ECLI:NL:GHDHA:2022:855, Gerechtshof Den Haag, 25-01-2022, 2200145219v
Gerechtshof Den Haag — Uitspraak 
Datum: 2022-01-25 00:00:00.000000
Rechtsgebied: Strafrecht

Samenvatting: Johnson City Investigation; complete acquittal in accordance with the request of the Advocate General and pleaded by the defence of (primarily) participation in an organisation the object of which was to commit terrorist offences and/or acts facilitating or preparing the commission of terrorist offences, (alternatively) complicity in participation in a terrorist organisation and (in the further alternative) co-perpetration in the possession or transfer of ammunition.

Cause list number:	22-001452-19
  Public Prosecutor's Office number:	10-960269-16  
  Date of judgment: 	25 January 2022
  JUDGMENT AFTER TRIAL
  
    Court of Appeal, The Hague
    joint bench for criminal proceedings
    
    
  
  
    Judgment
    
    
    
      rendered in the appeal against the decision of the District Court of Rotterdam of 8 April 2019 in the criminal case against the accused:
    
    
  
  
    [accused],
    
      born in [place] (Suriname) on [date] 1983, 
      address: [address].
    
    
    
    
      
        Examination of the case
      
    
    
    
      This judgment was rendered as a result of the hearing in the first instance and the hearing in the appeal proceedings of this Court of Appeal.
    
    
    
      The Court of Appeal has taken cognisance of the request of the Advocate General and of that which has been put forward by and on behalf of the accused.
    
    
    
    
      
        Procedure
      
    
    
    
      In the first instance, the accused was acquitted of the primary, lesser and even lesser charges.
    
    
    
      The Public Prosecutor has appealed against the decision.
    
    
    
    
    
    
    
    
    
    
      
        Charges
      
    
    
    
      The accused - after adjustment of the charges at the hearing in the first instance - has been charged with the following:
    
    
  
  
    (participation in a terrorist organisation) 
    
    
      On or around 1 December 2015 up to and including 27 March 2016 in Rotterdam, or at least in the Netherlands, and/or Paris and/or Argenteuil, or at least in France, and/or in Belgium, 
    
    
    
      he participated in an organisation, namely the terrorist organisation Islamic State (IS), or at least an armed terrorist jihadi combat group affiliated to IS, in any case an armed terrorist jihadi combat group in which in any case [co-accused1] and/or [co-accused2] and/or [co-accused3] participated, the object of which was to commit terrorist offences, namely 
    
    
    
      > arson and/or causing an explosion, this constituting a general danger to property and/or danger of grievous bodily harm and/or danger to the life of another person, and/or this act resulting in someone's death (within the meaning of Article 157 Criminal Code) (to be) committed with terrorist intent (within the meaning of Article 176a of the Criminal Code) and/or 
      > manslaughter (to be) committed with terrorist intent (within the meaning of Article 288a of the Criminal Code) and/or 
      > murder (to be) committed with terrorist intent (within the meaning of Article 289 in conjunction with Article 83 of the Criminal Code) and/or 
      > conspiracy and/or deliberate preparation and/or abetment to committing the aforementioned offences (within the meaning of Articles 176b and/or 289a and/or 96 Paragraph 2) and/or
      > possession of one or more category II and/or III weapons and/or ammunition (within the meaning of Article 26 Paragraph 1 of the Weapons and Ammunition Act) (to be) committed with terrorist intent and/or with the intent to prepare or facilitate a terrorist offence (within the meaning of Article 55 Paragraph 1 and/or Paragraph 5 of the Weapons and Ammunition Act), 
    
    
    
      by preparing and/or committing one or more attacks in France, or at least in (Western) Europe, 
    
    
  
  
    AND/OR 
    
  
  
    (abetment/preparation to committing terrorist offences) 
    
    
      in or around the period from 1 December 2015 up to and including 27 March 2016 in Rotterdam, or at least in the Netherlands, and/or Paris and/or Argenteuil, or at least in France, and/or in Belgium, together and in association with (an)other person or persons, or at least alone, 
    
