Hof Den Haag, 12-05-2023, nr. 2200157921.eng

Documentgegevens:

ECLI:NL:GHDHA:2023:2370

Instantie

Hof Den Haag

Datum

12-05-2023

Zaaknummer

2200157921.eng

Vakgebied(en)

Strafrecht algemeen (V)

Materieel strafrecht (V)

Brondocumenten en formele relaties

ECLI:NL:GHDHA:2023:2370, Uitspraak, Hof Den Haag, 12‑05‑2023; (Hoger beroep)

Cassatie: ECLI:NL:HR:2025:103

Uitspraak 12‑05‑2023

Inhoudsindicatie

Considerations on the terrorist intent of the Ansar al-Sharia organisation in Libya and the accused's acts of participation in Libya and from the Netherlands. Conviction for participating in an organisation with terrorist intent. Article 140a Criminal Code. Messages posted in closed Telegram groups were not posted in public, acquittal for sedition (primary). Conviction for distributing material inciting to terrorist offences (in the alternative). Article 132 Criminal Code.

Cause list number: 22-001579-21

Public Prosecutor’s Office numbers: 10-810484-18 and 10-812058-20

Date of judgment: 12 May 2023

JUDGMENT AFTER TRIAL

The Hague Court of Appeal

joint bench for criminal proceedings

Judgment

rendered on appeal against the decision of the District Court of Rotterdam of 20 May 2021 in the criminal case against the accused:

[accused],

born in [place of birth] on [day of birth] 1969,

currently detained at the Rotterdam prison facility, location De Schie.

Examination of the case

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.

Procedure

In the first instance, the accused was acquitted of the primary charge under Public Prosecutor’s Office number 10-812058-20, and in respect of the charges under Public Prosecutor’s Office number 10-810484-18 and the alternative charge under Public Prosecutor’s Office number 10-812058-20 the accused was sentenced to a term of imprisonment of four years, with credit for the time spent in pre-trial detention.

An appeal was lodged against the decision on behalf of the accused and by the Public Prosecutor.

Indictment

At the hearing at first instance, the cases were joined under Public Prosecutor’s Office numbers 10-810484-18 and 10-812058-20. The Court of Appeal will - for the sake of readability of the judgment - use the consecutive numbering of the joined cases, which the District Court also used.

The accused has been charged with the following:

Case with Public Prosecutor’s Office number 10-810484-18:

1.in or around 1 January 2011 up to and including 20 August 2018 in Vlaardingen, or at least in the Netherlands and/or Libya, either alone or jointly and in conjunction with (an)other person(s),

he participated in an organisation, namely Islamic State (IS), or else Al Quaeda, Ansar al-Sharia, or an organisation associated with IS/ISIS/ISIL, or at least (an) organisation advocating the armed Jihad struggle, whose intent it was to commit terrorist offences, namely

A. arson and/or causing an explosion, this constituting a general danger to property and/or danger of grievous bodily harm and/or danger to the life of another person, and/or this act resulting in someone's death (within the meaning of Article 157 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) 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).

Case bearing Public Prosecutor’s Office number 10-812058-20 (joined):

2. Primary offence charge

at one (or more) point(s) in time in or around the period from 31 March 2016 up to and including 8 August 2018, in Vlaardingen, or at least in the Netherlands, either alone or jointly and in conjunction with (an)other person(s), several times or at least once,

he publicly incited, by means of images, to any criminal offence, while that which is being incited constitutes a terrorist offence, or an offence in preparation or facilitation of a terrorist offence, by operating a channel on social media (Telegram) under the name ‘Shura Council of Benghazi Revolutionaries’ under the username ‘[username]’ and/or posting and sharing on this channel messages and images and film recordings (chat 90) of

- a photograph of [person 1], bearing the text 'Wanted in order to be killed unless he repents' (forwarded on 9 April 2016) (p. 2761)

- a photograph of [person 2], under which the text 'God willing, you will be crushed very soon. Look forward to the lions being there, waiting for you, renegade' is displayed. An icon of a bomb is also displayed. (forwarded on 3 May 2016) (p. 2784)

- three lists comprising the names and addresses of 82 persons to be liquidated. The lists contain 45, 21 and 16 names respectively. Behind each name is an address in Benghazi. The lists state 'God willing, you will be targeted with bullets, with your cars burned and your possessions destroyed. You started the war, so you will suffer the consequences' (forwarded 8 May 2016)

- a photograph of [person 3], bearing the text: 'Wanted in order to be killed' and depicting a series of knives on it (forwarded on 10 April 2016) (p. 2765)

