ECLI:NL:RBMNE:2017:6241

Transcription

1 ECLI:NL:RBMNE:2017:6241 Authority District Court of Midden-Nederland Date decision Date publication Case number C/16/ / HA RK ; C/16/ / HA RK Legal area Special features Indication of the content Civil law Court order Bandidos Motorcycle Club Holland (BMC) has been banned and disbanded because the club is contrary to public order. In addition, the court decided that the activities of the foreign cooperative are contrary to public order. This was decided today by the district court of Midden-Nederland in civil proceedings in which the Public Prosecution Service had submitted two applications to the court, one against the international motorcycle club and one against the Dutch division of BMC. This decision means that the presence of the Bandidos, in whatever form, is prohibited in the Netherlands with immediate effect. The court decided that BMC and BMC Holland are (informal) associations. BMC uses the same name, website, and club attire worldwide. Members everywhere are subject to highly similar rules and can participate in worldwide events. Holland is mentioned on the international website. In the Netherlands too joint rules apply and national meetings are held that are attended by members of different chapters. The Bandidos characterize themselves as lawless and use slogans containing violent messages. The club s culture promotes the commission of (serious) violence. The lawlessness exists in actual practice, given the number of members involved in criminal offences. The focus on committing and promoting violence also comes to the fore in the rewards in the form of decorations patches such as the expect no mercy patch, which is awarded after serious violence has been committed. The court judged that the culture of the Bandidos and the ensuing behaviour is fundamental. A ban is therefore required to protect society. The ban goes hand in hand with disbandment. Now that BMC Holland has been banned, the club s finances must be liquidated by a liquidator. Parties can propose a liquidator. Source Rechtspraak.nl Decision

2 Court order COURT OF MIDDEN-NEDERLAND Commercial civil-law sector Location: Utrecht Case number / application number: C/16/ / HA RK Case number / application number: C/16/ / HA RK Decision dated 20 December 2017 in the case of the PUBLIC PROSECUTION SERVICE, choosing its address for service in Rotterdam, applicant, vs the informal association THE DUTCH DIVISION OF THE BANDIDOS MOTORCYCLE CLUB, without recognized place of domicile, defendant, failed to appear, and in the case of the PUBLIC PROSECUTION SERVICE, choosing its address for service in Rotterdam, applicant, vs the foreign cooperative BANDIDOS MOTORCYCLE CLUB, place of domicile unknown, defendant, failed to appear

3 1 The procedures 1.1. The Public Prosecution Service (hereinafter referred to as PPS) submitted an application against the informal association The Dutch Division of the Bandidos Motorcycle Club (hereinafter referred to as BMC Holland) and an application against the foreign cooperative Bandidos Motorcycle Club (hereinafter referred to as BMC). No address details are known for either defendant In the case against BMC Holland, BMC Holland was summoned by means of a registered letter addressed to Bandidos MC Sittard (hereinafter referred to as BMC Sittard), at the address of [A], president of BMC Sittard, and by means of a message in the Government Gazette. Although summoned in the appropriate manner, BMC Holland failed to appear. BMC Sittard came forward as stakeholder in this case and was designated as such In the case against BMC, BMC was summoned by means of a registered letter addressed to Bandidos MC, at the address of [B], president of Bandidos Motorcycle Club Federation Europe, (hereinafter referred to as BMC Europe), by means of an to an address of Bandidos MC in the United States of America, by means of a contact form on the website with the following address: and by means of a message in the Government Gazette. Although summoned in the appropriate manner, BMC failed to appear. BMC Europe came forward as stakeholder in this case and was designated as such BMC Sittard filed a defence in the case of BMC Holland and BMC Europe did the same in the case against BMC The applications were heard simultaneously during the sessions on 3 October 2017 and 6 October 2017, of which official reports were drawn up In conclusion, the court determined that it would pronounce a decision on 20 December The court officially consolidated the applications. 2 The applications 2.1. Pursuant to Book 2, Section 20 2 of the Dutch Civil Code (hereinafter referred to as CC), PPS requests the court, to ban and disband BMC Holland by provisionally enforceable order, to appoint a liquidator and to order any potential credit balance after settlement to be paid to the State of the Netherlands Pursuant to Book 10, Section 122 CC, PPS requests the court to rule by provisionally enforceable order that the activities of BMC are contrary to public order within the meaning of Book 2, Section 20 CC BMC Sittard filed a defence against the request mentioned under 2.1 and BMC Europe filed a defence against the request under 2.2. In as far as necessary for the assessment of the applications, the court will subsequently address the arguments of PPS, BMC Sittard and BMC Europe. 3 The assessment Introduction 3.1. The Bandidos Motorcycle Club was established in the United States of America in Initially, there were only chapters (divisions) of Bandidos members in North and South America. Later, chapters were formed in Australia, Europe and Asia. In 2014, a chapter was established in Sittard,

