Court of The Hague
multiple chamber for criminal cases
Judgment
noted the appeal against the judgment of the multiple chamber in the Rotterdam District Court of 1 February 2017 in the criminal case against the suspect:
[Suspect: Jomarly B.],
born in (United States of America) on [date of birth],
currently detained in the Penitentiary institution Alphen aan den Rijn, location Maatschapslaan in Alphen aan den Rijn.
Investigation of the case
This judgment was given in connection with the investigation into the court hearings at first instance and the investigation into court hearings on appeal by this court on 28 March 2018 (directing) and 2 October 2019 (substantive treatment).
The Court of Appeal has taken note of the advocate general’s claim and of what has been put forward by and on behalf of the accused.
Process
In the first instance, the suspect was acquitted of the charges implicit under 1 and the charges implicit under 2 implicit. With regard to what was implicit in the alternative under 2, 2 implicitly alternative and 3 charged, the suspect was sentenced to a prison term of 15 years, with deduction of pre-trial detention. The claim of the injured party is partially, jointly and severally assigned, plus the statutory interest claimed and with the imposition of the compensation measure on the suspect. The injured party is otherwise declared inadmissible in the claim.
An appeal has been lodged on behalf of the suspect against the judgment.
Indictment
The accused has been charged with:
1.
on or around 10 December 2015 in Rotterdam together and in association with another person or others, at least alone, intentionally and with or without intention, has robbed a person named [victim B], after all, suspected of having and / or his co-perpetrator (s) intentionally, several times, at least once, with one or more firearm (s) one or more bullet (s) fired at, at least in the direction of, that [victim B], as a result of which the aforementioned [victim B] has died;
2.
on or about 10 December 2015 in Rotterdam, in execution of the crime intended by the accused to rob a person named [principal] deliberately and in association with another or others, at least alone, intentionally and deliberately; inflict at least serious bodily harm, together and in association with another or others, at least alone, with that intent and after calm deliberation and calm consultation, several times, at least once, with one or more firearm (s) one or more bullet (s) s) has fired at, at least in the direction of, that [declarant] (which has hit that [declarant] in the body and / or face), being the execution of that proposed crime not completed;
3.
on or around 10 December 2015 in Rotterdam one or more weapons together and in association with (one) other (s), at least alone, two, at least one, weapon (s) as referred to in Article 2 paragraph 1 category III under 1 of the Weapons and Ammunition Act, namely two, at least one, firearm (s) within the meaning of Article 1 under 3 of that Act, in the form of a gun and / or a revolver.
Claim of the Advocate General
The Advocate General has requested that the judgment whose appeal will be set aside and that the accused will be acquitted with regard to the charges under 1 implicitly primary and 2 implicitly primary. The Advocate General has requested that the accused for the under 1 implicitly subsidiary (assassination attempt), 2 implicitly subsidiary (assassination attempt) and 3 charged will be sentenced to 15 years in prison , with deduction of detention.
The judgment whose appeal
The judgment whose appeal cannot be upheld because the court does not agree with this.
Consideration regarding the alleged facts
1. On the basis of the present file and the investigation at the hearing, the Court of Appeal finds that for the assessment of the suspect’s involvement in the facts described in the indictment it is essentially – in addition to the evidence of a more technical nature – the statements of the suspect, of the victim [declarant], of the co-suspect [co-suspect 1] and of the co-suspect [co-suspect 2].
2. With regard to the suspect, the defense has stated that his statements are sincere and consistent and must therefore be considered correct and that this does not apply to the statements of [declarant], [co-suspect 1] and [co-suspect 2], now they are variable, contradictory and far from consistent.
