Court session 26 June 2020

Excerpts from the presentation of the public prosecutors on 26 July 2020

Framework for assessing the defendant’s requests for further investigation

Defendant Oleg Pulatov has submitted a large number of requests for further investigation. The law lays down rules for how these requests must be submitted and assessed. The court has previously referred to these rules and the relevant case law. At that time, the court rightly noted that while the right to a fair trial may dictate that requests submitted in connection with a pre-trial review hearing must, formally speaking, be assessed in the light of the necessity criterion, the application of this criterion is not appreciably different from the requirements associated with conducting a proper defence. This rule stems from a judgment by the Supreme Court of the Netherlands of 19 June 2007 and was subsequently reaffirmed in the general ruling of 1 July 2014 on calling and examining witnesses in court at the request of the defence. This case law deals with requests to examine witnesses and experts. Other types of requests, such as a request for an expert report, cannot be equated to requests to examine a witness or expert, and for the former type of request, the ‘regular’ necessity criterion continues to apply. This means that in the case of a request that deals with something other than the examination of witnesses and experts, the court has more leeway to deny the request on the grounds that it considers itself to be adequately informed on the point in question. The court’s view on what constitutes necessary further investigation will obviously be influenced in part by its duty to guarantee a fair trial for the defendant. However, higher demands are placed on the grounds for requests to which the ‘regular’ necessity criterion applies than on grounds for requests that are materially governed by the other party’s right to mount a proper defence. The former is concerned with whether the action requested is relevant to establishing the truth, whereas the latter foregrounds the perspective of the defence.

In our response we will regularly explore the related questions of what statutory requirements apply to the assessment of the defendant’s requests for further investigation and of what outcome an assessment of the requests in light of those requirements will produce.

That outcome is that the great majority of Pulatov’s requests for further investigation must be denied. This mainly has to do with Pulatov’s own choices: not calling any witnesses about the incriminating evidence against him, calling many witnesses without specifying what relevant information they could provide, and calling a considerable number of witnesses on the basis of a factually incorrect presentation of the case file. In the Dutch criminal justice system, defendants have a great deal of scope when it comes to being granted further relevant investigation. They have broad scope to have incriminating evidence investigated further. For example, few requirements are placed on the examination of incriminating witnesses, provided the defendant submits the request in good time. Defendants can also ask for further investigation of alternative scenarios, provided they submit a specific, well-reasoned request to that end.

All requests for further investigation must be sufficiently specific and clear and must be accompanied by adequate reasoning. Regardless of the relevant criterion and the way it is applied, when the defence asks a trial judge for permission to conduct further investigation, it must substantiate its request so as to enable the court to assess the relevance of the request in the light of the applicable statutory provisions. This substantiation must include an explanation of why the further investigation is important in respect of any decision to be made pursuant to articles 348 and 350 of the Criminal Code. If, for example, the defence does not specify the matters about which a given witness is to be examined, does not dispute the statement given to the police or does not explain the relevance of what the witness might say, the request should be regarded as insufficiently substantiated. An in-depth explanation of the reasons why, for example, the defence feels that it is important to question a particular witness, is not automatically sufficient. The court can conclude that the request is sufficiently substantiated only if the arguments adduced show that the investigation is relevant to the outcome of the case, and why.

What a defendant explicitly does not have is an unlimited right to have the entire investigation in general evaluated or ‘re-done’. Amsterdam Court of Appeal formulated this principle as follows:

‘In explaining its request, the defence repeatedly invoked the principle of “equality of arms”. […] Contrary to what defence counsel appears to assume, this does not mean that the defendant can avail themselves of all the information gathered in the course of the investigation. Nor does it imply the existence of an unlimited right to question or interview officials involved in the investigation and prosecution. […] In other words, a defendant’s right to be granted the opportunity to dispute the methods and results of the investigation does not constitute an unconditional right to evaluate them. It would seem that in formulating and explaining his request, defence counsel presumed – wrongly – that such an unconditional right existed.’

