Court session 17 June 2021

Introduction 

Today the Public Prosecution Service will discuss documents from the case file that we feel are relevant to the decisions that must be taken by the court in this case. Our aim is to supplement the court’s earlier discussion of the case file. This means that our contribution to this examination of the merits will consist of a variety of disparate elements. It will not provide a full picture of all relevant evidence. This would be overly repetitious, after the court’s thorough discussion of the case file. In the interests of clarity, we will try to be as specific as possible in identifying what aspects of the case we are discussing and why. Like the court, we are happy to respond to any questions or comments at the end of our presentation.

Some degree of repetition is unavoidable. In our presentation we will regularly highlight the relationship between various pieces of evidence, especially between intercepted telephone conversations and other evidence in the case file. To make our explanation easier to follow, it is necessary to play a number of intercepted conversations that the court already discussed last week. Otherwise the connection to the other evidence in question will not be clear, particularly to members of the public, who have no access to the case file. So not everything we discuss will be new, but we will try to limit the repetition to what is strictly necessary for an understanding of those subjects we believe need to be addressed in greater depth. 

To the extent that we draw conclusions in the course of this presentation, these are conclusions already contained in the case file. These may come from the investigation team, or from experts, such as the Royal Netherlands Meteorological Institute (KNMI), or from one of the various research institutes from outside the Netherlands that conducted their own investigations. As the court stressed last week, the examining magistrate’s investigation is still ongoing. The Public Prosecution Service will also take that information into account. Back in March 2020 we explained that we were open to the possibility that new information might warrant a reconsideration of provisional conclusions reached in the investigation.  The Public Prosecution Service will only state its final conclusions regarding the charges in the indictment in its closing speech.

The court’s discussion of the case file last week does prompt us to make one general observation regarding the addition of new material to the file. Last week the court raised a number of points that had caught its attention while perusing the file.  The court formulated questions on several of these points. We wanted to inquire if those observations and questions should be regarded as grounds for the Public Prosecution Service to add new material to the file. For the time being, we will assume that this is not the case. In Dutch criminal proceedings, the court is responsible for ensuring that a trial is sound, complete and thorough.  If the case file contains material that is unclear or exhibits omissions that impede a well-considered judgment, the court must ex proprio motu order further investigation – within reasonable limits – to rectify the situation. This is especially true in cases in which the victims’ human rights have been gravely violated.  Obviously, we are prepared to do what is needed to enable the court to take sound decisions on the the basis of all necessary information. But we assume that the court will issue instructions ex proprio motu for further investigation or for the addition of material to the case file, if it deems that necessary. 

The additional material we will be discussing today relates to questions 2 (the launch location) and 3 (the roles of the defendants). With regard to question 1 (was it a Buk?), we have nothing to add to the court’s discussion of the case file last week.

Question 2 - Launch site

Last week the court considered the findings of the investigation team that led to the conclusion that a Buk missile was launched from an agricultural field near Pervomaiskyi on 17 July 2014.  In addition to this, the Public Prosecution Service will offer a further explanation of the case documents identified as relevant by the court and exhibit a number of case documents that have not yet been identified as such. This will be done with the help of a video visualisation that brings together different visual material in the file connected to the launch site. 
 

This visualisation consists of two levels: the region in which the agricultural field is located and the field itself. The ‘region’ section contains the launch areas calculated by the Netherlands Aerospace Centre (NLR), the Belgian Royal Military Academy (RMA) and Almaz-Antey. Although we do not plan on discussing these calculations in depth, in the interest of public understanding we nevertheless wish to show the various areas plotted on a single map. 

The section ‘field’ contains some of the evidence pointing to the field near Pervomaiskyi as the launch site, as shown on satellite images. There are clear differences between the satellite images from 16, 20 and 21 July 2014. You can see this now. 

In the discussion of question 2, one of the matters the court considered was the findings and statement of the journalist Oliphant, who is designated in the case file as witness G2473. A video was shown in court which was shot by this journalist and a colleague in a field near Pervomaiskyi, where they observed a patch of scorched earth. The court also identified this journalist’s witness statement as relevant, noting his words regarding ‘the beginning of a patch of ground’ where there were tyre tracks and where the fire was much hotter. The court also noted that when the two rode further down the country road they came upon a hidden, apparently permanent checkpoint manned by the rebels.  We were able to mark this journalist’s position and the location of the checkpoint he mentioned on the satellite photo, on the basis of coordinates he provided. We will now show this.

Question 3 - Introduction

We will now move from question 2 (launch site) to question 3: whether the defendants took part in the downing of flight MH17 in a manner that renders them culpable under criminal law. In answering this question, we will touch on a number of subjects. 

First, we will discuss the comparative examination of a satellite photo and a dashcam video of the Buk convoy in Makeevka. The court has already identified a number of documents on this subject as relevant. We will say more about this today and also show the relevant images.

Then we will discuss additional evidence that the four defendants had committed violent offences against military aircraft prior to 17 July 2014. We believe this is relevant to the charges of co-perpetration.

We will then look more closely at the investigation of whether another military aircraft was shot down in eastern Ukraine, in addition to MH17. We believe this question is relevant to the assessment not only of the intercepted telephone conversations in the case file about the downing of a Sushka but also of the statement by the defendant Girkin that he was notified on 17 July that his men had hit a military aircraft.

Next we will discuss a number of intercepted conversations involving the defendant Pulatov in greater depth, highlighting evidence from other sources in the file that we believe is relevant to to assessment of these conversations – especially with regard to whether the subject matter of the conversations can be qualified as disinformation or whether it accurately reflected the actual course of events at that time.

Finally, we would like to make a number of additional remarks about the evidence against Girkin as discussed by the court.

Question 3 - Dashcam video from Makeevka

Last week, in its discussion of question 3, the court considered the visual material contained in the case file showing a Buk TELAR. One such piece of material is a video shot with a dashcam in Makeevka.  The video shows the convoy with the Volvo truck carrying the Buk TELAR. 

The court showed this video and then asked what had been done to verify its authenticity. In brief, the verification process consisted of the following steps: the person who shot the video (S32) was questioned; his camera and SD card were examined; the footage was compared to images from Google Streetview and Google Maps; the investigation team looked at landmarks and petrol prices; the KNMI examined landmarks and weather conditions, the footage was examined for signs of manipulation; the NFI examined the metadata and the source of the image (i.e. the camera) and the European Space Agency (ESA) compared the video to satellite images.  In this connection the court also noted that the the dashcam video displayed the date 2 September 2012. However, the results of the investigation conducted by the investigation team have shown that this cannot be correct and that the video was shot in July 2014, according to the person who shot it. The conclusion of both the investigation team and ESA is that key features that appear in the dashcam video are also visible in a satellite photo of 17 July 2014.  

After discussing the investigation, the court considered the mobile phone mast data for the phones belonging to the defendant Kharchenko and a subordinate, who apparently accompanied the convoy on this part of its journey.  After all, the findings of the verification investigation into the dashcam video also provide an opportunity to verify the available telecom data. The relevance of this investigation is thus twofold: investigators sought to verify the authenticity of the video and , by extension, that of the available mobile phone mast data. 

Despite the court’s in-depth discussion of the investigation, the Public Prosecution Service can imagine that the description of the findings of the investigation team and ESA may have been difficult to follow without in-depth knowledge of the case file. This part of the investigation only truly becomes clear once you see the associated images. Partly with a view to keeping the public informed, a video file has been added to the case file which juxtaposes the dashcam video and the satellite photo. We would like to show that video today, following on from what the court noted last week. 

But first, we would like to reflect on the court’s observation that while ESA saw many similarities between the video and the satellite photo, a number of vehicles that can be seen in the video are absent from the photo.  These are vehicles that were apparently part of the convoy, specifically those that followed the Volvo truck. In that connection the court pointed out that in its report ESA offered two possible explanations, which it characterised as ‘not very logical’. 

Further to this point, the Public Prosecution Service would observe that the ESA report also mentions that the trees along the side of the road and the shadows they cast impeded identification of the vehicles.  With respect to the vehicles ahead of the Volvo truck, ESA concludes that they appear to be covered by the visible vegetation or the shadows they cast, and that what looks like vegetation or shadow could also be a vehicle in the shade.  

If you examine the bottom image on page 35 of the ESA report, you can see that it is not only the area before the Volvo truck where the view of the right lane is blocked by trees and shadows or something similar, but also the area behind it.  This can be clearly seen in the video, from the 05:11 mark until the end. 

