Judgment of the District Court of Rotterdam, three-judge section for criminal proceedings, in the criminal proceedings against:
[accused]
born on [date of hirth] in [place of birth]
entered as a resident in the municipal personal records database at the address: [address], currently remand prisoner in the penitentiary Zuid-West, P.I. 'Dordtse Poorten" in Dordrecht. This judgment was delivered further to the hearings of 17 April 2003 and 12 up to and including 22 May 2003.
Charge
The accused has been charged with the offence(s) laid down in the originating summons under Public Prosecutors office no. 10/000063-02, as this was amended at the hearing of 12 up to and including 22 May 2003 in accordance with the action of the Public Prosecutor. Copies of this originating summons and action have been attached to this judgment .

The Public Prosecutors demand
The Public Prosecutor Valente has demanded stated succinctly the acquittal of the charges under 2 principal and secondary, 3 principal and secondary, 4 principal and secondary, 5, 6, 7 and 8 principal and the judicial finding of fact of the charges under 1 and 8 secondary and the sentence of the accused to three years imprisonment less the period spent in pre-trial detention.

The admissibility of the Public Prosecutor in the prosecution/exclusion of evidence

1.Right to a fair trial

1.1 The defence counsel has set up the defence on behalf of the accused that the Public Prosecution must be declared non-admissible in the prosecution on the basis that the right of the accused to a fair trial has been violated intentionally or with serious neglect and that therefore the provisions laid down in article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: ECHR) have been breached.
The defence counsel has stated the following by way of explanation.
1.1.1. Selection of the material seized.
The selection of the books, documents, visual and sound material seized in connection with the two ongoing enquiries was carried out negligently, as a result of which the interests of the defence have been harmed. For, as has been declared by the team leaders of the inquiry and the drafters of the summary official report the official messages of the National Security Service (hereinafter: BVD)/General Intelligence and Security Service (hereinafter: AIVD), were the starting point of the investigation and these were to be substantiated in more detail. The investigating team acquired knowledge of any terrorist groups from the media and a number of books on Al Qaeda. Subsequently, a qroup of interpreters under the supervision of a co-ordinating interpreter selected the seized material on the basis of headwords such as “jihad”, "terror", "salafism" and such. According te the Public Prosecutions Department the remainder of the material is not relevant and therefore only the material selected was translated. Due to this the case has been completely pulled out of joint because the interpretation of the seized material is based on this negligent selection. In turn another selection was made from this selection, which has subsequently been presented te the experts.
1.1.2. Cognisance of the procedural documents.
The large number of documents was submitted by the Public Prosecutions Department to the defence scarcely five weeks before the rneritorious hearing of the case, whereas a large portion of the results of the investigation was known long before. If the file had been made available at an earlier stage, the defence would have been able te convince the court at an earlier stage that there were no serious objections. Also, due to the late provision of documents the hearing of experts late April 2003, could not be properly prepared and the defence did not have at its disposal the same documents as the experts. By acting in this way the Public Prosecutions Department has acted in violation of article 30-34 and article 51 of the Dutch Code of Criminal Procedure (hereinafter: SV)
1.1.3. The way in which the docurnents were presented to the experts.
The accornpanying information that was presented to the experts is an interpretaticn by the National Police Agency. For example, the selection of the seized material was presented to the experts as originating frorn a group of persons that had frequent contact with one another This led the experts to suppose that the material belonged to one and the same terrorist group and that every member of this group had access to the material. The experts were not told where which material was found. This amounts to inadmissible influencing of the evidence.
1.1.4. Reliability of the translations.
Because the defense has not been allowed inspection of the names of the interpreters and translators, their professionalism cannot be checked. The overview provided of the numbers used by the interpreters and translators shows that they are not all sworn translators. Examples have shown that several translations are incorrect on crucial parts.
1.1.5. Summary official report.
On crucial parts the summary official report is so speculative and unfounded that this constitutes a systematic deception of the court. In the summary official report far-reaching conclusions were drawn which are not supported by the underlying documents. Also the reporting officers examined at the hearing, who are responsible for the contents and the composition of the file, were unable to explain or substantiate the conclusions drawn by them.

