Closing speech of the Public Prosecution Service day 3 (22 December 2021)
On Monday 20 December, Tuesday 21 December and Wednesday 22 December 2021 the Public Prosecution Service presented its closing arguments in the MH17 case. For the presentation on day 3 please read the text below.
7 Sentence demanded
7.1 Introduction
We have now come to the sentencing demand. Girkin, Dubinskiy, Pulatov and Kharchenko are guilty of causing flight MH17 to crash and of the murders of all 298 persons on board. Given the nature of these offences and the severity of their consequences, it is obvious that the defendants should be given long prison sentences. In determining how long we believe those sentences should be, we take into account not only the nature and the consequences of the offences, but also sentences imposed in other cases, the roles of the defendants, their conduct in these proceedings, their personal circumstances and the passage of time. We will now discuss these factors in more detail and then come to our conclusion, having weighed up all these factors. Lastly, we will formulate our sentencing demand.
7.2 Nature of the offences
First we will discuss the nature of the offences.
7.2.1 Applicable provisions of criminal law
The offences committed by the defendants are among the most serious of all the offences in the Dutch Criminal Code. Causing an aircraft to crash resulting in a person’s death (article 168 of the Criminal Code) and murder (article 289 of the Criminal Code) carry the same maximum sentence. As we pointed out earlier, the defendants cannot be punished doubly, for these offences, so only one of these two provisions can be applied. Of these two provisions, the one containing the offence of causing an aircraft to crash, resulting in the deaths of those on board (article 168 of the Criminal Code) was drafted with specifically these circumstances in mind. This provision serves to protect aviation and life.
After the crash of MH17, the United Nations Security Council reiterated the importance of aviation safety. In resolution 2166 of 21 July 2014, the Security Council emphasised the following:
‘Reaffirming the rules of international law that prohibit acts of violence that pose a threat to the safety of international civil aviation and emphasizing the importance of holding those responsible for violations of these rules to account (...)’.
The Dutch legislature has attributed great importance to these interests, i.e. the protection of aviation and life, as have the legislatures of other countries. This is expressed in the maximum sentence for this offence. The maximum sentence for causing an aircraft to crash, resulting in the deaths of those on board, is the same as for murder: life imprisonment or a determinate term of imprisonment not exceeding 30 years.
In the case of the offence of causing an aircraft to crash, resulting in a person’s death, the severity is determined by the perpetrator’s intent to cause any aircraft to crash. It does not matter whether the aircraft is military or civilian. This is logical, because an act of violence against any type of aircraft presents a great danger. The risks cannot be controlled and the potential consequences for the lives of those on board and for people on the ground are enormous. That is why the perpetrator of this offence (article 168) does not need to have intent with regard to the deaths of those on board. After all, the key issue is the great danger that results from causing an aircraft to crash, not the perpetrator’s intent with regard to the specific consequences thereof. In determining the applicability of this provision it is therefore irrelevant whether or not a defendant wanted the fatal consequences to happen. The eventual consequences do, however, in part determine the severity of the offence and thus the sentence. A sentence of life imprisonment for this offence can be imposed precisely because of the aggravating consequence, i.e. the deaths of those on board. The interests of the protection of aviation and of life are of key importance in this respect.
Aviation crimes are by their very nature so serious that this factor alone justifies a very long prison sentence. The same is true if we look at the specific details of this case.
7.2.2 Unlawful acts of war
The defendants together requested a Buk missile system and took it over from the Russian Federation. They deployed this Buk TELAR for their own armed combat operations. They used the Buk as their own weapon and shot down MH17 with it.
The fact that they did this in the course of an armed conflict cannot be taken into account to the advantage of the defendants. As we have said previously, war is not a licence for everyone to inflict violence on everyone else. That is why immunity for acts of war is granted only in exceptional cases. It is granted only in regard to the use of force by regular military personnel who are recognisable as such, fighting under the responsibility of a state and in an organisational form that respects international humanitarian law. This did not apply to the defendants. In legal terms they were ordinary citizens who were not allowed to use any form of force or violence. Against any target whatsoever, whether civilian or military. The violence used by the defendants was therefore unlawful.
The act of violence committed by the defendants differs from other situations in which civilian aircraft have been shot down unintentionally with military weapons, such as the Ukrainian passenger aircraft that was shot down by the Iranian air force in 2020, the Russian passenger aircraft that was hit by Ukrainian air defence in 2001 and the downing of an Iranian civilian aircraft by a US naval vessel in 1988. These were fatal mistakes, made during a military exercise or by armed forces who thought they were defending their own country. In these cases, the deadly weapon was in the hands of authorised and regulated personnel. Moreover, these were military mistakes for which at least some degree of responsibility was acknowledged. That is of key importance. It is important for the next of kin that clarity be provided and responsibility taken. It is also important to prevent, as far as possible, similar tragedies from occurring in the future. Effective investigation, transparency about what is established as a result of that investigation, and where possible punishment of the perpetrators is not only a moral duty to the next of kin, but also a legal obligation under international human rights conventions.
In armed conflicts, the boundary between lawful and unlawful actions must be guarded closely. Otherwise war does become a licence for everyone to inflict violence on everyone else. That is why in principle unlawful acts of war must be punished in the same way as any other civilian use of violence.
In this case there is no reason to deviate from this principle. In this respect we would like to recall the context in which the defendants were fighting: as self-proclaimed volunteers they had joined an armed group fighting under its own flag. As mentioned previously, in the summer of 2014 the defendants’ armed group had no respect for international humanitarian law. This is clear from various neutral, international sources. According to those sources, in 2014 the DPR was committing systematic and large-scale violations of international humanitarian law. This concerned thousands of instances of looting, detention of civilians, torture, inhuman treatment and execution of civilians and prisoners of war, the placing of prohibited land mines, and many other offences in contravention of international humanitarian law. The same international sources have observed that in 2014 the DPR was conducting a reign of terror in the area under its control, where nobody was safe. For example, on 15 July 2014, two days before flight MH17 was downed, the Office of the United Nations High Commissioner for Human Rights wrote that in eastern Ukraine the rule of law no longer existed and had been replaced by the rule of violence. And also:
‘The armed groups fighting in the east must abide by international law but unfortunately this has not been the case. Grave human rights abuses have been committed by those armed groups. And it must be remembered that these groups have taken control of Ukrainian territory and inflicted on the populations a reign of intimidation and terror to maintain their position of control.’
As leaders of the DPR, the defendants were partly responsible for the ruthless fighting that was going on. Therefore their participation in the conflict cannot be considered a mitigating circumstance in relation to the sentence.
In short: The defendants were not allowed to take part in the armed conflict in Eastern Ukraine. They were not allowed to use any violence at all. Given their role in the conflict, the wartime context cannot be considered an mitigating circumstance. In that regard it makes no difference that the defendants wanted to shoot down Ukrainian military aircraft and that it was probably not their intention to hit a passenger aircraft. The key point is that the defendants were not allowed to use violence, that they did so anyway and in doing so endangered aviation and human lives, and that this danger in fact became reality.
7.2.3 Devastating violence
If we look in more detail at the violence used by the defendants, we have to conclude that it was devastating. The Buk missile detonated at the front left side of MH17, and hundreds of metal fragments penetrated the aircraft. The aircraft was then torn apart in mid-air. All 298 people on board were killed. Their names were read out at the start of this trial. The victims fell to the ground from high altitude, landing in fields, woods and villages. Their remains and their personal belongings lay there for weeks or even months before they could be repatriated. It took even longer for their remains to be identified. Of many of the victims, only a limited amount of – unrecognisable – remains were found. Of two of the victims no remains have been found; to this day they never been identified.