4 the Netherlands, followed by chapters in Alkmaar, Utrecht, and Nijmegen, with, in total, a few dozen members. The Alkmaar chapter was recently closed. There are over 200 Bandidos chapters worldwide with a total of over 2,500 members To substantiate its applications, PPS argues that Bandidos culture focuses on the commission of serious criminal offences, in particular drugs and weapons-related crimes, extortion, facilitating and stimulating these crimes, and infringing on the rights and liberties of others and its own members. According to PPS, the activities of BMC and BMC Holland are therefore contrary to public order. The applications of PPS aim to permanently terminate the presence of Bandidos in the Netherlands BMC Sittard and BMC Europe primarily argue that BMC and BMC Holland, the informal legal entities designated as defendants by PPS, do not exist and that PPS therefore has no cause for action. In addition, they argue that BMC Europe, the regional federations and the chapters are each individually responsible and independent (informal) legal entities. In so far as the application were to be aimed at BMC Utrecht and at chapters in Russia, Serbia and Ukraine, this court might be competent. But in their opinion, the court has no jurisdiction with regard to the other chapters, the regional federations and BMC Europe. Secondarily, BMC Sittard and BMC Europe deny that structural criminality and structural violence are considered normal within the Bandidos, and that BMC Europe, the regional federations, and/or local chapters incite this. The criminal offences committed by individual Bandidos members cannot be attributed to the BMC they are part of. Many of the activities asserted by PPS have not been established. In so far as there may have been problem chapters, this was not the result of the Bandidos as a whole having criminal leanings. In those cases, the chapters misbehaved under the influence of individual criminal leaders and/or a number of criminal members. BMC Europe does not accept such criminal clubs and takes measures against them, as far as this is in its power. Jurisdiction 3.4. The court will first determine whether the Dutch courts have jurisdiction in the case against BMC. BMC Europe s argument that this court is not competent with regard to BMC Europe, the regional federations and most European chapters can remain undiscussed, because the applications of PPS are not aimed against these organizations The court shares PPS s view that the Brussels II Regulation i and the EVEX II ii do not apply in the case against BMC. The material scope of the Brussels II Regulation and the EVEX II involves civil and trade disputes, pursuant to Section 1. According to established case law of the Court of Justice of the European Union, the wording that defines the material scope of the EC Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters and the Brussels II Regulation should be interpreted autonomously on the basis of the objectives and the system of the convention or the regulation in question on the one hand, and the general principles found in the legal systems of the joint member states on the other. This interpretation, which also applies to the EVEX II, entails that certain matters fall outside the scope of the material scope of the Brussels II Regulation and the EVEX II, because of the nature of the legal relationship between the parties, or the nature of the object of the dispute. A legal relationship between a government body and a natural person or legal entity may fall within the material scope, but does not if the government body acts on the basis of exclusive public powers. The latter is the situation in this case. PPS, a government body, uses a power that falls outside the scope of the regulations that generally apply to relationships under civil law between natural persons or legal entities in the member states of the European Union. The present application is pre-eminently an instrument for the implementation of a government task, namely maintaining public order in the Netherlands, and within the meaning of Book 22, Section 122 CC it can solely be submitted by PPS This means that the Dutch court has jurisdiction on the basis of Section 3, opening words and sub a, of the Code of Civil Procedure (CP), as PPS has its domicile in the Netherlands.