1.2.The court considers the following in this respect.
1.2.1. These criminal proceedings take as their starting point two investigations, under the numbers 2002.060 and 2002.064. These investigations were started after two official messages from the BVD an its successor, the AIVD, of 22 April 2002 and 27 August 2002 had been submitted to the Public Prosecutions Department via the national public prosecutor for combating terrorism. At a later stage these two investigations were combined. Briefly after the date of the official messages, several suspects were arrested and searches took place in the premises where the suspects lived or stayed. A large amount of books, documents, video and sound tapes were seized. These seized items have been coded. Partly as a result of combining the two investigations, the coding of the location of a seized item may give cause for confusion. It has occurred, for example, that two computer files that were found at different locations, were later combined on one CD-ROM by the police. As the location where these computer files were found, two addresses are stated without any further specification, so that it is difficult to find out where the individual items were found.
Due to the extent of the seized material and the fact that this material is written and spoken in the Arab language, it was inevitable that only part of the material was translated. Perhaps unnecessarily the court states that at the pro-forma hearing of 17 April 2003 it was decided to offer the defence the opportunity examine and listen, in the presence of the interpreter and the client, to all the visual and sound material. Although a selection of material on the basis of headwords and titles can be a useful method, several meanings can be attached to the headwords used in this case, such as "jihad" and "salafism", as has become clear during the investigation. Moreover, the selection made may give rise to the distorted view namely on the context in which the contents of the seized documents must be placed. The court therefore is of the opinion that the method of selection and the location coding can be critisised and that this selection and coding can be deemed negligent.
1.2.2. In preparation of the hearing in chambers regarding the detention in custody and the pro-forma hearings the Public Prosecutions Department has on several occasions handed over documents from the file to the defence and the court. The continuation of the pre-trial detention has been reveiwed by both the district court and the court of appeal in The Hague. The complete case file was provided to the district court and the defence early April 2003. Early May 2003 additional documents were added to the case file. It has not become manifest that the counsel has been unable to sufficiently prepare the examinations of the experts or the defence of their client. Besides, several experts have also been examined at the hearing, in which context the defence was given the opportunity to ask the experts questions. The court is of the opininion that the case file may indeed have been handed over to the defence at a late stage, but that the interests of the defence have not been harmed in such a way that towards the accused the provisions laid down in article 6 ECHR have been breached. This part of the defence is rejected by the court.
1.2.3. The court is of the opinion that the provisions of articles 30-34 and 51 of the Code of Criminal Procedure have not been breached now that it has not become manifest that the Public Prosecutions Department has systematically withheld procedural documents or has not allowed full inspection of the case file: This part of the defence is also rejected.
1.2.4. Documents have been provided to the experts in order for these to be assessed by them. It has not been shown that it was pointed out to the experts which documents had been found together. As a result, one expert has made a connection at least once, which supposedly had not happened had the expert known that the two items had not been found with one and the same person. The court cannot rule out that also in other cases, connections have been made on false qrounds. Moreover, in an accompanying letter to one of the experts the impression is wrongly created that the documents originate from a group of persons that are connected to one another. The method of presentation of the documents to the experts is judqed by the court as negligent.
1.2.5. The fact that the Public Prosecutions Department does not wish to disclose the names of the interpreters and translators has to do with the interpreters and translators feelings of fear. By performing translations activities for the police, some interpreters and translators find themselves in a difficult position within the Muslim community. Via the overview made available, insight is provided into the qualifications of the interpreters and translators. This shows that the swearing in of one of them is pending. Now that it has insufficiently be made plausible that due to the quality of the translations the accuseds interests have been harmed, this part of the defence is rejected by the court.
1.2.6. In the summary official report far-reaching conclusions are drawn about the organisational structure in which the suspects have operated and the role played by each accused in this context. Although the formulation of the summary official report leads one to suspect differently in the margin frequent reference is made to an act by an official or a document from the Appendices File General - the court is of the opinion that these underlying documents do not always justify the conclusions drawn. The team leaders of the investigation examined as witnesses at the hearing and the persons responsible for drawing up the sumrnary officiai report were unable te explain or substantiate the conclusions drawn by them even in broad outline. The way in which the above conclusions were drawn and the way in which the public prosecutor during his closing speech distanced himself from a number of conclusions, is considered by the court not only as negligent, but also as worrisome.
1.2.7. The counsel has pleaded that the way in which the Public Prosecutions Department has acted, should result in the presecution being barred. The court has asked itself the question whether the negligences established by the court, each individually and viewed together and in relation to each other, should lead to the effect pleaded by the counsel. Considering the above facts and circumstances the court has come to the conclusion that this question must be answered in the negative on the ground that these instances of negligence are not of such a nature that it can be said that there was a deliberate intention to withold the accused his right te a fair treatment of his case, or that the gross neglect of the accuseds interest had such a result. Nor does the court see cause for the less severe sanction of exclusion of evidence. However, the court is of the opinion that if the court declares the charges proved and arrives at a sentencing, compensation in the form of a reduced sentence is appropriate