- a photograph of [person 4], bearing the text: 'Rejoice, enemy of God, as you will be crushed and sent to hell' (forwarded on 5 May 2016) (p. 2789)

- a photograph of [person 5], with the following caption: ‘Wanted so as to be punished under Islamic law’ (forwarded on 19 February 2018) (p. 2831);

2. In the alternative, insofar as the foregoing did not or could not lead to a conviction:

he disseminated and/or stocked for dissemination purposes, while knowing or having serious grounds to suspect that the text and/or the picture contained such sedition,

( a) (digital/digital) text(s) and/or (digital/digital) image(s) inciting to a terrorist offence or an offence to prepare or facilitate a terrorist offence and/or any criminal offence and/or violent action against public authority,

the accused and/or his co-perpetrator(s) having managed and/or followed and/or visited one or more Telegram channel(s), namely ‘Shura Council of Benghazi Revolutionaries’ (chat 90), under the username ‘[username]’ and/or group(s) and (subsequently) posted and/or shared texts and/or images on this/these channel(s) and/or group(s), or at least stocked these texts and/or images:

- a photograph of [person 1], bearing the text 'Wanted in order to be killed unless he repents' (forwarded on 9 April 2016) (p. 2761)

- three lists comprising the names and addresses of 82 persons to be liquidated. The lists contain 45, 21 and 16 names respectively. Next to each name is an address in Benghazi. The lists state 'God willing, you will be targeted with bullets, with your cars burned and your possessions destroyed. You started the war, so you will suffer the consequences' (forwarded on 8 May 2016)

- a photograph of [person 3], bearing the text: 'Wanted in order to be killed' and depicting a series of knives (forwarded on 10 April 2016) (p. 2765)

- a photograph of [person 4], bearing the text: 'Rejoice, enemy of God, as you will be crushed and sent to hell' (forwarded on 5 May 2016) (p. 2789)

- a photograph of [person 5], with the following caption: ‘Wanted so as to be punished under Islamic law’ (forwarded on 19 February 2018) (p. 2831);

or at least (each time) expressions of a similar nature and/or purport, which, whether or not in combination, are of a seditious nature.

Request by the Advocate General

The Advocate General has requested that the decision appealed against be set aside and that the accused be acquitted in respect of the primary charge under Count 2, and that he be sentenced to a term of imprisonment of seven years, with credit for the time spent in pre-trial detention, with regard to Counts 1 and 2, as an alternative charge, of the indictment.

The decision appealed against

The decision appealed against cannot be upheld, because the Court of Appeal has arrived at a different declaration of charges proven.

Evidentiary considerations

1. Evidentiary considerations with regard to Count 1 of the indictment

Under Count 1, the accused is charged with - in brief - participation in a terrorist organisation, with the investigation focusing on the Ansar al-Sharia organisation in Libya (hereinafter also referred to as: AaS).

At the appeal hearing, counsel argued, in a brief and objective manner, that the evidence does not prove that AaS was a terrorist organisation. Counsel further argued that if the Court of Appeal finds that AaS does qualify as a terrorist organisation, evidence that the accused had knowledge of AaS's terrorist intent is lacking. Counsel also argued that the accused's role was too remote from the realisation of the organisation's alleged terrorist intent to constitute participation.

The Court of Appeal will first discuss the intent of AaS, addressing the legal framework, the origins of and developments within AaS and the developments in Libya. The Court of Appeal will then discuss the role of the accused.

1.1.

The intent of AaS

1.1.1.

Legal framework for terrorist intent

In Article 83a CC, terrorist intent is defined as the intent to instil serious fear in a country’s population or a specific group thereof, or to unlawfully force a government or international organisation to do, not do or to tolerate something, or to seriously disrupt or destroy the fundamental political, constitutional, economic, or social structures of a country or an international organisation.

The offence under Article 140a CC is not about the actual commission of terrorist offences but about the 'intent' to commit those offences. For that intent, the organisation's prime short-term objective may also suffice. It is not necessary for the commission of terrorist offences to be the organisation's main raison d'être.

For intent to be proven, inter alia significance can be given to offences that have already been committed within the framework of the organisation, to the more sustained or structured nature of the cooperation - as may be evidenced by the mutual division of work or the mutual coordination of activities among participants within the organisation with a view to achieving the organisation's common purpose - and, more generally, to the planned or systematic nature of the activities of participants carried out for this purpose within the organisation.

1.1.2.

Relevant developments in Libya up to and including June 2012

The Court of Appeal has established the following facts from the hearing and the file. When place names are mentioned below, these are - unless otherwise indicated - place names in Libya.

