The Dutch Hofstad Group: A Terrorist Organisation after All?

After intense litigation, the Appeals Court of Amsterdam ruled on 17 December 2010 that the Hofstad group is a terrorist organisation after all. This followed a judgement of the Dutch Supreme Court, which had instructed a partial retrial because the Appeals Court in the Hague had used a too strict definition of what constitutes a terrorist organisation.

Initially, in March 2006 the District Court of Rotterdam had convicted the defendants, who were all connected to Mohammed B., the murderer of journalist and filmmaker Theo van Gogh. Before the murder on 2 November 2004, the Dutch Intelligence and Security Agency (AIVD), had already put surveillance on the so-called living room meetings in Mohammed B’s apartment, coding the subjects of this investigation the "Hofstad group". On appeal in January 2008, they had been cleared of being a member of a criminal and terrorist organisation. On retrial, seven defendants were again convicted for this particular charge: five received a 15-month prison sentence, whereas two, who had possessed hand grenades, one which had been used against a special police unit, were punished more severely: respectively 38-month and 13-year prison sentences.

In comparison to the earlier trials, there was far less interest this time: only a few journalists and a handful of observers attended the judgement. Of the defendants only Jason W., who had already been convicted to a 15-year prison sentence by the Appeals Court in the Hague for attempted murder(s) but without terrorist aim, was present. Due to his young age, at the time he was 19 years old, he received a lesser sentence than what the public prosecutor had called for. Neither the renunciation of his radical ideology in Dutch Newspaper the Volkskrant, nor his apologies during the trial was taken into account. As the other defendants have already served their time in pre-trial detention, Jason W. is the only one who will return to prison.

According to the Appeals Court judgement, the "Hofstad Group" is a terrorist and criminal organisation with the intent of committing criminal offences including incitement to hatred and violence, spreading inflammatory writing or images, and threatening with a – terrorist – crime. Essentially, the organisation had as its purpose the commission of crimes of expression. Even though the Appeals Court stressed that ‘thoughts are not on trial’, it is debatable whether the membership of a terrorist organisation should be based on these types of crimes. At stake is the freedom of religion, association and expression. It also appears to be a rather narrow basis to reconstruct membership of a terrorist organisation. Especially for the five defendants who were only convicted for membership; they had not actually resorted to violent crimes, but had merely visited the living room meetings on a regular basis. According to the judgement, however, they had participated not only in religious discussions but also received instruction to participate in Jihad and took part in structured activities (necessary to prove a defendant’s participation in a criminal- or terrorist organisation).

Part of the evidence consisted of documents and public letters written by Mohammed B. which were found on computers, USB sticks and personal files of the defendants. In one of them – entitled "To Catch a Wolf", which was written in March 2004 and published on the internet– he addresses Dutch Muslim youth directly, inciting them to join the violent Jihad against the democratic order in the Netherlands. This document was qualified as evidence of incitement to commit a violent act against public order and the entire Dutch society. In the judgement, it became clear that crimes such as hate speech can infringe not only on the rights of minority groups, but also of majority groups such as for example all "non-believers". After the judgement, one of the attorneys stated that in the Netherlands "one is now guilty by association", suggesting that some defendants had been convicted primarily for the reason they had attended the living room meetings. They are considering to appeal – again – in cassation to the Supreme Court.

In conclusion, can we argue that thoughts or the freedom of expression have now been tried in the case of the Hofstad group? On the one hand, article 140 and 140a of the Dutch Criminal Code penalises participation in an organisation, which intent it is to commission – terrorist – crimes. It does not distinguish between violent acts, writing or speech. On the other hand, this part of the Criminal Code is partly based on rather broad terrorist legislation that was implemented by the 2004 Crimes of Terrorism Act. From a counter-terrorism perspective, the criminal offences that the Hofstad group intended to commit are not really the type of – terrorist – crimes that should be prioritised. In terms of preventing radicalisation and terrorism, it might even be counter-productive. An overly broad prosecution strategy could potentially be perceived as too repressive, risking alienation of minority communities and delegitimising support for the rule of law and counter-terrorism efforts more generally.