 a.m. audio message [person involved 4]:
My brother, I listened to your video completely. (...) You are a lucky person. (...) Allah has given you a chance.
11:04:03 p.m. audio message accused:
With God's will, these encouragements will take me to my goal: I will try not to disappoint the Muslim people. It is possible...that person would have good luck, whose hands will do this job: (...) I am looking for someone. It is quite possible that I will find that person and that together with him I will complete my mission: As long as I live, my life is now only for this purpose. For this purpose, I will make my whole life available.
11:14:00 a.m. audio message accused:
The purpose of uploading my video is that I may find a darling of Allah who wants to help me in all kinds of ways. That I can complete my goal/mission together with him. My request to you is that if Allah has given you enough money, that is what I really need from you. If you can arrange a place for me to live, I have a problem with finding a place to live.
(...) I also brought certain things. I cannot walk around with those things. Without them, my mission will not be complete.
Chat 156: 27 August 2018 with [person concerned 5] IMO
4:31 p.m.:
You must kill that shameless man and only then return. God will protect you.
4:38 p.m.:
Brother, I would also like to kill that shameless one and then come back.
Chat 431 (WhatsApp): 28 August 2018 with [person concerned 6]
10:47:47 a.m. - 10:50:34 a.m.:
[Accused] brother, I saw your video on Facebook. Tell me, what kind of help do you need? I belong to Tehreek Labbaik. (...)
10:52:56 a.m. accused:
I need financial help very badly.
10:53:39 a.m. - 10:56:01 a.m. [person concerned 6]:
It will succeed with God's will. What is your goal? What will you do when you get there? Say so if you want to kill the insulter.
10:59:25 a.m. - 10:59:48 a.m. accused:
Brother, what else have I come here for? He is not a small/unimportant person here.
The Court of Appeal therefore establishes on the basis of the above that the accused came to the Netherlands with a mission. He did not want to leave the Netherlands until his mission had succeeded, either alive or dead. From the contents of the Facebook video and various chat conversations it can be derived without any doubt that this mission consisted of killing – in the accused's eyes – the insulter of the prophet Mohammed: Wilders.
In order to be able to carry out his plan, the accused had already made some preparations. He came to the Netherlands from abroad and made sure that he knew where he could find Wilders: the Parliament Building in The Hague, where the accused, with his rucksack, had also been for some time. For this purpose, he had informed himself in which city the Parliament Building was located. The accused had bought things to accomplish his mission: he had bought what he needed; he expressly said that without these things his mission was not complete. Gradually, the accused comes to the conclusion that he can no longer walk around with those things. Furthermore, the accused asked brothers in the faith for help to make his mission succeed. He was looking for someone who could sacrifice everything for the name of the Prophet. The requested help consisted at any rate of providing financial means and shelter.
Based on the above, considered in combination with each other, the Court of Appeal is of the opinion that the accused committed acts of preparation and facilitation in order to make a success of his mission and therefore to kill Wilders. The Court of Appeal derives from the combination and mutual coherence of the actions performed by the accused, the contents of the video message, and the statements made by the accused in chat conversations, that the accused had the intention to prepare and facilitate the murder of Wilders. The fact that such actions can under circumstances also be regarded as daily non-criminal activities does not affect this.
Alternative scenario
The Court of Appeal does not consider it plausible that the accused only came to the Netherlands to demonstrate against the cartoon competition and that his aim was to stop the cartoon competition. The Court has taken into account that the accused himself states twice in his Facebook video of 27 August 2018 that demonstrating is, on the contrary, pointless.
Interim conclusion
The Court of Appeal therefore concludes that it can be legally and convincingly proven that the accused is guilty of punishable acts of preparation and facilitation for the murder of Wilders, as charged under Count 1.
Terrorist intent
Position of the defence
The defence counsel took the position that, even if the Court of Appeal would characterise the accused's alleged behaviour as punishable preparatory acts, it does not appear from the evidence that the accused had a terrorist intention. The defence counsel emphasized that the accused's aim was to stop Wilders within the scope of organising the cartoon competition and not to cause serious fear in (a part of) the population or to force the Dutch government to stop something.