The Libyan Islamic Fighting Group (hereinafter: LIFG) was formed in 1995. The group's aim was to bring about a power shift in Libya. The incumbent regime led by Gaddafi retaliated fiercely. He deployed his security forces, and many people were arrested, killed, or detained. Gaddafi remained in power until the Arab Spring and revolution broke out in Libya on 17 February 2011. As the LIFG had already been disbanded in 2010, other militias were formed, all with the aim of toppling Gaddafi's regime. In August 2011, the capital Tripoli fell into the hands of the militias. The militias were (and remained) mainly active in eastern Libya in the cities of Benghazi and Derna.

In September 2011, the United Nations recognised a temporary transitional government, which included several militia leaders whose tasks involved organising free elections in Libya. These took place in July 2012. Turnout was high at 60%. A new parliament was elected: the General National Congress (GNC). The parliament's tasks included establishing a new government and appointing a committee to write Libya's new constitution. That constitution was to be put to the Libyan people in a referendum. The parliament that was elected was multi-party and had a moderate Islamist tone.

1.1.3.

AaS June 2012 - May 2014: establishment and objective

In June 2012, Ansar al-Sharia was formed in Benghazi. The group also had a branch in Derna. Its main founder and leader was Mohammad al-Zahawi. After his death in January 2015, Al-Zahawi was succeeded by Abu Khaled al-Madani.

Ansar al-Sharia literally means 'partisans of the sharia'. The group set up checkpoints and quickly made it clear that they wanted to introduce Islamic law throughout Libya, starting with Benghazi.

AaS upheld a Salafist-jihadist ideology. Central to AaS's ideology was the concept of Tawheed: the uniqueness of Allah. AaS used Tawheed to distinguish between Muslims who adhered to the right teachings and those who adhered to the wrong ones. Muslims who adhered to forms of Islam other than the doctrine of AaS were frowned upon. Examples of Muslims who adhere to the wrong doctrine in the eyes of AaS are Muslims who stand for democratic elections or Muslims who adhere to Sufism.

Democracy, where laws are made and passed by people, was, according to AaS, a blasphemous form of statecraft. AaS therefore opposed democratic elections in Libya, arguing that only Islamic law given by Allah should apply. A Muslim who stood for election was therefore blasphemous and a bad Muslim, according to AaS.

Sufism is a traditional and ancient form of Islamic religious expression in Libya. Through song and dance, followers of Sufism come closer to God. That method was frowned upon by AaS. Sufism followers also worship the dead and erect altars to them, which was forbidden according to AaS doctrine.

Adhering to a doctrine that, in the eyes of AaS, was wrong resulted in being seen as an apostate. Applying the Takfir to apostates (declaring someone an infidel) was allowed. Calls to liquidate apostates were posted on social media, often followed by liquidation. According to the doctrine of AaS, apostasy was seen as legitimisation to kill that person.

The ideology of AaS was propagated inter alia through so-called da'wa activities, which can be described as preaching the divine message.

An interview with AaS leader Mohammad al-Zahawi was published on 18 September 2012, in which Al-Zahawi discussed the aims and means of AaS. He said that AaS was at odds with 'the liberals, the secularists and the remnants of Gaddafi'. He also said: 'Our brave youths will continue their struggle until they impose sharia'.

The interview clearly shows that AaS was not non-violent in its struggle with (among others) the secularists. For instance, Al-Zahawi said: 'it is not the right time to give up our arms'. Al-Zahawi also confirmed in the interview that AaS was responsible for the destruction of the shrines of followers of the aforementioned Sufi branch of Islam in the summer of 2012: 'It is a religious duty to remove these shrines because people worship the deceased and this is prohibited.'

From the above, the Court of Appeal deduces that from its founding date, AaS's main objective was to establish its Salafist-jihadist ideology in Libya and assert Islamic law, the sharia, and that from its inception, AaS considered the use of violence as a legitimate means.

1.1.4.

AaS May 2014 - May 2017: 'Operation Dignity' and the SCBR

In May 2014, Libyan National Army general Khalia Haftar (hereinafter: Haftar) launched ‘Operation Dignity’, targeting Islamist groups with Salafist-jihadist ideology. He fought against several militias in Benghazi, including AaS, with the aim of taking the city. However, this was not easy to achieve; AaS still ruled over Benghazi. In response to Haftar's violence, several militias joined forces in a coalition: the Shura Council of Benghazi Revolutionaries (hereinafter: SCBR). Mohammed al-Zahawi, leader of AaS, was the leader of the coalition. AaS was the largest militia within the SCBR, and the SCBR's ideology showed great similarities to that of AaS.