    
    
      with the intent to prepare and/or abet the crime(s) to be committed (several times): 
      > manslaughter (to be) committed with terrorist intent (within the meaning of Article 288a of the Criminal Code) and/or 
      > murder (to be) committed with terrorist intent (within the meaning of Article 289 in conjunction with Article 83 of the Criminal Code)
    
    
    
      he
    
    - has attempted to induce another person to commit, to have committed or to participate in, to assist in or to provide the opportunity, means or information to commit the offence and/or
    - has provided himself or other persons with the opportunity, means and/or information to commit the offence and/or 
    - has had in his possession items which he knew were intended for the commission of the offence, 
    
    
      he, the accused, and/or his co-perpetrator(s) 
    
    
    - having maintained contact by telephone regarding the supply and/or retention/concealment of weapon(s) and/or ammunition, and/or 
    - put [co-accused2] and/or [co-accused1] and/or [co-accused3] in touch with one or more suppliers of weapon(s) and/or ammunition, and/or 
    - provided and/or supplied [co-accused2] and/or [co-accused1] and/or [co-accused3] with
    
      one or more magazines and/or one drum magazine and/or a large quantity of ammunition, namely: 
      * 2880 cartridges (calibre 7.62 x 39 mm) and/or 
      * 850 cartridges (calibre 9 mm and/or calibre 9 x 19 mm), or at least ammunition, 
    
    
    
      which ammunition and/or magazines was/were intended for the commission of one or more attacks in France, or at least in (Western) Europe, and/or which attacks constitute murder and/or manslaughter, in each case with terrorist intent;
    
    
    
      
        As a lesser charge, insofar as the above should not or could not lead to a conviction:
      
    
  
  
    
      (complicity in the participation in a terrorist organisation) 
    
    
      [co-accused1] and/or [co-accused2] and/or [co-accused3] and/or one or more other persons in or around the period from 1 December 2015 up to and including 27 March 2016 in Rotterdam, or at least in the Netherlands, and/or Paris and/or Argenteuil, or at least in France, and/or in Belgium, 
    
    
    
      have participated in an organisation, namely the terrorist organisation Islamic State (IS), or at least a terrorist armed jihadi combat group affiliated to IS, in any case a terrorist armed jihadi combat group, the object of which was the commission of terrorist crimes, namely 
    
    
    
      > arson and/or causing an explosion, this constituting a general danger to property and/or danger of grievous bodily harm and/or danger to the life of another person, and/or this act resulting in someone's death (within the meaning of Article 157 Criminal Code) (to be) committed with terrorist intent (within the meaning of Article 176a of the Criminal Code) and/or 
      > manslaughter (to be) committed with terrorist intent (within the meaning of Article 288a of the Criminal Code) and/or 
      > murder (to be) committed with terrorist intent (within the meaning of Article 289 in conjunction with Article 83 of the Criminal Code) and/or 
      > conspiracy and/or deliberate preparation and/or abetment to committing the aforementioned offences (within the meaning of Articles 176b and/or 289a and/or 96 Paragraph 2) and/or
      > possession of one or more category II and/or III weapons and/or ammunition in (within the meaning of Article 26 Paragraph 1 of the Weapons and Ammunition Act) (to be) committed with terrorist intent and/or with the intent to prepare or facilitate a terrorist offence (within the meaning of Article 55, Paragraph 1 and/or Paragraph 5 of the Weapons and Ammunition Act), 
    
    
    
      by preparing and/or committing one or more attacks in France, or at least in (Western) Europe,
    
    
    
      to and/or in committing which offence(s) the accused, together and in association with one or more other persons, or at least alone, in or around the period from 1 December 2015 up to and including 27 March 2016 in Rotterdam, or at least in the Netherlands, several times, or at least once, intentionally provided opportunity and/or means and/or information and/or (each time) intentionally rendered assistance, by 
    