5 Existence of BMC 3.7. BMC Europe argues that BMC does not or no longer exist, and that for this reason, PPS has no case. The Bandidos were established in the United States of America in 1966, and from there spread out over the various continents. Until 1997, the Bandidos actually functioned as a single unit or a worldwide partnership, with the American continent being predominant, according to BMC Europe. In 1997, the first substantial separation took place between the clubs on the various continents, with each continent getting its own president and own powers. From that time on, Australia and Europe could steer their own course. In 2005, the president of the Bandidos in the USA wanted to reverse the separation, but the other continents did not want to give up their independence and refused. This led to the permanent separation from the Bandidos USA and the unbundling of the clubs on the different continents, effective from 17 July From 1997, and in any case from 2007, a worldwide organization or a worldwide partnership no longer existed, according to BMC Europe. The Bandidos in Asia and Australia also went their own way, after the National President Europe had provided some administrative support to the Bandidos in Asia for a while. The European federation, BMC Europe s organizational structure, is therefore fully independent from BMCs on other continents, and exclusively focused on Europe. Of course, to a certain extent Bandidos all over the world present a uniform image, but this does not mean that there is a single worldwide organization, according to BMC Europe On this subject, the court finds as follows: BMC can be considered a cooperative within the meaning of Book 10, Section 122 CC if it presents itself as an independent unit or organization (see Book 10, Section 117, opening words and sub a, CC). Legislative history interprets this as follows: the term cooperative is a catch-all term with a broad spectrum of interpretations for those bodies and partnerships that present themselves as such, and are recognized as such by the court, whether or not as legal entities. [ ] It is not required that an authority is present that bears rights and obligations, can perform legal acts or can legally represent the entity: it suffices that a partnership that is not a legal entity presents itself as an independent unit, which does not necessarily entail economic or commercial independence. In other words, the question in this case is whether BMC presents itself as an independent unit. The fact that BMC Europe, BMC USA and BMC Australasia are organizationally entirely or largely independent from each other and that there are no financial ties between the continents (which the court assumes) does play a role when answering the question whether BMC presents itself as an independent unit, but is not of decisive importance. In addition, the sole fact that BMC Europe, BMC USA and BMC Australasia (also) present themselves as independent units, does not necessarily mean that BMC is not an independent unit or organization, as an independent entity can be a partnership of separate entities The court is unable to determine whether there is an (actual) BMC board, which has control of the BMCs on the various continents with regard to one or more subjects. But again, this in itself does not provide an answer to the question whether BMC can be considered a body or partnership that presents itself as an independent unit, as agreements or harmonization of actual conduct between independent organizations may give rise to the opinion that a body or partnership that presents itself as an independent unit actually exists. Such a (broad) interpretation of the term cooperative suits the essence and the purpose of the procedure in Book 10, Section 122 CC, as comes to the fore in legislative history, namely stopping foreign cooperatives from developing unacceptable activities in the Netherlands The court is of the opinion that BMC presents itself as a single independent worldwide motorcycle club. This is evident from the following facts and circumstances, viewed in conjunction: BMC uses the same name worldwide: Bandidos MC BMC has a website with the name Bandidos MC ( The website mentions all countries in the world with Bandidos chapters, and the different chapters can be contacted via links on the website. The website describes joint activities and presents news about chapters worldwide, such as the announcement that BMC has a new chapter in Belgium. Only members of a chapter affiliated with BMC USA, BMC Europe or BMC Australasia are allowed to

6 wear the Bandidos club attire, which is the same worldwide. This usually entails sleeveless leather vests in the club colours, with the name Bandidos MC written on them, and the same types of symbols. These symbols have the same meaning within the BMC. In addition, the same slogans are used by BMC members worldwide. Everywhere in the world, the members are subject to the same or highly similar rules, including the rule that third parties are not allowed to wear Bandidos club attire. These rules also become apparent in the Bible of the Bandidos Motorcycleclub Europe, which, according to BMC Europe, described the rules for the European federation until 16 January In addition, the Bible of Australasia was presented ( Bandidos Motorcycle Club Australasia Ltd. club rules), which, according to BMC Europe, applies to Bandidos chapters in Australia and Asia. According to these Bibles, the rules apply to all members of all Bandidos chapters in Europe, Australia and Asia. The Bibles contain similar requirements for becoming a full member of the Bandidos: to achieve this, prospects must go through several stages. The Bibles also contain prescribed functions within the various chapters, applying both locally and on each continent: president, vice-president, sergeant at arms, road captain, etc. The names of the functions in the Bibles are identical. In addition it has been established that the rules of the local chapters in Europe are not to be contrary to the rules drawn up by the continent division. According to BMC Europe, these rules could be found in said Bible of the Bandidos Motorcycleclub Europe until 16 January 2016, and after that in the Statutes of the Bandidos Motorcycleclub Federation Europe. To enable the enforcement of these rules, the continent division in Europe, for instance, has the power to close chapters and has the right to veto the establishment of local chapters. Worldwide events are organized. This is evident, for instance, from a report about the NATIONAL RUN 2017 at a Swedish Bandidos website ( which states: It was good to see all the brothers from the world!! [ ] But we can see what we are, and we are the best Motorcycle Club in the world [ ]. Bandidos members also consider themselves members of a worldwide BMC motorcycle club. The 2014/2015 edition of the Bible of the Bandidos Motorcycleclub Europe states, for instance: The Bandidos Motorcycleclub is now a worldwide biker brotherhood, being the best and strongest of all 1%er Motorcycle Clubs worldwide. The Bandidos in Europe, Asia and Australia use the European server. On this server, which is located in Denmark, the police found documents that involve these continents. iii Based on the above facts and circumstances, the court arrived at the opinion the BMC presents itself as an independent unit, despite the fact that national and local chapters also present themselves as independent units, and despite the separation between the Bandidos in the US and the Bandidos on the other continents. This notwithstanding the fact that BMC USA, BMC Europe and BMC Australasia have a decisive influence on how the Bandidos manifest themselves on their own continents. In fact, each continent also presents itself as part of the worldwide Bandidos brotherhood. In addition, the facts and circumstances in 3.10 show that the influence of the continents apparently has not changed the organization, rules and/or actual conduct of BMC. Existence of BMC Holland Notwithstanding the above, the question must be answered whether BMC Holland, the Dutch entity alleged by PPS, exists as an informal association, as PPS submitted an independent application vs BMC Holland, pursuant to Book 2, Section 20 CC BMC Sittard is of the opinion that the informal BMC Holland association does not exist and, summarized, explains this point of view as follows: From the beginning of 2016, the European federation has consisted of regional federations, the regional chapters, each representing the local chapters in a particular part of Europe (Northern Scandinavia, Central Scandinavia, Southern Scandinavia, East Central, West Central, South Central, Central South, Western South, Central East and Deep South). The three remaining local chapters in the Netherlands are represented by the West Central regional chapter. Therefore, a national BMC like BMC Holland does not fit in the new organizational structure of the European federation. In addition, all local chapters, and therefore the three Dutch local chapters too, are fully independent from each other. The Dutch local chapters were and still are in contact with each other, via the monthly meeting of chapters for instance, but this does not mean that an informal BMC Holland association exists.