Position of the Public Prosecution Service
At the appeal hearing, the Advocate General – in accordance with his written demand - took the position that the accused, by intending to carry out an attack on Wilders because Wilders' cartoon competition insulted the prophet Mohammed, had a terrorist intention, in the sense that the accused had the intention to seriously disrupt or destroy the fundamental political, economic or social structures of a country. Unlike the Court and the Public Prosecutor, the Advocate General is of the opinion that the intention of the accused with his intended deed was also aimed at causing serious fear in (a part of) the population.
Legal framework
Article 83a Criminal Code states that terrorist intent is understood to mean:
i. the intention to instil serious fear in the population or a section of the population of a country; or
ii. to unlawfully compel a government or international organisation to do, refrain from doing or tolerate something; or
iii. to seriously destabilise or destroy the fundamental political, constitutional, economic or social structures of a country or an international organisation.
Assessment by the Court of Appeal
The Court of Appeal already established that the accused intended to kill Wilders, because in his opinion Wilders insulted the Prophet by organising a cartoon competition about the Prophet Mohammed.
The question to be answered is whether the accused had a
terroristintent.
terroristintent.
Based on the evidence, the Court of Appeal furthermore establishes that the accused knew that Wilders is a member of the House of Representatives and that he is a political leader. For instance, after posting his video on Facebook, the accused said in chat conversations about Wilders that 'he is not a small/unimportant person here'. At the appeal hearing, the accused stated that Wilders is a leader and that people (can) follow him. It also appears that the accused wanted to commit his act at the place where the cartoon competition would be held and that he knew that this was in the Dutch Parliament Building. The accused was in the vicinity and hoped to meet Wilders. The Court of Appeal derives from this that the accused intended to kill Wilders in or near the Parliament Building: the beating heart of Dutch democracy.
Wilders, as a parliamentarian and party chairman of the PVV, wanted to organise the cartoon competition in support of his political message and in the framework of a social debate, which is pre-eminently part of a parliamentary democracy as the Netherlands knows it. Freedom of expression plays a major role in this, especially if it concerns the expression of opinion of a politician.
For the accused, there is only one punishment for the insulter of the Prophet and that is (the) death (penalty). With this, the accused aimed partly at retaliation and partly at stopping a politician who insulted the Prophet. The Court of Appeal derives from this that the accused wanted to silence Wilders. By killing him, the cartoon competition would not take place, the accused would eliminate a Dutch politician from the political and social debate and the political message would no longer be proclaimed.
In view of the above, the murder prepared by the accused would be an attack on the rule of law and would mean a disruption of the fundamental political and constitutional structures, in the sense of Article 83a Criminal Code, and the intention of the accused, as appears from his actions and statements, was also aimed at this.
If the accused had succeeded in his intention to kill Wilders, this would undeniably have caused serious fear among (a part of) the population of the Netherlands.
Together with the Advocate General, the Court of Appeal is of the opinion that the accused must have realised that by killing politician Wilders because of the organisation of a cartoon competition as set out above, the instigation of such a fear would be a necessary and therefore desired consequence.
Conclusion
In conclusion, the accused is guilty of preparing and facilitating the commission of murder with a terrorist intent.
(Evidentiary) considerations with regard to Count 2: Threat of a terrorist offence
Defence
The defence argued that Wilders could not have had reasonable fear that he might lose his life, because at the time Wilders became aware of these statements, the accused was subject to all restrictions.
Legal framework
A conviction for threatening with a terrorist offence requires that the person who was threatened actually became aware of the threat; that the threat was of such nature and took place under such circumstances that the person who was threatened could reasonably fear that the terrorist offence with which was threatened would also be carried out; and that the accused's intention was directed towards this.
Assessment by the Court of Appeal
Based on the file and the hearing on appeal, the Court of Appeal establishes the following facts and circumstances.
In his charges, Wilders states that, on 28 August 2018, he was informed by the National Coordinator for Counterterrorism and Security that a video message containing threats apparently directed at him had been posted on Facebook on 27 August 2018.
The charges also show that the police informed Wilders of this (in the meantime translated) video message.
