Status of the investigation and position on the progress of the trial - part 1 (10-3-2020)

We would now like to clarify the current status of the investigation and explain how the Public Prosecution Service views this trial progressing. We will begin by discussing the status of the investigation. In doing so we will touch on a number of specific elements of the investigation that are important for a solid understanding of the case and the further progression of this trial. We will also inform the court about a number of investigative avenues still open, and take a moment to consider the possibility that additional information could emerge during the course of this trial from other areas, such as the ongoing state responsibility proceedings.

We will then discuss the efforts we have made to ensure the four defendants’ side of the story is heard. For Pulatov we will stress the importance that he take a position in this case in a timely manner and discuss the possibility that he could be questioned/interviewed by a Dutch examining magistrate in the Russian Federation or in a court in the Netherlands.

Then we will remark on the importance of moving forward by considering options for conducting certain investigative activities now; such as interviewing a limited number of witnesses, carrying out expert investigation into the alleged manipulation of visual material and telecom data and inspecting the reconstruction of the aircraft. For various reasons we cannot yet take a final position about what is needed for the consideration of the merits of the case. Firstly, the court, the defence and the Public Prosecution Service do not yet have the transcripts of the examinations of the most threatened witnesses conducted by the examining magistrate. The examining magistrate could not yet provide these statements, because in late January 2020 Pulatov filed an appeal against the examining magistrate’s decision to designate these individuals as threatened witnesses and protect their identities. A decision is still pending on this appeal. Secondly, it needs to become clear what Pulatov intends to say about the charges, what evidence he disputes and what he plans to argue in his defence. At that point a determination can be made about where the defence and the Public Prosecution Service agree and disagree with respect to follow-up steps. Relevant issues in this regard are which witnesses should be examined further and whether certain matters should be subjected to additional investigation. In this light, this preliminary survey is limited and provisional in nature. However, we can address certain issues that are important for ensuring that the trial proceeds in a careful and efficient manner.

We then intend to discuss a number of specific procedural questions in the case against Pulatov, namely his defence team’s access to certain documents that are not in the case file and Russian translations of trial documents. In the interest of expediting proceedings we would ask the court to delegate authority over this matter to the examining magistrate for the periods when the court is not in session.

After that, we will elucidate the rights of the next of kin in this trial and the opportunities they will have to exercise those rights. At that point we will present an initial estimate of the number of next of kin who wish to exercise their right to address the court and their right to claim damages.

We will close by looking ahead to the consideration of the merits of the case, presenting a proposal to undertake that substantive assessment in stages. If Pulatov’s defence team agrees with the Public Prosecution Service that certain alternative scenarios, such as an explosion inside the aircraft or an attack on MH17 by a fighter aircraft, can be ruled out, it would be possible to discuss the substance of these matters during the pre-trial review hearings in June or at some point later on. This would apply not only to the case against Pulatov, but to the cases against the other defendants as well. The same goes for the discussion of technical issues that do not relate to the involvement of the defendants, such as the forensic investigation or the examination of radar data. Splitting the consideration of the merits of the case during the court hearing into stages deepens the debate, makes the trial more understandable to the next of kin and the public, fulfils the next of kin and the public’s right to information about the investigation, and ensures that the most important questions in this trial are given the time and attention they deserve during the consideration of the case’s merits.

Status of the investigation

We would like to begin by informing the court about the status of the investigation. We will do so in three steps. But before that, we would like to highlight a number of specific elements of this investigation. Then we will discuss the completion of the case file, and finally, we will speak about the possibility that new information might emerge, which would have to be added to the file.

Elements of the investigation

In the interests of the pre-trial review process, we would like to take a moment to consider four elements of this investigation: the international cooperation within the Joint Investigation Team, the efforts to validate the findings of the investigation, the exploration of alternative scenarios and the safety of witnesses. We will return to these points when it comes time to discuss our applications for further investigation and to look ahead to the court hearing.

Joint Investigation Team

The investigation of the crash of flight MH17 was conducted by an international team, the Joint Investigation Team (JIT). This is because the disaster that took place on 17 July 2014 affected many countries. Flight MH17 was operated by a Malaysian airline (Malaysia Airlines), had a Malaysian crew, and was scheduled to fly from Amsterdam Airport Schiphol (in the Netherlands) to Kuala Lumpur (in Malaysia). The aircraft crashed in Ukrainian territory. A large number of victims came from the Netherlands, Malaysia and Australia. Other countries, including Belgium, also lost nationals.