3. The court of appeal does not follow that statement. The fact that the
suspect, who essentially denies his responsibility for the events, always in his denial
statements and in his account of what would have happened, does not mean that unconditional faith must be attached to his statements for that reason, namely the consistency of his statements. After all, he has a great personal interest in those statements and has only made those statements before the examining magistrate,
then the entire file before him known
used to be. Before that, he did not want to explain his reasons. This does not mean that the suspect has declared himself totally unbelievable, but that the assessment of the credibility of the various parts of his statements is partly dependent on what other evidence is available, including the statements of other parties involved, and on the plausibility. In addition, the co-suspects (in this case [co-suspect 1] and [co-suspect 2]) have always had the right to remain silent and have the right and also have an interest in not burdening themselves in their statements. Finally, when making statements by all suspects, situations and interests that play a part in the background that the Court of Appeal does not know about may play a role in the background. All this means that for the assessment of the correctness of the suspect’s statements, whether or not in parts, the entire present file must be taken into account. The same also applies to the statements of the other parties involved such as [co-suspect 1], [co-suspect 2] and [declarant]. If a person has demonstrably declared correct in one part, that does not mean that he must also have stated correct in other parts, and vice versa: an incorrect statement in one part does not automatically mean that his statement in another part should not have faith be attached. The same also applies to the statements of the other parties involved such as [co-suspect 1], [co-suspect 2] and [declarant]. If a person has demonstrably declared correct in one part, that does not mean that he must also have stated correct in other parts, and vice versa: an incorrect statement in one part does not automatically mean that his statement in another part should not have faith be attached. The same also applies to the statements of the other parties involved such as [co-suspect 1], [co-suspect 2] and [declarant]. If a person has demonstrably declared correct in one part, that does not mean that he must also have stated correct in other parts, and vice versa: an incorrect statement in one part does not automatically mean that his statement in another part should not have faith be attached.
4. For a good understanding, the Court of Appeal finds that, where the various statements refer to [Va] and [Vb]and [Vc] , the suspect is meant.
Where the statements refer to [MV1a] and to [MV1b] and to [MV1c] , the co-suspect [co-suspect 1] is meant. Where the statements refer to [MV2a] , the co-suspect [co-suspect 2] is meant.
Where the statements refer to [Aa] , the declarant [declarant] is meant. Where the statements refer to [SLBa] or [SLBb] , the victim [victim B] is meant.
5. From what statements and other evidence
the Court of Appeal is now making the conclusion that the following has in any event occurred, and there is not much discussion about this, as the hearing at the hearing shows.
6. The suspect, then living in Lelystad, has van
[fellow suspect 2] received a request to help him. To that end, he went to the home of [fellow suspect 2] in Rotterdam on 10 December 2015. When he was with [fellow suspect 2], the suspect had contact with [fellow suspect 1]. [Fellow suspect 1] asked him to come along with [fellow suspect 2] to him, [fellow suspect 1]. They did that. In the home of [fellow suspect 1] they played and talked games on the Playstation. [fellow suspect 1] then asked the suspect to go with him to a friend in Rotterdam to chill with that friend, to whom he also had to return a pair of scissors. [Fellow suspect 1] asked [fellow suspect 2] if he wanted to drive them, and [fellow suspect 2] agreed. [Co-suspect 2] and [co-suspect 1] and the suspect drove the car to that friend in Rotterdam (the court understands: the principal [principal]), dropped them off and then drove away. The suspect decided to go with [fellow suspect 1]. At the home of [declarant], [co-suspect 1] and the suspect subsequently rang the bell, after which [declarant] opened the door automatically (via the intercom) after a while. The suspect and [co-suspect 1] then walked to a higher floor in the building to the door that gave direct access to the dwelling of [declarant] after which [declarant] opened the door automatically (via the intercom) after a while. The suspect and [co-suspect 1] then walked to a higher floor in the building to the door that gave direct access to the dwelling of [declarant] after which [declarant] opened the door automatically (via the intercom) after a while. The suspect and [co-suspect 1] then walked to a higher floor in the building to the door that gave direct access to the dwelling of [declarant]1 .
7. [co-suspect 1] and the suspect subsequently entered the home of [principal]. [fellow suspect 1] had at that time a longer weapon, a pistol (with silencer) 2 in hand, the suspect revolver which he had received in advance of [fellow suspect 1]. 3 There was a friend or acquaintance of [declarant], [SLBb] [victim B], in the home of [declarant], outside [declarant] himself . He was on the couch when [fellow suspect 1] and the suspect entered. 4
8. Subsequently, [declarant] received a blow to the head from [co-suspect 1], after which money and / or drugs were requested. 5 The two firearms mentioned were then shot. 6 In addition, [victim B] was hit twice, as a result of which he died on the spot. 7These two shots came from the firearm used by [fellow suspect 1], the gun. [Co-suspect 1] has therefore fired both shots. In the home [principal] a gunshot wound was sustained in the face through the cheek, originating from the firearm used by the suspect, the revolver. Subsequently, [fellow suspect 1] and the suspect left the house and went down the stairs again, first [fellow suspect 1] and immediately afterwards the suspect. At some point, when he went down the stairs, the suspect still shot in the direction of [principal], who thereby hit the abdomen / pelvis. 8 9 10
9. Having come outside, both suspects ran away and threw away their balaclava ([co-suspect 1]) and hat (suspect). 11 Arrived at a water (the Essenburgsingel) [fellow suspect 1] threw the firearms into the water in the presence of the suspect and they went back to the home of [fellow suspect 1]. 12
10. The defense and the Public Prosecution Service explicitly disagree on a number of aspects:
– before the arrival at the home of [declarant] between the suspect, [co-suspect 1] and [co-suspect 2], the intention of the visit to [principal] was discussed;
– at what time did the suspect receive the firearm from [fellow suspect 1] and why;
– what happened between [principal] and the suspect in the home and when leaving the home;
– the suspect is also criminally responsible for
what [fellow suspect 1] has done in the home.
