Criminal Code) (to be) committed with terrorist intent (
of the Criminal Code) and/or > manslaughter (to be) committed with terrorist intent (
of the Criminal Code) and/or > murder (to be) committed with terrorist intent (
in conjunction with Article 83 of the Criminal Code) and/or > conspiracy and/or deliberate preparation and/or abetment to committing the aforementioned offences (
Articles 176b and/or 289a and/or 96 Paragraph 2) and/or > possession of one or more category II and/or III weapons and/or ammunition (
Paragraph 1 of the Weapons and Ammunition Act) (to be) committed with terrorist intent and/or with the intent to prepare or facilitate a terrorist offence (
Paragraph 1 and/or Paragraph 5 of the Weapons and Ammunition Act), by preparing and/or committing one or more attacks in France, or at least in (Western) Europe, AND/OR (abetment/preparation to committing terrorist offences) in or around the period from 1 December 2015 up to and including 27 March 2016 in Rotterdam, or at least in the Netherlands, and/or Paris and/or Argenteuil, or at least in France, and/or in Belgium, together and in association with (an)other person or persons, or at least alone, with the intent to prepare and/or abet the crime(s) to be committed (several times): > manslaughter (to be) committed with terrorist intent (
of the Criminal Code) and/or > murder (to be) committed with terrorist intent (
in conjunction with Article 83 of the Criminal Code) he - has attempted to induce another person to commit, to have committed or to participate in, to assist in or to provide the opportunity, means or information to commit the offence and/or - has provided himself or other persons with the opportunity, means and/or information to commit the offence and/or - has had in his possession items which he knew were intended for the commission of the offence, he, the accused, and/or his co-perpetrator(
Criminal Code) (to be) committed with terrorist intent (
of the Criminal Code) and/or > manslaughter (to be) committed with terrorist intent (
of the Criminal Code) and/or > murder (to be) committed with terrorist intent (
in conjunction with Article 83 of the Criminal Code) and/or > conspiracy and/or deliberate preparation and/or abetment to committing the aforementioned offences (
Articles 176b and/or 289a and/or 96 Paragraph 2) and/or > possession of one or more category II and/or III weapons and/or ammunition in (
Paragraph 1 of the Weapons and Ammunition Act) (to be) committed with terrorist intent and/or with the intent to prepare or facilitate a terrorist offence (
, Paragraph 1 and/or Paragraph 5 of the Weapons and Ammunition Act), by preparing and/or committing one or more attacks in France, or at least in (Western) Europe, to and/or in committing which offence(
the Weapons and Ammunition Act, and/or (
under 3, in view of Article 2 Paragraph 1, category III under 1 of the Weapons and Ammunition Act, namely one or more magazine(
of the Criminal Code) or with the intent to prepare and/or facilitate a terrorist offence (
Request of the Advocate General The Advocate General requested that the decision appealed against be set aside, that the accused be acquitted of the primary charge and - taking into account the fact that the reasonable period of time was exceeded - that he be sentenced to a term of imprisonment of 28 months, with credit for the time spent in pre-trial detention in respect of the lesser charge. The decision appealed against The decision appealed against cannot be upheld, because the Court of Appeal does not agree with it. Introduction On 24 March 2016, [co-accused1] was arrested in France on suspicion of (preparing) a terrorist offence. During a search of his residence in Argenteuil, heavy weapons (Kalashnikovs) and explosives were found. On 25 March 2016, co-accused [co-accused3] was arrested in Belgium. Another co-accused, [co-accused2], was said to be staying in the Netherlands according to information from France. On 25 March 2016, a criminal investigation was instituted in the Netherlands, involving cooperation with France and Belgium through a Joint Investigation Team. [co-accused2] was arrested in Rotterdam on 26 March 2016, as were two people with whom [co-accused1] had maintained contact by telephone. Shortly before his arrest, [co-accused2] had left the home of one of them on [street] in Rotterdam, and during a search of the storage unit belonging to that home, a large quantity of ammunition was found, including ammunition suitable for Kalashnikovs. Fingerprints were found on one of the bags in which this ammunition was packed. Dactyloscopic examination produced matches with (one or more) fingerprints of the accused [accused], [co-accused4] and [co-accused5]. Analysis of historical traffic data has shown that [co-accused1], [co-accused2] and [co-accused3] stayed in the Netherlands (in particular Rotterdam) in the period from 14 February 2016. They, or at least [co-accused2] and/or [co-accused1], were in contact with, among others, [co-accused6] at that time. The suspicion has arisen against (among others) [co-accused6], [accused], [co-accused4] and [co-accused5] that they were involved in supplying the ammunition found in the storage unit to [co-accused1], [co-accused2] and [co-accused3]. [co-accused1], [co-accused2] and [co-accused3] were prosecuted in France and sentenced by judgment of the Paris Court of Assizes on 9 April 2021 to a term of imprisonment of 24 years for (in short) participation in a group that prepares terrorist offences. Acquittal In the opinion of