Various countries, including the Netherlands, Australia, Belgium, Malaysia and Ukraine, launched criminal investigations after the downing of flight MH17 in eastern Ukraine. These investigations were aimed at establishing who was responsible for the downing of the aircraft. Ultimately, these countries came together to form the JIT.

A JIT is an efficient form of international cooperation where simultaneous investigations into the same criminal offences are being conducted by different countries. The JIT format enables the countries concerned to coordinate their activities, perform them jointly where efficient, and share evidence and information without unnecessary bureaucracy.

A JIT does not replace the various national investigations, rather, it forms the common core of those investigations. Within that core, activities can be divided and coordinated, and information and evidence can be shared. In addition, each country retains the freedom to conduct its own investigation and analysis.

In the original JIT Agreement and subsequent extensions, the five JIT countries agreed they would not publicly disclose any information stemming from the investigation without first consulting each other. This ‘consultation provision’ is a customary condition in a JIT, as public disclosure of information could damage the various concurrent criminal investigations. Before information stemming from the JIT can be made public, for example in the context of an appeal for witnesses, the JIT countries have to consult with each other. All proposals concerning public disclosure made within the JIT were approved unanimously. Since the establishment of the JIT, a proposal for public disclosure has never once been rejected. Nor has any objection ever been lodged to the various proposals on public disclosure of information from the JIT.

During the JIT investigation, various media outlets reported that Ukraine, as a member of the JIT, supposedly held a power of ‘veto’, allowing it to determine what evidence could and could not be included in the Dutch case file. No such ‘veto’ power ever existed.

The text of the amended JIT Agreement of June 2019 explicitly states that the Dutch JIT team leader assesses (and decides) what information and what evidence collected by the JIT is included in the Dutch case file. It is ultimately up to this court to determine that the case file is complete or needs to be supplemented.

Validation

Since 17 July 2014 the JIT has been conducting a wide-ranging, in-depth investigation. A forensic investigation was conducted on the bodies of the victims and the wreckage of MH17. Hundreds of witnesses were interviewed in many countries. The investigation examined telecommunication data, satellite images, radar data, photos, video, and information from open sources.

From the start of the investigation it was clear that various parties were blaming one another for shooting down MH17. It was also clear from the start that not all parties would approach the results of this investigation with an open mind. For this reason we took additional steps, spending even more time on the investigation and evaluating the evidence even more stringently than we otherwise would. This was done by various means.  

In the first place we assessed the reliability of individual findings of the investigation in various ways. For example, we validated Ukrainian telephone data by verifying the content, time and location data of conversations. This has been done by comparing it to data associated with the devices concerned and , by comparing this information and to what we knew from other sources . On top of that, and as well as by asking participants in the recorded conversations have been asked if they could confirm their authenticity . We succeeded in doing the latter in several cases. The JIT identified a number of participants in recorded conversations and interviewed them as witnesses. Various participants have confirmed (for example, in interviews) the authenticity of publicly released intercepted conversations which were publicly released.

In addition, telecom data was requested from telecom providers in other countries, like Spain and Poland, so as to compare them to the data received from telecom providers in Ukraine. The Ukrainian telecom data was then again compared to that Spanish and Polish data. In this way we were able to ascertain whether information about international conversations in the Ukrainian telecom data was accurate. In 2015 Dutch specialists took network measurements in eastern Ukraine. This yielded information about the locations of mobile phone masts in occupied territory, which could then be compared with data regarding these masts provided by Ukrainian authorities.

Our analysis of the intercepted conversations we received was broad by design, extending to conversations that were not directly relevant to the evidence. This made it possible to confirm many details in the conversations. For example, on 27 July 2014 the defendant Dubinskiy had a conversation with someone who told him that a call had come in from Moscow that a Dutch journalist was missing. The journalist was mentioned by name in this conversation. A few days later the journalist in question published an article in a Dutch newspaper in which he talked about being held for several hours by armed fighters in the area that was controlled by Dubinskiy’s group. This means that the journalist mentioned in that conversation was indeed detained in eastern Ukraine during that time.

This in-depth validation of the telecom data provided by Ukraine was time-consuming, but the quantity of telecom data, broad analysis it was subjected to and the way the various pieces fell together, produced a solid foundation for the court’s assessment of that data.