11. [co-suspect 1] stated varyingly about whether the suspect knew what the purpose of the visit to [declarant] was and about what was discussed in the presence of the suspect. After his arrest on December 23, 2015, [Co-suspect 1] did not start declaring the events of December 10, 2015 on the events of December 10, 2015. From those statements, the Court of Appeal deduces that on the occasion of the congregation between [co-suspect 1], [ co-suspect 2] and the suspect was discussed that [co-suspect 1] wanted to go to [declarant] to collect a quantity of weed from [declarant] under coercion. He would take a firearm for this. So the suspect knew all this. In later statements (in particular with the examining magistrate and the examining magistrate) [co-suspect 1] returned to that knowledge of the suspect, but the court does not convince. [Co-suspect 1] has not explained in a plausible way why he previously declared incorrect and wrongly incriminating for the suspect, while his statements afterwards expressly give the impression that he is very concerned that the suspect has encountered major problems throughout the whole event. , while he, [co-suspect 1], brought in the suspect, who initially did not know anything about his plans, and thus brought him into that situation. That may justify the presumption that [co-suspect 1], partly in view of his own (confessional) statements about his own actions that should have led to and also led to a conviction,
12. [Co-suspect 2] did not provide a usable explanation of the entire event on 10 December 2015. He is silent, denies, does not know exactly anymore, or declares incorrect in view of the evidence present. The statements of [co-suspect 2] must therefore be completely ignored.
13. The suspect has stated that [co-suspect 1] at the front door of [principal] suddenly put a weapon against his chest or in the hand that he had to tackle and take inside. 13 However, with the counselor [co-suspect 1] stated that, having arrived at the home of [principal] and before they got out of the car, he gave a firearm to the suspect and said that he should simply participate. He pushed the weapon on the suspect’s chest. When the suspect asked why that was, [fellow suspect 1] had said that he should just come along. [Co-suspect 1] wanted to teach [principal] a lesson, but the suspect knew nothing about it, said [co-suspect 1]. 14The suspect and [co-suspect 1] therefore explain differently about the moment at which [co-suspect 1] gave the suspect the firearm.
14. The suspect has declared to the examining magistrate that, when [principal] had opened his front door, he with the firearm in hand behind [fellow suspect 1] at the house and then entered the living room where [principal] and [ victim B] were on the couch. [fellow suspect 1] then asked for drugs, after which the suspect asked him if he had been brought here for that. Then [principal] the suspect tried to take the weapon and a struggle arose. In that struggle, the suspect’s weapon went off. Apparently [declarant] was hit. What [fellow suspect 1] did did the suspect not see. The suspect then ran away and saw [victim B] ( [SLBa]) lie with him, with a lot of blood. He did not see [fellow suspect 1] in the house at that time. When the suspect then ran down the stairs, he saw [the principal] coming behind him with something in his hand. The suspect then shot at [declarant] as a warning shot. The suspect had a revolver, [fellow suspect 1] a gun. 15
At the hearing on appeal of 2 October 2019, the suspect stated that [the principal], when he opened the front door of his home, immediately tried to seize the suspect’s weapon, after which a struggle arose. That would not have happened until the suspect and [co-suspect 1] had entered the living room. This later statement by the suspect is passed by the court, now that it is inconsistent with the statement previously given by the suspect and no support for it can be found in the statements of [co-suspect 1] and [declarant].
