Uitspraak
Cause list no: 22-000953-16
Public Prosecutor’s Office no: 10-960147-14
Date judgment: 6 October 2017
DEFENDED ACTION
Court of Appeal at Den Haag
three-judge Criminal Division
in session in the extra secure courtroom of the
Noord-Holland District Court at Badhoevedorp.
Judgment
delivered on appeal against the ruling of the Rotterdam District Court of 18 February 2016 in the criminal case against the accused:
[the accused],
born in [place of birth] on
[date of birth],
address: [address].
Contents
1. The examination in court
2. Course of the proceedings
3. The charges
4. The contested judgment
5. Validity of the summons
5.1 The Defence’s position
5.2 The Prosecution’s position
5.3 The Court of Appeal’s opinion
6. Background and evidentiary considerations
6.1 Warring factions in the conflict in Syria
6.2 Terrorist offences
7. Assessment of the charges
7.1 Count 1 and count 2, principal charge I: Acts of preparation/facilitation of terrorist offences
7.1.1 Legal framework of acts of preparation and facilitation of terrorist offences, Article 96 (2) DCC (count 1, count 2 principal charge I)
7.1.2 The positions of the Prosecution and of the Defence
7.1.3 Facts found by the Court of Appeal
7.1.4 Consideration of the Court of Appeal with regard to the charges in counts 1 and 2 in connection with Article 96(2) DCC
7.1.5 Conclusion regarding counts 1 and 2 of the charges
7.2 Count 2 principal charge II
7.2.1 Acquittal
7.3 Count 4: The financing of terrorism
7.3.1. Legal framework financing of terrorism
7.3.2 Elements of Art. 421 DCC
7.3.3 Positions of the Prosecution and of the Defence
7.3.4 Facts found by the Court of Appeal
7.3.5 Considerations of the Court of Appeal with regard to the charges in count 4 in connection with Article 421 DCC.
7.3.6 Conclusion regarding count 4 of the charges
7.4 Count 3: participation in a terrorist organisation
7.4.1 Legal framework Article 140a DCC
7.4.2 Positions of the Prosecution and of the Defence
7.4.3 Facts found by the Court of Appeal
7.4.4 Considerations of the Court of Appeal with regard to the charges in count 3 in connection with Article 140a DCC and discussion of the defences
7.4.5 Conclusion regarding count 3 of the charges
8 The judicial finding of fact
9. Evidence
10. Punishability of the offence
11. Punishability of the accused
12. The sentence
12.1 Demand made by the Prosecutor in the Court of Appeal
12.2 The defence’s position
12.3 The Court of Appeal’s opinion
12.3.1 The seriousness of the offences and the circumstances in which they were committed
12.3.2 The personality of the accused and personal circumstances
12.3.3 The sentence to be imposed
13. Applicable sections of the law
RULING
1.The examination in court
This judgment was delivered upon the examinations in court in first instance and the examination in this Court of Appeal on 30 January, 7 February, 4 September and
6 October 2017.
The court has taken cognizance of the charges brought by the Public Prosecutor on appeal and of what was put forward by the defence counsel and the accused.
2.Course of the proceedings
In first instance, the accused was convicted of count 1 of the indictment (participation in acts of preparation and of facilitation of terrorist offences), count 2 of the indictment (participation in a terrorist organisation and participation in the financing of terrorism), count 3 of the indictment (participation in a terrorist organisation) and the principal charge of count 4 of the indictment (participation in acts of preparation and of facilitation of terrorist offences), and was sentenced to a custodial sentence of 42 months, deducting time spent in pre-trial custody, of which 12 months suspended, with an operational period of 3 years and subject to the special conditions as referred to in the contested judgment. These special conditions were declared immediately enforceable.
The judgment was appealed against on behalf of the accused.
3.The charges
After amendment of the charges at the hearing in first instance and on appeal, the accused was charged as follows (stated succinctly):
1. (acts of preparation and facilitation of terrorist offences by travelling to Syria and joining Jabhat al-Nusra)
with having committed, in the period from 1 January 2014 through 25 November 2014 in Arnhem and/or Doesburg, at least in the Netherlands and/or Syria, (jointly and in conjunction with others) the acts referred to under A through G with intent to prepare and/or promote arson, bringing about an explosion, murder and/or manslaughter, on each occasion committed with terrorist intent.
2. principal charge(addition by the Court of Appeal: I)(acts of preparation and facilitation of terrorist offences by helping others to join IS)
with having committed, in the period from 1 September 2014 through31 October 2014 in Arnhem and/or Doesburg, at least in the Netherlands and/or Syria, (jointly and in conjunction with others) the acts referred to under A through D with intent to prepare and or promote arson, bringing about an explosion, murder and/or manslaughter, on each occasion committed with terrorist intent.
2. principal charge (addition by the Court of Appeal: II)(complicity in participation of another in a terrorist organisation)
with being an accessory to, in the period from 1 September 2014 through 31 October 2014 in the Netherlands and/or Syria the participation of [Subject no. 1] in a terrorist organisation (IS) by committing the acts referred to under A through D.
2. alternative charge(
complicity in participation of another in a terrorist organisation):
complicity in participation of another in a terrorist organisation):
with being an accessory to, in the period from 1 September 2014 through 31 October 2014 in the Netherlands and/or Syria, the participation of [Subject no. 1] in a terrorist organisation (IS) by committing the acts referred to under A through D.
3.(participation in a terrorist organisation)
with having participated, in the period from 1 January 2014 through 25 November 2014 in Arnhem and/or Doesburg, at least in the Netherlands and/or Syria, in a terrorist organisation.
4.(the financing of terrorism)
with having, in the period from 1 January 2014 through 25 November 2014 in Arnhem and/or Doesburg, at least in the Netherlands and/or Syria, financed terrorism by performing acts as referred to under A through E.
The full indictment is attached to this judgment as an annexe.
4.The contested judgment
The judgment cannot be upheld as the Court of Appeal does not agree to it.
5. Validity of the summons
5.1
The Defence’s position
Defence counsel argued at the hearing in the Court of Appeal - in accordance with the memorandum of oral pleading that he submitted and after amendment of the charges on appeal - that the summons was invalid as far as counts 1 and 2 were concerned. Defence counsel argued as follows.
A. It is not clear whether the charges are intended to be interpreted cumulatively or alternatively. The charges in the case under consideration are and/or charges, where one count alleges two different offences, i.e. the preparation/facilitation of arson and/or bringing about an explosion with terrorist intent (Article 176b Dutch Criminal Code (hereinafter: DCC)), and the preparation/facilitation of murder and/or manslaughter committed with terrorist intent (Article 289a (2) DCC). First and foremost, the linking of ‘and/or’ suggests a combination of alternative (‘or’) as well as a cumulative (‘and’) charges. Does the Public Prosecution Service wish to leave it to the discretion of the court to find facts for both (divergent) offences on the basis of the same body of facts, or does it aim for just one conviction for, eventually, one offence? This is not clear from the charges, so that the effect is that the offences are submitted to the court cumulatively and, at the same time, alternatively. This causes the summons to be inherently inconsistent.
Besides, only one summing up of acts is provided for the statement and particulars of two offences (Artt. 176b and 289a DCC). It is not clear, therefore, which acts result in which offences. This means that the requirements of Article 261 Dutch Code of Criminal Procedure (hereinafter: DCCP) have not been complied with, so that the summons is also invalid.
5.2
The Prosecution’s position
The Prosecution argued that the summons is valid and that the defence must be rejected.
5.3
The Court of Appeal’s opinion
1. With regard to the defence put forward under A, the Court of Appeal considers that it is settled case law that an ‘and/or’ summons must be considered primarily as cumulative charges (‘and’) and alternatively as alternative charges (‘or’). The interpretation of the charges is reserved to the court deciding questions of fact, and it has wide discretion. The Court of Appeal finds that the charges in count 1 and 2 comply with the requirements of Article 261 DCCP, and that there is no question of inherent inconsistency.
2. With regard to the defence put forward under B, the Court of Appeal finds that the summing up of acts referred to in counts 1 and 2, if proved as facts, may lead to the preparation or facilitation of the offences referred to in Art. 157 in conjunction with Artt. 176b and 289a. The Court of Appeal has found no evidence of lack of clarity in this regard, so that the requirements of Article 261 DCCP are also complied with in this respect.
3. The Court of Appeal dismisses the defences with regard to the validity of counts 1 and 2 of the summons, therefore.
6. Background and evidentiary considerations [1]
6.1
Warring factions in the conflict in Syria
1. It is widely known, as is (also) evidenced by the generally accessible - and almost effortlessly traceable - open sources consulted by the Court of Appeal [2] , that a large part of the Syrian population started to offer peaceful resistance to the regime of president Bashar al-Assad in the spring of 2011. [3]
2. What had started as peaceful protest developed into an armed struggle, of which the civilian population was the victim predominantly. In December 2014 the death toll in the Syrian conflict was estimated at over 200,000. At that point, over three million Syrians had fled abroad, and the number of displaced persons in Syria totalled over 7.6 million. [4]
3. In the course of 2012 it became clear that jihadi warring factions, with both local and foreign fighters in its ranks, were increasingly involved in the insurrection in Syria against Assad’s regime. [5]
4. In the fight against Assad’s regime, two influential jihadi organisations that were affiliated with al-Qaeda also engaged in the conflict: Jabhat al-Nusra (as from 28 July 2016: Jabhat Fatah al-Sham) and Islamic State in Iraq and al-Sham (ISIS, also known as IS, ISI, ISIL, AQI or DAESH).
ISIS/IS
5. On 8 April 2013, ISI changed its name into Islamic State in Iraq and the Levant (ISIL), amongst other reasons to emphasize expansion of its activities into Syria. On 29 June 2014, ISIL proclaimed the Islamic caliphate in territory it had conquered in Iraq and Syria, and changed its name into Islamic State (IS). [6] Abu Bakr al-Baghdadi, the organisation’s emir, was appointed as ‘caliph’ of IS. [7]
6. Islamic State is regarded internationally as a terrorist organisation, and as such is a prohibited terrorist organisation in the Netherlands. On 30 May 2013, ISIL, as it was called at the time, was added to the UN [Security Council’s] Sanctions List. On 1 July 2013, ISIL, as it was called at the time, was included in the European Union financial sanctions list. [8]
7. The organisation had the object of establishing an Islamic caliphate transcending the borders of at least Syria and Iraq. It engaged in armed combat to accomplish this. [9]
8. During its military operations and its exercise of power in the territories it conquered in Iraq and Syria, ISIS/IS used the following methods: (suicide) attacks, executions, kidnappings, hostage-taking and torture. The organisation killed opponents by decapitation, crucifixion and shots to the head, according to reports from territory conquered or fought for by ISIS. [10]
Jabhat al-Nusra
9. On 24 January 2012, Jabhat al-Nusra announced its formation. [11]
10. Jabhat al-Nusra is regarded internationally as a terrorist organisation, and as such is a prohibited (terrorist) organisation in the Netherlands. On 30 May 2013, Jabhat al-Nusra was included in the UN Sanctions List as one of the aliases of al-Qaeda in Iraq. Jabhat al-Nusra was added to the EU (Financial) Sanctions List on 29 May 2014. [12]
11. The object of the organisation was to form an Islamic state. It engaged in armed combat to accomplish this. [13]
12. During its (military) operations, Jabhat al-Nusra used the following methods: (suicide) attacks, executions, shootings at civilians, kidnappings, torture and withholding humanitarian aid. [14] Many attacks committed in Syria in 2012 were claimed by Jabhat al-Nusra. Claims by Jabhat al-Nusra were published on the Internet via jihadi websites such as www.shamikh1.info and www.as-ansar.com, as well as via its own Twitter account. [15]
13. In late July 2014, the presence and influence of Jabhat al-Nusra were believed to be limited to the rural areas of Aleppo, Idlib and Hama. In the months following the proclamation of the caliphate by IS, Jabhat al-Nusra concentrated much more on acquiring control of the Turkish-Syrian border region in the north-west of Syria. In October 2014, Jabhat al-Nusra again achieved military successes in the province of Idlib. [16]
14. Both IS and Jabhat al-Nusra are organisations within the meaning of Article 140a DCC, as defined in settled Supreme Court case law. The serious offences described above were committed by these organized criminal groups characterized by a certain sustainability and structure, and consisting of large numbers of people. In view if the above, this is evident from,
inter alia, the stability of the organisations, in existence since 2012, their hierarchical structure and their representations to the outside world.
inter alia, the stability of the organisations, in existence since 2012, their hierarchical structure and their representations to the outside world.
Rapport ‘Bestemming Syrië’ [17]
15. The report ‘Destination Syria’ addresses the question whether travelling to Syria in 2014 was tantamount to an existence as a fighter, or whether other options were available as well. The report states as follows in this respect.
16. Since 2012, many people from Western Europe have travelled to the conflict region in Syria (and Iraq), including approximately 220 Dutch nationals. A vast majority of the Dutch foreign fighters joined the salafi-jihadi warring factions: ISIS and Jabhat al-Nusra (or groups affiliated to the latter). [18]
17. Upon arrival in Syria, the men are taken to training camps. After having completed this training, foreigners could end up in several different functions. Most, including Dutch nationals, were deployed as fighter, but examples are available that some of them played other parts. [19]
18. Less information is available about the options of fulfilling a position behind the front lines within Jabhat al-Nusra than within ISIS. Jabhat al-Nusra controlled substantial areas, so that in those areas certain non-military positions needed to be filled. However, those who ended up in such positions remained reservist as a result of the oath they took; they could be drafted by their emir to join in the fight at all times. Refusing appeared not to be an option. It is therefore impossible to assert that individuals who played a part behind the front lines could refuse violent battle entirely. [20]
19. Foreign fighters could be deployed in different ways. To guard border regions or checkpoints
(ribaat), or to fight on the front lines in due course, for instance. Others guarded prisons or were directly or indirectly involved in torture or executions. It has been found that fighters alternated periods at the front lines with periods behind the front lines. Once returned from the battle field, fighters also performed other duties, such as administrative ones,
da’wa(missionary work), rallies, or being on patrol in cities. [21]
(ribaat), or to fight on the front lines in due course, for instance. Others guarded prisons or were directly or indirectly involved in torture or executions. It has been found that fighters alternated periods at the front lines with periods behind the front lines. Once returned from the battle field, fighters also performed other duties, such as administrative ones,
da’wa(missionary work), rallies, or being on patrol in cities. [21]
Expert Weggemans
20. At the hearing of the Court of Appeal, Mr Weggemans, one of the authors of the report ‘Destination Syria’, was heard as an expert witness. He stated,
inter alia, that Jabhat al-Nusra was primarily a combat organisation. The expert further stated that if a person joined Jabhat al-Nusra, odds were that he would be involved in combat. [22] Within Jabhat al-Nusra, other positions exist as well. Weggemans believed it is highly unlikely that individuals holding those positions had no connections with Jabhat al-Nusra. [23] He also believed it highly unlikely that in areas controlled by Jabhat al-Nusra civilian positions can be fulfilled without actually joining Jabhat al-Nusra. [24]
inter alia, that Jabhat al-Nusra was primarily a combat organisation. The expert further stated that if a person joined Jabhat al-Nusra, odds were that he would be involved in combat. [22] Within Jabhat al-Nusra, other positions exist as well. Weggemans believed it is highly unlikely that individuals holding those positions had no connections with Jabhat al-Nusra. [23] He also believed it highly unlikely that in areas controlled by Jabhat al-Nusra civilian positions can be fulfilled without actually joining Jabhat al-Nusra. [24]
6.2
Terrorist offences
1. Article 83 DCC provides which offences are considered terrorist offences. They have in common that they must be committed with terrorist intent.
2. Article 83a defines terrorist intent as:
‘the objective to cause serious fear in the population or part of the population of a country, or to unlawfully force a government or international organisation to do something or refrain from doing something or tolerate certain actions, or to seriously disrupt or destroy the fundamental, political, constitutional, economic or social structures of a country or international organisation.’
