ECLI:NL:GHDHA:2017:4306

ECLI:NL:GHDHA:2017:642 Court: The Hague Court of Appeal Date of judgment: 10/03/2017 Date of publication: 14/03/2017 Case number: 2200130176 Areas of law: Criminal law Special features: Appeal Content indication: Conviction for terrorist financing. The Court of Appeal sentences the accused for terrorist financing, violating the Sanctiewet 1977 in conjunction with the Sanctieregeling Al-Qa’ida 2011, and the Sanctieregeling Terrorisme 2007-II respectively, co-perpetration in the forgery of documents and intentionally using these forged documents, to a term of imprisonment of 24 months, of which 14 months suspended with an operational period of 3 years, with special conditions. In the period from 16 September 2013 up to and including 24 December 2014, the accused, through intermediaries, sent almost €17,000 to his brother, who was fighting in Syria on the side of terrorist organisation IS and had been placed on the National Terrorism List. By submitting, together with another person, an application for a provisional assessment containing intentionally incorrectly entered data to the Tax and Customs Administration, the accused wrongfully received a sum of money in excess of €10,000.00, the largest part of which was transferred to his brother in Syria. Unlike the District Court, the Court of Appeal did not deem the terrorist intent in the forgery of documents and the use of these documents to have been proven. Art. 421 CC, Art. 2 Sanctiewet in conjunction with the Sanctieregeling Al-Qa’ida or the Sanctieregeling Terrorisme 2007-II, Art. 225 CC. Sources: Rechtspraak.nl NJFS 2017/80 Judgment Cause list number: 22-001307-16 Public Prosecutor's office number: 10-996520-15 Date of judgment: 10 March 2017 JUDGMENT AFTER TRIAL Court of Appeal, The Hague joint bench for criminal proceedings in session in the high-security courtroom of the Court of North Holland in Badhoevedorp Judgment rendered in the appeal against the decision of the District Court of Rotterdam of 15 March 2016 in the criminal case against the accused: [the accused], born in [place of birth] on [date of birth] 1987, [address]. Table of contents 1. Examination of the case 2. Procedure 3. The decision appealed against 4. Charges 5. Background 6. Legal framework 6.1 General comments 6.2 Legal framework regarding Article 421 CC (Count 1) 6.3 Legal framework regarding the intentional violation of the Sanctiewet 1977 in conjunction with the Sanctieregeling Al-Qa’ida 2011 (Count 2) or the Sanctieregeling Terrorisme 2007-II (Count 3) 6.4 Legal framework regarding Article 225 CC (Count 4) 7. Positions of the Public Prosecution Service and of the defence 7.1 Positions of the Public Prosecution Service 7.2 Positions of the defence 8. The facts established by the Court of Appeal 9. Evidentiary considerations 10. Assessment of the charges 10.1 Considerations regarding the charge under Count 1 10.2 Considerations regarding the charge under Count 2 10.3 Considerations regarding the charge under Count 3 10.4 Considerations regarding the charges under Counts 4A and 4B 11. Declaration of charges proven 12. Criminality of conclusive evidence 13. Criminal liability of the accused 14. Request of the Advocate General 15. Grounds for the sentence 16. Request that the suspension of pre-trial detention be lifted 17. Applicable legal provisions 18. JUDGMENT 1Examination of the case This judgment was rendered as a result of the examination at the hearing in the first instance and the examination at the hearings in the appeal proceedings of this Court of Appeal on 17 February 2017 and 10 March 2017. The Court of Appeal has taken cognisance of the request of the advocate-general and of that which has been put forward by and on behalf of the accused. 2Procedure In the first instance, the Public Prosecutor was barred from the prosecution in respect of the second cumulative/alternative charge implicit under 4, and in respect of the first cumulative/alternative charges implicit under 1, 2, 3 and 4, the accused was sentenced to a term of imprisonment of 24 months, with credit for pre-trial detention, of which 8 months suspended, with an operational period of 3 years and under the general and special conditions as set out in the decision appealed against. On behalf of the accused, an appeal was lodged against the decision. 3The decision appealed against The decision appealed against cannot be upheld because the Court of Appeal does not agree with it. 4Charges The accused – after adjustment of the definition of the charges pursuant to Article 314a of the Code of Criminal Procedure – has been charged with the following: 1. he, at one or more point(s) in time in or around the period from 1 September 2013 up to and including 24 December 2014, in The Hague and/or (elsewhere) in the Netherlands and/or in Hatay and/or in Istanbul and/or (elsewhere) in Turkey and/or Syria and/or Iraq, jointly and in conjunction with (an)other person(s) and/or (a) (legal) person(s), if not alone, several times, if not once, (on each occasion) intentionally provided himself or another person with means or information, or intentionally collected, acquired, had in his possession or provided another person with items that in whole or in part, directly or indirectly, served to provide financial support for the commission of a terrorist offence or an offence preparing or facilitating the commission of a terrorist offence, namely: - participation in an organisation whose intent it is to commit terrorist offences (Art. 140a Criminal Code) and/or - deliberate arson and/or causing an explosion, this constituting a general danger to property and/or danger of serious bodily harm and/or danger to the life of another person, and/or this act resulting in someone's death (to be) committed with terrorist intent (Art. 157 and/or 176a in conjunction with Art. 83 Criminal Code) and/or deliberate preparation of and/or abetment of the offence defined in Article 157 criminal Code (within the meaning of Article 176b in conjunction with 96, Paragraph 2, Criminal Code) (to be) committed with terrorist intent and/or - murder and/or manslaughter (to be) committed with terrorist intent (Art. 288a and/or 289 in conjunction with Art. 83 Criminal Code) and/or deliberate preparation of and/or abetment to commit the offences defined in Art. 288a and/or 289 criminal Code (within the meaning of Article 289a in conjunction with 96, Paragraph 2, Criminal Code) (to be) committed with terrorist intent, the accused and/or his co-accused having sent and/or forwarded, at said time(s) and location(s), (via (a) money transfer(s)) (a) sum(s) (of money) of: - 4,713 euros (on 16 September 2013) (Doc-015-07) and/or - 1,400 euros (on 21 May 2014) (Doc-015-08) and/or - 326 euros (on 29 May 2014) (Doc-015-02) and/or - 70 euros (on 13 June 2014) (Doc-015-03) and/or - 5,000 euros (on 15 July 2014) (Doc-015-09) and/or - 1,456 euros (on 6 September 2014) (Doc-015-05) and/or - 1,306 euros (on 15 September 2014) (Doc-015-06) and/or - 1,701 euros (on 16 October 2014) (Doc-033) and/or - 965 euros (on 24 December 2014) (Doc-043 and/or Doc-044), or at least sent or had one or more sum(s) of money sent to (an) intermediary person(s) in Turkey and/or sent this/these sum(s) to Turkey, while this/these sum(s) of money was/were (on each occasion) intended to provide financial support to the armed Jihad struggle and/or (a) fighter(s) of that armed Jihad struggle in Syria and/or Iraq, in which struggle terrorist offences are being committed, namely for the benefit of [man 1], that is to say the brother of the accused and/or a fighter of the armed Jihad struggle, namely of terrorist organisation(s) IS and/or Al-Qaida or a combat group affiliated with them, be that an armed jihadi combat group, which fighter and/or combat group(s)/organisation(s) had/has/have the intent to commit terrorist offences, and/or in so doing served to provide financial support and/or means for the armed struggle in Syria and/or in Iraq, in any case to provide financial support and/or means for the commission of a terrorist offence or an offence preparing or facilitating a terrorist offence or one of the offences specifically mentioned above; 2. he, at one or more point(s) in time in or around the period from 30 August 2013 up to and including 24 December 2014 in The Hague and/or (elsewhere) in the Netherlands and/or Turkey and/or Syria and/or Iraq, jointly and in conjunction with (an)other person(s) and/or (a) legal person(s), if not alone, acted (on each occasion) intentionally in violation of the prohibition in Article 2 and/or 2a of the Sanctieregeling Al-Qaida 2011, pursuant to Article 2 and/or 3 of the Sanctiewet 1977 in conjunction with Article 2 and/or Article 4 of Regulation (EC) No 881/2002 of the Council of the European union of 27 May 2002 (in conjunction with Article 1 of Commission Implementing Regulation (EU) No 632/2013 and/or Article 1 of Commission Implementing Regulation (EU) No 583/2014 and/or in conjunction with Article 1 of Commission Implementing Regulation (EU) No 630/2014), by: directly or indirectly making funds and/or economic resources available to or for the benefit of Islamic State of Iraq and/or ISI and/or Islamic State in Iraq and the Levant and/or Jabhat al-Nusra and/or Jabhet al-Nusra and/or Al-Nusrah Front and/or Al-Nusrah Front and/or Al-Nusrah Front for the people of the Levant and/or Al-Qaida (in Iraq), this/these being (a) (legal) person(s), group(s) or entity/entities within the meaning of the list(s) belonging to Regulation No 881/2002 (and/or Implementing Regulation (EU) No 632/2013 and/or Implementing Regulation (EU) No 583/2014 and/or Implementing Regulation (EU) No 630/2014), and/or within the meaning of the list drawn up by the Committee, referred to in Paragraph 6 of Resolution 1267 of the Security Council of the United Nations, (thus enabling the afore-mentioned group(s) or entity/entities to obtain funds, goods or services) and/or to participate, consciously and intentionally, in activities the intent or effect of which is to circumvent the provisions of Article 2 of Regulation (EC) No 881/2002, in that he and/or his co-accused directly or indirectly ( a) for and/or to and/or for the benefit of Islamic State of Iraq and/or ISI and/or Islamic State in Iraq and the Levant and/or Jabhat al-Nusra and/or Jabhet al-Nusra and/or Al-Nusrah Front and/or Al-Nusra Front and/or Al-Nusrah Front for the people of the Levant and/or Al-Qaida (in Iraq) made available ( a) sum(s) of money of - 4,713 euros (on 16 September 2013) (Doc-015-07) and/or - 1,400 euros (on 21 May 2014) (Doc-015-08) and/or - 326 euros (on 29 May 2014) (Doc-015-02) and/or - 70 euros (on 13 June 2014) (Doc-015-03) and/or - 5,000 euros (on 15 July 2014) (Doc-015-09) and/or - 1,456 euros (on 6 September 2014) (Doc-015-05) and/or - 1,306 euros (on 15 September 2014) (Doc-015-06) and/or - 1,701 euros (on 16 October 2014) (Doc-033) and/or - 965 euros (on 24 December 2014) (Doc-043 and/or Doc-044), or at least one or more sum(s) of money and/or ( b) otherwise (in)directly made funds and/or financial assets and/or economic resources available to Islamic State of Iraq and/or ISI and/or Islamic State in Iraq and the Levant and/or Jabhat al-Nusra and/or Jabhet al-Nusra and/or Al-Nusrah Front and/or Al-Nusra Front and/or Al-Nusrah Front for the people of the Levant and/or Al-Qaida (in Iraq); 3. he, at one or more point(s) in time in or around the period from 11 September 2014 up to and including 24 December 2014 in The Hague and/or (elsewhere) in the Netherlands and/or in Hatay and/or in Istanbul and/or (elsewhere) in Turkey, jointly and in conjunction with [party involved 1] and/or [party involved 2] and/or (an)other person(s) and/or (a) (legal) person(s), if not alone, several times or at least once, acted (on each occasion) intentionally in violation of the prohibition in Article 2, Paragraph 4, of the Sanctieregeling Terrorisme 2007-II, pursuant to Article 2, Paragraph 2, and/or Article 3 of the Sanctiewet 1977, in conjunction with Resolution 1373 of the Security Council, in that he and/or his co-accused, directly or indirectly, made means (in the form of (a) sum(s) of money of - 1,701 euros (on 16 October 2014) (Doc-033) and/or - 965 euros (on 24 December 2014) (Doc-043 and/or Doc-044), or made one or more sum(s) (of money) available to [man 1] (via (an) intermediary person(s) in Turkey) while [man 1] was classified by decree of the Minister of Foreign Affairs of [date] in agreement with the Minister of Security and Justice and the Minister of Finance as a person to whom the Sanctieregeling Terrorisme 2007-II shall apply; 4. (addition Court of Appeal) A. he, at one or more point(s) in time in or around the period from 1 January 2014 up to and including 9 July 2014, or on 9 July 2014, in Leidschendam-Voorburg and/or The Hague and/or (elsewhere) in the Netherlands, jointly and in conjunction with (an)other person(s) and/or (a) (legal) person(s), if not alone, falsified or forged and/or commissioned the falsification or forgery of a provisional 2014 income tax/national insurance contributions assessment and/or a 2014 IBPV Application (for and/on behalf of BSN [BSN] (of the accused)) (for the tax year 2014) (Doc-004 and/or Doc-025) this/these being (a) document(s) which was/were intended to serve as evidence of some act, since the afore-mentioned accused and/or his co-accused stated (on each occasion) falsely and/or contrary to the truth – on/in the afore-mentioned document(s) - ( an) amount(s) (of 150,000 euros) in wage(s) and/or other income from current employment (from employer [employer]) and/or - ( a) deductible sum (of 2,000 euros) for specific care costs and/or - ( a) deductible sum (of 19,000 euros) for children’s living expenses and/ or - ( a) deductible sum (of 10,100 euros) for weekend expenses for severely disabled persons and/or - ( a) sum (of 1,000 euros) in donations and/or had this/these stated (on each occasion) with the intent to use the afore-mentioned document(s) as genuine and unfalsified or had it/them used by (an)other person(s) and/or committed with the intent to prepare or facilitate (a) terrorist offence(s) and/or (addition Court of Appeal) B. he, at one or more point(s) in time in or around the period between 1 January 2014 up to and including 9 July 2014, or on 9 July 2014 in Leidschendam-Voorburg and/or The Hague and/or (elsewhere) in the Netherlands, jointly and in conjunction with (an)other person(s) and/or (a) (legal) person(s), if not alone, several times, if not once, intentionally made use of one or more false and/or forged document(s) – this/these being (a) document(s) that was/were intended to serve as evidence of an act – as if it/they were genuine and/or unfalsified, namely ( a) provisional 2014 income tax/national insurance contributions assessment and/or a 2014 IBPV Application (for/on behalf of BSN [BSN] (of the accused)) (for the tax year 2014) (Doc-004 and/or Doc-025), the use thereof consisting in him, the accused and/or his co-accused, sending or having this/these document(s) sent (electronically) to the Tax and Customs Administration in order to obtain a tax refund and/or (a) sum(s) of money, and this/these falsification(s) and/or forgery/forgeries consisting in - ( an) amount(s) of (of 150,000 euros) in wage(s) and/or other income from current employment (from employer [employer]) and/or - ( a) deductible sum (of 2,000 euros) for specific care costs and/or - ( a) deductible sum (of 19,000 euros) for children’s living expenses and/or - ( a) deductible sum (of 10,100 euros) for weekend expenses for severely disabled persons and/or - ( a) sum (of 1,000 euros) in donations stated and/or included falsely and/or contrary to the truth in this/these document(s) and/or committed with the intent to prepare or facilitate (a) terrorist offence(s). 5Background 1. It is a fact of general knowledge, as (also) appears from the generally accessible sources1 consulted by the Court of Appeal – and which can be accessed without significant difficulty – that in the spring of 2011 a large part of the Syrian population revolted against the regime of President Bashar al-Assad. 2. The (Alawite-Shiite) regime tried to suppress the calls for reform with violence, but this did not silence the opposition. In response to the regime's brutality against the (predominantly Sunni) population, the opposition began to resist more and more by force of arms at the end of the year 2011. What began as a peaceful protest developed into a bloody civil war in which more and more jihadi groups began to interfere. Their objective was not only to bring down the regime of Bashar al-Assad but also – or above all – to establish a strict Islamic state on Syrian territory and to return to 'pure Islam'. 