ESA calls the possible ‘disappearance’ of the two vehicles after the Volvo truck in the satellite photo as illogical on the basis of a detailed calculation of the speeds of the vehicles and the distances covered. The report also shows that the difference can be explained if one or more of the vehicles that make up the convoy reduced their speed or stopped between the moment they were filmed by the dashcam and the moment the satellite photo was taken.  

This concludes our further remarks on documents identified as relevant by the court. Before we look at the visualisation, we would like to make clear that it makes use of only the dashcam video that was just discussed, the satellite photo of 17 July 2014 and the satellite photo of the same area that was taken earlier in the season. So what you are seeing are the actual images, all of which can also be found in the case file. The visualisation makes clear what key features in the video were recognised by ESA and the investigation team in the satellite images. 

First, the route which both ESA and the investigation team believe the vehicle followed is shown on the satellite photo in orange dots. When the dashcam video begins, we see the car driving in the direction of Avtotransportna Street. After that the video highlights a number of key features. In brief they are: two walls on the opposite side of the road, three trees, an open grassy field on the left side of the road, the convoy with the Buk TELAR, the entrance to the petrol station, the petrol station itself and nine trees on the right side of the road, the shadow of the trees on the left side of the road, a roundabout, a white van, a number of houses on the right side of the road and railway tracks. 

Finally, at the end of the visualisation, we illustrate ESA’s findings regarding the visibility of the truck carrying the Buk TELAR in the satellite photo – particularly, the appearance of the white cabin and the shadow of the Buk TELAR.  

We will now show the visualisation.

In summary: Both the investigation team and ESA compared the dashcam video to a satellite photo which was taken at 08:08 on 17 July 2014: this was 11.08 local Ukrainian summer time.  In making this comparison, they observed landmarks in the video which can also be seen in the satellite photo. On the basis of the length and angles of the tree shadows, ESA determined that the dashcam video and the satellite image were taken around the same time.  This is consistent with the findings of the KNMI.  Furthermore, ESA concluded that the satellite photo exhibits a number of characteristics that perfectly match the dashcam video, and that no clear inconsistencies were observed.  In this connection the Public Prosecution Service would like to point out the trees and tree shadows that are visible along the right lane, both in front of and behind the white spot which ESA identified as the Volvo truck. 

Question 3 – the downing of aircraft before 17 July 2014

Introduction

Last week the court discussed the findings of the investigation that revealed that the Donetsk People’s Republic (DPR) had the capability to shoot down aircraft, something it did on multiple occasions before 17 July 2014, with the involvement of all four defendants. The court noted a number of facts in this connection:

• the separatists had in their possession one (or more) Strela-10s, ZU (Zushka)-23 and ‘manpad’ surface-to-air missiles; 
• they had used these capabilities to down Ukrainian aircraft on a number of occasions, starting in June 2014; 
• the downed aircraft included both helicopters and low-flying jets; 
• the Ukrainians had considerable (even overwhelming) air superiority; 
• this [anti-aircraft] materiel could not be used to shoot down high-altitude aircraft; 
• and this was part of the reason the separatists had a growing need for military support in general, and for air defences in particular. 

We would like to supplement the documents discussed by the court with a number of other findings in the case file that indicate that prior to 17 July 2014 the four defendants worked together in a group whose objective, in part, was downing (military) aircraft. We are doing so because evidence of cooperation in a group dedicated to committing similar offences may serve to prove criminal intent and may be relevant when specifying the roles of the individual defendants in the context of criminal law, especially with regard to the question of whether their actions qualify as co-perpetration. 

We will begin by discussing the two statements made by the defendants Girkin and Pulatov in which they discuss the DPR’s air defences and the downing of aircraft. Then we will discuss a number of intercepted phone conversations from the June/July 2014 period.

Statements by Girkin and Pulatov 

Girkin’s statement of 21 May 2015

To begin with, we will consider the statement made by the defendant Girkin on 21 May 2015.  In this statement he said that the air defence units of the DPR ‘possessed only portable “Igla” anti-aircraft missile systems, ZU-23-2 artillery installations and “Utyos” anti-aircraft machine guns with the capability of hitting aerial targets up to an altitude of 2,500 metres’. He went on to say that prior to 15 June 2014 two SU-25 combat aircraft and two MI-24 helicopters were shot down over Semyonovka.  He also stated that around 20 June 2014 ‘an AN-26 of the Ukrainian air force’ was shot down ‘over Slavyansk, with the help of an “Igla” portable anti-aircraft system’.  

Pulatov’s statementt of 16 February 2020

In his video statement of 16 February 2020 Pulatov also spoke about the DPR’s air defences. For example, he indicated that they possessed ‘Strela-3 manpads’ and a ‘Strela-10 installation’.  As discussed by the court,  Pulatov went on to say that around 16 July 2014 they had set up a Strela-10 installation to the south of the city of Snizhne.  

Intercepted conversations from June-July 2014

The case file also contains various intercepted conversations in which the defendants can be heard speaking about the deployment of anti-aircraft defences and about shooting down military aircraft in the period prior to the downing of MH17 on 17 July 2014. The court has already discussed a number of these conversations. We will supplement this discussion with information from the file that relates to those conversations. In addition we will also highlight a number of other conversations or excerpts of conversations that have not previously been mentioned.

Intercepted conversation of 14 June 2014

First of all, we would like to draw the court’s attention to an intercepted conversation that took place on 14 June 2014, which was discussed by the court last week. In that conversation Kharchenko tells Girkin that a water facility near Druzhkovka was hit in an air strike. Girkin responds by telling Kharchenko that he will send him an ‘anti-aircraft facility’ in the next few days.  The file contains articles from the news sites Russia & CIS General Newswire and the Yerepouni Daily News from 17 June 2014. According to these articles, the water pumps or the electricity systems associated with those pumps for cities including Druzhkovka were seriously damaged. The first article mentioned damage that was believed to have been caused by shrapnel.  The OSCE’s daily report of 15 June 2014 also mentioned damage to a water pumping station as a result of recent fighting.

Intercepted conversation of 16 June 2014

On 16 June 2014 a conversation took place in which Dubinskiy can be heard asking one of Girkin’s assistants to inform ‘Pervyi’ that ‘Bes’ has downed a ‘Sushka’ and that a search is under way for the pilot, who ejected from the aircraft.  The case file contains an article from the BBC from that same day reporting that a Ukrainian SU-25 had been shot down and that the pilot had managed to eject from the aircraft.  

Intercepted conversation of 13 July 2014

The case file also contains an intercepted conversation from 13 July 2014, in which Dubinskiy can be heard saying to Bezler that he shot down ‘two motherfucking jets’ today. Dubinskiy adds that one was shot down by the ‘Desiatka’ and that the other was hit by ‘ack-ack fire’.  Various public sources from 12 July 2014 that were examined by the investigation team state that DPR militias reported shooting down two aircraft.  

Intercepted conversations of 16 and 17 July 2014

The case file also contains a number of intercepted conversations from 16 and 17 July 2014 in which the participants discuss the deployment of anti-aircraft defences on 16 July 2014, one day before the downing of MH17. A number of these conversations were between Pulatov and a DPR separatist with the call sign ‘Koreets’. ‘Koreets’ also comes up in a conversation discussed by the court last week, which took place a few hours after the downing of flight MH17. In this conversation Pulatov tells ‘Koreets’ that his ‘blood brother’ shot down a ‘Sushka’ that had itself downed a civilian aircraft a short time before.  With regard to this ‘blood brother’ conversation, Pulatov stated that he thinks he is familiar with the call sign ‘Koreets’ but is not certain who is behind the name.  We would add that this ‘Koreets’ is linked to the subject of ‘air defence’ in multiple intercepted conversations. 

Intercepted conversation of 16 July 2014 at 08:47:53

First we would like to highlight the conversation that took place at on 16 July 2014 at 08:47:53 between Pulatov and ‘Koreets’, who is identified in the visualisations by his surname: Tskhe. We will now play this conversation. 

You can hear Koreets say that he is not moving and that he is out of fuel. You can also hear Pulatov then tell Koreets that before shooting anyone down, he needs to determine the nature of the aircraft because ‘a friendly […] can fly from the south’. Koreets says that he will follow this instruction.  In this connection we would observe that the portion of the conversation in which they talk about ‘downing [aircraft]’ was rendered by the Russian translator in English as ‘to deprive someone of an allowance’. According to the same translator, the Russian words translated as ‘to deprive someone of an allowance’ can also be rendered as ‘to take down’.  We would also point out that the case file contains information from various sources about the deployment of Russian aircraft on and around 16 July 2014 along the Russian-Ukrainian border.  

