Excerpt
Criminal Justice Department
Prosecution number : 20-002005-15
Verdict : November 21, 2016
Judgment of the Plenary Criminal Chamber of the Court of Appeal
's-Hertogenbosch
noted the appeal filed against the judgment of the District Court of East Brabant dated June 11, 2015 in the criminal case with public prosecutor's office number 01-879634-14 against:
[defendant] ,
born in [place of birth] on [date of birth] ,
currently residing in PI Zuid West - De Dordtse Poorten in Dordrecht.

Appeal
By judgment of which appeal, the defendant was sentenced to a term of imprisonment of 18 years, less remand, for - in short - co-perpetration of murder.
The defendant has appealed the aforementioned judgment.

Case investigation
This judgment was delivered as a result of the examination at the appeal hearing, as well as the examination at the first instance hearing.
The court took note of the claim of the two attorneys general.
The attorneys general have demanded that the court set aside the judgment of which appeal and, sitting again, sentence the defendant to imprisonment for a term of 18 years with deduction of remand.
Defendant's two counsel argued acquittal of the charges.

Judgment of which appeal
The judgment appealed from will be set aside because it is inconsistent with the decision below.

Indictment
The defendant was charged - after amendment of the indictment at the first instance hearing - with:
he on or about 27 February 2014 in Eindhoven together and in association with another person or others, at least alone, intentionally and with or without premeditation robbed [victim] of his life, after all the accused and/or (one or more of) his co-perpetrator(s) with that intention and with or without calm deliberation and peaceful consultation fired with one or more firearm(s) (several times) one or more bullet(s) in the direction of said [victim], whereby said [victim] was hit by one or more of those bullet(s), as a result of which said [victim] died.

Language and/or clerical errors or omissions in the indictment have been corrected. The defendant's defense was not prejudiced as a result.

Exoneration
Established facts
In its judgment the Court will start from the established facts to be mentioned below. In doing so, the Court of Appeal considers that it only concerns those facts, about which - because of the investigation conducted into them on the correctness of the corresponding evidence - there is no longer any discussion.
The court - with this starting point - establishes the following established facts:
- On February 27, 2014 between 9:20 p.m. and 9:24 p.m., [victim] was shot at by one or more persons in the parking lot of the [place] in Eindhoven (hereinafter: crime scene 1), immediately after he got out of his car. These persons or one of them, used at least two firearms in the process. [victim] was hit seven times. After [victim] came under fire, two persons drove away on a motor scooter. This motor scooter was left burning a short time later at the [scene 2] in Eindhoven (hereinafter: scene 2) at a distance of approximately 1,400 meters from scene 1. The identity of the motor scooter could no longer be established due to the falsified identification data and the fire.
- On February 28, 2014 at 2:41 a.m., [victim] died of his injuries at the Catharina Hospital in Eindhoven. More specifically, he died from bleeding in the abdomen and chest cavity caused by perforating force of multiple bullets.
- On the day of the attack on [victim], four people were in contact with each other via specially used telephone numbers (ending with [phone number 1] , [phone number 2] , [phone number 3] and [phone number 4] ) via text messages. Through these phones, the users were kept informed of [victim]'s movements shortly before the attack.
- The phone numbers ending in [phone number 2] and [phone number 4] were purchased by [co-defendant 1] and defendant, respectively, on the day of the attack on [victim].
- Transmitter data show that users of the telephone numbers [phone number 2] and [phone number 4] may have been at crime scene 1 at the time of the attack and at crime scene 2 shortly after the attack (eight to nine minutes later). Places located at a relatively short distance from each other (1,400 meters as the crow flies).
- After the murder of [victim], [co-defendant 2] and [co-defendant 3] (through [co-defendant 2] ) were pressured several times by [co-defendant 1] to pay money.

No direct (objective factual) evidence
The court of appeal has established with the defense that at or near the two crime scenes no traces have been found and secured that directly link (one of the) suspect(s) to the attack on [victim] . Nor have (eye) witnesses testified about the presence of the suspect(s) there or giving the order to carry out the attack. The suspects deny being involved in the murder of [victim] or have consistently invoked their right to remain silent.
Precisely because of the absence of such evidence, the court very cautiously assessed and valued the other (circumstantial) evidence presented by the court and cited by the attorneys general.

