ECLI:NL:GHARL:2013:6057

Instance Court of Appeal Arnhem-Leeuwarden
Date of judgment 14-08-2013
Business number 21-002082-11
Corporations Criminal law
Special features Appeals

Fire murder in Zeist. Court sentences the accused for murder to 12 years imprisonment and compulsory hospitalisation.

Criminal Law Department

Case number: 21-002082-11
Date of judgment: 14 August 2013
AGAINST
Promis

[Judgment] of the Multiple Chamber for Criminal Matters

referred to the appeal lodged against the judgment of the Utrecht District Court of

25 May 2011 in the criminal proceedings against

MDNDR021,

born in Kabul on 13-11-1981,

currently residing at the Penitentiary Psychiatric Centre (PPC) in Zwolle.

Appeals

The accused and the public prosecutor have lodged an appeal against the above mentioned judgment.

Examination of the case

This judgment was rendered as a result of the investigation at the court hearings of the court of 17 July 2013 and 14 August 2013 and, in accordance with the provisions of Article 422 of the Code of Criminal Procedure, the investigation at the court hearing in the first instance.

The Court has taken note of the Advocate General’s claim. This claim has been submitted to the Court after it has been read out (for the content of the claim, see Annex I). Furthermore, the court of appeal has taken cognizance of what has been said by the defendant and her counsel, Mr. W.J. Ausma.

The verdict of which appeal

The court will set aside the judgment of which the appeal was lodged because it will result in a different penalty being imposed. The court will therefore do justice again.

The indictment

The defendant has been charged with that:

primary:
she deliberately and premeditatedly robbed a woman named Narges Achikzei of her life on or around 7 December 2009 in Zeist and/or (elsewhere) in the Netherlands, after all, the accused, then and there, with that intent and after calm deliberation and calm consultation, of the fact that Narges Achikzei and/or her clothing, with a quantity of motor gasoline, or at least a fire accelerating, or at least flammable liquid, that Narges Achikzei and/or her clothing and/or motor gasoline, or at least that flammable or at least that flammable liquid, with (the fire of) a lighter lit and/or (thus) set on fire, as a result of which that motor gasoline, or at least that flame-accelerating, or at least that flammable liquid and/or the clothing of that Narges Achikzei and/or (subsequently) that Narges Achikzei caught on fire, as a result of which that Narges Achikzei died (from serious burning);

in the subsidiary sense:
on or around 7 December 2009 in Zeist and/or (elsewhere) in the Netherlands, the defendant deliberately took the life of a woman named Narges Achikzei, after all, then and there, with that intention, the defendant poured over that Narges Achikzei and/or her clothing, with a quantity of motor gasoline, or at least a flammable liquid, and/or (subsequently) that Narges Achikzei and/or her clothing and/or that motor gasoline, at least that fire-accelerating, at least combustible liquid, with (the fire of) a lighter and/or (thus) set on fire as a result of which the motor gasoline, at least fire-accelerating, at least combustible liquid and/or the clothing of that Narges Achikzei and/or (subsequently) that Narges Achikzei caught on fire, as a result of which that Narges Achikzei died (from severe combustion).

If language and/or writing errors occur in the indictment, these have been corrected. As a result, the defendant has not been harmed in the defence.

Opinion of the Public Prosecutor’s Office

The Advocate General concluded that the principal charge should be upheld.

Advice counsel’s point of view

The counsel has pleaded for acquittal, since the intention is lacking because the accused acted from a dissociative situation.

Consideration with regard to the evidence 1

On 7 December 2009 at approximately 5:25 p.m., the regional control room of the Utrecht police received a report that a woman was on fire on the twelfth floor of the Gero flat on Laan van Vollenhove in Zeist.2 The fire brigade, ambulance service and police were sent to the scene.

Reporting agent [agent 1] was at the scene and as soon as he was standing in the stairwell on the eleventh floor, a man came up the stairs. The man indicates that he is Haroen Mehraban. The man tells that he called his girlfriend about half an hour ago. That girlfriend turns out to be called: Narges Achikzei. His girlfriend told him that someone had called and told him that there was a package. She then went downstairs.

A little later she went upstairs again, while they are (again) on the phone together. Suddenly he heard screaming on the phone. The police agent hears the man saying: “Something terrible has happened” and “They have set my girlfriend on fire. Oh god. “3

The woman has already been extinguished by means of a blanket and water. The woman was still alive and her first aid was provided, after which the woman was transported by ambulance to the University Medical Center Utrecht. Later in the evening she was taken to the Burns Centre of the Maasstad Hospital in Rotterdam, where she died later that evening from her injuries.4

The section found that 80% of the body’s surface was thermally damaged. The seriousness of this is such that the majority of the burns can be described as fourth-degree burns. The nature and extent of the thermal injuries are such that the onset of death can be explained without further ado. The conclusion is that the occurrence of the death of the 23-year-old Narges Achikzei is explained by severe burning.5

Technical research into Gero-flat

On 7 December 2009, the police conducted a technical investigation at the crime scene. On the floor of the gallery along the metal fence, directly opposite the entrance to the staircase hall, shards and parts of a glass weckpot (storage jar) were found by the reporting agents. They saw that those parts and shards were sooty. They also saw a clot of white-coloured textile lying between the shards of glass, smelling of petrol.6