7.2.4 Planned violence
This devastating violence was not committed impulsively, but was planned and organised by the defendants. Even before 17 July 2014, they formed a close-knit, cooperating offender group that was focused, among other things, on downing Ukrainian military aircraft. They had already gained considerable experience: the defendants’ group had already hit several Ukrainian military transport, reconnaissance and combat aircraft. To satisfy their need for a heavier weapon, in July 2014 the defendants together organised a Buk TELAR in order to shoot down a subsequent aircraft from an even higher altitude. Then, in close cooperation, they planned and organised the deployment and protection of this Buk TELAR and used it to shoot down MH17. All that time, the defendants had the opportunity to take a step back and refrain from carrying out their planned acts of devastating violence. Instead, they kept on taking one step after another to carry out their deadly plan.
7.2.5 Indiscriminate violence
Generally speaking, anyone who enters into armed conflict knows that there will probably be civilian casualties. This is true of any armed conflict and thus also of the fighting that is central to this case. Pulatov says so specifically in his second video statement:
‘First of all I would like to express my opinion on the events that have taken place in the Donbas, that … war – these are always very serious events, that means the deaths of innocent people, it means the deaths of women, elderly people, children, of people who cannot defend themselves.
So the defendants knew when they joined the armed conflict that innocent civilians would be put in danger. In the fighting, they decided to deploy a heavier weapon with an even greater range and even more destructive power than the ones they already had at their disposal: a Buk TELAR. In doing so, they brought civilian aircraft within their deadly range.
The risk to civil aviation was also specifically foreseeable to the defendants. After all, it was widely known within their armed group that the airspace had not been closed and that passenger aircraft were flying over the conflict area. Girkin himself stated that around 15 June 2014 he had received a report about a Ukrainian four-engined civilian aircraft that had been seen flying at an altitude of two kilometres over a suburb of Slavyansk. In addition, various telephone conversations were recorded in which fellow fighters of the defendants reported having personally seen civilian aircraft in the sky. An Australian photojournalist stated that in the afternoon of 16 July 2014 she had sought cover somewhere between Torez and Donetsk, until she heard from DPR fighters that it was a civilian aircraft and that they saw civilian aircraft flying over every day. While one of the fighters was looking at the aircraft through his binoculars, the journalist took photos. We will show these photos now. On the left is a photo of the separatist with the binoculars and on the right is a photo of the passenger aircraft. The following day the Volvo truck carrying the Buk TELAR drove through the same area to the launch location.
The defendants therefore could have and should have taken account of the possibility that their Buk would hit a civilian target. There is no indication whatsoever that they stopped to consider this, nor that they took any kind of measures at all to prevent civilian casualties. On the contrary, they led their weapon to a launch location that was situated directly beneath a civil aviation route. We will now show you, in a single image, MH17’s route, the airway followed by MH17, and the launch location below it. Public information about the use of this airway by civil aviation was easy to obtain on 17 July 2014. In addition, MH17’s route and that of other passenger aircraft could be followed live via mobile phone applications such as Flightradar24.
Lastly, it follows from intercepted phone conversations and witness statements that intelligence about Ukrainian military aircraft was actively gathered and shared within the DPR. This intelligence was obtained by spotters, who monitored the airspace. The investigation into the intelligence work of these spotters revealed nothing to indicate that approaching civilian aircraft were reported in order to avoid mistakes.
If we consider how much time the defendants put into planning and organising the deployment of the Buk, it is all the more poignant how little attention they appear to have given to the risk of inadvertently shooting down a passenger aircraft. They have talked about the criminal case, but never about this. Girkin did state, in reference to a situation in June 2014, that Ukrainian armed forces consciously hid behind passenger aircraft, so that if a missile were launched it would hit the passenger aircraft. Girkin thus showed that he was aware of the risk that civilian aircraft could be shot down. There is no indication whatsoever that he took account of this possibility later, including on 17 July 2014. The same is true of Girkin, Dubinskiy, Pulatov and Kharchenko. In any case, the investigation revealed no indications of such consideration.
So not only was the violence committed by the defendants unlawful, devastating and planned, but the defendants also showed themselves to be indifferent to the danger they were thus creating for civil aviation.
7.2.6 Other involved parties
In addition to these four defendants, other parties have also come to our attention: those who decided to deliver the Buk TELAR and the crew members who fired the Buk missile. Particularly relevant are the Russians responsible for the handover of the TELAR with its crew to the defendants.
In 2014 the Russian Federation played a central role in the outbreak and continuation of the conflict in eastern Ukraine. The Russian Federation supported the proclamation of the so-called people’s republics and the ensuing armed conflict with Ukraine. Despite maintaining that it was not involved in the conflict, the Russian government targeted positions in Ukraine with artillery fire and sent more and more weapons across the border to keep the conflict going. One of those weapons was the Buk TELAR which, stripped of practically all its identifying markings, was smuggled across the border.
Like the defendants, the Russians responsible for the handover should have foreseen the risks they were creating for civil aviation and acted accordingly. However this does nothing to lessen the defendants’ own responsibility. Although the defendants were without a doubt under the influence of the Russian Federation, they themselves took the initiative to request stronger air defence and they themselves subsequently deployed the Buk TELAR they had received, at a location determined by them. When weapons of this kind are deployed in a conflict such as this one, the various participants cannot hide behind each other.
7.2.7 Conclusion
By shooting down MH17 with a Buk TELAR the defendants used devastating violence. They planned this violence beforehand and they organised it in close cooperation. Of the two provisions of criminal law that are applicable in this regard, i.e. murder (article 289 of the Criminal Code) and causing an aircraft to crash, resulting in the deaths of those on board (article 168 of the Criminal Code), the latter was drafted with specifically these circumstances in mind. That provision serves to protect aviation and life, and the offence it defines is among the most serious in the Criminal Code. That is why it carries the maximum sentence of life imprisonment or a determinate term of imprisonment of 30 years. This provision (article 168 of the Criminal Code) makes no distinction between causing a passenger aircraft or a military aircraft to crash. Given the endangerment that is inherent to the downing of an aircraft, the offence by its very nature is so serious that any act of violence against aviation must in any case be punished severely. For this offence it is also irrelevant whether or not a defendant wanted the fatal consequences to happen. Even in the event of unwanted fatal consequences, Dutch law provides for the maximum penalty.
The fact that the defendants shot down MH17 during an armed conflict is no mitigating circumstance in relation to the sentence. In legal terms, the defendants were civilians and were therefore not allowed to shoot at any aircraft, whether civilian or military. As DPR leaders they were co-responsible for the ruthless fight waged under that flag. By deploying the Buk TELAR they brought civil aviation within their deadly reach. The defendants were indifferent to that danger to civil aviation. In that respect they cannot hide behind any other persons involved. They personally had a duty to do everything in their power to prevent civilian casualties. After all, the defendants used the Buk TELAR as their own weapon, as part of their own military operation. There has been no indication whatsoever to suggest that the defendants stopped to consider for even a moment the danger they were causing to civil aviation.
The primary consideration in terms of the sentence is therefore that the defendants, as civilians, are guilty of devastating, planned and indiscriminate violence against an aircraft, resulting in the deaths of 298 people on board. If we look at the nature of these offences, it would in principle be fitting to impose the maximum sentence provided for by law: life imprisonment.
7.3 Seriousness of the consequences
As previously noted, besides the nature of the offences, we also look at the seriousness of their consequences. In this case, those consequences were extraordinarily severe.
7.3.1 298 victims
On 17 July 2014, flight MH17 took off from the Netherlands to fly to Kuala Lumpur. On board were 298 people of all ages, including 80 children. People of various nationalities, each with their own destination, plans and dreams. Some were going on the holiday trip of a lifetime, others were visiting family and yet others were travelling on business or returning home. And then there were the crew members: doing their jobs and making sure their passengers had a safe and comfortable flight to Malaysia.