2. Official messages of the National Security Service (BVD)/General Intelligence and Security Service (AIVD).
2.1. The accuseds counsel has also put forward the defence with respect to the official messages withthe accompanying appendices, which have been provided by the BVD and, since the entering into force of the Intelligence and Security Services Act 2002 (WIV 2002), the AIVD to the Public Prosecutions Department about the accused and about the majority of the accuseds co-suspects. In brief, this defence boils down to the following:
- The information collected by the BVD/AIVD has been collected unlawfully; at any rate under the old WIV (WIVold), which had no provisions pertaining to the application of intelligence methods as have apparently or possibly been used by the BVD. On the basis of information in the official message of the BVD of 22 April 2002 the accused was considered and subsequently arrested as a suspect in the meaning of article 27 of the Dutch Code of Criminal Procedure on insufficient grounds; also the searches based on the information contained in the official message, were unlawful.
- The BVD/AIVD does not provide any information on any methods of collecting information used by the BVD/AIVD, nor on the moment on which one or several of these methods have been used, so that, as far as the information is concerned stated in the official message of the AIVD of 27 August 2002, it cannot be established whether the acts in question were carried out under the scope of the WIV before the WIV 2002 became effective1 or in the period since the WIV 2002 became effective.
- The way in which the BVD/AIVD has acted is not subject to any review by a court .
- Althouqh the WIV (both old and new) takes as starting point a strict division of tasks performed by the BVD/AIVD (collecting information for the national security) and by the authorities charged with investigation and prosecution, in the investigation in question the rnutual competences have been used in a way thar was not intended by the legislator.
- The transfert of information by the BVD/AIVD to the Public Prosecutions Department was unlawful.
- By making use of the information of the BVD/AIVD the Public Prosecutions Departrnent has acted·unlawfully.
- Excluded from evidence should also remain the tapped, recorded and translated telephone conversations, which have been provided to the Public Prosecutions Department by the BVD/AIVD, because there were insufficient legal grounds for tapping and recording these conversations and furthermore because it cannot be inferred from the recordings of these conversations whether the tapping was performed under a special order as referred to in article 139c, second paragraph, under 3e (old), of the Dutch Penal Code (Sr).
These infringements established by the defence, which are in breach of the provisions laid down in article 5, or article 6 or 8 ECHR, will, according to the defence, have to result in barring the Public Prosecutor from prosecuting, or at least, in excluding the evidence based on information originating frorn the BVD/AIVD.