On 19 November 2014, AaS was added to the United Nations (hereinafter UN) sanctions list. According to the UN, AaS had links with Al-Qaeda, Ansar al-Sharia in Tunisia and Al-Qaeda in the Islamic Maghreb, organisations that were also on the sanctions list. The ties between AaS and Al-Qaeda are also apparent in film footage taken by the accused in Libya, which shows a long convoy of pick-ups bearing AaS and Al-Qaeda flags and military artillery. The accused also filmed AaS checkpoints in Benghazi, where the Al-Qaeda flag can be seen.

A second reason for the UN to add AaS to the sanctions list could be found in the AaS camps where fighters were trained and dispatched to Syria, Iraq, and Mali. On 7 December 2016, the accused posted a message on his Facebook saying: 'Coming soon: a new batch will be delivered by training centre ‘Martyr [person 6]’'. Ansar al-Sharia in Derna was mentioned in that post. [Person 6] was a fighter from AaS. The accompanying photograph shows a fighter with a weapon resembling an RPG-launcher.

In late 2014, the leader of AaS and SCBR Mohammad al-Zahawi was killed. Many AaS fighters then defected to Islamic State (hereinafter: IS). In 2015, AaS fought not only against Haftar, but also against IS. In February 2016, Haftar managed to drive AaS out of more and more neighbourhoods in Benghazi. In 2017, the entire city was taken by Haftar's forces. Following this defeat, AaS was disbanded on 27 May 2017.

1.1.5.

The activities of AaS

As discussed above, AaS was not just an organisation with a particular objective - to establish Salafist-jihadist ideology and introduce sharia law, but it also undertook activities to achieve that objective.

Destroying Sufi shrines, training fighters and setting up checkpoints has already been discussed above.

Investigations also revealed that AaS carried out many attacks in the period from September 2012 to July 2016 - partly under the umbrella of SCBR - mainly aimed at military targets, but also at civilians. These involved many hundreds of (recorded) fatalities. The attacks allegedly involved the use of handguns supported by sniper rifles and rocket launchers and, as of 2016, also landmines and roadside bombs.

In this period, ten suicide attacks were additionally attributed to AaS, aimed at military targets, some of which also killed bystanders. The attacks were carried out by bomb vehicles travelling at high speed against military bases or checkpoints. Other (reported) civilian casualties came from rocket attacks on pro-Haftar neighbourhoods in Benghazi, particularly when AaS was under pressure from Haftar forces.

In Benghazi, sharia law was introduced and enforced from late 2014 by sharia courts and religious police who controlled dress codes and alcohol consumption, and who acted as morality police.

Also, as discussed above, lists were forwarded with calls to kill, as they say, apostates and supporters of Haftar. This will be considered further by the Court of Appeal when discussing the charge under Count 2.

1.1.6.

The terrorist intent of AaS from June 2012 - May 2017

As discussed above, AaS's ideology leaves no room for democracy, only sharia law. It was clear from the interview with AaS leader Mohammad al-Zahawi that AaS used violence against liberals and secularists. AaS did not shun the use of violence in seeking to introduce their ideology and sharia law. This is evident from the acts of violence mentioned above, under 1.1.5.

The Court of Appeal finds that from its establishment, AaS's objective was seriously disrupting and/or destroying Libya's fundamental political, constitutional, and social structure.

The aim of AaS to establish a form of state based on sharia law is diametrically opposed to the democratic form of state that served as the basis for the United Nations-recognised government of Libya at the time of AaS's establishment and which was implemented through the July 2012 elections.

In addition, from the acts of violence committed, mentioned above under 1.1.5, the intent to instil fear in (part of) the population can be inferred. Finally, the links with Al-Qaeda, with which AaS also publicised itself, are illustrative of this aspect of terrorist intent.

The Court of Appeal concludes that AaS was a terrorist organisation during the period from its establishment in June 2012 until its dissolution on 27 May 2017.

1.2.

Participation and knowledge regarding terrorist intent

1.2.1.

Legal framework governing participation

Participation in a criminal organisation whose aim it is to commit terrorist offences within the meaning of Article 140a CC can only exist if the person concerned belongs to the alliance and participates in actions, or supports actions aimed at or directly related to achieving the aim referred to in that article.

A participatory action may consist of the (co-)perpetration of any offence, but also of aiding and abetting and (thus) the performance of acts that are not punishable in themselves, as long as the aforementioned participation or support can be said to exist.

