Court session 15 April 2021

Introduction

Late last year the court officially closed the pre-trial review phase of this trial. In June the cases will be assessed on their merits. In the meantime the examining magistrate will carry out the court’s instructions on conducting further investigation. This investigation may not be visible to the public, but behind the scenes, in the office of the examining magistrate, a great deal of complex work is being done. At previous hearings the Public Prosecution Service confined itself to responding to requests made by the defence. Today, we will take some time to reflect on the latest developments in the case.

We will begin by looking at the current status of this criminal trial, including recent activity by the examining magistrate, defence reports that have been announced, the defence’s planned visit to the reconstruction of MH17 and the possible inspection of the reconstruction by the court. Then we will discuss the recent publication of information from the investigation and the submission of claims by the injured parties, and we will also look ahead to when the next of kin will have the opportunity to exercise their right to address the court and to various scheduling matters related to the trial, in both a procedural and a substantive sense.

Status of further investigation

Recent activities undertaken by the examining magistrate

A significant proportion of the investigation activities assigned to the examining magistrate is now complete, or nearly so. In one instance, it proved impossible to carry out the requested investigation. The investigation activities conducted by the office of the examining magistrate are complex, and we greatly appreciate the care it has taken in doing this work, as well as the way she has taken account of witnesses’ special security needs, without restricting the defence’s right to examine these witnesses any more than necessary. On the contrary, the examining magistrate has given the defence great freedom to ask its questions. For example, the examination of witness RC02 took three days, while witness M58 and the three experts from the Netherlands Aerospace Centre (NLR), the Belgian Royal Military Academy (RMA) and Almaz-Antey were each examined for four days. For each one of these witnesses, the examining magistrate allowed the defence to take the lead in the examination. Even in cases where witnesses were examined outside of the presence of the defence for security reasons or where an expert was examined in writing, the questions from the defence were generally asked as submitted. Only when the defence’s questions went plainly beyond the scope of the court’s instructions did the examining magistrate refrain from asking them.

During these examinations the examining magistrate paid particular attention to the quality of the interpretation and the interaction between the interpreter and the witness or expert. If there were any questions about the translation, the examining magistrate immediately clarified them with the interpreters and the experts or witnesses. [1] Although the defence has asserted on various occasions that it was impeded in its ability to ask questions, we have been unable to find any meaningful examples of this. At this point the reports of the examinations drawn up by the examining magistrate run to many hundreds of pages.

We would now like to briefly address two subjects of further investigation on the part of the examining magistrate.

To begin with, there is the matter of the video of the Buk TELAR in Snizhne. In the proceedings before the European Court of Human Rights brought by the next of kin, the Russian government stated that this video had been manipulated. In response to this allegation, we requested the court in March 2020 to order an investigation into the footage and the upload date of the video. That investigation, which was carried out by the Swedish National Forensic Centre and the Netherlands Forensic Institute (NFI), is now complete. The two forensic institutes found no indication of any manipulation as alleged by the Russian government.

Secondly, we wanted to address the investigation into the pattern of damage to MH17 and the launch site of the Buk missile. This investigation will come to a close next week with a concluding examination of the experts from the NLR, the RMA and Almaz-Antey. They are, in any case, in agreement that it is possible that MH17 was shot down by a Buk missile. In addition, the experts agree that in such a case the warhead must have detonated somewhere nearby MH17, rather than upon impact with the aircraft. The only issues that divide them are the type of the missile used (a 9M38M1 or a 9M38) and the location of the launch site (an area south of Snizhne or an area southeast of Zaroshchenske). For its part, Almaz-Antey is sticking to the area it posited at its press conference of 13 October 2015. Instead of providing the report previously requested by the court, the company drafted two new reports at the end of last year. In these reports Almaz-Antey devotes a great deal of attention to the course of the investigation conducted by the Dutch Safety Board (OVV), the NLR and the RMA, but according to the experts from the NLR and the RMA, it offers insufficient insight into the data and methods used in its own investigation.