Phone number [phone number 4]
According to the court and the attorneys general, the defendant's involvement in the murder of [victim] would be evident (among other things) from the fact that the defendant was the user of the phone number ending in [phone number 4] . This phone number and a corresponding phone were purchased by the defendant on February 27, 2014 at the Kijkshop in Eindhoven.
Defendant stated at the appeal hearing with regard to that purchase - in brief and to the point - that on the afternoon of February 27, 2014, he drove with [fellow suspect 1] , in [fellow suspect 1] 's mother's car, to Eindhoven. After visiting the tanning salon, [co-defendant 1] told defendant to buy a phone. Suspect waited outside the Kijkshop. Because [co-defendant 1] needed three cell phones and was only allowed to buy two at the Kijkshop, [co-defendant 1] asked defendant to buy the third cell phone for him. After the purchase, defendant put the phone he bought in the bag with the phones bought by [co-defendant 1]. He placed that pouch in [co-defendant 1]'s mother's car. He did not see the phone after that and he did not use the phone number in question ( [phone number 4] ) either. After all, I had bought these for [co-defendant 1], according to the defendant.
The court of appeal has taken into account that the accused made this statement only during the appeal proceedings and therefore after having taken cognizance of the entire case file. Nevertheless, this statement by the accused has created reasonable doubt for the court of appeal whether the accused was the user of the number ending in [phone number 4].
This doubt is magnified because defendant's testimony regarding the course of events in the purchase of the telephone and phone number finds support in the following facts and circumstances.
- The branch manager of the Kijkshop in question confirmed that a maximum of two prepaid phones could be purchased per transaction (see the additional official report 'Kijkshop purchase of phones' dated January 22, 2016).
- Based on the camera footage viewed at the appeal hearing, the court found that [co-defendant 1] bought and paid for two phones. [fellow suspect 1] then disappears from view. A short time later, [fellow suspect 1] and defendant come into view again. They are in contact with each other. [fellow suspect 1] then buys a phone and, while the saleswoman is busy handling the sale, [fellow suspect 1] gives a bag containing the two phones he just bought to suspect. Suspect puts the third phone in the bag and, after the sale, walks back out of the picture with the bag containing three phones.
- The receipts from both transactions show that [co-defendant 1] bought €10 in credit three times in addition to two cell phones. At 2:28 p.m., defendant purchased only a cell phone (p. 1010 and 1011).
In view of the foregoing, the court considers the defendant's statement that he purchased the telephone and the phone number ending in [phone number 4] for [co-defendant 1] and that he was not the user of this phone number to be plausible.
Statements [co-defendant 3]
According to the attorneys general, the defendant's involvement in the murder of [victim] , would also be evident from [co-defendant 3]'s statement to the hearing officer dated April 20, 2016.
At the examining magistrate on April 20, 2016, [co-defendant 3] stated - insofar as relevant here and summarized - that she and [co-defendant 2] were pressured and threatened by (among others) defendant and [co-defendant 1] to pay money. The payment pressure and threats were related to cocaine that had been in her home. Because she no longer wanted narcotics in her home, she gave the cocaine to her lover [co-defendant 2]. Thereafter, she was threatened (among other things) at the door of her residence by the defendant. During the time she was texting, in early March 2014, [co-defendant 3] knew that she had been texting with defendant, among others. Through [co-defendant 2], [co-defendant 3] allegedly obtained defendant's phone number. When asked if she knew who was behind the murder, [co-defendant 3] stated that her suspicions were confirmed when [co-defendant 1] and defendant were arrested.
The court of appeal is faced with the question whether the statements of [co-accused 3] are reliable and plausible. The court of appeal answers this question in the negative as far as it concerns the threats. In its judgment the court of appeal has taken into account the following circumstances.
i. Varying statements [co-defendant 3].
has given varying statements. To the police on March 4, 2014, she stated (among other things) that she had been threatened by [person 1] , pursued by a Lexus with [license plate number] and threatened by a person nicknamed "Carp" (pp. 440-450). The police conducted extensive investigations into the alleged threateners and the Lexus.
Only at the examining magistrate's office - and therefore after learning of the results of these investigations and after learning of the telephone contacts showing that [fellow suspect 3] and [fellow suspect 2] had been pressured by [fellow suspect 1] to pay - did [fellow suspect 3] state that she had (also) been threatened by the defendant and [fellow suspect 1] .
ii. Straying [person 1].
On the occasion of the aforementioned interrogation of [co-defendant 3] on March 4, 2014, she provided descriptions of the alleged threateners and commissioned composite drawings of two of the threateners (pp. 440-450, 455 and 456).
On March 6, 2014, the following text conversation took place between [co-defendant 3] ( [phone number 7] ) and [co-defendant 2] ( [phone number 6] ):
[Co-defendant 3] : "They have one and several on eye.
[co-defendant 2] : "You just said they are going to pick up two but who then", "You just said they are going to pick up two right away what corner are they going to go then" and "?".
[co-defendant 3] : "Other angle have misdirected" and "Had to take ffoto".
[co-defendant 2] : "Ok not in this corner so" (p. 4188) (emphasis added by the court).
On March 11, 2014, [co-defendant 3] ( [phone number 7] ) filed a Report Crime Anonymously (MMA) report in which she stated that she overheard [person 1] in the café talking about his intention to kill [victim]. [co-defendant 3] then said that she did not know [victim] herself (p. 1423 and 2328).
Based on these facts and circumstances, the court concludes that [co-defendant 3] deliberately led the police astray. This conclusion finds support in the circumstance that after extensive investigation by the police, no indications have emerged that confirm the statements of [fellow suspect 3] about the threats of [person 1] and a person with the nickname 'Carp', nor that the mentioned Lexus had anything to do with defendant and/or [victim] (p. 1420-1434).