An unconditional right to evaluate the criminal investigation is exactly what Pulatov is now asking of the court. The explanation presented by the defence repeatedly speaks of a wish to evaluate the criminal investigation, to verify the evidence, to conduct investigation that may or may not produce any useful information, and to conduct ‘further investigation to determine whether or not speculation can be confirmed as fact’. The defence team have also stated more than once that they themselves do not actually believe in the scenarios they wish to investigate, or about which they wish to examine witnesses, and that these are theoretical possibilities or scenarios that ‘sound improbable’.

Neither the Dutch justice system nor the European Convention on Human Rights allows such a general ‘evaluative’ or speculative investigation if a defendant does not even attempt to specify or adequately substantiate his requests. A defendant wishing to have an investigation conducted into an alternative scenario must explain why the scenario is at least faintly plausible. Anyone who has access to audio recordings of incriminating conversations, as Pulatov does, is capable of checking the translation of those conversations himself. Then he can point to passages he believes were mistranslated, if there are indeed grounds to doubt the accuracy of the translation. Anyone who fails to do this, and thus does not present specific reasons why there is cause to doubt the quality of the translations in the case file – even though he has had ample opportunity to do so – has no interest in broadly formulated requests to question translators about how they did their work.

Anyone who chooses not to request access to, say, all intercepted conversations involving a particular person over a relevant period but instead asks for all intercepted conversations and all metadata is opting to submit requests which, pursuant to the statutory criteria, must be denied on the grounds that they are nothing more than a unspecified fishing expedition.

It was therefore Pulatov’s choice to submit many requests that plainly cannot be granted. It was also his choice not to submit many other requests that would have been granted, such as for the examination of incriminating witnesses now that there is an opportunity to do so without delaying the trial.

The requests Pulatov has made and the explanations he has offered for them sometimes stray so far from what the law requires that one cannot help but ask if he genuinely intends to have the requested investigation conducted. Some requests seem to be intended solely to illustrate the point that there are limits to what can be investigated in this trial. A good example is his request to question researchers from the Dutch Safety Board (OVV). In its explanation of this request, the defence itself refers to the rules governing the relationship between the OVV investigation and the criminal investigation. The defence therefore knows that, under Dutch law, OVV researchers cannot be called to testify in a criminal trial. This rule exists to ensure that the OVV can do its work effectively, without staff members refusing to cooperate because they fear they may be prosecuted as a consequence of the OVV’s investigation. Pulatov is making this request in the knowledge that it cannot be granted.

Other requests are substantiated in such a way that it raises the question of whether the defendant truly wants this further investigation to take place. Take Pulatov’s contention that investigation into the failure to close the airspace is necessary with regard to ‘a claim of self-defence and, as a last resort, in connection with a defence against the sentence demanded by the prosecution’. In March, Pulatov indicated that he denies any involvement in the offences with which he is charged. He is also known to have travelled to a neighbouring country to take up arms against the government there. These facts alone make a claim of self-defence highly unlikely: after all, of his own accord, he unlawfully and without good reason sought to become involved in an armed conflict against the lawful government of another country. Moreover, there is not a single concrete lead in the case file that would constitute grounds for an investigation into a self-defence scenario. Back in March we pointed out that a statement by Pulatov could justify this type of investigation, but not a simple request from his defence team. Now, in submitting this request, Pulatov’s counsel has again emphasised in court that a claim of self-defence is currently ‘only a theory’. Defence counsel does so knowing full well that requests to investigate theoretical possibilities that run counter to what the defendant himself has stated and for which there are no indications will never be granted, not even if they relate to matters that are of understandable interest but irrelevant to this case.