There is no requirement for the person concerned to be found to have cooperated with or to be familiar with all other persons who are part of the organisation or that the composition of the alliance is always the same. Participation must be assessed in isolation for the person concerned. It is therefore irrelevant, for example, whether other persons did more or played a more important role than the person concerned.

Finally, for participation, it is sufficient that the person concerned be generally aware (in the sense of unconditional intent) that the organisation’s objective was to commit terrorist offences. The person concerned does not need to have knowledge of one or more concrete offences envisaged by the organisation.

The Court of Appeal comes to the following findings based on the file and the proceedings at the hearing.

1.2.2.

The accused's visits to Libya, 2011 up to and including 2013

The accused travelled to Libya at least three times in the period from 2011 up to and including 2013 and stayed there for several months each time.

During his stays, the accused filmed at checkpoints and travelled with an AaS convoy. The footage taken by the accused of this includes a checkpoint with a patrol car stickered with the text 'Patrols Ansar al-Sharia'. Furthermore, the footage shows several pick-up trucks with AaS and Al-Qaeda flags and military artillery, driving together in one convoy. At a checkpoint the accused is greeted by members of AaS with the form of address 'sheikh'.

The accused was in close contact with Mohammad al-Zahawi, the founder and leader of AaS, during his stays in Libya. According to the accused, Al-Zahawi told him, ‘[accused], do what you think is right’. Al-Zahawi also allowed the accused to take people to task if they did not comply with sharia law. The accused advised Al-Zahawi on how addicts should be treated at AaS clinics. The accused also gave Al-Zahawi advice on reducing internal divisions within AaS and appointing an official spokesperson.

On several occasions in 2012 and 2013, the accused visited an AaS-run prison/clinic where drug addicts were detained and treated. He carried out da'wa activities there: he gave lessons in Islamic doctrine with a specific Salafist-jihadist character. The lessons also had a recruitment element. Film footage by the accused shows that in the room where the da'wa lessons were given, an AaS flag was hanging with the Islamic creed on it. Other film footage, also taken by the accused, shows men in the clinic shouting several things at the accused: 'takbir'(inciting him to shout Allahu Akbar); 'Ansar al-Sharia'; 'Paradise, paradise, the reward awaits'; 'By God, we are going to Syria' (to which the accused said 'yes, yes'). A well-known Al-Qaeda song is also sung: 'O Muslim, the nation cries'.

In a Telegram chat, referred to in the file as chat 84, the accused sent the following message that - given its content - is about his activities in the summer of 2012:

'I went to visit some battalions of lads I knew from before I joined Ansar (al-Sharia). I found no battalion that was as sincere in worshipping God as Ansar (a-Sharia). When I first joined Ansar (al-Sharia), I went to the square to observe them there. How do these people do it? How do they behave? Praise God, I saw things that I liked. That's why I joined them. God bless them. They opened the doors of da'wa (preaching) to me, you know? I was allowed to do everything. I stood guard with them. There were not enough men there. If necessary, I brought lads to the clinic. I also did da'wa (preaching). I even got a salary. Everything was arranged. It was a great experience'

The Court of Appeal concludes as follows on the period from June 2012 to the end of 2013. The accused had joined AaS already in its early stages. He had knowledge of the ideology of AaS, which ideology he not only shared but also taught. The footage makes it clear that the da'wa activities had a specifically Salafist-jihadist character and in addition contributed to recruiting members for AaS.

Moreover, the accused engaged in resolving internal conflicts and strengthening AaS's external image in the media. In this, he had an advisory role towards the leader of the organisation, who in turn gave him approval for his activities. The fact that he was addressed as 'sheikh' further underlines the authoritative position that the accused held.

1.2.3.

The role of the accused from 2014

After his last trip to Libya in 2013, the accused returned to the Netherlands. Through Telegram, the accused continued to maintain contact with AaS affiliates and was involved in AaS’s endeavours.

Examination of Telegram chat 168 shows that between 22 March 2015 and 3 February 2017, the accused was in contact with [person 7], a Libyan war veteran and founder and leader of the Abu Salim Martyrs Brigade. The accused spoke to [person 7] about the death of [person 8], the supreme commander of the Abu Salim Martyrs Brigade in Derna. In the chat, the accused voiced his concerns about the confusion prevailing at the time about the circumstances surrounding [person 8]'s death and that some people do not believe that [person 8] was killed by a rebounding bullet from one of his own men. The accused asked [person 7] to give a statement about the cause of [person 8]'s death to defuse tensions between IS and AaS, with which request [person 7] complied.