3. Extreme fundamentalist militant groups in Syria have since declared jihad an individual obligation for every Muslim, subject to certain exceptions.2 Initially, many jihadi insurgents came from within Syria itself, but the country soon became a destination for non-Syrian jihadis. Foreign fighters, first primarily from the Middle East, North Africa, and Asia, but later also from Europe, travelled to Syria to join the fight. This also applies to Dutch youths.3 4. Two major jihadi organisations affiliated with al-Qaida have also joined the fight against Assad's regime: Jabhat al-Nusra li-Ahl al-Sham (as of 28 July 2016: Jabhat Fatah al-Sham) and the Islamic State in Iraq and al-Sham (ISIS, also known as IS, ISIL or DAESH). ISIS was led by Iraqi Abu Bakr al-Baghdadi and later renamed itself the Islamic State in Iraq and the Levant (ISIL) inter alia to emphasise the expansion of its activities into Syria. 5. Since 2012, the United Nations has been holding ISIL/ISIS/IS and Jabhat al-Nusra responsible for widespread and systematic human rights violations in Syria, including bombings,4 executions and torture and the commission of war crimes.5 This should also be clear to anyone who follows the news to any extent. 6. Many of the offences of the jihadi combat groups were in no way related to the fight against President al-Assad's army, but arose from the religiously motivated desire of these groups to violently impose their radical version of sharia on the civilian population of the areas they conquered. Moreover, many of these offences were committed with the express purpose of instilling fear in the population in these areas. Executions, beheadings, and crucifixions were therefore intentionally carried out in public. The population was summoned or forced to attend them, and videos of them were sometimes posted on the Internet. The Independent International Commission of Inquiry on the Syrian Arab Republic (hereinafter IICISAR) reported in its report dated 12 February 2014 that Jabhat al-Nusra and ISIS publicly carried out executions ‘to assert their presence after taking control of an area and to instil fear among the population.’6 7. ISIL has been involved in serious human rights violations in Aleppo province since 2013.7 In this regard, the summary of IICISAR's report dated 13 August 2014 states: Non-State combat groups, named in the report, committed massacres and war crimes, including murder, execution without due process, torture, hostage-taking, violations of international humanitarian law tantamount to enforced disappearance, rape and sexual violence, recruiting and using children in hostilities and attacking protected objects. Medical and religious personnel and journalists were targeted. Armed groups besieged and indiscriminately shelled civilian neighbourhoods, in some instances spreading terror among civilians through the use of car bombings in civilian areas. Members of the Islamic State of Iraq and Al-Sham (ISIS) committed torture, murder, acts tantamount to enforced disappearance, and forcible displacement as part of an attack on the civilian population in Aleppo and Ar Raqqah governorates, amounting to offences against humanity.8 8. On 29 June 2014, a declaration by ISIL proclaimed the Islamic Caliphate (khilafa) in the areas captured by ISIL. ISIL is renamed Islamic State (IS).9 As a 'caliphate', IS claims religious, political, and military authority over all Muslims throughout the world. Abu Bakr al-Baghdadi, the organisation's emir, is appointed 'caliph' of IS. All Muslims in the world are then called upon to take an oath of allegiance to the self-proclaimed 'caliph' Abu Bakr al-Baghdadi and to settle in IS territory. Taking the oath is considered a duty, has a binding effect and is valid for life. The earthly sanction for violating the oath is death. By swearing allegiance to terrorist group IS, expatriates sign up for a life characterised by excessive violence and an all-encompassing ideology that dismisses everyone outside IS as heathens and therefore inferior and thus a legitimate target.10 Men who have sworn allegiance to the 'caliph' must always be on call for battle.11 9. Jabhat al-Nusra and IS are now regarded as terrorist organisations by the UN and many of its member states, as well as the European Union.12 6Legal framework 6.1 General comments The accused is – briefly summarized – charged with: 1. co-perpetration in) terrorist financing (Article 421 of the Criminal Code (CC)); 2. ( co-perpetration in) the intentional violation of the Sanctiewet 1977 and the Sanctieregeling Al-Qa’ida 2011; 3. ( co-perpetration in) the intentional violation of the Sanctiewet 1977 and the Sanctieregeling Terrorisme 2007-II; 4A. (co-perpetration in) forgery with the intent to prepare or facilitate a terrorist offence (Article 225, Paragraphs 1 and (3) CC); 4B. (co-perpetration in) the intentional use of a false document, within the meaning of Article 225, Paragraph 1 CC, as if it were genuine and unfalsified, with the intent to prepare or facilitate a terrorist offence (Article 225, Paragraphs 2 and 3 CC). Below, the Court of Appeal will first outline the legal framework of the afore-mentioned provisions. 6.2 Legal framework regarding Article 421 CC (Count 1) 6.2.1 General comments 1. The charges under Count 1 are tailored to Article 421 CC, in which the financing of terrorism is criminalised. 2. Article 421 CC reads as follows: 1. A person shall be punishable by a term of imprisonment not exceeding eight years or a fine of the fifth category if he is guilty of terrorist financing: a. he who intentionally provides himself or another person with means or information, or intentionally collects, acquires, possesses or provides to another person items that are in full or in part, directly or indirectly, intended to provide financial support for the commission of a terrorist offence or an offence preparing or facilitating a terrorist offence. b. he who intentionally provides himself or another person with means or information or intentionally collects, acquires, possesses or provides another person with items that are in full or in part, directly or indirectly, intended to provide financial support for the commission of one of the offences defined in: - Articles 117 to 117b as well as Article 285, if that offence is directed against an internationally protected person or his/her protected goods; - Articles 79 and 80 of the Nuclear Energy Act, Articles 161quater, 173a and 284a as well as Articles 140, 157, 225, 310 to 312, 317, 318, 321, 322 and 326, if the offence involves intentional unlawful acts with respect to nuclear material; - Articles 162, 162a, 166, 168, 282a, 352, 385a to 385d; - Articles 92 to 96, 108, 115, 121 to 123, 140, 157, 161, 161a, 161e, 164, 170, 172, 287, 288 and 289, if the offences are committed by means of the intentional illegal discharge or explosion of an explosive or other device, or the release, dispersion or impact of an item, causing danger to life or limb, danger of serious physical injury to another person or substantial material damage. 2. Items shall mean all goods and all proprietary rights. 3. Article 421 CC entered into force on 1 September 2013. 4. Article 421 CC implements Article 2 in conjunction with Article 4 of the International Convention for the Suppression of the Financing of Terrorism (hereinafter: the Convention).13 This Convention entered into force for the Netherlands on 10 April 2002.14 5. Article 2 of the Convention reads as follows: 1. Any person commits an offence within the meaning of this Convention if that person by any means, directly or indirectly, unlawfully and wilfully, provides or collects funds with the intention that they should be used, or in the knowledge that they are to be used, in full or in part, in order to carry out: (a) An act which constitutes an offence within the scope of and as defined in one of the treaties listed in the annex; or (b) Any other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization 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 paragraphs 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; or (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. In accordance with Article 4 of the Convention, states party to the Convention are required to criminalise the offences defined in Article 2 in their respective national legislation and to impose appropriate penalties on them that take into account the seriousness of the offences. 7. It follows from the Explanatory Memorandum to the approval and implementation of the Convention in 2001 that the legislator at the time took the position that the obligation to criminalise pursuant to the provisions of Article 2 in conjunction with Article 4 of the Convention could be met on the basis of the existing provisions in the Criminal Code, including, in particular, the preparation of an offence within the meaning of Article 46 and the criminalised participation in an organisation whose intention it is to commit offences included in Article 140 Criminal Code.15 8. The legislator has since concluded that the approach chosen at the time was not entirely conclusive on one single point. This is explained as follows in the Explanatory Memorandum to the legislative proposal that led to the introduction of Article 421 CC: ‘Some of the very many offences that, upon ratification of the individual conventions, were identified as necessary for the implementation of those conventions were not punishable by imprisonment for a term of eight years or more – nevertheless a requirement for the application of Article 46 CC.’16 9. However, the above did not alter the fact that, in the legislator's view, even though it chose not to make terrorist financing a separate criminal offence, Dutch legislation still complied with Special Recommendation II of the Financial Action Task Force (hereinafter: FATF) from 200417 (currently Recommendation 5)18, read in conjunction with the Interpretative Note (a binding explanation) drawn up by the FATF, which formulates eleven requirements that the criminalisation of terrorist financing should meet.19 10. In 2011, following the evaluation of Dutch policy and legislation on combating money laundering and the financing of terrorism, the FATF recommended that the Netherlands nevertheless make terrorist financing an autonomous criminal offence.20 The introduction of Article 421 CC implemented said recommendation.21 An independent penalisation was said to have added value in terms of simple application and recognisability. Moreover, drawing up an autonomous criminal offence offered the opportunity to clarify the content and scope of the offence.22 6.2.2 Elements of Article 421 CC 6.2.2.1 Terrorist financing intent 1. The legislator has chosen to convey the requirement of intent on the part of the perpetrator in the definition of the offence by including the term 'intentional' in Article 421 CC. Article 2 of the Convention is thus implemented, which makes providing financial assets a punishable offence if this is done ‘with the intention that they should be used, or in the knowledge that they are to be used, in full or in part’. 2. With the term 'intentional', the legislator intended to convey both the direct intent and the conditional intent in the criminalisation. By way of explanation, the Minister of Security and Justice comments on this in the Memorandum following the report accompanying the legislative proposal that led to the implementation of Article 421 CC: ‘The «with the intention that» included in Article 2 of the UN Convention corresponds with the interpretation generally given in Dutch criminal law to ‘to act with [an] intent to’. Direct intent presupposes a strong desire on the part of the perpetrator to achieve the intended result of his action. Establishing conditional intent is insufficient for that. In Dutch criminal doctrine, the second attribute of intent, ‘in the knowledge that’, mentioned in Article 2 of the UN Convention, is regarded as a more general expression of the perpetrator’s intention. For this, in principle, establishing conditional intent – consciously accepting the significant chance that the actions lead to the stated result – is sufficient (J. de Hullu, Materieel strafrecht, fourth edition, 2009, pp. 245-249). (...) What also follows from this is that on each occasion conditional intent on the part of the perpetrator is sufficient for criminal liability: that he consciously accepts the significant chance that his actions serve to provide financial support for the commission of acts of terrorism.’23 3. The perpetrator need not have the intent to finance a specific offence. It must be proven that the intent of the perpetrator is aimed at financing an offence that falls within the set of offences mentioned in Article 421 CC, irrespective of the offence specifically concerned.24 4. Nor is it relevant whether ‘the financial support eventually leads to the commission of an act of terrorism'.25 5. Punishability also applies where, while committing an act of terrorism, the financial support provided has not been used.26 6. How the financed terrorist offence is finally qualified under criminal law after completion is of no importance. ‘If the offence (i)s merely classified as simple destruction of property (Article 350 CC), this does not affect the punishability of the financing if this concerned an aggravated form of destruction – for example, destruction with terrorist intent (Article 354a CC) or the destruction of an aircraft (Article 168 CC) mentioned in part b of the first paragraph of the proposed Article 421 CC.27 7. Furthermore, Point 2 of the Interpretative Note to Recommendation 5 of the FATF obliges the legislator to criminalise the financing of (individual) terrorists and terrorist organisations. This Interpretative Note implies on this point: 2. Terrorist financing offences should extend to any person who wilfully provides or collects funds or other assets by any means, directly or indirectly, with the unlawful intention that they should be used, or in the knowledge that they are to be used, in full or in part: (a) to carry out a terrorist act(s); (b) by a terrorist organisation; or (c) by an individual terrorist.28 8. The legislator has implemented this based on the link with conditional intent. In the Explanatory Memorandum to the legislative proposal that led to the introduction of Article 421 CC, the following is noted: Finally, I note that based on the link to conditional intent set out above, the criminalisation of the provision of financial support can also relate more generally to the financial support of a person or of organisations that are engaged in committing acts of terrorism, if the accused thereby consciously accepts the significant chance that the funds provided will be used to commit such acts.29 9. In the afore-mentioned Memorandum following the Report, the Minister of Security and Justice explicitly stated that providing financial support to a person whose involvement in terrorism is known is punishable. The provider of the financial support must have knowledge of the involvement in terrorist activities of the recipient of the financial support. The Minister of Security and Justice says the following about this: Furthermore, the autonomous criminalisation raises the fact that the attempt to commit the offence of terrorist financing is punishable under all circumstances beyond any doubt. The same applies to providing financial support to a person whose involvement in terrorism is known: [underlining by the Court of Appeal] on the basis of the proposed criminalisation, providing financial support to such a person is punishable via the link to (conditional) intent.30 10. In summary, the above means that pursuant to the provisions of Article 421 CC, by providing financial support to a person whose involvement in terrorism is known to the accused, the accused consciously accepts the reasonable chance that these funds are used to commit terrorist offences. 11. For the provability of a charge tailored to Article 421 CC, it does not matter whether the accused acted out of a sense of loyalty towards a family member or (good) friend, or out of ideological conviction. 6.2.2.2 Offences that the financing pertains to 1. Firstly, the acts of terrorism to which the financing could pertain are those which, pursuant to Article 421, Paragraph 1 CC, have been qualified as terrorist offences by the Crimes of Terrorism Act31 for the implementation of the framework decision on terrorist financing.32 Reference is made to Article 83 CC. 2. Secondly, Article 421, Paragraph 1 CC criminalises the financing of offences in preparation of or facilitating a terrorist offence. These offences were qualified as offences in preparation of or facilitating a terrorist offence in Article 83b CC by the Act of 12 June 2009.33 This took place partly as a result of the implementation of the Council of Europe Convention on the Prevention of Terrorism enacted in Warsaw on 16 May 2005.34 3. The Explanatory Memorandum to the law that led to the introduction of Article 421 CC provides some examples: This is conceivable, for example, in the form of financial support for an incitement campaign (Article 131 CC) or for a network aimed at recruiting persons for the armed struggle abroad (Article 205 CC).35 4. Thirdly, Article 421, Paragraph 2 CC enumerates Dutch criminal provisions implementing the obligation to criminalise the financing of certain conduct in nine United Nations conventions, as defined in the Convention.36 5. Finally, the financing of individual terrorists and terrorist organisations is also punishable. This criminal liability is an elaboration of the obligation included in Point 2 of the Interpretative note to Recommendation 5. The Explanatory Memorandum explains that this obligation is implemented on grounds of conditional intent, as has also been noted above. The provision of financial support to a person who, according to FATF terminology, should be qualified as a «terrorist» (that is to say, a person who commits terrorist acts or acts as an accessory to the commission of such acts, or as the leader of or a participant in an organisation whose intent it is to commit terrorist offences) is punishable via the link to conditional intent: the perpetrator consciously accepts the considerable chance that the funds provided will be used to commit terrorist acts.37 6. The underlying idea, as the Court of Appeal understands it, is that with the financing – individual or not – the terrorists and the terrorist organisations are enabled to continue committing their offences. 