Explanation legal framework regarding article 134a of the Dutch Criminal Code (to participate and to…

As is clear from the public sources consulted by the Court of Appeal, it is common knowledge that in the spring of 2011 a large part of the Syrian population rose up in peaceful protest against the dictatorial regime of President Bashar al-Assad. The Shia regime resorted to force in an attempt to suppress the calls for reform, but this failed to silence the protests. In response to the violence used by the regime against the predominantly Sunni population, the opposition increasingly engaged in armed resistance towards the end of 2011. What had started as a peaceful protest was now a civil war.

As the civil war progressed, it assumed an increasingly jihadist nature. Jihadi groups played an ever greater and more prominent role in the opposition. Their aim was not only to bring about the fall of the regime of Bashar al-Assad but also – or, rather, above all – to establish a strict Muslim state in the territory of Syria. It is also common knowledge that these armed groups have committed and continue to commit gross and large-scale violations of human rights. People whom they regard as unbelievers (kafir) have become the victims of extreme violence.

Initially, many of these jihadi insurgents came from Syria itself, but before long the country became a destination for non-Syrian jihadists. Foreign fighters, first mainly from the Middle East, North Africa and Asia and later also from Europe, travelled to Syria to join the insurgency. Some 130 people have now travelled from the Netherlands to Syria to engage in the jihad in that country.

It is also common knowledge, in the Court of Appeal’s view, that certain strands of radical Muslim ideology espouse a return to what they regard as ‘pure Islam’. Salafism is an example. A violent strain within contemporary Salafism has proclaimed jihad (or holy war) against all unbelievers.

The jihadist movement is the driving force behind the present worldwide wave of terrorism conducted under the guise of a religious armed struggle.

As a jihadist destination, Syria can be reached relatively easily by people from Europe via Turkey.

Under Islamic law each individual Muslim has a variety of legal obligations (Fard al-Ayn), including prayer, charity, fasting and pilgrimage. The jihad in Syria has now been proclaimed an individual duty of each Muslim, with only a few exceptions. The defendant too is aware of this, as is apparent from the fact that he initiated a discussion about it on the internet forum IslamicAwakening.com under the name ‘Jihad Fard Al-Ayn!’.

In response to an official report of the General Intelligence and Security Service dated 27 January 2012, which showed that in the recent past the defendant had on various occasions stated that he intended to join the violent international jihad and had purchased two kilograms of aluminium powder and 10 metres of detonating fuse, an investigation led by the public prosecutor of the National Public Prosecutors’ Office (Rotterdam Unit) was started against him on 30 January 2012.

General remarks

1. The charges found proven under count 1A relate to article 134a of the Criminal Code (Sr), in which participating and cooperating in training for terrorism are made a criminal offence. The question to be addressed here is whether the acts charged under count 1A and found proven by the Court of Appeal can be classified as the offence specified in article 134a Sr.

2. Article 134a Sr reads as follows:

3. Article 134a Sr implements article 7 of the Council of Europe Convention on the Prevention of Terrorism (referred to below as the Warsaw Convention). Article 134a Sr entered into force on 1 April 2010.

4. Article 7 of the Warsaw Convention reads as follows:

2.Each Party shall adopt such measures as may be necessary to establish training for terrorism, as defined in paragraph 1, when committed unlawfully and intentionally, as a criminal offence under its domestic law.’

5. Another reason for introducing article 134a Sr was article 3 of Framework Decision of the Council of the European Union 13 June 2002 on combating terrorism, as amended on 28 November 2008 (referred to below as the amended Framework Decision). In view of the finding that the threat of a number of terrorist offences has increased and also that the internet now functions as a ‘virtual training camp’, in addition to the ordinary training camps, the amended Framework Decision calls on the member states to criminalise various activities, including training for terrorism. The definition of training for terrorism in article 3 of the amended Framework Decision is identical to the definition contained in article 7 of the Warsaw Convention.

6. The Dutch government was also asked by motion tabled by a member of parliament to study the possibility of making it a criminal offence ‘to visit and take part in a training camp for terrorists’. This wish has been granted by the introduction of article 134a Sr.

7. Finally, the introduction of article 134a Sr was also prompted in part by the need and – in view of the international obligations – the necessity to fill possible gaps in the legislation on criminal preparatory acts. The array of criminal provisions previously available was not considered adequate to meet the requirements of the Warsaw Convention and the amended Framework Decision. As it stood, article 46 Sr provided that where objects, substances, information carriers and so forth were acquired this would be a preparatory act under criminal law only if the acquisition was intentional. If this requirement was not fulfilled, there would be no criminal offence. Nor, in the opinion of the Minister of Justice, did paragraph 2 (2) of article 96 Sr cover all conceivable culpable acts in connection with training for terrorism. In other words, it was necessary, according to the Minister of Justice, to create a separate criminal offence since the existing criminal provisions on preparatory acts were not sufficient to cover all possible cases in which training for terrorism could occur.