3. The accused is charged with having committed acts in the period from 1 January 2014 up to and including 25 November 2014.
4. It is a generally known fact that in the period in which the offences as charged were committed, but even well before, jihadi combat organisations committed heinous offences, systematically and on a large scale.
5. These jihadist combat groups in Syria like Jabhat al-Nusra and IS(IS) wanted/want to impose on the civilian population, by violent means, a strictly Islamic society and/or state founded on sharia. That way, they intended to destroy the fundamental political structure of Syria within the meaning of Article 83a DCC. Many of these offences were committed with the object of causing serious fear in large parts of the population of these areas within the meaning of Article 83a DCC. To obtain their objective, the jihadist combat groups in Syria wreak/wreaked death and destruction amongst anyone who did not share their extremely fundamentalist faith. Executions, decapitations, and crucifixions were intentionally performed in public, therefore. The population was summoned or forced to attend, and sometimes videos were recorded and uploaded on the Internet. The
Independent International Commission of Inquiry on the Syrian Arab Republic(hereafter: IICISAR) stated in its report of 12 February 2014 that Jabhat al-Nusra and ISIS performed executions in public
“to assert their presence after taking control of an area and to instil fear among the population.” [25]
Independent International Commission of Inquiry on the Syrian Arab Republic(hereafter: IICISAR) stated in its report of 12 February 2014 that Jabhat al-Nusra and ISIS performed executions in public
“to assert their presence after taking control of an area and to instil fear among the population.” [25]
6. The offences committed by these combat groups, such as murder, manslaughter, arson and bringing about explosions et cetera, were committed with terrorist intent and are therefore terrorist offences. Participating in the armed struggle in Syria on the part of these combat groups is therefore in each case tantamount to committing terrorist offences. [26]
7.Assessment of the charges
7.1
Count 1 and count 2, principal charge I: Acts of preparation/facilitation of terrorist offences
7.1.1
Legal framework of acts of preparation and facilitation of terrorist offences, Article 96 (2) DCC (count 1, count 2 principal charge I)
1. The applicable penal provisions are as follows:
- Article 96 DCC:
1.
Conspiracy to commit any of the serious offences defined in Articles 92-95a
Conspiracy to commit any of the serious offences defined in Articles 92-95a
is punishable by a term of imprisonment of not more than ten years or a fine of the fifth category.
2.
The same punishment is applicable to a person who, with the object of preparing or promoting any of the serious offences defined in Articles 92-95a:
The same punishment is applicable to a person who, with the object of preparing or promoting any of the serious offences defined in Articles 92-95a:
1°. seeks to induce another person to commit such a serious offence, to assist in its commission, or to provide the opportunity, means or information for its commission;
2°. seeks to procure for himself or for others the opportunity, means or information for the commission of the serious offence;
3°. has at his disposal objects which he knows to be intended for the commission of the serious offence;
4°. prepares or has control of plans for the commission of the serious offence, which are intended to be communicated to others;
5°. seeks to render impossible, obstruct or thwart any measure taken by the government to prevent or suppress commission of the serious offence.
- Article 288a DCC:
Manslaughter, committed with terrorist intent, is punishable by life imprisonment or a term of imprisonment of not more than thirty years or a fine of the fifth category.
- Article 289 DCC:
A person who intentionally and with premeditation takes the life of another person is guilty of murder and liable to life imprisonment or a term of imprisonment of not more than thirty years or a fine of the fifth category.
- Article 289a DCC:
Conspiracy to commit with terrorist intent the serious offence defined in Articles 289 and the serious offence defined in Article 288a is punishable by a term of imprisonment of not more than ten years or a fine of the fifth category.
Article 96 (2) applies mutatis mutandis.
- Article 157 DCC:
A person who intentionally brings about a fire, an explosion or a flood, is liable:
1°. to a term of imprisonment of not more than twelve years or a fine of the fifth category, where general danger to property might have been expected to ensue from the act;
2°. to a term of imprisonment of not more than fifteen years or a fine of the fifth category, where danger to another person’s life might have been expected to ensue from the act;
3°. to a term of imprisonment of not more than twenty years or a fine of the fifth category, where danger to another person’s life might have been expected to ensue and where the act results in the death of a person.
- Article 176b DCC:
Conspiracy to commit with terrorist intent the serious offence defined in Articles 157, 161(2) and 161 (3), 161bis (3) and 161bis (4), 161quater, 161sexies (3) and 161sexies (4), 162, 164, 166, 168, 170, 172, 173a and 174 is punishable by a term of imprisonment of not more than ten years or a fine of the fifth category.
Article 96 (2 applies mutatis mutandis.
2. The Supreme Court ruled, briefly stated, that in order to declare proved the preparation or facilitation (referred to in Article 96 (2)) of the offences defined in Article 289a DCC [27] , it suffices if the accused intended to commit those offences, without a specification being required of the offence being prepared or promoted as regards time, place and manner of commission. The Supreme Court considered in this connection that, having regard to the legislative history, the required degree of specification for the applicability of Article 46 DCC also applies to Article 96 (2) DCC. Therefore, it is only required that it is sufficiently determinable for the commission of which offence defined in Article 289a DCC the acts of preparation or facilitation defined in Article 96 (2) DCC were intended (Supreme Court 17 September 2002, ECLI:NL:HR:2002:AE4200, NJ 2002/626,
NbSr2002/244 and Supreme Court 28 January 2014, ECLI:NL:HR:2014:179,
NbSr2014/95). [28]
NbSr2002/244 and Supreme Court 28 January 2014, ECLI:NL:HR:2014:179,
NbSr2014/95). [28]
7.1.2
The positions of the Prosecution and of the Defence
7.1.2.1 The Prosecution’s position
The Prosecution argued that the charges can be proved.
5.1
The Defence’s position
1. The Defence requested that the accused be acquitted.
2. With regard to count 1 the accused asserted that he wished to travel to the region in Syria controlled by Jabhat al-Nusra in order to start a haulage company.
3. The defence argued, briefly stated, that the accused had indeed inquired about travelling and the itinerary to Syria, but not to the combat zone. He did not provide any information about this. He did not have any details about jihadist ideology in his possession. Therefore, the sums of money that had been transferred were irrelevant. He did not express the wish to join the armed struggle. In light of this the required intent to prepare or promote a terrorist crime as charged is absent in the accused.
4. With regard to count 2 principal charge I, the defence argued that, as the accused did not know that [Subject 1] wished to participate in the armed struggle, the required intent to prepare terrorist offences was absent.
5. Besides, the defence found with regard to both count 1 and count 2 principal charge I that the acts committed by the accused were not aimed with sufficient determination at the terrorist offences referred to in the charges, so that the requirement of specificity/determinability was not met.
7.1.3
Facts found by the Court of Appeal
1. The Court of Appeal determines as follows, on the basis of the proceedings and in the order of the charges in the indictment:
Parts 1. A, B, C and G of the charges
2. The accused stated at trial in the Court of Appeal l that he had travelled to Syria and had returned to the Netherlands in December 2013. [29] Subsequently, he wanted to travel to Syria by car together with co-accused [co-accused 1] (hereinafter: [co-accused 1]). [30] The accused intended to settle there. [31] [Co-accused 1] also wanted to travel to Syria, and asked the accused to think along with him. [32] Both the accused [33] and [co-accused 1] [34] spoke about their plans to travel to Syria in veiled language.
3. On 5 April 2014 the accused was in touch via WhatsApp with ‘[subject 7]’, who used a Syrian telephone number, about the route to be taken. [35] In September and October 2014 the accused was in touch about this via Skype or Facebook with [subject 2] [36] , who used skype name ‘[skype name subject 2]’. [37] At trial in the Court of Appeal the accused stated that he asked [subject 2], who was participating in the armed struggle in Syria on the part of IS [38] at the time, about routes from the Netherlands to Turkey. [39] [Subject 2] gave the accused several options. [40] According to the accused it is easy for a Muslim male to enter Syria. [41]
4. Subsequently, the accused wanted to go to Jabhat al-Nusra controlled territory near Aleppo (Kaffr Hamra) and Atme [42] (both in the northwest of Syria). It follows from Expert document 140a by Doctor Jolen that the Syrian towns referred to by the accused were a combat zone after July 2014. At the time, Jabhat al-Nusra was concentrating on acquiring control of the Turkish-Syrian border region in northwest Syria. In October 2014, Jabhat al-Nusra achieved military successes in the province of Idlib [43] , in which Atme is situated. This is confirmed by the accused’s statement that [subject 3] was in an area where bombings occurred, and that [subject 3] wanted the accused (who had been in Kaffr Hamra in northwest Syria in November 2013 already [44] ) to return. [45]
5. In chat messaging of 30 July 2014 between the accused and an individual who was believed to be in Syria, using a Syrian telephone number, the accused asked how life was there, and whether a new frontline was going to be opened. The other told the accused he is being missed, and then gave a short breakdown of developments within the fighting in Syria. [46]
6. Furthermore, it emerges from a chat with [subject 2] of 12 October 2014 that [subject 2] advises the accused to travel via Greece, pretending to be Syrian and saying in Arabic that he wants to travel on to Syria. The accused stated that he took Arabic classes in Arnhem, because that was a good idea if you are going to Syria. [47] In that same chat message, the accused mentioned that he was going to Jabhat al-Nusra. [48] On 30 May 2013, Jabhat al-Nusra had been included in the UN Sanctions List. [49]
7. [ Co-accused 1], with whom the accused was going to travel to Syria, stated to [subject 4] on 7 September 2014 that he was going to join “there”, to which [subject 4] answered that he was going to join “them”, upon which [co-accused 1] said: “I’ll see you on the battlefield then, we’ll meet up.” [50]
Parts 1. D and E of the charges
8. On 30 October 2014, [co-accused 1] possessed a list of ‘ten (10) things to observe’. It includes the following: 1. Do not communicate with anyone via social media if they are in Syria; 2. Do not discuss this with anyone, not even your closest friends or relatives. 3. Everybody knows about it, so hurry when you are crossing the border. 4. Eat as much as you can (...). (...). 8. Have a medical check-up before you come her. (...). 9. Say a lot of prayers????. 10. Only do it in the name of Allah! [51]
9. [ Co-accused 1] and the accused chatted via WhatsApp on 30 August 2014, discussing “a shopping list”. On 3 October 2014, [co-accused 1] received a file from the accused via WhatsApp. [52] This was a picture of the shopping list, which read: creating a Facebook account, creating a Skype account, have WhatsApp, extend or apply again for passport/ID card, excuse: stolen/lost, deregister with the municipality “studies at relatives’ place or something”, stop health insurance and the like, take diarrhoea tablets, sturdy winter coat, boots, trousers, smartphone, Ibuprophen, Paracetamol, Nivea cream, insulated clothing, lots of money. [53]
10. The Court of Appeal establishes that the above ‘10 things to observe’ and the ‘shopping list’ are instructions and things to do before travelling to Syria and/or Iraq with the object of joining armed combat.
11. In the Iphone 5C mobile phone, seized during the search of the premises of [co-accused 1], a
hadithis found, traditions handed down with the rules of war drafted by Abu Bakr, the first caliph. [54]
hadithis found, traditions handed down with the rules of war drafted by Abu Bakr, the first caliph. [54]
12. The accused was arrested on 25 November 2014. [55]
Parts 2. A and B of the charges
13. The accused stated at trial in the Court of Appeal that he was an intermediary for [subject 1] with regard to the latter’s journey to Syria. He stated that [subject 1] knew that he had been in Syria, and that [subject 1] had asked him for contacts in Syria so he could travel to territory controlled by IS. Allegedly, the accused had said that he knew someone, namely [subject 2], a good friend from Arnhem, who had joined IS in Syria. [56]
14. Between 30 September and 24 October 2014, the accused chatted with [subject 2] via Facebook chats, using the name ‘[nick name accused]’. On 30 September 2014, the accused wrote that “a brother wanted to go on a holiday”. [Subject 2] then wrote that this brother should contact him via Facebook upon his arrival in Kasienteb. [57] The Court of Appeal construes Kasienteb as referring to the town of Gazientep/Gaziantep, a town in southeast Turkey close to the Syrian border. On 21 October 2014, the accused says that it concerns [subject 1], a tall young bloke of 6 ft 3, Somal”. [Subject 2] says he wants to give him
teskiaa. [58] [59]
teskiaa. [58] [59]
15. It emerges from the casefile that on Saturday 18 October 2014 [mother of subject 1] reported as missing her son [subject 1], born [date of birth subject 1] in Somalia. [60] According to the Municipal Personal Records Database, the last passport issued for [subject 1] was issued at Arnhem on [date]. According to the passport his height is 6 ft 2. [61]
16. On 19 October 2014 the accused and [subject 2] chat, in which the latter says “soma” is not online. The accused replies by saying that “he is almost there”, via “[subject 5], who will help him cross”. [Subject 2] says that he will try and reach the brother (Soma) in Jarabulus. [62] The Court of Appeal construes this as referring to Jarabulus, a town in Syria near the Turkish border at a distance of about 90 kilometres from Gazienteb.
17. At trial in the Court of Appeal, the accused stated about the chat conversation with [subject 2] of 21 October 2014 that [subject 2] was prepared to give [subject 1]
teskiaa.It meant that he was prepared to act as guarantor for him. If someone acted as a guarantor, a person could enter the territory without being subjected to a procedure. The accused also stated that he had asked [subject 5] to help [subject 1] if [subject 2] could not help him. [63] In a chat conversation between the accused and [subject 5] of 17 October 2014 the accused answered, when asked, that [subject 1] wanted to join IS (“Yes, IS”). [64] An image
(screenshot
)of a newspaper Article was found on the accused’s computer, with the headline: “[subject 5] recruits Muslim youths for ISIS”. [65]
teskiaa.It meant that he was prepared to act as guarantor for him. If someone acted as a guarantor, a person could enter the territory without being subjected to a procedure. The accused also stated that he had asked [subject 5] to help [subject 1] if [subject 2] could not help him. [63] In a chat conversation between the accused and [subject 5] of 17 October 2014 the accused answered, when asked, that [subject 1] wanted to join IS (“Yes, IS”). [64] An image
(screenshot
)of a newspaper Article was found on the accused’s computer, with the headline: “[subject 5] recruits Muslim youths for ISIS”. [65]
Acquittals
Part 1. F of the charges
18. As the acts charged under F did not serve to prepare the accused’s own journey and his joining Jabhat al-Nusra, the accused is acquitted of this part of the charges.
Parts 2. C and D of the charges
19. As there is no evidence in the casefile showing that the accused passed on directly an itinerary and a contact person to [subject 1], the accused is acquitted of these parts of the charges.
Discussion of the accused’s defence regarding the alternative scenario for the charges under 1
20. The accused asserted that he wished to travel to the region in Syria controlled by Jabhat al-Nusra in order to start a haulage company. The accused was going to conduct a survey first for this purpose to find out about supply and demand and what prices he could charge.
21. The Court of Appeal finds first and foremost that the casefile does not provide any basis (such as intercepted telephone conversations or chats) for the correctness of the scenario proposed by the accused. The accused failed to substantiate his intention to start a haulage company there even when asked at trial.
22. The Court of Appeal infers from the statement made by expert witness Weggemans at the trial that it was highly unlikely, but not out of the question, that one could hold a civil position in Jabhat al-Nusra controlled territory without actually joining the organisation. He considered it unlikely that anyone would travel to Jabhat al-Nusra controlled territory to do anything but fight, but not out of the question. The expert believed that odds are that one gets involved in the struggle. In the opinion of the Court of Appeal that is even more plausible as it has inferred from the evidence before that the accused intended to travel to the
combatzone of Jabhat al-Nusra in Syria.
combatzone of Jabhat al-Nusra in Syria.