Wilders stated that he has the strong impression that the message is about him and that he fears that the person who expresses this message will actually take his life or have someone else or others kill him.
The Court of Appeal is of the opinion that under these circumstances Wilders could have had reasonable fear that the accused, with or without the help of others, would rob him of his life. This would – as explained above – constitute a terrorist offence. The fact that the accused was arrested and detained by the police at the moment that Wilders became aware of the video, does not make this any different. After all, the circumstance that the accused is not able to carry out the threat at the moment in question does not have to stand in the way of the generation of the aforementioned fear.3 In this respect, the fact that the accused, in view of his choice of words, shows in his message that he has the firm intention to carry out what he is planning to do, applies. He talks about 'his only target' and 'our enemy' and that he will not
tryto send him to hell, but that he will actually do so. Moreover, the accused calls on others to help him, so that the reasonable fear was also justified that the offence would be carried out with the help of that/those other person(s). It also follows from the evidence that the intention of the accused, in a conditional sense at least, was aimed at creating this fear in Wilders.
tryto send him to hell, but that he will actually do so. Moreover, the accused calls on others to help him, so that the reasonable fear was also justified that the offence would be carried out with the help of that/those other person(s). It also follows from the evidence that the intention of the accused, in a conditional sense at least, was aimed at creating this fear in Wilders.
The court dismisses the defence.
Discussion of the defence with regard to Counts 2 and 3 with respect to Article 10 ECHR
Defence with respect to Article 10 ECHR
On behalf of the accused the defence counsel put forward that the accused should be acquitted of the charges against him under Counts 2 and 3. He hereby invokes the freedom of expression as laid down in Article 10 of the ECHR.
Legal framework
Article 10 ECHR reads [in the Dutch translation insofar as relevant]:
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or offence, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
Article 17 ECHR reads [in the Dutch translation]:
Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.
Assessment by the Court of Appeal
Article 17 ECHR
Statements or other communications directed against the values underlying the ECHR may, exceptionally and in extreme cases, lack the protection of Article 10 ECHR on the grounds of Article 17 ECHR.
In the opinion of the Court of Appeal the appeal has no foundation in Article 17 of the ECHR. The present case is one of the 'exceptional and extreme cases' referred to above, since it has been established that the accused used the freedom of expression for a purpose that is clearly in violation of the spirit of the ECHR. He, deeply offended in his religious feelings, threatened the victim – a Dutch parliamentarian – with his death and furthermore incited to be a co-perpetrator to, to assist in, or to provide an opportunity, means or information with a view to killing the victim, in which he acted with a terrorist intention. This action can be qualified as being aimed at the destruction of rights and freedoms protected by the ECHR, namely the right to life and the freedom of expression pursuant to Articles 2 and 10 ECHR respectively. Therefore, the protection of Article 10 of the ECHR is already denied to him in advance by virtue of the provisions of Article 17 of the ECHR.4
Article 10 ECHR
The Court of Appeal also considers that a substantive test on the basis of Article 10 of the ECHR would not lead to a different judgment. For the sake of completeness, the Court of Appeal will below reproduce the considerations made in this respect.
The Court of Appeal establishes that the criminal conviction of the accused in respect of the proven charges under 2 and 3 violates his right to freedom of expression as referred to in Article 10, Paragraph 1, of the ECHR.
The Court of Appeal must therefore examine whether the infringement constitutes a restriction on the freedom in question, which is provided for by law, serves a legitimate purpose and is necessary in a democratic society (Article 10, paragraph 2, ECHR).
The penalization of threats with a terrorist intent (Article 285 CC) and incitement to a terrorist offence and (open exhibition for) distribution (Article 131 and 132 CC) are provided for by law and serve a legitimate purpose, namely the prevention of other offences.
Then it must be tested whether in a concrete case this legal restriction of the freedom of expression is necessary in a democratic society.
It must be deduced from the case law of the ECHR that 'necessary' means: a pressing social need, whereby the Member States have a certain freedom in appraising this necessity. In this assessment, both the fundamental interest of the freedom of expression (the individual fundamental right) and the fundamental interest of the protection of the democratic state (based on the rule of law) (the general fundamental social interest) must be considered. An acceptable restriction of this freedom must at any rate meet the requirements of proportionality.
