Rechtbank Den Haag, 10-12-2015, ECLI:NL:RBDHA:2015:16102, (09/842489-14), (09/767038-14 en 09/767313-14), (09/767174-13 en 09/765004-15), (09/767146-14), (09/767256-14), (09767238-14 en 09/827053-15), (09/767237-14), (09/765002-15), (09/767077-14) (english)

All the accused are charged with having participated in a (terrorist) criminal organization. All indictments specify “The Hague and/or elsewhere in the Netherlands and/or in Iraq and/or in Syria” as places where the offences were committed.

Counsels for the defence of Imane B., Oussama C. and Moussa L. argued that it has not been established for a fact that the crimes to be committed abroad which this organization has as its object are also punishable in Iraq and Syria. Therefore, the requirement of double criminality for the Dutch court to have jurisdiction, in this case under Article 5(1)(2) (old) (Dutch) Criminal Code, has not been met. According to the defence, the prosecution of ‘crimes committed abroad’ is consequently inadmissible.

The accused Hicham el O., Hatim R. and Anis Z. are charged with, inter alia, conspiracy to murder and causing explosions, both with terrorist intent. According to the summons Hicham el O. committed these offences “in The Hague and/or elsewhere in the Netherlands and/or in Syria and/or in Yemen and/or in Iraq; Hatim R. “in the Netherlands and/or in Syria and/or in Iraq” and Aniz Z. “in the Netherlands and/or in Belgium and/or in Turkey and/or in Syria and/or in Iraq”. In answer to questions put to it by the court (immediately after the defence counsels’ speeches) the prosecution said in its reply¹that it considered conspiracy proved for each of the accused only in as far as they were in Syria in July 2013. The court then pointed out to both prosecution and defence the revised regulation concerning the applicability of Dutch criminal law, which entered into force on 1 July 2014, particularly the new article 6 DCC and article 4(2) of the International Obligations with regard to Extraterritorial Criminal Jurisdiction Decree (Bulletin of Acts and Decrees 2014, 47) (hereinafter: the Decree). The prosecution responded with a memorandum arguing that the Dutch court has jurisdiction over the crimes referred to here because (i) article 4(2) of the Decree has retroactive effect and (ii) there is double criminality because it emerged from the texts of relevant articles of the law which have been submitted that conspiracy to commit terrorist crimes is also punishable in Syria. Subsequently, the defence counsels for Imane B., Oussama C., Moussa L. and Hicham el O. expressed an opinion on the subject of jurisdiction in their rejoinder.

The court finds as follows.

Whether the court has jurisdiction should first and foremost be assessed on the basis of the charges, without consideration to whether the charges can be proven. If after answering the evidentiary question it turns out that there is no basis for jurisdiction of the Dutch courts, prosecution must be barred after all.²

Article 2 of the Dutch Criminal Code [hereinafter: DCC] provides that Dutch criminal law is applicable to anyone committing an offence within the Netherlands. If an offence is committed both inside and outside the Netherlands, prosecution of “the acts forming part of the offence that took place outside the Netherlands” is also possible pursuant to legal precedent.³ For this reason the defence as described in 3.2 fails.

Pursuant to art. 6 DCC in conjunction with art. 4(2) of the Decree Dutch criminal law is also applicable to Dutch nationals or aliens having permanent residence in the Netherlands committing a terrorist crime outside the Netherlands. The definition of a terrorist crime is given in art. 83 DCC. Conspiracy to murder with terrorist intent and conspiracy to cause an explosion with terrorist intent qualify, inter alia, as such terrorist offences.⁴

These provisions have entered into force on 1 July 2014. The question to consider, therefore, is if they also apply if the charges were committed abroad before that date. The answer to this question is of particular interest in the cases against Hicham el O., Hatim R. and Anis Z., because if the answer is negative the court will have to bar the prosecution with regard to conspiracy to murder with terrorist intent and conspiracy to cause an explosion with terrorist intent if it agrees with the prosecution that there is no evidence that these offences were also committed inside the Netherlands..

The possibility of assigning retroactive effect to criminal provisions is limited by the principle of legality.⁵ It entails that no retroactive effect can be vested in provisions penalizing an action or an omission. The prohibition on retroactive force to the detriment of an accused person also applies to provisions concerning the gravity and type of punishments to be imposed. This prohibition on retroactive force does not apply to provisions under which the Netherlands expands its jurisdiction, however. The Supreme Court, for instance, in its judgment of 21 October 2008 (NJ 2009, 108), found explicitly that there was no provision opposing the assigning of retroactive force to a jurisdiction provision regarding the prosecution of genocide in the International Crimes Act. Subsequently, the legislator, with retroactive force, expanded the jurisdiction in this Act for the prosecution of genocide.⁶ In the explanatory memorandum to the bill that led to this amendment of the International Crimes Act the Minister of Justice did emphasize that, generally, restraint should be exercised in assigning retroactive force to a regulation changing the jurisdiction rules⁷, and in answer to a parliamentary question if this is desirable only in very exceptional circumstances⁸he said that whether there are exceptional circumstances justifying the conferral of jurisdiction with retroactive effect should be looked at on a case-by-case basis.

