ECLI:NL:GHDHA:2017:4123

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 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 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 , 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. 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. 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. 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). Abu Bakr al-Baghdadi, the organisation’s emir, was appointed as ‘caliph’ of IS. 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. 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. 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. Jabhat al-Nusra 9. On 24 January The expert further stated that if a person joined Jabhat al-Nusra, odds were that he would be involved in combat. 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. 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. 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.” 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. 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 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: 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°. prepare 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. Subsequently, he wanted to travel to Syria by car together with co-accused [co-accused 1] (hereinafter: [co-accused 1]). The accused intended to settle there. [Co-accused 1] also wanted to travel to Syria, and asked the accused to think along with him. Both the accused and [co-accused 1] 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. In September and October 2014 the accused was in touch about this via Skype or Facebook with [subject 2] , who used skype name ‘[skype name subject 2]’. 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 at the time, about routes from the Netherlands to Turkey. [Subject 2] gave the accused several options. According to the accused it is easy for a Muslim male to enter Syria. 4. Subsequently, the accused wanted to go to Jabhat al-Nusra controlled territory near Aleppo (Kaffr Hamra) and Atme (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 , 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 ) to return. 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. 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. In that same chat message, the accused mentioned that he was going to Jabhat al-Nusra. On 30 May 2013, Jabhat al-Nusra had been included in the UN Sanctions List. 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.” 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 p 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 combat zone 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 def 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). 4. 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: a. 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; 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: 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; 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. 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. 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.’ 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 (now Recommendation 5) , viewed in conjunction with the Interpretative Note drafted by the FATF (a binding interpretation), which defines eleven requirements with which the penalization of the financing of terrorism must comply. 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. With the entry into force of Art. 421 DCC the said recommendation has been implemented. 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 pe 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. 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 implementing the Framework Decision on terrorist financing. 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. This followed the implementation of the Council of Europe Convention on the Prevention of Terrorism, signed in Warsaw on 16 May 2005. 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). 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. 5. Finally, the financing of individual terrorists and terrorist organisations is also punishable. Their punishability implements the obligation under item 2 of the Interpretative Note included 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. 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.’ In the description of the offence this is summarized as ‘providing monetary support’, which means the granting of any advan [ 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” , 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.” 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. 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]. 11. In a WhatsApp conversation of 25 March 2014, the accused says to [subject 7] that he has collected money for the brothers. He says he has collected “2 doezoe” already. The accused adds: “Is rising.” [Subject 7] says that [nickname subject 6] [subject 6] will divide it. 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]. 12. In a chat conversation of 31 January 2014, the accused asked [subject 7] for gruesome pictures of himself and the brothers. On 6 February 2014, [subject 7] answers the accused that the brothers are on ribaat . Ribaat means, in this context, participation in the armed conflict by guarding border areas and/or checkpoints. [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. 