The visual material that came to the attention of the investigation was also subjected to extensive validation. The case file contains various photos and videos of the Buk TELAR in eastern Ukraine and also several photos of a condensation trail in the sky, which was presumably made by the missile. This material was subjected to a thorough examination. To begin with, every effort was made to find the people who took these photos and videos and to interview them as witnesses. In some cases we were able to do so, and in other cases we were not. In some cases we were able to interview people who were present when the material was recorded or who were involved in disseminating the material and could thus explain its origins. If possible, the camera(s) in question (including the memory card) were seized and handed over to the Netherlands Forensic Institute (NFI) for study. Whenever it made sense to do so, the NFI examined the material to see if there were any indications that it had been manipulated.

Visual material was also shared with the Royal Netherlands Meteorological Institute (KNMI). An expert from the KNMI examined shadows, light and cloud cover in the images to determine whether the meteorological conditions shown in the photos and videos were consistent with weather conditions on 17 July 2014, and to estimate when they were taken.

The investigators themselves studied the material to determine where it must have been recorded. This was done by comparing what is shown in the images with what can be seen in open-source material, such as Google Streetview, or satellite images. Findings by other parties, such as the research collective Bellingcat, were always carefully verified through our own investigative processes. In all cases the investigation team itself determined the correct geolocation on the basis of its own material.

Every type of evidence, from videos to intercepted telephone conversations and from forensic evidence to witness statements has been validated with the greatest possible care.

In addition to testing the investigative results individually, all these various sources of evidence were compared with one another and described in the case file in terms of a larger context. This made it possible to identify relevant similarities and differences. The Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) called this a holistic approach:

‘The Appeals Chamber has reiterated the importance of such a holistic approach to assessing credibility within its own jurisprudence. A tribunal of fact must never look at the evidence of each witness separately, as if it existed in a hermetically sealed compartment; it is the accumulation of all the evidence in the case which must be considered.’ [1]

With that aim in mind, we assembled a wide-ranging case file; a file in which the results of the investigation can be assessed in light of one another and in the proper context. This is also why the case file contains detailed information about the history of the armed conflict which formed the backdrop to the downing of MH17.

We would like to further explain theThe validation process – the assessment of evidence not only in itself but also as it relates to other findings of the investigation – can be illustrated with the help of an example.  This  example sheds light on how the investigation was conducted, while also helping to assess what further investigation might be needed. We will return to this point when it comes time to substantiate our applications for further investigation.

The example in question is a single photo, depicting a Buk TELAR on a trailer, a dark van with flashing lights and a white passenger car. In a later phase of this trial such images could also be shown. At this moment we need to limit ourselves to a verbal presentation only.

Let’s begin with the photo itself. It was emailed to the Dutch investigation team in July 2014, with the subject heading ‘Buk M Makeevka’. This photo contained no metadata. The authenticity of the photo was tested in various ways: expert image investigation on the part of the NFI, a comparison of what is shown in the photo with what could be seen on Google Streetview and an estimation of the time of day based on shadow analysis by the KNMI. On that basis it was determined that this photo must have been taken between 08.48 and 09.32 on Illicha Avenue in Donetsk.

The photo was then compared to other evidence. For example, the same low loader and dark van with flashing lights also appeared in other images. The photo was also consistent with telecom data, from which we know that the telephones of two of the people escorting the Buk transport were transmitting a signal to mobile phone masts on Illicha Avenue in Donetsk. In an intercepted conversation one of these individuals said that he had arrived in Donetsk with a Buk on an articulated lorry. Exactly as the photo shows. The person accompanying the transport then said that he had to stop in the left-hand lane. This is consistent with what various witnesses reported having seen. They spoke about seeing a Buk system on a low loader behind a Volvo lorry, on Illicha Avenue in Donetsk. These witnesses also noticed that this lorry and low loader had stopped in the left-hand lane. Finally, the investigators compared what was depicted in the photo with posts on social media. That same morning, people mentioned on social media of having seen a Buk system in Donetsk.

This is how investigators went about validating this one photo. First, by assessing the authenticity of the photo itself, on the basis of expert investigation and a comparison with other images of the same location. And then by considering the photo in light of other evidence, such as other images of the TELAR, telecom data, witness statements and social media posts. This is the ‘holistic approach’ described by the Appeals Chamber of the ICTY.

It is up to this court to determine if the validation of this photo and other relevant findings of the investigation are complete or not. For us, the leading question has always been whether further investigation would actually add anything to the case file. If further investigation would make no difference in terms of the evidence, there is no reason it should be undertaken.

