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LJN: AZ9365, Gerechtshof 'S-Gravenhage , 09-751004-04 En 09-750006-05

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LJN: AZ9365, Gerechtshof 'S-Gravenhage , 09-751004-04 En 09-750006-05 LJN: AZ9365, Gerechtshof 's-Gravenhage , 09-751004-04 en 09-750006-05 Datum uitspraak: 29-01-2007 Datum publicatie: 27-02-2007 Rechtsgebied: Straf Soort procedure: Hoger beroep Inhoudsindicatie: Vertaling in de Engelse taal van de Afghaanse zaak, nr. AZ7143. In the period of the end of 1983 to the end of 1990 the accused was in Kabul, in Afghanistan, at the time of the communist regime supported by the Soviets, head of the military intelligence service, the KhAD-e- Nezami, and deputy minister of the Ministry of State Security (WAD). In performing these duty/duties the accused, as can be proven, has in respect of three victims been guilty of very grave offences: being a co-perpetrator to torture and the breach of the laws and practices of war. Article 1 (old) of the “Uitvoeringswet folteringverdrag” UWF [Convention on Torture Implementation Act] and the Articles 8 (old) and 9 (old) of the “Wet oorlogsmisdrijven” [War Crimes Act]. Uitspraak Page 1 of 17 LJN: AZ7143, The Hague Court of Appeal, 2200613105 Date of judgment : 29-01-2007 Date of publication : 29-01-2007 Legal area : Criminal Kind of procedure : Appeal Indication of contents : In the period of the end of 1983 to the end of 1990 the accused was in Kabul, in Afghanistan, at the time of the communist regime supported by the Soviets, head of the military intelligence service, the KhAD-e-Nezami, and deputy minister of the Ministry of State Security (WAD). In performing these duty/duties the accused, as can be proven, has in respect of three victims been guilty of very grave offences: being a co-perpetrator to torture and the breach of the laws and practices of war. Article 1 (old) of the “Uitvoeringswet folteringverdrag” UWF [Convention on Torture Implementation Act] and the Articles 8 (old) and 9 (old) of the “Wet oorlogsmisdrijven” [War Crimes Act]. PURL: https://www.legal-tools.org/doc/91785b/ JUDGMENT Cause-list number : 22-006131-05 Public Prosecutor’s Office number(s) : 09-751004-04 and 09-750006-05 Date of judgement : 29 January 2007 IN DEFENDED ACTION Court of Appeal in The Hague Three-judge criminal section Judgment passed in appeal against the judgment of the The Hague District Court of 14 October 2005 in the criminal case against the accused: [accused], born in [place of birth] (Afghanistan) on [date of birth] 1948, at present detained in the Penitentiary Institution Midden Holland – Remand Prison De Geniepoort in Alphen aan de Rijn. 1. Examination of the case This judgment is passed as a result of the examination in court at the hearing in the first instance and the examination in court at the hearings in appeal of this court of appeal of 3 and 17 May 2006, 18 September and 2 October 2006, 4, 11 and 13, December 2006 and 15 January 2007. The court of appeal has taken cognizance of the demand from the advocate-general and of what has been put forward by and on behalf of the accused. 2. Indictment The accused is charged with what is mentioned in the originating summons, as amended on the demand of the public prosecutor at the hearing in the first instance. Copies of the summons and of the demand amendment to the indictment are inserted in this judgment. The court of appeal has given a consecutive numbering to the offences included in these summons. It will follow the numbering in this judgment. 3. Course of the proceedings and scope of the appeal. The accused, who was at the time, as an Afghan high-ranking soldier in Kabul, in charge of the military intelligence service Khad-e-Nezami, is charged in the first instance in two summons with – in short – the following offences: PURL: https://www.legal-tools.org/doc/91785b/ 1. being a co-perpetrator in Kabul to breaching the laws and practices of war in the period of 1 January 1982 up to and including 31 December 1988 by committing violence against seven victims (partly by the serious result, partly qualified otherwise); 2. being a co-perpetrator in Kabul in the period of 1 November 1989 up to and including 31 December 1990 to the torture of two victims; 3. allowing that subordinates violate in Kabul in the period of 1 October 1985 up to and including 31 December 1988 the laws and practices of war by committing violence against two victims (qualified). The accused was in the first instance acquitted of count 1 of the indictment, as well as of allowing that against one of the two victims mentioned in count 3 of the indictment violence was committed. He was sentenced with regard to count 2 of the indictment, as well as with regard to count 3 of the indictment, committed in respect of the other victim, to imprisonment for a term of twelve years, less the period