ECLI:NL:GHDHA:2022:857, Gerechtshof Den Haag, 25-01-2022, 2200145119.v
Gerechtshof Den Haag — Uitspraak 
Datum: 2022-01-25 00:00:00.000000
Rechtsgebied: Strafrecht

Samenvatting: Johnson City Investigation; complete acquittal of (primarily) participation in an organisation whose object it 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) complicity in the possession or transfer of ammunition. On the basis of the contents of the case file, also viewed in conjunction with each other, insufficient legal and convincing evidence that the accused was involved in the offences charged. Return to the accused of the seized amount of money.

Cause list number:	22-001451-19 
    Public Prosecutor's Office number:	10-960263-16 
    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] (Netherlands Antilles) on 
      [date] 1980, 
      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, of the lesser and of the even lesser charges. Furthermore, the return of the seized amount of money of € 9,645 to the accused was ordered.
    
    
    
      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 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 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, (each time) 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 decision appealed against be set aside, that the accused be acquitted of the primary charge and - taking into account the fact that the reasonable period of time was exceeded - that he be sentenced to a term of imprisonment of 12 months, with credit for the time spent in pre-trial detention in respect of the lesser charge. Furthermore, the seized amount of money of € 9,645 must be returned to the accused.
    
    
    
    
      
        The decision appealed against
      
    
    
    
      The hearing of the case on appeal has not led the Court of Appeal to reach any other decisions than those of the first court. However, the Court of Appeal is of the opinion that - also in view of the arguments put forward on appeal - the grounds stated in the decision should be replaced by the following. Therefore, the decision appealed against will be confirmed with improvement and addition to the grounds.
    
    
    
    
      
        Acquittal
      
    
    
    
      
        Introduction 
      
    
    
    
      On 24 March 2016, [co-accused1] was arrested in France on suspicion of (preparing) a terrorist offence. During a search of his residence in Argenteuil, heavy weapons (Kalashnikovs) and explosives were found. On 25 March 2016, co-accused [co-accused3] was arrested in Belgium. Another co-accused, [co-accused2], was said to be staying in the Netherlands according to information from France. On 25 March 2016, a criminal investigation was instituted in the Netherlands, involving cooperation with France and Belgium through a Joint Investigation Team. [co-accused2] was arrested in Rotterdam on 26 March 2016, as were two persons with whom [co-accused1] had maintained contact by telephone. Shortly before his arrest, [co-accused2] had left the home of one of them on [street] in Rotterdam, and during a search of the storage unit belonging to that home, a large quantity of ammunition was found, including ammunition suitable for Kalashnikovs. 
    
    
    
      Fingerprints were found on one of the bags in which this ammunition was packed. Dactyloscopic examination produced matches with (one or more) fingerprints of the accused [co-accused4], [accused] and [co-accused5]. Analysis of historical traffic data has shown that [co-accused1], [co-accused2] and [co-accused3] stayed in the Netherlands (in particular Rotterdam) in the period from 14 February 2016. They, or at least [co-accused2] and/or [co-accused1], were in contact with, among others, [co-accused6] at that time. The suspicion has arisen against (among others) [co-accused6], [co-accused4], [accused] and [co-accused5] that they were involved in supplying the ammunition found in the storage unit to [co-accused1], [co-accused2] and [co-accused3]. 
    
    
    
      [co-accused1], [co-accused2] and [co-accused3] were prosecuted in France and sentenced by judgment of the Paris Court of Assizes on 9 April 2021 to a term of imprisonment of 24 years for (in short) participation in a group that prepares terrorist offences. 
    
    
    
      
        Assessment by the Court of Appeal
      
    
    
    
      With respect to the involvement of the accused [accused] (hereinafter: [accused]) in the supply of the ammunition, the Public Prosecution Service pointed in the first place to the finding of his fingerprints on the bag that contained the cartridges. Moreover, co-accused [co-accused6] (hereinafter: [co-accused6]) has stated that he was referred by someone with rasta hair - whom he also calls 'rasta' - to co-accused [co-accused4] (hereinafter: [co-accused4]) to obtain weapons. When [co-accused6] was shown a picture of [accused] with rasta hair during an interrogation, he stated that the person in the picture did look like the one who introduced him to [co-accused4]. Finally, it has been argued that around the date of the delivery of the ammunition, [accused] had contact by telephone with and was in the vicinity of co-accused [co-accused5] (hereinafter: [co-accused5]) and [co-accused4].
    
    
    
      The Court of Appeal holds first and foremost that it appears from the case file that [accused], [co-accused5] and [co-accused4] know each other from a meeting place for Antilleans in the Tarwewijk area in Rotterdam. They had already seen and met each other there before (the run-up to) the discovery of the ammunition. The recognition of [accused] by [co-accused4] and the observation that they had contact by telephone does not provide evidence of involvement in the offences charged, not even when viewed in connection with the finding of the fingerprints on the plastic bag - an object that changes hands - and the statement of [co-accused6] that he was referred to [co-accused4] by someone with rasta hair and that this person could well be [accused]. 
    
    
    
      The statement of [co-accused6] that the person with rasta hair in Dordrecht could well be [accused] has insufficient evidential value to be considered as admissible. 
      The fact that (also) [co-accused4] has recognized [accused] on the photograph as 'Rasta', whose first name is [name] (which the Public Prosecution Service repeatedly pointed out during the appeal hearing), is not of importance for the evidence. It is an established fact that [accused] features in this photograph and that his nickname is Rasta. The recognition by [co-accused4] of [accused] in the photograph can be explained by the fact that the suspects already knew each other before February/March 2016. This means that this recognition does not contribute to the evidence that [accused] is the person with rasta hair whom [co-accused6] met in Dordrecht.  
    
    
    
      The Court of Appeal is of the opinion that what the accused has been charged with in the primary, in the lesser and in the even lesser charges has not been legally and convincingly proven, so that the accused should be acquitted thereof.
    
    
    
      
        Conditional requests
      
    
    
    
      As things stand, the conditional requests submitted in the counsel's oral arguments require no further discussion.
    
    
    
    
  
  
    JUDGMENT
    
    
      The Court of Appeal:
    
    
    
      Confirms the decision appealed against with due regard to the above considerations.
    
    
    
    
    
      This judgment has been 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.