15. [co-suspect 1] has stated that [principal] attempted to take the weapon from the suspect and that a small struggle arose in which the suspect accidentally pulled the trigger. 16
16. [Declarant], the victim, stated that he was immediately beaten on the back of the head after entry and that money and drugs were requested. Shooting was first on [victim B], then on him, [declarant]. The first shot was in his cheek, the second in his side / back, after which he fell. In his first statement, [declarant] made it clear that the suspect was using a revolver and [fellow suspect 1] a gun. 17 In his later statements, [declarant] states otherwise. [co-suspect 1] was the one who shot at him, [principal] with a revolver, and the suspect shot at [victim B]. 18In view of the contents of the file and the statements of [co-suspect 1] and the suspect, this reading is incorrect. It is not clear whether this incorrect reading is intentional or, for example, the result of a damaged memory. However, the court of appeal finds that [declarant] does not
has explained about a struggle during which he was hit by a shot in the face. According to [declarant], there was first shot at [victim B] before he was hit. [Victim B] was visiting him.
17. The Court of Appeal deduces from the foregoing that the following has occurred with regard to the disputed parts.
18. On the occasion of gaming, it was discussed between [co-suspect 1], [co-suspect 2] and the suspect that they would go to [declarant] in order to compel [declarant] to be forced. To reinforce that intention, [co-suspect 1] would take a firearm with him. [Co-suspect 2] has deposited [co-suspect 1] and the suspect at the building in which the dwelling of [declarant] was located. When entering the home of [principal], [fellow suspect 1] had a loaded gun with a silencer in hand, and the suspect a loaded revolver. This revolver had received the suspect from [co-suspect 1], either in the car upon their arrival at the building, or at the front door of [declarant]. [Declarant] was present in the house, as well as a casual visitor, [victim B]. Both sat on a couch in the living room. [Declarant] immediately got a slap on the back of [fellow suspect 1]. [Fellow suspect 1] asked for drugs and / or money. In the house, [co-suspect 1] shot twice at [victim B], who was thereby fatally hit. The suspect shot twice at [declarant]. The first shot hit [declarant] in the face, through the cheek / jaw. The second shot was fired at [principal] when the suspect fled the house via the stairs down. [Declarant] came after him and then the suspect turned around and shot in the direction of [declarant]. That shot hit [declarant] in the lower back, the pelvis. that was fatally affected by this. The suspect shot twice at [declarant]. The first shot hit [declarant] in the face, through the cheek / jaw. The second shot was fired at [principal] when the suspect fled the house via the stairs down. [Declarant] came after him and then the suspect turned around and shot in the direction of [declarant]. That shot hit [declarant] in the lower back, the pelvis. that was fatally affected by this. The suspect shot twice at [declarant]. The first shot hit [declarant] in the face, through the cheek / jaw. The second shot was fired at [principal] when the suspect fled the house via the stairs down. [Declarant] came after him and then the suspect turned around and shot in the direction of [declarant]. That shot hit [declarant] in the lower back, the pelvis.
19. In the absence of convincing evidence of the
on the contrary, the Court of Appeal assumes that it has not been agreed between those involved that the purpose of the visit to [declarant] was to rob [declarant] of life. The goal was to get rid of a quantity of weed, if necessary by force. The suspect knew that [co-suspect 1] would take a weapon to reinforce this. Before they went to the home of [principal], the suspect did not yet know that [fellow suspect 1] had also brought a firearm for him, the suspect. That firearm was given to him by [co-suspect 1] before they entered the home of [principal]. Despite the pressure [fellow suspect 1] put on him at that time, the suspect made the choice to go with that weapon in his hand behind [fellow suspect 1] at the house of [principal]. That besides [declarant] also another, in the present case [victim B] would be present in the home, the suspect did not know. In the house they immediately walked to the living room, where [principal] and [victim B] were seated, and [co-suspect 1] was the first to shoot at [victim B].
It has not become clear what the immediate reason for this was, but that sudden shooting at an unexpected present, not at [declarant], must also have been a sudden and unexpected act of [co-suspect 1] for the suspect. In the opinion of the Court of Appeal, this shooting, and with it the re-shooting of [fellow suspect 1] at [victim B], cannot be imputed under criminal law to the suspect, even though he knew it was intended to [ declare weed, if necessary, under pressure from a firearm. The suspect could not foresee this extremely violent and unexpected course towards a visitor who happened to be present and did not have to take it into account. This means that with regard to the shooting by [co-suspect 1] at [victim B] the suspect cannot be blamed for co-perpetrators. The accused must therefore be acquitted of the first charged offense.
20. With regard to the shooting of the suspect at [principal], the court of appeal rules as follows.
21. As already stated above, the suspect entered the house with a loaded firearm behind [co-suspect 1] and then the [principal’s] living room. Whether a struggle with [declarant] then arose there is uncertain. As stated, [declarant] has not stated anything about this.