iii. Straying [witness 1].
On February 19, 2015, detainee [witness 1] , who was detained with [co-defendant 3] in the Ter Peel Detention Center in Evertsoord, showed a letter to a Penitentiair Inrichtingswerker (hereinafter: PIW worker). On the front of the bill were key words/phrases related to (the murder of) [victim] . On the back side a person was drawn, indicating places on that person's body where there were tattoos and a scar (see the report drawn up by the PIW-er dated February 24, 2015, attached separately and appendices 1 and 2 attached behind the record of interrogation of suspect dated November 25, 2015). In it, [witness 1] told that she was threatened by [co-defendant 3] to take up her crime.
Based on these facts and circumstances, the court concludes that [co-defendant 3] attempted to set up a new diversion.

iv. Reconciling statements of [co-defendant 2] and [co-defendant 3].
The file shows that, shortly before and after the murder of [victim], [co-defendant 3] and [co-defendant 2] were in constant telephone contact with each other via SMS/Whatsapp messages with phone numbers that were replaced each time after a relatively short time. This through phone numbers that were mainly used for contacts with each other (pp. 4170-4212). During the contacts with these "secret numbers" between [co-defendant 2] and [co-defendant 3] there were also discussions about what had to be declared to the police (see, e.g., p. 4179). That statements between the two were coordinated is also evident from the content of an OVC conversation dated June 16, 2014 (p. 3329-3333).
v. Plausibility scenario cocaine
Furthermore, in the opinion of the court of appeal, the scenario put forward by [co-accused 3] that she and [co-accused 2] were put under pressure and threatened by (among others) [co-accused 1] and the accused to pay money for cocaine which would not have been paid by [victim] , and which had been lying at [co-accused 3]'s home at the time of [victim's] detention, is also in itself implausible. After all, the court fails to see why, if [fellow defendant 3] gave cocaine to her lover [fellow defendant 2], [fellow defendant 2] did not, after the pressure and threats, either return the cocaine or the money earned from it to [fellow defendant 1] or the defendant. After all, [co-defendant 2] acknowledged dealing in narcotics, so the court assumes that he had the channels to sell the cocaine.
Sub-conclusion
In view of what has been considered above under i to v., the court of appeal considers the statements of [co-suspect 3], including her statement made at the examining magistrate's court dated April 20, 2016 concerning threats by defendant and text message contacts with defendant, unreliable. Therefore, the court of appeal considers the statement of [co-suspect 3] made before the examining magistrate on April 20, 2016, not usable for the evidence, so that on the basis of that statement the phone number [phone number 4] cannot be linked to defendant either.

