Uitspraak
31 May 2016
Criminal Division
no. S 15/01915
SB
Supreme Court of the Netherlands
Judgment
on the appeal in cassation against a decision of The Hague Court of Appeal of 27 January 2015, number 22/004770-13, in the criminal proceedings against:
[defendant], born in [place of birth] on [date of birth] 1991.
1.Cassation proceedings
The cassation proceedings were lodged by the defendant, on whose behalf I.T.H.L. van de Bergh, an attorney practising in Maastricht, filed a statement of grounds for appeal in cassation. That statement is attached to this judgment and forms part of it.
Advocate General P.C. Vegter recommended in an advisory opinion that the appeal in cassation be dismissed.
2.Assessment of the ground for appeal in cassation
2.1.
The ground for appeal in cassation challenges the decision of the Court of Appeal that the acts found proven in count 1A at A and B can be construed as obtaining means for oneself and acquiring knowledge and skills within the meaning of article 134a of the Criminal Code (Sr).
2.2.1.
The Court of Appeal found it proven against the defendant under count 1 that:
“A.
he did, in or around in or around the period from 23 January 2012 to 13 March 2012 and in or around the period from 25 May 2012 to 13 June 2013, in Amsterdam or in any event in the Netherlands, intentionally:
- obtain means for himself, and
- acquire knowledge and skills,
to commit a terrorist offence, namely:
- intentionally causing a fire and/or an explosion with a terrorist aim if there is reason to fear that this will present a general danger to property and/or cause another person serious bodily injury or endanger the life of another person and/or
- committing murder with a terrorist aim, and/or
- committing manslaughter with a terrorist aim, and/or
- intentionally destroying and/or damaging a building or wooden structure with a terrorist aim, if there is reason to fear that will present a general danger to property and/or endanger the life of another person, since the defendant
A - visited websites and (subsequently) searched for information about ‘home-made bombs and explosives’ (namely at www.bombshock.com and www.pyronfo.com) and about ‘action man detonator’ (namely at www.Ebay.com) and about ‘how to make flashpowder’ (namely at www.metacafe.com and www.instructables.com);
B - purchased ten (10) metres of detonating fuse and one (1) kilogram of aluminium powder and a gas canister, and arranged for these objects to be delivered to his (the defendant’s) place of residence; and
D - visited websites where information about jihad and martyrdom and the armed struggle is shared (namely www.islamicawakening.com and http://behind-bars.net), and
E - (subsequently) posted films (about committing attacks) on the above-mentioned website and/or (subsequently) started a discussion about jihad on the forum of that website;
F - visited websites where information is shared about travel to and applying for visas for Yemen, Saudi Arabia and Syria;
G - obtained a travel visa for Saudi Arabia and a ticket to Turkey;
H - expressed a wish to visit the above-mentioned countries and asked how he could contact one or more persons of undisclosed identity after his arrival;
I - was in possession of information carriers containing information about jihadist ideology and martyrdom (including 10 DVDs);
I - was in possession of information carriers containing information about jihadist ideology and martyrdom (including 10 DVDs);
J - undertook a journey to Turkey (via Germany), with the ultimate destination of Syria;
and
B.
he did – in or around in or around the period from 23 January 2012 to 13 March 2012, in Amsterdam or in any event in the Netherlands, intentionally commit the following acts in preparation for the commission of the serious offence which, according to its statutory definition, carries a term of imprisonment of eight years or more, namely:
- intentionally causing a fire and/or an explosion with a terrorist aim if there is reason to fear that this will present a general danger to property and/or cause another person serious bodily injury or endanger the life of another person,
A - visiting websites and (subsequently) searching for information about ‘home-made bombs and explosives’ (namely at www.bombshock.com and www.pyronfo.com) and about ‘action man detonator’ (namely at www.Ebay.com) and about ‘how to make flashpowder’ (namely at www.metacafe.com and www.instructables.com);
B - purchasing ten (10) metres of detonating fuse and one (1) kilogram of aluminium powder and a gas canister, and arranging for these objects to be delivered to his (the defendant’s) place of residence;
which object(s) and substance(s) were manifestly intended to be used, whether or not in combination with one another, for the commission of such offence/offences.”
2.2.2.
The section of the contested judgment headed ‘Whether the charges found proven under count 1A constitute a criminal offence’ states as follows:
“(...)