The NLR and RMA used different methodologies to calculate the launch area. The NLR started from the ground and simulated a large number of launches radiating outward from the area where MH17 was found. For each of these launches the NLR made an objective comparison between the expected damage caused by that launch and the actual damage to MH17. The eventual launch area calculated by the NLR is composed of all launch sites from which damage could be inflicted that is sufficiently consistent with the pattern of damage observed on MH17. The RMA, by contrast, started its analysis in the air, calculating backwards from there. On the basis of the damage to MH17, the RMA calculated a detonation location and an orientation of the missile in relation to MH17. From there, they worked backward to arrive at a possible launch area. Thus, the NLR and the RMA arrived at overlapping launch areas via different methods. It would seem that Almaz-Antey used the same method as the RMA, but on the basis of the pattern of damage it assumed that the missile had a different orientation or angle of approach in relation to the aircraft.

Another subject addressed in this witness examination was the independence and impartiality of the expert from Almaz-Antey. Specifically, questions were asked about the relationship between Almaz-Antey’s press conferences and the EU sanctions which were imposed on it, the extent of the company’s independence from the Russian government (including the Russian Ministry of Defence), and unofficial comments made by the expert about an ‘information war’.

The statements given by the various experts will be discussed in greater detail during the consideration of the merits.

New reports from the defence

In November 2020 the defence said that it anticipated submitting reports by its own experts and that these reports might provide the basis for additional requests for further investigation.  Since 21 February 2020 the defence has repeatedly alluded to its intention to call in its own experts.  For a proper consideration of the merits and a meaningful discussion, any reports the defence intends to submit must be introduced as early in the process as possible. If this is not done well in advance of the consideration of the merits, the court will have to decide whether adding such reports to the case file is compatible with the principles of due process. Since the start of this trial, the defence has expressed the specific intention of adding further written documents to the case file and suggested that it might submit additional requests for investigation on that basis. In that light we would ask the court to include this announcement in scheduling of the consideration of the merits. This can prevent unnecessary procedural complications.  One option would be to ask the defence to provide clarity now about its expectations on this front and to invite it to submit any supplementary documents it might have and to announce, in writing, any requests for further investigation arising from those documents, prior to a date stipulated by the court.

Viewing of the reconstruction by an expert appointed by the defence

There is one element of the investigation into the pattern of damage that has yet to take place, and that is the viewing of the reconstruction by an expert appointed by the defence. On 3 July 2020 the court instructed the Public Prosecution Service to facilitate such a viewing. On 8 February 2021 the court observed ‘that permission was given for this investigation, to be supervised by the examining magistrate, quite some time ago, but that the defence only recently began to do its part to ensure that it is carried out’. After the hearing the court made clear that the instructions issued to the Public Prosecution Service to facilitate a viewing related only to the reconstruction and that there was no reason to postpone the requested visit.  On 5 March 2021 the Public Prosecution Service again asked the defence when it wished to schedule its visit to the reconstruction with an expert. We have received no reply to that invitation. If the defence still wishes to pursue an investigation into indications that the pattern of damage on MH17 could point to a weapon other than a Buk missile, it will have to do so in the near future. The examination of the experts from the NLR, the RMA and Almaz-Antey about the pattern of damage will conclude next week. Their findings will be discussed during the consideration of the merits in June. If the defence still wishes to submit an expert report, this must be done well in advance of that hearing, so the court and the Public Prosecution Service can study and understand the report in the light of other findings. If such a report is submitted at a later stage, it may interfere with the consideration of the merits, leading to unnecessary delays. With this in mind, we ask the court to set a deadline for the viewing of the reconstruction, an issue we have been discussing now for over nine months.

Inspection

The Public Prosecution Service maintains its request for an inspection of the reconstruction on the grounds explained earlier. It has emerged from the examinations of and the reports submitted by the experts from the NLR, the RMA and Almaz-Antey that there is disagreement about the actual pattern of damage to MH17, where that damage begins and ends, and the relevance of particular types of damage. Once the joint examination of the experts is complete, the Public Prosecution Service would like to draw up a list of issues that merit further attention during the inspection, as requested by the court.