Alternative scenarios

We not only validated individual sources of evidence; we also examined them in the light of other scenarios. Each scenario posited a different cause for the crash of MH17. The following different, mutually exclusive scenarios were all investigated: an explosion inside the aircraft; an attack by a fighter aircraft (the ‘air-to-air’ scenario); and a collision with a surface-to-air missile (SAM). The last of these scenarios was then subdivided into two possibilities: an attack by a Buk system; or an attack by another type of SAM. With respect to the Buk scenario, we explored various possible launch sites, both in areas under the control of Ukraine and in areas under the control of so-called DPR fighters. Following more than five years of investigation into all these possibilities, only an attack by a Buk system was found to hold up. The Public Prosecution Service is satisfied that any alternatives to the Buk scenario can be ruled out.

At the same time, the investigation also turned up positive evidence from many different sources that flight MH17 was shot down by a Buk missile from an agricultural field near Pervomaiskyi. We have forensic evidence that points to a Buk missile, which in turn led to very specific conclusions on the part of experts from various countries about the area from which the missile must have been launched. Investigators gathered photos, videos and many intercepted telephone conversations, telephone call metadata and data from mobile phone masts that were thought to have evidentiary value. There are eyewitnesses that have made statements about the route taken by the Buk TELAR to the launch site, about the missile launch itself, and about the route taken by the Buk TELAR back to the Russian Federation. This is why the last scenario is now in the indictment.

Importantly, when considering whether it is prudent to pursue alternative scenarios, the question must be considered if further investigation will actually add anything new. For example, a new witness claiming to have seen a fighter aircraft shooting down MH17 adds nothing to similar statements by other witnesses that are already in the case file. The relevance of such a statement does not lie in the number of witnesses who claim to have seen the same thing but in the power of such statements to negate the evidence for the main scenario. Here I am referring to objective evidence such as primary radar images, which show no fighter aircraft, and forensic evidence demonstrating that MH17 was shot down by a Buk missile. If a witness statement cannot undermine such evidence, interviewing an individual on this subject can add nothing to what is already in the case file.

Witness safety

Throughout the investigation, as great a degree of security as possible has been sought in contactsing with witnesses. This is because witnesses in this investigation face a genuine security risk. In order to minimise that risk, the examining magistrate decided that the identity of dozens of witnesses should be protected. A small number of individuals have been given the formal status ofinterviewed as threatened witnesses before questioning. This enabled them to make a statement without running irresponsible risks.  This  is not the case for all witnesses. The question of whether there are grounds to protect an individual’s identity is partly to do with their place of residence and whether their statement is in line with the position of the armed group or government that holds sway in the area where the witness lives. For example, a witness who states that Ukraine was behind the attack on MH17 has little to fear in the Russian Federation.

The risk faced by witnesses must also be explicitly taken into consideration as this case moves forward. That risk applies especially to witnesses who live or have family members living in parts of eastern Ukraine occupied by armed groups. Many neutral international organisations and journalists have observed that the so-called DPR has for some considerable time been conducting a reign of terror in the area under its control, where nobody was safe. For example, the United Nations Office of the High Commissioner for Human Rights (OHCHR) wrote on 15 July 2014, two days before flight MH17 was downed, that the rule of law in eastern Ukraine had been replaced by the rule of violence. Speaking about armed groups in eastern Ukraine, the OHCHR wrote:

‘The armed groups fighting in the east must abide by international law but unfortunately this has not been the case. Grave human rights abuses have been committed by those armed groups. And it must be remembered that these groups have taken control of Ukrainian territory and inflicted on the populations a reign of intimidation and terror to maintain their position of control.’[2]

This threat still exists. In 2019 the Special Rapporteur of the United Nations on Torture described random imprisonment, violence and torture on the part of those in control of Donetsk.[3]

It should therefore come as no surprise that many witnesses in the JIT investigation have expressed concerns about their safety. Witness V7, for example, has stated: ‘I’d like to remain anonymous. I fear for my safety and I’m afraid of possible reprisals against me because I’m making a statement.’ One of the people who filmed the Buk TELAR in eastern Ukraine notified the investigation team by email that they had been visited twice by armed people after that video footage had come to light, and had subsequently fled.

It is also important not to underestimate the threat to this investigation posed by the Russian Federation. Witness S24 expressed a fear of reprisals by the Russian Federation. This witness said they were afraid of being killed, so as to prevent the truth from coming out. Witness V9 says: ‘As far as I’m concerned my statement can be used in whatever way is most effective, but without my name attached to it. I don’t want the authorities in Ukraine or Russia for example to find out who made this statement. If my name does become known, I might have problems. What I mean is, I might get picked up by Russian special services. I’ve see that people in the DNR have been taken prisoner. I’m already taking a risk, but I see it as my duty to give my account.’ These witnesses, and a number of others, have expressed a desire to testify anonymously because of the threat they are facing. The examining magistrate has assessed the risks facing these witnesses and decided that their identities must indeed be protected.

