Court session 16 April 2021

Introduction

Last November the court concluded the pre-trial review phase of these proceedings. At that time the court indicated that very strict criteria would be applied to any subsequent requests for further investigation – stricter than was the case in the pre-trial review phase. Previously, the court had clearly explained what, at a bare minimum, would be required in order to warrant ordering further investigation. The requests that have now been formulated by the defence do not meet the strict criteria laid down by law with regard to further investigation in this phase. Despite the clear framework provided by the court, the defence still appears to think it has an unconditional right to scrutinise all the methods and results of the investigation without any grounds to speak of and without any time limitation. That is not the case – and certainly not more than a year after the start of these proceedings. 

We will now run through the requests in the same order as the defence has submitted them.

Requests submitted by the defence

Viewing of all relevant pieces of wreckage (part 1, marginal no. 10)

The defence requests a viewing of ‘all relevant pieces of wreckage’ (marginal no. 10). According to the defence this is necessary, which raises the question of why it waited until 30 December 2020 to make such a request, while the viewing of the reconstruction has been on the agenda since 3 July 2020. The defence defines 'relevant items' as all wreckage with ‘impact damage’ (marginal no. 5). The defence was long ago provided with photographs of all recovered pieces of wreckage. A few months ago the defence announced on several occasions that it would use the photos to identify pieces of supposedly relevant wreckage that did not end up forming part of the reconstruction.  Apparently, it was unable to do so. Even disregarding the personal circumstances of the expert the defence wished to use, we can understand this failure, because the selection of which pieces of wreckage were relevant to the investigation was made not by the Public Prosecution Service, as the defence contends (marginal no. 7), but by a team of forensic experts. According to the Dutch Safety Board (OVV), the available relevant pieces of wreckage were included in the reconstruction. At the court’s instruction, extra pieces of wreckage were subsequently added. The pieces of wreckage concerned were those that were the subject of debate between, on the one hand, the Netherlands Aerospace Centre (NLR) and the Belgian Royal Military Academy (RMA) and, on the other, Almaz-Antey. All wreckage which was found to be relevant by experts or which is under debate by the experts is currently located at Gilze-Rijen airbase. The defence, however, wishes to cast its net even wider. Strikingly, in the correspondence on this topic the defence on the one hand emphasises that it does not have the necessary expertise at its disposal to determine what wreckage is relevant and what is not,  but on the other hand persists in making requests about allegedly relevant pieces of wreckage not present at Gilze-Rijen. Such pieces were not, however, designated when the experts were examined, nor have any been specifically identified by the defence. This request should therefore be denied. 

Provision of ETVR laser scan data (part 1, marginal no. 10)

The defence requests that the set of laser scan data recorded by the police's Expert Team for Visualisation and Reconstruction (ETVR) be added to the case file. The data concerned is a set of technical information about the location of impact damage on the reconstruction of MH17. If the court should decide to order further expert investigation, it may be necessary to share this data for the purpose of such investigation. However, providing the defence with the data at this time would serve no reasonable purpose and is therefore not necessary. The laser scan data will not help furnish more insight into the expert investigation that was performed. If further investigation is necessary, the data should be shared at that time, under the supervision of the court. This request should therefore be denied. 

Unrestricted questioning of NFI expert (part 1, marginal no. 29)

The defence has also requested a more in-depth examination of an expert from the Netherlands Forensic Institute (NFI), which took place previously at the court’s instruction. In the defence’s view, this examination should be ‘unrestricted’. The defence has made such a request on several previous occasions already.