8. Article 134a Sr as finally introduced is a form of criminalisation of preparatory acts similar to that of other forms of preparation made punishable by the Criminal Code with a view to preventing terrorist and other serious offences (e.g. articles 46 and 96 Sr).However, the Court of Appeal notes that under article 134a Sr the preparatory acts constitute a separate criminal offence. Unlike articles 46, 48 and 96 Sr, article 134a does not require the acts to relate to the commission of a principal offence.

Meaning of ‘training’

9. The offence introduced by article 134a Sr is summarised in the legislative history of this provision as a prohibition on participating and cooperating in training for terrorism. However, article 134a does not actually use the term ‘training’. This was a deliberate choice on the part of the legislator, which was prompted by the wish to use the standard Dutch terminology and apply the legislative drafting technique used throughout the Criminal Code.

10. The legislative history of article 134a Sr shows that the term ‘training’ is derived from the list of acts that concludes with the words ‘or in other specific methods or techniques’ in article 7 (1) of the Warsaw Convention. The Minister of Justice stated that the set of acts listed in the definition of the offence in article 134a was intended to cover the broad definition of training used in the Warsaw Convention. He described training as ‘acquiring or imparting knowledge or acquiring or imparting skills or techniques’. The Minister continued, ‘The definition of the offence proposed in article 134a Sr is intended to cover all culpable acts that constitute training. Training is therefore a collective term that is denoted in the definition of the offence by a number of factual concepts.’

11. During the passage of the legislation through parliament, various examples were given to clarify what could and could not be covered by the term training. For instance, it may include training camps, but other forms of instruction are also conceivable. The legislator not only had in mind acts committed abroad; participation in a terrorist training camp in the Netherlands also had to be a criminal offence in all circumstances.

12. As noted above, the amended Framework Decision expressly provides that the internet can also be used to provide training (as a ‘virtual training camp’).

13. In the Court of Appeal’s view, it is evident that where preparatory acts could, in the absence of special circumstances, also be regarded as activities of a routine and non-criminal nature, the courts must carefully distinguish them in order to prevent any overhasty assumption that they are acts that can be regarded as training for terrorism within the meaning of the terms used in article 134a Sr.

Participation in training

14. The legislative history of article 134a Sr shows that the offence of participation is intended to cover a person fascinated by terrorist violence who becomes increasingly radicalised, plans attacks and at the same time acquires knowledge and/or skills which could be used to commit a terrorist offence or an offence involving preparation or facilitation of a terrorist offence.

15. According to the legislative history, participation as referred to in article 134a Sr consists not only in attending a terrorist training camp whose participants are members of a terrorist organisation or are guilty of conspiracy to commit a terrorist offence but also cases in which a person undergoes terrorist training in connection with a terrorist attack he himself has planned. Training can also include ‘taking shooting or flying lessons or undergoing training in a martial art (…), where the intention of the person concerned is to acquire the knowledge or skills needed to commit a terrorist offence.’ According to the legislator, merely taking a language course is unlikely to qualify as participation in training for terrorism, even if there is other evidence that the person concerned may have terrorist sympathies. The situation may be different, however, where the aim of taking part is to acquire a knowledge of air traffic control terms in preparation for a terrorist hijacking at a particular airport.

16. In answer to a question raised by members of the Christian Democratic Alliance (CDA) parliamentary party, namely whether taking an online training course can come within the definition of the offence, the Minister of Justice also stated that ‘where knowledge or skills are acquired online’ this too can constitute participation in training. It follows that where a lone individual acquires knowledge and information on the internet about how to make an explosive which he or she will then use to facilitate the commission of a terrorist offence by a third party, this too comes within the scope of article 134a Sr.

17. In summary, the Court of Appeal considers, taking into account the legislative history of article 134a Sr and the Warsaw Convention, that the term training includes not only a training camp in the Netherlands or abroad but also other forms of instruction, for example individual or group lessons. This may involve acquiring both physical skills and intellectual know-how. The training may also take place either through personal contact or through consultation on the internet or the use of other ‘learning materials’. Whether there can still be said to be training within the meaning of article 134a Sr in the latter case, which is a form of ‘self-study’, depends in part on the factual conclusions about the type of materials consulted, any link between the materials and in some cases on the frequency with which they are consulted.