Whatever Pulatov’s reasons are for choosing this strategy, they do not warrant deviating from the statutory framework for assessing requests for further investigation. The statutory rules on demands and requests for further investigation have an important function: they offer guidance to the court in weighing up the various rights and interests at play in a criminal trial, specifically the defendant’s right to a fair trial, the right of the defendant and the next of kin to an expeditious trial and society’s interest in the efficient administration of criminal justice. The court has no scope for adding its own interpretation to the statutory rules, as this would come at the expense of defendants’ equality before the law. It would also adversely affect the interests I just mentioned. A court that grants fewer requests for further investigation than the law requires is harming the defendant, but a court that grants more requests for further investigation than the law requires is harming the next of kin and the efficient administration of criminal justice. The law must therefore be applied as it was intended. Where substantiation is required, it must be provided. While the law demands that a scenario must be faintly plausible in order for the court to grant a request for further investigation, it is not enough for the defence to simply state that it is asking for an investigation into a theoretical possibility that it would like to explore.

In the interests of efficiency, we have always tried to find ways of interpreting defence requests in such a way that they can at least be granted in part, or we have sought to find alternatives that accommodate the defence’s apparent purpose.

Requests for investigation and the evidence in the case file

Pulatov has formulated many requests for further investigation that relate to alternative scenarios. In each case his reasoning is that these alternative scenarios cannot yet be ruled out by the evidence presented in the case file. The problem with this is that in doing so he completely ignores the incriminating evidence in the case file, even though that very evidence is now the basis for invoking an alternative scenario. The question of whether this defence is faintly plausible must also be assessed in light of that evidence.

If Pulatov wants further investigation into what the defence itself concedes is the theoretical possibility that a fighter aircraft or a Ukrainian Buk shot down MH17, such a request is undermined not only by a lack of concrete indications pointing to such scenarios and the presence of various concrete counter-indications. It is also undermined by solid evidence from many different sources in support of the scenario outlined in the indictment. In our explanatory presentation we discussed that evidence only in general terms because, at the time, we did not yet know what sort of requests Pulatov planned to submit. Now that Pulatov has formulated various requests for further investigation into scenarios that have already been ruled out by the evidence in the case file, we will have to go into greater detail about the nature of that evidence. To that end, we will offer a few examples of forensic evidence, intercepted telephone conversations and witness statements, in that order.

Forensic evidence

First, we will consider a small segment of the results of the forensic investigation, which can be explained by the use of a Buk missile, but which would make no sense if MH17 had been shot down by a fighter aircraft.

For example: Fragments of a 9N314M warhead

To begin with, we would refer to the examination of the bodies of the victims who were in the cockpit at the time the aircraft was downed. The Public Prosecution Service realises that this part of the investigation is still painful for the next of kin, but unfortunately it cannot be avoided.

The autopsies performed on the captain and co-pilot of team A and the purser found small metallic fragments in the victims’ bodies. The Netherlands Forensic Institute (NFI) analysed these fragments. This analysis revealed that these fragments exhibited (morphological) characteristics that are specific to an explosion. Furthermore, a glassy material containing zirconium was found on the surface of these fragments of aluminium. The composition of this glassy material was consistent with that of cockpit glass. In addition, the elemental composition of these fragments consisted of iron, with traces of silicon, chromium, manganese and copper. According to the NFI the fragments probably came from a weapon that exploded outside the aircraft.

One of the fragments had a recognisable bowtie shape; another was clearly tile-shaped.

In addition, steel particles were found in the forward pressure bulkhead of the cockpit. One of these was recognisably bowtie-shaped; another was rectangular.

These and other fragments found in the cockpit were examined by the NFI. Here, too, the elemental composition of these fragments consisted of iron, with traces of silicon, chromium, manganese and copper.

The NFI conducted further investigation into the possible relationship between the fragments found on and in the bodies of the aforementioned victims and the fragments found in the wreckage. Their focus was mainly on the elemental composition of the fragments and the material found on the surface. Briefly summarised, the NFI’s conclusion was that the fragments found in the bodies of the cockpit crew had the same elemental composition as the fragments found in the wreckage, that the fragments were indistinguishable from one another, and that these fragments – if they were from a source that was in any way similar to a 9N314M warhead – must have come from the same source.