the Court of Appeal, the primary charge against the accused has not been legally and convincingly proven, so that the accused should be acquitted thereof in accordance with the request of the Advocate General and as argued by the defence. Furthermore, in the opinion of the Court of Appeal, what the accused has been charged with as a lesser charge has not been legally and convincingly proven. After all, it cannot be established that the intention of the accused was aimed at aiding and abetting the participation of others in the terrorist offence, or in the criminal organisation that has been charged (here implicitly as a lesser charge). The fact that the accused - as will be deemed - was involved in the supply of a large quantity of ammunition to [co-accused1] and [co-accused2] is insufficient for this purpose. The Court of Appeal has taken into account that the accused was not the one who was directly in contact with [co-accused1] and [co-accused2], but only (indirectly) through [co-accused6]. This means that the accused should also be acquitted of the lesser charge. Declaration of charges proven The Court of Appeal considers it legally and convincingly proven that the accused has committed the offences of the even lesser charge, on the understanding that: (transfer/possession of ammunition) in or around the period from 1 December 2015 17 February 2016 up to and including 27 March 2016 in Rotterdam, or at least in the Netherlands, together and in association with one or more persons, or at least alone, he handed over to one or more persons, or at least he had in his possession, a large quantity of ammunition, namely: * 2880 1595 cartridges (calibre 7.62 x 39 mm) and/or * 850 cartridges (calibre 9 mm and/or calibre 9 x 19 mm), or at least category II and/or III ammunition., or in any case ammunition
the Weapons and Ammunition Act, and/or (
under 3, in view of Article 2 Paragraph 1, category III under 1 of the Weapons and Ammunition Act, namely one or more magazine(
, Paragraph 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, has been exceeded both in the first instance and on appeal. The period of trial in the first instance was exceeded because more than two years elapsed between the date on which the accused was remanded in custody on 6 July 2016 and the date of the final decision on 8 April 2019. At that stage, the reasonable period of time has been exceeded by nine months. Furthermore, the time limit for trying an appeal has been exceeded because more than two years have elapsed between the date on which the appeal was lodged on behalf of the accused on 23 April 2019 and the date of this final decision. Here, the reasonable period of time has been exceeded by nine months. The Court of Appeal is of the opinion that, in principle, a prison sentence for a term of eight months is appropriate and necessary. In view of the fact that the reasonable period of time has been exceeded, but also in view of the stable life that the accused leads - as evidenced at the appeal hearing - the Court of Appeal will reduce this to a prison sentence for a term of six months, part of which in the form of a suspended sentence, whereby the non-suspended part has already been served in pre-trial detention. In addition, the accused is to perform community service. The Court of Appeal is - all things considered - of the opinion that a partially suspended prison sentence for a term yet to be announced, as well as fully non-suspendable community service for a term yet to be announced are an appropriate and necessary reaction. Applicable legal provisions The Court of Appeal has taken into account Articles 9, 14a, 14b, 14c, 22c, 22d, 47 and 63 of the Criminal Code and Articles 31 and 55 of the Weapons and Ammunition Act, as they apply or applied in law. JUDGMENT The Court of Appeal: Sets aside the decision appealed against and pronounces judgment anew: Declares that it has not been proven that the accused has committed the primary and lesser charges and acquits the accused thereof. Declares, as considered above, proven that the accused has committed the offences set out in the even lesser charges. Declares that any additional charges or charges formulated otherwise than those proven above have not been proven and acquits the accused thereof. Declares the offences proven in the even lesser charge to be punishable, qualifies this as above and declares the accused criminally liable. Sentences the accused to a term of imprisonment of 6 (six) months. Determines that a part of the term of imprisonment, amounting to 4 (four) months, will not be executed, unless the court later orders otherwise because the accused has committed a criminal offence before the end of an operational period of 2 (two) years. Orders that the time spent by the accused in any form of pre-trial detention
, Paragraph 1 of the Criminal Code before the execution of this judgment, shall be deducted when implementing the prison sentence imposed, insofar as that time has not already been deducted from another sentence. Sentences the accused to community service for a term of 120 (one hundred and twenty) hours, to be replaced, if not performed satisfactorily, by a term of prison custody of 60 (sixty) days. This judgment has been delivered by Th.W.H.E. Schmitz LLM, D.M. Thierry LLM and L.C. van Walree LLM, in the presence of M.J.J. van den Broek LLM, Court Clerk. It was pronounced at the public hearing of the Court of Appeal on 25 January 2022.
AI-uitleg op basis van de officiële wettekst. Indicatief, vervangt geen juridisch advies.