Intercepted conversation of 16 July 2014 at 13:22:24

In an intercepted conversation that took place at on 16 July 2016 at 13:22:24, Koreets tells Pulatov that at that moment there is a ‘Zushka’ and a crew with him. Pulatov then orders him to head to Stepanovka.  ‘Zushka’, which is spelled with a ‘Z’ and should not be confused with the military combat aircraft ‘Sushka’, is the nickname given to ZU-23 anti-aircraft artillery, a fact that can be deduced from various intercepted conversations. 

Intercepted conversation of 16 July 2014 at 15:28:24

Three hours later, another conversation between Koreets and Pulatov took place. We will now play that conversation. 

In this conversation Koreets can be heard telling Pulatov that he has arrived in Stepanovka and asking what he should do now. Pulatov can be heard telling Koreets that he should stay there, in Stepanovka, and keep a close eye on the sky because there is a ‘mother fucker’ in the air.  

Intercepted conversation of 16 July 2014 at 20:49:55

A few hours after this conversation, at 20:49:55, Pulatov called Dubinskiy. We will now show this conversation. 

Pulatov can be heard telling Dubinskiy that ‘our ack-ackers have distinguished themselves’ and that a ‘Sushka’ was shot down. It can be deduced from the conversation that this happened at 19:20.  As the case file shows, the military term ‘ack-ack’ refers to anti-aircraft artillery. 

Intercepted conversation of 16 July 2014 at 20:57:01

About nine minutes later, a new conversation takes place in which Pulatov says to Dubinskiy that he no longer remembers exactly what he said to Dubinskiy. Pulatov asks Dubinskiy if he passed on the news that ‘it’ had been downed with an ‘ack-ack’ or a Strela. Then he say that ‘it’ was shot down with an ‘ack-ack’, a Zu-23.   

Intercepted conversations of 16 July 2014 at 22:02:39 and 17 July 2014 at 00:17:09

About an hour later, a telephone conversation took place between two separatists who discuss the fact that ‘our guys’ shot down two ‘Sushkas’.  Two hours later, at just after midnight on 17 July 2014, an intercepted conversation took place between Dubinskiy and Khodakovskiy. This conversation, in which Dubinskiy talks, among other things, about high-altitude air strikes and the impending arrival of a Buk that night which will solve all their problems, has already been discussed by the court.  We would add to this discussion by noting that in this conversation Dubinskiy also tells Khodakovskiy that ‘my guys’ downed two ‘Sushkas’ and that Khodakovskiy indicates that he is aware of that. 

Findings on the downing of an aircraft on 16 July 2014

The case file contains two news stories from 16 July 2014 which report that a Ukrainian SU-25 was hit by a missile from a manpad on 16 July 2014. Both articles also report that the Ukrainian authorities also released information on this subject. In addition, the file contains a memorandum sent to the investigation team by the Ukrainian Ministry of Defence which states that at 19:02 on 16 July 2014 a Sukhoi aircraft was shot down in the

Conclusion

That concludes our presentation on intercepted conversations concerning the downing of aircraft before 17 July 2014. As we have said, we believe these conversations are relevant to the assessment of the criminal intent and involvement as (functional) co-perpetrators in the offences laid out in the indictment of the defendants who took part in these conversations or were mentioned in them. These are Girkin, Dubinskiy, Pulatov and Kharchenko. 

Question 3 - Investigation of military aircraft that were in the air on 17 July 2014

In order to assess Girkin’s statement and the intercepted conversations in which the defendants talk about the downing of a military aircraft, it is necessary to examine the documents in the case file that relate to the investigation that was conducted into the downing of a military aircraft on 17 July 2014 in DPR-controlled territory. Simply put: this is the question of whether another aircraft was shot down in eastern Ukraine on 17 July 2014 in addition to MH17. The JIT conducted an extensive investigation into this question by requesting information from the Ukrainian and Russian authorities, by studying many media publications and other public sources, by examining the aircraft wreckage and intercepted conversations, and by questioning witnesses. This investigation is reflected in the documents from the case file that we will now discuss. 

The court has previously discussed the primary radar data, which contain no record of any military aircraft.

Secondly, there are the statements by Ukrainian witnesses and the documents provided by the Ukrainian authorities. The court has already briefly highlighted those documents.  According to these flight data there were no military aircraft in the airspace over Luhansk Oblast or Donetsk Oblast at the time MH17 was shot down. There were a number of other flights over eastern Ukraine on 17 July 2014, but not over the area controlled by the DPR or the LPR.  Nor did the examination of various Ukrainian civilian and military air traffic controllers and fighter pilots yield any indications of the presence of a military flight above the conflict zone on 17 July 2014.  

Thirdly, we would draw the court’s attention to the reports documenting the various investigations of the wreckage at the crash site, which covered 50 to 60 km2 around the villages of Hrabove, Roszypne and Petropavlivka. These produced no indications whatsoever that would suggest that any other flight besides MH17 was shot down. This investigation was conducted by a number of parties, including the Dutch Safety Board (OVV), over the course of three salvage and recovery missions.  In addition, local residents, emergency workers and representatives of the DPR also gathered pieces of wreckage and flight recorders and handed them over to the OVV and the investigation team.  Other parties, such as Ukrainian and Malaysian aviation investigators, the Australian Federal Police, various journalists and other interested parties, also conducted investigations in the area of the crash. They gathered wreckage and handed it over to the investigation team, either directly or via the local authorities.  Every piece of wreckage that was recovered was assessed during the forensic investigation.  Finally, the Russian Engineers Union and Almaz-Antey assessed the photos taken at the crash site. Their assessment is included in press conferences and reports which were added to the case file.  None of these investigations found the remains of any aircraft other than MH17. 

And fourthly, we would like to draw the court’s attention to the documents in the case file that refer to the investigation the DPR fighters undertook themselves regarding the aircraft they shot down on 17 July 2014. For example, there is the statement by witness M58, which the court previously identified as relevant in the context of the investigation into the launch site. In it he states that his fellow fighters were happy because they thought they had brought down a Ukrainian military transport aircraft and that a number of them went to the location where the aircraft had come down (the crash site). When they came back an hour and a half later, they said that it had not been a transport aircraft but rather a civilian aircraft.  M58 stated that his fellow fighters said that there were suitcases and toys strewn around, and that everyone present was greatly distressed by the situation.  

Witness S09 made a similar statement. Unlike M58, witness S09 was not a DPR fighter, but a local staff member of the Ukrainian State Emergency Service (SES) who was involved in recovering the victims’ remains. This emergency worker stated that on 17 July 2014 he heard two loud bangs or explosions and saw wreckage falling from the sky. On the way to the crash site he encountered a large number of DPR fighters. One of them told S09 that they had shot down a Sushka and were looking for the pilots, who had deployed their ejector seats. Once he arrived at the crash site, it was clear that it was not a military aircraft that had been downed but rather a passenger aircraft. More DPR fighters started to arrive, and witness S09 heard them saying to one another that the aircraft they had shot down was not a Sushka. The witness saw a number of minivans driving to the area carrying separatists. Their commander gave the order to form a line and continue searching for the pilots of the military aircraft. Later, they were followed by a group of around 30 fighters who were ordered to find the black boxes. 

The fact that the DPR fighters were engaged in a targeted search in the area of the crash, as stated by M58 and S09, is also confirmed by various intercepted conversations in the case file. Participants in these conversations describe the search for black boxes and the fact that access to the crash site was being restricted.  According to these statements and intercepted conversations, the DPR fighters’ own investigation found remnants of MH17, but no trace of a military aircraft. 

These are the documents in the case file about the investigation into the question of whether another aircraft was downed on 17 July 2014 in addition to MH17. An extensive investigation into a wide range of sources conducted by a variety of parties yielded no evidence that a Ukrainian military aircraft was shot down or crashed on 17 July 2014. These findings are relevant to any assessment of Girkin’s statement and the intercepted conversations in which the defendants discuss the downing of an aircraft.

Question 3 - Pulatov and disinformation

Introduction

Last week the court discussed and listened to many of the intercepted telephone conversations contained in the case file. It also noted the positions the defendants have taken regarding those conversations, as expressed in various public sources and in the defendant Pulatov’s video statement. Today we wish to add to that discussion, with reference to the relationship between intercepted phone conversations and other documents in the case file.