8.2.
Legal framework of article 134a of the Criminal Code
8.2.1.
General remarks
1. The charges found proven under count 1A relate to article 134a of the Criminal Code (Sr), in which participating and cooperating in training for terrorism are made a criminal offence. The question to be addressed here is whether the acts charged under count 1A and found proven by the Court of Appeal can be classified as the offence specified in article 134a Sr.
2. Article 134a Sr reads as follows: (...)
3. Article 134a Sr implements article 7 of the Council of Europe Convention on the Prevention of Terrorism (referred to below as the Warsaw Convention). Article 134a Sr entered into force on 1 April 2010.
4. Article 7 of the Warsaw Convention reads as follows:
‘1. For the purposes of this Convention, “training for terrorism” means to provide instruction in the making or use of explosives, firearms or other weapons or noxious or hazardous substances, or in other specific methods or techniques, for the purpose of carrying out or contributing to the commission of a terrorist offence, knowing that the skills provided are intended to be used for this purpose.
2. Each Party shall adopt such measures as may be necessary to establish training for terrorism, as defined in paragraph 1, when committed unlawfully and intentionally, as a criminal offence under its domestic law.’
5. Another reason for introducing article 134a Sr was article 3 of Framework Decision of the Council of the European Union of 13 June 2002 on combating terrorism, as amended on 28 November 2008 (referred to below as the amended Framework Decision). In view of the finding that the threat of a number of terrorist offences has increased and also that the internet now functions as a ‘virtual training camp’, in addition to the ordinary training camps, the amended Framework Decision calls on the member states to criminalise various activities, including training for terrorism. The definition of training for terrorism in article 3 of the amended Framework Decision is identical to the definition contained in article 7 of the Warsaw Convention.
6. The Dutch government was also asked by motion tabled by a member of parliament to study the possibility of making it a criminal offence ‘to visit and take part in a training camp for terrorists’. This wish has been granted by the introduction of article 134a Sr.
7. Finally, the introduction of article 134a Sr was also prompted in part by the need and – in view of the international obligations – the necessity to fill possible gaps in the legislation on criminal preparatory acts. The array of criminal provisions previously available was not considered adequate to meet the requirements of the Warsaw Convention and the amended Framework Decision. As it stood, article 46 Sr provided that where objects, substances, information carriers and so forth were acquired this would be a preparatory act under criminal law only if the acquisition was intentional. If this requirement was not fulfilled, there would be no criminal offence. Nor, in the opinion of the Minister of Justice, did paragraph 2 (2) of article 96 Sr cover all conceivable culpable acts in connection with training for terrorism. In other words, it was necessary, according to the Minister of Justice, to create a separate criminal offence since the existing criminal provisions on preparatory acts were not sufficient to cover all possible cases in which training for terrorism could occur.
8. Article 134a Sr as finally introduced is a form of criminalisation of preparatory acts similar to that of other forms of preparation made punishable by the Criminal Code with a view to preventing terrorist and other serious offences (e.g. articles 46 and 96 Sr). However, the Court of Appeal notes that under article 134a Sr the preparatory acts constitute a separate criminal offence. Unlike articles 46, 48 and 96 Sr, article 134a does not require the acts to relate to the commission of a principal offence.
8.2.2.
Meaning of ‘training’
9. The offence introduced by article 134a Sr is summarised in the legislative history of this provision as a prohibition on participating and cooperating in training for terrorism. However, article 134a does not actually use the term ‘training’. This was a deliberate choice on the part of the legislator, which was prompted by the wish to use the standard Dutch terminology and apply the legislative drafting technique used throughout the Criminal Code.
Article 134a Sr makes it an offence to cooperate (as a person providing instruction) and participate (as a person receiving instruction) in training for terrorism. It is therefore a combined offence that consists of an active and a passive variant. The legislator has adopted a more comprehensive definition than contained in article 7 of the Warsaw Convention, which merely obliges states to make it a criminal offence under their domestic law to cooperate in training for terrorism.