7 3.14. The court finds as follows: An informal association is a legal entity within the meaning of Book 2, Section 20 CC. BMC Holland can be designated an informal association if it presents itself as an organizational unit of persons (members). The court agrees with PPS that this is the case, based on the following facts and circumstances, considered in conjunction: The website with the name Bandidos MC (bandidosmc.com) contains an overview of all countries where BMC is active. Holland is mentioned in this overview. Holland can be contacted via a link. There is also a Bandidos Holland Facebook page. During searches, the police found lists of names, which in all likelihood are the names of the members of the Dutch chapters. [A], president of BMC Sittard, has a certain degree of authority over the Dutch chapters. This became evident from the fact that he announced the establishment of a new Dutch chapter, BMC Utrecht, in 2016; the minutes of various Holland meetings ; and an dated 28 April 2016 from BMC Sittard to the address where information for the European Bandidos newsletter can be submitted, which states that all contacts regarding information about Holland [ ] [will go] true [which should be taken to mean through ] chapter Sittard. A monthly Holland meeting takes place at BMC Sittard s, a meeting that is not just attended by members of BMC Sittard, but also by members of the other Dutch chapters. The newsletters PPS submitted as evidence show that joint meetings (with the Alkmaar and Utrecht chapters) do indeed take place. BMC Sittard has drawn up so-called Holland rules, which apparently also apply to (the members of) the other Dutch chapters. The court does not follow BMC Sittard s statement that these rules were drawn up at a time that BMC Sittard was the only Dutch chapter, and therefore solely apply to BMC Sittard. This is because the Holland Rules state, inter alia: All applications are handled by Chapter sittard. If we have something made with regard to bandidos holland, for an anniversary or similar festivities, this will be shared by the chapters holland. In 2015, BMC Sittard and BMC Alkmaar had a joint inventory of patches. iv The list was found during a house search. In public spaces, the Bandidos in the Netherlands often wear their colours with bottom rocker v HOLLAND. Said inventory mentions a number of 9+15, so 24, of these bottom rockers. A receipt shows that BMC Holland paid a sum of 1, to a law firm. And there are other ways in which the Dutch Bandidos members/the Dutch chapters present themselves as a single organizational unit, for instance as a sponsor The circumstance that the local chapters can be designated informal associations does not impede the designation of BMC Holland as informal association. The change in the organizational structure, which according to BMC Europe and BMC Sittard took effect on 16 January 2016, does not alter this. The court does not offer an opinion on whether there actually was such a change in organizational structure, or whether as PPS purported based on the minutes of the National meeting in Essen on 16 January 2016 a paper smokescreen was put up to protect the MC against government measures, such as a ban. Decisive is, of course, whether BMC Holland presents itself as an organizational unit of persons (members). Based on the aforementioned circumstances the court judged that this is the case Therefore, PPS has a case in both applications; both BMC and BMC Holland exist as cooperative and informal association, respectively. BMC Sittard s defence that this court is not competent with regard to BMC Sittard and/or BMC Nijmegen does not require discussion, as PPS s applications are not directed against BMC Sittard and/or BMC Nijmegen. Activities contrary to public order? Subsequently, the question must be addressed whether the activities of BMC and/or BMC Holland are contrary to public order. In this context, PPS states, summarized, the following: The intimidating and often violent way in which the Bandidos members and organization manifest themselves in society, and the way in which they close themselves off to any checks by the

8 authorities, and even actively oppose these, create a subculture of lawlessness. This subculture promotes and facilitates serious crime, including the commission of violence and drug trafficking. This leads to extremely serious (sometimes large-scale) violent incidents and major unrest in society. Thus the activities of the Bandidos pose a serious threat to public safety and public order. In addition, the Bandidos deny their own members the liberty to apply to the government for support and assistance, and the liberty to leave the club when they want to. This impedes fundamental rights of their own members In this context, BMC Sittard and BMC Europe state, summarized, the following: The picture outlined by PPS that incidents and crime are the order of the day at the Bandidos is incorrect. This picture has been formed and is maintained by the government. The majority of Bandidos members and chapters in Europe do not behave in a manner that should be prohibited. The minority, which did or does behave in a manner that should be prohibited, has already been banned or is being dealt with by BMC Europe. Commission of criminal offences by individual Bandidos members cannot be held against the local chapter they belong to, let alone against BMC Holland or BMC (worldwide). The prosecution of BMC Sittard members, a fact PPS partly bases its applications on, has not yet resulted in any convictions; the trial of these cases will not take place before Therefore, BMC Sittard requests to stay the hearing of these