At this stage we can venture a few initial remarks. Experts from the NLR and the RMA take the position that the borders of the impact damage caused by the warhead are connected to the concentration of that damage. The highest concentration is visible on the left side of the cockpit. The border of that concentration of impact damage can be clearly seen in the reconstruction. For its part Almaz-Antey believes that the damage to the left engine, the left wing and the stabiliser on the tail section also constitutes primary impact damage and that it is therefore relevant to determining the actual pattern of damage. [1] During an inspection it will be possible to observe the difference in concentration between the impact damage on the left-hand side of the cockpit, on the one hand, and that of the left engine, the left wing and the tail section. It will also be possible to inspect the size of the impact damage (i.e. the dimensions of the holes) on the engine, the left wing and the stabiliser on the tail section. These measurements can say something about the source of that damage.

The expert from Almaz-Antey also stated that there is no evidence of damage from primary fragments on the right side of the cockpit. [During the inspection the court will have an opportunity to evaluate this assertion by observing for itself whether there is any out-going damage on the right side of the cockpit that could have been caused by primary fragments.

Availability of court documents to third parties

It has come to the attention of the Public Prosecution Service that information from the case file is in the hands of third parties.

Last weekend the Dutch news programme Nieuwsuur reported that it had obtained thousands of recorded telephone conversations that the defendant Dubinskiy took part in during the months of July and August 2014. The conversations mentioned in the news report that are relevant to this case are in the prosecution file, and some of them have already been discussed in court. However, it is not true that the full collection of conversations as described by Nieuwsuur is in our prosecution file in their complete form. Nor were the recordings provided by the Public Prosecution Service or the police. In response to the Nieuwsuur story, we made enquiries with the Ukrainian authorities to determine if they knew where these recordings had come from. They informed us that large numbers of intercepted telephone conversations involving Dubinskiy were included in various prosecution files in Ukrainian criminal cases which are spread out among a variety of parties. It is to be expected that such recordings would also play a role in other criminal cases. The majority of these conversations were not recorded in the specific context of the investigation into the downing of flight MH17, and they contain information about many other serious offences committed in Ukraine. Obviously, we find it regrettable that evidence in this case is being talked about in the media before it has been discussed in court. That said, the Nieuwsuur report does not, in our view, give cause to think that the intercepted conversations in question were leaked to third parties from our prosecution file or through the actions of one of our JIT partners.

The documents from the prosecution file mentioned in a report by Almaz-Antey are another matter, however. The court referred to this at the previous hearing.  The recent examination of the report’s author has shed no light on the manner in which Almaz-Antey acquired those documents (which bear a Primo number). These documents are not part of any other prosecution file which was made public in a lawful manner. Nor were these documents provided to the company by the Public Prosecution Service or the police. Evidently, then, these documents found their way from our prosecution file to someone other than the parties to these proceedings.

Claims by the injured parties

On 13 April the Legal Aid Team (RBT) filed a large number of claims for damages on behalf of the next of kin. Later in today’s hearing, the RBT will present a more in-depth explanation of this.

Once it became clear which of the next of kin were being represented by the RBT, the Public Prosecution Service approached the remaining next of kin who had indicated that they wished to submit a claim. These are the next of kin of five victims. The Public Prosecution Service again wrote to these next of kin and asked them to indicate before the current block of hearings if they intended to exercise their right to submit a claim for damages in this trial. To date, the next of kin of two of these five victims have submitted a written claim.

With regard to how the round of written observations on the claims by the injured parties should be organised, we would first like to hear the thoughts of the RBT and the defence before we express our own views on the matter. As previously stated, given the nature of the civil liability process it is only logical that the injured parties themselves should be heard first, and then the Public Prosecution Service. In our view the same order should be observed when it comes to scheduling the round of written observations: we believe that Pulatov’s defence should first be given the opportunity to present its position on the claims in writing before the Public Prosecution Service does the same. Therefore separate schedules will have to be established for these two successive steps.