18. Further to what has been said above about ‘self-study’, the Court of Appeal would observe that article 134a Sr also expressly makes obtaining or providing information, opportunity and means and acquiring knowledge and skills an offence, whether done by the perpetrator or for the benefit of the perpetrator. Reference should be made to the text of article 134a Sr which introduces criminal liability for the following [underlining added by the Court of Appeal]:

Cooperation in training

Aim and intent

20. The legislator has stated that a conviction under article 134a Sr is dependent on proof of the following intent of the person undergoing the training [underlining added by the Court of Appeal]:

21. It is apparent from the legislative history that a distinction should be made between the intent of those receiving and those giving training. In the case of a person giving training, recklessness (dolus eventualis) may in itself be sufficient. In practice, this means that a person who gives training may be criminally liable as soon as he knowingly exposes himself to the substantial risk that the person receiving the training is doing so with a view to committing a terrorist offence. In such cases, proof of intent could be inferred from the failure of those giving the training to screen those they are instructing and discharge their duty to make inquiries.

22. Recklessness does not apply in the case of those receiving training since they naturally know its aim. A person receiving training must have the object or malicious intent of acquiring the knowledge or skills concerned in order to commit a terrorist offence or an offence involving preparation or facilitation of a terrorist offence. Not only must the person concerned deliberately gather information with a view to committing a terrorist offence, but he must also have a concrete objective, namely committing a terrorist offence or an offence involving preparation or facilitation of a terrorist offence. On this point the Minister of Justice stated as follows: ‘Criminal liability cannot arise until the fascination with committing a terrorist offence evolves into a concrete intention to commit a terrorist offence or an offence involving preparation or facilitation of a terrorist offence, for which purpose the person concerned also needs and wishes to acquire specific knowledge and skills.’ The serious offence (misdrijf) intended by the defendant and for which he acquired the knowledge and skills must therefore be demonstrable and provable. Moreover, it must be one of the serious offences exhaustively listed in articles 83 and 83b Sr.

1. his hatred of the Western world

2. his fascination with terrorist violence

3. his radicalisation.

In view of the above, the nature of the training and instruction may also play a role since it can shed light on the defendant’s objectives. According to the legislative history, criminal liability cannot be assumed if there is no intent in relation to the purpose of the training.

Terrorist offence / offence with a view to preparation or facilitation of a terrorist offence

23. Article 134a Sr uses the terms ‘terrorist offence’ and ‘offence involving preparation or facilitation of a terrorist offence’. As noted in point 22 above, these terms are defined in sections 83 and 83b Sr.

24. Under article 83 Sr, a terrorist aim is a necessary element of a terrorist offence. This requirement is fulfilled where one of the situations mentioned in article 83a Sr occurs. However, the definition of the offence described in article 134a Sr does not require proof of intention to commit a terrorist offence. The terrorist aim referred to in article 83a Sr need not have fully crystallised in respect of each element of the offence defined in that article. The existence of a terrorist aim is not a requirement since this is not an element of article 134a Sr. This has been expressly stated in the legislative history of this provision. However, the contours of the offence being prepared should be visible, in the same way as provided for in article 46 Sr. To explain this reference in the Parliamentary Papers in more concrete terms, the Court of Appeal refers to the case law of the Supreme Court where it is held that not all statutory elements of the principal offence need to be listed in the indictment, provided that it is sufficiently clear to what principal offence the preparatory acts were intended to lead.

25. However, given the place of intent as an element in the definition of the offence in article 134a Sr, the defendant’s intent should relate in part to obtaining or attempting to obtain for himself or providing or attempting to provide to another person the opportunity, means and/or information or himself acquiring knowledge and/or skills for that purpose and/or imparting such knowledge and/or skills to another person, with a view to the commission of a terrorist offence and/or an offence involving preparation and/or facilitation of a terrorist offence. The intent should therefore relate to the (criminal) purpose of the training.

Obtaining or attempting to obtain for himself or providing or attempting to provide to another person opportunity, means and/or information

26. The ‘opportunity, means or information’ elements of the offence have the same meaning as in article 48 (2) Sr.

27. The meaning of the phrase ‘obtaining for himself or providing to another person opportunity, means or information’ was explained by the Minister of Justice in response to the following question from members of the Labour Party (PvdA) group in parliament:

28. This was answered by the Minister of Justice as follows [underlining added by the Court of Appeal]:

29. In view of the underlined passage above, there is not the slightest doubt that the legislator intends the acts listed in article 134a Sr to be collectively construed as training within the meaning of article 7 of the Warsaw Convention. Furthermore, the parliamentary proceedings on the bill leading to the introduction of article 134a Sr, when viewed in their entirety, leave no scope for any other conclusion than that this article does not relate to acts unconnected with (terrorist) training. The legislative history repeatedly mentions that article 134a Sr prohibits participation and cooperation in training for terrorism.