In the stairwell, in the open space directly to the left from the lift, the traffickers found two parts of a lighter.7

The intercom bell on the panel next to the outside door of the porch belonging to the house [address] in Zeist, being Narges Achikzei’s house, was also sampled by means of a cotton swab in connection with the possible presence of biological traces.8

A. White coloured textile

The piece of white textile found was examined for the presence of fire accelerators. Motor gasoline was found in the area of textiles.9

B. Lighter

The suspect’s DNA material was compared with the cell material found on the lighter. The cell material found on the lighter may originate from the suspect. The chance that this cell material belongs to a randomly selected woman is less than one in one billion.10

C. Intercombel

The suspect’s DNA material was compared with the cell material found on the intercombel. The cell material found on the intercombel came from at least three people, including at least one man. Based on comparative DNA testing, the suspect cannot be excluded as one of the possible donors of this sampling.11

Video images Gero-flat and L-flat

Investigations have shown that both the victim and another person are visible on the images taken by security cameras in the complex. These images were partly shown on the TV programme Detection Requested.

On the basis of the images and the description of the person other than Narges Achikzei, it can be established that shortly before committing the crime in the Gero flat, that person had also been inside porch 5 of the L flat, the adjoining flat where the victim’s parents were living.12 At 16.37.48 hours, the person walks past porch 3, porch 2 and porch 1 of the Gero flats towards the L-flat. Four minutes later, it became apparent that the person was visible at portico 5 of the L-flat and that he or she was standing near the bell panel. She then disappeared from the picture and 7 minutes later she came back in the picture and entered the L-flat, which she left at 16.53.59 hours. At 16.58.40 hours the person in question passed porches 1, 2 and 3 in the direction of porch 4 of the Gero flats, where she entered the Gero flats.14 The person walked in behind two women. As soon as the person reaches the higher level in the hall, he or she brings the face down and holds the right hand in front of the face/ scarf.15 The person steps into the elevator and, in view of the length of time (the court understands: of the ride), he/she is probably disembarked on the 12th floor.16 The person stays on this floor for 3.10 minutes and goes down with the elevator.17 The person stands at the intercom panel and about 13 minutes later the person once again enters the Gero-flat at porch 4. Twenty seconds later Narges Achikzei enters the elevator on the 12th floor and she goes to the outside door of the hall and looks around.

Then she walks to the mailboxes, looks around again and walks back to the elevator.19 In the elevator, Narges Achikzei brings her phone to her ear. She gets out of the elevator on the 12th floor with the phone still on her ear. The moment she walks just before the gallery, she is poured with a liquid from the right. The person kneels down and lights up Narges Achikzei, followed by a large flame. This flame sets Narges Achikzei on fire in a split second. The person walks into the gallery. At that moment, Narges Achikzei falls to the floor of the stairwell while on fire. As the person walks away, it appears that a flame is visible at the level of his/her right hand/arm.20 Two minutes later the person steps onto the 8th floor in the elevator and dresses the same as before, but instead of a striped scarf the person wears a checkered scarf of the design Burberry.21 The person gets out of the elevator and then runs towards the outside door, after which the person leaves the Gero-flat at 17.29 hours.

The police agent [agent 2] has observed that the arrested suspect [MDNDR021] is very similar to the perpetrator who is visible on the camera images of the Gero apartment described above. The reporting officer has seen that the accused is a woman with dark-coloured/black long hair and dark eyebrows. The suspect has a normal stature and is approximately 1.60 metres long. It has also been shown that the accused has serious burns on her right hand.22

Witness [witness 2], a colleague of the defendant, has stated that she saw the images at Detection Request and that she recognizes the hair of the defendant. The length of the defendant’s hair and its dark colour, as well as the shape of the tail on the pictures, are exactly the same as the defendant often wore them. [witness 2] has also recognized the look and eyebrow. “When you look at her, the accused has something special in her gaze, something that attracts you and that special gaze I also recognised on the images of Detection Requested.

Witness [witness 3], a fellow student of the accused, has stated that he has seen certain traits of the accused on the statues; the way she walks and the way she carries her bag.24

Witness [witness 4], a good friend of the accused, has stated that she had viewed the images of the perpetrator on the computer via internet. The moment she saw the woman with the black coat, she knew immediately that it was the defendant. She has the same bag and the same coat. This is what [witness 4] saw in the case of the accused. The accused also has a Burberry scarf.25

Declarations of the accused
On 24 January 2010, the suspect reported to the police station in Oss in the company of her brother and fiancée. She said to the person reporting the crime: “I feel like I’ve done something terrible. I probably killed someone… I’m talking about the murder in Zeist. On 7 December 2009, a girl was murdered there in an apartment.” The police agent saw that her right hand was wrapped in a bandage.26

During the hearing on appeal on 17 July 2013, the defendant stated that she had reported to the police because she was 1.60 metres tall and had burns on her right hand. She also stated that she had a Burberry scarf, as can be seen on the images.27