6.2.2.3 The financing acts The Explanatory Memorandum indicates that terrorist financing can take many forms. It concerns 'all ways in which financial and economic support is provided to commit acts of terrorism or acts directly related to them.'38 In the definition of the offence, this is summarised as the 'provision of financial support', which entails the provision of any benefit that can be quantified in money. It is of no importance as to what items provide the benefit, nor whether they have a legal or illegal origin. The effect that the phrases 'in full or in part' and 'directly or indirectly' have is that financing of only a part of a terrorist act or financing that takes place through other persons or legal persons also fall within the scope of the criminal provision.39 6.3 Legal framework regarding the intentional violation of the Sanctiewet 1977 in conjunction with the Sanctieregeling Al-Qa’ida 2011 (Count 2) or the Sanctieregeling Terrorisme 2007-II (Count 3) 1. The charges under Counts 2 and 3 are tailored to violation of the Sanctiewet 1977 in conjunction with the Sanctieregeling Al-Qa’ida 2011 or the Sanctieregeling Terrorisme 2007-II respectively, in which the financing of terrorism is criminalised. 2. The Sanctiewet 1977 provides a legal basis for the elaboration of national rules for the implementation of international sanctions in order to comply with treaties, decisions, or recommendations of bodies of international law organisations, or international agreements, relating to the maintenance or restoration of international peace and security or the furtherance of the international legal system or the fight against terrorism.40 3. By the Act of 16 May 2002 amending the Sanctiewet 1977 in order to implement international obligations aimed at fighting terrorism and at extending the supervision of compliance with financial sanctions of punitive measures, Article 2, Paragraph 1 of the Sanctiewet 1977 explicitly includes the fight against terrorism41 as an objective to be reached through the adoption of measures in accordance with an international instrument. 4. Since the Convention, the United Nations Security Council has adopted several resolutions on measures to prevent and impede the financing of terrorists and terrorist organisations. In connection with this, the Council of the European Union (hereinafter: the Council) has deemed it necessary for the European Community, and later for the European Union, to intervene. The Sanctieregeling Al-Qa’ida 2011 5. The UN Security Council adopted Resolution 1390 (2002) on 16 January 2002.42 Point (2) (a) imposes the following obligation on the States: (a) Freeze without delay the funds and other financial assets or economic resources of these individuals, groups, undertakings and entities, including funds derived from property owned or controlled, directly or indirectly, by them or by persons acting on their behalf or at their direction, and ensure that neither these nor any other funds, financial assets or economic resources are made available, directly or indirectly, for such persons' benefit, by their nationals or by any persons within their territory; 6. The Council has issued Regulation (EC) No 881/2002 implementing UN Resolution 1390 (2002).43 Article 2, Paragraph 1 of this Regulation provides that all funds belonging to the persons, entities or bodies listed in Annex I to this Regulation shall be frozen. Article 2, Paragraphs 2 and 3 of this Regulation, prohibits the (direct or indirect) provision of funds or economic resources, which would enable these persons, groups or entities to obtain funds, goods or services, to the entities or bodies listed in Annex I. Furthermore, Article 4 of Regulation (EC) No 881/2002 prohibits the (direct or indirect) circumvention of the rules set out in Article 2 of that Regulation. 7. Annex I to the afore-mentioned Regulation lists the persons, groups and entities referred to in Article 2. The list is amended and/or supplemented regularly. The UN Sanctions Committee maintains a consolidated list of all persons and entities subject to sanctions imposed by the Security Council.44 This is the Consolidated United Nations Security Council Sanctions List (hereinafter: UN Sanctions List).45 Article 7, Paragraph 1 of Regulation (EC) No 881/2002 provides that the Commission is empowered to amend or supplement Annex I on the basis of decisions made by either the United Nations Security Council or the Sanctions Committee of the United Nations. Thus, adaptations to the UN Sanctions List lead to amendments to the afore-mentioned Annex I of this Regulation (hereinafter also: the EU Sanctions List). 8. The Netherlands implemented Regulation (EC) No 881/2002 by, inter alia, the Sanctieregeling Osama bin Laden, Al-Qa’ida en Taliban 2002.46 As of 11 October 2011, this regulation was renamed the Sanctieregeling Al-Qa’ida 201147 and was repealed48 and replaced by the Sanctieregeling ISIS en Al Qaida 2016.49 9. The Sanctieregeling Al Qa’ida 2011, which is relevant for the assessment of the charges under Count 2, concerned regulations imposed pursuant to Articles 2 and 3 of the Sanctiewet 1977 as set out under no 2 above. The Sanctieregeling Al Qa’ida 2011 meant that it was prohibited to act in violation of, inter alia, Articles 2 and 4 of Regulation (EC) No 881/2002 referred to above. 10. On 30 May 2013, Islamic State in Iraq and the Levant (ISIL) was added to the UN Sanctions List.50 11. By Implementing Regulation (EU) No 632/2013 of 28 June 2013, the Commission thereupon amends Annex I to Regulation (EC) No 881/2002 as follows: The entry 'Al-Qaida in Iraq (also known as a) AQI, b) al-Tawhid, (c) the Monotheism and Jihad Group, d) Qaida of the Jihad in the Land of the Two Rivers, e) Al-Qaida of Jihad in the Land of the Two Rivers, f) The Organization of Jihad’s Base in the Country of the Two Rivers, g) The Organization Base of Jihad/Country of the Two Rivers, h) The Organization Base of Jihad/Mesopotamia, i) Tanzim Qa'idat Al- Jihad fi Bilad al-Rafidayn, j) Tanzeem Qa'idat al Jihad/Bilad al Raafidaini, k) Jama'at Al-Tawhid Wa'al-Jihad, l) JTJ, m) Islamic State of Iraq, n) ISI, o) al-Zarqawi network). (...)' on the 'Legal persons, groups and entities’ list is replaced by the following: ‘The entry Al-Qaida in Iraq (also known as a) AQI, b) al-Tawhid, c) the Monotheism and Jihad Group, d) Qaida of the Jihad in the Land of the Two Rivers, e) Al-Qaida of Jihad in the Land of the Two Rivers, f) The Organization of Jihad's Base in the Country of the Two Rivers, g) The Organization Base of Jihad/Country of the Two Rivers, h) The Organization Base of Jihad/Mesopotamia, i) Tanzim Qa'idat Al- Jihad fi Bilad al-Rafidayn, j) Tanzeem Qa'idat al Jihad/Bilad al Raafidaini, k) Jama'at Al-Tawhid Wa'al-Jihad, l) JTJ, m) Islamic State of Iraq, n) ISI, o) al-Zarqawi Network, p) Jabhat al Nusrah, q) Jabhet al-Nusra, r) Al-Nusrah Front, s) The Victory Front, t) Al-Nusrah Front for the People of the Levant, u) Islamic State in Iraq and the Levant).’51 12. By Implementing Regulation (EU) No 583/2014 of 28 May 2014, the Commission amended Annex I to Regulation (EC) No 881/2002 as follows: The following entries shall be added to the ‘Legal persons, groups and entities’ list: ‘Al-Nusrah Front for the People of the Levant (also known as a) the Victory Front; b) Jabhat al-Nusrah; c) Jabhet al-Nusra; d) Al-Nusrah Front; e) Al-Nusra Front; f) Ansar al-Mujahideen Network; g) Levantine Mujahideen on the Battlefields of Jihad). Other information: a) active in Syria; b) previously listed between 30 May 2013 and 13 May 2014 as an alias for Al-Qaida in Iraq.’ The entry 'Al-Qaida in Iraq (also known as a) AQI, b) al-Tawhid, c) the Monotheism and Jihad Group, d) Qaida of the Jihad in the Land of the Two Rivers, e) Al-Qaida of Jihad in the Land of the Two Rivers, f) The Organization of Jihad's Base in the Country of the Two Rivers, g) The Organization Base of Jihad/Country of the Two Rivers, h) The Organization Base of Jihad/Mesopotamia, i) Tanzim Qa'idat Al- Jihad fi Bilad al-Rafidayn, j) Tanzeem Qa'idat al Jihad/Bilad al Raafidaini, k) Jama'at Al-Tawhid Wa'al-Jihad, l) JTJ, m) Islamic State of Iraq, n) ISI, o) al-Zarqawi Network, p) Jabhat al Nusrah, q) Jabhet al-Nusra, r) Al-Nusrah Front, s) The Victory Front, t) Al-Nusrah Front for the People of the Levant, u) Islamic State in Iraq and the Levant). (...)' on the 'Legal persons, groups and entities' list is replaced by: ‘Al-Qaida in Iraq (also known as a) AQI, b) al-Tawhid, c) the Monotheism and Jihad Group, d) Qaida of the Jihad in the Land of the Two Rivers, e) Al-Qaida of Jihad in the Land of the Two Rivers, f) The Organization of Jihad’s Base in the Country of the Two Rivers, g) The Organization Base of Jihad/Country of the Two Rivers, h) The Organization Base of Jihad/Mesopotamia, i) Tanzim Qa'idat Al-Jihad fi Bilad al-Rafidayn, j) Tanzeem Qa'idat al Jihad/Bilad al Raafidaini, k) Jama'at Al-Tawhid Wa'al-Jihad, l) JTJ, m) Islamic State of Iraq, n) ISI, o) al-Zarqawi network, p) Jabhat al Nusrah, q) Jabhet al-Nusra, r) Al-Nusrah Front, s) The Victory Front, t) Islamic State in Iraq and the Levant). (…)’52 13. By Implementing Regulation (EU) No 630/2014 of 12 June 2014, the Commission amended Annex I to Regulation (EC) No 881/2002 as follows: The entry ‘Al-Qaida in Iraq (also known as a) AQI, b) al-Tawhid, c) the Monotheism and Jihad Group, d) Qaida of the Jihad in the Land of the Two Rivers, e) Al-Qaida of Jihad in the Land of the Two Rivers, f) The Organization of Jihad’s Base in the Country of the Two Rivers, g) The Organization Base of Jihad/Country of the Two Rivers, h) The Organization Base of Jihad/Mesopotamia, i) Tanzim Qa'idat Al- Jihad fi Bilad al-Rafidayn, j) Tanzeem Qa'idat al Jihad/Bilad al Raafidaini, k) Jama'at Al-Tawhid Wa'al-Jihad, l) JTJ, m) Islamic State of Iraq, n) ISI, o) al-Zarqawi network, p) Jabhat al Nusrah, q) Jabhet al-Nusra, r) Al-Nusrah Front, s) The Victory Front, t) Islamic State in Iraq and the Levant). (…)’ on the ‘Legal persons, groups and entities' list is replaced by: ‘Al-Qaida in Iraq (also known as a) AQI, b) al-Tawhid, c) the Monotheism and Jihad Group, d) Qaida of the Jihad in the Land of the Two Rivers, e) Al-Qaida of Jihad in the Land of the Two Rivers, f) The Organization of Jihad’s Base in the Country of the Two Rivers, g) The Organization Base of Jihad/Country of the Two Rivers, h) The Organization Base of Jihad/Mesopotamia, i) Tanzim Qa'idat Al-Jihad fi Bilad al-Rafidayn, j) Tanzeem Qa'idat al Jihad/Bilad al Raafidaini, k) Jama'at Al-Tawhid Wa'al-Jihad, l) JTJ, m) Islamic State of Iraq, n) ISI, o) al-Zarqawi network, p) Islamic State in Iraq and the Levant). (…)’.53 14. On the basis of the above, insofar as relevant here, the Court of Appeal finds that, during the period specified in the indictment, Islamic State in Iraq (ISI), previously known as Al-Qaida in Iraq (AQI) and Islamic State in Iraq and the Levant (ISIL) are on the EU Sanctions List, so that it is prohibited to make funds or economic resources directly or indirectly available to these organisations in that period. The Sanctieregeling Terrorisme 2007-II 15. On 28 September 2001, the UN Security Council adopted Resolution 1373 (2001) following the attacks in the United States on 11 September of that year. Under Point 1 the following obligations are imposed on the States: a. to prevent and suppress the financing of terrorist acts; b. to criminalize the wilful provision or collection, by any means, directly or indirectly, of funds by their nationals or in their territories with the intention that the funds should be used, or in the knowledge that they are to be used, in order to carry out terrorist acts; [...] prohibit their nationals or any persons and entities within their territories from making any funds, financial assets or economic resources or financial or other related services available, directly or indirectly, for the benefit of persons who commit or attempt to commit or facilitate or participate in the commission of terrorist acts, of entities owned or controlled, directly or indirectly, by such persons and of persons and entities acting on behalf of or at the direction of such persons. […] 16. The Netherlands implemented the afore-mentioned Resolution 1373 (2001), inter alia by means of the Sanctieregeling Terrorisme 2007-II.54 On the basis of this Sanctieregeling, which is relevant for the assessment of the charge under Count 3, it is prohibited, from the moment a person or organisation, pursuant to the Sanctieregeling Terrorisme 2007-II is classified by the Minister of Foreign Affairs in agreement with the Ministers of Justice and Finance, by means of a decree (Article 2, Paragraph 1), to provide financial services for or on behalf of such classified persons and organisations and/or to make resources (including money) available to such classified persons and organisations (Article 2, Paragraphs 2 and 3). 17. By decree of [date], [man 1], the brother of the accused, was classified as a person within the meaning of Resolution 1373 (2001) and therefore as a person to whom the Sanctieregeling Terrorisme 2007-II applies. This classification was published in the Government Gazette on [date] in conformity with Article 2, Paragraph 5 of the Sanctieregeling Terrorisme 2007-II.55 Consequently, pursuant to the Sanctieregeling Terrorisme 2007-II, it is prohibited as of that date to provide financial services for or on behalf of [man 1] and/or to make funds available to him. Economic Offences Act 18. Violation of the afore-mentioned sanction regimes is criminalised as an economic offence by means of the Sanctiewet 1977 in conjunction with Article 1, opening words and under 1 of the Economic Offences Act. 19. It is established case law that in the event of violation of the Economic Offences Act, the doctrine of strict liability applies. It is therefore irrelevant – contrary to what the counsels assert – whether one was aware of the prohibition. The intent of the accused need not be aimed at the unlawful aspect of his or her conduct. The intent must be aimed at the actual conduct. The perpetrator of an economic offence is punishable if he knowingly and willingly acted (or omitted to act) as defined in the criminal provision. 6.4 Legal framework regarding Article 225 CC (Count 4) 6.4.1 6.4.1 General comments 1. The charges under Count 4 are tailored to Article 225 CC, in which forgery is criminalised in Paragraph 1, as is the deliberate use of a false or falsified document in Paragraph 2. When applying Paragraph 3, the qualification based on Paragraph 1 and Paragraph 2 respectively can be supplemented by: 'committed with terrorist intent’. 2. Article 225 CC reads as follows: 1. A person who falsely prepares or falsifies a document that is to serve as evidence of any fact, with the intent to use it as genuine and unfalsified or to have it used as such by others, is guilty of forgery and liable to a term of imprisonment of no more than six years or a fine of the fifth category. 2. The same punishment is also applicable to he who intentionally makes use of the false or falsified document as if it were genuine and unfalsified, or who intentionally delivers or holds such document, whereas he knows or should reasonably presume its use in such manner. 3. If an offence as defined in Paragraph 1 or 2 is committed with the intent to prepare or facilitate a terrorist offence, the term of imprisonment imposed on the offence shall be increased by one-third. 6.4.2 6.4.2 Paragraph 3: The intent to prepare or facilitate a terrorist offence 1. The ground for the increase in penalty of ‘intent to prepare or facilitate’ a terrorist offence, as laid down in Paragraph 3, was introduced by the Crimes of Terrorism Act56 to implement the Framework Decision on Combating Terrorism (2002).57 2. The core of the Crimes of Terrorism Act is formed by Articles 83 and 83a CC.58 In Article 83 CC, the legislator has determined which offences are to be considered terrorist offences, whereby the requirement is that they must have been committed with terrorist intent. 