In its decision of 25 November 2020 the court clearly explained why this expert should be examined about some subjects and not about others. The court proceeded to order the examination ‘subject to the restrictions indicated by the court in [that] judgment'.  Since the review meeting with the examining magistrate of 11 December 2020, the defence has been seeking scope to examine this expert about other subjects as well.  To clear up any misunderstanding about the court’s decision, the examining magistrate reiterated in writing to the defence the mandatory scope of the examination of this NFI expert. The court in turn confirmed in writing the examining magistrate’s interpretation.  The defence then submitted 174 questions for the NFI expert, a large number of which fell outside the scope of the examination as established by the court and the examining magistrate. The examining magistrate therefore presented some but not all of the questions to the expert, giving a precise and reasoned explanation in each case. The defence raised an objection to the court and asked for a new hearing to be held in order to discuss the scope of this expert examination. The court responded to this request by letter, explaining clearly that the defence had sufficient scope to examine the expert, and that the court saw no reason to reconsider its previous decision on the scope of the examination.  

On 1 April 2021, the NFI expert produced a detailed, 58-page report, responding to the defence’s questions. The examining magistrate is currently considering whether, in the light of this new report, there are still grounds for examining the expert on its contents. 

In regard to the examination it has requested, the defence is now, for the second time, asking the court to reconsider its decision of 25 November 2020. As when this request was first made, we see no reason for this. Any examination of the expert is intended to probe more deeply into the detailed written report. The broader scope requested by defence is incompatible with this. 

In November the defence raised a great many questions whose answers can already be found in the reports. The same thing occurred in its further written questions to the NFI expert. Contrary to what the defence claims, numerous questions relating to the NFI’s provision of information, its working methods and the scope of the investigation it conducted have been answered by multiple experts, notwithstanding the framework imposed by the court and the examining magistrate.  The experts have thus already been examined more broadly than the court provided for in its interlocutory judgment of 25 November 2020. We assume that the restrictions on the examination as previously stipulated by the court related to the lack of clear and concrete grounds for the defence’s requests in this regard, and the fact that the defence had formulated many questions whose answers were already available in the case file, meaning the usefulness and necessity of the questions could not be established. Nor has the defence done anything to remedy this in its new submissions. 

There is therefore no reason to take over supervision of this process from the examining magistrate. This request should therefore be denied.

Telecom requests (part 1, marginal no. 39) 

The defence has requested the court to instruct the Public Prosecution Service to answer general written questions about the nature of intercepted telephone conversations and the way they were obtained. The defence has also requested expert investigation of 14 intercepted conversations featuring Pulatov. 

Back in early June 2020 we explained in detail how the reliability of the telecom data in this case was investigated and validated. The defence subsequently submitted various requests to the court about the nature of the telecom data and the way it was obtained. Those requests were denied owing to their unfounded nature and the lack of an interest.

An important factor in that decision was a statement by Pulatov himself, introduced by the defence in November, in which he confirmed that he had been using the telephone number ending in -511 and could always be reached at that number, and indicated that he had indeed conducted conversations about a Buk, but had done so in order to mislead the enemy. The court also established that the locations determined by mobile phone mast data were consistent with Pulatov’s statement regarding where he was on 16 and 17 July 2014. The substance of the telecom data was therefore not in dispute. On the contrary: Pulatov’s statement provides clear confirmation of its authenticity.

Even now, the defence has failed to explain in concrete terms why there should be any reason to dispute the intercepted phone conversations. The defence itself has said explicitly that it cannot (part 1, marginal nos. 44 and 46). It is now merely offering speculation based on sources that were discredited long ago. It is true that we are not audio experts, and nor are the defence lawyers. That is why we submitted the Rosen report, as referred to by the defence, to an NFI expert. That expert explained in writing why, in his expert opinion, the Rosen report did not meet the requirements of a proper investigation of authenticity. Speculation does not constitute grounds for further investigation. The request should therefore be denied.

Inclusion of Almaz-Antey documents in case file (part 1, marginal no. 53)

The defence has asked the court to help remind the Public Prosecution Service of the court’s instruction to add documents from Almaz-Antey, complete with full translations, to the case file. In this connection the defence is referring specifically to Almaz-Antey’s Field Test Report of 2016 and a 15-page Almaz-Antey report from 2015. 