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. 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. On 15 June 2014, the accused says the HP laptop and 650 Euros were sent by him. 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]. 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. The accused became friends with [subject 6 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]. 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. [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. 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. 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. 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. 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. 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 S One of them show a kneeling man wagging his finger, and five chopped-off heads. It also contains many pictures of armed people. 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. 12. On a telephone used by the accused an Arabic song was found. 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].’ 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 w 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 2 principal charge I 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 (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 - 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 its commission, to assist in 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 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 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 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 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, 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; 4 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 or alone, intentionally provided himself or another person with means or information, or intentionally collected acquired, had at his disposal, or and 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 participat 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 an 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 ser 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 . Orders that part of the custodial sentence, i.e. 12 (twelve) months , will not be 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 : 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 . 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 enf 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 commis 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 co Record of the hearing in first instance of 14 and 15 January 2016 and 18 February 2016, p. 13. Report of questioning of a witness by the examining judge, constituting the witness statement [of co-accused 1]. Record of the hearing in the Court of Appeal of 30 January and 7 February 2017, p. 23. Record of the hearing in the Court of Appeal of 30 January and 7 February 2017, p. 19-20. ZD C01, Official report, p. I-31-32. ZD C01, Official report of findings, pp. 1-183 through 1-202; ZD C01, Official report of findings, p. 1-169 and p. 1-170. Record of the hearing in the Court of Appeal of 30 January and 7 February 2017, p. 19. Record of the hearing in the Court of Appeal of 30 January and 7 February 2017, pp. 21 and 24. Record of the hearing in the Court of Appeal of 30 January and 7 February 2017, p. 19. Records of the hearing in first instance of 14 and 15 January 2016 and 18 February 2016, p. 13. Record of the hearing in the Court of Appeal of 30 January and 7 February 2017, p. 18. Records of the hearing in the Court of Appeal of 30 January and 7 February 2017, p. 21. Expert document Doctor Jolen dated 29 January 2015, pp. 12-13 (ZD 02, p. 2-173 and p. 2-174). Records of the hearing in first instance of 14 and 15 January 2016 and 18 February 2016, p. 5. Records of the hearing in the Court of Appeal of 30 January and 7 February 2017, p. 9. ZD C01, Official report of findings, p. 1-340. Records of the hearing in first instance of 14 and 15 January 2016 and 18 February 2016, pp. 7 and 8. ZD C01, Official report (of findings re seizure Wolfgang TO206.03.01.001), p. 1-171. ZD C01, official police report: Organisation with the object of committing terrorist offences: Jabhat al-Nusra, p. 1-379. ZD C01, Official report, pp. 45/48 numbering at the bottom and ZD C01, transcription of Recording of Confidential Communications (OVC), p. 1-213. ZD C01, Official report of findings, p. 1-33 and p. 1-34 (plus annexes 7 through 9 on pp. 1-44 through 1-46). ZD C01, Official report of findings, p. 1-206. ZD C01, Official report, pp. 38/48 and 39/48, page numbers at bottom page. ZD C01, Official report of findings, p. 1-89 and ZD C01, Official report, p. 39/48, page numbers at bottom page. ZD C01, Official report of findings, p. 1-33, and annexe 6, p. 1-43. ZD B03, Official report of arrest, pp. 6-9. Records of the hearing in the Court of Appeal of 30 January and 7 February 2017, pp. 23 and 24. ZD C01, Official report (of findings re seizure Wolfgang TO206.03.01.001), p. 1-154 and p. 1-155. Also spelt tazkiyya . See D. Weggemans, R. Peters and E. Bakker, Bestemming Syrië. Een exploratieve studie naar de leefsituatie van de