The next of kin’s right to address the court

The RBT has stated that the next of kin is keen to have clarity about when they will have the opportunity to exercise their right to address the court. We appreciate that, and we believe it should be possible to provide such clarity. As we explained in our letter of last Monday, we believe that the next of kin can, if they wish, fully exercise their right to address the court in September, even if the investigation is not fully complete by that time. For the next of kin it is important to ensure that, when it comes to exercising their right to address the court, they do not encounter any more delays or uncertainty than is strictly necessary. It would also be beneficial for the overall progress of this trial if they can address the court in September, as previously agreed. We therefore request the court – on the basis of the grounds set out in our letter of 12 April – to determine that those next of kin who wish to do so will be able to fully exercise their right to address the court in September. We anticipate that a large majority of those entitled to speak will want to do so, in the knowledge that this will be their sole opportunity to do so. If there are next of kin who wish to wait until the final outcome of the examining magistrate’s investigation, it will be possible later to find a separate day for them to address the court.

Additional procedural scheduling issues

As the court has repeatedly observed, one consideration that factors into all of its decisions is the interests of the defendant(s), the next of kin and society as a whole in ensuring that these proceedings are concluded within a reasonable amount of time. That is also what the law requires, and we appreciate the court’s attitude in this regard. The reason we would like to briefly address the matter of scheduling today is that this is a complex issue which for us has become even less clear-cut due to a combination of factors. This is partly a result of the number of parties who have decision-making authority. As well as the trial judges there is the examining magistrate, and in addition judges will likely have to rule in chambers on the expected appeal by the defendant Pulatov on the matter of several individuals for whom the Public Prosecution Service requested the status of threatened witness. In our view it would be helpful to clarify how the procedural decisions that will have to be made by the examining magistrate and the court in chambers will influence the scheduling of future hearings. At the present time this is hard to say because the examining magistrate did not indicate in the initial progress reports when she expects to conclude the various parts of her investigation.

A relevant issue in this connection is the extent to which the progress of the trial is influenced by the cooperation of the defendants, the defence team and foreign authorities. For example, at the request of the defence, the examining magistrate will not conduct any investigative activities with the Public Prosecution Service and the defence between 12 July and 6 September 2021. There is also the question of whether the investigation that needs to be carried out in the Russian Federation can take place within a reasonable time. At the end of last year, co-defendant Dubinskiy released a video statement to the court expressing his willingness to be examined. However, at the beginning of this year, when he was invited by a Russian court to come and collect his summons for this hearing, he did not appear. It would therefore be desirable to have clarity as soon as possible about whether or not Dubinskiy is to be examined as a witness in the Pulatov case. Although all reasonable attempts must be made to ensure that any outstanding examinations can be conducted, we cannot be expected to wait indefinitely. We have full confidence in the court’s guidance and that of the examining magistrate. But given that several months have passed following the granting of requests for witness examinations and there is still no clarity as to whether said examinations have actually been scheduled, when they will occur and when the additional investigation is expected to be complete, we find ourselves asking certain questions. This trial cannot go on forever and its progress must remain firmly in the hands of the court and the examining magistrate – not in the hands of the defendants and foreign authorities.

Other scheduling issues with respect to the consideration of the merits

This concludes the procedural side of this trial. With respect to the consideration of the merits, we would observe that Pulatov’s adopted course of action during the proceedings is still unclear in a number of respects. We do not know, for example, what defence he intends to mount. He has every right to keep that information to himself, but this will influence the nature and length of the discussion of the merits. 

A defendant’s course of action can be inferred from his own statements and what has been said on his behalf by defence counsel. These two things do not carry equal weight, however. The defences presented and requests made by the defence team must be assessed on the basis of the case file. The statement by the defendant is part of that file. Defence counsel can make requests and present a defence, but they cannot add to or otherwise change their client’s statement. 

The difference in weight between a defendant’s statement and the remarks of his lawyer has been made clear in recent months by the varying positions expressed by Pulatov’s defence on the intercepted telephone conversations. 

On 28 September 2020 the defence said the following about its client in court:

‘And yes, his voice can be heard in telephone intercepts.’ 

The only issue, according to the defence, was how those conversations should be interpreted.

In November 2020 the defence played a video statement by Pulatov in court in which he responded to multiple intercepted telephone conversations from the number ending in -511, saying that he recognised voices here and there in the conversations under discussion.  In that statement Pulatov also offered the interpretation announced previously: the conversations were allegedly full of disinformation intended to mislead the enemy. 

After showing the video in court, the defence noted, on Pulatov’s behalf:

‘To be clear, our standpoint is not that our client did not take part in any of the conversations involving the number ending in -511. There are conversations in which he took part; he clarified them in his statement.’ 

These were not offhand remarks: both these comments are included in the defence’s memorandum of oral pleading.

Around the last hearing in February the court repeatedly asked if the defence would be willing to indicate which of the conversations Pulatov could be heard taking part in, for the purpose of comparative voice analysis. The defence said that it was unable to do so. According to the defence, there were no recorded conversations in respect of which Pulatov confirmed that he was one of the participants.  The fact that the defence had previously claimed the opposite in court is, according to counsel, the result of a mistranslation by the interpreter hired by the defence when recording Pulatov’s video statement. This makes no sense: according to the defence, the video shown in court on 20 November had not even been shot when they stated at the hearing in September that Pulatov’s voice could indeed be heard on the intercepted telephone calls. And the translation error related to a single conversation, even though the defence stated in court that Pulatov had taken part in a number of the conversations he discussed, and even though Pulatov himself says in the video that he is able to recognise voices here and there. 

This course of events underscores the fact that in this criminal trial we must rely first and foremost on Pulatov’s own words. This differs somewhat from what his lawyers have said in court and in letters on his behalf. As we also stressed in March last year: although lawyers do speak on behalf of their client, their words do not carry the same weight as those of the defendant. That is also apparent here: as surely as the defence informed the court in September and November that Pulatov was a participant in some of the conversations and that Pulatov had explained some of those conversations in his video statement, the defence just as surely distanced itself from that assertion later, emphatically pointing out that remarks by the defence should not be held against the defendant.  

Pulatov has spoken only via his video statements. Those are the words of Pulatov that we have to work with. A long process led up to the presentation of that statement in court. As far back as our initial interaction with the defence, in January 2020, the Public Prosecution Service stressed how important for these proceedings it was to have a statement from Pulatov.  At the time we also pointed out that it could be relevant to the assessment of such a statement whether it was made before or after the defendant had reviewed the case file. Since that time, there have been lengthy, in-depth discussions and correspondence about a possible statement by Pulatov. All this culminated in the video statement that was played in court in November. This video statement was thus a carefully considered piece of testimony. In assessing this statement, there is significance not only in what Pulatov has confirmed to be true, but also in what he explicitly disputed and indeed in those things he did not speak about at all. 

For example:

• Pulatov refused to say which telephone numbers he was using in July 2014 in addition to the number that ended in -511.
• Pulatov has denied any involvement in the downing of flight MH17 and has said nothing to suggest a scenario of self-defence.
• Pulatov further denied belonging to the Russian armed forces and said nothing to suggest that he would qualify for combatant immunity.

The statements previously made by the defence on matters like these and any statements it makes during the rest of this trial must be weighed against Pulatov’s own denials or silence on these same matters. This is in any case important for estimating how long the consideration of the merits will take. Normally, there is no scope for exploring facts and circumstances that may be relevant for defences which were not specifically announced beforehand and which, moreover, are at odds with things the defendant has himself said.

Conclusion

The findings of forensic experts over the past few months and the course of the examination of the experts regarding the pattern of damage and the launch area mean that in this trial we can increasingly focus on the roles of the defendants, because it is becoming more and more clear that there can be no reasonable doubt regarding the technical evidence that points to a Buk missile as the cause of the crash. In determining the roles of the defendants, a factor of great importance is the unified way they worked together in the armed conflict. A key issue when the evidence is assessed will be determining what scenario is true: the one posited by Pulatov on an internet forum  and in the video statement shown here in court (i.e. that the intercepted telephone conversations in which the defendants discussed the Buk contained disinformation in order to mislead the enemy) or the scenario laid out in the indictment (i.e. that these conversations reflected the reality of the situation). We look forward to the assessment of the merits of the case in June, and to a substantive dialogue about the evidence afterwards. We will also focus our attention on ensuring that the next of kin can exercise their right to address the court, hopefully in September. For many of them, those weeks will not be an easy time. But they are important for this trial, and we are keen to hear what the next of kin have to say.