In addition, research was done to determine if the source of these fragments was indeed a 9N314M warhead. The NFI compared the composition of the fragments secured from these victims and from various pieces of wreckage to the elemental composition of fragments from various reference warheads of the type 9N314M. Specifically, these were the reference warheads that were dismantled in 2014 and 2016, and the fragments that were secured following the arena tests in Finland and Ukraine. The test in Finland also used a Boeing cockpit window.

The NFI stated the following about the glass found on the fragments that were embedded in the bodies of the crew:

‘Cockpit glass was found on many of the fragments retrieved from the victims and the wreckage, both in the form of small individual pieces and in the form of thin layers. The discovery of thin layers of (melted) cockpit glass inside victims can only be explained if the fragments came from outside the aircraft. There is no other conceivable scenario in which fragments coated with thin layers of cockpit glass could have found their way into the victims’ bodies. Similar layers were also found on fragments secured following the arena test in Finland.’

The NFI further concluded that the fragments taken from the victims and the wreckage are consistent with the fragments secured in the arena tests in Ukraine and Finland in every examined respect and that they are indistinguishable.

A warhead of the type 9N314M contains three kinds of fragments: bowtie-shaped, tile-shaped and rectangular. These same three types were found in the bodies of victims or in the wreckage. These fragments are similar to those of multiple reference warheads not only in terms of their elemental composition, but also in terms of their shape. The Public Prosecution Service is not aware of any other warheads that contain this combination of fragments. According to Russian sources and the Dutch Aerospace Centre (NLR), the bowtie-shaped fragment is only found in the 9N314M warhead of a Buk missile.

The discovery of these bowtie-shaped fragments can only be explained in one way and that is by the detonation of a 9N314M warhead. This type of warhead can only be found in Buk missiles of the type 9M38 and 9M38M1. If a 9N314M warhead was used, traces of a 9M38-series missile must have been found as well. And indeed, that was the case.

For example: Umbilical base plate of a 9M38(M1) missile

In December 2014 an investigation was conducted of the left cockpit window frame groove. In the course of this investigation a green metal object was found. This object, which did not come from the aircraft, is referred to in the case file as the ‘green lump’, on account of its colour and shape.

The forensic investigators concluded that, given its shape and the direction of the damage to the cockpit window frame, the undisturbed layer of soot on the window frame and on the green metal lump, it is unlikely that this object could have pierced the cockpit window frame at any point other than when the other damage and penetrations were occurring.

The official report on the securing of this green metal lump includes an extensive set of photos, which not only clearly show how the object was embedded in the groove of the window frame but also where the window frame was located. The red arrow in the next image shows that the window frame is question is from the second left cockpit window. The next three images clearly show how the green lump was jammed into the window frame groove.

The case file contains an (additional) official report about the damage sustained. That report contains a photo that shows the reconstruction in an advanced stage. In this image you can clearly see the position of the window frame in question.

The green lump was analysed in a variety of ways:

• Physical comparison

For example, an expert from the Australian Federal Police (AFP) compared it (and other material that did not come from the aircraft) to reference material (a 9M38 and a 9M38M1 Buk missile). The conclusion of this comparison was that in every examined respect the green metal lump exhibited visual similarities to the umbilical base plate of the tail section of a 9M38 or 9M38M1 missile. The meticulous way this examination was conducted is described in the AFP report and can be seen in photos 516 to 636 in the media file. We will now show five of these photos.

• Metallurgic comparison

The NFI also examined this green lump, which was found to consist of martensitic stainless steel. The umbilical base plates and slide covers of a Buk missile (from the 9M38 series) also consist of this type of stainless steel. No other stainless steel was found in the three reference missiles with a similar elemental composition and micro structure.