It is not difficult to understand why these witnesses might be concerned. In 2004 a number of Russian diplomats were convicted of a car-bomb murder in Qatar which the court ruled was committed at the behest of the Russian authorities.[4] In the past few years a number of Russian nationals have been charged with murder or attempted murder in the United Kingdom, [5] Germany,[6] Turkey,[7] and Bulgaria. [8] In all these case the authorities of the countries in question have explicitly concluded that the Russian government was responsible for these crimes. In most cases those authorities have also publicly stated that it is specifically the Russian security services ‘GRU’ and/or ‘FSB’ that they hold responsible. Please note: we are only highlighting cases here in which the authorities of other countries have comes to these conclusions following investigations into murders  in those other countries. The result is an established, disturbing pattern of active involvement on the part of the Russian security services, specifically the GRU and FSB, in murders in other countries.

The JIT investigation has turned up clear indications that those same Russian security services, the FSB and GRU, are also closely involved in the armed conflict in Ukraine. The case file contains intercepted phone conversations revealing various forms of involvement on the part of the GRU and FSB in the armed conflict in eastern Ukraine. The case file also contains several intercepted conversations from July 2014 in which members of armed groups in eastern Ukraine discuss having received ‘the green light from Moscow to execute somebody’ and ‘an order from Moscow to shoot someone’. Witness M58 has stated that Russian military personnel, whom the DPR fighters said were from the FSB, were with the Buk TELAR at the launch site.

There are other clear indications that Russian security services are actively attempting to disrupt efforts to establish the truth behind the shooting down of flight MH17. The British and Dutch authorities have determined that Russian GRU agents were involved in attempting to hack into the systems of the Malaysian investigative and prosecution authorities.[9] Previously, it was determined that there had been attempts to hack into the Dutch Safety Board (OVV) during its investigation of the MH17 crash. Witness S28 stated that they (i.e. witness S28) were investigating the MH17 disaster from inside the Russian Federation, when their computer was seized. Witness 28 said that they were now wanted by the Russian security service FSB.

Seen as a whole, this information casts a dark shadow over these proceedings. There are strong indications that the Russian government is very keen to thwart this investigation, and that it is not averse to deploying the Russian security services to do so. Those same services are accused of multiple murders that have been committed in various European countries. A number of witnesses in this investigation have said that they fear for their lives if their identities were to come to light. The use of Russian security services to discover the identity of witnesses in this investigation is a real scenario. These agencies have the capabilities to intercept communications and monitor people’s travel movements. These are capabilities that an ordinary criminal organisation simply does not have.

In short, witnesses in these criminal proceedings face a genuine threat from various quarters. For each witness, therefore, an assessment has been made of what measures are necessary. This assessment took account of the witness’s personal circumstances, including where they and members of their family lived, the nature of their statement, and ways of preventing any undesirable consequences that could arise because they have given evidence as part of this investigation. As has been said, this led to the identity of dozens of witnesses being protected on the basis of a decision by the examining magistrate (under articles 149b and 226a of the Code of Criminal Procedure). The vast majority of these witnesses are those who gave statements about what they observed in eastern Ukraine. The risks are thus considerable. This is why the interests of witnesses must be treated with great care in these proceedings.

On the other hand, it is also necessary to consider the interests of the defence. Because of the protections in place, the defence will probably not be able to question various witnesses in person. If the defence has cause to question witnesses, this will have to be done in another way. A method will have to be found that will allow the defence to exercise its right to examine witness without jeopardising the safety of those witnesses. We will return to this point later.

As I mentioned, Pulatov has lodged an appeal against the examining magistrate’s decision to examine a number of individuals anonymously as threatened witnesses. The district court, sitting in a different composition from that hearing the present case, still has to issue a ruling on this appeal. Regardless of the outcome, there are still dozens of other witnesses in the case file whose identity is protected. It will be necessary to take due account of their interests and those of any new witnesses that may come forward.