We will turn first to the court’s instruction. On 3 July 2020 the court instructed us to request the reports already produced by Almaz-Antey on the launch location and workings of the Buk missile from the NLR and the RMA. In this connection the court referred to calculations presented by Almaz-Antey during the press conferences, which were mentioned in documents produced by the RMA, the NLR and the Netherlands Organisation for Applied Scientific Research (TNO). The court gave this instruction ‘in connection with the investigation into the possible launch location’. This was also the key element of the request made at the hearing, and to which the Public Prosecution Service responded. We therefore specifically investigated reports concerning the calculation of the launch location. On 10 July 2020 we informed the court and the defence that the NLR and the RMA could not provide any Almaz-Antey reports about the calculation of the launch location. In the appendix to the same letter, and in the subsequent letter of 22 July 2020 we explained what other Almaz-Antey documents we did possess, and how they may relate to the investigation into the pattern of damage. On 28 July 2020 we made those documents available for inspection by the defence, and shortly thereafter the examining magistrate. It is obvious that we are talking about different documents. A report about a detonation test using an Iyushin-86 is not the same as one about the calculation of the launch location. The report requested by the court, drawn up by Almaz-Antey prior to July 2020 and dealing with the calculation of the launch location was in fact a document that Almaz-Antey had not provided, and incidentally still has not provided.

If we next look at the documents the defence now refers to – the Almaz-Antey Field Test Report of 2016 and a 15-page report from 2015 – we must observe that these were provided to the defence back on 28 July 2020, and were added to the case file in February of this year at the defence’s request. After all, when responding to counsel's question the Almaz-Antey expert stated that this 15-page report was appended not only to the letter of 29 July 2015 from Almaz-Antey to the OVV, but also to the letter of 10 September 2015 from Almaz-Antey responding to the Public Prosecution Service's request for legal assistance. The defence thus could have established during the examination that this document, together with a complete English translation, was included in the case file. The Field Test Report has now also been added to the file, although only a partial English translation is included. The defence has been aware since 10 July 2020 that the Public Prosecution Service does not have a full translation. We pointed this out explicitly at the time. Since then, the defence has never requested a more comprehensive translation, even when it asked for the document to be added to the case file. It is therefore unclear to us why, in the defence's words, it was ‘extremely inconvenient that [the defence] did not have English (or Dutch) versions of the aforementioned documents at [its] disposal during the examination of the Almaz-Antey expert’ (marginal no. 52). Especially given that during the examination the defence gratefully accepted the Public Prosecution Service's help in locating documents (including on the defence counsel’s own laptop) from Almaz-Antey that had previously been provided but were unknown to the defence. 

The defence did not ask the court for a more comprehensive translation of the Field Test Report. In any case, we see no need for such a request. The substance of that report is discussed extensively in the translated Almaz-Antey reports of 2020, and the Almaz-Antey expert was questioned about it by the defence.  

Witness examinations of Chernykh and Vlokh (marginal no. 63)

The defence has again requested that the separatists Chernykh and Vlokh be examined, both to ask them whether they transported a Buk TELAR on 17 July 2014 and to ask them about Pulatov's personal involvement in the transportation of the TELAR. According to the defence, these witnesses can confirm that they received no direct instructions in this connection from Pulatov and had no direct contact with him.

The question concerning the transportation of the Buk TELAR by Chernykh and Vlokh also formed the basis of the defence's request of 3 November 2020.  At the hearing of 12 November 2020 the Public Prosecution Service explained why this request should be denied.  The court denied the request to examine Chernykh and Vlokh on the grounds that it was unfounded. Since we have heard no further substantiation of the request on this point – let alone anything showing these examinations are necessary – we would refer, in the interests of brevity, to our initial response.

