ECLI:NL:GHDHA:2022:858, Gerechtshof Den Haag, 25-01-2022, 2200145319.v
Gerechtshof Den Haag — Uitspraak 
Datum: 2022-01-25 00:00:00.000000
Rechtsgebied: Strafrecht

Samenvatting: Johnson City Investigation; acquittal of the primary charge of participation in an organisation whose object it was to commit terrorist offences and/or acts facilitating or preparing the commission of terrorist offences in accordance with the request of the Advocate General and pleaded by the defence. Acquittal of the alternative charge of complicity in participation in a terrorist organisation because it cannot be established that the intention of the accused was to aid and abet in the participation of others in the charged terrorism or in the criminal organisation (here implicitly in the alternative). Proven charge in the further alternative of transferring a large quantity of ammunition, namely 1595 cartridges. Reasonable term exceeded. PS 6 months, with credit for the time spent in pre-trial detention, of which 4 months suspended, with an operational period of two years as well as community service for a term of 120 hours, alternatively 60 days prison custody.

Cause list number:	22-001453-19 
  Public Prosecutor's Office number:	10-960272-16 
  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] 1985, 
      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 charge and sentenced to a term of imprisonment of 12 months, with credit for the time spent in pre-trial detention in connection with the lesser charge.
    
    
    
      An appeal was lodged against the decision by the Public Prosecutor and on behalf of the accused.
    
    
    
    
    
      
        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 28 months, with credit for the time spent in pre-trial detention in respect of the lesser charge. 
    
    
    
    
      
        The decision appealed against
      
    
    
    
      The decision appealed against cannot be upheld, because the Court of Appeal does not agree with it.
    
    
    
    
      
        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 people 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  [accused], [co-accused4] 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], [accused], [co-accused4] 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. 
    
    
    
    
      
        Acquittal
      
    
    
    
      In the opinion of the Court of Appeal, the primary charge against the accused has not been legally and convincingly proven, so that the accused should be acquitted thereof in accordance with the request of the Advocate General and as argued by the defence.
    
    
    
      Furthermore, in the opinion of the Court of Appeal, what the accused has been charged with as a lesser charge has not been legally and convincingly proven. After all, it cannot be established that the intention of the accused was aimed at aiding and abetting the participation of others in the terrorist offence, or in the criminal organisation that has been charged (here implicitly as a lesser charge). The fact that the accused - as will be deemed - was involved in the supply of a large quantity of ammunition to [co-accused1] and [co-accused2] is insufficient for this purpose. The Court of Appeal has taken into account that the accused was not the one who was directly in contact with [co-accused1] and [co-accused2], but only (indirectly) through [co-accused6]. 
    
    
    
      This means that the accused should also be acquitted of the lesser charge.
    
    
    
    
      
        Declaration of charges proven
      
    
    
    
      The Court of Appeal considers it legally and convincingly proven that the accused has committed the offences of the even lesser charge, on the understanding that:
    
    
  
  
    (transfer/possession of ammunition) 
    
    
      in or around the period from 1 December 2015 17 February 2016 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 1595 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), 
      
    
    
    
      
        terwijl het feit (al dan niet) is begaan met een terroristisch oogmerk (als bedoeld in artikel 83a van het Wetboek van Strafrecht) dan wel met het oogmerk om een terroristisch misdrijf (als bedoeld in artikel 83 van het Wetboek van Strafrecht) voor te bereiden en/of gemakkelijk te maken.
      
    
    
    
    
    
      Any additional charges or charges formulated otherwise have not been proven. The accused should be acquitted of these.
    
    
    
      Insofar as the indictment contains linguistic and/or writing errors, these have been corrected in the declaration of charges proven. As appears from that which was discussed during the hearing, the defence of the accused was not harmed as a result.
    
    
    
    
      
        Evidence-based argumentation
      
    
    
    
      The Court of Appeal bases its conviction that the accused has committed the charges proven on the facts and circumstances that are included in the evidence and that substantiate the statement of charges proven.
    
    
    
      In those cases where the law requires an addition to the judgment with the evidence or, insofar as Article 359, Paragraph 3, second sentence of the Code of Criminal Procedure is applied, with an indication thereof, this will be done in an addition that will be attached to this judgment as an appendix.
    
    
    
    
      
        Criminal nature of the proven facts
      
    
    
    
      The facts proven with respect to the even lesser charge yield:
    
    
    
      
        co-perpetration of (an) act(s) violating Article 31, Paragraph 1 of the Weapons and Ammunition Act.
      