Completion of the investigation

As far as the Public Prosecution Service is concerned the case file is now almost ready for the court to consider the merits of the case. As we speak a small number of investigative activities are still being concluded. A witness from the Ukrainian army, for example, was interviewed for the second time in late 2019, following a previous initial interview that was included in the case file. Interviews were also conducted with several of his fellow military personnel who were at the same location around 17 July 2014. These interviews could not be processed and assessed for relevance before the completion of additions to the case file in February. Nor is the investigation of the defendants’ comments posted on the internet and in other open sources entirely complete. Our aim is to supplement the case file with the latest findings of the criminal investigation well in advance of the hearing in June.

These additions will include several visual images of parts of the documents in the action, such as photos, short videos and maps showing relevant locations and events. We will submit a visual overview of the progress and findings of the forensic investigation, and of the various sources of evidence in the case file relating to the transport of the Buk TELAR, which are marked on a map. We will append an explanatory note to several other visual images of parts of the case file, such as those relating to the investigation of radar data. These visual images can help make the case file more comprehensible for the participants in the trial and for the public.

Additions to the case file

In our estimation, there is sufficient information collected in the case file to allow the court to make all the decisions required of it. Of course, the question of whether the case file is complete must be assessed in terms of the substance of the charges. The question is not whether the case file contains every possible piece information about any possible involvement in the downing of flight MH17, but simply whether it is sufficiently comprehensive for the court to reach a judgment in the cases against these four defendants.

Naturally, in a case such as this, we can never guarantee that a case file is complete and requires no further additions. After all, we cannot say what information may yet emerge in the future. But we are conscious of the fact that the contents of the case file must be finalised in a timely manner with a view to the consideration of the merits, and that it can be supplemented only in exceptional circumstances.

Even after the completion of the criminal investigation into these four defendants, new information could still surface, which will need to be added to the file. In these proceedings, we are taking into account the following possibilities.

In the coming period we will – if requested – give the defence access to documents that have not been included in the case file owing to their lack of relevance. If the defence should, having viewed such documents, provide a reasoned request for certain documents to be added to the case file, this may result in the supplementation of the case file.

The defendants Girkin, Dubinskiy and Kharchenko might make relevant comments in interviews or on social media. Despite repeated invitations from the investigation team and the Public Prosecution Service, they have chosen not to give any statement in regard to their case and not to be represented at this trial. Nevertheless, we have been able to learn, from their public comments, how they broadly view the facts. We cannot rule out that the defendants may offer further reactions to this trial in the public domain. We will follow their comments closely.  

In addition, new witnesses could come forward in the defendants’ cases, though it would make sense to look critically at whether hearing a new witness adds anything of substance to the case file. If a statement is relevant and the safety of the witness allows, this may be a reason to add the statement to the case file. It would then be possible to assess, together with the court and the defence, whether or not the witness in question should be heard in more detail.

The JIT's investigation into the involvement of other persons is still ongoing. This investigation is focused on the identities of the Buk TELAR crew and those responsible in the chain of command. If that investigation yields information relevant to the cases of the four defendants, that information will need to be added to the case file.

Lastly, proceedings against the Russian Federation are under way before the European Court of Human Rights (ECtHR). Prior to this hearing we added documents from the Russian government to the case file. These include remarks concerning the nature of the armed conflict in eastern Ukraine and new claims about possible manipulation of evidence obtained in the criminal investigation. We cannot rule out the possibility that these state responsibility proceedings may yield new information that is relevant to the criminal cases.

Even more so than in other major cases, we will need to take account of the possibility of new developments unfolding outside the courtroom.

The Public Prosecution Service has a responsibility to ensure a comprehensive and balanced investigation. If we should become aware of any exculpatory information, this in any event will need to be added to the case file. Where information is unclear in that regard, we will include the standpoints taken by the defendants. If such new information could be used in support of Pulatov's announced defence, we will share it with his counsel. Counsel can then state its views on the relevance of that information. In this connection, the sooner we know what arguments the defence wishes to put forward, the sooner we can assess what documents we can pro-actively make available to the defence. As noted, we have already added to the file a large number of documents concerning various alternative interpretations of the facts to those set out in the Public Prosecution Service's indictment. However, on the basis of the defence's specific standpoints we can check whether other documents need to be added to the case file.

In their arguments the defence should explain what the relevance is of the additional information. Yesterday the defense raised questions about the OVV-report of 2015 and more specifically about the limited closing of the airspace above Eastern-Ukraine in July 2014. For us it was unclear what the relevance of these questions is with respect to any of the decisions to be taken by the court in the case against Pulatov. If a reproach of negligent behavior could be made, then it should be concluded that only the interests of the victims were harmed and not those of the suspect.[10] The question relating to the actions of the Ukrainian authorities with respect to the limited closure of the airspace is therefore not relevant for the criminal proceedings against Pulatov.