The defence's questions concerning direct instructions from – or direct contact with – Pulatov are in fact already answered in the case file. It is clear from the case file that Chernykh and Vlokh had no direct contact with Pulatov. These two individuals had contact with each other, and Chernykh had contact with Dubinskiy and Kharchenko. Pulatov, for his part, had contact with Dubinskiy and Kharchenko. Pulatov does not have an interest in examining witnesses about the absence of any contact, especially given that the case file does not show any contact. This request should therefore also be denied.

Further examination of Almaz-Antey expert (part 1, marginal no. 70)

The defence has requested a further examination of the Almaz-Antey expert. This expert was examined for four days last week and will be examined again for three days next week in the presence of the NLR and RMA experts. In total, then, this expert will undergo an examination in the Netherlands lasting seven days, for which he must travel back and forth twice. The defence's request concerns a second individual examination, which according to the examining magistrate can take place only after the joint examination with the other experts.

Shortly before this hearing, the defence put the same request to the examining magistrate. In response the examining magistrate indicated that the defence's right to question an expert was not unlimited, and that an examination lasting four days would be a considerably lengthy proceeding, even considering the subject of the examination, the content of the underlying reports and the need for translation. In this connection the examining magistrate pointed out that the official report of the examination, leaving aside the translation, is almost as extensive as that of the examination of the RMA expert; that the absence of a list of defence questions meant that the examining magistrate had less insight into the subjects on which the defence wished to pose questions; and that throughout the examination the examining magistrate had repeatedly raised concern about the structure of the defence's questioning. In order to bring more structure to the examination, on the third day the examining magistrate gave the Public Prosecution Service the opportunity to begin with questions about the summary from Almaz-Antey. On the fourth day the examining magistrate tried to give the defence maximum scope to make the most of the remaining time available. The examining magistrate also left it up to the defence to choose the subject of the questions, and noted that this would be the only opportunity to pose questions about the operation of the Buk missile. The examining magistrate left it to the court to decide whether, under these circumstances and in the context of the rest of the investigation, it was necessary for the Almaz-Antey expert to be examined further.  

In our view, such necessity has not been demonstrated. As the examining magistrate held, the right of the defence to examine an expert is not unlimited. Furthermore the defence has already had an exceptionally extensive opportunity to question this expert: the examination lasted four days, went on until late in the evening, and resulted in a transcript totalling 80 pages. 

In light of all this we can only conclude that the defence did not make effective use of the substantial time available to it for the examination. If the defence's additional questions are so important, why were they not asked earlier? Instead, the defence used the time available to probe subjects that had already been clarified prior to the examination (such as the matter of the appointment of the expert and the NLR's calculation of the speed of a Buk missile ), to ask questions that had already been answered in the Almaz-Antey documents contained in the case file (such as questions about the field tests of 31 July 2015 and 7 October 2015 ) and to offer the expert open invitations to make lengthy but unfocused statements.  At the same time, the examining magistrate repeatedly reminded the defence about the time available and the subjects that still needed to be addressed, and emphasised that more focus should be applied to the questioning. Even so, at that time the defence failed to ask questions it now apparently considers necessary. 

This is even more inexcusable given that the defence gave the examining magistrate no insight during the examination into the questions it wished to put to the expert. As the examining magistrate held, the defence never gave her a list of questions, which meant she had less insight into the subjects the defence wished to probe, and she repeatedly raised concern about the structure of the questioning.  The defence has now suddenly supplied the court with a list of questions, but from our perspective this is too little, too late. 

Finally, the necessity of a further examination must be considered in the context of the court's broader instructions. According to those instructions, and their interpretation by the examining magistrate, the reports drawn up previously by the NLR, the RMA and Almaz-Antey were to be shared with the other institutions, after which the experts from these institutions were to be examined individually about the pattern of the damage to flight MH17 (i.e. to what extent that damage pointed to the use of a Buk missile) and the calculation of the launch location. Lastly the experts would be examined in each other's presence about the same topics. This final, joint examination is – in the words of the examining magistrate – ‘intended to allow experts to respond to the findings and conclusions of the other experts in each other's presence, so that any (potential) debate can be explored in more depth’. It is not appropriate, in this process of exploration, for the Almaz-Antey expert to be asked additional questions about the pattern of the damage to MH17 and the calculation of the launch location, as now proposed by the defence. In such an eventuality, an additional statement from Almaz-Antey on those topics would in turn have to be submitted to the NLR and RMA experts. This would lead not to a deepening, but to a broadening of the debate. That was not the court's intention. 