2.2. With respect to these defences the court makes the following considerations.
2.2.1. With the exception of provisions found elsewhere, i.e. in the Dutch Penal Code (article 139c-old), with regard to tapping and recording telephone conversations, under the regime of the WIV-old there was no explicit legal basis for the BVD for using methods for the collection of information as those which have afterwards been laid down in the WIV 2002. True, according to the court of appeal in The Hague the right to nevertheless use these methods under the WIV-old, must be deduced from the general set of duties of the SVD (Court of Appeal The Hague, in interlocutory order of 25 April 2003), but in this context the court also takes into account the decision of the Council of State, Administrative Law Division, of 9 June 1994, AS 1995/238. In this decision, the Administrative Law Division considered and decided that it follows from the ECHRs case law relevant to this matter, that article 8, paragraph 2 of the ECHR permits the interference in the private life of a person, provided this interference has been provided for by law (and provided it is necessary in a democratic society). A legal system that permits the secret investigations into persons, must, according to the Administrative Law Division, contain effective guarantees arranged for by law to check the activities performed by the security services that carry out such investigations. The Administrative Law Division establishes that the WIV-old has failed to provide the circumstances under which collecting information on persons may be performed, and the means the BVD may use to this end. Therefore, according to the Administrative Law Division, the requirement laid down in the second paragraph of article 8 ECHR has not been complied with, i.e. interference in the right to the protection of privacy laid down in that article, is only allowed if it has been provided for by law.
2.2.2. In its interlocutory after referred to above of 25 April 2003 the court of appeal in The Hague considers that in principle the judicial authorities may rely on the lawful acquisition of information provided by the BVD/AIVD; only if this concerns information that has been obtained on the basis of a (gross) violation of fundamental rights, the principle of legitimate expectations that is understand to be applicable between the judicial authorities and the BVD/AIVD, with respect to the test for the lawfulness of the collection of informatio by the BVD/AIVD, is to be deviated from. On the basis of the considerations under 2.2.1 the court concludes that, to the extent that in the present case information has been collected with regard to the person of the accused on the basis of WIV-old, this collection of information has taken place by means of methods without there being (with the exception of tapping and recording of telephone conversations, see under 2.2.3) a legal basis for this and that possibly the right to the protection of privacy, laid down in article 8 ECHR, may have been violated.
2.2.3. As far as the tapping of telephone conversations by the BVD is concerned, article 139c, second paragraph under 3e (old) of the Dutch Penal Code, in the form of a ground for exemption from criminal liability, contains/contained a provision that allowed for the tapping and recording of telephone conversations in the interest of the national security. This provision offers/offered, in the opinion of the court, a sufficient legal basis for the method af collecting information, even if an explicit provision in the WIV-old, on the basis of which the requirements of distinguishability and foreseeableness of these methods of collecting information would have been more appropriately and more completely met, would have been preferable. That the ministers of the Interior and Kingdom Relations and Justice in a letter of 9 May 2003 to the public prosecutor, refused to hand over to the court the special order as referred to in article 139c, second paragraph, under 3e (old) of the Dutch Penal Code, does not affect the opinion that the BVD under the WIV-old was in principle entitled to tap telephone conversations.
2.2.4. The WIV, as this reads since 29 May 2002, contains in the articles 18 up to and including 33 provisions pertaining to the special competences which the AIVD has in the performance of its tasks in connection with the national security. This way this act in principle can stand the test of article 8, second paragraph, ECHR.
2.2.5. Now that it has been established that the official report of the BVD of 22 April 2002, which has resulted in the use of criminal coercive measures, has been drawn up under the operation of the WIV-old, it must also be established that it cannot be ruled out that the collecting of information that has been included in the official message, has taken place without there being a legal basis for it. Nevertheless, facts and circumstances can be derived from the information provided to the Public Prosecutions Department by the BVD from which arises a reasonable suspicion of guilt in the sense of article 27 of the Dutch Code of Criminal Procedure, or a reasonable suspicion that organised criminal offences are planned or committed as referred to in article 132a of the Dutch Code of Crimina Procedure. That the lawfulness of the acquisition of this information by the BVD cannot be tested does not affect the foregoing.