applications until the criminal court has passed sentence. Earlier, PPS outlined many incidents with Bandidos members abroad. However, these incidents do not show that Dutch society and public order are under any threat According to BMC Sittard and BMC Europe, the Bandidos do not have a subculture of lawlessness either. Other than PPS argues, the expect no mercy patch means that the Bandidos member wearing the patch suffered for the club; not that he used violence for the benefit of the club. And finally, the Bandidos do not violate fundamental rights of their own members. Bandidos members are, of course, at complete liberty to leave their chapter. The background of enjoining Bandidos members to observe secrecy when arrested is that the club or other Bandidos members should not be damaged. In addition, it should be considered that Bandidos members are rough guys who are not exactly fond of the authorities; if you are not obliged to do something for the authorities, you don t, which is the prevailing thought at the Bandidos, according to BMC Sittard and BMC Europe The court finds as follows: When answering the question whether the activities of BMC and/or BMC Holland is contrary to public order, the starting point is that Section 8 of the Constitution and Section 11 of the ECHR vi guarantee freedom of association and assembly as a basic principle of the democratic rule of law. Therefore, a ban on a Dutch legal entity pursuant to Book 2, Section 20 CC or a declaratory decision that the activities of a foreign cooperative are contrary to public order pursuant to Book 10, Section 122 CC, a declaration with similar consequences as a ban within the meaning of Book 2, Section 20 CC, is a serious infringement of this basic right that may only be applied in the most extreme cases. For the ban or declaration as intended above to be applied, more than socially undesirable behaviour must be involved. A ban or declaration as intended above should be seen as a necessary measure to prevent behaviour that forms an actual and serious infringement of vital basic principles of our legal system, and disrupts or may disrupt our society. vii Book 2, Section 20, subsection 1, CC should be interpreted in light of Section 8 of the Constitution and Section 11 of the ECHR. Based on Section 11, subsection 2, ECHR, exercising the right of association may only be subjected to limitations (i) provided for by law and (ii) required in a democratic society (iii) in the interest of national security, public safety, the prevention of disorderliness and criminal offences, the protection of public health or decency, or the protection of the rights and liberties of others. According to the case law of the European Court of Human Rights viii, the court should exercise restraint when answering the question whether the limitations are necessary, given the major importance of the freedom of association in a democratic society The legislative history of Book 2, Section 20 CC shows that the term activities is used in its normal factual meaning and therefore includes the activities the legal entity engages in and the words it speaks or writes on behalf of its organization. Basic principle is that solely acts of the legal entity itself can be considered as its own activities. When the legal entity itself is not directly involved in the activities of others in the sense that the (actual) board has managed them or

9 intentionally facilitated them, these acts can only be ascribed to the legal entity as its own activities if special facts and circumstances merit this. ix To determine the activities of BMC and BMC Holland, the court will first interpret the organization, rules and culture of the Bandidos as can be established in these cases on the basis of the statements and the documents submitted As was interpreted in 3.10, all BMC sections have an identical organizational structure in which members hold ranks. The available documents and police information present a picture of a closeknit and closed organization in which loyalty to the Bandidos is key. This not only applies to and within local chapters, but in all BMC sections, as is considered below. Prospects must go through various stages to become full members. It has also been established that it is prohibited for the rules of the local chapters in Europe to be contrary to the rules of the continent division. To enable enforcement, BMC Europe has the authority to close chapters, for instance, and has the right to veto the establishment of local chapters. The court also refers to a document of which PPS substantiated that it contains the minutes of the board meeting of BMC Europe on 16 January 2016, which state that The National office will make sure that the clubs standards are the same everywhere. The statement of the (former) president of BMC Regensburg also shows that within the organization, the sergeant at arms [is] responsible for the sanctioning/punishment of the own members, for actions and counteractions. He does not have to do this himself, but he has to coordinate it. All will be done in consultation with the president. The only thing the sergeant does independently, in other words: without consulting the president, is submitting the request to the sergeanto des armas when a member has earned the expect no mercy patch. [ ] The sergeanto des armas issues them in the region in question. The role and influence of the president and sergeant at arms is confirmed in a statement by the former president of BMC Alkmaar: The Bandidos law: President is not allowed to hit anyone, cannot do anything with drugs. I should be the leader, I m not allowed. That isn t my task. There are other