Transmitter data [phone number 4].
What remains is the police's observation that the number [phone number 4], during the period it was active, radiated simultaneously on the same transmitter mast a number of times together with a number in use by the defendant ( [phone number 5] ) (p. 2824). This mere observation is, in the opinion of the court, insufficient to link the defendant as a user to the phone number ending in [phone number 4].

Conversations about payments
According to the court and the attorneys general, the defendant's involvement in the murder of [victim] , would also be evidenced by the content of text and Whatsapp messages related to payments made by [co-defendant 3] .
In this regard, the attorneys general have specifically referred to the text messages sent by [co-defendant 2] ( [phone number 6] ) to [co-defendant 3] ( [phone number 7] on March 5, 2014 at 8:54 p.m. and 9:08 p.m., containing: "Yes, appointment was three days later now is six days later that one boy has come back from Turkey in anger" and "Yes one from Turkey wants to come back yes he wants to see pennies" (emphasis by the court). It is established that the defendant on
left for Turkey on February 28, 2014, and left Turkey for the Netherlands on March 5, 2014. While his travel companion, [witness 2] , did not return until March 10, 2014. On this basis, the attorneys general and the court conclude that the defendant was the one who returned from Turkey earlier because he wanted to receive money from [co-defendant 3] .
In the opinion of the court of appeal, the defense, substantiated by documents from, among others, the airline, has shown that the accused already booked a return ticket to Turkey on February 25, 2014, with the date of the return flight being March 5, 2014. Therefore, the court cannot establish with sufficient certainty that the defendant was the person who would have returned from Turkey (earlier) out of anger because he wanted money from [co-defendant 3].
Nor can the court establish that the defendant left for Turkey the day after the murder because he wanted to be "off the radar," as suggested by the attorney general. The defense has shown - supported by documents - that it was a pre-booked trip with a friend.

Other evidence
The other pieces of evidence in the case file are, in the court's opinion, insufficiently conclusive to link defendant with a sufficient degree of certainty to the murder of [victim] .

Conclusion
On the basis of the foregoing, the court of appeal considers that there are leads in the case file from which it appears that there is a relationship between the murder of [victim] and the accused. Therefore, the court of appeal considers it incomprehensible that the accused did not disclose the matter in the first instance and, for example, did not declare about his travel movements to Turkey and the reasons for this. However, in the opinion of the court of appeal it cannot be legally and convincingly proven that the accused was involved in the murder of [victim] . The pieces of evidence reproduced by the court and cited by the advocate general are - also viewed together - insufficiently conclusive for that purpose.

Lifting of pretrial detention
As a result of this decision, pretrial detention should be lifted as of today.

Conditional request
The attorneys general requested that, should the court consider acquitting defendant, the statement of [co-defendant 3] made at the court hearing dated October 24, 2016 be added to defendant's file. In this statement, [co-defendant 3] would have repeated her statement made to the hearing officer dated April 20, 2016, insofar as she knew that she texted with defendant.
Now that the stipulated condition has been met, the court should rule on the attorneys general's conditional request.
In view of what has been considered above with regard to the unreliability of [co-defendant 3]'s statements, the court does not deem it necessary to add the statement of [co-defendant 3] made at the court hearing dated October 24, 2016, to defendant's file.
The court denied the request.

DECISION
The court:
Annuls the judgment of which appeal and redoes justice:
Declares not proven that the accused committed the charges and acquits the accused.
Rejects the conditional request of the attorneys general to insert the statement of [co-defendant 3] made at the court hearing dated October 24, 2016 into the defendant's file.

Revokes remand custody effective immediately.
Thus pointed out by
Mr. A.M.G. Smit, chairman,
Mr. A.R.O. Mooy and Mr. P.J. Hödl, counsel,
in the presence of R.P. van der Pijl, Registrar,
and pronounced in open court on November 21, 2016.