2.2.6. Whether the information provided by the BVD/AIVD in an official message must be tested for the legitimate acquisition thereof, in particular within the context of a hearing of the criminal proceedings is a question that the court leaves unanswered for the moment. The court considers in this context that, as can be concluded from the text of the respective Acts themselves and the legal history of both the WIV-old and the WIV 2002, the legislator in each case intended to make a distinction between the activities of the BVD/AIVD on behalf of the national security and the activities of the police and Public Prosecutions Department in the detection and prosecution of criminal offences. To this the court attaches the conclusion that the legitimacy of the acts of the BVD/AIVD is not automatically to be submitted to the (criminal) court. The court is of the opinion that the legitimacy of the acts performed by the BVD/AIVD should in principle be tested within the own legal framework called into being far this very service. Even if there was an assessment of the legitimacy of the acquisition of information by the BVD/AIVD by the court, this can only take place if information was obtained with (gross) violation of fundamental rights. In this respect the court concurs with the consideration stated by the Court of Appeal The Hague in its interlocutory order of 25 April 2003 referred to above. No such gross violation has as yet become rnanifest to the court. Even if it could be established that the acts of the BVD have resulted in a violation of the accuseds right to respect of his private life as guaranteed in article 8 ECHR, this violation does not automatically imply a breach of article 6 ECHR; therefore there is no ground for a bar to the prosecution in so far as it concerns the legitimacy of the collecting of information by the BVD/AIVD. Below the court will return to the question as te the meaning of the information provided by the BVD/AIVD in crirninal proceedings, otherwise than relevant to establishing a suspicion of guilt as referred to in the articles 27 and 132a of the Dutch Code of Criminal Procedure.
2.2.7. The court agrees with the defence that the information provided by the AIVD and of which it can be established that it has been collected under the scope of the WIV 2002, has been legitimately submitted to the Public Prosecutions Department. The court will not discuss the provision of this information. However, the defence has put forward the defence that, in so far as information from the BVD is concerned collected under the scope of the WIV-old, this information has been unlawfully provided. The unlawful nature of the information transfer, according to the defence, lies in the circumstance that there is no authorisation as referred to in article 12 WIV-old. In the letter of 9 May 2003 referred to above, the miinisters of the Interior and Kingdom Relations and Justice informed the public prosecutor that their position that providing the order as referred to in article 139c, second paragraph, under 3e, Dutch Penal Code, could harm the national security, also refers to the authorisation referred to pursuant to article 12 WIV-old. The court fails to see, now that as evidenced by the explanatory rnemorandum to the WIV-old it is possible to grant the head of the BVD a permnanent authorisation, that failing to submit this (permanent) authorisation to the court, should have to lead to the conclusion that the provision of information by the BVD/AIVD to the Public Prosecutions Departrnent via official rnessages in this criminal case, which has been provided far in both the end and the new Act, 15 unlawful. Neither does the circumstance that in these criminal proceedings the ministers have alse refused to submit the '”special order", as referred to in article 139c, second paragraph, under 3e of the Dutch Penal Code, in the opinion of the court amount to sufficient grounds to consider the information as laid down in the official messages referred to above, including the accompanying appendices containing recordings of tapped and recorded telephone conversations, as unlawfully provided to the Public Prosecutions Department. Following from the above, the court also does not consider the provision of information through the official messages referred to above by the BVD/AIVD to the Public Prosecutions Department as a violation of the articles 6 and 8 ECHR.
2.2.8. Neither has the Public Prosecutions Department acted unlawfully by using the information contained in the official messages of the BVD/AIVD, by determining on the basis of this information that regarding the persons referred to in the official messages there is a reasonable suspicion of guilt in the sense of article 27 of the Dutch Code of Criminal procedure, or a reasonable suspicion that organised criminal offences are planned or committed as referred to in article 132a of the Dutch Code of Criminal procedure. In this sense there is therefore no violation of the provisions laid down in article 5, first paragraph, ECHR.
2.2.9. Finally the court gets around to the question whether the official message drawn up by the BVD/AIVD can be used as evidence that the accused has committed one or more of the offences he has been charged with. According to the defence this is a violation of article 6 ECHR, because it was not possible for the defence to assess the material presented by the BVD/AIVD on its origin and accuracy. In his closing speech the public prosecutor took the position that the official messages as documents, based on the provisions laid down in article 344 of the Dutch Code of Criminal procedure, can contribute to the evidence, provided these are sufficiently supported by other admissible - evidence. As considered earlier, the court leaves the question whether the BVD/AIVD has obtained the information contained in the official messages in a legitimate way unanswered. However, if there is to be an adequate defence as referred te in article 6 ECHR, it will have to be possible for the defence to test this material as to its origin and factual accuracy and the court, in order to use the material for the evidence, will also have to be able to determine the origin and facual accuracy of the information provided.