Injury to the defendant
A physical examination by a forensic doctor on 26 January 2010 revealed a situation after surgical treatment of (predominantly) second-degree and third-degree burns on the right hand back and on the stretch side of the index, middle and ring fingers of the right hand. The aspect of the injuries is appropriate for burns that have not yet been healed without residue, surgically treated, caused by the local thermal action of hot and/or burning fluid. In view of the aspect of the injuries, their age can vary from a few weeks to a little over a year. No final condition has yet occurred.28

Ajudgment by the court

Origin of the suspect’s injury
The accused’s doctor stated that on 22 December 2009 the accused had reported a burn wound to her right hand that she said she had sustained two weeks earlier as a result of a burning flame with methylated spirits and that she had been helped by a ‘cousin family doctor’ on 9 December 2009.29 Dr. H. Boxma, a surgeon, and J. Doctor, a medical coordinator, report to the general practitioner that the accused had been seen as a result of burns she was allegedly inflicted with on her right hand as a result of a burning of methylated spirits on 5 December 2009.30

The (then) fiancée of the accused, [witness 5], was asked whether he remembers whether the accused had injuries to her right hand on 6 December 2009, the day before the crime, to which he replied that he did not pay attention and that he cannot remember.31 On 5 and 6 December 2009 [witness 5] was with the accused.32

Witness [witness 6] stated that she saw the defendant on 9 December 2009 and that the defendant had her hand in bandages and that her hand was swollen.33 [witness 6] stated that she received a mouth treatment from the defendant and that the defendant’s hand was really thick and hurt.34

Witness [witness 7] has stated that she saw the defendant on 9 December 2009 and that the defendant’s right hand was fat and that there was a bandage on it.35

In view of the above, the Court of Appeal is of the opinion that it is plausible that the injury to the right hand of the accused in any case occurred after 6 December 2009, because her fiancée, the witness [witness 5], did not see any injury on 5 and 6 December and the accused subsequently had her hand in connection with it. The court of appeal does not consider it plausible that the witness [witness 5] would not have noticed if the defendant would have had her hand in connection that day.

The accused has made various statements to different persons with regard to the occurrence of the injury in question on her right hand, that is to say:

– against the general practitioner on 22 December 2009 that she suffered a burn two weeks ago as a result of a burning flame with methylated spirit,36

– Against [witness 5] that by making tea hot water came upon her hand and a glass was broken,37

– To her mother that she fell off her bike,38

– To her sister that there’s a shard of glass in her hand,39

– to her friend [witness 6] that she fell off her bike and later she said that her hand had been injured at a barbecue,40

– against her colleague [witness 8] that she had been tapped by a car while she was cycling and that she had fallen as a result and thereby hurt her wrist,41

– against her colleague [witness 9] that she burned her hand while frying chicken on the barbecue, using methylated spirit from her boyfriend or brother. A flame was ignited which came over her hand and burned her hand.42

– against her colleague [witness 10] that she had a barbecue a while ago and that during the grilling and cooking she had burned her hand on that barbecue and that some time after the burning she fell on her hand, which opened the wound and started to infect it.43

During the hearing on appeal on 17 July 2013 the defendant indicated that she cannot give an explanation as to why she has stated so differently about the cause of the injury to her right hand. The Court of Appeal is of the opinion that, certainly in view of the seriousness of the suspicion, in the present case it is up to the accused to explain this.

In view of the witness statements given above, the alternating statements of the accused regarding the injuries it has found in combination with the camera images described above, the Court of Appeal is of the opinion that the injury to the right hand of the accused occurred during the setting fire to Narges Achikzei on 7 December 2009.

In view of the above, seen in mutual connection, it is inevitable that the defendant was the one who set Narges Achikzei on fire on 7 December 2009 and who took her life.

Structure
In the opinion of the Court of Appeal, the defendant also had the intention to kill Narges Achikzei. In view of the outward appearance of the defendant’s conduct, i.e. pouring over someone with motor gasoline and then setting her on fire, it is inevitable that the defendant had the deliberate intent to cause her death.

The Court rejected the defence that the intention to kill is lacking because the accused has a dissociative disorder. As will be explained later, the court of appeal is not of the opinion that the accused has a dissociative disorder and therefore does not follow the counsel in his view on this.

Premedesigned council
In assessing this question, the Court of Appeal bases itself on the considerations of the Supreme Court in its judgment of 28 February 2012 (LJN BR2342), which involves:

“In order for this element to be proven, it must be established that the defendant was able to consider for some time the decision to be made or the decision taken and he did not act in an immediate upsurge of mood, so that he had the opportunity to think about the meaning and the consequences of his intended act and to take this into account.

The question of premeditation is above all a question of the weighting and appreciation of the circumstances of the particular case by the court, which must determine the weight of the evidence in favour of or against the proven declaration of premeditation. Partly in view of the above mentioned aggravating effect of this element, it is necessary – contrary to what has been deduced from earlier case law of the Supreme Court – to lay down certain requirements for the determination that the premeditated counsel has existed and the court, in particular if the premeditated counsel does not follow directly from the evidence, must give further consideration to this in its reasoning for the statement of evidence.

