Lawyer participation in a terrorist organization

Participation in a terrorist organization is punishable under Article 140a paragraph 1 of the Dutch Penal Code (DPC). This article reads as follows:

"Participation in an organization aimed at committing terrorist crimes shall be punishable by imprisonment for a term not exceeding 15 years or a fine of the fifth category."

Participation in a terrorist organization is punishable by a maximum prison term of 15 years or a fifth category fine.

The founders, leaders or directors of a terrorist organization are subject to an increased penalty maximum. They risk life imprisonment or temporary imprisonment not exceeding 30 years or a fifth-category fine.

The definition of a terrorist organization is similar to that of a criminal organization. An organization within the meaning of article 140a of the Dutch Penal Code exists if there is an alliance with a certain degree of structure and permanence between the accused and at least one other person. Thus, an organization need not be large. Two persons are enough. For structure, hierarchy is not a requirement. The difference between a criminal organization and a terrorist organization is in the purpose of the organization.

A conviction for participation in a terrorist organization requires that the organization has the intent to commit terrorist crimes. This intent is explained in Article 83a of the Dutch Penal Code (DPC):

 "Terrorist intent" means the intent to

(1) inflict serious fear on the population or part of the population of a country; or

(2) Unlawfully compel a government or international organization to do, not do, or tolerate anything, or

(3) seriously disrupt or destroy the fundamental political, constitutional, economic or social structures of a country or an international organization."

Qualification as a terrorist crime requires that one of the three purposes mentioned above can be proven.

According to the Supreme Court, there is participation in a terrorist organization if the accused belongs to the collaboration and if the accused has a share in, or supports, conduct that is aimed at or directly related to the realization of the (terrorist) aim of the organization

Any contribution to a terrorist organization may be punishable. Such a contribution may consist of the (co-)commission of crimes, as well as the provision of services that are not in themselves punishable, as long as one can speak of support or share.

For participation, it is sufficient that the suspect knows that the purpose of the organization is to commit (terrorist) crimes. In addition, the defendant's intent must be aimed at participating in the organization.

It is not always clear whether conduct qualifies as participation in a criminal organization. This is regularly discussed in case law. The judge tests the circumstances of the case.

Under circumstances, the following acts may qualify as participation:

• owning a radical extremist ideology with a terrorist intent (RB Rotterdam 1 June 2022 ECLI:NL:RBROT:2022:4257);

• attending with some regularity meetings at which violent propagation of (for example) Islam is propagated and at which visual material ven beheading is shown (HR 3 July 2012, ECLI:NL:HR:2012:BW5178);

• recruiting new members by speaking to young men in prisons/clinics and teaching them extremist ideology (The Hague Court of Appeal May 12, 2023, ECLI:NL:GHDHA:2023:1054);

• going to a combat zone and joining a combatant belonging to a terrorist organization and maintaining a joint household with a combatant belonging to a terrorist organization (RB Rotterdam Sept. 26, 2023 ECLI:NL:RBROT:2023:9570).