3. The terrorist intent is a special intent requirement. It is a subjective aggravating element that concerns a malicious motive.59 4. The definition of terrorist intent in Article 83a CC is taken from the Framework Decision on Combating Terrorism and (partly) from Article 2, Paragraph 1 (b) of the Convention60 and, in parts, from the draft of a comprehensive UN Convention against terrorism.61 5. In Article 83a CC this intent is defined as: ‘the intent to instil fear in the population or part of the population of a country or to compel a government or an international organisation to do, refrain from doing or tolerate something, or to seriously destabilise or destroy the fundamental political, constitutional, economic or social structures of a country or an international organisation’. 6. The Court of Appeal agrees with the prevailing dogma that intent is generally considered to be incompatible with conditional intent. After all, it is difficult to imagine that intent occurs in a form other than that of intention.62 7Positions of the Public Prosecution Service and of the defence 7.1 Positions of the Public Prosecution Service 1. The Advocate General has adopted the position that the charges under 1, 2, 3, 4A and 4B can be legally and convincingly proven. 2. He has – as briefly and objectively motivated in the written request submitted – argued that the accused has, together with another person, forged documents and made deliberate use of these documents to defraud the Tax and Customs Administration of more than €10,000. The accused committed these offences with the intent to prepare or facilitate a terrorist offence. 3. This sum of money, or at least a part of it, supplemented with other sums of money to a total sum of almost €17,000 was transferred by the accused, through intermediaries in Turkey, to his brother [man 1], who actively participated in the armed struggle in Syria for terrorist group IS/ISI/ISIL during the period specified in the indictment. Consequently, the accused is guilty of terrorist financing. After all, by giving money to a fighter, he (irrespective of what he uses the money for) is enabled to remain in Syria and continue his participation in the armed struggle. 4. Furthermore, by transferring money to his brother nine times in total, the accused has intentionally violated Article 2 of Regulation (EC) No 881/2002 and thus the Sanctieregeling Al Qa’ida 2011. In so doing, he indirectly made funds available to the combat group of which his brother was a member, which combat group, during the period specified in the indictment, was on the EU Sanctions List as an entity subject to sanctions and to which group it is prohibited to make funds available, directly or indirectly. 5. Finally, by transferring money to his brother twice, after his brother had been classified as a person to whom the Sanctieregeling Terrorisme 2007-II applies, the accused also intentionally violated this Sanctieregeling. 7.2 Positions of the defence 1. With regard to the charge under Count 1, the counsels for the defence pleaded for acquittal during the court session of 17 February 2017. They – as briefly and objectively motivated in the written pleading notes submitted – argued that the accused lacked (indirect) intent to violate the provisions of Article 421 CC, as he never had the motivation to support a terrorist or terrorist organisation and was only trying to get his brother back to the Netherlands. 2. With regard to the charges under 2 and 3, the counsels have also pleaded acquittal of any punishable offence. They argued that the accused did not become aware of the fact that the brother of the accused was to be regarded as a 'fighter for the evil cause' before [date], the moment when the brother of the accused was placed on the National Terrorism List. 3. With regard to the offences under 1, 2 and 3, the counsels have argued that two or more offences have arisen from the same act. 4. With regard to the offence charged under 4, the counsels have argued that terrorist intent cannot be proven, and that the offence charged under 4 can therefore not be proven. 8The facts established by the Court of Appeal 1. Based on the case file and the proceedings during the hearing on appeal, the Court of Appeal finds the following. 2. The examination in the present criminal case was started on the basis of an official report from the Financial Intelligence Unit (hereinafter: FIU).63 The FIU's examination showed that the accused was involved in six money transfers, whereby [intermediary 1], who, in a media report dated [date] on crimesite.nl was called ‘ISIS Banker of the Western fighters’, was mentioned on each occasion as the recipient. This media report also indicated that Dutch and Belgian Syria volunteers are financed through money transfers amounting to thousands of euros per month via Western Union and MoneyGram. In this media report, [intermediary 1] was defined as a Syrian living in Istanbul and known to the FIU as a recipient of money transfers. According to the afore-mentioned report, he is the banker for Western ISIS members who operate mainly from Ar-Raqqa and Al-Bab Aleppo.64 3. In the period from 16 September 2013 up to and including 24 December 2014, the accused sent, through intermediaries in Turkey called [intermediary 2] and the afore-mentioned [intermediary 1], money to his brother [man 1] in Syria nine (9) times via money transfers, for a total sum of €16,937, namely on 16 September 2013: €4,713, on 21 May 2014: €1,400, on 29 May 2014: €326, on 13 June 2014: €70, on 15 July 2014: €5,000, on 6 September 2014: €1,456, on 15 September 2014: €1,306, on 16 October 2014: €1,701 and on 24 December 2014: €965. The accused did this from The Hague via sub-agents.65 The accused stated that he received instructions from his brother via Skype regarding whom he should transfer the money to66 and that his brother had also received this money.67 In one of the transfers, namely the one on 21 May 2014, the accused, contrary to the truth, reported to a Western Union employee, when asked, that the money was intended for the renovation of a house, for which the recipient had borrowed money.68 4. On 9 July 2014, the accused submitted an application to the Tax and Customs Administration from the IP address of [company] in The Hague for a provisional 2014 income tax/national insurance contributions assessment for the tax and social insurance number of the accused [BSN]. This application included the following data: Name of employer: [employer], Wages from current employment: 150,000, Deductible amount/sum for child maintenance: 19,000, Deductible amount for specific care costs: 2,000, Deductible amount for weekend expenses for the severely disabled: 10,100, Deductible amount for gifts: 1,000.69 Following this application, the Tax and Customs Administration transferred an amount of €10,289 in total to a bank account of the accused.70 The accused also transferred part of this amount via money transfers to an intermediary for onward transfer to the brother of the accused.71 5. At the FIOD/ECD, the accused made statements that basically indicate that he asked a boy he sometimes met at [company] to help him. Together with him, he completed the application for a provisional 2014 income tax/national insurance contributions assessment. At the appeal hearing, the accused stated that this boy's name was [man 3]. The accused does not know his surname.72 The accused signed the application for Provisional Assessment with his DigiD. According to his statement, the accused made up the false data and false amounts stated in the application himself.73 He also stated that he had made the application for provisional assessment with false amounts in order to be able to send money to his brother [man 1].74 6. According to the statements of the accused, [man 1] has been in Syria since March 2013, with an interruption in May 2013.75 The accused stated that his brother stayed near the city of Aleppo all that time.76 [Man 1] was, inter alia, sentenced to a term of imprisonment of six years by the District Court of The Hague for participating on behalf of IS in the terrorist struggle in Syria.77 7. The accused stated that in the run-up to his departure his brother became increasingly radical and fundamentalist. According to the accused, his brother [man 1] thought the developments in Syria were good and agreed that people went to Syria to fight. When the accused did not agree, [man 1] almost knocked a tooth out of his mouth, according to his own statement. That was shortly before his brother left in March 2013.78 8. According to the accused, he has known since May 2013 that his brother [man 1] is 'a fighter' and that he is fighting in Syria.79 He knows what is happening in Syria and he has seen on Twitter that there is ongoing fighting there.80 The accused stated that he also knew at the time that the area that his brother had gone to was unsafe.81 He had allegedly never had bad intentions to support the Islamic State.82 The accused also stated that, in the summer of 2014, he saw a picture on the Internet that showed his brother together with other people in a square/street. The people were cheering. There were also weapons in the photo. The brother of the accused also had a weapon.83 He also stated that he found information about his brother on the Internet.84 In his interrogation by the FIOD, the accused said that he always knew that he would be arrested one day for transferring the money.85 9. The accused maintained and still maintains86 contact with his brother in Syria through social media, including Facebook and Twitter,87 and by telephone and through WhatsApp and Skype.88 He was in contact at least once a week.89 His brother sometimes told him that they were under attack and, according to the accused, he also sometimes said that the struggle was going well.90 10. The (included) MOKKA case file, which forms part of the present case, showed that [man 1] was the user of Facebook account ‘[name of Facebook account]’.91 As the cover photo, he used an image of a fighter, with the text ‘join the caravan’ and, as the profile photo, an image of an unknown person with a weapon.92 At the appeal hearing, the accused stated that he had seen this account of his brother on the Internet and that his brother already had this account with this profile picture before he left for Syria.93 On this Facebook account, the following messages, inter alia, were posted: - in the period from 1 March up to and including 30 March 2014: a message stating ‘InshaAllah this is my meeting place with death!’, with Aleppo indicated as the place of residence in the profile.94 8 April 2014: two photos of a Kalashnikov are posted with the message: ‘Do you also get such a warm feeling inside? Who knows how to find 1 like this but with a star.‘95 25 April 2014: a photo of [man 1] is posted on this account with the comment ‘New photo of half #Moroccan half Surinamese [battle name] from #[place] in the Syrian #al_Bab.‘96 Two hours later, the same photo is posted on Shaam News Network.97 5 June 2014: ‘After seeing how my beloved brothers have passed away, I wish nothing more than the same passage to the satisfactions of my lord.‘98 25 June 2014: photos are posted of a crucifixion with the text: ‘And here you see him standing. Crucifixion of a man he has lied and falsely accused people he were be crucified for 3 hours that everyone knows who he is and that everyone knows that he is a liar and that no one is able to take any more testimony from him.’ Later, the following message is posted: ‘Now in al bab Whipping and crucifixion will take pictures inshaAllah if possible.99 29 June 2014: a photo is posted showing [man 1] with a weapon in his hand. The person to his right is holding a black flag in his right hand.100 1. July 2014: a message is posted describing, in detail, what Syria volunteers should take with them to Syria.101 21 July 2014: a message is posted stating ‘Live in Al-Bab we are being bombed by Bashar's plane and there are Wounded‘102 11. [ Man 1] was also the user of Twitter account [name Twitter account].103 On this account, inter alia the following tweets were posted: 23 September 2014: ‘If I were in NL right now, I would know what to do. Blood on my hands’ and ‘Allah prepares us for victory’ and ‘Don't forget us in your Do3a. It will now begin Al-Malahim’.104 24 September 2014: ‘Citizens in Syria call for IS to attack Jordan soon’ and ‘What a warm feeling I get inside after seeing a French man being beheaded. Hopefully NL will learn a lesson from this’ and ‘Have any Lone Wolfs been spotted in NL yet’ and ‘So glad I'm in Syria now, childhood dream come true. Standing eye to eye with the US and allies’.105 12. On 24 September 2014, the AnderZ news page posted the following report: ‘In Algeria, the terrorist movement Jund al-Khilafah (Soldiers of the caliphate) beheaded 55-year-old mountaineer Hervé Gourdel in the name of the caliphate. It is the first beheading to take place outside the Islamic State.‘106 13. On 25 April 2014, a photo of [man 2] and [man 1] is posted on Shaam News via Twitter, with the text ‘Dutch Mujahideen [man 2] ([place]) and [battle name] ([place]) under #ISIS flag in al-Bab in #Syria.‘107 14. As noted in Chapter 6.3, the then Islamic State in Iraq and the Levant (ISIL), the predecessor of IS, was added to the UN Sanctions List on 30 May 2013.108 ISIL was subsequently added to the EU Sanctions List on 28 June 2013.109 15. By decree of [date] of the Minister of Foreign Affairs, [man 1] was placed on the National Terrorism List.110 16. After the date of the afore-mentioned decree, the accused transferred – in any case – on 16 October 2014 and on 24 December 2014, with the involvement of third parties, namely [party involved 1] and [party involved 2], from The Hague via sub-agents, €1,701 and €965 respectively to intermediaries in Turkey. This money was intended for his brother [man 1].111 His brother indeed received these sums of money.112 The brother of the accused had suggested to the accused that he try sending money to him in someone else's name. The accused therefore used the identity cards of [party involved 1] and [party involved 2] to transfer the money.113 The accused stated that he did this because he knew by then that his brother was on the black list and that his assets were frozen and that the government knew for sure that he was in Syria and that his brother would have to appear in court.114 With regard to this, the accused also said that there were rumours that he could get into trouble if he transferred money to his brother and that he did not want to lose his job.115 9Evidentiary considerations 1. At the appeal hearing, the accused argued that the statements that he made to the FIOD/ECD with regard to the charges under 1 through 4, or at least parts thereof, are not an accurate representation of what he said there at the time or of what actually happened and that these statements can, therefore, as is the understanding of the Court of Appeal, not contribute to the evidence supporting the charges. Furthermore, the accused has argued that he was sometimes put under a little pressure, for instance by the reporting officers hitting the table, and that he signed the official reports of the interrogation – even though he did not want to sign them at first, he ended up signing – because he wanted to be rid of them. At the court session in the first instance, the accused argued that he felt pressured during the interrogations and that he did not say the things the reporting officers wrote down. 2. In this respect, the Court of Appeal considers the following. 3. First of all, the Court of Appeal finds that the accused was heard once by the police, six times by the FIOD/ECD and once by the examining magistrate. Finally, the accused made a statement both at the court hearing in the first instance and on appeal. The accused presented the above-mentioned defence for the first time during the court hearing in the first instance. 4. It has not been deemed plausible that the statements of the accused, or parts thereof, have been falsely drawn up by the reporting officers concerned – whether intentionally or not and/or contrary to the truth. The Court of Appeal takes into account that all reports of interrogation of the accused made under oath of office, insofar as relevant in this case, have been signed by the accused after reading them through, whereby he has declared that the text is a correct representation of what he said. 5. Insofar as the accused has argued that his statements, as made at the FIOD/ECD, were made under (undue) pressure, the Court of Appeal has chosen to disregard it, because there is no evidence of this or of any other circumstance as a result of which the accused might not have made his statement in freedom. On the contrary, the corresponding passages in his statements referred to by the accused, make it clear that the accused has received all space and freedom to make his statement, to comment on it and to read it or have it read to him before he signed it of his own free will. Moreover, subsequent statements, insofar as relevant, are consistent, and the causal elements of the statements are supported by other evidence, such as written documents and/or statements from third parties. The fact that the accused, as he additionally stated in his interrogation of 17 June 2015, after the interrogation, was muddied when it came to his brother, does not make the above any different, particularly since he remarked in that respect that he more or less told the things that were asked about his brother, after which he signed the statement after it had been read aloud (equally) with the added remark that the official report is a correct representation of what he said.116 6. Other special circumstances, which could or should have led the Court of Appeal to another judgment have not been deemed plausible. Therefore, the Court of Appeal concludes that the statements made by the accused to the FIOD can be used as evidence and therefore dismisses the defence. 