The Court of Appeal is of the opinion that the accused had the opportunity to consider whether to take up her decision or one already taken and to make choices, which ultimately led to the death of Narges Achikzei.

In this respect the Court of Appeal assumes the following facts.

On 7 December 2009 the defendant went to Zeist and, apparently in preparation for her actions, brought with her a weckglass (a glass jar with a wide opening) filled with motor gasoline, a white piece of textile and a lighter. The camera images of the Gero flat show that the defendant was in the neighbourhood of the Gero flat where the victim lived, and the L flat, where the victim’s parents lived, approximately one hour before committing the offence. She entered the Gero-flat, which she left after a short time to come back and take the elevator upstairs. The suspect was dressed -and disguised- with a cap, a scarf in front of her face and neck and she was wearing her hood. She also avoided the security cameras in the apartment. The defendant apparently lured Narges Achikzei down with the announcement that a package was being delivered, while in the meantime the defendant has moved by elevator to the tenth floor and later on walking to the twelfth floor. At the moment that Narges Achikzei stepped out of the elevator on the twelfth floor, she was poured with motor gasoline by the defendant and set on fire.

It follows from the above that the defendant acted very well prepared, but also refined, to pour petrol on Narges Achikzei and to set her on fire, thereby causing her death. Partly in view of the (preparatory) actions carried out and the time span within which these took place, the accused was able to reflect for some time on the decision to be taken or the decision to be taken. In view of the above described course of events, she did not act in an instantaneous upsurge of mind, but had the opportunity to think about the meaning and the consequences of her intended act and to take this into account.

The Court rejects the defence that the premeditated advice is lacking because the accused has a dissociative disorder. As will be further explained later, the Court of Appeal is not of the opinion that the accused has this disorder and therefore does not follow the view of the counsel. The court of appeal is of the opinion that this is a question of premeditated advice, with which the accused has been guilty of murder.

Proven statement

By lawful means of evidence, which contain the reasoning facts and circumstances on which the statement of evidence is based, the court of appeal has gained the conviction and the court of appeal deems it to be lawful to prove that the accused has committed the primary indictment, with the proviso that this is the case:

on 7 December 2009 in Zeist and/or (elsewhere) in the Netherlands, she deliberately and with premeditation took the life of a woman named Narges Achikzei, after all the accused, then and there, with that intention and after calm deliberation and quiet consultation, the Narges Achikzei and/or her clothing, with a quantity of motor gasoline, and (subsequently) the Narges Achikzei and/or its clothing and/or the motor gasoline, with (the fire of) a lighter lit and (thus) set on fire, as a result of which the motor gasoline and the clothing of the Narges Achikzei and/or (subsequently) the Narges Achikzei caught on fire, as a result of which the Narges Achikzei died (from severe combustion).

The Court of Appeal does not consider it proven what the accused has been charged with more or differently than has been declared proven above, so that he should be acquitted of this.
Punishability of what has been proven

the primary proven proven results:

murder.

Failability of the accused
In order to answer the question whether or not at the time of the proven fact the accused had a defective development or sickly disorder of his mental faculties, the court of appeal paid attention to the following reports about the accused that are in the file. The Court of Appeal considers the considerations and conclusions derived from these reports, which are presented below in a factual manner, to be important:

– from the report of the Pieter Baan Centre dated 20 July 2010, drawn up and signed by R.J.P. Rijnders, psychiatrist and E.J. Muller, GZ-psychologist:

The rapporteurs are of the opinion that the suspect’s identity has not fully matured, presumably because of her lifelong perception that she was not accepted by her mother. The suspect appears to have an identity problem, but it is not possible to speak of an identity disorder. There is no reason to diagnose a personality disorder in the suspect. There is no question of a defective development of her mental faculties.

The suspect hears voices and this may indicate acoustic hallucinations, but also pseudohallucinations. If there are voices, they are not of a (psychotic) hallucinatory nature. There is currently a depressive disorder of a moderately severe to severe nature, and in recent years there appears to be a chronic imbalance with short-term depressive fluctuations, dysphoria, as well as somatic complaints in the context of a dysthyme disorder. Both disorders can be described as a pathological disorder. Reasoning psychological problems from suspects, no effect on the charge can be established, as a result of which the rapporteurs conclude that there are no behavioural grounds for reducing susceptibility to blame.

– from the letter report dated 3 December 2010, drawn up and signed by
E.J.P. Brand, psychologist:

The rapporteur does not rule out the possibility that a dissociative identity disorder is fully present in the case of a suspect and that her behaviour at times is entirely determined by forces that withdraw from her daily consciousness. The latter could mean that there is some degree of imputability loss. If the disorder were to remain untreated, this could lead to the repetition of (criminal) offences. In the Altrecht Psychiatric Centre in Utrecht it can be further investigated whether the suspect has this disorder.

– from the Pro Justitia report dated 4 April 2011, drawn up and signed by
M. Drost, psychiatrist:

Drost’s conclusion is that the defendant has a mood disorder with depressive symptoms. In the absence of the possibility to explore the motives and the facts with the accused, the expert cannot make a connection between the disorder and the charged fact.