We will also refer to the broader investigation into the authenticity and substance of the intercepted conversations in general. In June 2020 we discussed these matters before the court. At that time we noted the following:

• information was requested about the location of mobile phone masts, and network measurements were taken; 
• telecom data/metadata was compared and cross-checked in various ways; 
• data from Ukrainian providers was compared with data obtained for this purpose from foreign (non-Ukrainian) providers; 
• it has been established in various ways that certain participants in intercepted conversations have recognised their own voices and that certain participants have confirmed the content of those conversations, thus also confirming that the conversations did indeed take place; and
• public sources were examined to establish whether the events discussed during intercepted phone conversations actually took place. 

In the footnotes (not online, ed.) we refer to documents on this subject that are contained in the case file. We consider this information relevant to the court’s assessment of the intercepted conversations in the case file, and to any defence arguments concerning those conversations.

The defendant Pulatov has stated that intercepted conversations in the case file contain disinformation intended to mislead the enemy. According to him, this disinformation concerned not only references to a Buk, but also many other topics of discussion in the conversations, including for example remarks about numbers of dead and wounded, damage to military materiel and high-altitude air strikes. 

The case file contains more information on all of these topics. Today we will discuss what information in the file we believe is relevant to the assessment of whether the intercepted telephone conversations featuring the defendants (and Pulatov in particular) contain disinformation or are in fact consistent with the true course of events. We will also indicate which conversations, in the view of the Public Prosecution Service, should be assessed in relation to each other. 

Before we do so, we would like to reflect briefly on what precisely Pulatov said in his video statement. Last week the court highlighted the relevance of Pulatov’s claim that if the term ‘Buk’ was used in an intercepted phone conversation the intention was to mislead the enemy.  Indeed, he said this in his video statement of 22 October 2020, which the defence showed in court in November 2020. The defence also added a video statement by Pulatov from February 2020 to the case file. In that statement, Pulatov said several times that on 16 and 17 July 2014 he did not discuss any Buk system whatsoever, and that in any event he had heard nothing at all about the need for or possibility of transporting any weapon system whatsoever, whether a Buk or otherwise.  For example, he stated: ‘No, I didn’t speak to anyone on 16 July 2014 about any Buk system whatsoever.’ And in response to the question of whether he had said anything to anyone about a Buk TELAR system on 17 July 2014, he said: ‘No, I didn’t speak to anyone about that system. Nor would I have had any opportunity to do so.’  When asked, on 22 October 2020, to comment on various remarks from February 2020 – including the assertion that on 16 and 17 July 2014 he had not spoken to anyone about a Buk system, he said: ‘Yes, everything I said at that time, our first meeting had taken place then, and I stand by the same positions. I confirm everything I said.’  Later in the interview Pulatov indicated that the phone number ending in -511 was used specifically for the purpose of conducting misleading phone conversations  and that if something ‘absurd’ could be heard, such as the mention of a Buk, then it had been said in order to mislead the enemy.  Where Pulatov’s video statement is concerned, a distinction must be made between February 2020, when he denied any mention of a Buk, and October 2020, when, on the one hand he repeated his denial from February and on the other hand indicated that conversations about a Buk consisted of disinformation.

Overview of intercepted conversations featuring Pulatov

We will now quickly run through the conversations we intend to discuss. All of these conversations were identified as relevant by the court at the previous hearing.

On 16 July at 13:26:21 Pulatov was informed by Kharchenko that it would be impossible for him (Kharchenko) to set up a defensive position because half of his troops had been injured in air strikes. Kharchenko also reported that the Strela-10 missile system had been hit by enemy fire and that some of its crew had been killed.  This report by Kharchenko concerned the course of the armed conflict at Marinovka and Stepanovka. 

Later that day, Pulatov informed Dubinskiy about the problems facing Kharchenko due to the air strikes. In an intercepted conversation that occurred on 16 July at 18:12:49  Pulatov tells Dubinskiy that a ‘proper air defence system’ is needed in order to hit aircraft at high altitude. He also explains that Kharchenko has sustained heavy losses: 10 dead and around 30 wounded. Dubinskiy, incidentally, had already been informed by Kharchenko himself about these air strikes and losses in a conversation at 17:11:11. 

The same evening, at 20:11:57, Dubinskiy called Pulatov. In this conversation Dubinskiy tells Pulatov that if a Buk-M can be brought in that night, it will immediately be transported to Pulatov. Dubinskiy says that the Buk-M is their only hope, and that they have no other options. Pulatov confirms this.  

In another call the next morning, on 17 July 2014 at 09:31:30,  Dubinskiy tells Pulatov that Kharchenko will now be bringing a Buk-M to him and that Pulatov should set it up in the vicinity of Pervomayskoye. Pulatov confirms that he understands.

After the connection was broken, Dubinskiy called Pulatov back about half an hour later, at 09:55:20. Dubinskiy says that Kharchenko is now accompanying the BM and orders Pulatov to find Pervomaiske together with Kharchenko and all their troops, and to remain on standby in the vicinity of Pervomaiskiy. Their task is to guard the Buk and organise the logistics of this operation. 

Slightly less than three hours later, at 12:51:09,   Pulatov calls Kharchenko and says he is standing next to the Furshet supermarket, but that he can’t see anyone. Kharchenko says that he is also at the Furshet, and asks Pulatov whether he can see a ‘lowboy’. After a horn is sounded, Pulatov says that he can see Kharchenko.

That evening, at 18:44:37  Pulatov received a call from Kharchenko. In this conversation Pulatov starts talking about ‘our Buk’ and gives Kharchenko instructions about what he should tell ‘that one’, i.e., that ‘we’ shot down the Sushka [combat aircraft] that had downed a Chinese passenger aircraft a short time earlier. 

Dubinskiy also talks about ‘our Buk’ in a conversation with Pulatov at 19:52:23  asking whether it has been fired. Pulatov answers that the Buk shot down a Sushka after it (the Sushka) had shot down a Boeing.

At 21:40:49  Pulatov received a phone call from Kharchenko asking him to contact the fighters accompanying that new ‘box’. According to Kharchenko they were not at the rendezvous point and had forgotten one of their comrades. Pulatov replies that he will try to contact the fighters.

We will now consider these conversations in chronological order.

Conversations involving Pulatov on 16 July at 13:26 and 18:12 (dead and wounded, air strikes, armoured vehicles, damaged Strela-10)

We will begin with the conversations of 16 July at 13:26 and 18:12. In each of these conversations Pulatov talks about the situation concerning that day’s fighting at Marinovka and Stepanovka, and specifically about the problems facing the Donetsk People’s Republic (DPR) there. To ensure a proper understanding of the military jargon used in these conversations, we would note that ‘200ths’ or ‘number 2’ refer to fatalities. The terms ‘300ths’ and ‘number 3’ refer to injured fighters. 

First we will play the conversation that took place at 13:26. Kharchenko tells Pulatov about the perilous position in which he finds himself.  He mentions, for example, a Sushka that has been strafing them, as well as describing mortal attacks and explaining that the Strela-10 has apparently been hit. Kharchenko also talks about dead and wounded fighters.

The conversation of 13:26 between Pulatov and Kharchenko is followed later that day by a conversation between Pulatov and Dubinskiy at 18:12. This is a long conversation, which the court played last week. For that reason we will not repeat the conversation here. Instead we will show only Pulatov’s response to this conversation. 

Pulatov thus claims that at least 80% of the conversation was lies. According to him, the losses described in the conversation were exaggerated, and if such losses had truly been sustained in a month of fighting, there would have been no one left in the ranks of the people’s army. Also allegedly inaccurate was the part of the conversation in which Pulatov reported that the Strela-10 was no longer operational. According to Pulatov the Strela-10 was not actually broken. They simply said it was broken so that any Ukrainian military personnel listening in would think that the DPR had no air cover and its airforce would therefore start flying at a lower altitude. According to Pulatov the same applied to the part in which he said that they needed proper air defence because the combat aircraft flew beyond the range of their weapon systems:  this too was disinformation. In Pulatov’s view, the gist of the conversation with Dubinskiy was that ‘everything was going fine with them’.

Elements of conversations at 13:26 and 18:12

We will now discuss several specific topics that arose in these two intercepted conversations of 16 July 2014. These topics concern the dead and wounded, high-altitude air strikes, armoured vehicles and a non-functioning Strela-10. After a brief explanation we will show how these subjects come up in other sources in the case file. We will first examine the intercepted conversations, and will then look at other sources.