people do to such things. [ ] Sergeant Arms arranges such things The Bandidos characterize themselves as an MC with a culture of lawlessness, an outlaw culture, as they consider themselves to be a 1% MC, and explicitly propagate this. The Bandidos openly wear the 1% sign; a sign that MCs and their members use to publicly show the outside world that they (are willing to) operate outside the law; that they are outlaws, for instance through their colours (by wearing the 1% patch) and on websites. [A], the president of BMC Sittard, even had the 1% sign tattooed on his face. The Bandidos also use the sign internally, for instance when specifying individual BMC members in newsletters and minutes. PPS included and substantiated these statements about the use and the meaning of the 1% sign with documentation; these were not contested by BMC Sittard or BMC Europe The Bandidos use slogans that contain messages of violence. The Bandidos use the slogan God forgives, Bandidos don t, abbreviated to GFBD, for instance, as a promise of revenge when they hear about Bandidos members who were injured or killed as a result of violence, and the slogan Snitches are a dying breed as a promise that betrayal will result in violence. BMC Sittard and BMC Europe s challenge of PPS s explanation of both slogans did not provide sufficient and concrete reasons PPS substantiated the allegation that the Bandidos culture of lawlessness is not just professed in words, but also in actual actions. A relatively large number of Bandidos members is involved in the commission of (serious) criminal offences, often in the fields of violence, threats, intimidation and extortion. The Bandidos accept this type of behaviour, while the structure and rules of their organization also display acceptance. This becomes clear, for instance, in the obligation of Bandidos members to claim the right to remain silent when arrested by the police, at least until a lawyer is present. The background of this obligation presented by BMC Sittard and BMC Europe at the hearing, namely that other Bandidos members or clubs should not be damaged (read: should not get them into trouble with the law) is significant in this context. This also becomes apparent from the fact that they maintain jail lists, lists of the names of Bandidos members who are in jail, and jail funds, funds that are used to support these members, and, time and again, recall Bandidos

10 members serving prison sentences in newsletters and in other ways. Members who cooperate with the police are expelled from the club, which may also involve violence. To show this, PPS has given the following (uncontested) example: when the police asked a BMC Sittard member about what would happen if he broke the rules and talked, the member moved his hand over his throat as if he were slitting it. In addition, the police stated that on 26 November 2014, a BMC Alkmaar member stated to the police that he did not want to make a statement to the police about a threat within Bandidos. He said that if he were to say anything, they would maybe put two of them inside, but that would still leave 6000 of them outside The focus of the Bandidos on committing violence, and the promotion of violence by the BMC organization becomes clear from the fact that the commission of violence is rewarded by patches or promotion in rank. The most prominent of these is the expect no mercy patch. This patch is issued as a reward to Bandidos members who have committed (serious) violence for the benefit of the club. This is especially apparent in PPS appendix 10: an overview of investigation data on this subject drawn up by the police. Below, the court gives a summary of a number of these data: On 23 May 2007, two Bandidos members killed Hells Angels member [C] in Germany. A former Bandidos board member, [D], who was a crown witness in the trial stated that the two Bandidos members had wanted to earn the expect no mercy patch by committing the murder. On 8 October 2009, Hells Angels member [E] killed Bandidos member [F] at a Bandidos clubhouse in Duisburg. During the trial, [E] stated that he had been afraid that [F] would kill him to earn an expect no mercy patch. The Bandidos posthumously awarded [F] the expect no mercy patch. On 26 December 2010, a fight between Bandidos members and the members of another motorcycle club took place in Germany, resulting in casualties. Bandidos members stated that two of the Bandidos members involved in the fight had been awarded expect no mercy patches for the fight. On 24 May 2014, two Bandidos members in Melbourne, Australia, beat a person to death. A (former) Bandidos member who testified as a witness stated that one of these two Bandidos members had been awarded an expect no mercy patch. On 20 September 2014, two Bandidos members shot dead the president of Rock Machine MC in Hyllstofta, Sweden. Ten days later, the two Bandidos members were issued an expect no mercy patch. Various (former) Bandidos members stated to the German police that the expect no mercy patch can be earned when the interests of the club have been defended with violence and bloodshed. Several German criminal court judges accept this. The police in several European countries attach the same meaning to the issuing of the expect no mercy patch. The American justice department assumes that the expect no mercy patch is issued to Bandidos members who have given or taken blood for the club. In a telephone conversation tapped by the police on 2 April 2015, a BMC Sittard member talks about earning an expect no mercy patch: They can all earn such a thing. Such a round sign. Except [sic] no mercy. That you have been in a fight with