– The report of the diagnostic investigation dated 14 October 2011, drawn up and signed by S. Boon, clinical psychologist/psychotherapist:

There are indications of identity problems and fragmentation of the self, suitable for a serious dissociative disorder. The voices described by the suspect appear to be so-called pseudohallucinations, which frequently occur in the case of a dissociative identity disorder. The suspect suffers from a dissociative disorder, in all likelihood a dissociative identity disorder. In addition, there are indications of chronic PTSD complaints. If left untreated, there is a significant risk of recidivism and repetition of criminal offences. Boon argues that at times the accused is not able to determine her will in moral freedom and is therefore not or strongly reduced insanity susceptible (the court of appeal understands: not or strongly reduced insanity).

– from the report of the psychiatric investigation dated 10 February 2013, drawn up and signed by D.W.G.M. Tijdink, psychiatrist:

The conclusion of this rapporteur is that there is clearly a serious chronic dissociative disorder, most likely a dissociative identity disorder. This is evidenced by the chronic dissociative and post-traumatic stress disorder symptoms described by the suspect. Tijdink shares the conclusion of the earlier rapporteurs Brand and Boon that specialised treatment would be desirable for the dissociative identity disorder, partly in order to prevent the repetition of dangerous behaviour in a different state of consciousness (so-called dissociative identities associated with this disorder).

– from the ProJustice report dated 11 July 2013, drawn up and signed by
P.E. Geurkink, forensic psychologist:

Suspect is suffering from a sickly mental disorder in the sense of a dysthyme disorder and sometimes even a depression in the narrow sense and a dissociative disorder (not otherwise described). In view of her mental condition and the established pathology, it is quite possible, if the accused is proven, that in a period of more or less dissociation the accused has come to the accused’s charge. The accused should at least be regarded as being less accountable. If the accused is not treated for her serious combined pathology, there is a high risk of recidivism. Safe and adequate treatment can only take place in the context of a placement with a government nursing order.

– from the ProJustice report dated 11 July 2013, drawn up and signed by
J.M.J.F. Offermans, psychiatrist:

There is no question of a personality disorder. There is a combination of a dissociative disorder (not described otherwise) and a dysthyme disorder, in which at times episodes of a depression are superimposed in a narrower sense. However, it cannot be ruled out that there is a dissociative identity disorder. This was also the case at the time of the indictment and the conclusion is that the accused can at least be considered to be less accountable, if the fact is proven. The nature of the suspect’s psychopathology and in particular the dissociative disorder require a long-term, intensive and specific treatment. The advice is to impose the provision of care by means of a government order.

Court assessment: is there a dissociative disorder/dissociative identity disorder?
The experts Rijnders and Muller on the one hand and Offermans and Geurkink on the other – all four working for the NIFP – differ in their opinion regarding the presence of a dissociative disorder or a dissociative identity disorder among the suspects.

From 6 May to 23 June 2010, the accused stayed in the Pieter Baan Centre – relatively shortly after the indictment – and was observed there. An extensive environmental investigation was also carried out.

The court of appeal first of all states that friends, colleagues and family did not report any facts and circumstances from which it would follow that in the (frequent) contact with the accused, they ever made observations that lead to the thought of a dissociative disorder. This therefore applies to the people who had seen and experienced her more or less intensively for a longer period of time prior to the crime.

At the time of earlier medical treatment for depressive complaints, the accused did not report any complaints that fit in with a dissociative disorder, such as amnesia, insomnia, hearing of voices, depersonalisation or derealisation either.

Within the framework of an investigation by the police, during the hearings of the court and the court of appeal, as well as towards the aforementioned rapporteurs, the accused did not disclose the facts and circumstances of the offence. She has stated that she has no memory of this.

Rijnders, Muller, Tijdink, Offermans and Geurkink were heard extensively as expert witnesses at the hearing on appeal. They were given the opportunity to respond to each other’s points of view and opinions.

Tijdink, who works as a treating psychiatrist in a psychiatric centre, stated – on the basis of what the accused himself stated in a conversation with her, namely that the accused suffers from amnesia, voices and insomnia – that he has come to the conclusion that the accused suffers from a serious chronic dissociative disorder, most likely a dissociative disorder of identity. Tijdink passed on her findings to Offermans by telephone.

Both Offermans and Geurkink indicated at the hearing that they had little experience in the field of dissociative disorders. Geurkink has integrated the results of the studies of Boon and Tijdink with his clinical research findings in relation to suspects. Offermans has linked his own clinical findings to the conclusion of Tijdink.

During the hearing, Rijnders emphasised that the phenomenon of dissociative disorder is a controversial and much-discussed disorder in science. Nevertheless, both Muller and he included the possibility that the defendant might suffer from this disorder as a working hypothesis in the investigation at the Pieter Baan Centre. They have ruled out this possibility on the basis of their investigation.