23. Under the circumstances the Court of Appeal finds that the alternative scenario, that the accused was going to conduct an on the spot survey and then start a haulage company, has not been demonstrated convincingly. It would have been logical for the accused to provide more specific clues. Finally, the Court of Appeal considers that the accused was arrested on 25 November 2014, and mostly remained silent when he was heard, and did not state until 12 May 2015 that he intended to start a haulage company to transport people, potatoes, fruits and vegetables in Syria “together with [subject 6], who had just been killed in a bombing”. At the hearing of 14 February 2016 the accused claimed that he wanted to start a small haulage company in territory controlled by Jabhat al-Nusra.
7.1.4
Consideration of the Court of Appeal with regard to the charges in counts 1 and 2 in connection with Article 96(2) DCC
7.1.4.1 Object and specification
1. With regard to count 1 of the charges the Court of Appeal infers from the facts found in respect of the acts committed by the accused, that he intended to travel to Syria together with [co-accused 1] and to join Jabhat al-Nusra.
2. With regard to count 2 principal charge I the Court of Appeal infers from the facts found in respect of the acts committed by the accused, that he tried to induce [subject 2] and [subject 5] to assist and provide information in order to help [subject 1] to join IS after having travelled from the Netherlands to Syria.
3. The object of committing acts of preparation follows from these findings, as participation in armed combat in Syria alongside these combat groups is in each case tantamount to committing terrorist offences.
4. It follows from the Court of Appeal’s assumption set forth in chapter 6 above, that in armed combat, briefly put, murders are committed, fires started and explosions brought about on a daily basis. The accused, [co-accused 1] and [subject 1]’s object of joining armed combat, therefore, constitute a sufficiently determinable specification of the terrorist offences defined in Artt. 157 in conjunction with 176b and/or 289(a) and/or 288a DCC.
7.1.5
Conclusion regarding counts 1 and 2 of the charges
Count 1
1. On the grounds of what it has declared legally and conclusively proved, the Court of Appeal finds the accused guilty of participation in acts of preparation and facilitation with intent to commit the offences defined in Art. 157 in conjunction with Art. 176b, 289(a) and 288a DCC, by providing information about the commission of offences to himself and/or others.
Count 2 principal charge I
2. On the grounds of what it has declared legally and conclusively proved, the Court of Appeal finds the accused guilty of attempting, with intent to commit the offences defined in Art. 157 in conjunction with Artt. 176b, 289 and 288a DCC, to induce other persons to assist in those offences or to provide opportunity or information thereon.
7.2
Count 2 principal charge II
7.2.1
Acquittal
1. In count 2 principal charge II, the accused is charged with having, either cumulatively or alternatively, caused another, namely [subject 1], to participate in a terrorist organisation.
2. In this respect, the Court of Appeal declared proved that the accused committed acts of preparation /facilitation of terrorist offences by helping [subject 1] to travel to Syria and join IS.
3. The Court of Appeal cannot establish on the basis of the casefile, however, whether [subject 1] did in fact join IS.
4. Therefore, the Court of Appeal will acquit the accused of this part of the charges.
7.3
Count 4: The financing of terrorism
7.3.1.
Legal framework financing of terrorism
1. The charge in count 4 pertains to Art. 421 DCC, which penalizes the financing of terrorism.
2. Art. 421 DCC reads as follows:
1.
As guilty of financing terrorism a term of imprisonment of not more than eight years or a fine of the fifth category shall be imposed upon:
As guilty of financing terrorism a term of imprisonment of not more than eight years or a fine of the fifth category shall be imposed upon:
a.
a person who intentionally provides means or information to himself or another, or who intentionally collects, acquires, possesses or provides to another any objects which are intended, in whole or in part, directly or indirectly, to support financially the commission of a crime or a crime to prepare a terrorist crime;
a person who intentionally provides means or information to himself or another, or who intentionally collects, acquires, possesses or provides to another any objects which are intended, in whole or in part, directly or indirectly, to support financially the commission of a crime or a crime to prepare a terrorist crime;
b.
a person who intentionally provides means or information to himself or another, or who intentionally collects, acquires, possesses or provides to another any objects which are intended, in whole or in part, directly or indirectly, to support financially the commission of one of the offences defined in:
a person who intentionally provides means or information to himself or another, or who intentionally collects, acquires, possesses or provides to another any objects which are intended, in whole or in part, directly or indirectly, to support financially the commission of one of the offences defined in:
-
Artt. 117 through 117b, as well as Art. 285, if the offence is targeted against an internationally protected person or his or her protected property;
Artt. 117 through 117b, as well as Art. 285, if the offence is targeted against an internationally protected person or his or her protected property;
-
Artt. 79 and 80 of the Nuclear Energy Act, Artt. 161quater, 173a and 284a, as well as Artt. 140, 157, 225, 310 through 312, 317, 318, 321, 322, and 326 if the offence constitutes an intentional unlawful act in respect of nuclear material;
Artt. 79 and 80 of the Nuclear Energy Act, Artt. 161quater, 173a and 284a, as well as Artt. 140, 157, 225, 310 through 312, 317, 318, 321, 322, and 326 if the offence constitutes an intentional unlawful act in respect of nuclear material;
-
Artt. 162, 162a, 166, 168, 282a, 352, 385a through 385d;
Artt. 162, 162a, 166, 168, 282a, 352, 385a through 385d;
-
Artt. 92 through 96, 108, 115, 121 through 123, 140, 157, 161, 161bis, 161sexies, 164, 170, 172, 287, 288, and 289, if they are offences committed by intentionally unlawfully causing a discharge or explosion of an explosive or other object, or the release, distribution or causing an interaction of an object/substance which is life-threatening or may cause serious bodily harm to another or substantial material damage.
Artt. 92 through 96, 108, 115, 121 through 123, 140, 157, 161, 161bis, 161sexies, 164, 170, 172, 287, 288, and 289, if they are offences committed by intentionally unlawfully causing a discharge or explosion of an explosive or other object, or the release, distribution or causing an interaction of an object/substance which is life-threatening or may cause serious bodily harm to another or substantial material damage.
2.
Property is comprised of all things and all proprietary rights and interests.
Property is comprised of all things and all proprietary rights and interests.
3. Art. 421 DCC entered into force on 1 September 2013.
4. Art. 421 DCC implements Art. 2 in conjunction with Art. 4 of the International Convention for the Suppression of the Financing of Terrorism (hereinafter: the Convention). [66] This Convention entered into force in the Netherlands on 10 April 2002. [67]
5. Art. 2 of the Convention reads:
1.
Any person commits an offence within the meaning of this Convention if that person by any means, directly or indirectly, unlawfully and wilfully, provides or collects funds with the intention that they should be used, or in the knowledge that they are to be used, in full or in part, in order to carry out:
Any person commits an offence within the meaning of this Convention if that person by any means, directly or indirectly, unlawfully and wilfully, provides or collects funds with the intention that they should be used, or in the knowledge that they are to be used, in full or in part, in order to carry out:
a.
an act which constitutes an offence within the scope of and as defined in one of the treaties listed in the annexe; or
an act which constitutes an offence within the scope of and as defined in one of the treaties listed in the annexe; or
b.
any other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organisation to do or to abstain from doing any act;
any other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organisation to do or to abstain from doing any act;
[…]
3.
For an act to constitute an offence set forth in paragraph 1, it shall not be necessary that the funds were actually used to carry out an offence referred to in paragraph 1, subparagraphs (a) or (b).
For an act to constitute an offence set forth in paragraph 1, it shall not be necessary that the funds were actually used to carry out an offence referred to in paragraph 1, subparagraphs (a) or (b).
4.
Any person also commits an offence if that person attempts to commit an offence as set forth in paragraph 1 of this Article.
Any person also commits an offence if that person attempts to commit an offence as set forth in paragraph 1 of this Article.
5.
Any person also commits an offence if that person:
Any person also commits an offence if that person:
a.
participates as an accomplice in an offence as set forth in paragraph 1 or 4 of this Article;
participates as an accomplice in an offence as set forth in paragraph 1 or 4 of this Article;
b.
organizes or directs others to commit an offence as set forth in paragraph 1 or 4 of this Article;
organizes or directs others to commit an offence as set forth in paragraph 1 or 4 of this Article;
c.
contributes to the commission of one or more offences as set forth in paragraph 1 or 4 of this Article by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either:
contributes to the commission of one or more offences as set forth in paragraph 1 or 4 of this Article by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either:
i.
be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of an offence as set forth in paragraph 1 of this Article;
be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of an offence as set forth in paragraph 1 of this Article;
ii.
be made in the knowledge of the intention of the group to commit an offence as set forth in paragraph 1 of this Article.
be made in the knowledge of the intention of the group to commit an offence as set forth in paragraph 1 of this Article.
6. Under Art. 4 of the Convention the State Parties are obliged to penalize the offences defined in Art. 2 in their respective domestic legislations and impose appropriate sentences that take the seriousness of the offences into consideration.
7. It follows from the Explanatory Memorandum to the approval and implementation of the Convention in 2001 that the legislator then adopted the position that the obligation to penalize pursuant to Art. 2 in conjunction with Art. 4 of the Convention could be complied with under the provisions already included in the Dutch Criminal Code, including in particular preparation of an offence as defined in Art. 46, and participation in an organisation that has as its object the commission of serious offences, penalized in Art. 140 DCC. [68]
8. Since, the legislator has come to the conclusion that the approach adopted at the time was not entirely consistent/conclusive/watertight in a few respects. This is explained as follows in the Explanatory Memorandum to the Bill resulting in the implementation of Art. 421 DCC:
‘Some of the many punishable offences earmarked at the ratification of the several Conventions as being required for the implementation of these Conventions were not punishable by a term of imprisonment of eight years or more; which is, however, a requirement for the application of Art. 46 DCC.’ [69]
9. However, the above did not prejudice the fact that, in the legislator’s opinion, even without having opted for penalizing the financing of terrorism separately, Dutch legislation complied with Special Recommendation II of the
Financial Action Task Force(hereinafter: FATF) from 2004 [70] (now Recommendation 5) [71] , viewed in conjunction with the
Interpretative Notedrafted by the FATF (a binding interpretation), which defines eleven requirements with which the penalization of the financing of terrorism must comply. [72]
Financial Action Task Force(hereinafter: FATF) from 2004 [70] (now Recommendation 5) [71] , viewed in conjunction with the
Interpretative Notedrafted by the FATF (a binding interpretation), which defines eleven requirements with which the penalization of the financing of terrorism must comply. [72]
10. In 2011, following the evaluation of Dutch policy and legislation regarding the fight against money laundering and the financing of terrorism, the FATF made the recommendation to the Dutch government to penalize the financing of terrorism autonomously in order to combat it after all. [73] With the entry into force of Art. 421 DCC the said recommendation has been implemented. [74] It was thought that independent penalization could have an added value after all, in terms of easy application and recognition. Furthermore, the drafting of an autonomous penalization offered an opportunity to clarify the substance and scope of the penalization. [75]
7.3.2
Elements of Art. 421 DCC
7.3.2.1. Intent to finance terrorism
1. The legislator chose to express the required intent on the part of the perpetrator in the description of the offence by including the term ‘intentionally’ in Art. 421 DCC. This implemented Art. 2 of the Convention, which obliges the penalization of providing financial means if this is done
‘with intent to use them or knowing that they will be used, in whole or in part.’
2. The legislator’s purpose with the term ‘intentionally’ was to express both intent and conditional intent in the penalization. By way of explanation, the Minister of Security and Justice commented in the Memorandum of reply to the Bill to implement Art. 421 DCC:
‘The phrase “with the intention that”, included in Article 2 of the UN Convention is equivalent to the interpretation that is usually given to acting ‘with the object of’ in Dutch criminal law. The object presupposes a strong will on the part of the perpetrator to achieve the intended result of his acts. Establishing conditional intent does not suffice.
In the Dutch doctrine of criminal law the second modality of intent referred to in Article 2 of the UN Convention, i.e. “in the knowledge that”, is considered a more general expression of intent on the part of the perpetrator. In principle, establishing conditional intent (knowingly accepting the substantial risk that the act will have the said result) is sufficient in this respect (J. de Hullu, Materieel strafrecht [Substantive criminal law], 4th ed., 2009, pp. 245-249). (...) It also follows from this that conditional intent on the part of the perpetrator in each case suffices for punishability: that he knowingly accepted the substantial risk that his acts serve to provide monetary support to the commission of terrorist offences.’ [76]
3. The perpetrator does not need to envisage the financing of a specific crime. What must be proved is that the perpetrator’s intent is aimed at the financing of an offence that falls within the scope of the offences collectively referred to in Article 421 DCC, regardless of which offence it pertains to exactly. [77]
4. Neither is relevant whether
‘a terrorist offence is in effect committed after monetary support was provided.’ [78]
5. Furthermore, no punishability exists if the monetary support provided was not used for the commission of a terrorist offence. [79]
6. It is irrelevant how, after completion, the financed terrorist offence is qualified under criminal law.
‘If the offence is qualified simply as intentional destruction of property (Article 350 DCC), this does not affect the punishability of the financing if it concerned an aggravated form of destruction, for instance, destruction with terrorist intent (Article 354a DCC), or the destruction of an aeroplane (Article 168 DCC), referred to in 1(b) of the proposed Article 421 DCC.’ [80]
7. Pursuant to item 2 of the
Interpretative Noteto Recommendation 5 of the FATF the legislator is also obliged to penalize the financing of (individual) terrorists and terrorist organisations. In this connection, the
Interpretative Notereads:
Interpretative Noteto Recommendation 5 of the FATF the legislator is also obliged to penalize the financing of (individual) terrorists and terrorist organisations. In this connection, the
Interpretative Notereads:
2. Terrorist financing offences should extend to any person who wilfully provides or collects funds or other assets by any means, directly or indirectly, with the unlawful intention that they should be used, or in the knowledge that they are to be used, in full or in part: (a) to carry out a terrorist act(s); (b) by a terrorist organisation; or (c) by an individual terrorist. [81]
8. The legislator has implemented this via conditional intent. This is commented on as follows in the Explanatory Memorandum to the Bill resulting in the implementation of Art. 421 DCC:
Finally, I would like to point out that, by virtue of the concept of conditional intent explained above, the penalization of providing monetary support can also consist of, more generally, providing financial support to a person or to organisations involved in the commission of terrorist offences, if the perpetrator knowingly accepts the substantial risk that the funds provided will be used for the commission of such offences. [82]
9. In the Memorandum of reply referred to above, the Minister of Security and Justice stated explicitly that providing monetary support to a person who is known to be involved in terrorism is punishable. However, the provider of monetary support must have knowledge of the recipient’s involvement in terrorist activities. The Minister of Security and Justice made the following comment in this respect:
Furthermore, with the concept of autonomous penalization it is beyond any doubt that the attempted financing of terrorist offences is punishable in all circumstances. The same is true for providing monetary support to a person who is known to be involved in terrorism: [underlining added by the Court of Appeal] by virtue of the proposed punishability, providing monetary support to such a person is punishable via the concept of (conditional) intent. [83]
10. In summary, the above means that, in accordance with the provisions in Article 421 DCC, when providing monetary support to a person who is known to be involved in terrorism, the accused knowingly accepts the substantial risk that these funds are used to commit terrorist offences.
11. For provability of a charge based on Article 421 DCC it is irrelevant whether the accused acted out of loyalty to a relative or a (close) friend, or out of an ideological conviction.
7.3.2.2 Offences to which financing pertains
1. Terrorist offences to which financing may pertain are, in the first place, those offences that have been qualified as terrorist offences pursuant to Article 421(1) DCC by the Offences of Terrorism Act [84] implementing the Framework Decision on terrorist financing. [85] You are referred to Art. 83 DCC.
2.