30. According to the legislative history, the words ‘obtains or attempts to obtain for himself or provides or attempts to provide to another’ in article 134a Sr have the same meaning as in article 96, paragraph 2 (1) and (2) Sr, where the same terminology is used.

Participation in training

1. On the basis of the file and the proceedings at the hearing, the Court of Appeal holds that the following has been established.

2. On 1, 2, 6, 8 and 27 February 2012 the defendant searched on the internet specifically for methods of making an explosive using aluminium powder. On 1 February 2012 he searched using the keywords aluminium explosion, home-made explosives, buy flash powder, flash powder formulas, black powder and action man/detonator. The defendant knew that a detonator was a button that could be used to explode a bomb. He had seen on YouTube what could be done with flash powder and had thus continued searching. He also searched for information on where this could be bought and, when he found that this was not possible, searched for information on how to make this powder.

3. The defendant made purchases on two websites, namely www.viscolontkopen.nl and www.carbonwinkel.nl. At Viscolontkopen the defendant bought and paid for 10 metres of fuse and a gas canister on 21 January 2012. He had seen on YouTube how the fuse could burn and what it did. And at Carbonwinkel the defendant bought and paid for one kilogram of aluminium powder on 25 January 2012. The defendant arranged for the goods to be delivered to [address], his parent’s home in [town].

4. The findings of the Netherlands Forensic Institute (NFI) show that the fuse and aluminium powder seized from the defendant are suitable ingredients for making explosives. The fuse examined by the NFI is classified as visco fuse, which is used in professional and consumer fireworks and so forth. The aluminium powder can, in principle, be used in explosive mixtures, but also has other applications, for example for thermite charges or paint. When mixed in the right proportions, the aluminium powder is in any event suitable for use as part of a pyrotechnical mixture. Aluminium powder can also be added to pyrotechnical mixtures or explosives, for example to generate increased heat after ignition.

5. In the Court of Appeal’s opinion, the purpose of the defendant’s activities as described above, when viewed in conjunction with one another and taking account of the external form which they took, was to obtain for himself the means and acquire the knowledge needed to make explosives and to become proficient in this skill by searching for information in the manner held to have been proven, in combination with the purchase of the raw materials for making an explosive. The Court of Appeal also takes into account that the defendant – evidently against his better judgement – has been unable or unwilling to provide a plausible explanation for his targeted search activities on the internet or for the presence of the objects discovered in his possession and previously purchased by him, although it would have been in his interests to do so.

6. The acts found proven at A and B can therefore be construed as obtaining means for himself and acquiring knowledge and skills (taking part in training) within the meaning of article 134a Sr. Whether these and other acts of the defendant were carried out with a view to committing a terrorist offence within the meaning of that article will be answered by the Court of Appeal below.

7. The defence has submitted that bringing the consultation of a webpage and hence also the reading of a magazine article within the scope of article 134a of the Criminal Code would be to stretch this provision too far. According to this view, acquiring knowledge or skills on an individual basis through one’s own efforts does not constitute training. The defence therefore concludes that, even if the facts in question are found proven, the defendant should be discharged from all prosecution.

8. In view of the established facts concerning the defendant’s search behaviour on the internet, as set out in point 2 of this section, the Court of Appeal notes that the defendant entered a large number of keywords in his search for information about making explosives (about both parts and raw materials) on a number of days in February 2012 and that he had previously purchased the raw materials for making explosives. In the Court of Appeal’s opinion, these circumstances can be described (as already held above) as a form of training within the meaning of article 134a of the Criminal Code. Given the established facts, it cannot be maintained, after all, that the defendant merely consulted a webpage. When viewed together, the defendant’s activities on the internet were clearly intended to enable him to acquire knowledge. Of further relevance is the fact that the defendant had also proceeded to purchase goods that were intended for making explosives and could be used by him in practice for gaining proficiency in these skills and techniques.

9. The Court of Appeal therefore rejects this defence.

Intent to obtain means for himself and acquire knowledge and skills

10. In the Court of Appeal’s opinion, the defendant had the intent to commit the serious offence of obtaining for himself the means and acquiring the knowledge and skills to commit a terrorist offence as defined in article 134a Sr.

11. In considering what constitutes intent, the Court of Appeal would refer to what has been held above on this point and bases its reasoning on what is known about the person of the defendant regarding any hatred he may have had of the Western world, his fascination with terrorist violence and his radicalisation. The Court of Appeal has also taken into account the nature of the training and the type of instructions in order to understand what objective the defendant had in mind.