During the hearing, Rijnders also pointed out that Tijdink is not a forensic psychiatrist who assesses and verifies statements/communications/presentations of a suspect or falsifies them as is customary in the forensic behaviour report. Tijdink is a GZ psychiatrist who can make a diagnosis as a starting point for a treatment. Tijdink investigated the accused from the point of view of the practitioner and took the complaints made by the accused as a starting point for her diagnosis. In addition, according to Rijnders, the suspect’s amnesia could also be explained by her depression and that hearing voices, if any, could be pseudo-hallucinations.

In view of the above, the Court of Appeal attaches more value to the point of view of the rapporteurs of the Pieter Baan Centre than to the point of view of the other experts and takes the report of the PBC in combination with the explanation given thereon as a starting point at the hearing. The Court of Appeal is of the opinion that the accused does not have a dissociative disorder, or a dissociative identity disorder.

Court assessment: dysthyme disorder
The Court of Appeal established that both the rapporteurs of the Pieter Baan Centre and the rapporteurs pro justitia Offermans and Geurkink came to the conclusion that the defendant is suffering from a pathological disorder of his mental faculties in the form of a dysthyme disorder and that this was also the case at the time of the indictment. The court of appeal has adopted this opinion.

Conclusion of the court
The Court considers it plausible that the proven fact can not be fully attributed to the defendant because of its existing dysthyme disorder. The court of appeal cannot determine to what extent the accused can be held accountable. This means that the criminality of the accused is not or not completely excluded.

Sanction and/or measure

The Public Prosecutor has demanded that the defendant be sentenced to 23 years in prison for murder.

The Utrecht District Court sentenced the accused to 18 years imprisonment for murder.

The Advocate General has demanded that the accused, also for murder, be sentenced to 12 years’ imprisonment and making her available with compulsory prosecution, as the accused must at least be considered to be less accountable. In the alternative, the Advocate General has demanded a prison term of 23 years, if the Court is of the opinion that the accused is fully accountable.

The punishment to be reported below is in accordance with the nature and the seriousness of the proven offence and the circumstances under which it was committed, also taking into account the person of the accused, as has been shown during the investigation at the hearing.

With regard to the seriousness of the fact, the Court of Appeal considers that the defendant killed Narges Achikzei, a young woman of 23 years old who was in the prime of her life and was about to get married, in a horrible manner. At a carefully chosen moment, the defendant poured motor gasoline over Narges Achikzei and set her on fire. The pain and fear that Narges Achikzei must have felt cannot be expressed in words. The file contains statements from ambulance staff who have provided assistance to Narges Achikzei. One of them describes the panic in her eyes and her screams of pain. From her eyes and the fear he could see that she was still clear and by knowledge. He declares: “She must have seen in my eyes that there was not much hope”.44

The action of the accused is a cruel act which many cannot imagine that one person would be able to do to another person. Although the pain and fear of Narges Achikzei were foreseeable, the accused did not allow herself to be restrained by this.

In addition, setting fire to Narges had an enormous impact on the residents of the apartment and other persons who found Narges Achikzei while she was on fire. She was hopelessly lost and people have tried to cool her with water, which later turns out to be in vain. Narges Achikzei’s fiancée also heard her scream on the phone when she was set on fire. His fear of what happened to Narges Achikzei at that moment and the panic in her voice must have been unbearable for him and causes to this day a great trauma.

To the relatives of Narges Achikzei is irreparable, unbearable and inflicted lifelong suffering. This is also evident from the statements made at the hearing by her mother, sister, aunt and fiancée. They will have to miss their beloved family member and fiancée forever at the hands of the suspect.

In addition, the accused did not make any statement about the motive for her act and did not provide any transparency. This is the last chance for the next of kin to hear a statement from the accused. Until now it has been guessing about a motive, although there are some indications in the file that the defendant may have been jealous of Narges Achikzei. Due to the defendant’s silence, it will be even more difficult for the next of kin to process the irreparable loss.

Moreover, because the defendant chose to kill Narges Achikzei, it was impossible for the next of kin to say a dignified goodbye to their loved one. Narges Achikzei’s skin was 80% burnt to the bone, causing her body to be mutilated beyond recognition.

The defendant not only took the life of a young woman in a gruesome way, but also destroyed the lives of, among others, her close relatives and her future husband. The death of Narges Achikzei has not only caused great commotion in her family and acquaintances, but also in her living environment. The reports in the media, including those about the entire criminal process, show that society in general is also seriously shocked by this crime and that this crime has contributed to general feelings of insecurity. From the point of view of retaliation and security of society, the court considers a long term prison sentence to be appropriate.

The court of appeal is of the opinion that in addition to a prison sentence, the measure of conversion to compulsory prosecution should also be imposed. After all, during the commission of the offence the accused was suffering from a sickly mental disorder. This disorder is so serious that from a security point of view it is irresponsible to let the accused return to society untreated after detention. The offence committed by the accused is a crime that is directed against the inviolability of the body of one or more persons and for which, according to the legal description, a prison sentence of four years or more has been set.

The court of appeal will therefore order the placement of a person with a governmental nursing order, now that the safety of others or the general safety of persons requires this nursing.

The court of appeal sees no reason to impose a lower prison sentence for the reason that the so-called Fokkens regulation has been abolished (which made it possible for treatment to start earlier than after the serving of an imposed prison sentence) or because the medical necessity for a quick start of the treatment of the accused would be at issue.