In the second place, Art. 421(1) penalizes the financing of offences of preparing and facilitating a terrorist crime. These offences have been earmarked as offences of preparing and facilitating a terrorist crime in Art. 83b DCC by the Act of 12 June 2009. [86] This followed the implementation of the Council of Europe Convention on the Prevention of Terrorism, signed in Warsaw on 16 May 2005. [87]
In the second place, Art. 421(1) penalizes the financing of offences of preparing and facilitating a terrorist crime. These offences have been earmarked as offences of preparing and facilitating a terrorist crime in Art. 83b DCC by the Act of 12 June 2009. [86] This followed the implementation of the Council of Europe Convention on the Prevention of Terrorism, signed in Warsaw on 16 May 2005. [87]
3. The Explanatory Memorandum to the Bill leading to the implementation of Art. 421 DCC gives some examples:
This is conceivable, for instance in the form of monetary support for an incitement campaign (Article 131 DCC), or for a network which has as its object the recruiting of persons for armed combat abroad (Article 205 DCC). [88]
4. In the third place, Art. 421(2) lists Dutch penal provisions implementing the obligation to penalize the financing of numerous acts from nine UN conventions as described in the Convention. [89]
5. Finally, the financing of individual terrorists and terrorist organisations is also punishable. Their punishability implements the obligation under item 2 of the
Interpretative Noteincluded in Recommendation 5. The Explanatory Memorandum explains that this obligation is implemented by means of conditional intent, as was stated before.
Interpretative Noteincluded in Recommendation 5. The Explanatory Memorandum explains that this obligation is implemented by means of conditional intent, as was stated before.
Monetary support to a person who is referred to in FATF terms as a “terrorist” (a person who commits or is an accessory to the commission of terrorist acts, or who is in charge of or participates in a terrorist organisation that has as its object the commission of terrorist offences) is punishable via the element of conditional intent, as the perpetrator knowingly accepts the substantial risk that the funds provided will be used toward the commission of terrorist acts. [90]
6. The Court of Appeal construes that the underlying idea is, that the funds, provided to individuals or otherwise, enable the terrorists and terrorist organisations to commit their offences.
7.3.2.3. Terrorist financing acts
The Explanatory Memorandum points out that terrorist financing may assume a multitude of manifestations, namely
‘all manners in which support is given, financially and economically to the commission of acts of terrorism or conduct immediately related.’ [91] In the description of the offence this is summarized as ‘providing monetary support’, which means the granting of any advantage capable of being expressed in money. It is irrelevant which objects are involved with which the advantage is provided, nor whether their origins are legal or illegal. Due to the phrases ‘in full or in part’ and ‘directly or indirectly’, financing of only part of a terrorist act, or financing via other persons or legal entities fall under the scope of the penal provision. [92]
‘all manners in which support is given, financially and economically to the commission of acts of terrorism or conduct immediately related.’ [91] In the description of the offence this is summarized as ‘providing monetary support’, which means the granting of any advantage capable of being expressed in money. It is irrelevant which objects are involved with which the advantage is provided, nor whether their origins are legal or illegal. Due to the phrases ‘in full or in part’ and ‘directly or indirectly’, financing of only part of a terrorist act, or financing via other persons or legal entities fall under the scope of the penal provision. [92]
7.3.3
Positions of the Prosecution and of the Defence
7.3.3.1 The Prosecution’s position
The Prosecution adopted the position, in summary and in essence, explained further in the memorandum that it submitted of its closing speech, that the charges can be proved legally and conclusively on the basis of the evidence referred to in the closing speech.
7.3.3.2 The Defence’s position
At trial, the Defence deferred to the discretion of the Court of Appeal.
7.3.4
Facts found by the Court of Appeal
1. The Court of Appeal determines as follows, on the basis of the documents in the case and the proceedings. The Court of Appeal will follow the order of the charges in the indictment in establishing the facts.
2. The accused stated at trial in the Court of Appeal that he had been involved in sending money to Syria in the past, including in 2014. [93]
3. The accused used WhatsApp, Facebook and Skype to keep in touch with persons who were in Syria. [94]
Part A of the charges
4. According to his own statement, the accused was in Syria in November 2013. He returned to the Netherlands in early December. [95] Back in the Netherlands, the accused kept in touch with [nickname subject 6] and [subject 3] via chat messaging. The accused spent time with them during his stay in Syria. The official name of [nickname subject 6] is [subject 6]. [96] The official name of [subject 3] is [subject 3] according to a newspaper Article about which the accused and [subject 3] chat. [Subject 3] is referred to in that newspaper Article as [‘headline newspaper Article’]. In the chat conversation, [subject 3]asks the accused: “Did you see me on the news bruvv (...) Typ in google [search term]”. Apparently, the accused searched for the newspaper Article, then responds with “hahaha yes (...) I saw it”. [97]
5. It turns out from a WhatsApp conversation between the accused and [subject 6] and later [subject 3] on 6 January 2014, that the accused left behind personal belongings during his stay in Syria, including a belt bag containing money. [98] In the said chat conversation with [subject 6], the accused said to [nickname subject 6]: “There is also a belt bag with lucre and the like, keep that on you.” In a later WhatsApp conversation of 25 January 2014 between the accused and [subject 3], the latter confirmed that [nickname subject 6] received the bag. [Subject 3] said about this: ”[Nickname subject 6] recievied ur bag.” The accused answered that he already knew. [99] Therefore, the accused gave money to [subject 6] [nickname subject 6].
6. In a WhatsApp conversation, the accused discussed that [subject 6] had died in Syria on 23 September 2014. The accused said that they were American missiles, and, when asked, answered that [subject 6] was not on a mission at the time, but resting. [100] At trial on appeal, the accused stated that it happened during a coalition bombardment. [101] In another WhatsApp conversation of that day the accused asked [subject 3] whether [nickname subject 6] [subject 6] died as a martyr
(“Did [nickname subject 6] go shaheed”).[Subject 3] confirmed this. He also described that he held [subject 6] in his arms when he wa still alive, and that
“he was in soo much peace”. [102] About the duties of [nickname subject 6], the accused said at the trial on appeal that [subject 6] was a kind of police man, and that he was involved in maintaining and confirming order. [103]
(“Did [nickname subject 6] go shaheed”).[Subject 3] confirmed this. He also described that he held [subject 6] in his arms when he wa still alive, and that
“he was in soo much peace”. [102] About the duties of [nickname subject 6], the accused said at the trial on appeal that [subject 6] was a kind of police man, and that he was involved in maintaining and confirming order. [103]
7. [ Subject 6] was from the Netherlands. The Court of Appeal arrives at this conclusion on the basis of the following facts and circumstances. [Subject 6] spoke Dutch in his conversations with the accused. After the death of [subject 6], the accused contacts the sister of [subject 6] who uses a Dutch telephone number [sister subject 6]. [104] The accused turns out to possess the cash card belonging to [subject 6]’s bank account with ING Bank. [105]
8. [ Subject 6] was a jihadi fighter from the Netherlands. In this connection, the Court of Appeal took into consideration that according to ‘Destination Syria’, the report referred to earlier, ”the vast majority of foreign men travels to Syria to participate in the armed conflict as a fighter, (...) that this is certainly the case with persons who consciously want to join smaller combat groups” [106] , about which finding one of the authors of the report, D.J. Weggemans stated as an expert witness at the hearing of the Court of Appeal: “In early 2013 the picture of what happened in the area differed from that in 2014. In 2013 the picture was of going there to help. In the course of time, it became clear to most people that fighting would become the mainstay.” [107] More particularly, the Court of Appeal took into consideration with respect to [subject 6] the accused’s reference to [subject 6]’s duties as a police man, the assertion that he went on missions at other times in conjunction with the question whether [subject 6] died as a martyr. This question put by the accused and the affirmative answer confirm the image that [subject 6] was a jihadi fighter, to whom dying as a martyr was presented as one of the prospects within the framework of armed jihadi combat. [108]
9. Pursuant to the above, read in conjunction with each other, the Court of Appeal finds that [subject 6] participated in armed jihadi combat in Syria and that the accused was aware of this.
Part B of the charges
10. In February and March 2014, the accused has WhatsApp conversations on his Wolfgang phone with a person who calls himself [subject 7]. This person uses Syrian telephone number [telephone number subject 7]. [109]
11. In a WhatsApp conversation of 25 March 2014, the accused says to [subject 7] that he has collected money for the brothers. [110] He says he has collected “2 doezoe” already. [111] The accused adds: “Is rising.” [112] [Subject 7] says that [nickname subject 6] [subject 6] will divide it. [113] In a conversation of 5 April 2014 the accused reports that money has been sent, that it’s on its way and that it includes a share for [subject 7]. [114]
12. In a chat conversation of 31 January 2014, the accused asked [subject 7] for gruesome pictures of himself and the brothers. [115] On 6 February 2014, [subject 7] answers the accused that the brothers are on
ribaat.
Ribaatmeans, in this context, participation in the armed conflict by guarding border areas and/or checkpoints. [116] [Subject 7] also chats about a boy who died as a martyr because a pole fell on top of him in a shooting by a tank. [117] Pursuant to the above, the Court of Appeal assumes that [subject 7] was also involved in armed combat in Syria. As the accused spoke about these matters with [subject 7], shared his experiences, and demonstrated that [subject 7] and the other brothers could be photographed in gruesome situations, the Court of Appeal infers that the accused was aware of the jihadi fighter background of [subject 7].
ribaat.
Ribaatmeans, in this context, participation in the armed conflict by guarding border areas and/or checkpoints. [116] [Subject 7] also chats about a boy who died as a martyr because a pole fell on top of him in a shooting by a tank. [117] Pursuant to the above, the Court of Appeal assumes that [subject 7] was also involved in armed combat in Syria. As the accused spoke about these matters with [subject 7], shared his experiences, and demonstrated that [subject 7] and the other brothers could be photographed in gruesome situations, the Court of Appeal infers that the accused was aware of the jihadi fighter background of [subject 7].
Part C of the charges
13. The accused kept in touch with [subject 6], referred to above, via WhatsApp on his Samsung telephone. [118] On 5 June 2014, the accused asked [subject 6], who said he was in Atmeh still, whether the stuff has arrived yet. From WhatsApp conversations between the two of them on a later date it is evident that ‘the stuff’ referred to (mini) laptops and money. [119] On 15 June 2014, the accused says the HP laptop and 650 Euros were sent by him. [120]
Part D of the charges
14. The accused stated at trial on appeal that he had been involved in transferring money, together with [co-accused 2], to three persons in Syria, namely [subject 6], [subject 8], and [subject 9]. [121]
15. From the below facts and circumstances regarded in conjunction with each other, the Court of Appeal infers that the accused, together with [co-accused 2], provided money to (friends who were) jihadi fighters in Syria. [Co-accused 2] had met [subject 9] in the period that [subject 9] was still living in the Netherlands. [122] The accused became friends with [subject 6] when he stayed in Syria in late 2013. [123]
16. The accused stated that 600 out of the 1,000 Euros came from him personally. According to the accused, the 600 Euros were to be divided among [subject 6], [subject 8], and [subject 9]. [124] This is also evident from the Skype conversation between [co-accused 2] and [subject 9], in which [co-accused 2] says that 330 Euro is for [subject 9] and 500 Euro for [nickname subject 8], of which 270 is for [first name subject 6], (the Court of Appeal construes this as [subject 6]). [125] The Court of Appeal construes that [nickname subject 8] refers to [subject 8], having regard to what the accused stated at the hearing in the Court of Appeal about for whom the money was intended, and the Skype conversation referred to above between [co-accused 2] and [subject 9] about the intended recipients of the money. On 29 September 2014, it is clear from a conversation between [co-accused 2] and [subject 9] that the division of the money should now be 50-50 % for [subject 9] and [subject 8], as ]subject 6] had died. Finally, it is clear from a conversation of 8 October 2014 that [subject 9] has received the money and given [subject 8] 500 Euro. [126]
17. The accused was in touch via WhatsApp with [subject 10], who used a Syrian telephone number. On 7 March 2014, the accused asked where [nickname subject 8] [subject 8] was. [Subject 10] answers the [nickname subject 8] is “ribat”. On 9 April 2014, the accused said that [nickname subject 8] knows someone else with a Western Union code, and that if he gets it, he can raise some more funds and send them. [Subject 10] answers that [nickname subject 8] is on ribat and will be back in 5 days.
18. Pursuant to the above, the Court of Appeal finds that [subject 8] was a jihadi fighter who participated in armed combat, and that the accused was aware of this in light of the conversations he had with [subject 10]. [127]
19. Based on the Skype conversations between [co-accused 2] and [subject 9], the Court of Appeal finds that [subject 9] participates in armed combat as a jihadi fighter. [Subject 9] tells [co-accused 2] that he has seen a lot of action. He lists: “Ribaat, sniper action against the army, attack, counter-attack, all kinds.” [128] He also says that he wants to switch to IS. [129] The Hewlett Packard laptop seized from the accused contains an image (a screenshot) of a chat conversation between an anonymous male and [name 1] [130] , according to which the latter “is going to his place, mgonna fight with dawla [131] ”. [132]
20. Having regard to the circumstance that the accused, together with [co-accused 2], was involved in collecting money for the jihadi fighters in Syria [subject 6] and [subject 8], and the circumstance that a text message was found in the accused’s phone saying that [subject 9] was going to join IS the next day, there is no other way than that the accused was also aware, like [subject 2], that ]subject 9] was a jihadi fighter.
Part E of the charges
21. The accused used the
nickname[nickname accused]. [133] The accused was in touch with [subject 2] via Facebook under the name [nickname accused] [134] . [Subject 2] also used Skype account [Skype name subject 2]. [135]
nickname[nickname accused]. [133] The accused was in touch with [subject 2] via Facebook under the name [nickname accused] [134] . [Subject 2] also used Skype account [Skype name subject 2]. [135]
22. In their Facebook conversations [subject 2] asks the accused if he can send ‘floes’. [136] The Court of Appeal has established that, in street language, ‘floes’ means money. [137] The accused answers that he sent money the previous week, and that he will try. [138] [Subject 2] then says that it is possible ‘via western jonion within 24 hours, gets to a shop in turk”. [139] On 4 October 2014, the accused answers the question put to him by [subject 2] whether he has managed to arrange some money in the affirmative. The accused says that he will have to pick up the money and that [subject 2] must be patient. [140]
23. The accused and [subject 2] also kept in touch via Skype under the name of [Skype name subject 2]. On 11 October 2014, the accused told [subject 2] that he had found a brother who was prepared to donate money, and that the brother is the one who is going to come to [subject 2] in two weeks’ time. [141] This brother will take the money. [142] [Subject 2] said that he will not go on
ribatuntil the brother will arrive. [143] On 17 October 2014, the accused informed [subject 2] that the ‘brother’ was going to depart the next day, and that he was going to take money for [subject 2]. [144] On 24 October 2014, the accused repeated to [subject 2] that the money was on its way to him with the brother who has departed from the Netherlands to Syria. This brother was going to give [subject 2] money, and reportedly had a lot on him. [145] [Subject 2] said he was looking for the brother.
ribatuntil the brother will arrive. [143] On 17 October 2014, the accused informed [subject 2] that the ‘brother’ was going to depart the next day, and that he was going to take money for [subject 2]. [144] On 24 October 2014, the accused repeated to [subject 2] that the money was on its way to him with the brother who has departed from the Netherlands to Syria. This brother was going to give [subject 2] money, and reportedly had a lot on him. [145] [Subject 2] said he was looking for the brother.
24. [ Subject 2] was a good friend of the accused’s. [Subject 2] was with IS in Syria at the time the offences charged were being committed. The accused was aware of this, so he stated at trial in the Court of Appeal.
Conclusion
25. In light of the above, the Court of Appeal considers the charges against the accused under parts A through E of the indictment legally and conclusively proved, as is specified in the judicial finding of fact.
7.3.5
Considerations of the Court of Appeal with regard to the charges in count 4 in connection with Article 421 DCC.
7.3.5.1. Introduction
With regard to charge 4, the Court of Appeal is faced with the question whether the facts found by the Court, considered in conjunction with each other, can be earmarked as committing the offence of or being an accessory to intentionally providing means or information to himself or another, or intentionally collecting, acquiring, possessing or providing to another any objects which are intended, in whole or in part, directly or indirectly, to provide financial support to the commission of a terrorist crime or a crime to prepare or facilitate a terrorist crime, as referred to in Article 421(1) DCC.