None of these 298 people reached their destination. The journey ended abruptly. Family members stood waiting in vain at the airport. Those who had waved them off saw the flight disappear from their flight tracker app. The Malaysia Airlines crew members didn’t stand a chance of getting the aircraft, the passengers or themselves to safety.
A sum total of 298 people whose lives were suddenly and brutally ended. Whose futures were taken away: 298 people who can no longer go to school or university, get married, travel, or see their children or grandchildren grow up. 298 people who can no longer enjoy life. Because life, the most valuable possession a person can have, was taken away from these 298 people on 17 July 2014.
In September and on 8 November of this year, many of the next of kin spoke of the loved ones they lost. Others have told the court their stories in written victim statements. They have given the victims voices and faces, keeping the memories of the 298 victims alive throughout these proceedings.
7.3.2 Next of kin
But they have also shown us the enormous consequences the crash of flight MH17 has had for the thousands of next of kin. Their lives have been scarred forever, or even destroyed. Every victim has left behind countless loved ones: mothers, fathers, partners, children, grandfathers, grandmothers, brothers, sisters, aunts, uncles, other relatives, friends and colleagues. An immeasurable number of people have been affected by the downing of flight MH17.
Even without statements by next of kin or written victim statements it is obvious that it is horrific to lose a loved one to an act of violence. But these statements make it only too clear how much the downing of MH17 has overshadowed the lives of those left behind. Many of the next of kin have told the court and the world of the consequences they have suffered, and continue to suffer, as a result of these crimes. Each of their stories was different, but they were all very powerful. Each one was unique and personal, but there are connecting threads between them. They show what the next of kin have had to endure ever since the downing of MH17, and what the impact has been on their lives.
For them, there is life before MH17 and life after MH17. For them, life after MH17 began when it became clear that their loved ones were on that aircraft. Some received the news while on holiday themselves, others were at work and yet others were enjoying a barbecue with friends, or waiting for their family members to arrive on flight MH17. One of the next of kin describes the moment when their lives changed forever as follows:
'My sister phoned me in Perth, from Budapest - something about a plane coming down ... (…) I started to tremble... this isn’t happening — this can’t be true. I immediately started shaking and dropped to the floor.'
Another said:
‘I knew immediately that [my sister and brother-in-law - Public Prosecution Service] were on that plane and I panicked terribly. I screamed, lay on the floor, cried like I’ve never cried before, and lost my mind completely. I also immediately felt an unimaginable pain, I knew right away that my life had changed forever, even though I couldn't yet imagine at all what exactly the consequences would be.’
For some of the next of kin, the news of the MH17 crash is followed by a period of confusion, because it takes some time to confirm, on the basis of the passenger list, that their loved ones had indeed been on board.
And then comes the next moment: having to tell other people the terrible news. A mother or father has to be told that their child was no longer alive, or that a whole family had died in the crash. A brother or sister has to be told of the death of their sibling. A child has to be told that their mother or father had died. A class has to be told that their classmate would not be coming back to school, or that their teacher would never teach them again. How do you tell someone news that you know will change their life forever? And how does that affect the person sharing the news?
Next of kin describe it as follows:
‘On me falls the heavy task of phoning Mum and Dad. One of the hardest things I've ever done, telling my parents that their child is dead.’
And:
‘I felt like I had been punched in the stomach and couldn’t believe what I was watching. I couldn’t speak. My flatmate was home and I went into her room and motioned her to follow me into my room. I pointed at the television and said to her words to the effect of “Mum and Dad, Mum and Dad were on this plane”. I knew then that my parents were gone. I just knew.’
And:
‘I had to phone [him - Public Prosecution Service] to tell him his mother was gone, crashed with the aircraft, that she was no longer alive. (...) How do you tell a 15-year-old boy who has no one but his mother that his dear mother won’t be coming back.’
With the realisation that one or more loved ones have died on board MH17, the nightmare begins. It soon becomes clear they are victims of armed conflict. A conflict they generally knew nothing about and which they'd played no part in, as several of the next of kin said when they exercised their right to be heard in court. It is particularly painful for them that the victims’ bodies lay in a conflict zone. As the fighting continues after 17 July 2014, it becomes clear that the area cannot be accessed, and that it ill take a long time for the bodies of their loved ones to be brought home. It is an unbearable thought for the next of kin. They can’t say goodbye yet. What’s more, in this case it isn’t even certain that a body will ever be found that they can say goodbye to. Bodies lay among the wreckage in Ukrainian fields in the hot summer sun, guarded by armed men. Eventually they are put in body bags and loaded on to a train, which after a wait of several days starts moving. Later still, some of the bodies are flown to the Netherlands in coffins. In the months that followed, more remains of victims will be recovered and brought to the Netherlands.
After their arrival, the exhausting process of identifying the bodies of the deceased begins. This is often done in steps, with each new step bringing new pain and uncertainty. And it becomes clear that not every coffin contains a complete body. After identification of one or more body parts comes the question of whether next of kin will even get their loved one back completely. After identification of one or two loved ones, comes the question of whether the other loved ones will be identified at all. That uncertainty forces people to make terrible choices: say goodbye to one or more body parts, or wait until more have been found? Say goodbye to a loved one who has already been identified, or wait until all family members have been identified? And how long do you wait? Until the repatriation mission is completed? Even if it is halted because winter is setting in? With the passing of the months comes the realisation for many next of kin that they may have to make do with that single body part, sometimes no more than a bone fragment, that had been found. For others there is the fear that they will be left empty-handed; that no remains whatsoever of their loved one ill be found. The hope that one day they will receive a phone call to tell them that some part of their family member has been found after all. The disappointment and the sadness when it doesn’t happen. What makes it extra difficult is the uncertainty about when and how often there will be news that another body, or another body part, has been found. Every phone call from the family liaison officers causes tension, followed by either relief or disappointment. Next of kin said the following about this:
‘We had to (...) say goodbye several times, because they kept unexpectedly finding more remains. I’ll spare you the details. Like the release of the identified bodies by the Dutch government to the next of kin, this had a great psychological impact on us and contributed to a long period of despair, agitation, uncertainty and difficulty coming to terms with the MH17 air disaster; I am still suffering the consequences now.’
And:
‘And yes, there was the news I had been waiting for so long. My father had been identified. On the basis of a two-centimetre piece of bone from his hand. That was it. It felt bizarre. My father, a man who was almost two metres tall, and they'd found him on the basis of something so small.’
The families of two victims have had to deal with the sad conclusion that no remains of their loved ones were found at all. That has resulted in frustration, uncertainty and unfathomable grief. For them, saying goodbye has become an all-but-impossible task. One of them said the following about this:
‘You just have to deal with it. But how? Some people say that you should remember your loved ones as they were and that it is therefore not necessary to say goodbye to them physically. (...) But I have been able to see the difference. I was able to say goodbye to the bodies of my twin sister and my parents. But not to my brother. (...) I find it difficult to accept that my brother’s remains are either gone or still somewhere far away, and that as a result I have not been able to say goodbye to what was once my brother.’
In a number of statements, the next of kin also expressed feelings of guilt and regret. Some blame themselves for not dissuading their loved ones from boarding the aircraft, knowing it would fly over a war zone. Others regret getting to Schiphol airport on time so that their loved one(s) were able to catch the flight. And still others blame themselves for not saying a more heartfelt farewell, or spending more time with their loved ones. Feelings of guilt and regret that weigh heavily on some of the next of kin.