12. The following is evident from the documents and from the trial and appeal hearings about the defendant’s intent to obtain for himself the means and acquire the knowledge and skills to commit a terrorist offence.

13. Although the defendant was born and raised in the Netherlands he does not regard it as his home country. In both his comments to the police and his tweets and e-mails, he has indicated that he would prefer not to remain in the Netherlands. He has also stated that if a law differs from Islamic law, as is the case with the burka ban in France, Islamic law takes precedence.

14. In his world view, the defendant distinguishes between believers and unbelievers. The Court of Appeal understands that the defendant uses the term unbelievers to mean all non-Muslims. The defendant endorses the view that the unbelievers have occupied Muslim territory and that jihad – the armed struggle – is therefore the individual duty of every Muslim.

15. At the time of the proven offences, the defendant was strongly anti-American. He repeatedly stated in his police interviews that he was still angry with the US. He accused the Americans of grave injustice. In his view, they do ‘crazy things’ like attacking, bombing civilian targets and raping and killing Muslim citizens. This was why he had posted film clips on Facebook showing Americans being killed.

16. The defendant declared that he was prepared to go and fight in the Middle East (first in Yemen and later Syria) and even to offer his life there. He also stated that he wished to help his Sunni brothers and assist in exterminating the president’s army. He repeatedly proclaimed this willingness to go and fight in Syria both on the internet and in various tweets (until just before his arrest on 12 March 2012) and confirmed this to the police even after his arrest. He had made plans to set out for Syria, travelling via Turkey, on 12 April 2012. His wish to join like-minded people in Syria is also evident from the fact that he actually attempted to reach Syria despite his parents’ refusal to grant consent. For this purpose, unbeknown to his parents, the defendant had applied for a new identity card. Although his pre-trial detention had been suspended on condition that he did not travel abroad, he left for Germany on 13 June 2013 with the intention of travelling on to Turkey. He was arrested in Germany and found to have virtually no luggage other than binoculars and a video camera. After his arrest in Germany, the defendant informed the district court at the hearing on 2 October 2013 that he had been on his way to Turkey to meet a girl aged 19 with whom he had a relationship. He said that he had never seen her before, but had got to know her after his pre-trial detention had been suspended and had corresponded with her. The defendant refused to disclose the girl’s name.

17. It is apparent from the violent video material found at his home that at the time of the proven offences the defendant had an excessive interest in terrorist violence. The defendant had 10 DVDs marked with, among other things, the handwritten text ‘jihad movies’. When the content of the images on these DVDs was examined, it was found that without exception these films glorified jihad (including the attacks of 9/11) and called, directly or indirectly, for participation in jihad.

18. Other very violent video material of the same kind was posted by the defendant on the internet. The jihadi film clips he posted on the internet (his Facebook and YouTube accounts and the IslamicAwakening forum) show US attacks on civilians as well as attacks on Americans, and are of an extremely violent nature with people being killed and seriously wounded. The defendant said he was angry with the Americans. He told the police that he felt nothing when he watched a film showing Americans being subjected to serious violence. He took the view that they had brought this upon themselves, in view of the injustices perpetrated by the US army on Muslims in Afghanistan. The defendant’s accounts on all three of these internet forums were blocked because of these violent images.

19. The defendant posted a call on the internet to take part in jihad. One of the subjects addressed in the discussion started by the defendant on the internet forum IslamicAwakening on 19 February 2012 was the duty of every Muslim to resist the unbelievers by taking part in violent jihad. The jihadi video clips posted by the defendant on 21 February 2012 were removed from the forum and the defendant was banned from it for a period of three months.

20. The defendant also used the name of a known suicide bomber for his e-mail account on Facebook. The defendant informed the police that e-mail address [name x] and Facebook account [name x] belonged to him. His Twitter names were [name x] and [name x], and he also used [name x] for YouTube. In response to questioning, the defendant stated that he knew that [name x] had been used by an al Qa’ida suicide bomber who had attacked a US CIA base in Khost in Afghanistan in December 2009, an attack in which seven CIA agents and a Jordanian died. The defendant made conflicting statements about his use of this name, alleging on the one hand that he had taken this name even before the date of the attack but had not used it, and on the other that he had created the name only after the attack took place. The defendant said that he had heard about the attack on an Al Jazeera news report, but that he condemned it. He considered that the attacker was a terrorist whereas he himself was not.