10Assessment of the charges 10.1 Considerations regarding the charge under Count 1 Within the framework of Count 1, the Court of Appeal is confronted with the question of whether the facts established by the Court of Appeal, examined in relation to each other, can be regarded as intentionally providing oneself or another person with means or information or intentionally collecting, acquiring, possessing or providing to another person items that are in whole or in part, directly or indirectly, intended to provide financial support for the commission of a terrorist offence or an offence preparing or facilitating a terrorist offence within the meaning of Article 421, Paragraph 1 CC. 10.1.1 Summary of the findings of fact and considerations relating thereto 1. In the period from 16 September 2013 up to and including 24 December 2014, the accused – as discussed in detail in Chapter 8 – transferred at least nine (9) times an amount of €16,937 through a transfer office to intermediaries in Turkey, whether or not through the intermediary of third parties. This money was intended for his younger brother who was staying in Syria, near Aleppo city, at that time. The accused did this at the request of his younger brother, whereby this brother indicated to whom the money should be transferred in Turkey, in order for him to make sure that the money reached the brother of the accused. 2. According to the accused, the brother of the accused had gone to Syria in March 2013. The accused stated to the police that he knew at least from May 2013 onwards that his brother was a fighter in Syria and that, in the summer of 2014, he had seen a photo of his brother in which his brother was depicted in a square with others, holding a Kalashnikov. The accused also indicated that, prior to his brother’s departure, he and his brother had argued about 'fighting in Syria' and that his brother was 'always engrossed in religion' and that 'his thoughts were becoming more radical'. Contrary to the truth, the accused furthermore reported upon one of the transfers, namely the one on 21 May 2014, to a Western Union employee, when asked, that this money was intended for the renovation of a house, for which the recipient had borrowed money. In the opinion of the Court of Appeal, this unmistakably indicates that the accused took into account that sending money to his brother in Syria entailed risks in connection with his brother’s activities in Syria. The accused also stated that he always knew that he would be arrested one day for sending the money. 3. According to the accused, he sent the money to his younger brother, so that he could use that money to take care of himself with food and clothes and other things he needed daily.117 In addition, the accused stated that he sent money to his brother so that he could pay for his return journey to the Netherlands and buy food with that money.118 4. However, the Court of Appeal does not deem it plausible that the accused intended this money to finance his younger brother’s return journey to the Netherlands, since the transfers to his brother continued for 16 months, were very frequent and amounted to almost €17,000. During this period, his brother did not demonstrably prepare to return to the Netherlands, and even now (more than 2 years after the last transfer), he has not returned to the Netherlands. The Court of Appeal agrees with the District Court that it is plausible that the brother of the accused was on the point of returning to the Netherlands from Turkey in May 2013. He ultimately did not do so and returned to Syria. This moment, however, was a few months before the first transfer by the accused to his brother, which did not take place until September of that year. 10.1.2 10.1.2 The intent to finance terrorism and the offences to which the financing relates 1. In the opinion of the Court of Appeal, the accused had the intention to commit the offence, criminalised in Article 421 CC, Paragraph 1, of intentionally providing another person with means that are in whole or in part, directly or indirectly, intended to provide financial support for the commission of a terrorist offence or an offence preparing or facilitating a terrorist offence. 2. With reference to what has been considered above in Chapter 6.2.2.1, the Court of Appeal is of the opinion that the accused, by providing financial support to his brother whose involvement in terrorism was known to the accused, consciously accepted the reasonable chance that the money that he provided to his younger brother staying in Syria would be used to commit a terrorist offence or an offence preparing or facilitating a terrorist offence. 3. In that respect, the Court of Appeal considers of importance the following facts and circumstances as they have emerged on the basis of the documents and the hearings in the first instance and in the appeal proceedings. 4. The accused sent money to his brother, who was taking part in the armed Jihad struggle in Syria. These jihadi combat groups commit serious offences by which they instil deep fear in large parts of the population of Syria within the meaning of Article 83a CC. The offences that these combat groups commit, such as murder, manslaughter, causing explosions, etc., are therefore committed with terrorist intent and are consequently terrorist offences. Participation in the armed struggle in Syria on the side of these combat groups therefore always means the commission of terrorist offences. Therefore, the brother of the accused can be classified as a terrorist. The accused claims that he was aware that his brother was a Jihad fighter. Soon after his brother had left in March 2013, namely in May 2013 – so a few months before the transfer to his brother took place – the accused knew that his brother had become a Jihad fighter in Syria. This form of individual financial support enables Jihad fighters to continue their armed struggle. 5. The conclusion is that, in the opinion of the Court of Appeal, the accused has had intent to commit the offence of terrorist financing criminalised in Article 421 CC. 10.1.3. The financing acts 1. The accused has transferred money seven times in his own name via money transfers to an intermediary in Turkey who has in turn made sure that the brother of the accused received this money. Indeed, the brother of the accused confirmed, on each occasion, to the accused that he had received the money. Furthermore, the accused did the same thing twice more, but by making use of the identity papers of two other persons. 2. Therefore, the accused has provided his brother, and thus someone who can be classified as a terrorist, with resources. 10.1.4 Conclusion with regard to the charges under Count 1 In summary, based on the above, the Court of Appeal finds that the accused was, at the time of the proven offences, guilty of terrorist financing by intentionally providing his brother with funds that served, in full or in part, directly or indirectly, to provide financial support for the commission of a terrorist offence or an offence preparing or facilitating a terrorist offence. 10.2 Considerations regarding the charge under Count 2 Within the framework of Count 2, the Court of Appeal is confronted with the question of whether the facts established by the Court of Appeal, examined in relation to each other, can be regarded as a deliberate violation of the Sanctiewet 1977 and the Sanctieregeling Al Qa’ida 2011. 10.2.1 Summary of factual findings and considerations in this regard 1. In Chapter 8, the Court of Appeal established that the accused knew that his brother [man 1] had been in Syria since early 2013 and was participating in the armed Jihad struggle there. According to the accused, his brother was in the city of Aleppo and/or its immediate surroundings, an area that, during the period specified in the indictment, was under the control of Islamic State in Iraq, also known as the Islamic State in Iraq and al-Sham (IS(IS)), Islamic State in Iraq and the Levant (ISIL), an armed terrorist group linked to Al-Qaida and responsible in Syria for extensive and systematic human rights violations and the commission of war crimes. 2. On 29 June 2014, a declaration by ISIL proclaimed the Islamic Caliphate (Khilafah) in the territories conquered by ISIL, and all Muslims are called upon to take an oath of allegiance to the caliph, Abu Bakr al-Baghdadi. The latter also announces that ISIL is being renamed Islamic State (IS).119 On the same day, a photo is posted on the Facebook account of [man 1], in which he himself is depicted with a weapon in his hand and the person to his right is holding a black flag, presumably the flag of IS. 3. The accused also stated that, during the period specified in the indictment, he was in regular contact with his brother, at least once a week, via, inter alia, social media (including Facebook and Twitter). The accused also stated that he himself found information about his brother on the Internet. 4. The accused furthermore indicated that he knew that his brother was on the 'black list' [the Court of Appeal understands this as being: the National Terrorism List], after which he (nevertheless) decided to transfer money to his brother through third parties, namely [party involved 1] and [party involved 2], on 16 October 2014 and on 24 December 2014. 5. The Court of Appeal is of the opinion that, based on the Facebook account of [man 1], the contents of the messages that he posted on social media as included in Chapter 8; the circumstance that the accused must have taken cognisance of this as he regularly maintained contact with his brother through social media and also searched for information about him; and finally the placement of the brother of the accused on the National Terrorism List on [date] and the way in which he subsequently continued to transfer money to his brother through third parties, examined in relation to each other, it can be concluded that, at least at the time of the money transfers to his brother [man 1] on 16 October 2014 and 24 December 2014, the accused knew that his brother had joined IS specifically. The Court of Appeal also takes into account the fact that, with regard to the payments to his brother, the accused stated to the FIOD/ECD that he had never had bad intentions to support the Islamic State and that he always knew that one day he would be arrested for transferring the money. 6. Finally, it is certain that (then still) ISI(L), was included in Annex I of Regulation (EU) No 881/2002 of 27 May 2002 as being affiliated with Al-Qaida, during the period specified in the indictment. The Court of Appeal finds that it was therefore forbidden to make money available to this organisation on the above-mentioned dates of money transfers. It was also prohibited to make money available to this organisation indirectly, and thus for instance to a person fighting for IS(IS). 10.2.2 Conclusion with regard to the charge under Count 2 Since the accused at least twice, namely on 16 October 2014 and on 24 December 2014, through the intermediary of third parties, intentionally transferred money for the benefit of his brother [man 1], who fought in Syria on behalf of IS, which the accused was aware of, the Court of Appeal deems it legally and convincingly proven on the basis of the above that the accused has committed that which has been charged under Count 2, as mentioned below in the declaration of charges proven. 10.3 Considerations with regard to the charge under Count 3 Within the framework of Count 3, the Court of Appeal is confronted with the question of whether the facts established by the Court of Appeal, examined in relation to each other, can be regarded as wilful misconduct in violation of the prohibition established by virtue of Article 2, Paragraph 2 and/or Article 3 of the Sanctiewet 1997, in Article 2, Paragraph 4 of the Sanctieregeling Terrorisme 2007-II in conjunction with Security Council Resolution 1373. 10.3.1 Summary of the factual findings 1. The accused – as extensively considered in Chapter 8 – transferred, through third parties, namely [party involved 1] and [party involved 2], €1,701 and €965 respectively for the benefit of his brother [man 1], on 16 October 2014 and on 24 December 2014. 2. By decision of the Minister of Foreign Affairs of [date], [man 1] was placed on the National Terrorism List. The decision means that all available assets must be frozen and that no financial assets may be provided to [man 1]. The accused knew that his brother had been placed on the National Terrorism List on [date] and that his assets were frozen. The accused also knew of rumours that he could get into trouble if he transferred money to his brother. This and the fact that, according to his statement, he did not want to lose his job was also the reason why he transferred money to his brother in the name of others on 16 October 2014 and 24 December 2014. 10.3.2 Defence regarding familiarity with the Sanctieregeling Terrorisme 2007-II 1. In addition to their memorandum of oral arguments, the counsels argued that the accused was – in essence – not aware of the prohibition pursuant to the Sanctieregeling Terrorisme 2007-II, because the regulation had not been properly publicised. Only in 2016 was the public notified, for instance through messages on teletext, that it was punishable to perform such transactions, according to the counsels. 2. As was considered above in the legal framework regarding the Sanctieregeling Terrorisme 2007-II, intent within the meaning of the Economic Offences Act is strict liability. The intent of the perpetrator need not be aimed at the unlawfulness of the conduct. The perpetrator of an economic offence is punishable if he intentionally acted or omitted to act as defined in the criminal provision. It is therefore irrelevant whether the accused was aware of the Sanctieregeling referred to above. 3. In the present criminal case, the above means that – since [man 1] was classified by decision of [date] as a person to whom the Sanctieregeling Terrorisme 2007-II applies – as a result of payments made – directly or indirectly – to said [man 1], Article 2 of the Sanctieregeling Terrorisme 2007-II has been violated. 4. Therefore, the Court of Appeal dismisses the defence. 10.3.3 Conclusion with regard to the charge under Count 3 In summary, based on the above, the Court of Appeal considers it legally and convincingly proven that the accused has committed the offence as charged under Count 3, as mentioned below in the declaration of charges proven. 10.4 Considerations regarding the charges under Counts 4A and 4B 10.4.1 Discussion of the defence regarding the (in)admissibility of the Public Prosecution Service with respect to Count 4B 1. With regard to the charges under Count 4B, the accused is, in essence, reproached of having intentionally made use of a false document, namely an 'application for Provisional Assessment’ for income tax, in which fictitious data had been stated. The charge is tailored to Article 225, Paragraph 2, in conjunction with Article 225, Paragraph 3 CC in which forgery with terrorist intent is punishable. 2. The District Court has declared the Public Prosecutor inadmissible with regard to this element of the charge, in view of the provisions of Article 69, Paragraph 4 of the State Taxes Act, (hereinafter: AWR). 3. The Advocate General cannot agree with this opinion of the District Court and has argued, contrary to the District Court, in short and in essence, that an application for Provisional Assessment, as in the present case, cannot be regarded as 'a declaration provided for by tax law’, within the meaning of Article 69 AWR. 4. Should the Court of Appeal rule otherwise, the Advocate General will adopt the position that prosecution pursuant to Article 225, Paragraph 2, in conjunction with Article 225, Paragraph 3 CC is indeed possible if terrorist intent is present, which the Advocate General believes to be the case here, since this concerns an aggravating circumstance that, in implementation of Article 3 under c of the Framework Decision on Combating Terrorism, has been added to Article 225 CC, as a result of which Article 225 CC can be regarded as a specialis in this case. According to the Advocate General, prosecution is therefore possible on the basis of Article 225, Paragraph 2, in conjunction with Article 225, Paragraph 3 CC if terrorist intent is present, and the District Court therefore wrongly declared the Public Prosecution Service inadmissible in its prosecution. 