It has proved impossible for the next of kin of the victims of flight MH17 to experience their grief in private, within their personal circle, because very soon after the aircraft is shot down, MH17 is making headlines everywhere. Images of the crashed aircraft go all around the world. Images of bodies and personal belongings, lying at the crash site or being moved by separatists, are shared on the internet and shown on television and in newspapers. The images of the crash site are etched in the minds of the next of kin forever. And as long as the public interest in MH17 continues, the next of kin will continue to be confronted with those images. This adds to their grief. After the disaster, the next of kin are suddenly being phoned by the media and asked questions. Some are happy to share their story. For others it is an unexpected encounter with a public world they were unfamiliar with, and one they could do without. Next of kin said:
‘Within an hour and a half Mum and Dad’s names were in the media. And after that nothing was ever the same... They were no longer my parents; instead they were news. Grief is private, but not in my case. I share my parents and what happened to them with lots and lots of people. Something that belonged to me and my family has been taken from us and become public property (...).’
And:
One of the most difficult things about being involved with MH17 is not having any control over when you will be confronted with it. It keeps coming up in the news, often with horrific images. People have an opinion on it, are looking for sensation, are interested in Russia and Ukraine, whereas for me MH17 is really only about (…) my little sister.
For many of the next of kin, it is painful to know that the exact circumstances of this attack are still unclear and that nobody is taking responsibility for it. That suffering is compounded by the dissemination of disinformation by conspiracy theorists and by the efforts by the Russian Federation to obstruct the investigation. One of the next of kin said the following about this:
‘The constant dissemination of disinformation by various persons and countries also causes great pain and anger. This has greatly hampered the grieving process, for more than seven years now.’
After more than seven years, it has become largely clear just how immense the consequences have been for many of the next of kin. Of course, these consequences are different for each person, and it would be impossible to mention every single thing individually here. Nonetheless, we would like to give some idea of those consequences, with the help of a number of quotes. To quote two of the next of kin:
‘I’ve found a new normal. And sometimes it works so well that I forget that it isn’t normal. I don’t realise the weight I’m carrying around with me every day, until something small happens.’
And:
‘We will carry the MH17 disaster and its consequences with us as mental torture for the rest of our lives. Our life as a family will forever be overshadowed by the dark stain left by the MH17 disaster.’
Other next of kin put it like this:
‘Because of the way our son died, we were never able to say goodbye, (…). His wife had a breakdown following his death and we are still raising their two sons. (…) Being raised by elderly grandparents has a huge impact on them socially, they have fewer friends and, as a family we do not fit with young parents or with older peers who are retiring. We live in “No Man’s Land” trying to preserve a way of life that there are few models for. It is exhausting, challenging and lonely.’
And:
‘After seven years you would think you would get used to not having someone. But you don’t. After seven years you would think missing someone gets easier. But it doesn’t. (…) Grief is not a feeling, it’s a way of living. And although this is the life I am living, it doesn’t feel like the life I was given. And certainly not the life that my Mum has dreamt of for us.
In general terms we can distinguish three categories of consequences: psychological and physical problems, work-related problems and problems with relationships.
First there are the psychological and physical problems. Post-traumatic stress disorder, depression, no longer wanting to live, problems sleeping, lack of appetite, and a whole array of physical problems besides. To quote some of the next of kin:
‘I lost all purpose in life, although I realised that was not good. My family suffered because of that.’
And:
‘I now live with depression, anxiety and I have been formally diagnosed with post traumatic stress disorder (PTSD). I am on a number of different medications for these conditions, but none of it helps.’
And:
‘There have been times when my life and the whole world felt futile. What is the point of caring if what is most precious can be snatched away?
I didn’t want to live in a world without [my son - Public Prosecution Service] in it. (…) My grief and sadness have been overwhelming at times. I had thoughts about ending my life. But I do want to live, and I could not inflict even more pain on my family.’
The stories have also demonstrated the consequences of the disaster for the jobs and careers of many of the next of kin. Some didn’t start courses of study, or didn’t finish them, because they couldn’t summon the energy to do so. Many encountered problems at work, and some still do. Many say they are no longer able to concentrate and have short-term memory problems. After the disaster their performance deteriorated, they were frequently absent on sick leave, and as a result many ended up losing their jobs or taking early retirement. Others never embarked on the career they had envisaged and never achieved what they wanted in life. In some cases, the loss of a loved one also meant the loss of the breadwinner for an entire family. Of course, this has serious financial consequences. Besides grief, it causes a great deal of worry as well. And again, we quote the next of kin:
‘I didn’t realise how much this would affect my employment and career options for the future. Due to the information available on the internet and media reporting, my employers have been contacted to gain access for interviews around the anniversary date, and potential employers have told me that it seems I have a lot going on in my personal life, and I either don’t hear back after interview or just receive a rejection email. I see myself to be a hardworking, resilient person — so this has been hard to come to terms with.’
And:
‘As the oldest child, [she] was responsible to help our parents, her child and younger siblings to be able to live properly. She is the breadwinner and sent every month money to her parent. Now, to fulfill the daily needs, my parents have to work hard to be able to survive and to pay the school costs of [their daughter’s] child. Our parents are not young anymore and the situation is very difficult for them.’
And lastly, a great deal changed for many of the next of kin in terms of their relationships. First of all there is the loss of their loved ones who died in the crash. But on top of that it has emerged that many families and relationships are unable to withstand the aftermath and consequences of the crash. The different ways of dealing with the loss and having to handle the administrative side of the deaths of loved ones led to relationships breaking up and family ties being severed. Unfortunately for some next of kin this has meant that they not only lost their loved ones on board flight MH17, but lost contact with other family and friends too. A number of next of kin have said the following about this in court:
‘You might think that if you go through something like this as a family it brings you closer together and strengthens the bond. Well, it regularly led to friction within my own family, but it led to irreconcilable tensions and insurmountable problems between the two families (...)’
And:
‘It’s as if there’s a split in the family, and without wanting to I’ve ended up on the other side. We love each other, we want to support each other, but we can’t. It’s as if unconsciously there’s competition in our suffering, fuelled further by the outside world, (...) I feel torn apart inside.’
This trial has engendered various feelings among the next of kin. Some would rather the trial had not taken place. Doubts about whether the full truth will ever emerge, scepticism about whether the defendants, if convicted, will ever serve their sentences, and the constant media attention have made this trial very difficult for that group of next of kin.
For many others, however, this trial is important. They want justice. Moreover, a judgment by the court will provide clarity and can help some of the next of kin come to terms with the consequences of the crash.
Two sisters put it as follows:
‘To give our families closure and to eradicate a private question, a public answer has to be given. (..) a public answer to the eternal question as to why a civilian carrier was shot down, as it may be the first step in giving us peace and solace, both in our hearts and minds.’
Another said:
‘17 July 2014 flight MH17, The day innocent humans were killed, (…) They made us victims of something that should never have happened. Justice should and will prevail.’
We have tried to sketch a picture of the consequences the downing of MH17 has had for them. We are all too aware that it is impossible to express in words the enormity of those consequences, which are felt to this very day. The openness with which the next of kin told their stories to the court earlier in these proceedings, in some cases supported by photos, videos or audio clips, has poignantly demonstrated the consequences of the downing of MH17.
7.3.3 Local residents in the disaster area
Not only the next of kin, but also the people living in the disaster area in Ukraine were affected by the events of 17 July 2014. Many of them were faced with the terrible consequences of the downing of flight MH17. Bodies and pieces of wreckage fell from the sky, in some cases falling straight through the roofs of people's houses. Seven years on, some of the wreckage has been still not been salvaged. Therefore, at the crash site too, the memory of that terrible 17 July lives on. Many people in eastern Ukraine worked hard, under difficult conflict conditions, to recover the victims and commemorate them locally.