The dead and wounded

In both conversations – at 13:26 and 18:12 – the dead and wounded on the side of the DPR are discussed. For example, in the first conversation Kharchenko says: ‘I have been gathering people all around the fucking village, you know, there are only corpses, fuck, and the 300ths!’ In the second conversation Pulatov says that Krot has ‘ten with number 2’ and around ‘thirty with number 3’. According to Pulatov, Tor had ‘eleven with number 2 and around the same amount with number 3 as Krot’. According to Pulatov, all these casualties were the result of an air strike and artillery attack from the direction of Grigorovka.

High-altitude air strikes

In both conversations, air strikes were discussed. In the conversation of 13:26 Kharchenko says that ‘a Sushka is moving in there, fuck... is fucking us from above!’. During the 18:12 conversation, Pulatov says: ‘What we need is long-range artillery and some good anti-aircraft weapons, ‘cause the jet was firing from high altitude, so that it was out of range of virtually all systems.’

Armoured vehicles

Another subject that arose in both conversations was the availability of armoured vehicles. This discussion centred on two types of vehicles: an armoured personnel carrier that the fighters referred to as a ‘BTR’ or ‘APC’; and a combat vehicle, which the fighters abbreviated to ‘BMP’. During the 13:26 conversation, Kharchenko says: ‘All the fucking BTRs are fucking down!’ During the 18:12 conversation Pulatov mentions an APC that has been lost (‘minus one APC’) and a BMP that has been captured (‘plus one BMP’). 

Non-functioning Strela-10 

Another subject that came up in both intercepted conversations was a non-functioning Strela-10. In the 13:26 conversation, Pulatov and Kharchenko discuss the fact that the Strela-10 has been hit. In the 18.12 conversation Pulatov says that the Strela-10 is ‘out of order’ and is no longer functioning. 

Other intercepted conversations about the same subjects

These two conversations in the case file do not stand in isolation when it comes to the substance of the topics discussed. The aforementioned topics were discussed at the time in many other intercepted conversations involving various DPR fighters in various locations.

In various other intercepted conversations on 16 June the participants discussed the fact that the Strela-10 was out of order. In conversations at 13:26 and 20:49 Pulatov discusses the damaged Strela-10 with Kharchenko  and Dubinskiy  respectively. In another intercepted conversation in the case file, on 17 July, reference is made to ‘Giurza’ and ‘Pervyi’, which the case file shows were the call signs of Pulatov and Girkin, and discussions take place about bringing in an electrician for the Strela-10.  Elsewhere in the case file, too, the subject of the damaged Strela-10 referred to in the intercepted phone conversation comes up. 

Besides the two conversations of 13:26 and 18:12 there were many other intercepted telephone conversations on 16 and 17 July 2014 that featured discussion of the Ukrainian air strikes and the resulting high number of casualties (dead and wounded) on the side of the separatists.  The footnote refers to a number of these conversations, and we will briefly outline a few of them now. In a conversation on 16 July at 18:55, for example, Dubinskiy can be heard saying that his reconnaissance battalion and ‘special ops’ company are in Marinovka, and that when taking the town they sustained no losses until a combat aircraft launched an attack ‘from as high as seven kilometres or so’. Dubinskiy then says: ‘In the end, fuck, in the end I had ten 200ths and thirty 300ths’.  In another conversation an hour later, Dubinskiy can be heard saying that at 09:00 an air strike had been carried out from an altitude of at least 5 km.  In a previously discussed conversation, from the night of 16-17 July, Dubinskiy said to Khodakovskiy that his squadron had taken Marinovka with only three wounded, and that afterwards Sushkas ‘started to work’ from an altitude of 5 km, causing 10 fatalities.  After his assistant was informed of these developments by Tor , Girkin spoke on the morning of 17 July with Borodai about the current fighting, probably in the vicinity of Marinovka,  and the fact that only three out of 30 people on a certain hill had survived.  

The captured BMP is mentioned in another intercepted conversation between Dubinskiy and Kharchenko on 16 July 2014 at 19:13.  The BTR vehicles were also mentioned in an intercepted conversation between Dubinskiy and Kharchenko on the evening of 17 July. In that conversation (at 21:13) Dubinskiy says that the Buk should be escorted by BTRs.  Kharchenko explains that he has no BTRs, that the BTR guys have been completely overwhelmed and that no one he has asked knows what has happened to the vehicles. Kharchenko also says that everyone is wounded, and that he has taken his wounded men to the hospital.

Further information on these subjects in the case file 

The subjects discussed in the two intercepted telephone conversations – the dead and wounded, high-altitude air strikes, armoured vehicles and the damaged Strela-10 – also appear in other sources in the case file. 

Girkin’s VK post: damaged Strela-10

Around the halfway point of the video, a group of DPR fighters in a village can be seen. After discussing the fact that a Sushka was ‘active’, they enter a building to take shelter. It is clear from the case file that this part of the video was most likely shot in Marinovka.  In the intercepted phone conversation from the same day at 13:26, Pulatov and Kharchenko also discuss a Sushka which was strafing Kharchenko from above (‘Sushka is moving in there, fuck.... is fucking us from above!’), as well as mortar attacks. Pulatov then says that Kharchenko should ‘go inside the building, at the corners so that there is no one outside, shit!’ Pulatov also asks Kharchenko whether he can find fellow fighter Tor. It is also clear from a later conversation, at 17:11, that Kharchenko was indeed in Marinovka, the location of the video, that afternoon.  In that conversation, Kharchenko tells Dubinskiy that ‘they’ are bombarding his men. He also says that they are stationed in Marinovka. Apparently, Giurza (Pulatov’s call sign) had ordered him to the hold the village (‘I was ordered to hold the ground here in the village. Giurza gave the order and left.’).  

Life news broadcast: Sushkas and armoured vehicles

We will now look at another video from 16 July. This is a broadcast by news channel Lifenews.  Elements from the intercepted telephone conversations come up in this video as well. The video shows a captured BMP vehicle, the same type of vehicle mentioned in the previously shown post on the VK account Strelkov_info and discussed by Pulatov in the intercepted conversation. In addition a reporter in the video talks about Sushkas constantly flying overhead. 

Lifenews interview with Girkin: dead and wounded and armoured vehicles

In another Lifenews video broadcast from 16 July, the defendant Girkin is interviewed as he commands DPR troops in the vicinity of Marinovka.  In the video Girkin talks about dead and wounded fighters on the DPR side. The interview took place in the morning – several hours before the two intercepted phone conversations – while the fighting was still ongoing. Girkin also discusses the loss of a BTR and the capture of a BMP. We will now show the interview with Girkin.

Zavtra interview with Girkin: dead and wounded

The case file also contains another interview in which Girkin discussed the losses sustained by the DPR on 16 July. In the interview, conducted by the website Zavtra on 20 November 2014, Girkin discusses the through-route, or corridor, that the DPR tried to create in order to link up with the Russian Federation: 

Conversation involving Pulatov, 16 July at 20:11:57 (Tor, Cap, Piton and Krot)

Substance of conversation

We will now proceed with the intercepted conversation conducted on the evening of 16 July at 20:11.  The court also identified this conversation as relevant at last week’s hearing.  It is a discussion between Dubinskiy and Pulatov, in which Dubinskiy says that if the Buk-M arrives that night it will be taken immediately to Pulatov. Dubinskiy also discusses where the DPR fighters with call signs Tor, Cap, Piton and Krot should be deployed. We will now play this conversation. 

We will now look at what Dubinskiy says about each fighter mentioned – Tor, Cap, Piton and Krot – and what other information about them is contained in the case file. As we discuss this conversation, we will display a map from the case file to show that on 17 July – the day after the conversation took place – these fighters were in the vicinity of the missile launch location and at the locations where, according to the intercepted conversation, they were to be deployed.

Tor, Cap and Piton

First we will discuss the fighters with call signs Tor, Cap and Piton.

Tor

As the court noted last week, the case file shows that the call sign ‘Tor’ belonged to Averyanov.   Averyanov was a DPR commander who, according to the case file, was positioned to the south of Snizhne in the second half of July 2014.  As various intercepted conversations contained in the official report on the DPR’s chain of command show, Tor was under Girkin’s command. 

Cap

As the court noted last week, the case file shows that Cap (or Kep) was the call sign of Velikorodnyy.  Velikorodnyy was a DPR commander in the vicinity of Snizhne.  According to witness S40, Velikorodnyy was the Snizhne garrison commander around 17 July 2014. According to the case file, Cap was in the vicinity of this location as from 15 July.  The aforementioned official report on the DPR’s chain of command shows that Cap was under the command of Girkin and Dubinskiy. 