The background to chat 168 was that - as mentioned above - AaS's position in Benghazi was under threat from IS from some point onwards, and more and more fighters from AaS had been defecting to IS from late 2014.

The investigation into Telegram chat 155 shows that on 7 October 2015, the accused was contacted by one '[person 9]', a fighter affiliated with AaS who was in Benghazi. The accused voiced his concerns: 'I am afraid this division will start to reach Benghazi and the lads will start fighting each other and slaughtering each other instead of Haftar and the crusaders'. [Person 9] asked the accused to record a message, advice to the fighters from Benghazi. The accused fulfilled this request. In those messages, the accused said, inter alia: 'It is really not done to declare the fighters of Ansar (al-Sharia) as infidels. They are good brothers to us. They have fought.'; 'I have advice for the brothers at the front and elsewhere. Anyone who stands at the checkpoints and deals with (civilians) must be a real Libyan. (...) God bless the (foreign) fighters who came to support the Libyan revolutionaries.' [Person 9] requested the accused to provide the lads with advice in their own chat rooms as well. The accused responded: 'Don't you have a specific page for Ansar (al-Sharia) where lads I know can be found? If there is such a page, please add me, just for a chat.'

The investigation into Telegram-chat 84 shows that the accused spoke to [Person 10], who was involved in the establishment of AaS in 2012 and was the main military commander within the organisation after Al-Zahawi. [Person 10] defected to IS during 2014. The accused spoke to him about the divisions that had taken hold of the jihadists in Benghazi and told [Person 10] about how he had become involved with AaS. He expressed his pain over the fact that people from AaS had defected to IS and that the lads from AaS were declared infidels. The accused said he had been approached by brothers from Libya asking him to coordinate between the groups but was advised against travelling to Libya. The accused said he had made two mediation attempts in the past to patch up rifts within AaS. The accused also said that he had met Mahmoud al-Barassi, the leader of IS in Benghazi. Finally, in this chat, the accused mentioned a number of brothers with whom he had worked within AaS.

Based on the above, the Court of Appeal is of the opinion that the accused was affiliated to AaS even after his return to the Netherlands. The Telegram chats show that he was actively involved in AaS from a distance, trying to influence AaS's activities in various ways, even on a strategic level. The message mentioned under 1.1.4 about AaS's training camps that the accused posted on Facebook on 7 December 2016 also indicates, according to the Court of Appeal, a far-reaching form of involvement in and knowledge on the part of the accused of AaS's endeavours. Finally, the Court of Appeal considers the liquidation calls forwarded by the accused in Telegram chat 90 relevant. The Court of Appeal will go into this in more detail when discussing the charge under Count 2, but also considers the evidence relevant to Count 1.

1.2.4

Knowledge regarding terrorist intent

At the appeal hearing, the accused stated that he always closely followed the news about events in Libya during the charged period. The accused's conduct described in the paragraphs above does show that the accused was always well informed about the situation in Libya in general, but also about the activities of AaS in particular. Also in view of the nature of his involvement as described above - teaching, recruiting, advising at the highest level and influencing the strategy to be pursued, it is inconceivable that the accused did not know - at least - in general terms that AaS aimed to commit the terrorist crimes described above.

The conclusion reached is therefore that the accused had knowledge of the terrorist intent of AaS from the establishment of the organisation until its dissolution, and that the accused's conduct directly supported AaS in the pursuit of its goals.

1.3.

Conclusion

In view of the above, the Court of Appeal is of the opinion that it can be legally and convincingly proven that the accused committed the charges under Count 1 as declared proven.

The charges under Count 2

The accused was charged under Count 2 - in brief - with being guilty of (primarily) incitement to terrorist offences or (in the alternative) distribution of texts or images inciting to terrorist offences.

Primary

With the Advocate-General and counsel, the Court of Appeal is of the opinion that the primary offence charged under Count 2 cannot be proven, as the charged messages and/or images were shared in closed Telegram groups, hence lacking evidence that the charged messages and/or images were posted in public.

The Court of Appeal will therefore acquit the accused of the primary charge under Count 2.

In the alternative

The investigation into Telegram chat 90 has revealed that the accused forwarded messages calling for the liquidation of certain individuals. Chat 90 is named 'Shura Council of Benghazi Revolutionaries (SCRB), which name corresponds to the coalition of militias formed in response to Haftar violence during 'Operation Dignity'. The coalition was dominated by AaS. Most of the members of the chat group sympathised with the SCBR and IS ideology. Discussions were held in the chat group about jihad, the practice of takfir and IS's caliphate. Other messages were also sent: eulogies of martyrs, jihadist propaganda and gloating about the terrorist attacks in Europe that took place in the summer of 2016 and were claimed by IS.