The request for further examination of the Almaz-Antey expert should therefore be denied.

Further examination via written questions of NLR and RMA experts (part 1, marginal no. 74)

The defence asks the court to instruct the examining magistrate to obtain answers from the NLR and RMA experts to further written questions. It has already made a similar request previously to the examining magistrate.  That request was denied in part.  As the examining magistrate held previously, the mere fact that an expert is unable to answer certain questions without further study does not mean that, in hindsight, all that information needs to be reviewed, and that this task should be imposed on the experts. 

The defence is now asking for some of the same information about investigative assignments, reports not added to the case file and the substance of discussions between the NLR and RMA, the JIT and the Public Prosecution Service (part 1, marginal nos. 73-74). According to the defence this information is crucial for the assessment of these experts’ independence and impartiality. The experts have already given statements on these points. In addition, the Public Prosecution Service has referred the defence to the information available in the case file on these points.  The defence does not explain what the requested information can add in this regard, let alone why it is necessary. This request too can hardly be regarded as anything other than a fishing expedition. It should therefore be denied. 

Inspection of reconstruction and attachment of wreckage to reconstruction (part 1, marginal no. 83)

If we understand correctly, the defence is now saying that, for a layperson, viewing the MH17 reconstruction would have no added value compared with reviewing photos or other material in the case file (marginal nos. 78-79 in particular). Previously the defence took a different stance on this. In June 2020 the defence indicated that regardless of any other inspection that might be organised, it wished to see the reconstruction for itself.  On 15 January this year, the defence described in detail what it believed were the limitations involved in studying wreckage in photos as opposed to viewing the actual wreckage. At that time the defence wrote that it was not possible to properly observe the full pattern of damage on the wreckage on the basis of the photos. It also wrote extensively about angles of light, measurements, visual distortions of possible bending of wreckage and angles of impact. According to the defence it is also impossible to determine how one impact relates to another, because of the limitations associated with the use of photos. On 1 February the defence reiterated this position here before the court. The defence’s view that the damage can be seen as clearly on the photos as on the reconstruction is therefore not one it has held for very long.  

It is true that, in the event of an inspection, the court will view the wreckage from a judge’s – and not an expert’s – perspective. But that is the case with any inspection. The court must make a judgment on the differences of opinion of the examined experts from the NLR, the RMA and Almaz-Antey. All these experts have seen the reconstruction. The defence has seen the reconstruction. The Legal Aid Team (RBT) has seen the reconstruction. And so have we. In this courtroom we still need to discuss the significance of the distance between the most heavily damaged area, on the one hand, and several impacts a long way further up the aircraft, in the engine and the left wing, with a large area between them without any impacts.  We believe it would be undesirable if everyone involved in the discussion on the distance between impacts has seen the reconstruction for themselves – all the experts, all the defence counsel and all the public prosecutors – except for the court, when it is the court that has to make the decisions. We know that it is impossible, as the defence recently explained in detail, to determine such distances in the photos as effectively as on the reconstruction itself. We therefore believe it is necessary for the court to see the reconstruction for itself. 

The defence’s conditional request to the effect that, in the event the inspection is allowed, all available pieces of wreckage be attached to the reconstruction should be denied, because it has not explained the relevance or necessity of doing so. As we just explained, all available pieces of wreckage that experts believe are relevant are already present at Gilze-Rijen. 

Inadmissibility of injured parties’ claims (part 1, marginal no. 101)

The defence has requested the court to declare the claims of the injured parties inadmissible by interlocutory judgment. We find the timing and manner of the defence’s request surprising. The defence received the claims only shortly before this hearing commenced and has not yet been able to study them properly (marginal no. 96). The defence is thus making this request not on the basis of having assessed the claims and accompanying documents. If we understand correctly, the defence has made this request so that it does not have to study the claims and documents in detail. This is not the intended purpose of the disproportionate burden criterion. The applicability of foreign law is not itself a reason to declare claims by injured parties inadmissible.  We agree with the RBT that any lack of expertise on the part of the defence can be dealt with relatively simply. We would also expect the defence to have considered this issue when accepting the case and building the defence team. Although the claims are large in number, they are relatively uncomplicated in terms of their substance, as they were drawn up in a uniform manner and concern non-pecuniary damage only. We have long been aware that these criminal proceedings will presumably involve foreign law and the issues the defence now refers to. If the defence believes that this factor in itself constitutes grounds for declaring the injured parties’ claims inadmissible, the logical step would have been for the defence to make its request before the claims were issued. Allowing those claims to be drawn up and then declaring them inadmissible without serious consideration would be not only in violation of the law, but also inappropriate with respect to the next of kin and the RBT. This request should be denied.

Access to information concerning telecom data (part 2, marginal nos. 20 and 28)

The defence has reiterated a number of requests aimed at the provision of information concerning telecom data and access to that data. This time the request is based not on investigation into the reliability of the conversations (as in the request in part 1, marginal no. 39), but on the question of whether the intercepted telephone conversations included in the case file provide a balanced picture of Pulatov’s role. For this reason the defence is asking for access to all available audio files, transcripts and metadata of intercepted conversations in the possession of the Public Prosecution Service and other parties – other members of the JIT – (part 2, marginal no. 20) and is also reiterating its previous request of June 2020 to examine the head of the SBU’s Incident Response Centre about the selection of the intercepted conversations (part 2, marginal no. 28). 

This request for access to telecom data also has a lengthy history. Since the hearing of June 2020 the defence has repeatedly asked to be provided with large amounts of telecom data that had not yet been added to the case file.  In response the Public Prosecution Service provided all relevant data and a great deal more besides. The court denied the defence’s last request for access to many intercepted conversations, made on 11 November 2020, on the grounds that it was unfounded. Now, also, the defence offers insufficient substantiation.

Ever since 11 September 2020, the defence has had in its possession all available conversations that Pulatov took part in between 1 June to 31 July 2014. The defence does not explain in what sense the case file gives an inaccurate picture of Pulatov’s role and needs to be supplemented. What Pulatov himself tells us in his video statement about his role is largely consistent with the telecom data concerning him in the case file. The only matter of debate is how his conversations about a Buk should be interpreted. In its explanatory remarks the defence refers only to conversations mentioned by the TV current affairs programme Nieuwsuur, which allegedly show that Dubinskiy bypassed Pulatov and called Kharchenko directly (part 2, marginal no. 15). We agree with the defence that information about Pulatov’s position in the chain of command between Dubinskiy and Kharchenko may be relevant in this criminal case and must be shared with the defence. That is why this information has been available in the case file since the very beginning. The official report on the hierarchy within the DPR states, for example, that Dubinskiy gave orders and instructions to two units, one led by Pulatov and the other by Kharchenko. The report noted that in July 2014 Kharchenko took orders from Girkin, Dubinskiy and Pulatov. In that report and elsewhere in the case file it is stated that on the morning of 17 July 2014 Pulatov complained to Kharchenko that although he (Pulatov) was the ‘man in charge’, he had discovered that Kharchenko had received an order directly from Dubinskiy.  Anyone who has read the case file therefore knows that the orders Dubinskiy gave in the summer of 2014 did not go exclusively via Pulatov to Kharchenko, but were also transmitted directly to Kharchenko, and knows too that Pulatov was unhappy about this at times. The Nieuwsuur story contains no new relevant information over and above what is in the case file in this regard. We therefore see no reason to provide any supplementary or more detailed information about the selection of the intercepted telephone conversations. 

There is also nothing new that gives reason to now provide the defence with large numbers of intercepted conversations or to examine the head of the SBU's Incident Response Centre when the request to that effect has already been denied by the court on the grounds that it was unfounded. As in June of last year, when it made the same request, the defence does not say why this individual should know anything about the selection of intercepted conversations when he was not involved in the investigation.

These requests should therefore be denied.

Nieuwsuur investigation (part 2, marginal no. 40)

If we understand correctly, the defence is requesting the court to order an investigation into Nieuwsuur’s sources. It has formulated the request in the context of a potential defence based on article 359a of the Code of Criminal Procedure. The grounds offered do not meet the statutory requirements and the request should therefore be denied.  The reasoning offered is also difficult to follow. According to the defence, this investigation is necessary in view of ‘the potential violation of article 8 of the European Convention on Human Rights', which, via article 359a of the Code of Criminal Procedure, could have implications in these criminal proceedings. There are various flaws in this reasoning. First, Pulatov can complain that the disclosure of telephone conversations constitutes a violation of his privacy only if he indeed participated in the conversations, and if we understand correctly, the defence’s position is that this is not manifestly the case. Second, Nieuwsuur’s reporting contained little or no information about Pulatov that had not already been disclosed via other channels. Moreover, it concerned professional, business-related information without any details about Pulatov’s private life, which makes it hard to see how this reporting could constitute a violation of his right to privacy in any case. 

Let us be entirely clear: we want the evidence to be discussed here in court, and not in the media. But we are also keen to ensure that media reporting is not misused in order to complicate criminal proceedings with impossible investigative assignments that have no relevance to the decisions the court must take. In addition, the indignant attitude adopted by the defence is rather selective. The defence has previously, in addition to what is in the prosecution file, requested and received access to many hundreds of intercepted conversations. This was necessary, it contended, in order to assess the evidence in context. Must we now investigate the manner in which similar access is provided in Ukrainian criminal proceedings? Thousands of intercepted telephone conversations seems like a lot, but in the course of the armed conflict in Ukraine the defendants and their contacts were constantly calling each other on many different phones. The vast majority of those conversations are not relevant to these criminal proceedings. A great many intercepted conversations have already been added to the case file and, as we have said, even more conversations have been provided to the defence. We should remain mindful that the passengers and crew of flight MH17 were not the only victims of the DPR. Ukraine has every right to prosecute the many other crimes committed by the armed group to which the defendants belonged, and if necessary to share intercepted telephone conversations among those participating in proceedings. 

However unfortunate it may be that these conversations were disclosed in the media, Pulatov’s defence is not harmed by the disclosure, and no relevant results are expected to emerge from an investigation into Nieuwsuur's sources. This request should be denied.

Examination of NFI expert X (part 2, marginal no. 51)

The defence has also requested the examination of another expert from the NFI (NFI expert X), because the expert initially designated needed to consult with this second expert in order to answer questions. This request already oversteps the boundaries of the court’s instructions. At the hearing it became clear that the defence rejects those boundaries completely, as it ‘believes, as a matter of principle, that court instructions should not be formulated in this manner’.  

The Public Prosecution Service sees no need for an examination of this second NFI expert (X), as there are no grounds whatsoever for doing so. Many questions that the defence previously asked this expert are already answered in the case file. This is clear from the supplementary 21-page report drawn up by NFI expert X. The defence is now asking for this expert to be examined because it has ‘a number of more in-depth and follow-up questions’.  In its decision of 25 November 2020 the court already referred to the possibility that any alleged lack of clarity could be cleared up in whole or in part by a more thorough reading of the reports.  In the view of the Public Prosecution Service the answers already given are perfectly clear, especially when considered in the context of the rest of the forensic file. It remains uncertain what ‘questions aimed at clarification or greater depth’ would require this expert to be examined. This request should therefore be denied on the grounds that it is unfounded.

Expanded scope of examination of NFI expert X (part 2, marginal no. 57)

In so far as the examination of NFI expert X should be allowed by the court, the defence is also requesting that the scope of the examination be expanded so that he can be questioned about his expertise. It is unclear whether the defence is now asking only for an examination on the expertise of NFI expert X (as referred to in the title above marginal no. 53) or whether it is also asking for an examination on the expertise of NFI expert 1 (cited under marginal no. 55).

Whomever this request relates to, its substantiation rests in any event on a quote by NFI expert 1 (marginal no. 55), which is only a part of the answer that this expert gave. If we read his full answer, we can see that this expert explains why he indeed considers himself capable of answering, on the basis of his theoretical knowledge of ground-level explosions, the question that was put to him. Therefore this does not detract from his expertise. The defence says nothing about the expertise of NFI expert X, which has already been assessed by the examining magistrate, and does not explain why this assessment should be called into question. This request should therefore be denied on the grounds that it is unfounded. 

Questions 45b, 45c and 45d (part 2, marginal no. 59)

Finally, the defence has requested permission to again ask the NFI expert three questions (45b, 45c and 45d) it has asked him previously. Contrary to what the defence claims, these questions have already been answered. In fact, they have been answered twice. Apparently in the interests of thoroughness, the interdisciplinary forensic investigation (IDFO) rapporteur consulted with a colleague, but in addition and at the same time he also gave substantive answers to the questions himself.  The colleague’s answer contributed little of substance, but was also recorded in the documents, apparently with a view to exercising due care. Nevertheless, the answers given by the IDFO rapporteur were substantive and clear (see appendix). There is no question here of recalcitrance, or of ‘going round the houses’: the defence has simply not read the documents carefully. The fact that these questions were answered by two different experts is also clearly noted on page 2 of the NFI expert’s accompanying letter. These questions therefore do not need to be put to the designated IDFO expert again. 

The RBT’s request for communication and distribution ban

We have listened carefully to the RBT, and in particular its observations on the position and problems of different categories of next of kin. Later in these proceedings, the Public Prosecution Service will be able to address these in more detail. For now we must confine ourselves to responding to a single request by the RBT on which the court must decide.

The RBT has requested the court to ban the communication and distribution of certain details relating to the next of kin. The priority from our perspective is that information relating to the next of kin be handled with due care. To that end it is important that the RBT does not include more details in the documents to be provided than is necessary for the assessment of the claims, and that everyone else involved in these proceedings proceeds with due care where these documents are concerned. The Public Prosecution Service believes, however, that it is neither possible under the law nor necessary for the court to impose the requested ban.

In making its request the RBT refers to article 28 of the Code of Civil Procedure. Unlike the RBT, we take the view that article 28 of the Code of Civil Procedure does not form part of the civil rules on   the duty to furnish evidence and the assignment of the burden of proof applicable in the criminal proceedings. Nor is this provision mentioned in the Supreme Court's general ruling summarising the relevant rules of law for dealing with a claim by an injured party. 

However, even if article 28 of the Code were applicable, it could not, in our view, form the basis for court to impose a ban. Article 28 encompasses the existence of a statutory ban and the scope for a court to lift that ban, not the scope to impose a ban that does not yet exist. For various reasons, therefore, the court cannot meet the RBT’s request, in our view. It does remind us all, however, of the importance of exercising due care when handling information in the case file about the next of kin. 

The court’s question about reservations made by some witnesses

We will conclude with the court’s question concerning witnesses who have made reservations relating to the sharing of their statements with other countries. The Public Prosecution Service has given a number of examples of this before the court,  and it has respected these reservations. The Public Prosecution Service sees no reason to limit either the discussion of the statements in court or the use of these statements for the evidence in the criminal cases against the four defendants. The reservation relates only to the provision of the written statements to foreign authorities.