5. In this respect, the Court of Appeal considers the following. 6. Article 69 AWR reads, as far as relevant: 1. A person who intentionally fails to make a declaration provided for by tax law, fails to make such return within the specified time period, or commits one of the offences defined in Article 68, first Paragraph, Sub-sections a, b, d, e, f, or g, shall, if the offence results in too little tax being imposed, be liable to a term of imprisonment of no more than four years or to a fine of the fourth category or, if that amount is higher, no more than the amount in tax still due. 2. A person who intentionally makes an incorrect or incomplete declaration as provided by the Tax Act or commits the offence defined in Article 68, first Paragraph, Sub-section c, shall, should the offence result in too little tax being levied, be liable to a term of imprisonment of no more than six years or to a fine of the fifth category or, if that amount is higher, no more than once the amount of tax still due, on the understanding that, to the extent that the incorrectness or incompleteness in the declaration relates to taxable income within the meaning of Article 5.1 Income Tax Act 2001, the fine shall not exceed three times the amount of tax still due. (…) 4. If the offence for which the accused may be prosecuted falls under one of the provisions of the first or the second Paragraph, as well as under those of Article 225, Paragraph 2 of the Criminal Code, prosecution on the basis of said Article 225, Paragraph 2, shall be excluded. (…) 7. The component 'a declaration provided for by tax law' mentioned in Article 69, Paragraph 1 and Paragraph 2 AWR requires an invitation from the inspector of the Tax and Customs Administration to submit a declaration.120 However, submission of an application for a provisional assessment is not compulsory and is made entirely on the taxpayer's own initiative and not by invitation of the inspector of the Tax and Customs Administration. An application for a provisional assessment is therefore not a declaration provided for by Tax Law. For that reason, the ground for immunity from prosecution included in Article 69, Paragraph 4 AWR does not apply in the present case. 8. Since an application for a provisional assessment cannot be regarded as a declaration provided for by tax law', the charges under 4B are not criminalised under Article 69, Paragraph 2 AWR. This means that the Public Prosecution Service is admissible in its prosecution of the accused with regard to the charges under 4B. 10.4.2 General consideration Within the framework of Count 4, the Court of Appeal is confronted with the question of whether the facts established by the Court of Appeal, examined in relation to each other, can be regarded as being guilty of forgery together with another person and intentionally making use of a false or falsified document with the intent to prepare or facilitate a terrorist offence within the meaning of Article 225, Paragraphs 1, 2 and 3 CC. 10.4.3 Summary of the factual findings and considerations in this regard 1. As has been considered in Chapter 8, the accused submitted an application for a provisional 2014 income tax/national insurance contributions assessment to the Tax and Customs Administration in The Hague on 9 July 2014. In so doing, the accused received assistance from a certain [man 3] and he fabricated the false data and false amounts stated in the application. Following this application, the Tax and Customs Administration transferred a total amount of €10,289 to a bank account of the accused. During the period specified in the indictment, the accused also transferred part of this amount via money transfers to an intermediary in order for it to be forwarded to [man 1], the brother of the accused. 2. The Court of Appeal therefore considers it legally and convincingly proven that the accused is guilty of co-perpetration in forgery and intentionally making use of this document, as charged under 4A and 4B. 10.4.4 The intent to prepare or facilitate a terrorist offence 1. Next, the question needs to be answered as to whether the accused committed forgery and the intentional use of a forged or falsified document with the intent to prepare or facilitate a terrorist offence. 2. As the Court of Appeal has established, jihadi combat groups in Syria, such as Jabhat al-Nusra and ISIS, commit serious offences with the objective of instilling deep fear in large sections of the Syrian population. The offences committed by these combat groups, such as murder, manslaughter, causing explosions and the like, are thus committed with terrorist intent and thus constitute terrorist offences. Participation in the armed struggle in Syria on the part of these combat groups therefore always means the commission of terrorist offences. Therefore, as the Court of Appeal has established, this was also the case for [man 1], the brother of the accused. 3. The Court of Appeal considers that the accused committed the proven offence under 1, in order to use (part of) the money thus wrongfully received from the Tax and Customs Administration for the benefit of his brother who is residing in Syria as a Jihad fighter. The Court of Appeal considers it proven that the accused acted intentionally within the meaning of 'conditional intent'. In short, this means that by providing financial support to a person whose involvement in terrorism was known to the accused, in this case his brother, the accused consciously accepted the significant chance that these funds would be used for the commission of terrorist offences. 4. Since direct intent is not deemed to be compatible with conditional intent, and no further circumstances have appeared or been deemed plausible from which it can be inferred that the accused, at the time the forgery was committed, had 'the intent to prepare or facilitate' a terrorist offence, he should be acquitted of this part of the charges. 10.4.5 Conclusion with regard to the charges under Count 4 In summary, based on the above, the Court of Appeal considers it legally and convincingly proven that the accused has committed the offence as charged under Counts 4A and 4B of the charge – with the exception of the aggravating circumstance 'with the intent to prepare or facilitate a terrorist offence' – as mentioned below in the declaration of charges proven. 11Declaration of charges proven In view of the above, the Court of Appeal deems it legally and convincingly proven that the accused has committed the offence charged, on the understanding that: 1. he, at one or more point(s) in time in or around the period from 1 September 2013 up to and including 24 December 2014, in The Hague and/or (elsewhere) in the Netherlands and/or in Hatay and/or in Istanbul and/or (elsewhere) in Turkey and/or Syria and/or Iraq, jointly and in conjunction with (an)other person(s) and/or (a) (legal) person(s), if not alone, several times if not once, (on each occasion) intentionally provided himself or another person with means or information, or intentionally collected, acquired, had in his possession or provided another person with items that in whole or in part, directly or indirectly, served to provide financial support for the commission of a terrorist offence or an offence preparing or facilitating the commission of a terrorist offence, namely: - participation in an organisation whose intent it is to commit terrorist offences (Art. 140a Criminal Code) and/or - deliberate arson and/or causing an explosion, this constituting a general danger to property and/or danger of serious bodily harm and/or danger to the life of another person, and/or this act resulting in someone's death (to be) committed with terrorist intent (Art. 157 and/or 176a in conjunction with Art. 83 Criminal Code) and/or deliberate preparation of and/or abetment of the offence defined in Article 157 Criminal Code (within the meaning of Article 176b in conjunction with 96, Paragraph 2, Criminal Code) (to be) committed with terrorist intent and/or - murder and/or manslaughter (to be) committed with terrorist intent (Art. 288a and/or 289 in conjunction with Art. 83 Criminal Code) and/or deliberate preparation of and/or abetment to commit the offences defined in articles 288a and/or 289 Criminal Code (within the meaning of Article 289a in conjunction with 96, Paragraph 2, Criminal Code) (to be) committed with terrorist intent, the accused and/or his co-accused having sent and/or forwarded, at said time(s) and location(s), (via (a) money transfer(s)) (a) sum(s) (of money) of: - 4,713 euros (on 16 September 2013) (Doc-015-07) and/or - 1,400 euros (on 21 May 2014) (Doc-015-08) and/or - 326 euros (on 29 May 2014) (Doc-015-02) and/or - 70 euros (on 13 June 2014) (Doc-015-03) and/or - 5,000 euros (on 15 July 2014) (Doc-015-09) and/or - 1,456 euros (on 6 September 2014) (Doc-015-05) and/or - 1,306 euros (on 15 September 2014) (Doc-015-06) and/or - 1,701 euros (on 16 October 2014) (Doc-033) and/or - 965 euros (on 24 December 2014) (Doc-043 and/or Doc-044), or at least sent or had one or more sum(s) of money sent to (an) intermediary person(s) in Turkey and/or sent this/these sum(s) to Turkey, while this/these sum(s) of money was/were (on each occasion) intended to provide financial support to the armed Jihad struggle and/or (a) fighter(s) of that armed Jihad struggle in Syria and/or Iraq, in which struggle terrorist offences are being committed, namely for the benefit of [man 1], that is to say the brother of the accused and/or a fighter of the armed Jihad struggle, namely of terrorist organisation(s) IS and/or Al-Qaida or a combat group affiliated with them, be that an armed jihadi combat group, which fighter and/or combat group(s)/organisation(s) had/has/have the intent to commit terrorist offences, and/or in so doing served to provide financial support and/or means for the armed struggle in Syria and/or in Iraq, in any case to provide financial support and/or means for the commission of a terrorist offence or an offence preparing or facilitating a terrorist offence or one of the offences specifically mentioned above; 2. he, at one or more point(s) in time in or around the period from 30 August 2013 16 October 2014 up to and including 24 December 2014 in The Hague and/or (elsewhere) in the Netherlands and/or Turkey and/or Syria and/or Iraq, jointly and in conjunction with (an)other person(s) and/or (a) legal person(s), if not alone, acted (on each occasion) several times, intentionally in violation of the prohibition in Article 2 and/or 2a of the Sanctieregeling Al-Qaida 2011, pursuant to Article 2 and/or 3 of the Sanctiewet 1977 in conjunction with Article 2 and/or Article 4 of Regulation (EC) No 881/2002 of the Council of the European Union of 27 May 2002 (in conjunction with Article 1 of Commission Implementing Regulation (EU) No 632/2013 and/or Article 1 of Commission Implementing Regulation (EU) No 583/2014 and/or in conjunction with Article 1 of Commission Implementing Regulation (EU) No 630/2014), by: directly or indirectly making funds and/or economic resources available to or for the benefit of Islamic State of Iraq and/or ISI and/or Islamic State in Iraq and the Levant and/or Jabhat al-Nusra and/or Jabhet al-Nusra and/or Al-Nusrah Front and/or Al-Nusrah Front and/or Al-Nusrah Front for the people of the Levant and/or Al-Qaida (in Iraq), this/these being (a) (legal) person(s), group(s) or entity/entities within the meaning of the list(s) belonging to Regulation No 881/2002 (and/or Implementing Regulation (EU) No 632/2013 and/or Implementing Regulation (EU) No 583/2014 and/or Implementing Regulation (EU) No 630/2014), and/or within the meaning of the list drawn up by the Committee, referred to in Paragraph 6 of Resolution 1267 of the Security Council of the United Nations, (thus enabling the afore-mentioned group(s) or entity/entities to obtain funds, goods or services) and/or to participate, consciously and intentionally, in activities the intent or effect of which is to circumvent the provisions of Article 2 of Regulation (EC) No 881/2002, in that he and/or his co-accused directly or indirectly ( a) for and/or to and/or for the benefit of Islamic State of Iraq and/or ISI and/or Islamic State in Iraq and the Levant and/or Jabhat al-Nusra and/or Jabhet al-Nusra and/or Al-Nusrah Front and/or Al-Nusra Front and/or Al-Nusrah Front for the people of the Levant and/or Al-Qaida (in Iraq) made available (a)sum(s) of money of - 4,713 euros (on 16 September 2013) (Doc-015-07) and/or - 1,400 euros (on 21 May 2014) (Doc-015-08) and/or - 326 euros (on 29 May 2014) (Doc-015-02) and/or - 70 euros (on 13 June 2014) (Doc-015-03) and/or - 5,000 euros (on 15 July 2014) (Doc-015-09) and/or - 1,456 euros (on 6 September 2014) (Doc-015-05) and/or - 1,306 euros (on 15 September 2014) (Doc-015-06) and/or - 1,701 euros (on 16 October 2014) (Doc-033) and/or - 965 euros (on 24 December 2014) (Doc-043 and/or Doc-044), or at least one or more sum(s) of money and/or (b) otherwise (in)directly made funds and/or financial assets and/or economic resources available to Islamic State of Iraq and/or ISI and/or Islamic State in Iraq and the Levant and/or Jabhat al-Nusra and/or Jabhet al-Nusra and/or Al-Nusrah Front and/or Al-Nusra Front and/or Al-Nusrah Front for the people of the Levant and/or Al-Qaida (in Iraq); 3. he, at one or more point(s) in time in or around the period from 11 September 2014 up to and including 24 December 2014 in The Hague and/or (elsewhere) in the Netherlands and/or in Hatay and/or in Istanbul and/or (elsewhere) in Turkey, jointly and in conjunction with [party involved 1] and/or [party involved 2] and/or (an)other person(s) and/or (a) (legal) person(s), if not alone, several times if not once, acted (on each occasion) intentionally in violation of the prohibition in Article 2, Paragraph 4, of the Sanctieregeling Terrorisme 2007-II, pursuant to Article 2, Paragraph 2, and/or Article 3 of the Sanctiewet 1977, in conjunction with Resolution 1373 of the Security Council, in that he and/or his co-accused, directly or indirectly, made means (in the form of (a) sum(s) of money of - 1,701 euros (on 16 October 2014) (Doc-033) and/or - 965 euros (on 24 December 2014) (Doc-043 and/or Doc-044), or made one or more sum(s) (of money) available to [man 1] (via (an) intermediary person(s) in Turkey) while [man 1] was classified by decree of the Minister of Foreign Affairs of [date] in agreement with the Minister of Security and Justice and the Minister of Finance as a person to whom the Sanctieregeling Terrorisme 2007-II shall apply; 4. A. he, at one or more point(s) in time in or around the period from 1 January 2014 up to and including 9 July 2014, or on 9 July 2014 in Leidschendam-Voorburg and/or The Hague and/or (elsewhere) in the Netherlands, jointly and in conjunction with (an)other person(s) and/or (a) (legal) person(s), if not alone, falsified or forged and/or commissioned the falsification or forgery of a provisional 2014 income tax/national insurance contributions assessment and/or a 2014 IBPV Application (for/on behalf of BSN [BSN] (of the accused)) (for the tax year 2014) (Doc-004 and/or Doc-025) this/these being (a) document(s) which was/were intended to serve as evidence of some act, since the afore-mentioned accused and/or his co-accused stated (on each occasion) falsely and/or contr ary to the truth – on/in the afore-mentioned document(s) - (an) amount(s) (of 150,000 euros) in wage(s) and/or other income from current employment (from employer [employer]) and/or - (a) deductible sum (of 2,000 euros) for specific care costs and/or - (a) deductible sum (of 19,000 euros) for children’s living expenses and/or - (a) deductible sum (of 10,100 euros) for weekend expenses for severely disabled persons and/or - (a) sum (of 1,000 euros) in donations and/or had this/these stated (on each occasion) with the intent to use the afore-mentioned document(s) as genuine and unfalsified or had it/them used by (an)other person(s) and/or committed with the intent to prepare or facilitate (a) terrorist offence(s) and/or B. he, at one or more point(s) in time in or around the period between 1 January 2014 up to and including 9 July 2014, or on 9 July 2014 in Leidschendam-Voorburg and/or The Hague and/or (elsewhere) in the Netherlands, jointly and in conjunction with (an)other person(s) and/or (a) (legal) person(s), if not alone, several times, if not once, intentionally made use of one a or more false and/or forged document(s) – this/these being (a) document(s) that was/were intended to serve as evidence of an act – as if it/they were genuine and/or unfalsified, namely (a) provisional 2014 income tax/national insurance contributions assessment and/or a 2014 IBPV Application (for and/on behalf of BSN [BSN] (of the accused)) (for the tax year 2014) (Doc-004 and/or Doc-025), the use thereof consisting in him, the accused and/or his co-accused, sending or having sent this/these document(s) (electronically) to the Tax and Customs Administration in order to obtain a tax refund and/or (a) sum(s) of money, and this/these falsification(s) and/or forgery/forgeries consisting in - (an) amount(s) of (of 150,000 euros) in wage(s) and/or other income from current employment (from employer [employer]) and/or - (a) deductible sum (of 2,000 euros) for specific care costs and/or - (a) deductible sum (of 19,000 euros) for children’s living expenses and/or - (a) deductible sum (of 10,100 euros) for weekend expenses for severely disabled persons and/or - (a) sum (of 1,000 euros) in donations stated and/or included falsely and/or contrary to the truth in this/these document(s) and/or committed with the intent to prepare or facilitate (a) terrorist offence(s). Any additional charges or charges formulated otherwise have not been proven. The accused should be acquitted of that. Insofar as the indictment contains linguistic and/or writing errors, these have been corrected in the declaration of charges proven. As appears from that which was discussed during the hearing, the defence of the accused was not harmed as a result. 