In assessing this necessity to interfere in the freedom of expression, the particular circumstances of the case are important. In this assessment weight may be given to the interaction between the nature of the utterance or information and the possible effect that this utterance or information has, as well as to the context in which such an utterance was made or information was provided (cf. ECHR (Grand Chamber), 15 October 2015, ECLI:CE:ECHR:2015: 1015JUD002751008, Perincek v. Switzerland, para 220).5
The Court of Appeal notes that the accused recorded a video, posted it on his public account on Facebook and in it asked his brothers in the faith to share it.
In his video, the accused says that he has a mission because of the insult to the Prophet Mohammed. He says in the video that the insulter of Mohammed is his only target and that – if Allah wills it – he will reach that person and send him to hell. If Allah wants it, he will succeed and as long as he lives, he will make an effort to achieve this. The accused also indicates that he really needs the help of his brothers in the faith and says that he is looking for someone who could sacrifice everything in the name of the Prophet. The accused knew that he could reach many people with his Facebook account.
By acting in this way, the accused indeed threatened the victim with a terrorist offence and incited others to help him prepare and/or commit a terrorist offence, while exhibiting this inflammatory video for distribution. As considered above, the threat of Count 2 reached Wilders, who brought charges.
With regard to the charges under Count 3, it appears expressly that the video had the desired effect in view of the approving reactions that the accused aroused on Facebook by posting his video. By the actions of the accused, the Dutch democratic constitutional state was in principle endangered.
In weighing the individual right to freedom of expression and the general interest in protecting the democratic rule of law in assessing the necessity for the abovementioned statutory penalization, the right to freedom of expression must give way in the present case. Article 10, Paragraph 2, ECHR offers no protection to an accused who threatens another person with homicide with terrorist intent, nor to an accused who incites a terrorist offence or publicly exhibits images inciting such an offence for distribution. There is a necessity to limit the freedom of expression of the accused. The Netherlands has committed itself at international level to combat terrorism, which belongs to the category of most serious offences, partly in view of the danger of disruption to fundamental political and constitutional structures.
In conclusion, Articles 285, 131 and 132 CC must be regarded as legal restrictions on freedom of expression permitted under the ECHR and necessary in a democratic society.
Based on the above, the Court of Appeal is of the opinion that by declaring the charges under Count 2 and 3 against the accused proven, the infringement on the right of the accused to his freedom of expression is not in violation of the provisions of Article 10 ECHR. Therefore, the Court of Appeal is of the opinion that a conviction for the proven actions is not in violation of the afore-mentioned provision of the Convention.
The Court of Appeal dismisses the appeal.
Therefore, the Court of Appeal considers it legally and convincingly proven that, with his video, the accused is guilty of criminal threatening – in public, orally and by images – and incitement and public exhibition to distribute an inciting video, by posting it on his public account on Facebook and requesting to share it.
Declaration of charges proven
The Court of Appeal considers it legally and convincingly proven that the accused committed the charges under 1, 2 and 3, on the understanding that:
1.
he, in the period from 2
5August 2018 up to and including 28 August 2018, in the Netherlands, with the intention of preparing and/or facilitating the offence to be committed, as described in Article 289a of the Criminal Code, namely:
5August 2018 up to and including 28 August 2018, in the Netherlands, with the intention of preparing and/or facilitating the offence to be committed, as described in Article 289a of the Criminal Code, namely:
murder of G. Wilders (member of the House of Representatives), to be committed with terrorist intent,
- tried to induce another to participate in committing the offence, to assist in this, or to provide opportunity, means or information to that end and
- provided himself with the opportunity, means and information to commit the offence,
after all, he, the accused,
- obtained information about the cartoon competition and the organiser and
-
travelledby bus to Amsterdam and
travelledby bus to Amsterdam and
- stayed in Amsterdam and obtained further information about the exact location of the cartoon competition and
- travelled from Amsterdam to The Hague and
- by posting a video on the Internet, asked for financial help and shelter for his mission in order to ‘send that dog, that uncivilised one, to hell’ and
- acquired items for his mission and
- made inquiries and obtained information about where the cartoon competition was held and how the House of Representatives is organised and who the President of the House of Representatives is and subsequently
- explored the route to and
thesurroundings of the Parliament and took photos of the
Binnenhof;
thesurroundings of the Parliament and took photos of the
Binnenhof;
2.