21. The Court of Appeal infers from the defendant’s use of the name [name x] for his e-mail, Facebook, Twitter and YouTube accounts that he is greatly fascinated by the ideas of this terrorist, who also used this name. In the Court of Appeal’s view, this is not altered by the fact that the defendant condemned the suicide attack in the police interviews. If the defendant’s statement that he had created this name for his above-mentioned internet accounts before the date of the attack is accepted, the logical course of action would have been for him to signal his condemnation of this terrorist attack by ceasing to use [name x] and adopting another username. The defendant failed to do so. It should also be noted that at some other point he stated that he had started using the name only after the suicide attack.

22. Viewing the above facts and circumstances in their entirety, the Court of Appeal holds that the defendant showed excessive interest in terrorist violence. In its opinion, the defendant’s intent to prepare, in brief, a bomb attack with a terrorist aim, thereby causing a general danger to property and/or causing another person serious bodily injury, and/or committing murder, committing manslaughter with a terrorist aim and/or

destroying and/or damaging property with a terrorist aim, for which the defendant had trained in the proven manner, can be inferred from the combination of all the defendant’s acts and ideas.

23. Although it has been pointed out in the legislative history, as noted above in section 8.2.6., that a terrorist aim is not required for the offence defined in article 134a Sr since this not an element of that provision, the Court of Appeal holds for the record on this point as follows.

24. ‘ Terrorist aim’ is defined in article 83a Sr as:

25. The Court of Appeal holds that the description of terrorist aim largely coincides with the definition in the amended Framework Decision implemented by the Terrorist Offences Act. The article has a broad scope as it concerns serious offences committed with a terrorist aim in any country. Although the Syrian regime of President Bashar al-Assad has a dubious reputation among the greater part of the international community and may itself have been guilty of systematic and serious violations of fundamental human rights and/or constitute a threat to international peace and security, this does not in itself detract from the operation of articles 83a and 83 Sr.

26. On the basis of the proceedings at the hearing and the case file, the Court of Appeal holds that the following facts and circumstances have been established with regard to the terrorist aim of the defendant.

27. In summary, the Court of Appeal holds on the basis of the above that at the time of the proven facts the defendant adhered to a radical Muslim ideology and supported the jihad. Accordingly, he regarded both Americans and unbelievers at large as enemies of Islam. Against this background, the defendant searched for information about jihad and/or terrorism on one more information-sharing websites and had DVDs at home, all of which, without exception, glorified jihad and directly or indirectly called for participation in jihad. The defendant therefore formed his frequently stated intention to travel to Syria to take part in the armed struggle against President Assad. He repeatedly told the police that he was prepared to die in the fighting.

28. When the Court of Appeal considers these findings about what subjects occupied the defendant’s attention in conjunction with what activities he actually undertook, namely his extensive internet searches for information about how to make explosives at home and his purchase of the raw materials for this purpose, it concludes that the defendant had the intent to obtain means for himself and acquire knowledge and skills that would enable him to make explosives to commit a terrorist offence as described in the judicial findings of fact, with a view to his planned journey to Syria to join in the armed struggle and commit terrorist offences there.

Aiding or abetting separate from the training element?

29. At the appeal hearing the Public Prosecution Service cited various sources in the literature in support of its submission that article 134a Sr not only makes it an offence to participate and cooperate in training for terrorism but also to engage in all kinds of other forms of ‘aiding or abetting’ terrorist offences and offences involving preparation or facilitation of a terrorist offence unrelated to the training element.

30. The defence has argued that the phrase ‘opportunity, means or information’ in article 134a Sr transposes the provisions of article 7 of the Warsaw Convention and that this part of the provision in question does not have any meaning separate from the term training.

31. The Court of Appeal holds as follows in this connection.

32. The text of article 134a Sr allows scope grammatically for an interpretation of the kind proposed by the Public Prosecution Service.

33. As this provision has entered into effect only recently, the Court of Appeal considers that great weight must be given to the intention of the legislator as evidenced by the legislative history of article 134a Sr. It refers in this connection to what has been held above in section 8.2.7. The conclusion to be drawn from the legislative history is that article 134a Sr covers acts that relate to (terrorist) training.

34. In support of its submission the Public Prosecution Service has referred to the literature where a passage from the Parliamentary Papers is cited, namely the following answer of the Minister of Justice: ‘These members have asked what is meant precisely by obtaining or providing opportunity, means or information. I would like to point out that these terms can already be found in the existing provisions of the Criminal Code. They have the same meaning as in article 48 (2) Sr. These are means that “make it possible or easier to commit the offence” (Supreme Court, 17 June 1940, NJ 1940, 82).’

