ECLI:NL:GHDHA:2022:856, Gerechtshof Den Haag, 25-01-2022, 2200141419.v
Gerechtshof Den Haag — Uitspraak 
Datum: 2022-01-25 00:00:00.000000
Rechtsgebied: Strafrecht

Samenvatting: Johnson City Investigation; acquittal 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. Proven primarily – implicitly alternatively – charged participation in a criminal organisation whose object it is to have weapons and ammunition in its possession. 
        No abandonment of the basis of the charges. Reasonable period of time exceeded. PS 8 months, with credit for the time spent in pre-trial detention.

Cause list number:	22-001414-19 
    Public Prosecutor's Office number:	10-960321-16 
    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] (Morocco) on [date] 1990,
      detained for other reasons in the [PI] at the time of the appeal hearing.
    
    
    
    
      
        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 nine 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 one or more 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 charges 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.
    
    
    
    
      
        Declaration of charges proven
      
    
    
    
      The Court of Appeal considers it legally and convincingly proven that the accused has committed the primary charges, on the understanding that:
    
    
  
  
    (participation in a terrorist organisation) 
    
    
      on or around the period from 1 December 2015 14 February 2016 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;
      
    
    
    
    
      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.
    
    
    
    
    
      
        Further (evidence-based) considerations
      
    
    
    
      
        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 [co-accused4], [co-accused5] and [co-accused6]. 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, [accused] at that time. The suspicion has arisen against (among others) [accused], [co-accused4], [co-accused5] and [co-accused6] 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. 
    
    
    
      
        Primary charge
      
    
    
    
      As stated above, the accused is primarily charged with participation in a terrorist organisation and/or co-perpetrating the promotion/preparation of terrorist offences.  
      Together with the defence and the Public Prosecution Service, the Court of Appeal is of the opinion that it has not been proven that the accused acted with terrorist intent, and that for that reason alone he should be acquitted of the primary charge, insofar as this consists of (co-perpetrating) the promotion/preparation of terrorist offences. That the accused should be acquitted of participation in a terrorist organisation is not in dispute either since knowledge on the part of the accused of a terrorist aim of that organisation cannot be proven. 
    
    
    
      The question that the Court of Appeal faces is whether acquittal of the terrorist organisation in the present indictment still leaves room for a conviction for an ordinary criminal organisation, or whether this would constitute abandonment of the basis of the indictment (denaturation). 
    
    
    
      The Court of Appeal first notes - with the District Court - that a relationship of lex specialis exists between Articles 140a and 140 of the Criminal Code (hereinafter: CC): a terrorist organisation is a criminal organisation, but one that aims to commit a special type of offence (namely: terrorist), while Article 140a CC carries a higher penalty than Article 140. 
    
    
    
      Furthermore, it is of importance that the defence pleaded guilty to the proven notion of participation in a criminal organisation and, when asked during the appeal hearing, indicated that the accused had interpreted the indictment in such a way that (implicitly as a lesser offence) participation in a criminal organisation had been charged.
    
    
    
      The above implies that acquittal for participation in a terrorist organisation and conviction for participation in a criminal organisation would mean that the accused would be acquitted of the qualifying offence and that the question then arises whether the accused could be convicted for the (lesser) predicate offence. 
      Therefore, the Court of Appeal understands the wording of the indictment as implicitly charging, as a lesser charge, participation in an (ordinary) criminal organisation. 
      Contrary to what the Advocate General has argued, the wording of the present indictment allows this reading. The Court of Appeal is of the opinion that this does not give the indictment an essentially different meaning from that which the author of the indictment apparently had in mind, and that this therefore does not mean that the basis for the indictment is being abandoned. In this respect, the Court of Appeal has also taken into account that the defence has not been surprised by a conviction regarding the remaining part of the charges. 
    
    
    
      Together with the defence, the Court of Appeal is of the opinion that it has been legally and convincingly proven on the basis of the legal evidence and the hearing that the accused participated in a criminal organisation, all of which in accordance with the wording of the declaration of charges proven. 
    
    
    
    
      
        Criminal nature of the proven facts
      
    
    
    
      The facts proven with respect to the primary charge yield:
    
    
  
  
    participation in an organisation whose object is to commit crimes.
    
    
    
      
        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 offence
      
      For a short period of time, the accused participated in an organisation whose object it was to possess firearms and/or ammunition. 
      Participation in a criminal organisation is a public order offence. 
    
    
    
      
        Extract from judicial records
      
      The Court of Appeal has taken into account, to the disadvantage of the accused, an extract from the judicial records dated 8 December 2021, which reveals that the accused has been irrevocably convicted for the commission of criminal offences before, including in 2012 and in 2013 for violating the Weapons and Ammunition Act. This apparently did not deter him from committing the present offence.
    
    
    
      
        Risk of reoffending 
      
      Finally, the Court of Appeal has taken into account the Dutch Probation Service's Supervision Progress Report dated 7 March 2019, a Probation Advisory Report dated 24 June 2021 and the Forensisch Maatwerk's Social Enquiry Report dated 19 March 2021 entered into evidence by the defence, drafted for the benefit of the IND procedure. The Dutch Probation Service's Supervision Progress Report of 7 March 2019 shows that the accused has been complying with the agreements made with the Probation Service and that he has adopted an open and cooperative attitude. The Probation Service can call him to account over his attitude and behaviour and the accused is open to the feedback he receives. However, the fact that the accused does not have a meaningful daily activity in the form of work remains a risk factor. The report of 19 March 2021 indicates that the accused's residence permit has been revoked and that the accused is currently being detained as an illegal alien. 
    
    
    
      
        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 20 September 2016 and the date of the final decision on 8 April 2019. At that stage, the reasonable period of time has been exceeded by more than six 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 11 April 2019 and the date of this final decision. Here, the reasonable period of time has been exceeded by more than nine months.
      The Court of Appeal is of the opinion that, in principle, a prison sentence for the term of nine months is appropriate and necessary, but that this should be reduced to a prison sentence for the term of eight months because the reasonable period was exceeded. The accused has already served this sentence in pre-trial detention, so that he does not have to undergo further detention in this case.
    
    
    
      The Court of Appeal is - all things considered - of the opinion that a completely non-suspended prison sentence for a term yet to be announced is an appropriate and necessary reaction.
    
    
    
    
      
        Applicable legal provisions
      
    
    
    
      The Court of Appeal has taken into account Articles 63 and 140 of the Criminal Code, as they apply or applied in law.
    
    
    
    
  
  
    JUDGMENT
    
    
      The Court of Appeal:
    
    
    
      Sets aside the decision appealed against and pronounces judgment anew:
    
    
    
      Declares, as considered above, proven that the accused has committed the primary charge.
    
    
    
      Declares that any additional charges or charges formulated otherwise than those proven above have not been proven and acquits the accused thereof.
    
    
    
      Declares the primary charge to be punishable, qualifies this as above and declares the accused criminally liable.
    
    
  
  
    Sentences the accused to a term of imprisonment of 8 (eight) months.
    
    
    
      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.
    
    
    
    
    
      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.
    
  
  
     See page 685, Het Nederlands Strafprocesrecht by G.J.M. Corstens, M.J. Borgers and T. Kooijmans