other motorcycle clubs The court does not consider plausible and/or credible the explanation given by BMC Sittard and BMC Europe, namely that the expect no mercy patch is issued to members who have suffered for the club. That [F] (see the second item in the previous legal ground) received the expect no mercy patch posthumously, because he had suffered for his club, like BMC Sittard and BMC Europe state, cannot be true, as BMC Sittard and BMC Europe themselves state the [F] was not killed in a motorcycle club setting, but in connection with a fight about a woman. It is therefore impossible to see how [F] suffered for his club in this context. The same can be said about BMC Sittard and BMC Europe s statement that the president of the European federation was issued the expect no mercy patch because attachments had been imposed against him in the context of a criminal investigation. BMC Sittard and BMC Europe were unable to clarify the connection between the attachments on the one hand, and suffering for the club on the other. Neither does the court deem it plausible that within the Bandidos organization in Asia and Australia the expect no mercy patch can simply be bought,

11 and therefore does not have to be earned. BMC Europe and BMC Sittard solely base this on a sum of money being mentioned in the Australasian Bible. This is contradictory to various examples presented by PPS of the patch (in accordance with European practice), apparently having been earned in Australia and Asia The statements of BMC Sittard and BMC Europe are contradicted by the abundance of evidence presented by PPS that supports the PPS s interpretation that the expect no mercy patch is issued to Bandidos members who have committed (serious) violence for the benefit of the club. Given this abundance there are no grounds to use BMC Sittard and BMC Europe s offer of proof, namely the offer to prove that the Bundeskriminalamt (the German federal investigations department) takes the same explanation as given by BMC Sittard and BMC Europe as a starting point. Even if it became apparent that the Bundeskriminalamt does envision the same explanation as the one given by BMC Sittard and BMC Europe, it would still carry insufficient weight against the abundance of information presented by PPS As PPS outlines in a number of examples, violence is often used against members who have resigned from the club with the qualification bad standing. The court refers to, inter alia, the threats against and assault on a hang-around member of BMC Alkmaar who wanted to resign from the club in November In addition, the file describes the report to the police made by a BMC Sittard member in May 2015 that he feared for the safety of his girlfriend and his daughter after he had resigned from the Bandidos in bad standing. What sometimes happens is that possessions, such as a motorcycle, are confiscated with the use or threat of violence. About this practice, the aforementioned BMC Sittard member stated to the police: Look, when you become a member, these sorts of things are explained to you. Then they say: Look, you ve got a motorcycle, but in principle it belongs to the club. You pay for the purchase out of your own pocket, and if you ever leave the club in bad standing, the motorcycle will remain at the club. In light of the various, insufficiently contested, examples presented by PPS, the court deems the explanation of the term bad standing given by BMC Sittard and BMC Europe implausible The violence committed by the Bandidos endangers the safety of individuals, both inside and outside the motorcycle club scene. The violence is often directed at members of other ( 1% ) motorcycle clubs, Hells Angels members in particular, injuring or even killing these members. This also comes to the fore in violent incidents described in legal ground 3.28, and, for instance, in film footage of aggravated assault of members on a Hells Angels support club by Bandidos members, dressed in their vests/colours, in Sittard on 7 May 2015, shown by PPS at the hearing. Another example involves an assault with a knuckleduster on uniformed police officers committed by a Bandidos member on 14 May The violence committed by Bandidos members and the violent response of others to this, such as attacks with hand grenades near a Bandidos house in Nieuwstadt (March 2014), often takes place in the public space, which also puts the safety of persons outside the motorcycle club scene, persons who are accidentally on site, at risk. People frequently fail to make a statement to the police because they fear reprisals from the Bandidos. A striking example is the extortion of a real estate agent in March 2014, which PPS presented convincingly on the basis of reports and tapped conversations. The person in question decided not to press charges because, in his own words, he was very scared of the whole organization behind the motorcycle club Nearly all violent crimes presented by PPS involve activities of members of which cannot possibly be established that BMC or BMC Holland was directly involved in the sense that it could be proven that an (actual) board had managed or intentionally facilitated the activities. Nevertheless, these activities can be attributed to the Bandidos as their own activities, because there are special facts and circumstances that provide a reason to do so. These are formed by the existing culture within the Bandidos in which commission of (serious) violence is promoted, as outlined above. In addition, the organization is structured and in actual practice mainly functions in such a way that influence is exerted on members from specific ranks. In this context, the court refers to What is also important in this context is that it can be deduced from the examples of PPS that members intentionally use the name Bandidos or their colours