35. The Minister of Justice’s answer cited in point 34 above refers back to the following question put by members of the Socialist Party group in parliament: ‘What is meant precisely by obtaining or providing opportunity, means or information to commit a terrorist offence?’ The Court of Appeal understands from the Minister’s answer that he is saying that the meaning of the phrase ‘obtaining or providing opportunity, means or information’ in article 134a Sr does not differ from that of article 48 (2°) Sr, subject to the settled case law. The Minister’s answer has no bearing on the issue of whether article 134a Sr includes an offence of aiding or abetting separate from the requirement of some form of training for terrorism.

36. In the light of the above, the Court of Appeal does not share the view taken by the Public Prosecution Service.

No participation in training (proven acts D-J)

37. It has been found proven that the defendant:

38. In the Court of Appeal’s opinion, the acts referred to above completely lack the element required for an offence under article 134a Sr, namely participation in training to commit a terrorist offence or an offence involving preparation or facilitation of a terrorist offence. However, the acts referred to at D-J (and the combination of them) are important in the context of establishing the defendant’s intent to acquire knowledge and skills as referred to in article 134a Sr.

No cooperation in training (proven act E)

39. It has been found proven that the defendant:

40. The Public Prosecution Service has argued that the defendant can also be accused of having trained other persons by posting documents and films on the internet showing how to commit attacks and starting a discussion about jihad on the forum of the website(s) concerned, as mentioned at E of the indictment and found proven.

41. In the Court of Appeal’s opinion, there cannot be said to have been intent to cooperate in training within the meaning of article 134a Sr. Merely posting film clips about the commission of attacks and/or starting a discussion about jihad on the internet without any clear indication of the actual identity of the readers and/or viewers is not sufficient in this particular case. After all, in view of the legislative history discussed in section 8.2.5., intent, whether it takes the form of recklessness or otherwise, cannot be established if it is unknown whether the readers/viewers (who themselves are unknown) have wished to put the knowledge they have gained to use in committing a terrorist offence or an offence involving preparation or facilitation of a terrorist offence.

42. The act referred to at E cannot therefore be described as cooperating in training sessions because there is insufficient specification of who was trained and whether they had the intent to acquire knowledge and skills as referred to in article 134a Sr. However, the act is important in the context of establishing the defendant’s intent to acquire knowledge and skills as referred to in article 134a Sr.

Conclusion with regard to the charges found proven under count 1A

43. The acts referred to in the judicial findings of fact, as described in indents A-J, should be viewed in their overall context and mutual relationship. The acts found proven at A and B are those which can be described as obtaining means for oneself and acquiring knowledge and skills (participation in training).

9. Whether the charges found proven under count 1B constitute a criminal offence

1. No comments have been made by the defence or the Public Prosecution Service about the charges found proven under count 1B. With regard to whether these proven charges constitute a criminal offence, the Court of Appeal therefore holds ex proprio motu as follows.

2. The following charges under indent 1B were found proven:

3. In so far as relevant, Article 46, paragraph 1, Sr reads:

4. In the Court of Appeal’s opinion, the charges found proven above – in brief, the internet searches – cannot be described as an object, substance or information carrier.

5. As regards the element ‘objects’, the Court of Appeal refers to the provisions of article 46, paragraph 5 Sr in which objects are defined as ‘any thing or property right’. An internet search is neither a thing nor a property right and cannot therefore be an object within the meaning of article 46 Sr.

6. Article 46 Sr does not, however, give a statutory definition of the element ‘substances’. According to the case law, examples of substances are plastic, tape, chemicals and fertiliser. An internet search, as understood in common parlance, does not come within the definition of substance.

7. Nor is the element ‘information carrier’ in article 46, paragraph 1 Sr defined in that article. The following have been classified as information carriers in the case law: paper containing text, maps, photos and printed internet documents. The Court of Appeal adds that in its opinion DVDs, CD-ROMs, computer hard disks, saved webcam images and so forth can also be regarded as information carriers within the meaning of article 46 Sr. These are all things which contain information. In view of the above, the Court of Appeal does not consider that merely searching for and finding information on the internet without saving this information in any way comes within the definition of information carrier.

8. However, the Court of Appeal does find that the proven part A of the charges set out under count IB is relevant to the required intent.

The Advocate General has applied for the defendant to be sentenced to a term of imprisonment of 24 months, with credit for time spent on remand.

In view of the nature and gravity of the offence found proven by the district court under count 2, which is classified as disseminating or publicly displaying on more than occasion – or possessing for the purpose of disseminating or publicly displaying – written material and images inciting the commission of a terrorist offence or any other criminal offence and/or inciting the use of violence against public authorities, while knowing or having good reason to suspect that the material or images amount to incitement, the Court of Appeal will impose a sentence of three months for this offence.

The sentence imposed on the defendant is based on the gravity of the offences, the circumstances in which they were committed, and the character and personal circumstances of the defendant. The following factors in particular are taken into account.

The defendant has been guilty of obtaining means for himself and acquiring knowledge and skills to commit a terrorist offence. He has also committed criminal acts as preparation for causing a fire or an explosion.

The Court of Appeal holds that it has been proven that the defendant consulted a wide range of websites on different occasions and different days about various aspects of making explosives and that he also purchased on the internet detonating fuse, aluminium powder and a gas canister. It has also been found that at the time of the proven offences the defendant adhered to a form of radical Muslim ideology and intended to travel to Syria to take part in the armed struggle against the Syrian president. The Court of Appeal holds that the defendant trained himself for this purpose in the manner that has been held to be proven. The criminal preparatory acts also took place in this context. Worse was prevented from happening only because of prompt intervention by the law enforcement authorities.

By participating in training for terrorism within the meaning of art. 134a Sr, intending to cause a fire or an explosion and carrying out the preparatory acts for this purpose, the defendant committed serious offences (misdrijven) of a grave nature. As the defendant could have foreseen that if these offences had actually been carried out they would have had potentially serious consequences for property and/or persons, this must have been what he was intending. This counts heavily against the defendant.

Moreover, terrorist offences – together with a number of other international crimes – are regarded as belonging to the very gravest category of offences. Terrorism is regarded as one of the most serious violations of the principle of the rule of law. It directly affects public order and/or the security and stability of society. Clearly, society both here and elsewhere must be protected from the perpetrators of such crimes.

The gravity of the proven offences must be the main criterion when sentencing. The Court of Appeal has also taken into account the general aims of punishment such as retribution, deterrence and precluding the possibility of reoffending. When sentencing, the Court of Appeal should also consider any aggravating or mitigating factors, including all relevant special circumstances of the case, the form and extent of the defendant’s participation in the proven offences and, as already noted above, any special circumstances of the defendant.

In determining the sentence for the offence found proven under count 1A, the Court of Appeal has, in a more general sense, sought to base its thinking on one or more comparable criminal cases that have been tried in the Netherlands or indeed elsewhere.

The Court of Appeal also notes that at present there is much fear of possible attacks in the Netherlands or elsewhere committed by people who adhere to jihadist ideology (and may or may not have returned from Syria). The Court of Appeal has not taken into account this fear in determining the sentence. Indeed, it has deliberately excluded this factor. Sentencing is about what this defendant has done and can be held responsible for. Nonetheless, it is clear, in the Court of Appeal’s opinion, that the offences of which the defendant has been found guilty are of the utmost gravity.

There is no evidence that the defendant, who chose not to attend the appeal hearing, ever paid any heed to the gravity of the proven offences. For example, he has been unwilling or unable to provide a plausible explanation for the detonating fuse, aluminium powder and gas canister discovered in his possession and for his internet search for further ingredients with which to make an explosive. The Court of Appeal will treat this as an aggravating factor for sentencing purposes.

In determining the sentence, the Court of Appeal has taken into account that it is evident from an extract from the Criminal Records Register of 20 November 2014 that the defendant has no previous criminal convictions. The Court of Appeal has also taken into account in mitigation that the defendant was still relatively young at the time when the offences were committed.

Moreover, the Court of Appeal has taken note of the three advisory reports of 22 January 2013, 26 June 2013 and 1 August 2013 drawn up by the Probation Service. Although the reports were not compiled by a behavioural expert, the Probation Service considers that there are indications of an intellectual impairment. The Court of Appeal does not exclude this possibility outright and has treated it as somewhat of a mitigating factor in determining the sentence to be imposed.

Finally, the Court of Appeal has examined whether there are grounds for suspending part of the sentence. A factor taken into account here is that the defendant breached the condition imposed on him at first instance for suspension of the pre-trial remand by nonetheless travelling abroad without informing the appropriate authorities and requesting consent. In view of this action by the defendant and the gravity of the proven offences, the Court of Appeal sees no reason to suspend part of the sentence to be imposed on the defendant as a form of inducement to conform. The Court of Appeal agrees with the Public Prosecution Service that the special conditions recommended by the Probation Service may also be imposed in the context of a release on licence. A decision can be made at that juncture as to whether such conditions are necessary with a view to reintegration and preventing recidivism (e.g. a restraining order and an obligation to undergo treatment and cooperate in an inspection of his computer and/or other equipment providing internet access).

Against the background of the special circumstances described above (the mitigating factors being of only minor significance), the gravity of the proven offences requires the imposition of the following unconditional term of imprisonment in order to send a clear signal.

The Court of Appeal has decided to impose a term of imprisonment of 15 months.