This is not the only object found which does not come from the aircraft but which is similar to a particular part of a Buk missile. Several such objects were found in the investigation: objects which are not from the aircraft but which are consistent with the use of a Buk missile.  One of these is a piece of stainless steel which was found wedged into a piece of the metal frame of the aircraft.  Here, too, the NFI was asked to determine the elemental composition, and the Australian Federal Police to conduct a comparative visual examination.

A third example is a piece of stainless steel which investigators found in the body of the first officer of team B.

At 19.52 Pulatov and Dubinskiy spoke on the telephone. In that conversation Dubinskiy asked: ‘Tell me, was our Buk fired or not?’ Pulatov replied: ‘The Buk shot down a Sushka after the Sushka shot down the Boeing.’

A few minutes later, at 19.54, Dubinskiy (A) called Girkin (B). Here is an excerpt of this conversation:

Dubinskiy: So, people from Snezhnoye and our people saw...so the point is that Sushka fucking hit Boeing and then in...our people hit Sushka the second time it was coming around and a lot of people saw this. Giurza has reported on this.

Girkin: So, this is the way how it happened. I got it. Good.

Dubinbskiy: Sushka fucking hit Boeing and our people fucking hit Sushka with a Buk.

Girkin: Uh-huh.

Dubinskiy: Good news. [inaudible]

Girkin: Well, I don’t know. Frankly speaking, I don’t believe in this much, but...

Dubinskiy: Anyway they will put blame for the downing on us. You know what I mean.

Girkin: Of course, I do. 

These conversations do not stand in isolation. They are confirmed in various ways by photos or video footage. As previously noted, Girkin stated to the Russian authorities that on 17 July 2014, after the downing of MH17, he was informed that ‘the air defence’ had shot down an aircraft. By now it is common knowledge that on the afternoon of 17 July 2014 only one aircraft was shot down in Ukraine. Since that date, no wreckage of a fighter aircraft has been found. According to the radar data, there was no other aircraft in the vicinity of flight MH17.

Examples: witness statements

In addition, there are various witnesses who have given statements about the deployment of the Buk TELAR. First, there is the evidence that the white Volvo truck and the red low-loader, which carried the TELAR and of which we have numerous images from 17 and 18 July 2014, were stolen as early as 8 July 2014 on Girkin’s orders and had been used since that time by the DPR. We know this thanks in part to the statement given by the DPR fighter with the call sign ‘Batya’. Batya describes the confiscation of the Volvo, an act in which he was personally involved. There are also various eye witnesses who saw the TELAR on 17 July 2014, first on the stolen trailer and, as of that afternoon, driving under its own power from Snizhne to the agricultural field near Pervomaiskyi. For example, witness S20 stated that around 12.30 on 17 July 2014 he saw a low-loader carrying a missile system, not far from the Furshet supermarket in Snizhne. Witness V7 stated that around 14.00 he saw an SUV and a Buk vehicle driving in Snizhne. The vehicle stopped near Café Uholok. Witnesses X48 and M58 were present at the TELAR’s final destination. They stated that the Buk TELAR had fired a missile from the agricultural field near Pervomaiskyi. The DPR fighter M58 stated that those present were initially pleased, because they were told that a military transport plane had been shot down. However, when the first people returned from the crash site they said that it was a civilian aircraft. Finally, we will mention D21, another DPR fighter, who gave a detailed statement about his involvement in transporting the Buk TELAR back from Snizhne, after MH17 had been shot down.

Conclusion

The evidence in the case file is extensive and multifaceted, and it has been subjected to a thorough analysis. The court does not have to pass judgment on that evidence now. However, Pulatov is asking the court to order the in-depth investigation of a great many theories, speculations and improbabilities. Of relevance in that regard is whether the content of the case file offers scope for calling witnesses in order to explore mere possibilities. In making this determination, the court must consider the content of the case file as a whole – not only the information about a given alternative scenario, but also the evidence for the main scenario.