    
    - maintaining contact by telephone regarding the supply and/or retention/concealment of weapon(s) and/or ammunition, and/or 
    - putting [co-accused2] and/or [co-accused1] and/or [co-accused3] in touch with one or more suppliers of weapon(s) and/or ammunition, and/or 
    - providing and/or supplying [co-accused2] and/or [co-accused1] and/or [co-accused3] with
    
      one or more magazine(s) and/or one drum magazine and/or a large quantity of ammunition, namely: 
      * 2880 cartridges (calibre 7.62 x 39 mm) and/or 
      * 850 cartridges (calibre 9 mm and/or calibre 9 x 19 mm), or at least ammunition; 
    
    
    
      
        
        As an even lesser charge, insofar as the above should or could not lead to a conviction:
      
    
  
  
    
      (transfer/possession of ammunition) 
    
    
      in or around the period from 1 December 2015 up to and including 27 March 2016 in Rotterdam, or at least in the Netherlands, together and in association with one or more persons, or at least alone, he handed over to one or more persons, or at least he had in his possession, 
      a large quantity of ammunition, namely: 
      * 2880 cartridges (calibre 7.62 x 39 mm) and/or 
      * 850 cartridges (calibre 9 mm and/or calibre 9 x 19 mm), or at least category II and/or III ammunition, or in any case ammunition within the meaning of the Weapons and Ammunition Act, 
    
    
    
      and/or 
    
    
    
      (a) part(s) of (a) firearm(s) within the meaning of Article 1 under 3, in view of Article 2 Paragraph 1, category III under 1 of the Weapons and Ammunition Act, namely one or more magazine(s) and/or one drum magazine, being (in each case) an accessory and/or component that is of an essential nature and specifically intended for a firearm of the Arsenal brand, model M-47W Circle 10 (calibre 7.62 x 39 mm) and/or for a firearm, model AK47 (calibre 7.62 x 39 mm) (or a derived model thereof), 
    
    
    
      while the offence was (or was not) committed with terrorist intent (within the meaning of Article 83a of the Criminal Code) or with the intent to prepare and/or facilitate a terrorist offence (within the meaning of Article 83 of the Criminal Code).
    
    
    
    
      
        Request of the Advocate General
      
    
    
    
      The Advocate General requested that the accused be acquitted of the charges.
    
    
    
    
      
        The decision appealed against
      
    
    
    
      The hearing of the case on appeal has not led the Court of Appeal to a different decision from that of the first court. However, the Court of Appeal is of the opinion that – with due regard for the arguments put forward on appeal - the grounds stated in the decision should be replaced by the following grounds. Therefore, the decision appealed against will be confirmed with an adjustment of the grounds.
    
    
    
    
      
        Defences presented
      
    
    
    
      During the appeal hearing, the defence counsel argued by rejoinder that, if the Court of Appeal takes the contents of the PowerPoint presentation - which was shown during the closing arguments at the first instance hearing and which the Court of Appeal has taken cognisance of - into consideration when assessing the case at hand, this should lead to the exclusion of the PowerPoint presentation from the evidence or to the mitigation of the punishment to be imposed.
    
    
    
      At the appeal hearing, the Court decided that the aforementioned PowerPoint presentation is not part of the case file. Therefore, with due regard for the decision to be taken hereafter, the defence has no interest in further discussion of the defence.
    
    
    
    
      
        Acquittal
      
    
    
    
      In the opinion of the Court of Appeal, that which the accused has been charged with primarily, as a lesser charge and as an even lesser charge has not been legally and convincingly proven, so that the accused - in accordance with the request of the Advocate General and as argued by the defence - should be acquitted.
      The decision appealed against should therefore be upheld, with adjustments to the grounds.
    
    
  
  
    JUDGMENT
    
    
      The Court of Appeal:
    
    
    
      Confirms the decision appealed against with due regard for the above considerations.
    
    
    
    
    
      This judgment was delivered by Th.W.H.E. Schmitz LLM, 
      D.M. Thierry LLM and L.C. van Walree LLM, in the presence of M.J.J. van den Broek LLM, Court Clerk.
    
    
    
      It was pronounced at the public hearing of the Court of Appeal on 25 January 2022.