If no struggle has taken place, the suspect has apparently shot in the direction of [declarant] in such a way that he has been hit in the face. Such a shooting is potentially fatal, as evidenced not only by the aforementioned FARR statement (see footnote 10) but must also have been clear to the suspect.
If a struggle has indeed taken place, it has in any case, as already considered above, not already occurred at the opening of the door on the threshold of the front door, as the suspect stated at the hearing on appeal, but in the living room . The suspect is to blame for the fact that this struggle took place, even if it had started because [declarant] tried to take the weapon from the suspect. After all, the suspect entered the home of [principal] with [co-suspect 1], both with a (re) loaded firearm in hand, after which [co-suspect 1] in the presence of the suspect was asked for drugs and / or whether money and [co-suspect 1] [declarant] have also struck the back of the head. In that struggle the apparently the trigger of the firearm was apparently persuaded by the suspect, otherwise, it must be assumed now that no other cause has become plausible, the suspect’s weapon would not have gone off. If the suspect has not already done so on purpose, he must have been able to understand that wrestling with a firearm in his hand and, so to be assumed, with his finger on the trigger, can so easily lead to the firearm going off. the intent on it and on hitting the victim with whom he is struggling must certainly be deemed to be present in a conditional sense. That the struggle may have started because [declarant] wanted to take the weapon away, does not change that. the weapon of the suspect. If the suspect has not already done so on purpose, he must have been able to understand that wrestling with a firearm in his hand and, so to be assumed, with his finger on the trigger, can so easily lead to the firearm going off. the intent on it and on hitting the victim with whom he is struggling must certainly be deemed to be present in a conditional sense. That the struggle may have started because [declarant] wanted to take the weapon away, does not change that. the weapon of the suspect. If the suspect has not already done so on purpose, he must have been able to understand that wrestling with a firearm in his hand and, so to be assumed, with his finger on the trigger, can so easily lead to the firearm going off. the intent on it and on hitting the victim with whom he is struggling must certainly be deemed to be present in a conditional sense. That the struggle may have started because [declarant] wanted to take the weapon away, does not change that. so easily can the firearm go off that the intent on it and on hitting the victim with whom he is struggling should certainly be deemed to be present. That the struggle may have started because [declarant] wanted to take the weapon away, does not change that. so easily can the firearm go off that the intent on it and on hitting the victim with whom he is struggling should certainly be deemed to be present. That the struggle may have started because [declarant] wanted to take the weapon away, does not change that.
22. The suspect has stated that he fired the second shot at [principal] when he fled, and he thought that [principal] who came after him took out a weapon. His shot in the direction of [principal] was not to hit him, but was a warning shot.
23. The suspect shot from a short distance (at most the length of a staircase between two floors) in the direction of [principal], while the suspect was fleeing. Under such circumstances, there must be, according to well-known standards, and so must also have been able to understand the suspect, a considerable chance that [principal] could be fatally struck in the abdomen, chest or head by that shooting. If it must already be assumed that the suspect did not shoot at [principal] in a targeted manner – in which case there is a deliberate intentional act on the death of [principal] – he has in any case had a conditional intention for the death of [principal].
24. The defense is concerned with regard to the latter
shot relying on putative storms. This appeal comes the
not accused the suspect. First of all, it cannot actually be established that [principal] followed the fleeing suspect and that he had something in his hand. Since the appeal to putative storms is based on this alleged factual fact and this factual fact cannot be established, the defense must already be rejected for that reason. Against the background of the fact that just before that [declarant] had suffered a gunshot wound through his cheek and jaw, the alleged fact is also not very plausible. If the factual alleged by the suspect should be assumed, the suspect will not appeal either
stormy weather now that he himself has created the situation in which he thought he was being attacked. After all, he and another armed man had invaded the house of [principal] to rob him and, just before he fled and shot the suspect, he had given a potentially fatal gunshot wound to the face.
25. The conclusion with regard to the shooting at [principal] is that the suspect had at least conditional intent on the death of [principal] by shooting at him twice. There is no evidence of premeditation, so that part of that part must be acquitted.
26. In the opinion of the Court of Appeal, [co-suspect 1] can be considered as co-perpetrator, now that the plan to rob [declarant] and, if necessary, use firearms with it came from [co-suspect 1], [co-suspect 1] the suspect with the has given a firearm in view of the robbery and has asked to go inside, [co-suspect 1] has entered the premises of [principal], [co-suspect 1] has started violence against [principal] and has also shot at a visitor who happened to be present at [declarant] ([victim B]). In the opinion of the court of appeal, this results in a sufficiently close and conscious cooperation to be able to speak of co-perpetrators of the attempted homicide on [principal].