10. The legislative history of article 134a Sr shows that the term ‘training’ is derived from the list of acts that concludes with the words ‘or in other specific methods or techniques’ in article 7 (1) of the Warsaw Convention. The Minister of Justice stated that the set of acts listed in the definition of the offence in article 134a Sr was intended to cover the broad definition of training used in the Warsaw Convention. He described training as ‘acquiring or imparting knowledge or acquiring or imparting skills or techniques’. The Minister continued, ‘The definition of the offence proposed in article 134a Sr is intended to cover all culpable acts that constitute training. Training is therefore a collective term that is denoted in the definition of the offence by a number of factual concepts.’
11. During the passage of the legislation through parliament, various examples were given to clarify what could and could not be covered by the term training. For instance, it may include training camps, but other forms of instruction are also conceivable. The legislator not only had in mind acts committed abroad; participation in a terrorist training camp in the Netherlands also had to be a criminal offence in all circumstances.
12. As noted above, the amended Framework Decision expressly provides that the internet can also be used to provide training (as a ‘virtual training camp’).
13. In the Court of Appeal’s view, it is evident that where preparatory acts could, in the absence of special circumstances, also be regarded as activities of a routine and non-criminal nature, the courts must carefully distinguish them in order to prevent any overhasty assumption that they are acts that can be regarded as training for terrorism within the meaning of the terms used in article 134a Sr.
8.2.3.
Participation in training
14. The legislative history of article 134a Sr shows that the offence of participation is intended to cover a person fascinated by terrorist violence who becomes increasingly radicalised, plans attacks and at the same time acquires knowledge and/or skills which could be used to commit a terrorist offence or an offence involving preparation or facilitation of a terrorist offence.
15. According to the legislative history, participation as referred to in article 134a Sr consists not only in attending a terrorist training camp whose participants are members of a terrorist organisation or are guilty of conspiracy to commit a terrorist offence but also cases in which a person undergoes terrorist training in connection with a terrorist attack he himself has planned. Training can also include ‘taking shooting or flying lessons or undergoing training in a martial art (...), where the intention of the person concerned is to acquire the knowledge or skills needed to commit a terrorist offence.’ According to the legislator, merely taking a language course is unlikely to qualify as participation in training for terrorism, even if there is other evidence that the person concerned may have terrorist sympathies. The situation may be different, however, where the aim of taking part is to acquire a knowledge of air traffic control terms in preparation for a terrorist hijacking at a particular airport.
16. In answer to a question raised by members of the Christian Democratic Alliance (CDA) parliamentary party, namely whether taking an online training course can come within the definition of the offence, the Minister of Justice also stated that ‘where knowledge or skills are acquired online’ this too can constitute participation in training. It follows that where a lone individual acquires knowledge and information on the internet about how to make an explosive which he or she will then use to facilitate the commission of a terrorist offence by a third party, this too comes within the scope of article 134a Sr.
17. In summary, the Court of Appeal considers, taking into account the legislative history of article 134a Sr and the Warsaw Convention, that the term training includes not only a training camp in the Netherlands or abroad but also other forms of instruction, for example individual or group lessons. This may involve acquiring both physical skills and intellectual know-how. The training may also take place either through personal contact or through consultation on the internet or the use of other ‘learning materials’. Whether there can still be said to be training within the meaning of article 134a Sr in the latter case, which is a form of ‘self-study’, depends in part on the factual conclusions about the type of materials consulted, any link between the materials and in some cases on the frequency with which they are consulted.
18. Further to what has been said above about ‘self-study’, the Court of Appeal would observe that article 134a Sr also expressly makes obtaining or providing information, opportunity and means and acquiring knowledge and skills an offence, whether done by the perpetrator or for the benefit of the perpetrator. Reference should be made to the text of article 134a Sr, which introduces criminal liability for the following [underlining added by the Court of Appeal]:
‘Any person who intentionally obtains or attempts to obtain for
himself(...) [opportunity, means or information] (...) or who
himselfacquires knowledge or skills for that purpose (...).’
himself(...) [opportunity, means or information] (...) or who
himselfacquires knowledge or skills for that purpose (...).’
The legislator has thus provided for ‘self-study’ to be a criminal offence under article 134a Sr.
8.2.4.