7.3.5.2. Intent to the financing of acts of terrorism and the offences to which financing pertains
1. In the opinion of the Court of Appeal the accused had intent to commit the offence penalized in Article 421(1) DCC of intentionally providing means or information to himself or another, or intentionally collecting, acquiring, possessing or providing to another any objects which are intended, in whole or in part, directly or indirectly, to provide financial support to the commission of a terrorist crime or a crime to prepare or facilitate a terrorist crime.
2. With reference to what has been found in the judicial finding of fact above, the Court of Appeal finds that the accused, together with [co-accused 2] or otherwise, by sending and/or providing money (on several occasions) to [subject 6], [subject 9], [subject 8], [subject 2] and/or [subject 7], whereas he knew that they were jihadi fighters and therefore involved in acts of terrorism, knowingly accepted the substantial risk that these funds would be used by these persons in Syria for the commission of a terrorist crime or a crime to prepare or facilitate a terrorist crime.
3. In this connection, the Court of Appeal deems important the following facts and circumstances put forward in the documents of the case and at the hearing, in first instance and on appeal.
4. The accused provided money to the persons referred to under 2 above, who participated in the armed jihadi struggle in Syria. These jihad combat groups committed serious offences with the object of causing serious fear in large parts of the population of Syria within the meaning of Art. 83a DCC. The Court of Appeal refers to chapter 6.2 for the background to the struggle in Syria. The offences committed by these combat groups, such as murder, manslaughter, arson and bringing about explosions et cetera, were committed with terrorist intent and are therefore terrorist offences. Participating in the armed struggle in Syria on the part of these combat groups is therefore tantamount to committing terrorist offences.
5. As a result of the individual financial support provided to these jihadi fighters, they can continue to wage armed combat.
6. In the opinion of the Court of Appeal, therefore, the conclusion is that the accused had intent to commit the offence of financing of terrorism, penalized in Article 421 DCC.
7.3.5.3. Terrorist financing acts
1. The accused (in conjunction with another) sent money to jihadi fighters from the Netherlands to Syria on four occasions, and provided money to an individual jihadi fighter in Syria on one occasion.
2. The accused provided means to someone who can be earmarked a terrorist, therefore.
7.3.6
Conclusion regarding count 4 of the charges
In the opinion of the Court of Appeal, on the basis of the legally and conclusively proved charges, the accused committed the offence of (or was an accessory to) the financing of terrorism by intentionally providing means to [subject 6], [subject 9], [subject 8], [subject 2], and [subject 7], which served, in whole or in part, directly or indirectly, to provide financial support to the commission of a terrorist crime or a crime to prepare or facilitate a terrorist crime.
7.4
Count 3: participation in a terrorist organisation
7.4.1
Legal framework Article 140a DCC
1. Count 3 of the charges pertains to the penalization of Art. 140a DCC.
2. Participation in an organisation that has as its object the commission of (terrorist) offences is punishable under Art. 140a DCC. Further, Article 140 (4) DCC is also relevant in this connection. The penal provisions are as follows:
- Article 140a DCC:
1.
Participation in an organisation that has as its object the commission of (terrorist) offences is punishable with a term of imprisonment of not more than fifteen years or a fine of the fifth category.
Participation in an organisation that has as its object the commission of (terrorist) offences is punishable with a term of imprisonment of not more than fifteen years or a fine of the fifth category.
2.
Founders, leaders or directors are punishable with life imprisonment or a term of imprisonment of not more than thirty years or a fine of the fifth category.
Founders, leaders or directors are punishable with life imprisonment or a term of imprisonment of not more than thirty years or a fine of the fifth category.
3. Article 140 (4) DCC applies by analogy.
- Article 140 DCC:
(…)
4. Participation as described in the first paragraph is understood to mean the giving of financial or other material support to and/or raising of funds or recruiting of persons for the benefit of the organisation referred to in that paragraph.
3. Previous decisions of the Supreme Court about participation in an organisation referred to in Artt. 140 and 140a DCC have shown that this is only the case if the following two requirements have been met.
The person involved is part of an organized criminal group.
The person involved takes part in, or supports, acts serving or directly related to the realization of the object described in the relevant Articles of the law.
4. The Supreme Court ruled that the first requirement referred to under 3. above (participation in an organized criminal group) also applies to the acts described in Artt. 140 (4) and 140a (3) DCC of providing monetary support. The interpretation that providing monetary support to an organisation referred to in Artt. 140 and 140a DCC already constitutes participation in that organisation is wrong, therefore. As Artt. 140 (4) and 140a (3) were introduced particularly to clarify the legislation in respect of two specific acts, it follows in reason that this clarification pertains to the second requirement in Dutch legislation concerning participation in a criminal organisation, defined in Artt. 140 and 140a (the requirement of taking part in or supporting certain acts), for this requirement pertains to the acts themselves. [146] The first requirement of participation in an organized criminal group, continues to apply in full as well.
5. Pursuant to a legal methodological explanation, the aforesaid consideration also applies to the other acts defined in Artt. 140 (4) and 140a (3) DCC, namely providing material support to and raising funds or recruiting persons for the benefit of the organisation referred to in the said provisions.
6. With regard to what was said in consideration 3 under 2. any participation in the said organisation is punishable. Such participation may consist of committing or being an accessory to the commission of a crime, but also of aiding and abetting, and (therefore) of performing acts that in themselves are not punishable, in so far as the taking part or support referred to above exist. [147]
7. For participation in a criminal organisation, the accused needs to know in a general sense (within the meaning of conditional intent) that the organisation has as its object the commission of criminal offences. [148] It is then not required, however, that the accused had knowledge or any degree of intent to commit one or several specific offences that the organisation has as its object, or that the accused participated in offences already committed by other participants within the organisation. A person is punishable on the sole ground of participation in the criminal organisation.
8. Obviously, the requirement that there is an organisation which has as its the object the commission of terrorist offences must be met first. The Court of Appeal will not address the legal merits of the elements of an organisation as defined in Artt. 140 and 140a DCC, as no clearly substantiated position has been put forward in respect of it, and the Court of Appeal sees no other reason for discussing this any further here, besides what has been considered about the subject in chapter 6 regarding some general evidentiary considerations. [149]
7.4.2
Positions of the Prosecution and of the Defence
7.4.2.1 The Prosecution’s position
According to the Prosecution, it is an established fact that the accused was in Syria in late 2013 / early 2014, and made plans to travel there again for the single reason of participating in armed combat in territory controlled by Jabhat al-Nusra in Syria. The accused also frequently provided monetary and other material support, and raised funds and recruited persons for the benefit of the armed jihadi fighters in the combat zone in Syria.
The Prosecution argued that the accused, as a result of these acts, took part in and supported acts conducive or directly related to the realization of the terrorist object of the jihadi combat groups fighting there. Besides, the accused formed part of one of the jihadi combat groups fighting in Syria.
7.4.2.2 The Defence’s position
The Defence argued in the first place, in essence and in summary, that the accused did not take part in acts conducive or directly related to the realization of a terrorist object. The accused only sent money to persons who were possibly fighting there.
In the second place, the Defence denied that the accused had intent to support the organisation. In that connection, the Defence argued that it cannot be established that the money benefitted the terrorist organisation in the sense that the organisation profited from it, and that there was no question of providing monetary support as defined in Artt. 140 (4) and 140a (3), therefore. The Defence pointed out that the money was provided for living expenses and keeping in touch with the home front by telephone.
7.4.3
Facts found by the Court of Appeal
1. The Court of Appeal determines as follows, on the basis of the documents in the case and the proceedings. The Court of Appeal bases itself on facts and circumstances that have already been established above in the discussion of counts 1, 2 and 4 of the charges. For the sources in the casefile of those facts and circumstances, the Court of Appeal refers to the relevant paragraphs concerning the finding of fact of those facts.
2. The accused provided an amount of money to [subject 6] on two occasions (count 4 under A and C). He also provided 2 computers to him. [Subject 6] and the accused discussed the expected arrival of the laptops in Syria in a number of WhatsApp conversations: on 5 June 2014 the accused asked if the stuff had arrived already, and on 15 June 2014 [subject 6] said that the 2 ‘lappies’ had arrived. [150] The accused also sent a telephone to [subject 7]. This appears from a WhatsApp conversation between them of 31 January 2014, in which [subject 7] answers in the affirmative to a question whether he had received the phone. [151]
3. The accused raised funds for jihadi fighters in Syria. He collected money for [subject 6] together with [co-accused 2], and had it sent to Syria (count 4 under D). Besides, he collected money for [subject 7] (count 4 under B), (subject 9] and [subject 8] (count 4 under D), and [subject 2] (count 4 under E).
4. The Court of Appeal established before that [subject 6], [subject 7], [subject 9], [subject 8], and [subject 2] are jihadi fighters.
5. The accused was an intermediary for [subject 1] with regard to the latter’s journey to Syria (count 2 in the principal under I and II). Via a relation he made inquiries about what [subject 1] should do and whom [subject 1] should contact as soon as he arrived in Syria. When questioned at the trial on Appeal about [subject 1], the accused answered that the latter wanted to join IS at the time. This also emerged from a conversation via Facebook the accused had with [subject 2] on 30 September 2014, in which the accused said that he had someone “who wanted to go on a holiday”. [152] In a conversation between the accused and [subject 11], the latter asked if the person the accused mentioned ‘wanted to go on a holiday asap or?’ [153] This expression occurs in the casefile several times. The Court of Appeal construes this to refer to travelling to Syria in order to join the armed jihadi struggle. [154]
6. The accused also said that he wanted to travel there, and that he is looking for a women to travel together for that purpose. [155] He tells [subject 2] [Skype name subject 2] “m gna go jabz.” [156] The Court of Appeal construes this as the accused saying that he wants to join Jabhat al-Nusra. The Court of Appeal finds the explanation offered by the accused at the hearing that he only meant the area controlled by Jabhat al-Nusra [157] implausible. Moreover, the accused already said at an earlier occasion: “I am not just in favour, but more than that.” [158] The accused also provided practical information to [co-accused 1], whom the accused knew to be ‘pro J’ [159] - the Court of Appeal construes this to mean: pro Jabhat al-Nusra - with the object of travelling to Syria together (count 1 under D). Besides, the accused stays in touch with [subject 5] (count 2 under I and II). An image of a newspaper Article was found on the accused’s Hewlett Packard laptop with the headline: ‘[subject 5] recruits Muslim youths for ISIS’.
7. The accused was in Syria in late 2013. It follows from conversations on social media in which the accused participated that he kept in touch with jihadi fighters whom he met during his stay in Syria after his return to the Netherlands. The conversations centred on how the armed conflict proceeded, and on providing assistance (monetary and material) from the Netherlands. In this connection, the accused kept in touch with,
inter alios, [subject 6]. The accused stated that he had good relations with [subject 6], and that the latter wanted him to return to Syria. [160] The same was true for [subject 3] and the accused. They told each other in WhatsApp conversations that they missed each other several times. [161] [Subject 3] is a jihadi fighter who had travelled from the United Kingdom to Syria. [162] The accused stated that [subject 3] and he were friends. [163] The accused also shared with [subject 3] that he had travelled to Birmingham by car and passed “through UK border control and the terror control.” [164]
inter alios, [subject 6]. The accused stated that he had good relations with [subject 6], and that the latter wanted him to return to Syria. [160] The same was true for [subject 3] and the accused. They told each other in WhatsApp conversations that they missed each other several times. [161] [Subject 3] is a jihadi fighter who had travelled from the United Kingdom to Syria. [162] The accused stated that [subject 3] and he were friends. [163] The accused also shared with [subject 3] that he had travelled to Birmingham by car and passed “through UK border control and the terror control.” [164]
8. The accused said in a WhatsApp conversation with an unidentified person of 14 April 2014: “I am a supporter of jihad, so of anyone who is part of al-Qaeda”. In the same conversation, the accused also said he was averse to democracy. [165]
9. The accused is on Facebook under the name of,
inter alios, [nickname accused]. This means ‘[meaning nickname accused]’. [166] On the accused’s laptop, referred to above, a photograph was found of the accused holding a sword in his hand against a backdrop of the Jabhat al-Nusra flag. [167] Another photograph was found showing only the Jabhat al-Nusra flag. [168] Besides, the laptop contained other pictures with the flag that is also (and mostly) used by IS; in some only the flag is shown [169] , in others the IS symbol is shown next to a firearm or a military vehicle. [170]
inter alios, [nickname accused]. This means ‘[meaning nickname accused]’. [166] On the accused’s laptop, referred to above, a photograph was found of the accused holding a sword in his hand against a backdrop of the Jabhat al-Nusra flag. [167] Another photograph was found showing only the Jabhat al-Nusra flag. [168] Besides, the laptop contained other pictures with the flag that is also (and mostly) used by IS; in some only the flag is shown [169] , in others the IS symbol is shown next to a firearm or a military vehicle. [170]
10. On the accused’s Hewlett Packard laptop, several pictures were found in which violence occupies centre stage. One of them show a kneeling man wagging his finger, and five chopped-off heads. [171] It also contains many pictures of armed people. [172]
11. On the said laptop an incendiary text was found, inciting to kill prisoners [with] ‘
whom you do not have a treaty’in order to
‘ strike fear into your enemies and the enemies of Allah’, showing a picture of a kneeling prisoner in an orange suit and a man in black with a balaclava standing next to him.
whom you do not have a treaty’in order to
‘ strike fear into your enemies and the enemies of Allah’, showing a picture of a kneeling prisoner in an orange suit and a man in black with a balaclava standing next to him.
12. On a telephone used by the accused an Arabic song was found. [173] The translation is as follows:
The swish of the swords is a song to the brave fighters
The path of fight is the way toward life
With an attack annihilating the suppressors
And a sweet sounding silencer
My faith will win, and the wrongdoers will be humiliated
Come on, o, my people, choose the path of the brave
Choose a cheerful life
Or a death that strikes fear in your enemies
O brother, stand up for the path of deliverance
United we stand against the conquerors.
13. On the laptop, a picture was found with the caption ‘Fighter for/in Syria (...) Apply directly on ikwilnaarSyrie [I want to go to Syria].’ [174]
7.4.4
Considerations of the Court of Appeal with regard to the charges in count 3 in connection with Article 140a DCC and discussion of the defences
1. The Court of Appeal already established in chapter 6 that Jabhat al-Nusra is an organisation and which terrorist offences this organisation had as its object.
2. The Court of Appeal is now faced with the question whether the facts found by the court, considered in conjunction with each other, are regarded as the accused’s participation an organisation that had as its object the commission of terrorist offences.
Conduct requirement (participation or support)
3. In the opinion of the Court of Appeal, the accused took part in and supported acts directly conducive or directly related to the realization of the terrorist object referred to in Art. 140a DCC.
4. In this respect, the Court of Appeal finds as follows.
5. The accused acted as a fundraiser for the armed jihadi struggle on several occasions.
6. He also provided monetary support to jihadi fighters in Syria. Unlike defence counsel, the Court of Appeal thinks that giving money to individual jihadi fighters who belong to an organisation is equivalent to providing monetary support for the benefit of that organisation, as defined in Artt. 140a (3) and 140 (4) DCC.
7. The accused also provided material support for the benefit of the organisation by sending items such as laptops and a telephone to fighters participating in the armed jihadi struggle.
8. The accused further acted as an intermediary with an IS fighter so a person who wanted to travel from the Netherlands to Syria could join IS. At the time of his arrest, the accused had been planning his journey to Syria together with [co-accused 1] for some time, and providing practical advice about this journey to [co-accused 1].
9. The judicial determination of these acts committed by the accused fall within the scope of Artt. 140a (3) in conjunction with 140 (4) DCC, except facilitating another to join IS. These Articles pertain to providing monetary, material support and raising funds for the benefit of the organisation referred to in Art. 140a (1). Facilitating [subject 1] to join IS is also a form of participation in an organisation as referred to in Art. 140a DCC.