    
    
    
    
      
        Criminal liability of the accused
      
    
    
    
      No circumstance has become plausible that might exclude the criminal liability of the accused. The accused is therefore criminally liable.
    
    
    
    
      
        Grounds for the sentence
      
    
    
    
      The Court of Appeal has determined the punishment to be imposed on the basis of the seriousness of the offence and the circumstances under which it was committed, and on the basis of the personality and the personal circumstances of the accused, as these have appeared from the Court of Appeal hearing.
    
    
    
      In so doing, the Court of Appeal has particularly taken the following into account.
    
    
    
      
        Seriousness of the fact
      
      In the manner proven, the accused has, in association, transferred over almost 1600 cartridges, suitable for automatic firearms, to one or more others. Such actions by the accused undoubtedly deserve punishment, since they can be used to commit very serious crimes. In addition, finding such a consignment of ammunition in the storage unit of a home creates feelings of insecurity among citizens and neighbours.
    
    
    
      
        Extract from judicial records
      
      The Court of Appeal has taken into account an extract regarding the accused from the judicial records dated
      8 December 2021, which reveals that the accused has previously been irrevocably convicted, albeit a longer time ago, for the commission of criminal offences, including violation of the Weapons and Ammunition Act. 
    
    
    
      
        Risk of reoffending
      
      At the court hearing in the first instance, the accused stated that his life has taken a good turn. He is also in a relationship. In appeal, the accused stated that this information is still up to date. He works full-time in a warehouse through a temporary employment agency. He lives with his girlfriend, and they have a son of 1.5 years old. His girlfriend works as a pedagogical employee. 
    
    
    
    
      
        Reasonable period of time
      
      The Court of Appeal has established that the reasonable period of time within the meaning of Article 6, Paragraph 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, has been exceeded both in the first instance and on appeal. The period of trial in the first instance was exceeded because more than two years elapsed between the date on which the accused was remanded in custody on 6 July 2016 and the date of the final decision on 8 April 2019. At that stage, the reasonable period of time has been exceeded by nine months.
      Furthermore, the time limit for trying an appeal has been exceeded because more than two years have elapsed between the date on which the appeal was lodged on behalf of the accused on 23 April 2019 and the date of this final decision. Here, the reasonable period of time has been exceeded by nine months.
    
    
    
      The Court of Appeal is of the opinion that, in principle, a prison sentence for a term of eight months is appropriate and necessary. In view of the fact that the reasonable period of time has been exceeded, but also in view of the stable life that the accused leads - as evidenced at the appeal hearing - the Court of Appeal will reduce this to a prison sentence for a term of six months, part of which in the form of a suspended sentence, whereby the non-suspended part has already been served in pre-trial detention. In addition, the accused is to perform community service. 
    
    
    
      The Court of Appeal is - all things considered - of the opinion that a partially suspended prison sentence for a term yet to be announced, as well as fully non-suspendable community service for a term yet to be announced are an appropriate and necessary reaction.
    
    
    
    
    
      
        Applicable legal provisions
      
    
    
    
      The Court of Appeal has taken into account Articles 9, 14a, 14b, 14c, 22c, 22d, 47 and 63 of the Criminal Code and Articles 31 and 55 of the Weapons and Ammunition Act, as they apply or applied in law.
    
    
    
    
  
  
    JUDGMENT
    
    
      The Court of Appeal:
    
    
    
      Sets aside the decision appealed against and pronounces judgment anew:
    
    
    
      Declares that it has not been proven that the accused has committed the primary and lesser charges and acquits the accused thereof.
    
    
    
      Declares, as considered above, proven that the accused has committed the offences set out in the even lesser charges.
    
    
    
      Declares that any additional charges or charges formulated otherwise than those proven above have not been proven and acquits the accused thereof.
    
    
    
      Declares the offences proven in the even lesser charge to be punishable, qualifies this as above and declares the accused criminally liable.
    
    
  
  
    Sentences the accused to a term of imprisonment of 6 (six) months.
    
    
      Determines that a part of the term of imprisonment, amounting to 4 (four) months, will not be executed, unless the court later orders otherwise because the accused has committed a criminal offence before the end of an operational period of 2 (two) years.
    
    
    
      Orders that the time spent by the accused in any form of pre-trial detention within the meaning of Article 27, Paragraph 1 of the Criminal Code before the execution of this judgment, shall be deducted when implementing the prison sentence imposed, insofar as that time has not already been deducted from another sentence.
    
    
    
      Sentences the accused to community service for a term of 120 (one hundred and twenty) hours, to be replaced, if not performed satisfactorily, by a term of prison custody of 60 (sixty) days.
    
    
    
    
    
      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.