No that the head and the deputy head of the AIVD during their examination by the examining magistrate and at the hearing, while invoking their obligation to observe secrecy based on the articles 85 and 86 WIV 2002 and the national public prosecutor for combating terrorism also invoking the same obligation to observe secrecy, have refused to give a statement on the erigin of the information contained in the official messages referred to several times above and, moreover, the ministers of the Interior and Kingdom Relations and Justice as evidenced by their decision of 2 May 2003 have not released the head and deputy head of the AIVD from their obligation to observe secrecy when being heard as witnesses in these criminal proceedings, the court is of the opinion that it has not been possible for the defence, despite its efforts to this end, to effectively assess the information contained in the official messages on its origin and factual accuracy. As to the nature of the offences with which the accused is charged, in particular the suspicion that he had participated in an organisation the actions of which are focused on in brief rendering assistance to the enemy in time of war or armed conflict, on that basic offence itself falling under the serious offences against the security of the state the court sees no cause regarding the requirements posed by article 344 Dutch Code of Criminal Procedure and article 6 ECHR regarding the assessment and the use of evidence in criminal proceedings, to arrive at a different appraisal in assessing information frorn the BVD/AIVD, than information from some other non-police, or non-judicial source.
The court finds no support in Dutch law for a different appraisal, which would amount to a situation whereby the more serious the offence with which the accused is charged, the fewer requirements that need to be set regarding the evidence to be collected for the offence in question.
2.2.10. The impossibility to assess the information from the BVD/AIVD on its origin and factual accuracy, which impossibility is the result of the position regarding the obligation to observe secrecy relating to BVD/AIVD information, taken by the ministers in question, by the leadership of the AIVD and by the national public prosecutor for combating terrorism (an obligation to observe secrecy that from a point of view of national security is entirely justifiable), should, however, have consequences for the assessment of the evidence collected in the criminal proceedings against the accused. The court sees no grounds for barring the public prosecutor from prosecuting; as considered earlier, the public prosecutor has not made unlawful use of the material provided to him by the BVD/AIVD in assessing the question whether there is a serious presumption of suspicion of an offence and the subsequent decision to arrest the accused. The court, however, is of the opinion that the contents of the official messages drawn up by the BVD/AIVD which have been included in the file, may not contribute to the evidence of any offence with which the accused is charged.
2.2.11. With respect to the reports of the tapping by BVD/AIVD submitted to the Public Prosecutions Department, the court considers as follows. In the letter of 9 May 2003 referred to above, the ministers of the Interior and Kingdom Relations and Justice, as considered earlier, refused to submit to the court the special order as referred to in article 139c, second paragraph, under 3e (old) of the Dutch Penal Code, but did indicate that over certain periods with respect to three telephone numbers stated in the letter, a special order had been given. The reperts of the tapping were initially submitted to the Public Prosecutions Department as appendix to the official message of 22 April 2002 and later as evidenced by the file a second time on a CD ROM on 3 July 2002. The court considers it plausible that the telephone taps submitted to the Public Prosecutions Department by the BVD/AIVD were tapped and recorded in accordance with the provisions of article 139c, second paragraph, under 3e, (old) of the Dutch Penal Code and that in each case a special order had heen given for these taps. The court arrives at this opinion on the basis of the periods for which a special order was given each time, mentioned in the letter of 9 May 2003 of the ministers in question, on the basis of the dates on which the telephone conversations took place, on the basis of the circumstance that an outgoing or incoming call was involved and on the basis of the circumstance that each time one of the suspects, whose telephpne number was being tapped, participated in the telephone conversation. Moreover, it has not become manifest that there were telephone conversations among the taps that were conducted with the use of other telephone numbers than those stated in the letter of 9 May 2003, or conducted outside of the periods stated in the above letter. As the accused, in so far as charged at the hearings of the court of 17 April 2003 and of 12 up to and including 22 May 2003 and in so far as participant to one or more of the conversations recorded in the reports of the tapping, have been confronted with these conversations and have been given the opportunity to listen to the conversations together with their lawyer, the court sees no cause for excluding the telephone taps, submitted to the Public Prosecutions Department by the BVD/AIVD, from the evidence. As for the rest no facts or circumstances have become manifest that should result in barring the public prosecutor from prosecuting, the public prosecutor is allowed to prosecute.