Requirement of participation in an organized criminal group
10. The accused was involved in the organized criminal group Jabhat al-Nusra. He was not an outsider or a sympathizer. In this respect, the Court of Appeal attaches much weight to the active support the accused provided to the armed jihadi struggle in Syria. This is evident from the way in which the accused adhered to the body of ideas and the object(s) of Jabhat al-Nusra through words and deeds, as emerged from the facts found above.
11. In addition, for the accused’s involvement in the organized criminal group, the Court of Appeal deems the following important, as well.
12. The accused kept in close contact with participants in the armed jihadi struggle in Syria after his return in late 2013. He discussed openly in chat conversations what his position was with regard to Jabhat al-Nusra (‘more than in favour of Jabhat al-Nusra’). The accused stored images in his computer and telephone that made propaganda for violent jihad. The accused also said in chat conversations that he wanted to return.
Defence regarding intent
13. The accused was aware that both Jabhat al-Nusra and IS had the object of committing terrorist offences at the time the accused committed the acts he is charged with having committed. This meets the requirement set by the Supreme Court that for proving intent it suffices that the accused has general knowledge - within the meaning of unconditional intent - that the organisation had as its object the commission of terrorist offences.
14. The Court of Appeal rejects this defence too, therefore.
7.4.5
Conclusion regarding count 3 of the charges
1. On the basis of the above, the Court of Appeal thinks that the accused belonged to an organized criminal group which had the object of
- intentionally bringing about a fire and/or causing an explosion, where general danger to property and/or the risk of serious bodily harm and/or danger to another person’s life might have been expected to ensue from the act, and/or where this act resulted in the death of another person, committed with terrorist intent, and/or
murder and/or manslaughter committed with terrorist intent,
and that in addition, he took part in and supported acts which were conducive to and were connected to the realization of the organisation’s objects.
2. For this reason, it can be legally and conclusively proved that the accused participated in an organisation which had as its object the commission of terrorist offences. As a result, the Court of Appeal concludes that the charges in count 3 have been proved.
8.The judicial finding of fact
Considering the above, the Court of Appeal finds legally and conclusively proved that the accused committed the offences he is charged with, as follows:
1.
That he
once or several timesin
or aroundthe period from 1 September 2014 up to and including 25 November 2014,
or aroundthe period from 1 September 2014 up to and including 25 November 2014,
in Arnhem and/or Doesburg, at leastin the Netherlands
and/or in Syria,
and/or in Syria,
jointly and in conjunction with another
or others, at least alone,
or others, at least alone,
with the object of preparing and/or facilitating the commission
(repeatedly or otherwise)of the
offence/offences described in Article 157 and/or 289a and/or 288a DCC, namely
(repeatedly or otherwise)of the
offence/offences described in Article 157 and/or 289a and/or 288a DCC, namely
- intentionally bringing about a fire and/or causing an explosion, where general danger to property and/or the risk of serious bodily harm and/or danger to another person’s life might have been expected to ensue from the act, and/or where this act results in the death of another person, committed with terrorist intent, and
/or
/or
- murder and
/ormanslaughter committed with terrorist intent,
/ormanslaughter committed with terrorist intent,
- provided or tried to provide
the opportunity and/orthe means and
/orinformation to himself and/or others for the commission of the offence
sand/or
the opportunity and/orthe means and
/orinformation to himself and/or others for the commission of the offence
sand/or
- had at his disposal objects which he knew to be intended for the commission of the serious offence
for the accused and/or his co-accused
jointly and in conjunction with each other, at least alone,(in each case) for the benefit of the armed jihadi struggle, during which arson, causing explosions, murder and manslaughter are committed with terrorist intent,
jointly and in conjunction with each other, at least alone,(in each case) for the benefit of the armed jihadi struggle, during which arson, causing explosions, murder and manslaughter are committed with terrorist intent,
A. had himself informed (via chat messaging) about travelling to the combat zone in Syria
and/or how to join Jabhat al-Nusraand
/or
and/or how to join Jabhat al-Nusraand
/or
B. had himself informed (via chat messaging) about which route to take to the combat zone and
/or
/or
C. participated in Arabic classes and
/or
/or
D. gathered and/or obtained and/or supplied information about travel requisites and practical arrangements that needed to be made before travelling to the combat zone in Syria
and/or Iraqand
/or
and/or Iraqand
/or
E. possessed one or several
(documents or pictures on
)data carriers containing
information about the body of jihadist ideas and/orinstructions to comply with when participating in
the armed jihadi struggle/warfare and
/orinstructions to comply with when preparing to depart to the combat zone in Syria
and/or Iraq,and
/or
(documents or pictures on
)data carriers containing
information about the body of jihadist ideas and/orinstructions to comply with when participating in
the armed jihadi struggle/warfare and
/orinstructions to comply with when preparing to depart to the combat zone in Syria
and/or Iraq,and
/or
F. raised and/or transferred and/or possessed and/or left behind funds (in Kafr Hamra, Syria) for the benefit of one or several persons who were in the combat zone in Syria and/or Iraq, and/or
G. expressed his/their wish to travel to Syria
or Iraq (via Turkey)and/or join the armed jihadi struggle and/or the armed jihad (by saying,
inter alia, that they would meet each other on the battle field).
and/or
or Iraq (via Turkey)and/or join the armed jihadi struggle and/or the armed jihad (by saying,
inter alia, that they would meet each other on the battle field).
and/or
2.principal charge
I
That he
once or several timesin
or aroundthe period from 1 September 2014 up to and including 31 October 2014,
in Arnhem and/or Doesburg, at leastin the Netherlands
and/or in Syria,
or aroundthe period from 1 September 2014 up to and including 31 October 2014,
in Arnhem and/or Doesburg, at leastin the Netherlands
and/or in Syria,
jointly and in conjunction with another or others, at least alone,
with the object of preparing and/or facilitating the commission
(repeatedely or otherwise)of the
offence/offences described in Article 157 and/or 289
(a)and/or 288a DCC, namely
(repeatedely or otherwise)of the
offence/offences described in Article 157 and/or 289
(a)and/or 288a DCC, namely
- intentionally bringing about a fire and/or causing an explosion, where general danger to property and/or the risk of serious bodily harm and/or danger to another person’s life might have been expected to ensue from the act, and/or where this act results in the death of another person, committed with terrorist intent, and
/or
/or
- murder and
/ormanslaughter committed with terrorist intent,
/ormanslaughter committed with terrorist intent,
- sought to induce another person
to commit the serious offence, to have it committed or participate in its commission,to assist in its commission or to provide the opportunity,
meansor information for its commission,
and/or
to commit the serious offence, to have it committed or participate in its commission,to assist in its commission or to provide the opportunity,
meansor information for its commission,
and/or
- provided or tried to provide the opportunity and/or means and/or information to himself and/or others for the commission of the offence/offences and/or
for the accused
and/or his co-accused, jointly and in conjunction with each other, at least alone, (in each case)for the benefit of the armed jihadi struggle, during which arson, causing explosions, murder and manslaughter are committed with terrorist intent,
and/or his co-accused, jointly and in conjunction with each other, at least alone, (in each case)for the benefit of the armed jihadi struggle, during which arson, causing explosions, murder and manslaughter are committed with terrorist intent,
A. kept in touch with [subject 2] and
/or[subject 5]
,(at least with one or several persons who were in the combat zone, so that [subject 1]
(at least an unidentified person)could join Islamic State (IS),
at least an organisation that had as its object the commission of terrorist offences, at least so that [subject 1] (at least an unidentified person) could participate in the armed jihadi struggleand
/or
/or[subject 5]
,(at least with one or several persons who were in the combat zone, so that [subject 1]
(at least an unidentified person)could join Islamic State (IS),
at least an organisation that had as its object the commission of terrorist offences, at least so that [subject 1] (at least an unidentified person) could participate in the armed jihadi struggleand
/or
B. discussed with this [subject 2] and
/or[subject 5]
(at least with one or several persons who were in the combat zone), the routes to be taken by [subject 1]
(at least an unidentified person)(via Gaziantep and elsewhere) to the combat zone and/or
having/providing a personal guarantee (“tazkiyya”) for the benefit of admission to the combat zone of [subject 1]
(at least this unidentified person), and/or
/or[subject 5]
(at least with one or several persons who were in the combat zone), the routes to be taken by [subject 1]
(at least an unidentified person)(via Gaziantep and elsewhere) to the combat zone and/or
having/providing a personal guarantee (“tazkiyya”) for the benefit of admission to the combat zone of [subject 1]
(at least this unidentified person), and/or
C. gave instructions to [subject 1] (at least an unidentified person) about the routes to be taken (via Gaziantep and elsewhere) to the combat zone and/or
D. gave instructions/provided information to this [subject 1] (at least an unidentified person) about the way in which he should contact [subject 2] in the combat zone, at least one or several persons who were there,
and/or that
II
[subject 1], (at least an unidentified person),
once or several times in or around the period from 1 September 2014 up to and including 31 October 2014, in the Netherlands and/or in Syria,
jointly and in conjunction with another or others, at least alone,
participated in an organisation which had as its object the commission of terrorist offences, namely
- intentionally bringing about a fire and/or causing an explosion, where general danger to property and/or the risk of serious bodily harm and/or danger to another person’s life might have been expected to ensue from the act, and/or where this act results in the death of another person, committed with terrorist intent, and/or
- murder and/or manslaughter committed with terrorist intent;
for this [subject 1] (at least an unidentified person) joined the terrorist organisation Islamic State (IS), at least an organisation which had as its object the commission of terrorist offences,
at the commission of which offence the accused, in or around the period from 1 September 2014 up to and including 31 October 2014, in the Netherlands and/or in Syria, several times, at least once,
(in each case) intentionally provided the opportunity and/or means and/or information, and/or intentionally
assisted, by
A. keeping in touch with [subject 2] and/or [subject 5] (at least with one or several persons who were in the combat zone, so that [subject 1] (at least an unidentified person) could join Islamic State (IS), at least an organisation that had as its object the commission of terrorist offences, at least so that [subject 1] (at least an unidentified person) could participate in the armed jihadi struggle and/or
B. discussing with [subject 2] and/or [subject 5] (at least with one or several persons who were in the combat zone) the routes to be taken by this [subject 1] (at least an unidentified person) (via Gaziantep and elsewhere) to the combat zone and/or having/providing a personal guarantee (“tazkiyya”) for the benefit of admission to the combat zone of [subject 1] (at least this unidentified person), and/or
C. giving instructions to [subject 1] (at least an unidentified person) about the routes to be taken (via, Gaziantep and elsewhere) to the combat zone and/or
D. giving instructions/providing information to this [subject 1] (at least an unidentified person) about the way in which he should contact [subject 2] in the combat zone, at least one or several persons who were there,
and therefore facilitating [subject 1] (at least an unidentified person) to join the terrorist organisation Islamic State (IS), at least an organisation which had as its object the commission of terrorist offences;
3.
That he
once or several timesin
or aroundthe period from 1 January 2014 up to and including 25 November 2014,
or aroundthe period from 1 January 2014 up to and including 25 November 2014,
in Arnhem and/or Doesburg, at leastin the Netherlands
and/or in Syria,
and/or in Syria,
jointly and in conjunction with
another orothers,
at least alone,
another orothers,
at least alone,
participated (as referred to in Article 140 (4) DCC or otherwise) in an organisation which had as its object the commission of terrorist offences, namely
- intentionally bringing about a fire and/or causing an explosion, where general danger to property and/or the risk of serious bodily harm and/or danger to another person’s life might have been expected to ensue from the act, and/or where this act results in the death of another person, committed with terrorist intent, and
/or
/or
- murder and/or manslaughter committed with terrorist intent;
4.
That he
once or several timesin
or aroundthe period from 1 January 2014 up to and including 25 November 2014,
or aroundthe period from 1 January 2014 up to and including 25 November 2014,
in Arnhem and/or Doesburg, at leastin the Netherlands
and/or in Syria,
and/or in Syria,
jointly and in conjunction with another
or others,
at leastoralone,
or others,
at leastoralone,
intentionally provided himself or another person with
means orinformation, or intentionally collected
means orinformation, or intentionally collected
acquired, had at his disposal, orandprovided to another person objects which served in full or in part, directly or indirectly, to provide monetary support for the
commission of a terrorist offence or an offence for the preparation or facilitation of a terrorist offence, namely
- intentionally bringing about a fire and/or causing an explosion, where general danger to property and/or the risk of serious bodily harm and/or danger to another person’s life might have been expected to ensue from the act, and/or where this act results in the death of another person, committed with terrorist intent, and
/or
/or
- murder and/or manslaughter committed with terrorist intent,
for the accused and/or his co-accused jointly and in conjunction with each other, at least alone, (in each case) for the benefit of the armed jihadi struggle, during which arson, causing explosions, murder and manslaughter are committed with terrorist intent,
A. in
or aroundJanuary 2014,
left behind and/orprovided to a jihadi fighter [subject 6],
at least a jihadi fighter who was in the combat zone, one or more unknown amounts ofmoney (in a belt bag) in Kafr Hamra (Syria) and/or
or aroundJanuary 2014,
left behind and/orprovided to a jihadi fighter [subject 6],
at least a jihadi fighter who was in the combat zone, one or more unknown amounts ofmoney (in a belt bag) in Kafr Hamra (Syria) and/or
B. in
or aroundthe period from 1 March 2014 up to and including 1 May 2014 collected and
/or acquired and/orsent several thousands of Euros
, or at least a (substantial) amount of money for or to anotherfor the benefit of the jihadi fighters in the combat zone, and/or
or aroundthe period from 1 March 2014 up to and including 1 May 2014 collected and
/or acquired and/orsent several thousands of Euros
, or at least a (substantial) amount of money for or to anotherfor the benefit of the jihadi fighters in the combat zone, and/or
C. in
or aroundthe period from 1 May 2014 up to and including 1 July 2014 sent
and/or providedto another person EUR 650,
or at least an amount of moneyfor the benefit of jihadi fighter [subject 6],
at least a jihadi fighter in the combat zoneand/or
or aroundthe period from 1 May 2014 up to and including 1 July 2014 sent
and/or providedto another person EUR 650,
or at least an amount of moneyfor the benefit of jihadi fighter [subject 6],
at least a jihadi fighter in the combat zoneand/or
D. in
or aroundthe period from 1 August 2014 up to and including 8 October 2014 collected and
/or acquired and/orsent to
and/or providedEUR 1.000,-,
or at least an (substantial) amount of money for and/or to anotherfor the benefit of the jihadi fighters [subject 9] and/or [subject 6] and/or [subject 8],
at least to one (or several) jihadi fighters in the combat zone,and/or
or aroundthe period from 1 August 2014 up to and including 8 October 2014 collected and
/or acquired and/orsent to
and/or providedEUR 1.000,-,
or at least an (substantial) amount of money for and/or to anotherfor the benefit of the jihadi fighters [subject 9] and/or [subject 6] and/or [subject 8],
at least to one (or several) jihadi fighters in the combat zone,and/or
E. in
or aroundOctober 2014
sent and/orprovided to another person
an unknown amount ofmoney for the benefit of jihadi fighter [subject 2],
at least a jihadi fighter in the combat zone;
or aroundOctober 2014
sent and/orprovided to another person
an unknown amount ofmoney for the benefit of jihadi fighter [subject 2],
at least a jihadi fighter in the combat zone;
which amount of money was (in each case) intended (in part) to provide monetary support
to the armed jihadi struggle in Syria and/orto fighters participating in armed jihadi combat in Syria, in which conflict terrorist offences are committed,
(or) at least to provide monetary support to the commission of a terrorist offence, or an offence for the preparation or facilitation of a terrorist offence, or one of the offences specified above.
to the armed jihadi struggle in Syria and/orto fighters participating in armed jihadi combat in Syria, in which conflict terrorist offences are committed,
(or) at least to provide monetary support to the commission of a terrorist offence, or an offence for the preparation or facilitation of a terrorist offence, or one of the offences specified above.
Anything charged over and beyond this has not been proved. The accused must be acquitted thereof.