Nor does the court of appeal see any reason in the person of the accused to include in this judgment an advice (as referred to in Article 37b paragraph 2 of the Penal Code) about the time at which the posting with nursing by the government should start, as has been argued by the counsel.

This means that in principle the treatment within the framework of the provision measure will only start at the moment that two thirds of the prison sentence has been served.

Considering everything, the court of appeal comes to the opinion that a prison sentence of twelve years is appropriate and necessary (with deduction of the time the accused has spent in pre-trial detention) as well as the imposition of a placement order with the order that she be cared for by the authorities.

Applicable statutory provisions

The court of appeal has considered Articles 37a, 37b and 289 of the Penal Code.

These provisions have been applied, as they applied at the time of the declaration of evidence.

Decision

The court:

Annuls the decision of which it has appealed and does justice again:

Declares, as considered above, proven that the accused committed the primary accusation.

Declares not proven what has been charged to the accused more or differently than has been proven above and acquits the accused thereof.

Declares that the primary proven proven is punishable, qualifies this as mentioned above and declares the accused to be punishable.

Condemns the accused to a prison sentence for a period of 12 (twelve) years.

Recommends that the time spent by the accused prior to the execution of this judgment in any form of pre-trial detention as referred to in Article 27(1) of the Penal Code shall be deducted from the execution of the imprisonment imposed, insofar as this time has not already been deducted from any other penalty.

Orders that the accused be made available and orders that she be cared for by the authorities.

Orders the custody on behalf of the rightholder of the seized, not yet returned object, that is to say:
a green winter coat, trademark H&M.

Thus pointed out by

Mr. M.J. Stolwerk, chairman,

Mr M.L.H.E. Roessingh-Bakels and Mr R. de Groot, counselors,

in the presence of E.S. van Soest, Registrar,

and pronounced in open court on 14 August 2013.

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1 In the means of proof to be reported below, reference is always made to the appendices to the official report, numbered PL0981/09-020307, drawn up in the legal form, closed and signed on 4 June 2010. Insofar as reference is made below to the forensic file, reference is made to the appendices to the official report numbered PL0920/09-369599, drawn up in the legal form, called Forensic File, closed and signed on 28 May 2010.

2 Report of findings drawn up on 24 December 2009 by E. Polman, reporting agent (page 170).

3 Report of findings drawn up on 7 December 2009 by K.A. van Cooten, police superintendent (pages 84-86).

4 Minutes drawn up on 4 June 2010 by A. Schuurman, Brigadier, Police Investigator (page 19).

5 The expert report numbered 2009-452/R067, drawn up by Dr. R. Visser, working as a permanent judicial expert at the Netherlands Forensic Institute in The Hague, closed and signed on 30 March 2010 (forensic file, page 17-18).

6 Technical investigation report drawn up on 1 February 2010 by H. de Bruin, police sergeant and C.D. Gieling-Erkelens police chief officer (forensic file, page 199).

7 Technical investigation report drawn up on 1 February 2010 by H. de Bruin, police sergeant and C.D. Gieling-Erkelens police chief officer (forensic file, page 200).

8 Technical investigation report drawn up on 1 February 2010 by H. de Bruin, police sergeant and C.D. Gieling-Erkelens police chief officer (forensic file, page 200).

9 Expert report numbered 2009.12.08.005, drawn up by L.J.C. Peschier, working as a permanent judicial expert at the Netherlands Forensic Institute in The Hague, closed and signed on 15 December 2009 (forensic file, page 27).

10 Expert report numbered 2009.12.08.005 application 007, drawn up by L.H.J. Aarts, employed as a permanent judicial expert at the Netherlands Forensic Institute in The Hague, closed and signed on 24 March 2010 (forensic file, page 47).

11 Expert report numbered 2009.12.08.005 application 007, drawn up by L.H.J. Aarts, working as a permanent judicial expert at the Netherlands Forensic Institute in The Hague, closed and signed on 24 March 2010 (forensic file, page 47).

12 Procès-verbal of findings of 23 March 2010 drawn up by G. Kooijman, Detective Sergeant of the Police (page 109).

13 Report of findings of 23 March 2010 drawn up by G. Kooijman, Detective Sergeant of the Police (page 111).

14 Procès-verbal of findings of 23 March 2010 drawn up by G. Kooijman, Detective Sergeant of the Police (pages 112-115).

15 Report of findings of 23 March 2010 drawn up by G. Kooijman, Detective Sergeant of the Police (page 116).

16 Report of findings of 23 March 2010 drawn up by G. Kooijman, Detective Sergeant of the Police (page 117).

17 Procès-verbal of findings 23 March 2010 drawn up by G. Kooijman, Detective Sergeant of the Police (page 118).

18 Procès-verbal of findings of 23 March 2010 drawn up by G. Kooijman, Detective Sergeant of the Police (page 120).

19 Procès-verbal of findings of 23 March 2010 drawn up by G. Kooijman, Detective Sergeant of the Police (page 121).

20 Procès-verbal of findings of 23 March 2010 drawn up by G. Kooijman, Detective Sergeant of the Police (page 122).

21 Procès-verbal of findings of 23 March 2010 drawn up by G. Kooijman, Detective Sergeant of the Police (page 123).

22 Procès-verbal of findings of 2 February 2010 drawn up by G. Kooijman, Detective Sergeant of the Police (page 192).

23 Minutes of the hearing of witnesses [witness 2] of 11 February 2011 drawn up by L. Ferwerda, police sergeant (page 2495).