Besides the many thousands they are mourning themselves, every year they commemorate the victims of MH17 too. One of the next of kin corresponded with the mayor of one of the affected villages. He spoke about what the mayor wrote to him:
‘He told me he would never (...) be able to forget the explosion, the heat from the fire and the stolen lives of the victims on board, especially the children. But he also conveyed a message of hope, the hope of a normal life in peace, wherever in the world that might be.’
7.3.4 International outrage
Besides the 298 people on board MH17, their next of kin and the people living in the disaster area, the defendants also affected the world at large. The victims of MH17 were nationals of the Netherlands, Malaysia, Australia, Indonesia, the United Kingdom, Belgium, Germany, the Philippines, Canada, New Zealand, Vietnam, Israel, Italy, Romania, the United States and South Africa. All these countries are affected by public shock and grief.
As grieving nations, they are following this trial closely. But the rest of the world is affected too. Images of the crash area, including the burning wreckage, the victims’ luggage in the open field, and the bags containing human remains in the train at Torez, are seen around the world, sparking feelings of horror and outrage. The universal call for justice and accountability is expressed on 21 July 2014 in Resolution 2166 (2014), adopted unanimously by the United Nations Security Council: ‘Demands that those responsible for this incident be held to account’. The seriousness of the defendants’ actions is also partly determined by this consequence: the international public outrage they caused by committing these crimes.
7.3.5 Conclusion
The seriousness of the consequences caused by the defendants is extraordinary, and can hardly be described in words. Not only have the defendants taken the lives of 298 people in a most horrific manner, but they have forever altered the lives of the victims' many loved ones. In addition, they brutally confronted the people living in the crash area with the terrible consequences of the MH17 disaster and the deaths of those on board. Lastly, they caused international public outrage that is felt to this very day. No punishment can do justice to such severe and widely felt consequences. It goes without saying that those consequences mean that very long prison sentences are in order.
7.4 Comparison with sentences in other cases
7.4.1 Introduction
In determining the sentence to be recommended, we have also looked at the sentences imposed in other criminal cases, in the Netherlands and elsewhere. We would note that we have not found any cases that correspond exactly to the MH17 case. The facts of this case are unique, and thus the sentencing must stand alone too. However, there are similar cases or certain aspects of other cases that are relevant to the sentencing in this case.
7.4.2 Sentencing in the Netherlands
First we will discuss sentencing practices in the Netherlands. As we have not found any previous convictions in the Netherlands for causing an aircraft to crash (article 168 of the Criminal Code), we will discuss sentencing in Dutch cases involving murder (article 289 of the Criminal Code) and another kind of endangerment offence: intentionally causing a fire or an explosion, resulting in a person’s death (article 157 of the Criminal Code).
7.4.2.1 Murder
In Dutch case law, as a general benchmark, a sentence of no less than 12 years’ imprisonment and no more than 22 years’ imprisonment is imposed for a single murder./ In the event of a single murder in the form of a liquidation, the benchmark is higher on account of the seriousness of the murder: 20 years’ imprisonment.
The actual sentence in a specific case is then determined on the basis of any aggravating circumstances, such as the defendant failing to acknowledge his or her conduct, the public nature of the murder, prior convictions, the offence being a serious affront to the legal order, an exceptional degree of violence and/or atrocity, exceptionally severe consequences for next of kin and the degree to which the offence was planned. It is also determined on the basis of any mitigating circumstances, such as the defendant’s acknowledgement of and insight into the problems with their conduct, diminished responsibility or conditional intent on the part of the defendant.
Case law shows that the length of the prison sentence is determined not only by the nature and seriousness of the injustice suffered, but also by the number of victims. The maximum sentences of 30 years’ or life imprisonment have mainly been imposed in cases involving multiple murders.
Caution is exercised when imposing lifelong prison sentences. They are reserved for exceptional cases. A lifelong prison sentence is imposed for very serious offences claiming several victims. The more victims there are, the more likely it is that the sentence will be life imprisonment.
If the perpetrator makes a mistake regarding the victim’s identity this has no bearing on the sentence imposed. This is in accordance with the principle formulated by former justice minister Anthony Modderman more than a century ago when the current Dutch Criminal Code was introduced:
‘(...) murder is not the killing of A or of B, but of a human being. He wanted to kill a human being, and a human being he did kill.’
According to the Supreme Court, the sentence should not be determined solely by the degree of guilt, in the sense of culpability./ Other factors that the courts take into account when deciding on the sentence include retribution, general prevention (confirmation of norms and deterrence) and special prevention (protection of society and social rehabilitation), the defendant’s conduct in the proceedings – specifically if they choose not to explain themselves – and the risk of reoffending.
In this case, given even just the degree of planning, the exceptional degree of violence and atrocity, the severe consequences for the next of kin, the serious affront to the legal order and the fact that this concerns not a single murder but 298 murders, there is every reason to impose a sentence that is heavier than the maximum determinate sentence of 30 years’ imprisonment.
7.4.2.2 Endangerment with death as an aggravating consequence.
As we said before, in the Netherlands no one has ever been convicted of causing an aircraft to crash (article 168 of the Criminal Code). We can, however, look at previous convictions for a similar form of endangerment, i.e. intentionally causing a fire or an explosion. This offence is punishable under article 157 of the Criminal Code and is of the same nature and carries the same maximum sentence as causing an aircraft to crash (article 168 of the Criminal Code). If it results in the death of a person, a life sentence can be imposed.
And this does indeed happen, for example in a case heard by ’s-Hertogenbosch Court of Appeal. The defendant in that case had, together with other persons, set fire to a house while the occupants were asleep. The parents survived, but their two minor children died in the fire. The fire was started at the initiative of the defendant and he provided the necessary materials. He left the actual act of starting the fire to others. The defendant was sentenced to life imprisonment.
For this kind of crime too, the seriousness of the consequences affects the sentence imposed. It counts very heavily against a defendant that victims in such cases often do not stand a chance of survival. In this kind of case, too, it is irrelevant whether the defendant has made a mistake.
The parallel with the MH17 case is clear. The defendants initiated and organised the act of violence and carried it out through other persons. Those on board MH17 could do nothing to stop it, and their chance of survival was zero. Given that there were 298 victims, imposing a sentence of life imprisonment in this case would be in line with the case law.
7.4.3 Sentencing outside the Netherlands
We have also looked at sentences imposed outside the Netherlands.
7.4.3.1 Case law of international tribunals
First we looked at judgments given by international courts. International criminal law institutions such as the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda and the International Criminal Court generally impose heavy sentences for causing civilian casualties during an armed conflict. Nevertheless, in the Netherlands similar cases can result in different sentences.
This is apparent from a judgment by The Hague Court of Appeal in 2011, in which a Rwandan man was sentenced to life imprisonment for war crimes committed during the Rwandan genocide in 1994. The appeal court was aware that the Rwanda tribunal had convicted his older brother of, in part, the same offences. Even though the brother was older and had played a much more prominent role, the Rwanda tribunal sentenced him to a significantly lower sentence of 25 years’ imprisonment for his involvement in one of the two mass murders for which the defendant in the Dutch case was convicted. The Hague Court of Appeal places less emphasis on the defendant’s personal circumstances than the Rwanda tribunal had done in his brother’s case and gives precedence to the interests of the next of kin, the victims and the international community in an appropriate response./ We believe the same interests should take precedence in the MH17 case too.
Furthermore, in this case The Hague Court of Appeal held that the judgments of international tribunals could only be used for comparison to a limited extent in respect of sentencing in the Netherlands. According to the appeal court this is due to the differences in the way these cases are dealt with and in the way sentences are enforced.
We agree and would add that the offences in the MH17 case cannot be compared with those in other cases in which international criminal tribunals have given judgment either. We therefore see no scope for comparison with sentences imposed by international tribunals.