In so far as the charges contained grammatical or spelling errors, they have been corrected in the finding of fact. As was evident from the proceedings, they did not harm the accused in his defence.
9.Evidence
The Court of Appeal bases its conviction that the accused committed the facts found on the facts and circumstances which are contained in the above evidence, which is referred to in the footnotes and provides grounds for the finding of fact.
10.Punishability of the offence
The facts found in count 1 constitute:
Participation in providing himself or others with the means and information for the commission of the offence, with the object of preparing or facilitating the commission of an offence defined in Article 157 DCC, committed with terrorist intent;
and
participation in providing himself or others with the means and information for the commission of the offence, with the object of preparing or facilitating the commission of an offence defined in Article 289a (1) DCC, committed with terrorist intent;
and
participation in providing himself or others with the means and information for the commission of an offence, with the object of preparing or facilitating the commission of an offence defined in Article 288a DCC, committed with terrorist intent.
The facts found in count 2, principal charge I constitute:
Attempt to get another person to assist in or to incite another to provide himself or another with the opportunity or information for the commission of an offence, with the object of preparing or facilitating an offence defined in Article 157 DCC, committed with terrorist intent;
and
attempt to get another person to assist in or to incite another to provide himself or another with the opportunity or information for the commission of an offence, with the object of preparing or facilitating an offence defined in Article 289a (1) DCC, committed with terrorist intent;
and
attempt to get another person to assist in or to incite another to provide himself or another with the opportunity or information for the commission of an offence, with the object of preparing or facilitating an offence defined in Article 288a (1) DCC, committed with terrorist intent;
The facts found in count 3 constitute:
participation in an organisation which has as its object the commission of terrorist offences.
The facts found in count 4, principal charge constitute:
the financing of terrorism, committed on several occasions;
and
participation in the financing of terrorism.
11.Punishability of the accused
No circumstance has become plausible that excludes the punishability of the accused. Therefore, the accused is punishable.
12.The sentence
12.1
Demand made by the Prosecutor in the Court of Appeal
1. The Prosecutor in the Court of Appeal has demanded that the contested judgment will be set aside and that the accused will be convicted for count 1, count 2 in the principal, count 3 and count 4 of the indictment, and sentenced to a custodial sentence of 42 months, deducting time spent in pre-trial custody, of which 12 months suspended, with an operational period of 3 years and subject to the special conditions that the accused for the duration of the operational period:
- complies with the obligation to submit to probation supervision (with the duty to report), in the course of which the accused will cooperate in discussions about his faith with an expert;
- will refrain from getting in touch (or having others get in touch) with and/or maintaining contact with the following individuals:
his co-accused [co-accused 2], [co-accused 1], as well as [subject 12] and [subject 13];
fighters in a combat zone (particularly Syria and Iraq) or elsewhere;
former fighters and/or persons who used to stay in the (former) combat zone, such in light of current developments in the combat zone;
persons and/or organisations included in the National Sanction List Terrorism;
any person identified by the Probation Service to constitute a risk to his supervision and rehabilitation.
[anyone the accused has been detained with in the Terrorist Wing]
[subject 12], born [date of birth subject 12]
[subject 14], born [date of birth subject 14]
[subject 15], born [date of birth subject 15]
- will refrain from being at or within a radius of 2 kilometres of Schiphol Airport, Rotterdam-The Hague Airport, Eelde Airport, Eindhoven Airport, and Maastricht-Aachen Airport;
- will refrain from being within a radius of two kilometres of the borders with Belgium and Germany;
- will stay in the Netherlands;
- will cooperate in an examination by the Netherlands Institute of Forensic Psychiatry and Psychology, when requested to do so;
- will cooperate actively in finding structured daytime activities;
- will cooperate in a rehabilitation project of the municipality of Arnhem.
2. With regard to the above special conditions, the Prosecution has demanded that the Probation Service is ordered to supervise electronic tagging for as long as the Probation Service considers this necessary, and that these special conditions are immediately enforceable.
12.2
The defence’s position
The accused has served the unsuspended part of the sentence imposed in first instance in full, and spent a long time in pre-trial detention in the Terrorist Wing. If the special conditions demanded by the Prosecutor in the Court of Appeal are imposed, the accused will be punished for another 3 years. The accused is restricted severely in his everyday life by the ankle monitor. He cannot pick up relatives from the airport, and he cannot go shopping in Germany, for instance. Besides, the exclusion orders impede a job in the haulage sector. The restraining orders that have been demanded, particularly relating to persons whom the accused considers to be close friends,
([subject 12], [subject 14], and [subject 15], constitute an unreasonable infringement of his privacy. The Defence has requested that the Court of Appeal does not impose restraining orders. Further, the Defence has requested that the Court of Appeal imposes a shorter operational period than the 3 years demanded.
12.3
The Court of Appeal’s opinion
The Court of Appeal has determined the sentence to be imposed on the grounds of the seriousness of the facts and the circumstances in which they were committed, as well as the personality and the personal circumstances of the accused as emerged from the examination in court.
The Court of Appeal considers as follows in this respect.
12.3.1
The seriousness of the offences and the circumstances in which they were committed
1. In the period from 1 January 2014 up to and including 25 November 2014, the accused committed the offences of participation in a terrorist organisation, (complicity in) preparing and/or facilitating terrorist offences and (complicity in) the financing of terrorist offences.
2. The accused, together with a co-accused, made plans to travel to the combat zone in Syria in order to join the armed jihadi struggle. The accused provided himself with the means and information to that end. He was in touch with jihadi fighters in the combat zone in Syria for this purpose. Furthermore, the accused helped [subject 1] with information about travelling to Syria for the purpose of joining a jihadist group. The accused also facilitated [subject 1]’s joining IS,
inter aliaby gathering and passing on information about which routes to take to the combat zone in Syria. Also, the accused sent a telephone and laptops to jihadi fighters who were in the combat zone in Syria. In addition, the accused raised and sent funds for the benefit of jihadi fighters in Syria.
inter aliaby gathering and passing on information about which routes to take to the combat zone in Syria. Also, the accused sent a telephone and laptops to jihadi fighters who were in the combat zone in Syria. In addition, the accused raised and sent funds for the benefit of jihadi fighters in Syria.
3. In doing so, the accused contributed substantially, or intended to do so, to the violent jihadi struggle in Syria, and therefore to the (continued) destabilisation and insecurity in (the area of) Syria. For it is generally known that jihadist groups, particularly IS and Jabhat al-Nusra, commit gross violations of human rights on a large scale in Syria. Considering the bloody and terrifying violence that these terrorist groups are guilty of committing structurally, and have committed recently, travelling to Syria for the purpose of participating therein must be counteracted vigorously. For this reason, the punishment goals of retribution and deterrence must, in the Court’s opinion, be the determining factors in deciding the type and severity of the punishment to be imposed in cases like the accused’s.
12.3.2
The personality of the accused and personal circumstances
Criminal record
1. The Court of Appeal has taken cognizance of an excerpt from Central Criminal Records relating to the accused of 14 August 2017, showing that the accused has not been convicted without appeal for committing a punishable offence before.
Accused’s statement
2. At the hearing in the Court of Appeal on 30 August 2017, the accused stated that he has been doing well since the termination of the pre-trial detention. He is no longer on the National Sanction List Terrorism. He has a full-time job, and has enrolled in the Islamic University in Rotterdam as a student. He is still married. The relationship is stable.
Expert’s statement
3. At the hearing in the Court of Appeal on 30 August 2017, [probation officer] was heard as an expert. [Probation officer] is one of two probation officers whom the accused has been seeing since the termination of the pre-trial detention. The expert stated as follows about his contact with the accused.
4. The Probation Service sees and talks with the accused on a weekly basis. The interviews proceed in a friendly atmosphere.
5. The accused was removed from the Sanction List Terrorism on 30 June 2017.
6. The special conditions imposed by the court in first instance pertain to monitoring. The expert believes monitoring is still required. The Probation Service has not conducted any talks of a substantive nature with the accused yet, as the criminal proceedings in the Court of Appeal had not yet been concluded. So far, the talks have been superficial, and predominently pertained to the circumstance that the accused was on the Sanction List, his financial situation, his job and practical arrangements. The Probation Service has not discussed the accused’s religious beliefs with him yet. The Probation Service can arrange for talks with an imam, if the accused wants.
7. The expert advises against imposing a longer unsuspended custodial sentence on the accused than has already served. The expert advises that the Court of Appeal imposes the special conditions on the accused that were recommended in the Probation Service Advice of 6 April 2017, and to add the special condition that the accused must cooperate in discussions about his faith with an expert.
Reports
8. The Court of Appeal has taken cognizance of the Report of the Dutch Probation Service of 6 April 2017. The report states as follows in this respect.
9. According to the Probation Service there is an inconsistency between the results of the NIFP examination and how the accused experiences and/or presents himself. The accused puts across a strictly positive self-image, and says that he in each case acts with good intentions and is prepared to work on himself. Until this day, he does not seem to feel the need to change anything about himself or his beliefs. The problems he experiences are predominantly external in nature, such as that the wrong image is painted of him by the judicial authorities.
10. The Probation Service notes that the accused does not seem to sympathize with IS, but, by contrast, extolled the virtues of Jabhat al-Nusra. According to the accused, they did not commit the acts that IS committed, and contrary to IS, stood up for the population and dedicated themselves to their protection. The fact that Jabhat al-Nusra is considered a terrorist organisation does not seem to change his mind. The accused stated that he never had the intention to join or fight along with them. However, he in each case supported friends who had joined this group. He never saw the need to distance himself from this group or from these people.
11. The Probation Service cannot comment on the risk of recidivism and the risk of personal injury, because the accused denies the charges. The Probation Service notes, however, that it is generally known that terrorist offences (so the Court of Appeal construes) do indeed present a risk in that respect. The Probation Service cannot comment on the risk of violation of the conditions, as it has only talked with the accused in a closed facility.
12. If the accused is found guilty and a partially suspended sentence is imposed, the Probation Service advises to impose the following special conditions on the accused: the obligation to report, restraining orders in respect of a large number of persons, (co-accused, fellow inmates in the Terrorist Wing, persons referred to in the record of the hearing, and persons included in the Sanction List Terrorism), and exclusion orders with regard to a number of international airports plus the Belgian and German borders. The exclusion orders must be supervised by means of an electronic tagging device with a satellite navigation function.
13. Furthermore, the Court of Appeal has taken cognizance of the other documents of the Dutch Probation Service in the casefile of 13 July 2016, 19 August 2015, and 9 March 2015.
14. The report of 13 July 2016 states as follows.
The Probation Service cannot help thinking that the positive change in the accused’s behaviour is mostly due to external motivation, i.e. being afforded privileges, and that the accused has very little intrinsic motivation for behavioural change. Also, he has low problem awareness. He does not feel the need to change.
15. At the moment, risk factors are that there is insufficient insight into the accused’s network in Syria. Besides, to this day, he is part of a network of people who support the conflict.
16. The reports of 19 August 2015 and 9 March 2015 state as follows, amongst other things. The risk of recidivism is considered high. The accused has not distanced himself in any way from the behaviour leading to his current imprisonment.
17. Finally, the Court of Appeal has taken into cognizance the contents of the Pro Justitia report on the accused, written by J.P.M. van der Leeuw, psychologist,
F. Nhass, psychiatrist, and M. Elghalbzouri, social enquiry and background reporter, of 13 January 2016. In essence and in summary, this report entails as follows.
18. There are clues that the accused has a narcissist and antisocial personality structure. Due to the restrictions and the context of this examination, however, it proved impossible to establish or rule out a diagnosis of (antisocial) personality disorder. There are no indications for the existence of a psychiatric disorder in a narrow sense.
12.3.3
The sentence to be imposed
1. Having regard to the seriousness of the offences, the Court of Appeal thinks that the only appropriate response to the facts found is to impose an unsuspended custodial sentence.
2. Besides, the Court of Appeal will impose a substantial suspended custodial sentence in order to prevent the accused from committing new offences in the future. The Court of Appeal will attach an operational period of three years to this suspended part of the sentence due to the risk of recidivism and the scope of the facts found now.
3. Considering the contents of the expert reports, the Court of Appeal will attach the special conditions recommended in the Probation Service report of 6 April 2017 to the suspended part of the custodial sentence, and add the special condition that the accused must cooperate in discussions about his faith with an expert. The Court of Appeal will order the Probation Service to monitor compliance with the exclusion orders by means of electronic tagging.
4. With regard to the restraining orders that will be imposed, the Court of Appeal considers as follows. The court thinks it is necessary to issue the restraining orders recommended in the Probation Service advice of 6 April 2017, namely with regard to co-accused [co-accused 1] and [co-accused 2], anyone the accused was detained with in the Terrorist Wing, the persons [subject 12], [subject 14], and [subject 15], and anyone included in the Sanction List Terrorism. With regard to the restraining orders to be issued in respect of [subject 12], [subject 14], and [subject 15], the court holds that there is evidence in the case documents that these individuals sympathize with the armed jihadi struggle in Syria.
5. The Court of Appeal does not find any reason in what was submitted by and on behalf of the accused about his personal circumstances to vary from the sentence demanded by the Prosecutor in the Court of Appeal. In this connection, the Court of Appeal also holds that the expert [probation officer] at the hearing in the Court of Appeal indicated that the Probation Service also has consulting hours in the evening, and that the restrictions could also be dealt with flexibly if the accused discussed the specific problems those restrictions cause him.
6. Taking all this into consideration, the Court of Appeal finds that a custodial sentence of 42 months, deducting time spent in pre-trial custody, of which 12 months suspended, with an operational period of 3 years and subject to the special conditions referred to below is an appropriate and required response.
Immediate enforceability
7. The accused committed an offence against or presenting a hazard to the physical integrity of one or more persons, namely participation in a terrorist organisation, preparing and/or facilitating terrorist offences, or complicity therein, and financing of terrorism, or complicity therein.
8. It appears from the expert reports referred to above that the accused almost extolled the virtues of Jabhat al-Nusra, that he has friends who are jihadist fighters and that he never saw the need to distance himself from this group or these persons. Furthermore, the Court of Appeal has established that the accused visited Syria in 2013 already, and tried to travel to the area controlled by Jabhat al-Nusra in 2014 as has been proved in the case under consideration. In 2015, the Probation Service considered the risk of recidivism high. Finally, the Court of Appeal has taken cognizance of the fact that Jabhat al-Nusra commits terrorist offences, and that terrorist offences entail a serious risk of personal injury.
9. It follows from the above, seen in conjunction with each other, that there is a serious risk that the accused will commit a crime against the physical integrity, or presenting a hazard thereto, of one or more persons.
10.
For this reason, the Court of Appeal will order that the special conditions imposed under Article 14c DCC, and the supervision to be executed under Article 14d DCC are immediately enforceable.
For this reason, the Court of Appeal will order that the special conditions imposed under Article 14c DCC, and the supervision to be executed under Article 14d DCC are immediately enforceable.
13.Applicable sections of the law
The Court of Appeal has had regard to Articles 14a, 14b, 14c, 47, 57, 96, 140a, 157, 176b, 288a, 289a, and 421 of the Dutch Criminal Code as they are applicable or were in effect at the time the charges were declared proved.
RULING
The Court of Appeal:
Sets aside the contested judgment, and in a new judgment:
Declares not legally and conclusively proved that the accused committed the offences under 2 principal charge II, and acquits the accused thereof.
Declares legally and conclusively proved that the accused committed the offences under 1, 2 principal charge I, 3, and 4, as considered above.
Declares not legally and conclusively proved anything over and above what has been declared proved in the above and acquits the accused thereof.
Declares the facts proved under 1, 2 principal charge I, 3, and 4 punishable, characterizes them legally as referred to above, and declares the accused punishable.
Sentences the accused to a
term of imprisonment of 42 (forty-two) months.
term of imprisonment of 42 (forty-two) months.
Orders that part of the custodial sentence, i.e.