Piton

The case file shows that Piton was a DPR commander under Dubinskiy and Pulatov. The official report on the DPR’s chain of command contains several intercepted telephone conversations showing that Dubinskiy and Pulatov were Piton’s superiors. One example is a conversation in which Pulatov orders Piton to pick him up.  

Position of Tor, Kep and Piton on 17 July

Conversation involving Pulatov, 17 July 2014 at 09:31 (artillery support from Russian Federation)

The next conversation on the list is that of 17 July 2014 at 09:31. Dubinskiy called Pulatov and told him that Kharchenko would bring a Buk-M to him and that the Buk should be positioned in the vicinity of Pervomaiske. In this conversation, which was also played at last week’s hearing, Pulatov asks whether the ‘eastern neighbours’ can maybe give the Ukrainian army at Grigorovka a good kicking. Grigorovka is a village south of Stepanivka, close to the Ukrainian-Russian border. As a reminder we will now play the conversation again.
 

Other intercepted conversations

The DPR’s request for support in form of artillery from Russian territory is also discussed in other intercepted phone conversations from 16 and 17 July that are included in the case file. The report Primo-05427 contains an overview of these conversations.  For example, in the conversation we considered earlier, that of 16 July at 18:12, Dubinskiy says, ‘You mean Hryhorivka, right? (…) I’ve put the targets on the map. Now Pervyi is sending it there, to Moscow.’

Visual display of case file information about armed conflict

The assertion that the Ukrainian armed forces were exerting pressure from the direction of Grigorovka is consistent with the information in the case file describing the course of the armed conflict on 16 July 2014.

Conversation on 17 July 2014 at 09:55:20 (three Vostok tanks)

Less than half an hour after the exchange in which Dubinskiy told Pulatov that Kharchenko would bring a Buk-M to him and that it should be positioned in the vicinity of Pervomaiske, Pulatov received further instructions from Dubinskiy. In a conversation at 09:55:20, Dubinskiy ordered Pulatov to take his men and find Pervomaiske, remain on stand-by there and wait for Kharchenko, who would deliver the Buk. Pulatov is told to deploy his men to guard the Buk and take care of the logistical organisation. Pulatov said he would do all this, and would also keep the corridor clear. In this conversation Pulatov and Dubinskiy also discussed three Vostok tanks which had been a frequent topic of discussion that day among the defendants and others. The court identified this conversation as relevant last week. 

Vostok tanks

The case file contains multiple sources concerning another convoy of vehicles travelling the same route earlier that day. The court has already discussed the fact that various investigative findings, such as video footage, photos and social media posts, were analysed, and that on this basis the Joint Investigation Team (JIT) concluded that a convoy including three tanks had travelled the route from Donetsk to Snizhne on 17 July 2014, probably between 10:13 and 13:57. The court has noted in this connection that the JIT suspects that this was the Vostok convoy, in part because the words ‘Vostok Battalion’ were printed on the side of one of the tanks. The court has presented a map showing an overview of this convoy and containing the results of the aforementioned analysis. During the discussion of the Buk TELAR’s route, it also showed a video featuring a gun truck (Ural 4320-31) in Zuhres, which was followed by the low-loader carrying the Buk TELAR. The court observed in this connection that, according to the JIT, the same gun truck could be seen in other videos in which three tanks were also visible.  We will show one of these videos later in our presentation, in connection with the discussion of additional findings concerning the defendant Girkin. Another video showing the three tanks will be shown now, to supplement the material shown last week. 

In the video we just showed, a convoy can be seen, with a gun truck (Ural 4320-31) at the head and three tanks following behind.  The case file contains an official report explaining that this video was posted online on 17 July 2014, and that further investigation had revealed that it was shot in Makeevka. The Royal Netherlands Meteorological Institute (KNMI) established that these images are consistent with a recording time of between 10:10 and 10:27 on 17 July 2014.  

A further source is the finding that at 10:05 – just prior to the time frame identified by the KNMI – a mobile phone attributed to DPR fighter Dushman was transmitting to a phone mast in Makeevka.  As described in the case file, Dushman was supervising the so-called Vostok convoy, which included the three aforementioned tanks. 

Summary

We believe this information from the case file is relevant to the assessment of all the intercepted telephone conversations in which the three tanks of the Vostok Battalion and the Buk itself were discussed, and of the question whether these conversations contained disinformation or in fact reflected the reality of the situation: this series of conversations began with the exchange between Dubinskiy and Khodakovsky on the night of 16-17 July and contains numerous intercepted conversations in which Kharchenko and Pulatov participated.  In the conversation from 17 July 2014 at 09:55 that we played earlier, for example, Dubinskiy can be heard talking with Pulatov about ‘three rhinos from Vostok’.  As the court has previously noted, Pulatov said in his video statement that on 17 July 2014 he helped to transport a column of tanks to their locations and set them up.  

Conversations involving Pulatov, 17 July 2014 at 12:42:57 and 12:51:09 (‘The toy’)

Substance of these conversations

On 17 July 2014, at 12:42  and 12:51  in the afternoon, two conversations took place between Pulatov and Kharchenko. They discussed their rendezvous at the Furshet supermarket in Snizhne, where the ‘lowboy’ (low-loader) was also present. The court played and discussed these conversations at last week’s hearing. As far as the assessment of these conversations is concerned, we believe two elements to be particularly relevant: their relationship to the previous conversations on 17 July from 09:31 and 09:55 (in which Dubinskiy announces that Kharchenko will bring the Buk to Pulatov) and their relationship to information in the case file about sightings of the Buk TELAR at that time and place. The court has discussed this already, and we will not repeat the discussion here. We would however refer to other information in the case file about the term ‘toy’, which was used by Kharchenko in the 12:42 conversation.

As the court noted at last week’s hearing, in his video statement of October 2020 Pulatov said that the term ‘toy’ referred to portable equipment in general.  

Other intercepted conversations involving the word ‘toy’

The case file contains other intercepted phone conversations conducted by the defendants in which the term ‘toy’ was used.

Intercepted conversation of 19 July 2014 at 14:08:18

On 19 July 2014 at 14:08 a conversation took place between the defendants Dubinskiy and Kharchenko  in which the ‘the toy’ was also discussed. We will now play that conversation. 

Dubinskiy asks whether one of the people who guarded ‘the toy’ has deserted. Kharchenko says that the people who guarded ‘the toy’ are his men and that no one has deserted. They are Kharchenko’s men and they are all with him.

Intercepted conversation of 27 September 2014 at 14:41:26

On 27 September 2014 a conversation took place between the defendant Dubinskiy and a person known to him.  The court also identified this conversation as relevant at last week’s hearing.  In this conversation Dubinskiy learns that someone is looking for him in connection with the ‘Boeing’. This exchange took place after the public disclosure by the Ukrainian authorities in the preceding months of various intercepted phone conversations featuring Dubinskiy in relation to the MH17 disaster. Following the other person’s remark that Dubinskiy had been linked to the Boeing, Dubinskiy says the following:

‘When the toy was being moved around, got it. I mean the one, which was moved across the Republic’s area. Yes. It really features my voice. But it does not mean that someone was shooting down [...].’

Summary

The conversations of 19 July 2014 and 27 September 2014 in which the word ‘toy’ is used can be included in the assessment of Pulatov’s statement regarding the meaning of the term in the conversation that took place on 17 July 2014. 

Conversation on 17 July 2014 at 18:44:37 (Torez)

We will now discuss three conversations that took place after the downing of flight MH17. The first one we will play is the one that took place at 18:44:37.

In this intercept, Kharchenko calls Pulatov, who says he is driving at high speed in Torez and instructs Kharchenko to tell ‘that one’ that ‘our Buk’ has downed the Susha that shot down a Chinese passenger aircraft a short time earlier. Kharchenko is instructed to come to Pulatov via Torez. Pulatov will issue further instructions. Kharchenko says that everything is fine with the Buk and that it has been taken to another location.

This conversation can also be compared with information from other sources when assessing whether these conversations contain disinformation or in fact correspond with reality. The defendant Pulatov stated that after he was informed of the downing of an aircraft beyond Torez, he dropped everything and drove first in the direction of Torez and subsequently to Grabovo.  As discussed previously by the court, a message to the same effect was posted on the online forum Antikvariat by the user ‘Khalif’ on 25 April 2017. In this post, ‘Khalif’ writes: ‘After the Boeing crashed, I travelled to the Grabovo area within 20 minutes.’  As the court has noted, in the case file Khalif’s user account is attributed to the defendant Pulatov.