he, on 27 August 2018, in The Hague, threatened G. Wilders (member of the House of Representatives), with a terrorist offence, after all, the accused intentionally posted a video on Facebook in which he makes an appeal to his Muslim brothers to sacrifice everything in the name of the Prophet and to help him, the accused, and by saying in the video that the insulter of Moham
med is his only target and, with God's will, will reach that person and send him to hell;
med is his only target and, with God's will, will reach that person and send him to hell;
3.
he, on 27 August 2018, in The Hague, publicly incited, orally and by means of image in a video, to any punishable offence, while that which is incited constitutes a terrorist offence, by means of:
making a video on Facebook in which he, the accused, makes an appeal to his Muslim brothers to sacrifice everything in the name of the Prophet and to help him, the accused, and by saying in this video that the insulter of Moham
med is his only target and that, with God's will, he will reach that person and if he will stay alive, he, the accused, will (continue to) reach his goal:
med is his only target and that, with God's will, he will reach that person and if he will stay alive, he, the accused, will (continue to) reach his goal:
and
he, on 27 August 2018, in The Hague, distributed
andpublicly exhibited for distribution, an image, a video inciting to a terrorist offence, while he knew or had serious reason to suspect that
theimage contains such incitement, after all the accused:
andpublicly exhibited for distribution, an image, a video inciting to a terrorist offence, while he knew or had serious reason to suspect that
theimage contains such incitement, after all the accused:
posted a video on Facebook in which he makes an appeal to his Muslim brothers to sacrifice everything in the name of the Prophet and to help him, the accused, and by saying in this video that the insulter of Moham
med is his only target and that, with God's will, he will reach that person and says that if he will stay alive, he, the accused, will (continue to) reach his goal and (thereby) requested to share this video appeal.
med is his only target and that, with God's will, he will reach that person and says that if he will stay alive, he, the accused, will (continue to) reach his goal and (thereby) requested to share this video appeal.
The charges that are additional or different are declared unproven. The accused must be acquitted of those charges.
In so far as the charges contain 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 accused's defence was not harmed as a result.
Argumentation
The Court of Appeal bases its conviction that the accused has committed the proven offence on the facts and circumstances contained in the evidence and the evidentiary consideration, which give reason for the Declaration of charges proven, which evidence is included in the appendix to this judgment.
Penalization of charges proven
The proven charges under 1 constitute:
with the intention to prepare and/or facilitate murder, to be committed with terrorist intent, to try to induce another to commit the offence, to assist in doing so or to provide an opportunity, means or information to that end and to provide oneself with an opportunity, means or information to commit the offence.
The proven charges under 2 constitute:
threatening to commit a terrorist offence.
The proven charges under 3 constitute:
the culpable combination of:
publicly inciting, orally and by means of an image, to commit any punishable offence, while the punishable offence for which the incitement is made is a terrorist offence
and
distributing and publicly exhibiting for distribution an image in which incitement to commit any punishable offence is made, while he knows that the image contains such incitement, while the punishable offence for which the incitement is made is a terrorist offence.
Punishability of the accused
No circumstance has become plausible that excludes the criminal liability of the accused. The accused is therefore liable to punishment.
Grounds for the punishment
The Court of Appeal has determined the punishment to be imposed on the basis of the seriousness of the facts and the circumstances under which these were committed and on the basis of the person and the personal circumstances of the accused as these appeared in the hearing.
In doing so, the Court of Appeal took into account the following in particular.
Seriousness of the offences
The accused is guilty of preparing and facilitating the commission of a terrorist murder attack against member of the House of Representatives and party chairman of the PVV, Wilders. The accused travelled to the Netherlands after having heard that Wilders wanted to organise a cartoon competition with the prophet Mohammed as the subject. The accused then recorded a video of himself and posted it online via his Facebook account. In the video, the accused speaks to his brothers in the faith and asks for help to make his mission succeed.