24 Minutes of the hearing of witnesses [witness 3] of 23 March 2011 drawn up by Th.J. de Bruin and J.P. Zambeek, both police brigadier (page 2534).

25 Procès-verbal of findings containing the statement of witness [witness 4] of 10 April 2010 drawn up by T.J. de Bruin, police sergeant (page 2589).

26 Procès-verbal of findings of 24 January 2010 drawn up by L.J.F. Verhoeven and G.A.J.M. van der Pluym, both police brigadier (page 2713).

27 Minutes at the hearing of 17 July 2013 containing the statement of the accused.

28 Expert report numbered 2009.12.08.005 application 006, drawn up by H.N.J.M. van Venrooij, employed as a permanent judicial expert at the Netherlands Forensic Institute in The Hague, closed and signed on 15 April 2010 (forensic file, page 86).

29 Procès-verbal of findings of 18 March 2010 drawn up by Th.J. de Bruin, police detective sergeant (page 227) and the appendix to the expert report numbered 2009.12.08.005 application 006, drawn up by H.N.J.M. van Venrooij, employed as a permanent judicial expert at the Netherlands Forensic Institute in The Hague, closed and signed on 15 April 2010 (forensic file, page 87), insofar as it contained a letter from M. Brecht, the accused’s general practitioner dated 4 February 2010 (forensic file, page 87).

30 Appendix to the expert report numbered 2009.12.08.005 application 006, drawn up by H.N.J.M. van Venrooij, working as a permanent judicial expert at the Netherlands Forensic Institute in The Hague, closed and signed on 15 April 2010 (forensic file, page 87), insofar as it contains a letter from Dr. H. Boxma and J. Dokter to the accused’s general practitioner dated 23 November 2009 and 30 December 2009, respectively (forensic file, page 88).

31 Procès-verbal of findings of 26 January 2010 drawn up by T.J. de Bruin and
J.R. Nieuwerf, both police sergeant (page 226).

32 Minutes of the hearing of witness [witness 5] of 29 January 2010 drawn up by J.R. Nieuwerf and J.P. Zambeek, both police brigadier (pages 2391-2392).

33 Minutes of the hearing of witnesses [witness 6] of 29 January 2010 drawn up by
R.W.A.E. van den Dungen and J.R. Nieuwerf, respectively agent and brigadier of police (page 2463).

34 Minutes of the hearing of witness [witness 6] of 18 March 2010 drawn up by E. Fidanci and D.J. Vermeer-Haandrikman, both police brigadier (page 2468).

35 Minutes of the hearing of witnesses [witness 7] of 17 February 2010 drawn up by
E. Fidanci, Police Sergeant (page 2507).

36 The appendix to the expert report numbered 2009.12.08.005 application 006, drawn up by H.N.J.M. van Venrooij, employed as a permanent judicial expert at the Nederlands Forensisch Instituut (Netherlands Forensic Institute) in The Hague, closed and signed on 15 April 2010 (forensic file, page 87), to the extent that it contains a letter from M. Brecht, the accused’s general practitioner, dated 4 February 2010 (forensic file, page 87).

37 Minutes of the hearing of witness [witness 5] of 25 January 2010 drawn up by Th.J. de Bruin and J.R. Nieuwerf, both police brigadier (page 2387).

38 Minutes of the hearing of witness [witness 11] of 29 January 2010 drawn up by J.R. Nieuwerf and R.W.A.E. van den Dungen, both police brigadier (page 2426).

39 Minutes of the hearing of witnesses [witness 12] of 18 February 2010 drawn up by
J.R. Nieuwerf and J.P. Zambeek, both police brigadier (page 2443).

40 Minutes of the hearing of witnesses [witness 6] of 29 January 2010 drawn up by
R.W.A.E. van den Dungen and J.R. Nieuwerf, respectively police officer and brigadier (page 2463) and official report of the hearing of witnesses [witness 6] of 18 March 2010 drawn up by
E. Fidanci and D.J. Vermeer-Haandrikman, both police brigadier (page 2469).

41 Minutes of the hearing of witnesses [witness 8] of 25 January 2010 drawn up by
L. Ferwerda and G.P.C. van der Plas, both police brigadier (page 2452).

42 Minutes of the hearing of witnesses [witness 9] of 25 January 2010 drawn up by
L. Ferwerda and G.P.C. van der Plas, both police brigadier (page 2456).

43 Minutes of the hearing of witnesses [witness 10] of 26 January 2010 drawn up by
E. Polman and L. Ferwerda, both police sergeants (page 2460).

44 Minutes of the hearing of witnesses [witness 13] of 21 December 2009 drawn up by
L. Ferwerda and E. Fidanci, both police sergeants (page 2460).