Content Regulation / Censorship, Violence Against Speakers / Impunity
Perozo and others v. Venezuela
Venezuela, Bolivarian Republic of
Closed Expands Expression
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On the 22nd of December 2015, the Court of Appeal in Arnhem-Leeuwarde partially upheld the decision of Midden-Nederland’s District Court, which convicted Tarik Z. of hostage-taking, threatening to commit public violence, and gas/alarm gun possession. The Appellate Court, however, increased the sentence imposed on Tarik Z. from 30 months in prison (including a 15-month conditional imprisonment sentence) to 40 months in prison, including a 24-month conditional imprisonment sentence. On the 29th of January 2015, Tarik Z. attempted to appear on the 20:00h evening news, delivered by public service broadcaster NOS, to tell the public that NOS has been manipulating the news and public opinion. Armed with a gas/alarm gun, Tarik Z. took one of the security guards of NOS hostage and demanded to be escorted to the studio where he could broadcast his message to the public, but he was eventually arrested. The Court of Appeal justified its decision by stressing the adverse impact Tarik Z.’s actions had on the employees of NOS and Dutch society.
On 29 January 2015, defendant Tarik Z. forced his way into the building of the Dutch Broadcasting Foundation (Nederlandse Omroep Stichting (NOS)) aiming to get 10-minute airtime on the Dutch evening news at 20:00h to broadcast his message to the public. To this end, Tarik Z. handed security guards a letter and held him at gunpoint with a gun that was later found to not be a real gun. The letter claimed that a cyber attack will take place and heavy explosives with radioactive material will be detonated across the Netherlands if Tarik Z. is not allowed to tell his story during the live broadcast of the eight o’clock news. One of the security guards forcibly escorted Tarik Z. to a studio other than the one used to air the eight o’clock news while the other guard activated the security company’s control room. The police subsequently arrested Tarik Z. This resulted in suspending the broadcast of the eight o’clock news that evening and employees hurriedly had to evacuate the building.
The public prosecutor filed charges against Tarik Z., demanding a four-year prison sentence and a one-year conditional prison sentence. The prosecutor argued that defendant Tarik Z. was guilty of hostage-taking, threatening to commit public violence, and the possession of a gas/alarm gun, which is prohibited under the Dutch Criminal Code and the Dutch Arms and Ammunition Act. The defendant argued that his actions did not amount to any crime under the Dutch Criminal Code and contested the length of the prison sentence, given his cooperative conduct during the proceedings.
The Criminal Law Section of the District Court Midden-Nederland (The court of first instance) sentenced Tarik Z. to 30 months in prison, including a 15-month conditional imprisonment sentence. Both the public prosecutor and Tarik Z. appealed the decision. Afterwards, the Court of Appeal increased the sentence to 40 months in prison, including a 24-month conditional imprisonment sentence.
Tarik Z. subsequently appealed the decision before the Dutch Supreme Court but the latter dismissed his appeal.
Judge President J. Dolfing delivered the judgment of the Court of Appeal Arnhem-Leeuwarden.
The first issue for the Court’s determination was whether Tarik Z. was guilty of hostage-taking and threatening to commit public violence under articles 282a and 285 of the Dutch Criminal Code. Articles 282a of the Dutch Criminal Code states that ‘any person who intentionally deprives or continues to deprive another person unlawfully of his liberty with the intention of compelling him to act or to refrain from certain acts, shall be guilty of hostage-taking …’. Article 285 of the Dutch Criminal Code prohibits persons from threatening with the use of (public) violence or the committal of a serious offence.
The first issue for the Court to decide on was whether Tarik Z. is guilty of hostage-taking and threatening to commit public violence under articles 282a and 285 of the Dutch Criminal Code. Article 282a of the Dutch Criminal Code states that ‘any person who intentionally deprives or continues to deprive another person unlawfully of his liberty with the intention of compelling him to act or to refrain from certain acts, shall be guilty of hostage-taking …’ and Article 285 prohibits persons from threatening with the use of (public) violence or the committal of a serious offence.
The second issue before the Court was to determine whether the sentence imposed on Tarik Z. by the District Court was proportionate and whether the broadcasted images of Tarik Z. by NOS, breached his right to privacy under Article 8 of the European Convention on Human Rights (ECHR).
The Public Prosecution Service, on the one hand, argued that Tarik Z. was guilty of taking a security guard hostage to force other employees of NOS to give him access under force to the studio where he could broadcast his message on the 8:00 evening news. Furthermore, the public prosecutor argued that the defendant was guilty of threatening public violence and illegal possession of weapons.
The Defendant, on the other hand, denied the hostage-taking charge, arguing that his actions did not constitute a breach of Article 285 of the Dutch Criminal Code. He further argued that the media attention around the case harmed him and that broadcasting his images inside the studio and his subsequent arrest was in violation of his right to privacy under Article 8 of the European Convention on Human Rights, which should lead to a lower sentence.
The Court of Appeal held that the evidence, including victims’ testimonies, supported the claims of the Public Prosecution Service. The Court ruled that Tarik Z. was guilty of hostage-taking, threatening public violence and illegal possession of a gas/alarm gun [p. 8-9]. The Court also pointed out that the security guard was forced to cooperate with Tarik Z.
With regard to the appropriate length and severity of Tarik Z.’s prison sentence, the Court ruled a long prison sentence to be ‘appropriate and suitable’ [p. 12]. However, the Court ruled that part of the sentence should be conditional.
In its reasoning, the Court stressed that the security guards and employees were greatly affected by Tarik Z.’s actions. The Court pointed out that a few weeks prior to this incident, employees of the French satirical magazine, Charlie Hebdo, were killed during an armed attack on the premises of the magazine. Moreover, the Court pointed out that the actions alarmed the public, as the 20:00h news was not broadcasted as usual, and instead, NOS aired the images of the armed Tarik Z. and the security guard in the studio and Tarik Z.’s subsequent arrest by the police [p. 11].
Lastly, the Court ruled that Tarik Z.’s privacy rights under Article 8 of the ECHR were not breached. The Court further dismissed the claim of the defendant that media attention should result in a lower sentence, referring to case no. ECLI:NL:HR:2015:3024 of the Dutch Supreme Court. The Court explained that this would not be appropriate, as the actions of the defendant specifically targeted gaining media attention in the first place.
The Court eventually upheld the charges against Tarik Z. and increased his imprisonment sentence to 40 months, including a 24-month conditional imprisonment sentence. Moreover, the Court awarded damages to NOS, its employees, and the involved guards.
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The Court of Appeal in Arnhem-Leeuwarden increased Tarik Z.’s sentence, given the harmful impact his actions had on the employees of NOS and on society as a whole. Interestingly, this conclusion differed from the District Court Midden-Nederland, which pointed out that Z.’s actions neither “held free speech hostage”, nor did it impact the foundations of democracy. Rather, the Court of first instance held that his actions were “a rather amateurish attempt to impose his own free word on others by means of violent action” [p. 18].
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