Nederlandse ‘uitreizigers’ in Syrië [Destination Syria. An exploratory study into the living conditions of Dutch foreign fighters in Syria], p. 49 and p. 80. ZD C01, Official report (of findings re seizure Wolfgang TO206.03.01.001), p. 1-162 and p. 1-163. ZD C02, Official report of findings, p. 1-110. ZD C01, Official report (of findings re seizure Wolfgang TO206.03.01.001), p. 1-166. ZD C01, Official report (of findings re seizure Wolfgang TO206.03.01.001), p. 1-160 and p. 1-161. Records of the hearing in the Court of Appeal of 30 January and 7 February 2017, p. 24. ZD C01, Official report (of findings re seizure Wolfgang TO206.03.01.001), p. 152 and p. 1-179. ZD C01, Official report of findings, p. (particularly annexe 13), p. 1-236 and p. 1-250. This Convention was signed in New York on 9 December 1999. See Treaty Series 2000, 12 (corrected in Treaty Series 2001, 62 in conjunction with Treaty Series 2002, 110). Treaty Series 2002, 110). Parliamentary Papers II 2001-2002, 28 031, no. 3, pp. 2-4. Parliamentary Papers II 2012-2013, 33 478, no. 3, p. 2-3. FATF Standards, FATF IX Special Recommendations, October 2001 (incorporating all subsequent amendments until February 2008. See http://www.fatfgafi.org/media/fatf/documents/reports/ FATF%20Standards %20-%20IX%20Special%20Recommendations%20and%20IN%20rc.pdf. See the FATF Recommend ZD C02, Official report of findings, p. 2-9 and p. 2-10 and p. 2-36 and p. 2-37 (conversation 4). ZD C02, Official report of findings, p. 2-63 and p. 2-64, and ZD C02, Official report, conversation of 15 June 2014 15:30: ‘I can still get a few things using your bank card’, the accused said to [subject 6], 27/41 page numbers at bottom page. D. Weggemans, R. Peters and E. Bakker, Bestemming Syrië. Een exploratieve studie naar de leefsituatie van de Nederlandse ‘uitreizigers’ in Syrië [Destination Syria. An exploratory study into the living conditions of Dutch foreign fighters in Syria], p. 90. Record of the hearing in the Court of Appeal of 30 January and 7 February 2017, p. 38. D. Weggemans, R. Peters and E. Bakker, Bestemming Syrië. Een exploratieve studie naar de leefsituatie van de Nederlandse ‘uitreizigers’ in Syrië [Destination Syria. An exploratory study into the living conditions of Dutch foreign fighters in Syria], p. 24. ZD C01, Official report, pp. 31/48, page numbers at bottom page. ZD C02, Official report, p. 13/41, page numbers at bottom page. In street language ‘doezoe’ means a thousand. ZD C02, Official report, p. 14/41, page numbers at bottom page. ZD C02, Official report, p. 14/41, page numbers at bottom page. ZD C02, Official report, p. 16/41, page numbers at bottom page. ZD C02, Official report, p. 23/41 and ZD C02, Official report, p. 24/41. D. Weggemans, R. Peters and E. Bakker, Bestemming Syrië. Een exploratieve studie naar de leefsituatie van de Nederlandse ‘uitreizigers’ in Syrië [Destination Syria. An exploratory study into the living conditions of Dutch foreign fighters in Syria], p. 53 and 88. ZD C02, Official report, p. 12/41 and ZD C02, Official report, p. 13/41, page numbers at bottom page. ZD C01, Official report (Findings analysis seized Samsung Galaxy TO206.03.01.002), p. 1-282 and p. 1-283. ZD C01, Official report (Findings analysis seized Samsung Galaxy TO206.03.01.002), p. 1-283 and p. 1-284. ZD C01, Official report (Findings analysis seized Samsung Galaxy TO206.03.01.002), p. 1-284. Record of the hearing in the Court of Appeal of 30 January and 7 February 2017, p. 25. ZD 03, Official report of findings, p. 3-31, particularly the chat conversation of 28 October 2014 10:50, in which [co-accused 2] refers to the city of [city] where [subject 9] attended school. ZD 03, Official report of findings, p. 3-29, particularly the chat conversation of 27 September 2014 18:27 (twice), where [co-accused 2] says to [subject 9]: ‘I am walking in old places where we used to walk’ and ‘your old home’. Record of the hearing in the Court of Appeal of 30 January and 7 February 2017, p. 9. Record of the hearing in the Court of Appeal of 30 January and 7 February 2017, p. 25. ZD C03, Official report, p. 12/24-13/24 page numbers at bottom page, particularly the conversation between [co-accused 2] and [subject 9] of 18 September 2014 at 23:39 - 23:42, and ZD C03, Official report of findings, p. 3-27. ZD C03, Official report, p. 15/24, page numbers at bottom page; ZD C03, Official report of findings, pp. 3-103 through 3-128. ZD C02, Official report, p. 20/41 and p. 21/41, page numbers at bottom page. ZD C03, Official report of findings, p. 3-23. The Court of Appeal refers to its comment on the term ‘ribaat’, made earlier in this paragraph. ZD C03, Official report of findings, p. 3-23. The Court of Appeal assumes that [name 1] and [name 1 spelt differently] are the same person as [subject 9]. The accused stated at trial in the Court of Appeal: “In our conversations Dawla signifies Islamic State, so IS.” Record of the hearing in the Court of Appeal of 30 January and 7 February 2017, p. 9. ZD C03 supplement, Official report, p. 15/24 and p. 16/24, page numbers at bottom page. Record of the hearing in the Court of Appeal of 30 January and 7 February 2017, p. 8. ZD C02, Official report, 12/41 page numbers at bottom page. Conversation via Facebook of 8 October 2014, ZD C01, Official report (of findings re seizure Wolfgang