NOT PROVED

With the public prosecutor the court is of the opinion that the charges under 2 principal and secondary, 3 principal and secondary, 4 principal and secondary, 5,6 and 7 have not heen proved legally and convincingly, so that the accused must be acquitted of these charges.
With respect to charge 1, suspicion of participation in a criminal organisation, the court considers the following.
The accused has heen charged with participating during a longer period in an organisation that had the objective to commit criminal offences, as penalised in article 140 of the Dutch Penal Code. Based on previous judgments there must be a structural and lasting collaborative arrangement between two or more persons and a certain degree of organisation. A collaborative arrangement can be identified as such if within the arrangement common rules and a common objective exist. The court is of the opinion that although it can be established that some of the accused had contact with one another, it cannot be concluded from the accuseds statements, nor from the telephone communications discovered, or from the material found during the search of premises, that the accused has participated in a collaborative arrangement. Neither does the file provide an adequate basis for being able to speak of an organisation in which the accused have participated in a lasting mutual collaboration. The court has not found any support in the file to conclude that there existed a network organisation within which the accused performed their activities relatively independently both individually and as a group and within which these activities were coordinated through group leaders in a hierarchical structure with clear leadership roles, which were believed to be fulfilled by five of the accused, as represented in the summary official report. In addition, the court wishes to point out that the public prosecutor during his closing speech considered the leadership roles of the five accused not present, or in any case substantially toned down such a role. As the accused has not participated in a structural collaborative arrangement as referred to above, he must also be acquitted of the charges under 1 regarding the participation in a criminal organisation. With respect to charge 8, suspicion of rendering assistance to the enemy in a time of war or armed conflict, the court considers the following. Accuseds defence counsel has pleaded that insofar it can be assumed that the Netherlands became involved in an armed conflict on 10 December 2001 the court has no jurisdiction as the acts imputed to the accused exclusively took place in Iran. The court is therefore not competent to take note of this charge (the court considers this a plea to bar the public prosecutor from prosecution, according to counsel). In order to judge this plea it must first be established whether and if so, from which date the Netherlands have become involved in a war an armed conflict which is an evidentiary question the court will have to answer this question first. The accused has been charged with in brief rendering assistance tc the enemy in a time ef war or common war, at any rate in a time of armed conflict that cannot be considered a war and in which the Netherlands are involved, either for the purpose of individual or collective self-defence, or for the purpose of restoring international peace and security. Therefore, the first question is whether the Netherlands were at war with Afghanistan and/or the Taliban and their allies Al Qaeda and/or other pro-Taliban fighters during the period referred to in the charge. The court answers this question negatively as under the provisions of article 96 of the Constitution prior permission of the States General is prescribed by law and such permission has net been granted in this particular case. The next question is whether there was an armed conflict in which the Netherlands were involved during the period referred to in the charge. In this respect two operations can be distinguished in Afghanistan, namely Operation Enduring Freedem and the ISAF operation for the purpose of guarding peace and safety in and around the city of Kabul. In the opinion of the court the ISAF operation cannot be considered an armed conflict as referred to in article 107a of the Dutch Penal Code, as it concerns a United Nations peacekeeping operation in which the Netherlands do not act as a military party and there is no enemy either. With respect to Operation Enduring Freedom the court shares the opinion of the expert witnesses R. de Lange en T.D. Gili, both examined by the examining magistrate, that this operation undoubtely concerns an armed conflict for the purpose of indivudual and collective self-defence between an international coalition of countries (including the United States, the United Kingdom and from a certain moment the Netherlands on the one hand and Afghanistan or the Taliban government on the other hand). For the involvement of the Netherlands in the sense of article 107a of the Dutch Penal Code actual military involvement by the Netherlands in this conflict is required. It is unclear when the Netherlands actually became involved in Operation Enduring Freedom as a military party. In establishing that moment it is not so much relevant in the opinion of the court how members of the Dutch goverment described certain contributions of the Netherlands to Operation Enduring Freedom, but it is the actual actions (hostilities) of the Dutch armed forces that should be judged also taking into account the nature and the scale of these actions and their objective. In this context, the court also refers to the points of view taken in the specialist literature (NLR, supplement 104, note 4 to article 107a; Coolen, DD 1996, p. 51-52). After a detailed analysis of the Dutch contributions to operation Enduring Freedom, expert witness Gill has come to the conclusion that the deployment of a C52 , 13O transpert aircraft at the beginning of April 2002 might be considered the start of the military involvement of the Netherlands in the armed conflict, but that in any case the operational deployment of F-16 aircraft on 1 October 2002 rnust count as such involvement. The court agrees with this conclusion and is of the opinion, as is the expert, that the involvement of the Netherlands as referred to in articie 107a of the Dutch Penal Code started at the beginning of April 2002 at the earliest. In view of the above there was no war or armed conflict in the period from 1 january 2001 up to and including 1 january 2002 referred to in the charge, that can be considered a war and in which the Netherlands were involved, so that the accused irrespective of the farewell ietter attributed to him and his journey to Teheran must be acquitted of this charge.

JUDGMENT
The court:

- declares the prosecutor allowed to prosecute;

- declares not proved that the accused_has committed the charges under 1 and 2 principal and secondary, 3 principal and secondary, 4 principal and secondary, 5, 6, 7 e 8 principal and secondary and acquits the accused of these charges;

- terminates the pre-trial_detention of the accused as from today and orders the-·immediate~release of the accused.
This judgment was passed by:
Van Klaveren, President, Van Essen and Verbeek, judges, in the presence of Benaissa and Van Eekeien, clerks of the court, and was pronounced in open court of this court on 5 june 2003.