12 to press home their actions and words. All this justifies that the conclusion that the commission of violent crimes by local chapters or individual members can be attributed to BMC and BMC Holland The court recognizes PPS has not presented examples of serious criminal offences with regard to all local Bandidos chapters in or outside the Netherlands. However, this does not detract from the fact that these chapters, via their association with the regional and continental BMC federations and BMC worldwide, are also part of BMC, and have conformed to the Bandidos rules and the corresponding culture as described above. The culture of Bandidos and the actual practices ensuing from it were shown to be characteristic and structural to such an extent that there is a real chance that Bandidos members in the Netherlands will (again) commit serious crimes that will (seriously) affect the physical integrity of persons within and/or outside their own club setting, and disrupt or may disrupt Dutch society. These types of crime must be stopped in the interest of the protection of the physical integrity of persons. Though a ban should solely be imposed in extreme cases, this is what justifies such a ban in this case. Partly in view of this, there is no reason to stay the hearing with regard to this application pending the outcome of the criminal cases against members of BMC Sittard, as BMC Sittard and BMC Europe requested. When considering the question whether the criminal offences in question could play a role when judging whether the activities are contrary to public order, a criminal conviction for these offences would not be decisive. It suffices that it can be assumed with a sufficient degree of certainty that the offences in question were indeed committed. x This is the case in this case here In the opinion of the court, when weighing all interests and rights involved, the above implies that in a democratic society it is necessary to make a declaratory decision that the activities of BMC are contrary to public order and that BMC Holland is banned, in the interest of the rights and liberties of those who are part of Dutch society. The above ban and declaration will stop activities that form an actual and serious infringement of basic principles of our legal system considered vital, and disrupt or may disrupt our society The ban and the declaration as intended above mean that the presence of the Bandidos in the Netherlands, in whichever form, is terminated. The disbandment of BMC Holland, which will also be pronounced, results in BMC Holland s assets, which consist of at least the assets of the local chapters of the Bandidos in the Netherlands, to be liquidated. The court shall appoint a liquidator to this effect, as requested by PPS. Given this fact, the court will offer PPS the opportunity to propose, by motion, a specific liquidator. BMC Sittard will be given the opportunity to respond, by motion, to this proposal. It may be wise and practical in both their interests that PPS and BMC Sittard enter into consultations about the liquidator to be proposed. The court leaves this up to them The consequence of the ruling that the activities of BMC are contrary to public order is usually that the court appoints a liquidator who liquidates the property of the cooperative in question in the Netherlands. Such an appointment will not be necessary, now that a liquidator will already be appointed in the case against BMC Holland The court stays the proceedings against BMC Holland with regard to the appointment of a liquidator. For the rest, the court renders a final judgment. 4 The judgment The court In the case against BMC Holland 4.1. declares BMC Holland banned and disbands BMC Holland,

13 4.2. offers PPS the opportunity to propose, by motion, a specific liquidator for BMC Holland s assets. The motion is to be received by the court registry on Wednesday 10 January 2018 at the latest, 4.3. subsequently offers BMC Sittard the opportunity to respond, by motion, to PPS s proposal. The motion is to be received by the court registry on Wednesday 24 January 2018 at the latest, 4.4. stays the proceedings with regard to the appointment of a liquidator, 4.5. declares 4.1 of this decision to be provisionally enforceable, in the case against BMC 4.6. rules that the activities of BMC are contrary to public order within the meaning of Book 2, Section 20 CC, 4.7. declares 4.6 of this decision provisionally enforceable. This decision was made by mr. D.A. van Steenbeek, mr. L.M.G. de Weerd, and mr. H.A. Brouwer, assisted by mr. H.G. van Soolingen as registrar, and was publicly pronounced on 20 December xi i Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. ii Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters OJ EU L339/3 of 21 December iii See PPS appendix 66 iv Cloth patches with a symbol on them, attached to the colours. v Text underneath the Bandidos logo on the back of the colours. vi European Convention on the Protection of Human Rights and the Fundamental Liberties. vii Supreme Court of the Netherlands, 26 June 2009, legal ground 3.3, ECLI:NL:HR:2009:BI1124 (Hells Angels) and Supreme Court of the Netherlands, 18 April 2014, legal ground 3.5, ECLI:NL:HR:2014:948 (Martijn association). viii ECHR, 14 January 2014, 47732/06, ECHR 2014/77. ix Supreme Court, 26 June 2009, legal ground 3.6, ECLI:NL:HR:2009:BI1124 (Hells Angels). x Also see Amsterdam Court of Appeal, 10 April 2008 legal ground 23, ECLI:NL:GHAMS:2008:BC9212 xi type: HvS (4206) coll: