Court session 31 August 2020

Practical considerations regarding the exercise of rights

Numbers of next of kin

In order to ensure the next of kin will be able to exercise their rights, the Public Prosecution Service conducted a survey in December 2019 to determine their wishes. The outcome of the survey has been shared with the court already. Today the Legal Aid Team (RBT) provided an updated overview of the number of next of kin it represents and the rights that they wish to exercise.

There is no current information regarding the views of the next of kin who are not represented by the RBT. Some next of kin stated in December 2019 that they had not yet decided whether they wished to exercise their rights in court and some did not respond at all. To date, the Public Prosecution Service has received 11 written statements and one video statement. In order to fully understand the current wishes of all the next of kin, in September 2020 the Public Prosecution Service will, in consultation and coordination with the RBT, send out another form in which the next of kin can indicate their wishes. In it, the next of kin will be asked to state:

• whether they wish to exercise their right to address the court;
• whether they wish to submit a written statement; and
• whether they intend to submit a compensation claim.

More detailed questions can also be asked to find out information that will aid in planning the hearings, for example which language respondents intend to speak so that interpreters can be present. We ask the court to let us know if it has questions relating to this matter so that we can include them in our survey. The information regarding which next of kin wish to exercise their rights and how they wish to do so will then be available for the hearings in November 2020.

With respect to the manner in which these rights can be exercised, the Public Prosecution Service would like to make a number of practical observations, beginning with the right to address the court.

Exercising the right to address the court

In criminal cases, victim statements in court rarely last longer than 15 minutes. Victim Support Netherlands said this in September 2019 during an information meeting held by the Public Prosecution Service and on 22 August 2020 during the information meeting organised by RBT. The Public Prosecution Service believes this is also a good guideline for this trial. For scheduling purposes, it would be advisable to ask any next of kin who believe they will need more than 15 minutes for their statement to let the court know, through the RBT or the Public Prosecution Service, well in advance. If the court so decides, the Public Prosecution Service can communicate this to all the next of kin during the survey in mid-September. In scheduling the statements of next of kin in court, it will also be necessary to take account of interpreting needs and the time it takes for the speakers to enter and leave the courtroom. The Public Prosecution Service believes that the schedule should give each speaker a period of 25 minutes in order to ensure they each have 15 minutes of actual speaking time.

The court has also asked how many people wishing to exercise their right to address the court could be scheduled each day. Like the RBT, we believe that a maximum of 10 is appropriate. This number would allow all the parties to the proceedings and members of the public to give adequate attention to the people telling their stories and allow time for additional short breaks should that be necessary.

The Public Prosecution Service believes it would be possible to enable the next of kin to make their statements during the hearing via a number of direct video links set up specifically for that purpose. This could be done from the location in Nieuwegein where meetings with the families have been held in the past or from specific locations in countries where a large number of next of kin live, such as Australia. That would make the hearings more accessible to many of the next of kin. This option will be included in the survey. Of course, much will also depend on whether next of kin who live outside the Netherlands will be able to travel here in the future.

We know that some are concerned about being visible on the livestream should they decide to exercise their right to address the court. It is important to ensure that their concerns do not prevent them from exercising their rights. We would therefore recommend that the court alleviate these concerns by announcing now that next of kin will be able to decide for themselves whether they are visible on the livestream or not. This need not impinge on the openness of the proceedings because the statements will be audible and it is possible to show the courtroom without showing the speaker. If the court so decides, during the survey in mid-September the next of kin can be given the opportunity to make known whether they wish to be visible on the livestream or not.

Throughout the trial, staff from Victim Support Netherlands are on hand every day that the court is in session, including the days on which the next of kin exercise their right to address the court. Representatives of the RBT and the Public Prosecution Service are also present. Further assistance could be arranged for individuals who wish to address the court via a video link. If the speaker is addressing the court via a video link from a location in the Netherlands, such as Nieuwegein, staff of Victim Support Netherlands and representatives of the RBT and the Public Prosecution Service can be present there too. In the case of a video link from a location in another country the authorities there could be asked to consider engaging support services.

After exercising their right to speak at the trial, next of kin may submit their statement in writing to the court so that it can be entered into the record as a written statement. I would make the following observations regarding statements by next of kin.

Written statements by next of kin

Next of kin may also send a written statement to the Public Prosecution Service. The statement can be added to the case file. The person concerned can also indicate whether they would like attention to be drawn to their statement at the hearing, and how. The Public Prosecution Service is of the opinion that statements by next of kin could be submitted both in writing and on video and then read aloud or played during the hearing.

Lastly, we would like to address the matter of injured party claims.

Injured party claims

Next of kin have the right to join the criminal proceedings as an injured party. This is done by submitting a compensation claim. During the criminal trial, compensation claims will be dealt with in civil proceedings between two parties: the next of kin and the defendants. The civil proceedings have their own place in the criminal proceedings and the court will issue its ruling on any compensation claims in the same judgment. The Public Prosecution Service is formally not a party to these civil proceedings but will advise the court regarding these claims.

The Public Prosecution Service agrees that the proceedings with respect to the injured party claims can be conducted in writing and agrees with the timeline proposed by the RBT. From the perspective of our advisory role, we prefer for the defence to respond to the claims in writing first. If the RBT's clients and other next of kin submit their claims by 1 February 2021, the defence will be able to respond by 16 March 2021. The Public Prosecution Service will then determine its own position within four weeks on the basis of the written positions of both parties to the civil proceedings and submit a written advisory opinion to the court. Following the written proceedings, the RBT can further explain its position orally in court. The Public Prosecution Service will respond in its closing speech and the defence in its pleadings.

We agree with the RBT that there are, in principle, logistical reasons to separate the parts of the proceedings in which the next of kin exercise their right to address the court, the written statements by next of kin are handled and the injured party claims are heard. The primary focus of the exercise of the right to address the court and the presentation of written statements will be on the emotional impact for the next of kin, while the discussion of the compensation claims will focus on the financial consequences. It is possible that the latter will entail debates on matters of legal substance. It is therefore appropriate to separate these two parts of the proceedings. This will enable the legal aspects of the compensation claims to be dealt with efficiently. The Public Prosecution Service does, however, believe that it is advisable to enable next of kin to exercise their rights to address the court and claim compensation at the same time if they so wish, for example because they live abroad or their health is fragile. It should be possible to arrange this if this preference is indicated far enough in advance. In this case, too: if the court agrees it can be communicated during the survey in mid-September that, in principle, the exercise of the right to address the court and the consideration of compensation claims will be handled separately, but that next of kin for whom this would be unreasonably burdensome may request that an exception be made for them.

After the compensation claims are submitted, the Public Prosecution Service will endeavour to notify the absent defendants Girkin, Dubinskiy and Kharchenko. Such notification is not mandatory, but its purpose is to ensure that the absent defendants have the opportunity to respond to the claims. The Public Prosecution Service will include this notification in the summonses to appear at the new hearings, which are scheduled to begin on 15 April 2021. The Public Prosecution Service has to transmit the summonses to appear in February 2021. Experience has shown that the execution of requests for legal assistance of this nature tends to take quite a long time. ¹ For this reason, the Public Prosecution Service would like to set a deadline of 1 February 2021 for the submission of claims. This will ensure it is possible to notify the absent defendants as effectively as possible, that there will be a clear basis for scheduling the hearings on the compensation claims and that there will be enough time for a fully-fledged debate with Mr Pulatov.

Of course, the next of kin still have the right to submit a compensation claim even after the aforementioned deadline. However, submitting a claim after the deadline can jeopardise the admissibility and handling of the claim.

The court's questions on matters of law

On 23 March 2020 the court submitted four questions on matters of law to the RBT. Three were also addressed to the Public Prosecution Service. These three questions concern (1) the competence of the court to hear the claims of injured parties, (2) the possibility of separately declaring defendants in default of appearance with respect to the claims and (3) which civil law jurisdiction will be applicable to those claims.

By letter of 27 May 2020 we answered the first two questions in order to expedite the proceedings. The answers in the letter correspond to the conclusions of the RBT and the specialists consulted by the RBT. Since the defence has stated that it does not wish to put forward a different view, we maintain our previously stated provisional views. In brief, these views are that (a) the court's competence to hear the injured party claims derives from its competence to hear the criminal case and (b) there is no need to separately declare defendants in default of appearance in the civil case. We would refer to the arguments laid out in our letter of 27 May 2020.

In addition, (c) we endorse the views of the RBT and the specialists consulted by the RBT that Ukrainian law is applicable to the claims. In other recent Dutch criminal cases concerning violent serious offences committed outside the Netherlands, foreign law has been applied to injured party claims. For instance, the claims submitted by injured parties in cases concerning the Rwandan genocide and Ethiopian war crimes were assessed on their merits under Rwandan and Ethiopian law and were awarded by the Dutch court. In those cases the injured parties’ lawyers provided the applicable foreign legal rules themselves via The Hague Institute of Private International and Foreign Law (Internationaal Juridisch Instituut, IJI) or legal experts from the country concerned. We believe that this is proper course of action to take in the present case.

[1] According to the Russian Federation's further Declaration concerning article 7 of the European Convention on Mutual Assistance in Criminal Matters, letters rogatory for service of summons should be transmitted to the Russian Federation not less than 50 days before the date set for appearance. For certainty’s sake, the Public Prosecution Service will adhere to the same time limit for further requests for legal assistance in serving the summons.