The insulter of the Prophet, 'that dog, that uncivilised one' had to be sent 'to hell'. In the video, the accused also threatened Wilders with a terrorist offence. Among other things, the accused had already bought equipment for his mission and had staked out the place and the surroundings of the Parliament. The accused wanted to kill Wilders in or near the Parliament Building where the cartoon competition would be held, and in this way stop Wilders and the cartoon competition.
Wilders is a parliamentarian and participates in the social and political debate as a Dutch representative. The organisation of a cartoon competition as mentioned above may and can lead to discussion, debate, protest and demonstration but may never lead to violence. The plan of the accused to kill Wilders for this reason is therefore not only an attack on Wilders as a person, but also an attack on the Dutch rule of law. An attack that the accused intended to commit in or near the Parliament Building: the beating heart of Dutch democracy. It would have caused serious disruption of Dutch society and the political landscape. The Court of Appeal considers this to be an aggravating circumstance.
The above, in combination with the proven threat, must have been very frightening for Wilders and must, moreover, have caused fear and insecurity in society in general.
The accused was also guilty of incitement to a terrorist offence, by calling on brothers in the faith to help him carry out the attack in his video that was publicly posted on Facebook and also calling on them to share this video and thus to spread the incendiary video. The accused knew that he could reach many people on social media. That his request was met is evident from the many reactions the accused received in response to his video. The video has been viewed by 153,000 people, shared by 14,000, commented on 1,100 times and liked 31,000 times. So, the video has had an enormous reach and effect. This underlines the dangerous nature of his actions.
Judicial Documentation
The Court of Appeal has taken into account an excerpt from the Criminal Records Office dated 7 January 2021, which shows that the accused has not been previously convicted in the Netherlands of committing an offence.
Risk of repetition
The Court of Appeal has taken into account the Pro Justitia
triple expert examination, drawn up with regard to the accused on 5 June 2019, which shows among other things the following.
triple expert examination, drawn up with regard to the accused on 5 June 2019, which shows among other things the following.
The experts conclude that the accused has risk factors for violent extremism.
The accused told the psychologist that he had a mission in his life and that he has to stop people like Wilders, people who insult the Prophet. The accused also said that the Koran states that you are not allowed to kill people, but that there are exceptions. The accused explained that in Pakistan people who insult the Prophet get the death penalty from the State. In the Netherlands, the State failed to give Wilders the death penalty, so it is the duty of a Muslim to take action. This could be done with words or with deeds. The accused indicated that if words are useless, you can move on to deeds. When asked by the psychologist how these statements relate to not being allowed to kill, the accused said that he had thought about it very carefully and that he would make many people very happy if he willed Wilders, referring to the political sentiments in Pakistan, his country of origin. The accused also said that it was regarded as a good deed and that he would give his life for it.
Furthermore, in the context of the risk of repetition, the Court of Appeal takes into consideration the wire-tapped telephone conversations the accused had in prison with his mother. These conversations show that the accused was already aware that the cartoon competition was cancelled, but he repeatedly stated that Allah will make him succeed in the aim for which he came here. He also said that he will not come to Pakistan if he has not achieved his goal and that his mission will succeed.
Together with the Court, the Court of Appeal concludes that the accused's mission, to kill the insulter of the Prophet, Wilders, has not (yet) been accomplished.
In view of that which is considered above, the Court of Appeal sees a real danger that the accused will still want to carry out this mission.
Conclusion
The Court of Appeal is of the opinion that a fully unconditional long term prison sentence is an appropriate and necessary reaction. The Court of Appeal has also taken into account a judgment of this Court of Appeal of 15 April 2019 where the Court of Appeal sentenced an accused person to imprisonment for a term of 8 years for, among other things, preparing an attack in the Netherlands.6
In view of all the above and considering everything, the Court of Appeal is of the opinion that – in accordance with the demand of the Advocate General – a prison sentence for the term of 10 years, with credit for the time served in pre-trial detention, is appropriate and necessary.