Besides the findings discussed previously, the historical telecom traffic data of Pulatov and Kharchenko’s phones is also relevant. The investigation revealed that the phone used by Pulatov (-2511) at the time of this intercepted conversation was transmitting to a phone mast in Torez. The phone number associated with Kharchenko (-7518) was transmitting to a phone mast in Pervomaiske at the time of the conversation, and subsequently, at 19.00, to a mast in Torez (in keeping with Pulatov’s instruction to travel via Torez).

Conversation on 17 July 2014 at 19:52:23 (Crash site, Ryazan and Piton, Marinovka)

In a conversation over an hour later, at 19.52.23, Dubinskiy instructs Pulatov to come to the base with Ryazan (Gilazov) and ‘Piton’. Kharchenko, he says, is to stay there. We will now play this conversation.

We can hear that Pulatov interrupts Dubinskiy after the former is instructed to come back and bring Ryazan and Piton with him. Pulatov says that he is currently at the crash site, but will head back. When Dubinskiy asks whether their Buk has been fired at all, Pulatov responds that the Buk downed the Sushka after the combat aircraft shot down the Boeing. Pulatov says that their people saw this from their position in Snizhne; Pulatov himself was in Marinovka at the time.

This conversation, and the conversations that took place before and after it have been extensively discussed by the court. We wish to add to that discussion by referring to a number of individuals and locations that come up in these conversations and which can be specified in more detail using telecom traffic data associated with the phones that were used. 

Crash site

Pulatov, for example, can be heard saying that he is at the location where the aircraft crashed. This is consistent with the telecom traffic data associated with the phone Pulatov used for this conversation. During the conversation the phone number that ends in ‘-2511’ was transmitting to a phone mast in Rozsypne, which is located within the crash site area. As the case file shows, the MH17 cockpit ended up in a sunflower field nearby Rozsypne.

Ryazan and Piton

In this conversation Dubinskiy can also be heard instructing Pulatov to return with Ryazan and Piton. Pulatov responds by saying that he will return. During this conversation Dubinskiy’s phone was transmitting to a mast in Donetsk. Pulatov’s telecom traffic data shows that slightly less than two hours after this conversation, at 21:42, this phone was transmitting to a mast in Pervomaiske. Later on, at 22.52 Pulatov’s phone could be seen transmitting to a mast in Makeevka, and later still, at 23:11, to a mast in Donetsk.  The same evening the phones of Ryazan and Piton also transmitted to phone masts in Pervomaiske, Makeevka and ultimately Donetsk. 

Marinovka

In the conversation Pulatov can be heard saying that he was in Marinovka at the time of the downing of flight MH17. The court has already referred to phone mast data and Pulatov’s statement, from which it can be concluded that at the time of the downing of flight MH17 he was indeed in the vicinity of Marinovka. 

Conversation on 17 July 2014 at 21:40:49 (contact with -6335)

The final conversation we will discuss in relation to Pulatov’s role is that which took place at 21:40:49. We will now play this conversation.

Here Kharchenko can be heard asking Pulatov whether he can make contact with ‘the fighters with that new box’. He wants to know where they are and where they are heading. Kharchenko has arrived already, but they are not at the rendezvous point. What is more, they have forgotten one of their men. Pulatov says he will try to make contact with the fighters in question. Kharchenko then informs Pulatov that Ryazan is waiting for him at the Furshet supermarket.

Shortly before this conversation took place, in an exchange which occurred at 21:32:39, Ryazan told Kharchenko that he was standing with a Buk crew member at the checkpoint, and that this man had been separated from his crew.

Contact with the phone number ending in -6335

As the court has discussed, the historical telecom traffic data of the phone number -2511 shows that, shortly after this conversation, between 21:42 and 22:53, the phone tried five times to connect with a phone number ending in -6335.  We believe it is also relevant to note that the data also shows that both numbers – Pulatov’s and the number ending in -6335 – had also tried to contact each other earlier that day. The telecom traffic data shows that -2511 tried to contact -6335 at 13:35. The latter number then tried contact the former (Pulatov’s number) at 13:51 and 13:52.  The phone mast to which -2511 was transmitting during these connection attempts is located on Gagarin Street in Snizhne.  The phone number -6335 was transmitting to the same mast between 13:52 and 14:02.  These times fall within the period in which the JIT has placed the transportation of the Buk TELAR from Snizhne to the launch location, as the court has previously discussed.
 
The telephone belonging to Ryazan, who according to Kharchenko’s remarks in the conversation was waiting next to the Furshet, was transmitting to antennas in Snizhne during those minutes.   

Conclusion

This concludes our discussion of information in the case file regarding topics discussed in intercepted phone conversations conducted by Pulatov on 16 and 17 July 2014. We believe this additional information is relevant to the assessment of those intercepted conversations, especially in regard to the question of whether they contain disinformation, as Pulatov claims, or whether they actually reflect the reality of the situation.

Question 3: defendant Girkin

Introduction

Last week the court discussed a great deal of information concerning defendant Girkin. For example, the court noted that:

• according to the ‘Constitution of the DPR’, published on 14 May 2014, Girkin had overall authority over various armed units of the DPR, each of which had its own local commander; 
• both Dubinskiy and Pulatov said in the course of the armed conflict in 2014 that they reported to Girkin, and Pulatov also stated that Kharchenko reported to Girkin;
• in two intercepted phone conversations on 8 June 2014, Girkin requested a decent air defence system;
• a witness who worked for the DPR administration stated that requests from Girkin for military materiel were relayed via Borodai to the Russian military intelligence service, GRU;
• the case file contains an official report describing multiple photos and videos that show a Buk TELAR being carried by Volvo trailer-truck that had been seized by Girkin’s men earlier in July 2014;  
• various intercepted phone conversations on 16, 17 and 18 July 2014 either feature or are about Girkin.

We would like to submit additions to this discussion in regard to five points.

Meeting and instructions on the morning of 17 July 2014

The first point concerns a meeting of several of the defendants at DPR headquarters in Donetsk on the morning of 17 July 2014, and the instructions that Girkin gave to Pulatov around that time. The court has referred, for example, to an intercepted conversation that took place at 09:20:25, in which it is clear that Dubinskiy is with Girkin, and Kharchenko can be heard saying he is coming to meet him.  We would note that the case file also contains a conversation that took place at 09:46:27 in which Kharchenko tells a woman that he is at ‘headquarters’.  This appears to confirm that Kharchenko was indeed present in the DPR building in Donetsk that morning. The presence of all three of these defendants (Girkin, Dubinskiy and Kharchenko) there is consistent with the location of their phones as determined by the investigation.  Girkin and his assistant conducted several phone conversations that morning at around 08:30. These revealed that Girkin was simultaneously also using other secure connections. 

In the minutes following the conversation at 09:20:25, Dubinskiy had various phone conversations about the Buk TELAR. At 09:22:19 he spoke with Chernykh about whether he had brought one or two of them. At 09:23:13 he spoke with Semenov about whether ‘his’ (Dubinskiy’s) Buk-M could be included in Semenov’s convoy. Next, at 09:24:51 he spoke again with Chernykh, telling him that he should turn around and head to the three Vostok tanks that were positioned between the ‘motel’ and Makeevka. The court has noted these conversations. However, there has not been much in the way of specific discussion of the fact that these conversations took place a matter of minutes after Dubinskiy said that he was with Girkin.

Shortly afterwards, at 09:31:30 and 09:55:20, two more conversations took place, in which Dubinskiy gave instructions to Pulatov about the placement and security of the Buk, and in which other subjects involving the armed conflict were discussed. In the latter conversation Pulatov says that he understands, because he has just spoken to Girkin.  A few minutes later, at 10:01:03, Girkin speaks with Averyanov (Tor), explaining that he has given Pulatov (Giurza) all the instructions. The court did refer to this last conversation, but in a different part of its discussion to the conversation at 09:55:20. The Public Prosecution Service believes that these two intercepted conversations (09:55:20 and 10:01:03) should be viewed in relation to each other when assessing the question of what instructions Pulatov received from Girkin on the morning of 17 July 2014.