Cooperation in training
19. Given the legislative history of article 134a Sr, the above comments on the interpretation and scope of the phrase ‘participate in training’ also apply
mutatis mutandisto the phrase ‘cooperate in training’. In the legislative history it was noted with respect to the scope of this provision that:
mutatis mutandisto the phrase ‘cooperate in training’. In the legislative history it was noted with respect to the scope of this provision that:
‘(It) has also been decided that both participation and cooperation in training for terrorism should constitute a single criminal offence. Both acts – participation and cooperation – therefore have the same scope. This is preferable from the perspective of the legislative drafting technique and is, in my view, also justified by the fact that the two acts are closely interrelated.’
Participation and cooperation in training therefore have the same scope.
(...)
8.3.
Assessment of the charges found proven under count 1A
8.3.1.
Participation in training
(...)
2. On 1, 2, 6, 8 and 27 February 2012 the defendant searched on the internet specifically for methods of making an explosive using aluminium powder. On 1 February 2012 he searched using the keywords aluminium explosion, home-made explosives, buy flash powder, flash powder formulas, black powder and action man/detonator. The defendant knew that a detonator was a button that could be used to explode a bomb. He had seen on YouTube what could be done with flash powder and had thus continued searching. He also searched for information on whether this could be bought and, when he found that this was not possible, searched for information on how to make this powder.
He also visited the following web pages: www.bombshock.com, www.pyronfo.com, www.pryoforum.nl, www.ebay.nl, www.google.nl and www.metacafe.com. On 2 February 2012 the defendant searched on the website www.instructables.com for information on ‘how to make flash powder’. On 6 February 2012 the defendant searched for information on aluminium powders on the website www.artsuppliesonweb.com. On 8 February 2012 the defendant used the keywords self-made explosives, sodium nitrate and potassium nitrate to search on the websites www.wikipedia.nl, www.naturalspices.eu and www.tuincentrumovervecht.nl. On 27 February 2012 he searched on www.ebay.nl using the following search terms: aluminium powder, aluminium powder indian, sulphur, potassium nitrate (kno3), magnesium and ferrocerium. How explosives can be produced from aluminium powder is explained on these pages by means of instruction videos, detailed manuals, FAQs, guides to common explosives and recommended materials and chemicals. Other matters dealt with are risks, safety regulations and possible legal consequences.
3. The defendant made purchases on two websites, namely www.viscolontkopen.nl and www.carbonwinkel.nl. At Viscolontkopen the defendant bought and paid for 10 metres of detonating fuse and a gas canister on 21 January 2012. He had seen on YouTube how the fuse could burn and what it did. And at Carbonwinkel the defendant bought and paid for one kilogram of aluminium powder on 25 January 2012. The defendant arranged for the goods to be delivered to [a-street nr. 1], his parent’s home in Amsterdam.
4. The findings of the Netherlands Forensic Institute (NFI) show that the fuse and aluminium powder seized from the defendant are suitable ingredients for making explosives. The fuse examined by the NFI is classified as visco fuse, which is used in professional and consumer fireworks and so forth. The aluminium powder can, in principle, be used in explosive mixtures, but also has other applications, for example for thermite charges or paint. When mixed in the right proportions, the aluminium powder is in any event suitable for use as part of a pyrotechnical mixture. Aluminium powder can also be added to pyrotechnical mixtures or explosives, for example to generate increased heat after ignition.
5. In the Court of Appeal’s opinion, the purpose of the defendant’s activities as described above, when viewed in conjunction with one another and taking account of the external form which they took, was to obtain for himself the means and acquire the knowledge needed to make explosives and to become proficient in this skill by searching for information in the manner held to have been proven, in combination with the purchase of the raw materials for making an explosive. The Court of Appeal also takes into account that the defendant – evidently against his better judgement – has been unable or unwilling to provide a plausible explanation for his targeted search activities on the internet or for the presence of the objects discovered in his possession and previously purchased by him, although it would have been in his interests to do so.
The defendant has admittedly stated that he had previously decided against purchasing aluminium powder of a more explosive nature than that which he ultimately purchased and which, in his view, is not dangerous. The Court of Appeal also understands that the fuse and gas canister found in his possession were not dangerous. Nonetheless, the Court of Appeal considers that the combination of the fuse and the aluminium powder together with the online search for information about making explosives can be construed as obtaining for himself the means to commit a terrorist offence and for this purpose himself acquiring knowledge and skills and/or carrying out preparatory acts for causing a fire or an explosion, taking into account the conclusion drawn by the NFI in its report of 23 April 2013. This is all the more significant since the defendant, as held above, failed to provide the police with the clarification they requested or offer any plausible explanation for the intended use of the goods he had purchased.
6. The acts found proven at A and B can therefore be construed as obtaining means for himself and acquiring knowledge and skills (taking part in training) within the meaning of article 134a Sr.
(...)
7. The defence has submitted that bringing the consultation of a webpage and hence also the reading of a magazine article within the scope of article 134a of the Criminal Code would be to stretch this provision too far. According to this view, acquiring knowledge or skills on an individual basis through one’s own efforts does not constitute training. The defence therefore concludes that, even if the facts in question are found proven, the defendant should be discharged from all prosecution.
8. In view of the established facts concerning the defendant’s search behaviour on the internet, as set out in point 2 of this section, the Court of Appeal notes that the defendant entered a large number of keywords in his search for information about making explosives (about both parts and raw materials) on a number of days in February 2012 and that he had previously purchased the raw materials for making explosives. In the Court of Appeal’s opinion, these circumstances can be described (as already held above) as a form of training within the meaning of article 134a of the Criminal Code. Given the established facts, it cannot be maintained, after all, that the defendant merely consulted a webpage. When viewed together, the defendant’s activities on the internet were clearly intended to enable him to acquire knowledge. Of further relevance is the fact that the defendant had also proceeded to purchase goods that were intended for making explosives and could be used by him in practice for gaining proficiency in these skills and techniques.
9. The Court of Appeal therefore rejects this defence.
(...)
8.3.3.
Aiding or abetting separate from the training element?
29. At the appeal hearing the Public Prosecution Service cited various sources in the literature in support of its submission that article 134a Sr not only makes it an offence to participate and cooperate in training for terrorism but also to engage in all kinds of other forms of ‘aiding or abetting’ terrorist offences and offences involving preparation or facilitation of a terrorist offence unrelated to the training element.
30. The defence has argued that the phrase ‘opportunity, means or information’ in article 134a Sr transposes the provisions of article 7 of the Warsaw Convention and that this part of the provision in question does not have any meaning separate from the term training.
31. The Court of Appeal holds as follows in this connection.
32. The text of article 134a Sr allows scope grammatically for an interpretation of the kind proposed by the Public Prosecution Service.
33. As this provision has entered into effect only recently, the Court of Appeal considers that great weight must be given to the intention of the legislator as evidenced by the legislative history of article 134a Sr. It refers in this connection to what has been held above in section 8.2.7. The conclusion to be drawn from the legislative history is that article 134a Sr covers acts that relate to (terrorist) training.
34. In support of its submission the Public Prosecution Service has referred to the literature, where a passage from the Parliamentary Papers is cited, namely the following answer of the Minister of Justice: ‘These members have asked what is meant precisely by obtaining or providing opportunity, means or information. I would like to point out that these terms can already be found in the existing provisions of the Criminal Code. They have the same meaning as in article 48 (2) Sr. These are means that “make it possible or easier to commit the offence” (Supreme Court, 17 June 1940, NJ 1940, 82).’
35. The Minister of Justice’s answer cited in point 34 above refers back to the following question put by members of the Socialist Party group in parliament: ‘What is meant precisely by obtaining or providing opportunity, means or information to commit a terrorist offence?’ The Court of Appeal understands from the Minister’s answer that he is saying that the meaning of the phrase ‘obtaining or providing opportunity, means or information’ in article 134a Sr does not differ from that of article 48 (2°) Sr, subject to the settled case law. The Minister’s answer has no bearing on the issue of whether article 134a Sr includes an offence of aiding or abetting separate from the requirement of some form of training for terrorism.
36. In the light of the above, the Court of Appeal does not share the view taken by the Public Prosecution Service.
(...)
8.3.4.
No participation in training (proven acts D-J)
37. It has been found proven that the defendant:
D - visited websites where information about jihad, martyrdom and the armed struggle is shared (namely www.islamicawakening.com and http://behind-bars.net), and
D - visited websites where information about jihad, martyrdom and the armed struggle is shared (namely www.islamicawakening.com and http://behind-bars.net), and
E – (subsequently) posted films (about committing attacks) on the above-mentioned website and (subsequently) started a discussion about jihad on the forum of that website;
F - visited websites where information is shared about travel to and applying for visas for Yemen, Saudi Arabia and Syria;
G - obtained a travel visa for Saudi Arabia and a ticket to Turkey;
H - expressed a wish to visit the above-mentioned countries and asked how he could contact one or more persons of undisclosed identity after his arrival;
I - was in possession of information carriers containing information about jihadist ideology and martyrdom (including 10 DVDs);
J - undertook a journey to Turkey (via Germany), with the ultimate destination of Syria.
38. In the Court of Appeal’s opinion, the acts referred to above completely lack the element required for an offence under article 134a Sr, namely participation in training to commit a terrorist offence or an offence involving preparation or facilitation of a terrorist offence. However, the acts referred to at D-J (and the combination of them) are important in the context of establishing the defendant’s intent to acquire knowledge and skills as referred to in article 134a Sr.
(...)
8.3.6.
Conclusion with regard to the charges found proven under count 1A
43. The acts referred to in the judicial findings of fact, as described in indents A-J, should be viewed in their overall context and mutual relationship. The acts found proven at A and B are those which can be described as obtaining means for oneself and acquiring knowledge and skills (participation in training).
Although the other proven acts referred to at D-J do not in themselves constitute training as referred to in article 134a Sr, the combination of these acts can serve as proof of the defendant’s intent to obtain means for himself and acquire the knowledge and skills needed to commit a terrorist offence.”
2.2.3.
Referring to article 134a Sr, the Court of Appeal construed the judicial findings of fact under count 1A as “intentionally obtaining for himself the means to commit a terrorist offence and himself acquiring knowledge and skills for that purpose”.
2.3.1.
Article 134a Sr reads as follows:
“Any person who intentionally obtains or attempts to obtain for himself or provides or attempts to provide to another person opportunity, means or information for the commission of a terrorist offence or an offence involving preparation or facilitation of a terrorist offence, or who himself acquires knowledge or skills for that purpose or imparts such knowledge or skills to another person is liable to a term of imprisonment not exceeding eight years or a fifth-category fine.”
2.3.2.
The explanatory memorandum on the bill that introduced this provision stated
inter aliaas follows:
inter aliaas follows:
“There is also another respect in which the criminalisation of preparatory acts could be improved, namely criminal liability for participation and cooperation in, put simply, training for terrorism.
(...)
Criminal liability for participation in training for terrorism, for instance by participating in a terrorist training camp, can often be assumed on the basis of the provisions criminalising participation in a terrorist organisation, conspiracy and/or criminal preparatory acts.
(...)
Finally, following training will often involve acquiring or possessing information carriers (for instance containing instructions). This may amount to a criminal preparatory act within the meaning of article 46 Sr. However, it is conceivable that an individual may follow a terrorist training course for the purposes of a terrorist attack that they themselves intend to commit. The question is whether the existing criminal provisions offer sufficient scope to cover such cases or provide sufficient clarity. Such cases involve neither participating in an organisation nor any conspiracy, and if the person concerned does not take any objects ‘to be used in the commission’ of the attack from the training camp it would not seem possible to construe this as a criminal preparatory act, since the preparations have not yet taken the specific form of intentionally possessing objects, substances, information carriers, means or such like for the commission of the offence.
(...)
The considerations set out above regarding the applicability of existing criminal provisions to participation in a terrorist training camp also largely apply to the scope for bringing cooperation in training for terrorism within the scope of an existing offence as currently defined. Article 7 of the aforementioned Council of Europe Convention on the Prevention of Terrorism obliges States Parties to make it a criminal offence under their domestic law ‘to provide instruction in the making or use of explosives, firearms or other weapons or noxious or hazardous substances, or in other specific methods or techniques, for the purpose of carrying out or contributing to the commission of a terrorist offence, knowing that the skills provided are intended to be used for this purpose’. (...) With respect to the applicability of article 46 Sr, as I indicated earlier, providing training is punishable as a type of criminal preparatory act only if those preparations have in some way taken material form.”
(Parliamentary Papers II, 2007/08 session, 31 386, no. 3, pp. 5-7)
2.3.3.
The Memorandum of Reply states
inter aliaas follows:
inter aliaas follows:
“Article 7 of the aforementioned Council of Europe Convention on the Prevention of Terrorism obliges States Parties to make it a criminal offence under their domestic law ‘to provide instruction in the making or use of explosives, firearms or other weapons or noxious or hazardous substances, or in other specific methods or techniques, for the purpose of carrying out or contributing to the commission of a terrorist offence, knowing that the skills provided are intended to be used for this purpose’. The Convention therefore uses a broad definition of the concept ‘training for terrorism’, which – at least in its active variant – corresponds with what in normal parlance is generally understood under ‘training’: acquiring or imparting knowledge or acquiring or imparting skills or techniques. The definition of the offence proposed in article 134a Sr is intended to cover all culpable acts that constitute ‘training’. Training is therefore a collective term that is denoted in the definition of the offence by a number of factual concepts.
Taking shooting or flying lessons or undergoing training in a martial art can, where the intention of the person concerned is to acquire the knowledge or skills needed to commit a terrorist offence, constitute a criminal offence under the proposed article 134a Sr. In answer to a related question raised by members of the Christian Democratic Alliance (CDA) parliamentary group, I would note that this may also be the case where knowledge or skills are acquired online.”
(Parliamentary Papers II, 2008/2009 session, 31 386, no. 8 p. 4)
2.4.1.
The Court of Appeal proceeded on the assumption that article 134a Sr concerns acts that are in some way connected with training for terrorism. That assumption is correct. That connection is already expressed in article 134a Sr in so far as that provision makes it an offence to acquire knowledge or skills or impart knowledge or skills to another person for the commission of a terrorist offence or an offence involving preparation or facilitation of a terrorist offence. With respect to the other acts that constitute a criminal offence under article 134a Sr - namely intentionally obtaining or attempting to obtain for oneself or providing or attempting to provide to another person opportunity, means or information for the commission of a terrorist offence or an offence involving preparation or facilitation of a terrorist offence – it must be assumed such acts cannot be construed as falling within the scope of article 134a Sr in the absence of a sufficient connection between the acts concerned and some form of training for terrorism, with training here being understood in a broad sense in accordance with the aforementioned legislative history as ‘acquiring knowledge or skills or imparting knowledge or skills to another person’.
2.4.2.
The Court of Appeal’s ruling that the acts found proven under counts 1A, at A and B could be construed as obtaining the means for oneself and acquiring knowledge and skills within the meaning of article 134a Sr implies that those acts have a sufficient connection with some form of training for terrorism in the aforementioned sense. In view of the considerations set out above, that finding does not constitute an inaccurate interpretation of the law. Sufficient reasons were also given for that finding. In this connection the Supreme Court takes into account that the Court of Appeal (in 8.3.1, at 2) considered that the purpose of the defendant’s activities as found proven, when viewed in conjunction with one another and taking account of the external form which they took, was to obtain for himself the means and acquire the knowledge needed to make explosives and to become proficient in this skill by searching for information in the manner held to have been proven, in combination with the purchase of the raw materials for making an explosive.
2.4.3.
In so far as the ground for appeal is founded on the view that article 134a Sr criminalises only acts that precede a criminal preparatory act for an offence as referred to in this article, or that such acts must point to the following of instructions from which specific skills, methods or techniques for the commission of a terrorist offence are learned, it cannot result in cassation. This view, for which no support can be found in the text of article 134a Sr or in the legislative history, is incorrect.
2.4.4.
Contrary to the assumption on which the ground for appeal is apparently based, the possibility cannot be excluded that the defendant’s acts can be categorised as the offence set out in article 134a Sr if they can also be construed as preparatory acts within the meaning of article 46, paragraph 1 Sr.
2.4.5.
This ground for appeal in cassation is untenable.
3.Assessment of the other grounds for appeal in cassation
The other grounds for appeal in cassation cannot result in cassation. In view of section 81, subsection 1 of the Judiciary (Organisation) Act, no further reasoning is required since these grounds for appeal do not warrant the answering of questions of law in the interests of the uniform interpretation or application of the law or the development of the law.
4.Decision
The Supreme Court dismisses the appeal in cassation.
This judgment was given by vice president W.A.M. van Schendel as presiding judge and by justices J. de Hullu, H.A.G. Splinter-van Kan, Y. Buruma and A.L.J. van Strien, in the presence of S.P. Bakker, clerk of the court, and pronounced in public on
31 May 2016.
31 May 2016.