Conclusion of the investigation

The investigation is almost complete. The final additions to the case file will be submitted in good time ahead of the pre-trial review hearing in June. This will include reporting on the latest findings of the investigation, and several visual images of parts of the current case file will be added too. We are also taking account of the possibility that new information could emerge that may need to be added to the case file. In addition, we imagine that when assessing whether the case file should be supplemented or not, a stricter assessment of necessity will need to be applied after the pre-trial review phase.

The defendants’ standpoints

In our explanation of the investigation we have already made clear that we believe it is important for the defendants’ standpoint in this case to be put forward as effectively as possible. In our discussion of the right to be present, we outlined our efforts to inform the defendants about the criminal proceedings and to hear their side of the story. Attempts were made to contact them directly by telephone, email and social media. In the case of Dubinskiy and Pulatov, we were successful, but we did not receive any substantive response. The defendants’ public responses on social media and in interviews have been included in the case file. We will continue to follow these public responses.

The content of the file begs for a substantial explanation of the suspects. We believe it is appropriate to point out that they now have the opportunity to provide that explanation. We will explain why.

Pulatov

We requested the Russian authorities interview the three Russian defendants. The Prosecutor General’s Office of the Russian Federation received this request for mutual legal assistance on 28 October 2019. Last week we received a response to this request. Of the three Russian defendants called, only Pulatov appeared. He indicated that he would invoke his right to remain silent because, on the advice of his lawyers, he wished to give a statement in the presence of his lawyers only ‘ten behoeve van’ (for the benefit/purpose of) a Dutch court. It is possible that what was meant here is ‘tegenover’ (before) a Dutch court.

We note that Pulatov is currently invoking his right to remain silent. That is of course the right of any defendant. If his position should change, and Pulatov decides after all to challenge the charges against him in substantive terms, it may be in his interest to give a statement in good time ahead of the pre-trial review hearing, with respect to where he was on 17 July 2014 and what he saw and heard between 8 June and 18 July 2014 concerning the offences in the indictment. A statement from Pulatov could be relevant to the assessment of what further investigation is required, and what investigation is unnecessary. An indirect argument made via his lawyers would not have the same relevance in this respect as a statement from the defendant himself.[11]

Yesterday we have heard from the defence counsel that Pulatov ‘holds the view that he is in no way responsible for the downing of MH17’ and that he ‘had nothing to do with it’. This point of view covers everything yet says nothing. First, it is not a statement by Pulatov himself. Second, this statement by the defence completely leaves open what exactly is contested: actual involvement or the criminal responsibility this entails? Does Pulatov challenge his actual involvement in the request and deployment of the Buk-TELAR; or does he acknowledge his involvement but no responsibility follows from shooting down MH17? This makes quite a difference. An overall challenge of every responsibility through his counsel does not offer concrete starting points for evaluating requests of further investigation.

If the defence considers it desirable for Pulatov to make a statement before the pre-trial review hearing in June, the arrangements concerning the formalities of an interview need to begin now. If Pulatov does indeed wish to give a statement before a Dutch court in the presence of his Dutch lawyers, there are two logical options in this regard: he can be examined by the examining magistrate, either in the Netherlands or in the Russian Federation, or he can be examined here at trial. The law prohibits the giving of evidence via video link in a case involving fatalities.[2] If Pulatov wishes to be heard by the examining magistrate, it should be kept in mind that preparation will take several months at least, given the time required for requests for legal assistance submitted to the Russian Federation to be implemented.

If Pulatov wishes to give a statement here in court, the question may arise whether he should be granted safe conduct to that end. Experience in other cases has shown that this, too, can be a time-consuming matter. If Pulatov is considering requesting safe conduct to enable him to give a statement here in court without being subject to arrest, it would be best if he made such a request as soon as possible. The experience gained in the Bouterse case could help this option to be explored efficiently. [3]

Put briefly, in the Bouterse case The Hague Court of Appeal held that there is no statutory or treaty-based rule requiring that defendants be granted safe conduct. It is generally possible to give a guarantee to witnesses summonsed via foreign authorities that coercive measures will not be applied. Where defendants are concerned, the Public Prosecution Service can give undertakings that they will not be arrested in respect of the case in which they are giving evidence, but no undertaking can be given with respect to any criminal complaint concerning other offences or extradition requests issued by other countries. It would therefore not be possible to honour a defendant's request for safe conduct that protects against any possible arrest.