12 (twelve) months, will
notbe executed unless the court so orders because the accused committed any offence before the end of the operational period of
3 (three) years, or because the accused did not cooperate during the operational period of 3 (three) years in the establishing of his identity by means of taking one or more of his fingerprints, or did not provide for inspection a designated identity document as referred to in Article 1 of the Compulsory Identification Act, or did not cooperate in mandatory supervision by the Probation Service as referred to in Article 14d (2) of the Dutch Criminal Code, including cooperation in home visits, or did not comply with the special conditions referred to below.
12 (twelve) months, will
notbe executed unless the court so orders because the accused committed any offence before the end of the operational period of
3 (three) years, or because the accused did not cooperate during the operational period of 3 (three) years in the establishing of his identity by means of taking one or more of his fingerprints, or did not provide for inspection a designated identity document as referred to in Article 1 of the Compulsory Identification Act, or did not cooperate in mandatory supervision by the Probation Service as referred to in Article 14d (2) of the Dutch Criminal Code, including cooperation in home visits, or did not comply with the special conditions referred to below.
Imposes the following
special conditions:
special conditions:
1. that, for the duration of the operational period, the accused is obliged to report to the Dutch Probation Service, [address Probation Service] for as long as and as frequently as the Probation Service considers necessary;
2. that, for the duration of the operational period, the accused will cooperate in discussions about his faith with an expert, for as long as and as frequently as the Probation Service considers necessary;
3. that, for the duration of the operational period, the accused is prohibited to contact, or have someone contact for him:
- [co-accused 1] and [co-accused 2],
- [subject 12], [subject 14], and [subject 15],
- persons included in the National Sanction List Terrorism;
- anyone the accused has been detained with in the Penitentiary Institution at Rotterdam, location De Schie,
for as long as the Probation Service considers necessary;
4. that, for the duration of the operational period, the accused is prohibited to be at the following international airports in the Netherlands:
5. Amsterdam Airport Schiphol,
6. Rotterdam The Hague Airport,
7. Groningen Airport Eelde,
8. Eindhoven Airport,
9. Maastricht Aachen Airport,
for as long as the Probation Service considers necessary;
5. that, for the duration of the operational period, the accused is prohibited to be within a 2 kilometre radius of the Belgian and German borders, for as long as the Probation Service considers necessary;
6. that the accused, for the duration of the operational period, will submit to the use of a technical device to assist electronic monitoring designated by the Dutch Probation Service in order to comply with the conditions set out under 4 and 5, for as long as the Probation Service considers necessary.
Orders the Netherlands Probation Service to supervise compliance with the above special conditions, and to counsel the convict for that purpose.
Orders that the above special conditions and probation supervision are
immediately enforceable.
immediately enforceable.
Rules that the time spent in any form of pre-trial custody referred to in Article 27(1) or Article 27a of the Dutch Criminal Code by the accused prior to the enforcement of this judgment will be deducted at the enforcement of the term of imprisonment imposed on him, if this time has not been deducted yet from any other punishment.
This judgment was given by Justices E.F. Lagerwerf-Vergunst, LLM, M.I. Veldt-Foglia, LLM, and D.M. Thierry, LLM, in the presence of the clerk L.A.M. Karels, LLM.
The judgment was pronounced at a public hearing of the Court of Appeal on 6 October 2017.
Annexe
Indictment, after amendment of the charges at the hearing in first instance and on appeal.
1. (acts of preparation and facilitation of terrorist offences by travelling to Syria and joining Jabhat al-Nusra)
That he
once or several times in or around the period from 1 January 2014 up to and including 25 November 2014,
in Arnhem and/or Doesburg, at least in the Netherlands and/or in Syria,
jointly and in conjunction with another or others, at least alone,
with the object of preparing and/or facilitating the commission (repeatedly or otherwise) of the offence/offences described in Article 157 and/or 289(a) and/or 288a DCC, namely
- intentionally bringing about a fire and/or causing an explosion, where general danger to property and/or the risk of serious bodily harm and/or danger to another person’s life might have been expected to ensue from the act, and/or where this act results in the death of another person, committed with terrorist intent, and/or
- murder and/or manslaughter committed with terrorist intent;
- provided or tried to provide the opportunity and/or means and/or information to himself and/or others for the commission of the offence and/or
- had at his disposal objects which he knew to be intended for the commission of the serious offence
for the accused and/or his co-accused, jointly and in conjunction with each other, at least
alone, (in each case) for the benefit of the armed jihadi struggle, during which arson, causing explosions, murder and manslaughter are committed with terrorist intent,
A. had himself informed (via chat messaging) about travelling to the combat zone in Syria and/or how to join Jabhat al-Nusra and/or
B. had himself informed (via chat messaging) about which route to take to the combat zone and/or
C. participated in Arabic classes and/or
D. gathered and/or obtained and/or supplied information about travel requisites and/or practical arrangements that needed to be made before travelling to the combat zone in Syria and/or Iraq and/or
E. possessed one or several (documents or pictures on) data carriers containing information about the body of jihadist ideas, and/or instructions to comply with when participating in the armed jihadi struggle/warfare, and/or instructions to comply with when preparing to depart to the combat zone in Syria and/or Iraq, and/or
F. raised and/or transferred and/or possessed and/or left behind funds (in Kafr Hamra, Syria) for the benefit of one or several persons who were in the combat zone in Syria and/or Iraq, and/or
G. expressed his/their wish to travel to Syria or Iraq (via Turkey), and/or join the armed jihadi struggle and/or the armed jihad, by saying, inter alia, that they would meet each other on the battle field), and/or
(Art. 47 DCC in conjunction with 96 (2 ) DCC in conjunction with 176b (2) DCC in conjunction with 157 DCC in conjunction with 288a DCC in conjunction with 289 DCC in conjunction with 289a (2) DCC)
2. in the principal (acts of preparation/facilitation of terrorist offences by helping another to travel to Syria and join IS)
That he
once or several times in or around the period from 1 September 2014 up to and including 31 October 2014,
in Arnhem and/or Doesburg, at least in the Netherlands and/or in Syria,
jointly and in conjunction with another or others, at least alone,
with the object of preparing and/or facilitating the commission (repeatedly or otherwise) of the offence/offences described in Article 157 and/or 289(a) and/or 288a DCC, namely
- intentionally bringing about a fire and/or causing an explosion, where general danger to property and/or the risk of serious bodily harm and/or danger to another person’s life might have been expected to ensue from the act, and/or where this act results in the death of another person, committed with terrorist intent, and/or
- murder and/or manslaughter committed with terrorist intent;
- sought to induce another person to commit the serious offence, to have it committed or participate in or be an accessory to its commission, or to provide the opportunity, means or information for its commission, and/or
- provided or tried to provide the opportunity and/or means and/or information to himself and/or others for the commission of the offence/offences and/or
for the accused and/or his co-accused, jointly and in conjunction with each other, at least alone, (in each case) for the benefit of the armed jihadi struggle, during which arson, causing explosions, murder and manslaughter are committed with terrorist intent,
A. kept in touch with [subject 2] and/or [subject 5] (at least with one or several persons who were in the combat zone), so that [subject 1] (at least an unidentified person) could join Islamic State (IS), at least an organisation that had as its object the commission of terrorist offences,
at least so that [subject 1], (at least an unidentified person) could participate in the armed jihadi struggle, and/or
B. discussed with [subject 2] and/or [subject 5], (at least with one or several persons who were in the combat zone), the routes to be taken by [subject 1] (at least an unidentified person) (via Gaziantep and elsewhere) to the combat zone, and/or having/providing a personal guarantee (“tazkiyya”) for the benefit of admission to the combat zone of [subject 1] (at least this unidentified person), and/or
C. gave instructions to [subject 1], (at least an unidentified person), about the routes to be taken (via Gaziantep and elsewhere) to the combat zone, and/or
D. gave instructions/provided information to this [subject 1] (at least an unidentified person) about the way in which he should contact [subject 2] in the combat zone, at least one or several persons who were there,
(Art. 47 DCC in conjunction with 96 (2 ) DCC in conjunction with 176b (2) DCC In conjunction with 157 DCC in conjunction with 288a DCC in conjunction with 289 DCC in conjunction with 289a (2) DCC)
and/or complicity in participation of another in a terrorist organisation)
[subject 1], (at least an unidentified person),
once or several times in or around the period from 1 September 2014 up to and including 31 October 2014, in the Netherlands and/or in Syria,
jointly and in conjunction with another or others, at least alone,
participated in an organisation which had as its object the commission of terrorist offences, namely
- intentionally bringing about a fire and/or causing an explosion, where general danger to property and/or the risk of serious bodily harm and/or danger to another person’s life might have been expected to ensue from the act, and/or
where this act results in the death of another person, committed with terrorist intent, and/or
- murder and/or manslaughter committed with terrorist intent,
for this [subject 1], (at least an unidentified person), joined the terrorist organisation Islamic State (IS), at least an organisation which had as its object the commission of terrorist offences,
at the commission of which offence the accused, in or around the period from 1 September 2014 up to and including 31 October 2014, in the Netherlands and/or in Syria,
several times, at least once,
(in each case) intentionally provided the opportunity and/or means and/or information, and/or intentionally assisted, by
A. keeping in touch with [subject 2] and/or [subject 5] (at least with one or several persons who were in the combat zone, so that [subject 1]
(at least an unidentified person), could join Islamic State (IS), at least an organisation that had as its object the commission of terrorist offences, at least so that [subject 1] (at least an unidentified person) could participate in the armed jihadi struggle, and/or
B. discussing with [subject 2] and/or [subject 5], (at least with one or several persons who were in the combat zone) the routes to be taken by this [subject 1], (at least an unidentified person) (via Gaziantep and elsewhere) to the combat zone, and/or having/providing a personal guarantee (“tazkiyya”) for the benefit of admission to the combat zone of this [subject 1] (at least this unidentified person), and/or
C. giving instructions to [subject 1] (at least an unidentified person) about the routes to be taken (via Gaziantep and elsewhere) to the combat zone and/or
D. giving instructions/providing information to this [subject 1] (at least an unidentified person) about the way in which he should contact [subject 2] in the combat zone, at least one or several persons who were there,
and therefore facilitating [subject 1] (at least an unidentified person) to join the terrorist organisation Islamic State (IS), at least an organisation which had as its object the commission of terrorist offences;
(Art. 140a (1) DCC) 48a introduction/sub (1) DCC in conjunction with 48a introduction/sub (2) DCC)
In the alternative (complicity in participation of another in a terrorist organisation):
[subject 1], (at least an unidentified person),
once or several times, in or around the period from 1 September 2014 up to and including 31 October 2014, in the Netherlands and/or in Syria,
jointly and in conjunction with another or others, at least alone, for the commission of the intended offence of participation in an organisation which had as its object the commission of terrorist offences, namely
- intentionally bringing about a fire and/or causing an explosion, where general danger to property and/or the risk of serious bodily harm and/or danger to another person’s life might have been expected to ensue from the act, and/or
where this act results in the death of another person, committed with terrorist intent, and/or
- murder and/or manslaughter committed with terrorist intent,
travelled to the conflict zone in Syria to join the terrorist organisation Islamic State (IS), at least an organisation which had as its object the commission of terrorist
offences,
whereas the commission of the offence was not completed,
for and/or toward the commission of which (attempted) offence the accused, in or around the period from 1 September 2014 up to and including 31 October 2014, in the Netherlands and/or in Syria,
several times, at least once,
(in each case) intentionally provided the opportunity and/or means and/or information, and/or intentionally assisted, by
A. keeping in touch with [subject 2] and/or [subject 5] (at least with one or several persons who were in the combat zone, so that [subject 1] (at least an unidentified person) could join Islamic State (IS), at least an organisation that had as its object the commission of terrorist offences, at least so that [subject 1] (at least an unidentified person) could participate in the armed jihadi struggle and/or
B. discussing with [subject 2] and/or [subject 5], (at least with one or several persons who were in the combat zone), the routes to be taken by this [subject 1], (at least an unidentified
person) (via Gaziantep and elsewhere) to the combat zone, and/or having/providing a personal guarantee (“tazkiyya”) for the benefit of admission to the combat zone of this [subject 1] (at least this unidentified person), and/or
C. giving instructions to [subject 1] (at least an unidentified person) about the routes to be taken (via Gaziantep and elsewhere) to the combat zone and/or
D. giving instructions/providing information to this [subject 1] (at least an unidentified person) about the way in which he should contact [subject 2] in the combat zone, at
least one or several persons who were there,
and therefore facilitating [subject 1] (at least an unidentified person) to join the terrorist organisation Islamic State (IS), at least an organisation which had as its object
the commission of terrorist offences;
(Art. 140a (1) DCC) 45 DCC in conjunction with 48 DCC)
3.(participation in a terrorist organisation):
That he
once or several times in or around the period from 1 September 2014 up to and including 25 October 2014, in Arnhem and/or Doesburg, at least in the Netherlands and/or in Syria,
jointly and in conjunction with another or others, at least alone,
participated (as referred to in Article 140 (4) DCC or otherwise) in an organisation which had as its object the commission of terrorist offences, namely
- intentionally bringing about a fire and/or causing an explosion, where general danger to property and/or the risk of serious bodily harm and/or danger to another person’s life might have been expected to ensue from the act, and/or
where this act results in the death of another person, committed with terrorist intent, and/or
- murder and/or manslaughter committed with terrorist intent,
(Art. 47 DCC in conjunction with 140a (1) and (3) DCC in conjunction with 140 (4) DCC)
4.(the financing of terrorism)
That he
once or several times in or around the period from 1 January 2014 up to and including 25 November 2014, in Arnhem and/or Doesburg, at least in the Netherlands and/or in Syria,
jointly and in conjunction with another or others, at least alone,
intentionally provided himself or another person with means or information, or intentionally collected, acquired, had at his disposal, or provided to another person objects which served in full or in part, directly or indirectly, to provide monetary support for the commission of a terrorist offence or an offence for the preparation or facilitation of a terrorist offence, namely
- intentionally bringing about a fire and/or causing an explosion, where general danger to property and/or the risk of serious bodily harm and/or danger to another person’s life might have been expected to ensue from the act, and/or
where this act results in the death of another person, committed with terrorist intent, and/or
- murder and/or manslaughter committed with terrorist intent,
for the accused and/or his co-accused, jointly and in conjunction with each other, at least alone, (in each case) for the benefit of the armed jihadi struggle, during which arson, causing explosions, murder and manslaughter are committed with terrorist intent,
A. in or around January 2014, left behind and/or provided to a jihadi fighter [subject 6], at least a jihadi fighter who was in the combat zone, one or more unknown amounts of money (in a belt bag) in Kafr Hamra (Syria) and/or
B. in or around the period from 1 March 2014 up to and including 1 May 2014 collected and/or acquired and/or sent several thousands of Euros, or at least a (substantial) amount of money for or to another for the benefit of the jihadi fighters in the combat zone, and/or
C. in or around the period from 1 May 2014 up to and including 1 July 2014 sent and/or provided to another person EUR 650, or at least an amount of money for the benefit of jihadi fighter [subject 6], at least a jihadi fighter in the combat zone and/or
D. in or around the period from 1 August 2014 up to and including 8 October 2014 collected and/or acquired and/or sent to and/or provided EUR 1.000,-, or at least an (substantial) amount of money for and/or to another for the benefit of the jihadi fighters [subject 9] and/or [subject 6] and/or [subject 8], at least to one (or several) jihadi fighters in the combat zone, and/or
E. in or around October 2014 sent and/or provided to another person an unknown amount of money for the benefit of jihadi fighter [subject 2], at least a jihadi fighter in the combat zone;
which amount of money was (in each case) intended (in part) to provide monetary support to the armed jihadi struggle in Syria, and/or to fighters participating in armed jihadi combat in Syria, in which conflict terrorist offences are committed, (or) at least to provide monetary support to the commission of a terrorist offence, or an offence for the preparation or facilitation of a terrorist offence or one of the offences specified above.
(Art. 47 DCC in conjunction with 421 DCC)