Acquittal
In view of the above, the Court of Appeal is of the opinion that it has not been proved legally and convincingly that what was implicitly charged primarily to the accused under 1 and under 2, so that the accused should be acquitted of this.
Proof of declaration
The Court of Appeal considers that it has been legally and convincingly proven that the suspect committed the charges under 2 implicitly in the alternative and 3, on the understanding that:
2.
he on 10 December 2015 in Rotterdam for the execution of the crime intended by the accused to intentionally rob a person named [declarant] together and in association with another, together and in association with another, with that purpose, has repeatedly fired bullets with a firearm at, at least in the direction of, that [declarant] that hit [declarant] in the body and face, being the execution of that proposed crime not completed;
3.
on 10 December 2015 in Rotterdam, a weapon as referred to in Article 2, paragraph 1, category III under 1 of the Weapons and Ammunition Act, namely a firearm within the meaning of Article 1 under 3 of that law, in the form of a revolver.
What has been charged more or differently has not been proven. The suspect must be acquitted of this.
To the extent that language and / or writing errors occur in the indictment, these have been corrected in the statement of evidence. It appears from the proceedings at the hearing that the defendant was therefore not harmed in the defense.
Evidence
The Court of Appeal based its conviction that the suspect had committed the proven statement on the facts and circumstances contained in the means of evidence and that gave cause for the proven statement. These means of proof are described in more detail in paragraphs 6, 7, 8, 9, 18, 21, 23, 25 and 26, with reference to their locations in the accompanying footnotes.
Punishability of the proven
The stated implicitly subdiair under 2 yields:
co-perpetrating attempted homicide.
The certified proven under 3 yields:
Acting contrary to Article 26, paragraph 1, of the Weapons and Ammunition Act and the offense committed with regard to a firearm of category III.
Punishability of the suspect
No circumstance has become plausible that excludes the suspect’s punishability. The suspect is therefore punishable.
Punishment justification
The Court of Appeal determined the punishment to be imposed on the basis of the seriousness of the facts and the circumstances in which they were committed and on the basis of the person and the personal circumstances of the suspect, as evidenced by the investigation at the hearing.
The Court of Appeal in particular has taken the following into account. The suspect went to the victim’s home with another person. Before they entered the house they armed themselves with ready-to-fire firearms. Upon entering the living room of the home, the co-perpetrator shot a man who happened to be in the affected home, and the suspect shot the victim in his face, and later on the stairs in his hip / pelvis. With his actions, the suspect committed a serious offense with far-reaching consequences for the victim and his loved ones. As a result of the first shot fired by the suspect, the jaw of the victim was broken in several places. He has lost his teeth and molars and his tongue had to be attached. To this day, the victim suffers from complaints and limitations; he cannot chew his food and has trouble talking. It is unclear whether the victim will fully recover from his injuries. This brash action, the reason for which is a (failed) drug deal, has literally and figuratively drawn the victim to life. There is perceptible psychological suffering in the victim due to re-experiences. The actions of the suspect must also have caused enormous pain to the family and friends of all involved. The actions of the suspect and his co-perpetrator also contribute to feelings of insecurity in society. A criminal offense such as the present has a shocking nature to the legal order. Also the possession of a weapon,
The Court of Appeal took into account an extract from the Judicial Documentation of 18 September 2019 concerning the suspect, which shows that although the suspect had not previously been irrevocably convicted of committing an offense in the Netherlands, the Court also took into account the probation report of November 4, 2016, which shows that the suspect was convicted in Sint Maarten in 2009 at the age of 14 for a fatal stabbing, for which he was sentenced to 4 years in prison and the TBR measure. He was allowed to undergo the TBR measure in the Netherlands as a pipe measure. At the time of the proven facts, he was only three months off, namely since August 7, 2015, free.
In addition, the court of appeal took into account the report of the NIFP location Pieter Baan Center of March 14, 2019. This report shows that the suspect – who initially requested the case to be arrested at the court’s hearing on March 28, 2018 so that he could cooperating in an investigation of his mental capacities in the Pieter Baan Center – has refused to cooperate in that investigation and, partly because of this, no morbid disorder and / or poor development of the mental capacities can be established. The investigators can therefore not substantiate a possible effect of this on the indictment, nor can it be substantiated that the suspect has been less able to determine his will in freedom.
