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Arkel Arrest Case | Official Investigation Name “Lech”

YEAR

2024

COURT

Rotterdam District Court

STATUS

Pre-Trial Phase

CASE UPDATE

Next pre-trial hearing in August

Case Summary

The Dutch police’s international crimes team (Team Internationale Misdrijven or TIM) is investigating the case of a 38 year old Syrian man who is suspected of holding a leadership position within ISIS between 2013 and 2018. The man, known as al-A, had applied for asylum in the Netherlands in 2019 and was arrested in the Dutch town of Arkel in January 2023.

The Arkel case is currently in the pre-trial phase, with the police carrying out additional investigations after receiving information and identifying witnesses regarding the suspect’s role as an interrogator for ISIS. The possible allegations concern the suspect’s role in violent interrogations and subsequent torture. Depending on the investigation’s results, additional accusations will be added to the current draft indictment, which focuses on the suspect’s membership in a terrorist/criminal organisation.

The substantive trial in the Arkel case is set to begin in late 2024 or early 2025.

Along with its partner organisation SCM, The Nuhanovic Foundation monitors the case, communicates about it through its public channels, and cooperates with the prosecutor in facilitating logistical and legal aid for Syrian victims and witnesses who have testified during the pre-trial investigation.

 

Prosecutor Blom reported regarding the status of the investigation that the police investigation is not yet complete. In fact, several witnesses still need to be heard in the coming weeks. This is due to the fact that the police investigation is back in full swing after new information has been obtained regarding alleged interrogations by the suspect and subsequent torture in the context of his alleged position with ISIS.

This means there is still much investigation to be done. But the prosecution’s approach is still to have the final dossier ready by the end of the year at the latest, depending on circumstances.

Depending on the outcome of the current investigation, the indictment will be amended to include additional accusations next to the current one (membership in a terrorist/ criminal organization). The defense will likely have additional investigation requests as well.

A substantive hearing is not to be expected before the end of 2024, more likely early 2025.

During the pretrial hearing on 8th March 2024, the judge announced that this session would focus on adding new documents to the case file, namely anonymized witness statements by the defence. 

Firstly, the defence and prosecution discussed the ongoing investigation. The prosecutor sent an email to the parties, clarifying the direction of investigation. It stated that the investigation will most likely be centred around the allegations of participation in a criminal organisation and executions as war crimes and crimes against humanity, and will rely heavily on witness testimonies. The investigation will likely take six more months to finalise the case file, which will include using specific investigation methods, such as voice recognition technology. 

Next, defence lawyer Michiel Pestman explained the defence motion to add anonymized witness statements to the case file. He argued that in general witnesses must be protected throughout the investigation, when they are in Syria, where they could be brought in difficulty and danger when they testify. He added that the defense took their statements anonymously to guarantee a measure of personal safety for these witnesses. The prosecutor noted that it does work with anonymous witnesses, but that they do not reside in Syria. The defence then stressed that there must be transparency regarding the identities of witnesses, while simultaneously it must be ensured that their names are not disclosed to the public, in order to ensure the witnesses’ safety. The prosecution contested that if the witnesses reside in Syria, they are likely facing security threats as they are living under an authoritarian regime. Their testimonies should not be added to the case file as the witnesses’ security can never be fully guaranteed. In response, the defence stated that each party’s right to find and question witnesses and present testimonies must absolutely be ensured to guarantee the fundamental defence rights to a fair trial. Therefore, the prosecutors and judges need to cooperate to solve this issue and to allow for ways for the defence to find witnesses to present the defence’s case. The defence then offered to have those anonymised witness testimonies added to the file but that they should only be accessible by the prosecution and not added to the general case file. 

Additionally, the defense argued that the prosecutors too easily quote the impossibility to violate Syria’s sovereignty and the lack of a mutual legal assistance agreement with Syria, as reasons for excluding witnesses who are in Syria. Defence lawyer Pestman cited previous cases involving similar witness situations with regard to Rwanda, Afghanistan and Somalia, and that in these situations the parties found ways to creatively solve the issue of witness protection and security. In Afghanistan for example, the prosecutor issued an ad-hoc legal assistance agreement in the embassy of Kabul. In Somalia, the defense traveled to Mogadishu and recorded testimonies on video, so that the investigating judge and prosecutor could revise them. The defence then suggested a solution, namely to involve an expert to come up with a solution, an independent person that can advise how to deal with (defence) witnesses who are located in Syria. This was no formal request yet, but rather just a sharing of ideas and discussion. The defence lawyer would even already have someone in mind. 

The judge was irritated by the latter, questioning this expert’s independence if the defence already had them in mind, and stated that this discussion should be postponed, as this session was dedicated to discussing the additional testimony documents for the case file. The defence noted that it is primarily their responsibility to ensure the security of their witnesses. In response, the prosecutor highlighted the witnesses’ vulnerability due to the fact that both the regime and the political opposition might both be threatening them. The prosecutor stressed the need for extreme caution when involving witnesses in Syria, but also agreed to assist in finding a solution to this complex issue and question. However, the prosecutor clearly rejected the request to add anonymized statements to be accessed only by the prosecution for several reasons. Firstly, judges would not have access to these statements, rendering them irrelevant for the case as the (pretrial) judges could not test their evidentiary value. Additionally, the limited anonymization cannot guarantee the personal security of witnesses, particularly those located in Syria. The defense’s argument for equality of arms was countered by the fact that neither the prosecutor nor the police have unrestricted access to witnesses in Syria. 

The judges left the courtroom to consider the arguments for and against the defence motion to add these anonymized witness statements, including from witnesses in Syria. In conclusion, the court decided that there is a fundamental legal need for the documents to be added in the interest of fair trial principles, even when there is a major concern about the personal security of the witnesses. However, the defence was directed to be more careful with anonymising statements. Additionally, the court directed that any statements involving witness names by either prosecution or defence, may be discussed only behind closed doors to guarantee the safety of the witnesses and avoid identity leaks. 

The police and prosecutor plan to have their investigation file complete by the end of this year, after which it can be presented to the court and the trial date can be set, likely for the first quarter of 2025. The accused remains in pre-trial detention with the next pre-trial hearing scheduled for 4 June 2024 at 10am at the District Court of Rotterdam.