12Criminality of conclusive evidence The charges proven under 1 – insofar as related to the money transfers dated 16 September 2013, 21 May 2014, 29 May 2014, 13 June 2014, 15 July 2014, 6 September 2014, and 15 September 2014 – should be qualified as: terrorist financing, committed several times. The charges proven under 1 – insofar as related to the money transfers dated 16 October 2014 and 24 December 2014 –, the charges proven under 2 and the charges proven under 3 must be qualified as: the concurrence of terrorist financing, committed several times, and deliberate breach of a regulation pursuant to Article 2 of the Sanctiewet 1977, committed several times. The charges proven under 4A constitute: co-perpetration of forgery. The charges proven under 4B constitute: co-perpetration in the deliberate use of a forged document, within the meaning of Article 225, Paragraph 1 of the Criminal Code, as if it were genuine and unfalsified. 13Criminal liability of the accused Criminal accountability 1. With regard to the criminal liability of the accused, the Court of Appeal has taken account of the contents of the Pro Justitia report concerning the accused, drawn up by T.W. van de Kant, GZ-psychologist, and J.L.J. Volders, forensic social background rapporteur, dated 8 January 2016. 2. This report includes the following. The accused has a long-term dysthymic disorder. A dysthymic disorder is accompanied by a mild depressive mood over a long period of time, without there being a depressive episode. In addition, the accused functions at the level of an intellectually disabled person. In the accused, this combination leads to passivity, negligence, and evasive behaviour. During the period specified in the indictment – with the exception of forgery – the behavioural choices and the conduct of the accused were influenced by the afore-mentioned (personality) problems. 3. The social background examination has shown that the departure of his younger brother to Syria has taken a heavy toll on the accused. He is an intellectually limited man, with few adequate problem-solving skills. Because of these problems, the accused seems to have been insufficiently able to critically review his plans to transfer money to his brother in Syria. He wanted to help his brother, but he does not seem to have and not to have been able to realise sufficiently that he was acting unlawfully in doing so. And if he knew this, he was insufficiently able to fully assess the consequences thereof. 4. It is therefore recommended that, with regard to Counts 1, 2 and 3 – if proven –, the accused be regarded as having diminished accountability. 5. According to the above-mentioned experts, the same factors, such as negligence, naivety, and insufficient appreciation of the consequences, also seem to have played a role in the charged tax fraud / forgery. However, there is also evidence of opportunism. The accused knew that he had not earned 150,000 euros, that he had no children and that he had not incurred any care costs for the disabled, which he did declare. The accused was simply naively assuming that the tax authorities would not find out. It is conceivable that the accused saw the tax fraud/forgery as a simple possibility to get access to money that he could transfer to his brother. In this respect, it is also the case that he did not fully foresee the consequences of his actions, but he was indeed aware of the unlawfulness of his actions. 6. It is therefore recommended that, with regard to Count 4 – if proven –, the accused be regarded as fully accountable. 7. The Court of Appeal, like the District Court and the Advocate General, does not adopt the conclusion from the afore-mentioned multidisciplinary report under which the accused, with regard to offences 1, 2 and 3 – if proven – can be regarded as having diminished accountability. 8. The Court of Appeal is, together with the District Court, of the opinion that the reason for this is that the conclusion in the report is not, or at least insufficiently, supported by the findings of the experts. For instance, page 22 of the report states that the accused possibly also (partly) consciously uses the impression of being naive and verbally deficient, that he makes a rather untrustworthy impression and that he keeps his cards close to his chest. The experts also claim that, in the second interview, a more conscious, manipulative side of the accused becomes prominent, with the aim of sketching a socially adjusted image of himself. The findings of the experts mentioned above correspond with those that the Court of Appeal found during the Court of Appeal session. At the session of 17 February 2017, the Court of Appeal had the impression that the accused also kept his cards close to his chest, that he consciously chose which information he did and did not want to share with the Court of Appeal and that he was beating around the bush. However, this (apparently) calculating attitude on the part of the accused was no longer present when the accused answered questions about his personal circumstances. Therefore, the Court of Appeal cannot see how the accused might, because of his (personality) problems, have been insufficiently capable of foreseeing the consequences of his actions. After all, the accused – after knowing that his brother had been placed on the National Terrorism List – consciously continued to transfer money to his brother, using other people's identity documents. In addition, in order to obtain money for the benefit of his brother, the accused committed tax fraud, and can according to the experts, be regarded as fully accountable for that offence. 9. Therefore, the Court of Appeal regards the accused accountable with regard to all offences proven. 10. No further circumstance has become plausible that might exclude the criminal liability of the accused. The accused is therefore criminally liable. 14Request of the Advocate General The advocate general requested that the decision appealed against be set aside, and that the accused be sentenced in respect of the charges under 1, 2, 3, 4A and 4B to a term of imprisonment of 30 months, with credit for the time served in pre-trial detention, of which 10 months on probation, with an operational period of 3 years and under the special conditions as stated in the probation report of 14 February 2017. Furthermore, the Advocate General has requested that the suspension of the pre-trial detention of the accused be lifted. 15Grounds for the sentence 1. The sentence imposed on the accused is based on the seriousness of the offences, the circumstances under which they were committed and the personality and the personal circumstances of the accused, as these have appeared from the case file and the Court of Appeal hearing. Accordingly, the Court of Appeal has considered the following in particular. The seriousness of the offences and the circumstances in which they were committed 2. By means of money transfers, the accused transferred a total of almost €17,000 from the Netherlands to intermediaries in Turkey, which sums of money were destined for his brother, [man 1], a fighter in the armed Jihad struggle in Syria. The case file shows that these sums of money actually reached the brother of the accused. After his brother had been placed on the National Terrorism List on [date], the accused, in order to conceal his actions, involved two people in money transfers in return for payment, on 16 October 2014 and 24 December 2014, by using their proof of identity to transfer sums of money twice to his brother. 3. By transferring the sums of money, the accused has disregarded both international regulations and national legislation. These regulations are of great importance internationally, because their objective is to achieve the joint maintenance or restoration of international peace and security and to promote the international legal order and the fight against terrorism. By violating these prohibitions, the accused has made a substantial contribution to the armed Jihad struggle in Syria and thus to (further) destabilisation and insecurity in (the region of) Syria. Indeed, it is a fact of general knowledge that jihadi groups, IS in particular, in Syria are guilty of gross human rights violations on a large scale. By his actions, therefore, the accused is guilty of serious offences. This applies all the more since a significant sum of money is involved. 4. Furthermore, the accused is, together with another person, guilty of forgery of a document and the intentional use of this document by submitting an application for a provisional income tax/national insurance contributions assessment in the name of the accused, containing intentionally incorrect data, to the tax authorities, with the main objective of being able to send money to his brother in Syria. By submitting this application, the accused wrongfully received a total sum of money of over €10,000 from the tax authorities, after which he transferred the largest part of these amounts via money transfers to his brother who is in the combat zone in Syria as a Jihad fighter. The Court of Appeal strongly condemns the accused for having misused public money to – indirectly – provide financial support to the armed Jihad struggle in Syria. Furthermore, by acting in this way, the accused has seriously betrayed the trust that ought to be vested in the authenticity of such documents across society. Personality of the accused and personal circumstances Judicial documentation 5. With regard to the sentence to be imposed, the Court of Appeal has taken into account that the accused, according to the extract from the Judicial Records dated 2 February 2017, issued in his name, has not been previously convicted in the Netherlands for committing similar offences. Reports 6. The Court of Appeal has taken into account the report of the Dutch Probation Service dated 14 February 2017, as discussed with the accused during the appeal hearing and completed by him insofar as that was necessary. In this report, inter alia the following has been stated. The accused is staying with his father and has a girlfriend. He has work at a demolition company and prospects of work as a bus driver. The accused has debts, most of which have arisen as a result of the claim made by the tax authorities in connection with the present case. Multi-Care Foundation supports him in managing his finances. The probation service maintains that there are no indications that the accused is part of a radical network, nor that he himself might be religiously radicalised. The risk of recidivism is estimated to be low/average. The main risk factor is the loyalty of the accused towards his younger brother. 7. The probation service recommends, should the charges be declared proven, imposing a (partially) suspended prison sentence on the accused, with as special conditions an obligation to report, an outpatient treatment aimed at coping with his brother’s departure and the resulting problems, at the Palier forensic outpatient clinic, or similar outpatient forensic care, as well as the obligation to endeavour to pay off debts and to find suitable daytime activities. 8. The Court of Appeal has also taken note of the other documents in the case file from the Dutch Probation Service dated 20 November (the Court of Appeal understands: September) 2016, 24 February 2016 and 17 September 2015, which show, inter alia, that the accused is cooperative and adopts a positive attitude towards assistance or supervision, honours agreements and has shown himself to be capable of changing his life for the better with the right help, both in psychological and practical terms. 9. Finally, the Court of Appeal has also taken notice of the contents of the Pro Justitia report concerning the accused, drawn up by GZ-psychologist T.W. van de Kant and forensic social background rapporteur J.L.J. Volders, dated 8 January 2016, the short contents of which have already been set out above in Chapter 13. ‘Criminal liability of the accused'. This report mentions furthermore that the brother of the accused is still in Syria and that the accused also has contact with his brother, which the accused equally confirmed during the appeal hearing of 17 February 2017. Although contact between the brothers is currently defined as superficial by the accused, it is conceivable that he will do his best for (the safety of) his brother. All this makes it conceivable, according to the experts, that the accused could in time again engage in unacceptable behaviour when his brother calls upon him to do so. Sentence 10. Furthermore, the Court of Appeal has taken account of the circumstance that the case file does not contain any indications that the accused acted out of ideological motives or out of sympathy for the violent Jihad struggle waged in Syria. Irrespective of whether the accused acted primarily out of concern for his brother, in cases like this the punishment should send a strong message. Not only should it be made very clear to the accused that his actions are punishable and warrant punishment, it should also be made clear to others that financially supporting a (beloved) person who finds himself in Syria as a Jihad fighter cannot be a reason to set the standards aside. In the process, the Court of Appeal is not overlooking the fact that the accused has also experienced personal grief due to the departure of his brother to Syria. 11. In view of the seriousness of the offences, the Court of Appeal is of the opinion that the only way to respond to the proven offences is by imposing a prison sentence. Therefore, there is no room for imposing community service, as (alternatively) argued for by the defence. 12. Since it has become plausible from the hearing on appeal that the accused is now actively trying to change his life for the better, the Court of Appeal is of the opinion that the unconditional component of the prison sentence to be imposed need not be longer than the time that the accused has already spent in pre-trial detention. 13. In addition – in view of the fact that the afore-mentioned reports show that the loyalty of the accused towards his younger brother is a risk factor – the Court of Appeal will impose a substantial suspended prison sentence, in order to prevent the accused from committing criminal offences again in the future. In connection with the risk of recidivism and the nature and scope of the charges that have now been proven, the Court of Appeal will attach an operational period of three years to this conditional component. Furthermore, the Court of Appeal will attach the special conditions to the conditional component, as recorded in the probation report of 14 February 2017, with the exception of the obligation that the accused endeavour to find suitable daytime activities. Now that the accused has stated during the appeal hearing that he works almost 40 hours a week at a demolition company and that he works as a bus driver on Saturdays, the Court of Appeal no longer considers it necessary to impose this special condition. 14. All things considered, the Court of Appeal is of the opinion that a prison sentence for the duration of 24 months, with credit for the time served in pre-trial detention, of which 14 months are suspended, with an operational period for the duration of 3 years and with the special conditions as mentioned below, is an appropriate and warranted response. 16Request that the suspension of pre-trial detention be lifted 1. The Advocate General has requested that, in the case of a sentence of irrevocable imprisonment, the suspension of the pre-trial detention of the accused be lifted. 2. In view of the hereinafter to be imposed duration of the unconditional custodial sentence, the Court of Appeal does not consider there to be any grounds (anymore) for ordering the immediate detention of the accused at the hearing. Therefore, the Court of Appeal rejects the request. 