Taking all things into account, the Court of Appeal is of the opinion that the facts that have been proven can only be responded to with a long-term prison sentence and that an entirely unconditional prison sentence of a specified duration constitutes an appropriate and offered response.
Claim for compensation
In the present criminal proceedings, [declarant] joined the injured party and filed a claim for compensation for material and non-material damage suffered as a result of the charges against the accused under 2, to an amount of € 47,960.59, plus € legal interest.
On appeal, this claim is relevant up to the amount claimed in first instance and maintained on appeal.
The Advocate General has requested that the claim of the injured party be jointly and severally awarded to an amount of € 17,960.95, consisting of € 7,960.59 for material damage and € 10,000 for non-material damage plus statutory interest and with imposition of the compensation measure. The Advocate General has concluded that, for the rest, the injured party must be declared inadmissible in the claim.
The suspect did not contest the claim of the injured party and declared himself willing to pay the claimed compensation. Counsel has agreed with the Advocate General’s position on this.
In the opinion of the court of appeal, the injured party has not demonstrated by the defense to demonstrate that material damage has been incurred up to an amount of € 7,960.59. This damage is a direct consequence of the proven under 2. The claim of the injured party will therefore be jointly and severally granted up to that amount, plus the statutory interest demanded on this amount from 10 December 2015 until the date of full payment.
The Court of Appeal is furthermore of the opinion that it has become plausible that immaterial damage has been suffered and that this damage is the direct result of the proven under 2. Attention is drawn to the serious and permanent jaw injury, the injury to the tongue and teeth, the change in appearance, the permanent hindrance and limitations when eating and talking and moving, the scars and the traumatic impact on the victim of what happened to him . The claim lends itself – in accordance with the standards of fairness – for joint and several assignment to an amount of at least € 30,000, plus the statutory interest demanded on this amount from December 10, 2015 until the date of full payment.
For the rest, treatment of the claim of the injured party leads to a disproportionate burden of the criminal proceedings in the opinion of the court of appeal.
The Court of Appeal will therefore determine that the injured party is otherwise inadmissible in the claim for compensation for the damage suffered. This can be brought before the civil court to that extent.
This means that the accused must be ordered to pay the costs incurred by the injured party in relation to the claim up to this judgment, which costs the court of appeal currently estimates at nil, and the costs incurred by the injured party for the benefit of the accused. implementation of this judgment.
Payment to the State for the benefit of the victim
Now it is certain that the suspect up to an amount of
€ 37,960.59 is liable for the damage caused by the proven statement, the court will impose a joint and several obligation on the suspect to pay that amount to the State for the benefit of the victim [declarant].
Applicable legal requirements
The Court of Appeal has considered Articles 36f, 45, 47, 57 and 287 of the Criminal Code and Articles 26 and 55 of the Weapons and Ammunition Act, as they are legally applicable or applicable.
DECISION
The court:
Destroys the judgment that appeals and does justice again:
Explains that it has not been proven that the accused committed the charges under 1 and under 2, and acquits the accused of this.
Declares, as considered above, proven that the suspect committed the charges under 2 implicitly in the alternative and 3 charged.
Does not explain what the accused is charged more or differently than has been proven above and acquits the accused of this.
Declares the offense declared implicitly subsidiary under 3 and punishable under criminal law, qualifies this as stated above and declares the suspect punishable.
Sentences the suspect to imprisonment for 8 (eight) years .
Recommends that the time spent by the suspect in any form of pre-trial detention referred to in article 27, paragraph 1, or article 27a of the Penal Code prior to the execution of this judgment, will be deducted in the execution of the imposed prison sentence , in so far as that time has not already been deducted from another penalty.
Claim of the injured party [declarant]
Allocates the claim for damages from the injured party [declarant] in respect of the evidence proven under 2 to the amount of € 37,960.59 (thirty-seven thousand nine hundred and fifty-nine cents) consisting of € 7,960.59 (seven thousand nine hundred and sixty-nine euros and fifty-nine cents) ) material damage and € 30,000.00 (thirty thousand euros) for non-material damage, for which the suspect is jointly and severally liable for the entire amount with the co-perpetrator (s), plus the statutory interest from the commencement date below until the date of payment .
Declares the injured party otherwise inadmissible in the claim and determines that the injured party can only bring the claim before the civil court.
Orders the suspect to pay the costs incurred by the injured party and still to be incurred for the purposes of enforcement, estimated at nil until the date of this judgment.
Imposes on the suspect the obligation to pay to the State, for the benefit of the victim named [declarant], an amount of € 37,960.59 (thirty-seven thousand nine hundred and sixty-nine cents) consisting of € 7,960.59 (seven thousand nine hundred and sixty-nine cents) material damage and € 30,000.00 (thirty thousand euros) of non-material damage , in the absence of payment and redress replaced by 224 (two hundred and twenty-four) days of detention, plus the statutory interest from the following referred to as the commencement date until the date of payment , on the understanding that the application of such detention does not cancel the obligation to pay compensation to the State for the benefit of the victim.
Determines that if and insofar as the suspect or his co-perpetrator (s) has met one of the two payment obligations, the other will lapse.
Determines the start date of the statutory interest for the material and non-material damage on 10 December 2015.
This judgment was delivered by Mr. WPCM Bruinsma,
LF Gerretsen-Visser LL.M. and OEM Leinarts LL.M., in the presence of S. Imami-Kalloemisier LL.M.
It was pronounced at the public hearing of the court of 16 October 2019.
1Official report of the hearing of the suspect before the examining magistrate in the Rotterdam District Court, dated 9 September 2016, pages 1 to 4.
2Official report of interrogation AM [co-suspect 1] dated 29 February 2016, pages 616 to 617.
3Official report of the hearing of the suspect before the examining magistrate in the Rotterdam District Court on 9 September 2016, pages 4 to 5; official report of interrogation AM [co-suspect 1] dated 11 February 2016, pages 586 and 29 February 2016, pages 611 through 612.
4Official report of the hearing of the suspect before the examining magistrate in the Rotterdam District Court, dated 9 September 2016, pages 4 and 5; official report of hearing witness [declarant], dated 22 December 2015, pages 841 through 842.
5Official report of interrogation AM [co-suspect 1] dated 4 February 2016, p. 524.
6Official report of interrogation witness [declarant], dated 22 December 2015, pages 841 to 842. Official report of interrogation AM [co-suspect 1] dated 11 February 2016, p. 584.
7Official report of unnatural death of 27 December 2015, pages 896 through 897; NFI report ‘Pathology investigation following a possible non-natural death’, dated 16 February 2016, prepared and signed by M. Buiskool, p. 63.
8Official report of the hearing of the suspect before the examining magistrate in the Rotterdam District Court, dated 9 September 2016, p. 5.
9Minutes of the application for the appointment of an expert of 19 December 2015, pages 125 to 129; official report of the traces investigation of 8 January 2016, pages 223 to 226; NFI report ‘Weapon and ammunition investigation following a shooting incident in Rotterdam on December 10, 2015’, dated January 28, 2016, prepared and signed by W. Kerkhoff; Official report application expert appointment dated 26 April 2016, PL1700-2015435150-173; NFI report ‘Weapons and ammunition investigation following a shooting incident in Rotterdam on December 10, 2015, dated June 24, 2016, prepared and signed by W. Kerkhoff.
10FARR medical information / injury description regarding mr. [declarant] dated 24 December 2015 and 1 April 2016 respectively, prepared and signed by KE van den Hondel and JR van Leeuwen, respectively.
11Minutes of the hearing of the accused with the examining magistrate in the Rotterdam District Court, dated 9 September 2016, p. 6; Official record of investigations of traces of 2 February 2016, p. 373; NFI report ‘Hair investigation, investigation of biological traces and DNA investigation following a shooting incident with a fatal outcome in Rotterdam on 10 December 2015’, dated 4 February 2016, prepared and signed by JLW Dieltjes.
12Official report of the hearing of the accused with the examining magistrate in the Rotterdam District Court, dated 9 September 2016, p. 6; official report of interrogation AM [co-suspect 1] dated 29 February 2016, pages 616 to 618.
13Official report of the hearing of the suspect before the examining magistrate in the Rotterdam District Court on 9 September 2016, pages 4 to 5.
14Official report of interrogation AM [co-suspect 1] with the commissioner at this court of justice on 7 August 2018, pages 2 to 3.
15Minutes of the hearing of the suspect before the examining magistrate in the Rotterdam District Court on 9 September 2016, p. 5.
16Official report of interrogation AM [co-suspect 1] dated 11 February 2016 ,. P. 584.
17Official report of interrogation [declarant] dated 22 December 2015, pages 841 through 842.
18Official report of interrogation [principal] dated 4 February 2016, p. 871.