7.4.3.2 Other air disasters
Given the nature of this case, we will discuss two other cases in which an aircraft was downed.
7.4.3.2.1 The Lockerbie case
On 21 December 1988, Pan Am flight 103 was blown up over Lockerbie in Scotland by explosives placed on board. Everyone on board was killed. The defendant in the criminal case was convicted of the murders of 270 persons and sentenced to life imprisonment (with a minimum of 27 years).
Unlike the MH17 case, the Lockerbie case was a targeted attack on a civilian aircraft, and a mistake was ruled out. At the same time there is a parallel with MH17: a passenger aircraft was brought down in a brutal act of violence, resulting in a large number of fatalities. As previously noted, the immense consequences of an offence weigh heavily in determining the sentence.
7.4.3.2.2 Ukraine judgment
Another case that bears similarities with the MH17 case is one from Ukraine.
As we noted earlier, in the course of the armed conflict in eastern Ukraine other aircraft were downed by separatists as well. For instance, on 14 June 2014 a Ukrainian military transport aircraft was shot down by a portable missile system near Luhansk airport. All 49 persons on board were killed. For their involvement in this offence, this year three persons were sentenced by a Ukrainian court to life imprisonment for an ‘act of terrorism’ under article 258 of the Criminal Code of Ukraine. The judgment shows that they did not launch the missile themselves, but had a leading, coordinating or organising role.
Article 258, paragraph 3 of the Criminal Code of Ukraine stipulates that if an act of terrorism causes the death of a person, the maximum sentence is a determinate prison sentence of 10 to 15 years or life imprisonment. It is clear from the judgment that, just as under Dutch criminal law, in Ukraine a life sentence cannot be imposed lightly. It is done only in the case of very serious offences and only if a determinate sentence is not appropriate. In its judgment the court must give its reasons for imposing a life sentence.
The Ukrainian court held, in brief, that the offence belonged to the category of exceptionally serious crimes against public order and safety, and that it posed a danger to society. In view of this, and given the defendants’ roles, the court considered life imprisonment to be the only appropriate sentence. The court considered that the sentence was necessary and justified and that it would help prevent reoffending.
This sentence is understandable from a Dutch legal perspective too, and is in line with the Dutch maximum sentence for causing an aircraft to crash, resulting in a person’s death. The facts of this case bear clear similarities with those of the MH17 case, the difference being that in our case 298 people were killed instead of 49 and that the MH17 victims were civilians who played no role whatsoever in the conflict.
7.4.4 Conclusion
We have not found any other criminal cases that can be easily compared to the MH17 case. The facts of this case are unique, and thus the sentencing must stand alone too.
In this Dutch trial, that is supported by all the afflicted countries, sentencing should occur according toDutch standards. If we look at the sentences that are imposed in the Netherlands for murder and other endangerment offences resulting in a person’s death, such as arson, we can conclude that certain factors have an aggravating effect, such as a lack of acknowledgement on the part of the defendants, the degree to which the offence was planned, an exceptional degree of violence and atrocity, the number of victims, the exceptionally severe consequences for the next of kin and the offence being a serious affront to the legal order. With endangerment offences it is also relevant if the victim had no chance of survival. If there are indeed such aggravating circumstances, particularly if there are multiple victims, the maximum sentence is often imposed in Dutch criminal cases. It makes no difference in this respect whether or not the defendant made a mistake. Given even just the degree of planning, the exceptional degree of violence and atrocity, the severe consequences for the next of kin, the serious affront to the legal order and the fact that there were 298 victims, a sentence that is heavier than the maximum determinate sentence of 30 years’ imprisonment, i.e. life imprisonment, would be in line with Dutch case law. The life sentence imposed by a Ukrainian court in a similar case (the downing of a military aircraft, resulting in the deaths of 49 persons) is in keeping with those Dutch standards. The difference is that the downing of MH17 did not kill 49 military personnel, but 298 civilians.
In our sentencing comparison we have not included any judgments of international tribunals. Not only are the facts of those cases different, but the way in which the tribunals deals with the case and the way in which sentences are enforced differs from the procedures in the Dutch justice system. In these Dutch criminal proceedings, which are supported by all the affected countries, the sentence must be in accordance with Dutch standardsLife imprisonment and the ECHR
7.5 Life imprisonment and ECHR
Sometimes life imprisonment is the only appropriate sentence that properly reflects the nature of the offences and the severity of the consequences. Since we can now see various paths leading to this maximum sentence, it is appropriate to consider whether life imprisonment is compatible with the prohibition of inhuman punishment laid down in article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).
Imposing a life sentence can serve various purposes, such as the protection of society, deterrence or retribution. Following judgments by the European Court of Human Rights (ECtHR), the scope for rehabilitation of prisoners serving life sentences in the Netherlands has attracted particular attention. The ECtHR believes it is important that a prisoner be offered a ‘possibility of rehabilitation’ and a ‘prospect of release’. This means that at some point it must be possible for the sentence to be reviewed.
In the Netherlands this is indeed possible. Besides procedures to commute life sentences, there is an Advisory Council on Life Prisoners that, 25 years after the start of imprisonment, advises the minister on rehabilitation activities that the prisoner is eligible for. These activities serve as preparation for the possible initiation of a request procedure for a pardon. A pardon may be granted if it has been established that the continuation of the prison sentence no longer serves a reasonable purpose. A pardon can also be granted to persons who do not have a right of residence in the Netherlands.
In the light of the ECtHR’s case law there is therefore nothing to prevent the court from imposing life sentences in this case. We would emphasise, however, that even with these new rules there is no guarantee that a life sentence will be commuted.
7.6 The defendants
7.6.1 The defendants’ roles and their relation to sentencing
The roles of the defendants in this case are relevant to the question of whether they should all be given the same sentence.
As we discussed earlier, the defendants are jointly responsible for the downing of MH17. They organised and carried out this offence together, using the Buk TELAR and its crew as their own instrument. They each played different, but significant roles. The question is whether the difference in those roles gives any reason to impose different, i.e. lighter or heavier, sentences. The difference mainly relates to the chain of command and (therefore) the physical presence of the defendants during the deployment of the Buk TELAR. Whereas Girkin and Dubinskiy led the deployment of the Buk TELAR remotely, Pulatov and Kharchenko acted as their executive commanders. They in turn commanded others and thus coordinated the deployment of the Buk TELAR on the ground. We believe that the fact that Pulatov and Kharchenko’s role related more to implementation is no reason to impose lighter sentences on them than on Girkin and Dubinskiy. After all, they voluntarilyconformed to that role and their subordinate position in relation to Girkin and Dubinskiy, and therefore they must bear the consequences. Moreover, their lower position is compensated for by the importance of their role. In fact, the organising and coordinating role played by Pulatov and Kharchenko in the field was equally important to the deployment of the Buk TELAR and the downing of MH17 as the directing role played remotely by Girkin and Dubinskiy. In short: if we look at the roles of the four defendants we see no difference in culpability. There is therefore every reason to recommend the same sentence for all four defendants.
In so far as the court is of the opinion that some distinction should be made in terms of culpability, that minimal difference pales in comparison to the great severity of the consequences of the actions of the four defendants. Given that the degree of culpability is not a decisive factor in the sentence imposed and that it is actually the nature of the offences and in particular the severity of the consequences in this case that must largely determine the sentences, equal punishment is appropriate, including when viewed from this perspective.
7.6.2 The defendants’ conduct in the proceedings
As is customary in Dutch criminal cases, in this case too the defendants’ conduct in respect of the proceedings plays a part in the sentence imposed.
7.6.2.1 Girkin, Dubinskiy and Kharchenko
Girkin, Dubinskiy and Kharchenko have chosen not to take part in this trial. We have therefore seen no literal ‘conduct’ from them at all in these proceedings. Nor have they taken any responsibility. Although their actions cry out for an explanation, Girkin, Dubinskiy and Kharchenko have been silent in this courtroom. The Public Prosecution Service holds these defendants’ refusal to account in any way for their actions to the court and the next of kin against them.
What is more, Girkin, Dubinskiy and Kharchenko have actively concealed the true circumstances surrounding the downing of MH17. This deception began on 17 July 2014, as soon as it became clear that a civilian aircraft had been downed. First, the Buk TELAR is kept hidden for hours and eventually after 23:00, under cover of darkness, it is secretly moved back to the Russian Federation. Girkin orders Dubinskiy to do this, and Dubinskiy leaves the job to Kharchenko. Apparently, the Buk TELAR they so badly wanted and that was their only hope must now disappear as quickly as possible.
They also conceal the circumstances of the disaster by actively disseminating various alternative versions of the facts. First comes the story that the Buk has shot down a Sushka which itself had just shot down the Boeing. All the defendants discuss this scenario. Although at first Girkin appears to have little faith in this version of events, it is he who on 18 July 2014 tells the Russian media that the Boeing was shot down by a Ukrainian Sushka. On the same occasion he also reports that some of the passengers died before departure.
The ‘Sushka hit Boeing and Buk hit Sushka’ scenario is quickly dispensed with. Ten days later Girkin denies having had a Buk to the same media. In mid-September he reiterates in a video message that the Boeing was shot out of the sky by Ukraine. He offers no comment as to what weapon was supposedly used. Several years later, in an interview with Bonanza Media, Dubinskiy says he knows for certain that on 17 July 2014 there was a Ukrainian Buk in the vicinity of the village of Zaroshchenske. He thus suggests that this Ukrainian Buk had something to do with the downing of MH17.
In addition these three defendants have repeatedly made negative comments about the investigation, cast doubt on the investigation findings in a manner that lacks all credibility and criticised the legal proceedings.
For instance, in 2019 Kharchenko said in an interview that the SBU could edit any random sentence and that they could even make him say he had murdered his own mother. Dubinskiy has also alleged that the intercepted conversations had been tampered with. He did so, for instance, in the aforementioned interview with Bonanza Media, in which he speaks about traces of adhesive, editing and fiddling with data. He also says he is 90% convinced that the anonymous witnesses interviewed by the JIT do not exist. He does not believe in the objectivity of the investigation.
You would expect someone like Girkin to render account here in court. After all, by his own account he leads the fight against the Ukrainian army as commander-in-chief of the People’s Army and states that he knows exactly how all the events of 2014 took place. But Girkin has not done so. In fact, he talks of a show trial, the legitimacy of which he does not recognise. He also speaks of ‘stupid international tribunals’ and wonders publicly what this court in The Hague really amounts to. And he has announced that he will not recognise the fact that a civilian court in another country has the authority to convict a person, who has taken part in someone else’s civil war, just because its citizens have been killed. As regards the downing of MH17 he has stated for years now that the separatists had nothing to do with the crash of the Boeing.
Dubinskiy considers the accusation to be nonsense. He says: ‘Anyone who thinks that the head of the counter-espionage service would be in charge of the transportation of a Buk is ripe for the asylum.’ A remarkable comment, considering that the same Dubinskiy told a witness: ‘Yes, I took care of the passage of this Buk through the territory of Donetsk province. My people guarded it, my people took it there, but the order to fire from there was not given by us, the order to fire came from Moscow.’ He made a similar remarkable comment on the internet forum Glav.su: ‘no comment on the Boeing, particularly as I have no relationship with the Buk, except for the transport.’ As regards the trial he said to the Algemeen Dagblad newspaper: ‘I am indifferent about it. I know that as a Russian citizen I can’t be extradited.’ It is a trial that is searching for something that doesn’t exist, according to Dubinskiy.
The conduct of Girkin, Dubinskiy and Kharchenko in regard to these proceedings can be summarised as follows: Questions that could be answered remain unanswered. These defendants cast doubt on the objectivity of the investigation, they do not recognise this trial, and even ridicule it. This shows contempt for the next of kin and these criminal proceedings.
7.6.2.2 Pulatov
Pulatov has adopted a different course of action. He is the only defendant to participate – through his lawyers - in the proceedings. That does not mean, however, that he has taken responsibility for his actions in July 2014.
Shortly after the downing of MH17, it is Pulatov who drills into Dubinskiy and Kharchenko the alternative version of events, i.e. that MH17 was shot down by a Sushka and that they then shot down the Sushka with the Buk. According to Pulatov, the whole world will be talking about it. As early as the evening of 17 July 2014, Pulatov coordinates the defendants’ (first) story.
In February 2020 he starts his video statement by expressing his sympathy to the next of kin, friends and loved ones of the victims. He speaks of a great loss ‘for us all’.
In October 2020 he says that he wants to express his pain and sympathy, which he shares with the victims. He says that we can't bring back the victims, but what we can do is find out who is responsible for this. ‘And that is precisely why I am here. I really want to know who the guilty parties are,’ Pulatov says. He sees it as a task shared by the court, the Public Prosecution Service and his own lawyers to ensure that the real ‘criminals’ are convicted. We will now play this part of the statement.
Someone who says these kinds of things in a case concerning the deaths of 298 people creates the impression and the expectation that he will be cooperative during these proceedings and will answer the court’s questions. Nothing could be further from the truth, however.
In his statement of February 2020, Pulatov denied for minutes on end that in the period from 16 to 18 July 2014 he had spoken about a Buk system or heard anyone speak about one. He also denied having seen a Buk. In October 2020 he stuck to that statement, but then went on to say that at the time he had a phone number ending in -511, that he could always be reached at that number and that a Buk was discussed on that line, but that this was done in order to spread disinformation. In addition, Pulatov confirmed in his video statement of October 2020 and through his defence counsel at the hearing in November 2020 that he had indeed held at least four of the intercepted conversations. When the court asked him in which of the other intercepted conversations he recognised his own voice, Pulatov suddenly said he couldn’t say for certain whether the voice in the intercepted conversations was his. We cannot reconcile this with this own video statement in which he claimed that he wanted the truth about this ‘monstrous event’ to be uncovered.
Pulatov stated to the Russian authorities that he was only willing to make a statement for the Dutch court. In his video statement(s) he offered to answer the court’s questions. Here, again, Pulatov says one thing and does another. On 25 November 2020 the court made it clear that it had many questions and, as is customary in Dutch criminal proceedings, invited him (again) to answer all questions, not only from the court but from other parties to the proceedings too, in person, in open court in the presence of his defence counsel and the Public Prosecution Service. To date, Pulatov has not made use of this opportunity. We can imagine, from Pulatov’s perspective, that he would prefer to record a video statement somewhere else, but this is at odds with his own statement in this case. Pulatov is free to exercise his right to remain silent, but he can't say in a video that it is the job of the court, the Public Prosecution Service and his lawyers to jointly ensure that the real ‘criminals’ are convicted, and then fail to respond when the court invites him to answer further questions. This does not demonstrate a genuine interest on the part of Pulatov in establishing the truth in these proceedings.
In December 2019 Pulatov condemned the investigation in the online forum Glav.su. In his opinion an error had been made, making the entire the investigation untenable. Perhaps the defence will clarify this point in its statement of the case. However, we believe that the defendant should have done so earlier (through his lawyers), during the discussion of the facts at the latest. Only if all the cards are on the table in good time, can action be taken accordingly. The defendant is still not showing his hand, however. Again, you would expect a more active stance in the proceedings from someone who says he wants to find out who the guilty parties are.