spent in pre-trial detention. Only the accused appealed against the judgment of the district court. The judgment of the district court with respect to count 3 of the indictment raises the question of the scope of this appeal, in view of what has been determined in Article 407, second paragraph, Wetboek van Strafvordering (Sv) (Netherlands Code of Criminal Procedure). On that subject the court of appeal, together with the advocate-general and the defence, has come to the conclusion that count 3 of the indictment should be regarded as an implicit cumulative indictment and that therefore the reproach with respect to one of the in that offence mentioned victims, for which the accused was acquitted, is at present not under discussion anymore. 4. Assessment of the judgement of which this appeal To a large extent the court of appeal comes to the same decisions as the district court, albeit on partly different grounds. In relation to this the court of appeal will quash the judgment of which this appeal. 5. Review of the international (criminal) legal defences. 5.1. The defence has put forward a number of defences which have (partly) as a joint characteristic: the international law aspects of the prosecution of the accused and the ‘scope’ of the Articles 3 and 8 of the “Wet oorlogsstrafrecht” WOS [Criminal Law in Wartime]. The court of appeal summarizes – in short (and reproduced in a different order) - these defences, all argued extensively in the pleading notes. a. Dutch criminal law lacks in the case at issue (universal) jurisdiction if in the period charged a non-international armed conflict were concerned, to which ‘only’ the common Article 3 of the Geneva conventions applies. These conventions (or other international regulations) do not provide for universal criminal jurisdiction with respect to breaches of these articles; establishing such jurisdiction needs an international authorization which is not to be found in the unwritten international law either, as the Yugoslavia Tribunal (ICTY) in its decision of 2 October 1995 also states. The defence is of the opinion that at the time there was in Afghanistan, at least in so far as of interest for the charged conducts, no international armed conflict. Therefore the public prosecutions department, PURL: https://www.legal-tools.org/doc/91785b/ exercising its prosecution competence in violation of the international law, should be barred prosecution as to this prosecution; b. the WOS (at least in the eighties) does not pertain to violation of the standards included in the common Article 3. Lifting the immunity from prosecution through lapse of time which was laid down by law of 8 April 1971 (Bulletin of Acts and Decrees [Stb] 210) in Article 10 of the WOS (assuming a non-international armed conflict) does therefore not extend to what the accused (in count 3) is blamed for with respect to the alleged victim [victim 1]. The international juridical view that gave cause to this amendment to the Act, only relates to the very grave war crimes, the ‘grave breaches’ in the Geneva conventions. The offence the accused is reproached with sub 3. has therefore become extinguished by limitation. Also in that respect the public prosecutions department should be barred prosecution in this prosecution; c. moreover, this alleged victim cannot be regarded as a ‘protected person’ in the sense of the Geneva Conventions. This should therefore lead to the accused being discharged of any further prosecution in respect of this offence; d. in view of what is stated sub b) the punishablility of the accused as to the charged torture, assuming a non-international armed conflict, can neither be based on the common Article 3, nor on Article 8 of the WOS. The legislator has in this Act only wanted to comply with the obligation of ‘grave-breaches’ pursuant to the Geneva conventions. The punishability of acting should be judged according to the law of the location of the crime; applying Dutch law to acts performed in Afghanistan is in violation of the principle of legality. This should also lead to discharge of the accused of any further prosecution for this offence; e. erroneously in count 3 the nature of the conflict and the protected status of the alleged victim have not been included and (factually) substantiated. The way of charging as it is used would in the ICTY practice not be accepted, it should lead to invalidation of the summons. 5.2. Before the court of appeal discusses the specific defences, it will put into words its views in relation to the general aspects of the prosecution of the accused and the applicable law. 5.2.1. The accused is reproached for actions he is supposed to have performed in Kabul in Afghanistan in the eighties as a high-ranking Afghan soldier who was in charge of the command of the military intelligence service.
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