Use of a ‘Utios’ in the removal of the Buk TELAR

The second addition the Public Prosecution Service wishes to submit concerns several intercepted phone conversations that took place shortly after 23:00 on the evening of 17 July. According to the investigation team, these related to the removal of the Buk TELAR from the launch site. Although the removal operation took place after the downing of flight MH17, actions carried out after the crime was committed may be relevant when considering whether there was (functional) co-perpetration in this case.  We therefore believe that the information in the case file about Girkin’s role in the removal of the Buk TELAR is sufficiently important to warrant further discussion.

The court has already identified as relevant the fact that at 23:05:49 Girkin enquired (via his assistant) if Dubinskiy knew whether the ‘damaged tank’ was already on the move, and that a few minutes later, at 23:12:17, Dubinskiy called Kharchenko to ask where he had taken ‘it’.  Kharchenko answers that ‘it’ is still with him in Snizhne and has just been driven onto the platform. Kharchenko says that he will escort ‘it’ as far as Debaltseve, and Dubinskiy responds that he should let ‘the guys’ do that.  As the court has discussed previously, the case file contains information about witnesses S21 and S07, who according to S21’s statement were both involved in the removal of the Buk TELAR from Snizhne to Debaltseve, though S07 has denied this.  We would point out that the intercepted conversation of 23:12:17 (concerning something that has been driven onto the platform in Snizhne and needs to be transported as far as Debaltseve) contains the following passage, which has not yet been identified as relevant by the court.

Kharchenko:     ‘Actually, guys will escort it or should I escort it?’
Dubinskiy:     ‘No, why should you do it, damn? Let the guys escort it. What are they escorting it on?’
Kharchenko:    ‘Well... Utios.’
Dubinskiy:    ‘I see, I see.’

As the case file shows, ‘Utios’ is the name of a large-calibre machine gun.  In the statement he gave to the Russian authorities, Girkin said that the DPR possessed anti-aircraft guns of the ‘Utios’ type.  

As the court noted last week, S21 stated that he, together with S07 and others, had escorted the Buk to Debaltseve using a black Volkswagen Amarok pick-up truck with a mounted machine gun.  S07 stated that in mid-July 2014 he saw a vehicle in Snizhne fitted with a large-calibre machine gun. He described this as an ‘Utios type machine gun’.  Witness M58 stated that during the fighting in Marinovka the separatists had used a black pick-up truck with a large mounted machine gun that looked like an ‘Utios, a Russian machine gun’.  The black VW Amarok with mounted machine gun that S21 identified on a photo as one of the vehicles used to transport the Buk to Debaltseve is the same vehicle that S07 described as a black-painted Volkswagen with an ‘Utios type machine gun’.  In our view the statements on this subject by S07 and S21 in particular should be considered in relation to the part of the 23:12:07 conversation concerning the ‘Utios’. 

Girkin conversation on 18 July at 02:16:41 (Dubinskiy should go himself)

Our third addition concerns an intercepted phone conversation that Girkin had with Dubinskiy on 18 July at 02:16:41. The court described this conversation last week.  It took place after a series of back-and-forth phone calls between various separatists about the transfer of ‘the thing’ which needed escorting and which had to be handed over to an escort team coming from Luhansk. Girkin calls Dubinskiy to ask if he has been able to make contact. No, Dubinskiy replies, because he can’t contact the relevant person and Kharchenko is not answering. Girkin becomes angry and says that the men from Luhansk had arrived, but that apparently one of Dubinskiy’s men had independently decided to go back to where they had come from. Amid much cursing, Girkin orders Dubinskiy to go there himself.

We will now play that conversation, because in our view it offers a good impression of the way in which Girkin involved himself in the removal of the Buk TELAR.

The conversation thus ends with Dubinskiy’s announcement that he will go ‘there’. Dubinskiy’s telecom data shows that after this conversation he made several unsuccessful attempts to phone Kharchenko and the number belonging to S21. No travel by Dubinskiy can be seen in his telecom data that night.

Kep’s report to Girkin

Introduction

The fourth addition we wish to submit in regard to the role played by defendant Girkin concerns his own statement about the course of events on the afternoon of 17 July 2014. Of relevance in this regard is the relationship between the whereabouts on 17 July 2014 of DPR commander Kep and Girkin’s statement that it was Kep who told him on the afternoon of 17 July 2014 about the downing of an aircraft by the separatists.
 
Last week the court noted that in 2015 Girkin stated to the Russian authorities that on 17 July 2014 at ‘around 16:30 Moscow time’ he was informed by ‘the commander of a people’s army unit using the code name “Kep” about the air defence system hitting one of the Ukrainian air forces’ two SU-25 aircraft.’ This had apparently occurred in the area to the north of the town of Snezhnoye.  ‘Snezhnoye’ is the Russian name of the place also known as Snizhne. We will now show this part of Girkin’s statement.

Further information about this meeting is available. The case file contains an intercepted phone conversation between Girkin and another DPR commander, which took place on 17 July 2014 at 10.01. In this conversation reference is made to a meeting that is currently under way. Also audible is the comment that ‘Kep’ has arrived. The court noted this conversation at last week’s hearing. We will play it now.

We have now discussed several conversations in which the participation of ‘Cap’/’Kep’ in the fighting at Marinovka on 16 and 17 July 2014 was a topic of discussion.  These conversations are in keeping with various other exchanges on 16 and 17 July where reference was made to the fact that units commanded by ‘Cap’/’Kep’ would be arriving to replace Kharchenko. 

Last week the court noted that it can be concluded from a intercepted conversation of 17 July 2014 at 07:05:46 (in which it can be heard that Kharchenko is in Donetsk at that time) that ‘Cap’ too has remained in the vicinity of Snizhne. 

Cap’s location and relevance on 17 July 2014

In summary, the case file contains the following information concerning the points we have just discussed. Various avenues of investigation have revealed no information whatsoever about any aircraft being shot down on 17 July 2014 other than flight MH17. Various intercepted phone conversations in the case file show that the DPR commander Cap was in Snizhne and (the vicinity of) Marinovka on 17 July 2014. In his statement Girkin mentioned a report he received from a commander with the alias ‘Kep’ about an aircraft being hit to the north of Snizhne. The area between Snizhne and Marinovka, where Cap was operating on 17 July 2014, includes the launch location near Pervomaiskiy designated in the case file. We are now showing that on this map.

Regarding the question of who downed the aircraft, the separatist named Mamiev poses a counter question: who here could do it? ‘Who has got a Buk?’ When the other party suggests that it could have been the Ukrainians, Mamiev says, ‘Not the Ukrainians, damn it. Strelkov!’ As the court noted last week, Strelkov is an alias used by Girkin.
 
Mamiev was identified in the course of the investigation. He is a fighter from the Vostok battalion who had frequent phone contact with Vostok commander Semenov, who came up at last week’s hearing.  On 17 July 2014 his phone was transmitting to masts along the route which, according to the investigation team, was taken both by Semenov’s convoy containing the three Vostok tanks and by the Buk TELAR.  Mamiev can also be seen in video footage of the convoy, where he himself provides commentary.  We will now show a clip of that footage.  The gun truck noted by the court last week can be seen in the footage, as can the Vostok tanks. The words ‘Vostok Battalion’ are written in Russian on the side of the tank in front, the tank that features most prominently in the footage. 

According to the investigation team this footage was shot between Shaktharsk and Torez. As the court noted last week the JIT concluded that the Buk convoy overtook the Vostok tank convoy a little further along the route in the vicinity of Zuhres.  In our view, the findings that a) Mamiev was part of the Vostok battalion and travelled with the Vostok tank convoy that was originally supposed to include the Buk TELAR on 17 July, and b) the convoy was later overtaken by the Buk TELAR, mean that the conversation on 17 July 2014 in which Mamiev says that Strelkov is the one ‘who has got a Buk’ is worthy of mention.

Mamiev also had a second phone conversation that evening, in which he discussed who was responsible for the downing of flight MH17. This conversation took place at 23:07:52 He first wonders where the missile came from: from a ground-based Buk system or an aircraft? A short time later he says, ‘Me, I reckon if they realise that Strelok had a hand in this, well, - I’ll feel sorry for him.’ The other party to the conversation then asks whether he will be removed if it turns out that his people did this. Mamiev says no at first, but when he is asked again, he says maybe.

As the court noted last week, ‘Strelok’ is another alias used by Girkin in Ukraine, and Girkin left Ukraine in August 2014.
 
Speaking in a 2019 interview about his departure from Ukraine, Girkin said that he had been willing to remain, but he was not given the opportunity to do so.