So although Pulatov is participating in these proceedings, that is all he is doing. Pulatov's conduct in these proceedings shows that he does not care about ending the next of kin’s uncertainty. In fact, he is deliberately prolonging it. Like that of the other defendants, his conduct in these proceedings is having a detrimental effect on the next of kin’s grieving process.
7.6.3 The defendants’ personal circumstances
There are no mitigating factors to be found in the defendants’ personal circumstances either.
In an interview in 2019, Girkin said that he was a publicist, blogger and retired soldier. He had a personal interest in wars and in collecting old weapons. He was also a member of a battle re-enactment group. Like Dubinskiy and Pulatov, Girkin has been awarded military honours. According to a source from 2019, Dubinskiy is not involved (any more) in military matters. Pulatov said the same in his video statement of 2020. We do not know what Kharchenko is currently doing.
As far as is known therefore, the defendants currently do not have active military careers.
It is true of all four defendants, however, that they have some degree of military experience and that they voluntarily chose to take part in an armed conflict in another country, outside the regular armed forces. As noted, the defendants have not demonstrated that they have any understanding of how evil the acts of violence they committed in that conflict were. On the contrary, they appear to take undiminished pride in them. This raises the concern that in the future they will again get involved in shadowy conflicts. Their age does not preclude this. Even at a more advanced age, they can still hold a leadership position. The sentence must express the fact that this is absolutely undesirable.
None of the defendants has a criminal record in the Netherlands. Only Kharchenko has been convicted abroad of a sexual offence that is not relevant to this case. There are also criminal proceedings ongoing against him and against Dubinskiy and Pulatov. No judgment has been given yet in those cases, so they do not need to be taken into account in sentencing in this case. Given the seriousness of the offences in this case, the defendants’ criminal record, or absence of one, is irrelevant in determining the sentence to be imposed.
7.6.4 Conclusion
The Public Prosecution Service has found no mitigating factors in either the division of roles, the conduct in the proceedings or the personal circumstances of the defendants. On the contrary, the defendants' conduct in these proceedings is prolonging the next of kin’s uncertainty and inflicting further suffering. Not only have the defendants failed to take responsibility, they have also continued to actively conceal the true circumstances surrounding the downing of MH17, put forward misinformation about it and discredited the investigation into what happened. This attitude and their personal circumstances also raise the concern that the defendants will in future again get involved in shadowy conflicts and use unlawful violence.
7.7 Reasonable period of time
The MH17 proceedings have been ongoing for some time now. We will therefore briefly discuss an important aspect of the right to a fair trial. Every defendant is entitled to a hearing within a reasonable time. That period of time commences as soon as there is a criminal charge within the meaning of article 6 of the ECHR.
In these criminal proceedings that reasonable time commenced on 19 June 2019. On that day, during a press conference, it was announced that the defendants would be prosecuted for suspected involvement in the crash of flight MH17. In principle, judgment should be given within two years of that moment. This has not happened. However, in view of the complexity of the case, the expeditious handling of the case by the court and the further investigation that affected the course of the proceedings, we believe that the reasonable period of time has not been exceeded. Given these special circumstances, there are no mitigating factors in relation to imposing a determinate prison sentence.
There are sentences which by their very nature do not lend themselves to a reduction, such as life imprisonment. If it were to be concluded that the reasonable period of time has been exceeded, it would suffice to explicitly establish this./
Therefore, regardless of what sentence the court imposes, in the Public Prosecution Service’s view a reduced sentence on account of the passage of time is not appropriate.
We will now conclude.
7.8 Sentence demanded
Murder (article 289 of the Criminal Code) and causing an aircraft to crash, resulting in the deaths of those on board (article 168) are very serious offences. In the Netherlands this is expressed by the maximum sentence laid down in the law: a determinate sentence of 30 years’ imprisonment or life imprisonment. Violence against an aircraft, regardless of whether it is military or civilian, constitutes an extreme level of endangerment. The risks cannot be controlled and the potential consequences for those on board and people on the ground are enormous. Even if the defendant did not want the fatal consequences to happen, they are still taken into account when passing sentence for the offence of causing an aircraft to crash (article 168 of the Criminal Code).
The downing of MH17 is the worst conceivable manifestation of this offence. The downing was the result of an operation planned and organised by the defendants. Together, the defendants made a conscious decision to deploy an extremely destructive weapon with the aim of shooting down an aircraft. Each of the defendants can be held equally responsible for this joint deployment of the Buk TELAR.
The downing of MH17 with a Buk missile brutally ended the lives of all 298 people on board. Incredibly deep and irreversible suffering has been caused to the next of kin. Their lives are not the same as they were before 17 July 2014, and they never will be again. The world was and remains shocked by the downing of MH17.
If we look at various manifestations of the offence of causing an aircraft to crash, the shooting down of a passenger aircraft with a heavy and extremely destructive weapon system resulting in the deaths of 298 defenceless victims defies comparison.
The offences are by their very nature so serious and their consequences so great that, from the point of view of retribution, only the maximum prison sentence is appropriate in view of the injustice caused by the defendants.
Even though it is probable that the defendants intended to shoot down a military aircraft, this does not alter this fact. Also the shooting down of a military aircraft resulting in a person’s death, is punishable by a life sentence. The legislator consciously introduced a criminal offence in which the sentence is not only determined by the intent of the defendant but just as much by the endangerment caused by the offence, the severity of the consequences and the necessity to protect air traffic from any kind of violence. The fact that the defendants shot down MH17 in a war situation, does not count as a mitigating factor. They were not allowed to use any violence at all, and should be punished as civilians. Moreover they were indifferent to the risk of hitting a civilian plane.
The sentence must have a deterrent effect. It must send an unequivocal international message that aviation deserves the greatest possible protection and that gross acts of violence against it will be punished severely.
The defendants’ conduct in these proceedings is another aggravating factor in this case. Not only have they failed to take responsibility for their actions, they have continued to conceal the true circumstances surrounding the downing of MH17, put forward misinformation about it and discredited the investigation into what happened. By adopting this stance the defendants are prolonging the next of kin’s uncertainty and inflicting further suffering. Their conduct in these proceedings and their personal circumstances also raise the concern that the defendants will in future again get involved in shadowy conflicts and use unlawful violence.
There are no mitigating circumstances in this case. Neither the passage of time nor the defendants’ criminal records carry any weight in terms of sentencing.
Considering all of the above, we have come to the following sentencing demand:
We demand that, for, in association, causing an aircraft to crash resulting in a person’s death (principal charge 1) and, in association, the murders of 298 persons on board (principal charge 2), the defendants Girkin, Dubinskiy, Pulatov and Kharchenko each be sentenced to life imprisonment.
7.9 Imprisonment
On the very first day of these proceedings we said that it is uncertain whether the defendants, if they are convicted, will ever serve their sentence. The defendants Girkin, Dubinskiy and Pulatov are living in Russia, which does not extradite its own nationals. We do not know precisely where Kharchenko is currently living. However, that does not mean that they will get off scot-free forever. Laws and treaties provide scope for defendants to serve a Dutch sentence abroad. What is more, nobody knows what the future will bring. An individual may appear beyond our grasp today, and yet be apprehended tomorrow. If the court decides to impose sentences on the defendants, we will do everything we can to ensure those sentences are enforced, whether in the Netherlands or elsewhere. We therefore demand that, if the defendants are convicted, the court, with it’s verdict, also issues a warrant for their arrest for both counts. On the basis of that warrant, the defendants can be remanded in provisional detention, even before the judgment becomes final and unappealable. The legal ground for this is the fact that they are suspected of very serious offences which carry a prison sentence of more than 12 years and which constitute a serious affront to both the Dutch legal order and the international legal order. There are therefore compelling reasons of public safety that require their immediate detention.