The accused joined the chat group on 31 March 2016. In the chat, the accused forwarded many hundreds of messages. Conversations were also held by other members of the chat group, particularly about the relationship between AaS and IS. Many of the other members of the chat group were in Libya.

The accused forwarded a total of 52 chat messages calling for the liquidation of 140 opponents of the SCBR. The liquidation calls often included a photograph of the person, the home and/or work address of the threatened person and an accusation. The individuals were often accused of adhering to Haftar, but other ‘accusations’ also occurred, such as breaking Islamic law or being an adulterer, hash dealer, alcoholic, or homosexual. The targets of liquidation were called ‘apostates’: a serious charge for which the death penalty was deemed justified.

In the chat group, the accused also forwarded a total of 132 messages saying that opponents had actually been liquidated. These messages too were accompanied by a picture of the person killed, his name and the reason for liquidation.

The Court of Appeal is of the opinion that the liquidation calls forwarded by the accused - namely incitement to murder - were seditious in character and can be classified as a terrorist offence. The name of the Telegram channel - as explained above - is that of an alliance of Salafist-jihadist militias in Benghazi, within which AaS was the largest, and whose ideology was very similar to that of AaS. Furthermore, the calls were unmistakably directed against opponents of AaS (and SCBR). The content of other messages in this chat group, as reproduced above, unequivocally point to jihadist sympathies, including ones towards another terrorist organisation such as IS. Viewed in this context and connection, the material incited to commit murder with terrorist intent.

Declaration of charges proven

The Court of Appeal deems it lawfully and convincingly proven that the accused committed the alternative charges under Counts 1 and 2, on the understanding that:

1. in or around the period from 1 January 2011 1 June 2012 up to and including 20 August 2018 25 June 2017 in Vlaardingen, or at least in the Netherlands and/or Libya, either alone or jointly and in conjunction with (an)other person(s),

he participated in an organisation, namely Islamic State (IS), or else Al Quaeda, Ansar al-Sharia, or an organisation associated with IS/ISIS/ISIL, or at least (an) organisation advocating the armed Jihad struggle, whose intent it was to commit terrorist offences, namely

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) and/or

2.In the alternative:

at a one (or more) point(s) in time in or around the period from 31 March 2016 up to and including 8 August 2018, in Vlaardingen, or at least in the Netherlands, either alone or jointly and in conjunction with (an)other person(s), several times or at least once,

he disseminated and/or stocked for dissemination purposes, while knowing or having serious grounds to suspect that the text and/or the picture contained such sedition,

(a) (digital/digital) text(s) and/or a (digital/digital) image(s) inciting to a terrorist offence or an offence to prepare or facilitate a terrorist offence and/or any criminal offence and/or violent action against public authority,

the accused and/or his co-perpetrator(s) having managed and/or followed and/or visited a one or more Telegram channel(s), namely ‘Shura Council of Benghazi Revolutionaries’ (chat 90), under the username ‘[username]’ and/or group(s) and (subsequently) posted and/or shared texts and/or images on this/these channel(s) and/or group(s), or at least stocked these texts and/or images namely:

- a photograph of [person 1], bearing the text 'Wanted in order to be killed unless he repents' (forwarded on 9 April 2016) (p. 2761)

- a photograph of [person 3], bearing the text: 'Wanted in order to be killed' and depicting a series of knives (forwarded on 10 April 2016) (p. 2765)

- a photograph of [person 4], bearing the text: 'Rejoice, enemy of God, as you will be crushed and sent to hell' (forwarded on 5 May 2016) (p. 2789)

- a photograph of [person 5], with the following caption: ‘Wanted so as to be punished under Islamic law’ (forwarded on 19 February 2018) (p. 2831).

or at least (each time) expressions of a similar nature and/or purport, which, whether or not in combination, are of a seditious nature.

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.

Evidence-based argumentation

The Court of Appeal bases its conviction that the accused has committed the offences declared proven 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, paragraph 3, second sentence, of the Code of Criminal Procedure is applied, with a statement thereof, this will be done in a supplement that will be annexed to this judgment.

Criminal nature of the proven facts

The charges proven under Count 1 constitute:

participation in an organisation whose aim it is to commit terrorist offences.

The charges proven in the alternative under Count 2 constitute:

distribution of a text or image inciting to any criminal offence, knowing, or having serious reason to suspect that the document or image contains such incitement, while the criminal offence incited involves a terrorist offence, committed several times.