17Applicable legal provisions The Court of Appeal has taken into account Articles 14a, 14b, 14c, 47, 55, 56, 57, 225 and 421 of the Criminal Code, Articles 1, 2 and 6 of the Economic Offences Act and Articles 2 and 3 of the Sanctiewet 1977, as they apply or applied in law. 18JUDGMENT The Court of Appeal: sets aside the decision appealed against and pronounces judgment anew: Declares it, as envisaged above, proven that the accused has committed the charges under 1, 2, 3, 4A and 4B. Declares that any additional charges or charges formulated otherwise than those proven above have not been proven and acquits the accused thereof. Declares the charges proven under 1, 2, 3, 4A and 4B punishable, qualifies this as stated above and declares the accused liable to punishment. Sentences the accused to a term of imprisonment of 24(twenty-four) months. Determines that a part of the prison sentence, amounting to 14 (fourteen) months, will not be executed, unless the judge should order otherwise at a later date because the accused has been found guilty of committing an offence before the end of an operational period of 3 (three) years, or if the accused has, during the operational period of 3 (three) years or for the object of establishing his identity, not cooperated in having one or more fingerprints taken or has not presented proof of identity within the meaning of Article 1 of the Compulsory Identification Act for inspection or has not cooperated in the probation supervision within the meaning of Article 14d, Paragraph 2, Criminal Code, including cooperation with home visits, or has failed to comply with the special conditions referred to below. Imposes the special conditions that the convicted party - will, during the operational period, report to the Dutch Probation Service located at Bezuidenhoutseweg 179, 2594 AH The Hague, as often and as long as the probation service deems necessary. During this period, the convicted party must comply with the instructions given by the probation service, insofar as these have not already been included in another special condition; - shall, during the operational period, cooperate in a treatment aimed at coping with his younger brother’s departure and the resulting problems, at the Palier forensic psychiatric outpatient clinic, or similar outpatient forensic care, at the discretion of the probation service and for as long as the probation service deems necessary, whereby the convicted party shall comply with the instructions given to him by or on behalf of the institution/therapist as part of that treatment; - will endeavour to repay his debts during the operational period, as long as the probation service deems necessary. Instructs the Dutch Probation Service to supervise compliance with the afore-mentioned special conditions and to provide guidance to the convicted party for that purpose. Orders that the time spent by the accused in any form of pre-trial detention within the meaning of Article 27, Paragraph 1, or Article 27a 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. Lifts the suspended pre-trial detention order of the accused. This judgment was delivered by M.I. Veldt-Foglia, LLM, R.A.Th.M. Dekkers LLM and E.F. Lagerwerf-Vergunst LLM, in the presence of L.A.M. Karels LLM, Court Clerk. It was pronounced at the public hearing of the Court of Appeal on 10 March 2017. ----------------------------------------------------------------------------------------------------------------------------------- 1. For further background, see inter alia: ECLI:NL:GHDHA:2016:1733, The Hague Court of Appeal, 20 June 2016. The judgment has become irrevocable. 2 National Coordinator for Counterterrorism, Ideologie en strategie van het jihadisme (December 2009), p. 49. See also: http://www.memrijttm.org/at-cairo-conference-leading-sunni-clerics-urge-sunnis-worldwide-to-mobilize-for-jihad-against-the-alawite-regime-in-syria-and-its-shiite-supporters.html, consulted on 21 April 2016. 3 General Intelligence and Security Service, Transformatie van het jihadisme in Nederland. Zwermdynamiek en nieuwe slagkracht (The Hague, June 2014), pp. 41-43. 4 Report of the IICISAR, A/HRC/27/CRP.2, dated 19 November 2014, p. 3. 5 Report of the Independent International Commission of Inquiry on the Syrian Arab Republic (further: IICISAR), A/HRC/23/58 dated 18/07/2013, p. 18; United Nations Security Council report S/2015/206, dated 23/03/2015, p. 4 at www.un.org/en/ga/search/view_dos.asp?symbol=S/2015/206; Bill Roggio, Al Nusra Front claims attack at the Iranian Consulate in Damascus dated 02/05/2012, at: http://www.longwarjournal.org/threatmatrix/archives/2012/04/al_nu; Human Right Watch, He didn't have to die, March 2015, at: www.hrw.org/sites/default/reports/syria0315_ForUpload.pdf, p. 60; Report of the IICISAR, A/HRC/28/69 dated 05/02/2015, p. 34; Human Right Watch, You can still see their blood, Executions, Indiscriminate Shootings, and Hostage Taking by Opposition Forces in Latakia Countryside, dated October 2013, pp. 66-68; Jennifer Cafarella, Jabhat al-Nusra Deepens its Foothold in Northwestern Syria, ISW Backgrounder dated 10/11/2014; Oral Update of IICISAR dated 18/03/2014, p. 5 and 8; Report of the IICISAR, A/HRC/25/65 dated 12/02/2014, pp. 10-11 and Report of the IICISAR, A/HRC/23/58 dated 18/07/2013, p. 15. 6 Report of the IICISAR, A/HRC/25/65, dated 12/02/2014, p. 8. 7 Report of the IICISAR, A/HRC/25/65, dated 12/02/2014, p. 7 et seq.; Report of the IICISAR, A/HRC/23/58, dated 18/07/2013, p. 12; Oral Update of the IICISAR, dated 18/03/2014, pp. 2-3 et seq.; Amnesty International Briefing, Rule of Fear: ISIS abuses in detention in Northern Syria, dated 19/12/2013, p. 1. 8 Report of the IICISAR, A/HRC/27/60, p. 1. 9 Abu Mohammed al-Adnani, 'Hada wa'd Allah' (This is the promise to Allah), at www.youtube.com/watch?v=cAWCSDkrzLs; Mark Tran & Matthew Weaver, 'ISIS declares caliphate in area straddling Iraq and Syria', dated 30/06/2014, at http://www.theguardian.com/world/2014/jun/30/isis-announces-islamic-caliphate-iraq-syria. 10 General Intelligence and Security Service, Leven bij ISIS, de mythe ontrafeld (The Hague, January 2016), p. 3. 11 Ibid., p. 7. 12 Security Council Al-Qaída Sanctions Committee amends entry of one entity on its Sanctions List, SC/11019, dated 30 May 2013, at www.un.org/News/Press/docs/2013/sc11019.doc.htm; Consolidated List of Groups, Persons and Entities subject to EU financial sanctions, at www.ec.europa.eu/external_relations/cfsp/sanctions/list/version4/global/global.xml. 13 This Convention was concluded in New York on 9 December 1999. See Treaty Series 2000, 12 (corrigendum in Treaty Series 2001, 62 together with Treaty Series 2002, 110). 14 Treaty Series 2002, 110. 15 Parliamentary Papers II 2001-2002, 28 031, no 3, pp. 2-4. 16 Parliamentary Papers II 2012-2013, 33 478, no 3, pp. 2-3. 17 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. 18 See The FATF Recommendations, International standards on combating money laundering and the financing of terrorism & proliferation, February 2012, updated 2016, p. 13 for Recommendation 5 on the offence of terrorist financing: 5. ‘Countries should criminalise terrorist financing on the basis of the Terrorist financing Convention, and should criminalise not only the financing of terrorist acts but also the financing of terrorist organisations and individual terrorists even in the absence of a link to a specific terrorist act or acts. Countries should ensure that such offences are designated as money laundering predicate offences'. The conversion table for the numbering of the recommendations is included on p. 4. See: http://www.fatf-gafi.org/media/fatf/documents/recommendations/pdfs/FATF_Recommendations.pdf. 19 Parliamentary Papers II, 2012-2013, 33 478, no 3, p. 3. 20 Financial Action Task Force, Mutual Evaluation Report, Anti-Money Laundering and Combating the Financing of Terrorism, The Netherlands, 25 February 2011, p. 66. 21 Letter from the Minister of Finance to the House of Representatives dated 4 March 2011, reference: FM/2011/6465 M betreffende Verslag plenaire vergadering FATF februari 2011. In this sense, also Parliamentary Papers II, 2012-2013, 33 478, no 3, p. 1. 22 Parliamentary Papers II, 2012-2013, 33 478, no 6, p. 3. 23 Parliamentary Papers II, 2012-2013, 33 478, no 6, p. 6. 24 Parliamentary Papers II, 2012-2013, 33 478, no 3, p. 5. 25 Parliamentary Papers II, 2012-2013, 33 478, no 6, p. 6. See also: Parliamentary Papers II, 2012-2013, 33 478, no 3, p. 5. 26 Parliamentary Papers II, 2012-2013, 33 478, no 3, p. 5. 27 Parliamentary Papers II, 2012-2013, 33 478, no 3, p. 5; Parliamentary Papers II, 2012-2013, 33 478, no 6, p. 6. 28 The FATF Recommendations, International standards on combating money laundering and the financing of terrorism & proliferation, February 2012, updated 2016, p. 37. 29 Parliamentary Papers II, 2012-2013, 33 478, no 3, p. 5. 30 Parliamentary Papers II, 2012-2013, 33 478, no 6 pp. 3-4. 31 Crimes of Terrorism Act of 24 June 2004, Bulletin of Acts and Decrees 290 (taking effect 10 August 2004), amended by Act of 20 November 2006, Bulletin of Acts and Decrees 580 (taking effect 1 February 2007) and last amended by Act of 10 July 2013, Bulletin of Acts and Decrees 292 (taking effect 1 September 2013). 32 Framework Decision of 13 June 2002, 2002/475/JBZ. See Parliamentary Papers II, 2012-2013, 33 478, no 3, p. 6. 33 Bulletin of Acts and Decrees 2009, 245. 34 Treaty Series 2006, 34. See Parliamentary Papers II, 2012-2013, 33 478, no 3, p. 6. 35 Parliamentary Papers II, 2012-2013, 33 478, no 3, p. 6. 36 Parliamentary Papers II, 2012-2013, 33 478, no 3, p. 6. 37 Parliamentary Papers II, 2012-2013, 33 478, no 3, p. 7. The Interpretative Note is enclosed as an annex with this Parliamentary Paper. 38 Parliamentary Papers II, 2012-2013, 33 478, no 3, p. 3. 39 Parliamentary Papers II, 2012-2013, 33 478, no 3, pp. 3-4. 40 Act of 15 February 1980, for imposing sanctions on certain states or territories, Bulletin of Acts and Decrees 1980, 93; Taking effect on 21 April 2980, Bulletin of Acts and Decrees 1980, 170. See Article 2, Paragraph 1, Sanctiewet 1977. 41 Bulletin of Acts and Decrees 2002, 270; taking effect on 7 June 2002. See on this subject: Parliamentary Papers II, 2001-2002, 28251, no 3, p. 2. 42 Treaty Series 2002, 240. 43 Council Regulation (EC) No 881/2002 of 27 May 2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, and repealing Council Regulation (EC) No 467/2001 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial assets in respect of the Taliban of Afghanistan (OJ L 139/9). 44 The Sanctions Committee consists of representatives of the Security Council. 45 https://www.un.org/sc/suborg/en/sanctions/un-sc-consolidated-list. This is called the UN Sanctions List. 46 Regulation of the Minister of Foreign Affairs providing for restrictive measures against persons and entities associated with Usama bin Laden, Al-Qaida and the Taliban (Sanctieregeling Osama bin Laden, Al-Qa’ida en Taliban 2002), Government Gazette 2002, 117. 47 Regulation of the Minister of Foreign Affairs providing for restrictive measures against persons and entities associated with Usama bin Laden, Al-Qaida and the Taliban, Government Gazette 2002, 117. 48 Government Gazette 2016, 67860. 49 Regulation of the Minister of Foreign Affairs of 5 December 2016, no MinBuza-2016.822620, providing for restrictive measures against persons and entities associated with ISIS and Al-Qaida (Sanctieregeling ISIS en Al Qaida 2016), Dutch Government Gazette 2016, 67860. 50 https://www.un.org/press/en/2013/sc11019.doc.htm 51 Commission Implementing Regulation (EU) No 632/2013 of 28 June 2013 amending for the 194th time Council Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with the Al Qaida network (OJ L 179/85). 52 Commission Implementing Regulation (EU) No 583/2014 of 28 May 2014 amending for the 214th time Council Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with the Al Qaida network (OJ L 160/27). 53 Commission Implementing Regulation (EU) No 630/2014 of 12 June 2014 amending for the 215th time Council Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with the Al Qaida network (OJ L 174/35). 54 Regulation of the Minister of Foreign Affairs in agreement with the Minister of Finance of 18 December 2007, no DJZ/BR/ 1222-07, providing for measures with the intent to combat terrorism (Sanctieregeling Terrorisme 2007-II), Government Gazette 2007, 248. This regulation has since been amended twice: Government Gazette 2009, 63 and Government Gazette 2010, 5507. 55 Decision of the Minister of Foreign Affairs in agreement with the Minister of Security and Justice and the Minister of Finance of [date], no [number A] to classify Mr [man 1] as a person to whom the Sanctieregeling Terrorisme 2007-II shall apply (Government Gazette 2014, [number B], published on [date]). 56 Crimes of Terrorism Act of 24 June 2004, Bulletin of Acts and Decrees 290 (taking effect 10 August 2004), amended by Act of 20 November 2006, Bulletin of Acts and Decrees 580 (taking effect 1 February 2007) and last amended by Act of 10 July 2013, Bulletin of Acts and Decrees 2013, 292 (taking effect 1 September 2013). 57 Council Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism, OJ L 164/3, as amended by Council Framework Decision 2008/919/JHA of 28 November 2008, OJ L 330/21. 58 ECLI:NL:GHDHA:2015: 1082, para. 10.3; The Hague Court of Appeal, 30 April 2015. This judgment is not yet irrevocable. See ECLI:NL:PHR:2016:969. 59 J. de Hullu, Materieel strafrecht, IV.4.2. Oogmerk als bijzondere vorm van opzet, Kluwer: 2015. 60 Parliamentary Papers II, 2012-2013, 33 478, no 3, p. 6. 61 An Ad Hoc Committee of the General Assembly of the United Nations, established by resolution 51/210 of 17 December 1996, is trying to finalise a draft comprehensive convention on international terrorism. This convention is intended to supplement the existing 13 conventions and 3 protocols that have been drawn up within the UN context since 1963 against specific forms of terrorism. The realization of this convention contributes to the perfection of the global international legal framework for combating terrorism, including the standards laid down in the international human rights conventions. 62 Parliamentary Papers I, session year 2003-2004, 28 463, C, pp. 10-11; See in this sense: J. de Hullu, Materieel strafrecht, IV.4.2. Oogmerk als bijzondere vorm van opzet, Kluwer: 2015. 63 AMB-001, AMB-002, AMB-016, AMB-026 and AMB-047. 64 Summary report dated 6 August 2015, no 56287 'Goudbrasem', document code 1-OPV-01, p. 8. 65 Summary report dated 6 August 2015, no 56287 'Goudbrasem', document code 1-OPV-01, pp. 44, 55 and 59; Official report dated 25 August 2015, no 56287 'Goudbrasem', document code 1-OPV- 01a (supplementary file, no page number); AMB-001, AMB-002, AMB-016, AMB-026 and AMB-047; Doc-015-07, Doc-015-08, Doc-015-02, Doc-015-03, Doc-015-09, Doc-015-05, Doc-015-06, Doc-033, Doc-043, the official report of the interrogation of the accused dated 17 June 2015, document code V01-03, p. 775 et seq., as well as the statement of the accused at the appeal hearing, dated 17 February 2017. 66 Statement of the accused at the court session in the first instance, dated 1 March 2016, p. 2. 67 Official report of interrogation of the accused, dated 17 June 2015, document code V01-03, p. 775 et seq.; statement of the accused at the appeal hearing, dated 17 February 2017. 68 Doc-039. 69 Summary report dated 30 July 2015, document code 2-OPV-01; AMB-006, AMB-024, AMB-035 and Doc-025. 70 Doc-003 and AMB-024. 71 Official report of interrogation of the accused, dated 17 June 2015, document code V01-04, p. 4. 72 Statement of the accused at the appeal hearing, dated 17 February 2017. 73 Official report of the interrogation of the accused, dated 17 June 2015, document code V01-04, p. 784 et seq. 74 Official report of the interrogation of the accused, dated 17 June 2015, document code V01-04, pp. 787-788. 75 Official report of the interrogation of the accused, dated 17 June 2015, document code V01-03, pp. 778-779. 76 Statement of the accused at the appeal hearing, dated 17 February 2017; official report of interrogation of the accused, dated 17 June 2015, document code V01-02, p. 768 et seq.; official report of interrogation of the accused, dated 17 June 2015, document code V01-03, p. 776. 77 ECLI:NL:RBDHA:2015:14365, Court of The Hague, dated 10 December 2015 ([name of examination]). This judgment is not yet irrevocable. 78 Official report of Interrogation of the accused, dated 17 June 2015, document code V01-03, p. 778. 79 Official report of interrogation of the accused, dated 17 June 2015, document code V01-03, pp. 781 and 783 and official report of interrogation of the accused, dated 17 June 2015, document code V01-02, p. 773. 80 Official report of interrogation of the accused, dated 17 June 2015, document code V01-03, p. 778. 81 Statement of the accused at the hearing in the first instance, dated 1 March 2016, p. 6. 82 Official report of interrogation of the accused, dated 17 June 2015, document code V01-02, p. 772. 83 Official report of interrogation of the accused, dated 17 June 2015, document code V01-02, p. 773. 84 Official report of interrogation of the accused, dated 17 June 2015, document code V01-02, p. 773 and official report of interrogation of the accused, dated 17 June 2015, document code V01-02, p. 781. 85 Official report of interrogation of the accused, dated 17 June 2015, document code V01-02, p.