Let us take a step back and see how this works in another type of criminal case. Take the example of an investigation into an underworld killing. Instead of shooting the intended target, a competitor, the gunman accidentally kills a random passer-by. The suspect is then prosecuted for involvement in that murder. If the defence subsequently wishes to investigate the alternative scenario that the victim might instead have been stabbed to death, this request is undermined by the fact that the victim died of bullet wounds and has no stab wounds, by the presence of intercepted telephone conversations in the case file in which the defendants are heard planning the shooting beforehand and evaluating it afterwards, and by a statement given by an accomplice who threw away the weapon following the commission of the crime, after being asked to do so. In a case like this it would serve no reasonable purpose to order an investigation into the question of whether the victim also had injuries that theoretically could have been caused by a knife, or to question the neighbour from two streets away about his claim that he heard in the pub that the victim had been stabbed.

An overview of our response to the requests

Requests for access to evidence

As explained previously, we will make a full inventory of the requests for access to evidence made by the defendant. We will communicate our decision on those requests as soon as the inventory is completed. We expect to be able to do so within two weeks.

Requests for further investigation

As we have explained, the Public Prosecution Service has determined that the following requests for further investigation can be granted:

• the request to add to the case file the following audio recordings: from the Air Traffic Control Centre, of telephone communications between Ukrainian air traffic controllers (АТС Dnipropetrovsk) and Russian air traffic controllers (АТС Rostov) and of the radio communication between the Ukrainian air traffic controllers (АТС Dnipropetrovsk) and civilian aircraft;
• the request formulated in part 5, marginal number 23, in so far that the examining magistrate will be instructed to:
  • appoint designated experts with a view to examining how the launch area was calculated;
  • conduct an investigation into the expertise of staff members involved in the calculations made by Almaz Antey and, in so far as they are found to have the necessary expertise, to ask them to examine how the launch area was calculated.
  • to make arrangements for all the officially appointed experts (including the previously appointed expert of NLR) to be given an opportunity to study each other’s reports and relevant appendices or underlying documents;
  • after which the experts from the NLR, the RMA and Almaz Antey will produce a report in which they address each other’s findings and respond to written questions posed by the examining magistrate, the defence and the Public Prosecution Service;
• the request to question reporting officers 17-496, 17-495, 17-511 and 17-512, who secured an engine casing and three missile fragments in the disaster area (part 7, marginal number 27), albeit by the examining magistrate; 
• the request to examine reporting officer Primo 17-170 as a witness.

Furthermore, the OM will not oppose the following:

• the request to examine S09 as a witness;
• the request to examine radar expert D21 as a witness;
• the request to examine  an expert witness;
• the request to examine a witness about the capabilities and workings of a Buk system.

The Public Prosecution Service is opposed to all other requests for investigation because they are insufficiently substantiated.

The Public Prosecution Service is, however, willing to offer Pulatov (supplementing the defence team’s requests for access to certain material, which the Public Prosecution Service will decide on as soon as possible):

• access to the statement Haisenko gave to the JIT, so that the defence can make its own determination of its relevance and afterwards can if necessary request that this statement be added to the case file;
• the opportunity to listen to the entire CVR recording, if it so wishes in the presence of its own expert;
• access to a large number of photos of the crash site and of the wreckage, so that the defence can ask for certain specific photos that it deems relevant to be added to the case file;
• the ability to review documents designated in the case file as ‘not added’;
• a review of witness interviews to determine if more procedural information should be added to the case file in light of questions on this subject posed by the defence;
• the evaluation of specific translations in the case file, provided the defence has solid grounds to doubt their quality, and if necessary, the commissioning of a re-translation;
• a response to specific questions about the case file posed by the defence, if necessary in the form of a supplementary official report;
• favourable consideration to any substantiated and specific requests for access that the defence may submit in the future.