Seizure
Forfeiture
The seized objects mentioned below, which have not yet been returned, as stated on the seizure list, namely the public transport chip cards and the telephone, are liable to forfeiture, because these objects belong to the accused and because they are objects with the help of which the proven charges under 1 were committed.
Therefore, the Court of Appeal will – in accordance with the demand of the Advocate General – forfeit these objects.
The Court of Appeal has taken into account the accused's financial capacity.
Withdrawal from circulation
The objects seized and not yet returned as mentioned on the seizure list, namely the false identity cards, are liable to withdrawal from circulation because they were found during the investigation into the offence committed by the accused under 1; these objects belong to the accused and they can be used to commit or prepare similar offences, while this is of such nature that their uncontrolled possession is contrary to the law.
The Court of Appeal will therefore – in accordance with the demand of the Advocate General – withdraw these false identity cards from circulation.
For the sake of completeness, the Court of Appeal considers that according to the record of the hearing in the first instance of 29 October 2019 (p. 26), the accused relinquished ownership of the objects of which the Public Prosecutor demands withdrawal from circulation.
Returning objects to the accused
The Court of Appeal will order the return of the other items mentioned on the seizure list that have not yet been returned to the accused, namely a cap, SIM cards, a ticket, receipts, care items, a passport photograph, money and a business card.
Request to lift the pre-trial detention order
At the appeal hearing, the counsel requested that the order for the pre-trial detention of the accused be lifted by the final judgment, primarily in view of the acquittal pleaded and, in the alternative, because, if one or more offences were proven, the sentence to be imposed should not exceed the time that the accused already spent in pre-trial detention.
The Court of Appeal considers and decides as follows.
The Court of Appeal rejects the request to lift the pre-trial detention order regarding the accused, now that, in view of the proven charges, the serious objections are still present, as well as the grounds on which the pre-trial detention order is based, and in view of the duration of the punishment to be imposed, so that a situation as referred to in Article 67a, third Paragraph, of the Code of Criminal Procedure does not arise in this case.
Applicable legal provisions
The Court of Appeal has taken into account Articles 24, 33, 33a, 36b, 36d, 55, 57, 83a, 96, 131, 132, 285, 289 and 289a Criminal Code, as they apply or applied in law.
JUDGMENT
The Court of Appeal:
sets aside the judgment of which appeal and gives judgment again:
Declares as aforesaid proven that the accused has committed the charges under 1, 2 and 3.
Declares that what the accused has been charged with more or otherwise than proven above has not been proven and acquits the accused of that charge.
Declares the proven charges under 1, 2 and 3 punishable, qualifies them as above and declares the accused liable to punishment.
Sentences the accused to a term of imprisonment of 10 (ten) years.
Orders that the time spent by the accused in any form of pre-trial detention, as referred to in Article 27, Paragraph 1 Criminal Code, before the execution of this judgment, shall be deducted when implementing the prison sentence imposed, in so far as that time has not already been deducted from another sentence.
Declares forfeited the seized objects that have not yet been returned, namely:
- public transport chip cards and telephone.
Orders the
withdrawal from circulationof the seized, not yet returned objects, namely:
withdrawal from circulationof the seized, not yet returned objects, namely:
- false identity cards.
Orders the
return to the accusedof the seized objects that have not yet been returned, namely:
return to the accusedof the seized objects that have not yet been returned, namely:
- cap, sim cards, ticket, receipts, care items, passport photo, money and business card.
The Court of Appeal
rejectsthe request to lift the accused's pre-trial detention order.
rejectsthe request to lift the accused's pre-trial detention order.
This judgment has been delivered by M.I. Veldt-Foglia,
Th.W.H.E. Schmitz and L.C. van Walree,
in the presence of L.B. Schut, Court Clerk.
It was pronounced at the public hearing of the Court of Appeal on 19 February 2021.
-----------------------------------
1Folder 1, Official Report Case File [filename], p. 8.
3HR 11 November 2008, NJ 2008/598.
5ECLI:NL:HR:2017:220, legal ground 3.5.