When revising the rules regarding extraterritorial jurisdiction in criminal cases the legislator explicitly chose not to limit its exercise to offences committed after the entry into force of the new provision.⁹After a comment on this in the advice of the Council of State, the retroactive effect of articles 5, 7(3) and 8(c) Dutch Criminal Code has been limited in article IV of the Bill.¹⁰ From this it may be inferred, as the prosecution has, that the new article 6 DCC and article 4(2) of the Decree which is based on it, have unlimited retroactive effect.

This conclusion, which is in itself correct, is hardly compatible with the remark in the Explanatory Memorandum to the Bill, that the proposed new article 6(1) DCC does not mean to change the scope of the existing jurisdiction rules, however.¹¹The Explanatory Memorandum to the Decree also says that the possibilities to exercise jurisdiction under article 6 DCC in conjunction with the provisions in the Decree have remained unaltered in a substantive sense compared to the possibilities under to the old provisions in the Dutch Criminal Code.

This caused the court to investigate what extraterritorial jurisdiction options existed with regard to terrorist crimes under the old regime. According to the Explanatory Memorandum to the Decree, what is provided for in article 4(2) of the Decree corresponds with part of the (former) article 5(a)(1) DCC. The court believes that this is based on a misunderstanding. The said (former) article 5(a)(1) DCC declared Dutch criminal law applicable to aliens who have domicile or residence in the Netherlands and who commit a number of crimes abroad specified later on in this article, which include terrorist crimes. Strangely however, there was no such provision for people possessing Dutch nationality. The jurisdiction with regard to crimes committed abroad by Dutch nationals was provided for in (the former) article 5 DCC. It provided that Dutch criminal law was only applicable if the offence that is considered punishable pursuant to Dutch criminal law was also punishable in the country in which it was committed, with the exception of the crimes listed in the article to which the requirement of double criminality did not apply. These did not include terrorist crimes. Important in this connection is also (the former) article 4 DCC, which declared Dutch criminal law applicable to anyone who committed, inter alia, certain terrorist crimes abroad, but only if ‘either the offence is committed against a Dutch national, or the suspect is in the Netherlands’¹²or in the case of terrorist crimes which were aimed, summarily put, at the Netherlands.¹³Therefore, the court concludes that under the old rules Dutch criminal law was applicable to aliens residing in the Netherlands who committed a terrorist crime abroad that is not directly aimed against the Netherlands, but was not applicable to Dutch nationals who committed such a crime abroad, except, of course, it was demonstrated that the crime is also punishable in the country where it was committed (which will usually be the case).

Article 9(1)(c) of the Framework Decision of the Council of the European Union on Combating Terrorism of 13 June 2002 (PbEU [Official Journal of the European Union ] L164) obliges member states to create jurisdiction with regard to its own citizens or residents who commit the crimes referred to in the Framework Decision. As is evident from the parliamentary history to the bill that led to the Act on Terrorist Crimes¹⁴the legislator for the implementation of this obligation did not consider it necessary to amend the law as far as nationals were concerned, because the existing article 5 DCC provided for them, but it did for residents, and as a result amended article 5(a) DCC¹⁵. As the court explained above, this led to the creation of a broader extraterritorial jurisdiction over terrorist crimes in respect of aliens residing in the Netherlands than in respect of Dutch nationals. The parliamentary history offers no basis to assume that the legislator wished to make this distinction intentionally.

Article 4(2) of the Decree has put an end to this unintended and unjustifiable distinction. Dutch criminal law does not distinguish between Dutch citizens and foreign residents of the Netherlands who commit a terrorist offence abroad any longer, irrespective of whether the offence is punishable in the country in question. The court considers it justifiable to attach retroactive effect to this provision because (i) this concerns the implementation of an obligation under a Framework Decision of the European Union that has existed since 2002, (ii) this provision repairs a flaw in the implementation of this Framework Decision and (iii) the legislator explicitly intended to assign retroactive force to this decision.

The conclusion must be, therefore, that the Dutch courts have jurisdiction over a) offences that have been committed in the Netherlands or partly in the Netherlands and partly abroad and b) terrorist offences including conspiracy to murder with terrorist intent and conspiracy to causing an explosion with terrorist intent that have been committed abroad by Dutch citizens and aliens residing in the Netherlands.¹⁶