Criminal liability of the accused

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

Grounds for the sentence

The Court of Appeal has determined the punishment 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 personality and the personal circumstances of the accused, as these have appeared from the Court of Appeal hearing.

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

Seriousness of the offences

During the proven period, the accused was guilty of participating in terrorist organisation Ansar al-Sharia. Based on Salafist-jihadist ideology, AaS aimed to destroy the then recently installed democratic form of state in Libya, establish an Islamic state and bring the country under a strict form of sharia law. AaS used violence to achieve its goals, one of which it was to instil fear in (part of) the population. Libya, at the time of the official establishment of AaS, and after the fall of the Gaddafi regime, had elected a democratic parliament and was in the process of drafting a constitution that was also to be democratically adopted. From its inception, AaS opposed that democratic process and occupied Benghazi. By force, AaS tried to impose an extremist ideology on the population and later introduced sharia law.

AaS also destroyed religious shrines of Sufism, an ancient and traditional form of Islam in Libya.

The accused propagated and taught the ideology of AaS. He had a role within the organisation and was in close contact with its leader. He recruited new members by speaking to young men in AaS prisons or clinics and teaching them AaS's Salafist-jihadist ideology. He gave advice on AaS's external communications and made efforts to mediate between AaS and militias with a different ideology when conflicts loomed.

Furthermore, the accused was guilty of distributing seditious material, which material incited to commit murder with terrorist intent. The accused forwarded messages via a Telegram chat which displayed persons by name, photograph, and address. Members of the chat were urged to kill those persons. The persons were ‘accused’ of being Haftar supporters, apostates, sharia violators, alcoholics, and homosexuals. By his actions, the accused extended the reach of the calls to kill those persons.

Personal circumstances

The Court of Appeal has taken note of an extract pertaining to the accused from the Judicial Records dated 14 March 2023.

The probation service wrote a report on the accused on 2 April 2021. The accused has shown limited cooperation with the probation service. The probation service writes that the accused is strongly focused on his own cultural background, religious values and the beliefs derived from them. The probation service considers the risk of recidivism and extremist violence to be high and sees no possibility to reduce that risk.

Conclusion

The Court of Appeal considers that the accused is guilty of very serious criminal offences. Through his actions, he made an important contribution to AaS's efforts to destroy the newly established democracy in Libya. The Court of Appeal also condemns the accused of forwarding calls to kill opponents of AaS.

The Court of Appeal has taken account of the fact that the accused was involved in the organisation at a high level.

For participation in a terrorist organisation, as a rule, the Court of Appeal takes a term of imprisonment of six years as the starting point. In view of the accused's position in the organisation and the seriousness of the offence proven under Count 2, the Court of Appeal is of the opinion that in the present case, in principle, the only possible response is the imposition of an unconditional prison sentence of a considerable duration, i.e. seven years.

The Court of Appeal should consider the fact that in the present case, the reasonable time limit for trial of criminal cases as referred to in Article 6 of the European Convention on Human Rights and Fundamental Freedoms has been exceeded. An appeal was filed on 3 June 2021 on behalf of the accused and by the Public Prosecution Service, whereas the file was received by the Court of Appeal on 31 March 2022 and the Court of Appeal did not rule until 12 May 2023. The submission deadline was therefore exceeded by almost four months. The deadline for the trial of the case on appeal has been exceeded by more than seven months.

The Court of Appeal will take into account the fact that the reasonable time limit was exceeded in terms of punitive moderation.

The Court of Appeal is - all things considered – of the opinion that a wholly unconditional prison sentence of six years and six months constitutes an appropriate and required response.

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, as referred to in Article 4 Penitentiary Principles Act, or the arrangement of conditional release, as referred to in Article 6:2:10 Code of Criminal Procedure, comes into play.

Applicable legal provisions

The Court considered Articles 57, 132 and 140a of the Criminal Code, as they apply or applied by law.

JUDGMENT

The Court of Appeal:

Sets aside the decision appealed against and pronounces judgment anew:

Declares not proven that the accused committed the primary charge under Count 1 and acquits the accused thereof.

Declares it, as considered above, proven that the accused has committed the charges in the alternative under Counts 1 and 2.

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

Declares the offences in the alternative charged and proven under Counts 1 and 2 punishable, qualifies them as stated above and declares the accused criminally liable.

Sentences the accused to a term of imprisonment of 6 (six) years and 6 (six) 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.

This judgment was delivered by M.A.J. van de Kar LLM, L.C. van Walree LLM and M. Koole LLM, in the presence of P.M. Smit LLM, Court Clerk.

It was pronounced at the public hearing of the Court of Appeal on 12 May 2023.