In substance, the statutory framework in this case is the same as that in the Bouterse case. Effective safe conduct could be granted if Pulatov were to be summonsed as a witness to give a statement in the cases against his co-defendants. After all, under article 12, paragraph 1 of the European Convention on Mutual Assistance in Criminal Matters, he could not, as a witness appearing on a summons, be detained in respect of acts or convictions anterior  to his departure. In a such a circumstance he would be able not only to give evidence as a witness but also use the opportunity to give a statement as a defendant.  If  Pulatov wishes to give evidence in court exclusively as a defendant, he cannot be summonsed as a witness, and he can be given no guarantee that coercive measures will not be applied. After all, if Pulatov appears in court in the Netherlands, a criminal complaint could be lodged against him in respect of other offences to which treaty-based obligations to prosecute may apply. Furthermore, other countries may issue extradition requests that the Netherlands would be obliged by treaty to comply with. In both scenarios, only a witness summons can in practice guarantee safe conduct, because such a summons engenders a treaty-based prohibition on arrest that weighs more heavily than other treaty-based obligations to arrest the individual. For this reason, in the Bouterse case the matter went all the way to the Supreme Court, which held that safe conduct could not be granted to someone giving evidence at trial as a defendant.

We are discussing this issue at this early stage because the smooth progress of this trial requires us to look far ahead. Pulatov is entirely free to continue to invoke his right to remain silent, or to give a statement at a later stage. However, we wish to avoid a situation in which in June we conclude that an effective pre-trial review preliminary hearing  is not possible because Pulatov first needs to be examined by a Dutch court or examining magistrate. In such a situation it would then take months to arrange such an examination. After all, whether it be it for a summons to appear at a hearing, being heard or before by the examining magistrate , or being heard by in case the examining magistrate in will question Pulatov in the Russian Federation , a request for legal assistance will be required, and this will have to be submitted several months in advance.

If Pulatov wishes to be heard by a Dutch court before a pre-trial review hearing, we can initiate that process now. In this regard we could arrange now for Pulatov to be examined, and then Pulatov need not decide until a later date whether that should go ahead or not. If the examining magistrate makes a request, at the court's instruction, to the Russian Federation for legal assistance to examine Pulatov in Russia in the second half of May, there will be sufficient time to prepare and the arrangement can still be cancelled by the defence at any time up until the first half of May. If Pulatov is summonsed to be heard as a witness by the examining magistrate in the Netherlands in late May or here at trial on one of the first days the court sits in June (whereby he can also make a statement as a defendant should he wish), Pulatov himself can decide whether or not to obey that summons. If he then decides not to appear there will be no negative consequences for him.[4] We can therefore make the necessary arrangements now for Pulatov to be examined in several months’ time – giving the defence plenty of preparation time while ensuring enough time ahead of the pre-trial review hearing in June – in a manner in which Pulatov retains full freedom to decide whether he ultimately makes a statement or not. We would appreciate hearing from the defence whether Pulatov wishes to make use of these options. If the defence does not wish to make use of these options, the consequence will be that in June the investigation requests will be discussed and the pre-trial review will proceed without any statement in advance from Pulatov. Now is the time to make that choice.

Naturally, it makes sense for Pulatov to give a statement to the examining magistrate or here in court only if he intends to make a substantive statement that justifies his appearance in person. After all, there are other, more efficient ways to convey his views with the assistance of his Dutch lawyers. For example, the defence itself could take Pulatov's statement, whether recorded on video or made in writing (and signed by Pulatov). We therefore assume that the defence will press for Pulatov's examination only if he is prepared not only to make a statement on the merits of the case, but also to answer questions. If so, and if Pulatov feels more comfortable giving a statement before a Dutch court than doing so in the Russian Federation before the Russian authorities, the interest of establishing the truth will be served by hearing Pulatov in the Netherlands. It may be painful for some people to see someone accused at international level of such a serious offence leaving the courtroom a free man after giving a statement, but in the interest of due process it may be the best option. It should be remembered in this regard that Pulatov, too, is innocent until the court decides otherwise.

There are several other subsidiary issues about which it is in any event up to the defence to clarify as soon as possible the defendant's standpoint. Pulatov has known since June 2019 about the charges in this case and since October 2019 he has had legal assistance in the Russian Federation. On individual points, then, for which he does not need to know the entire case file, he may be expected to provide a response ahead of time. This is in the interest of both the efficient administration of justice and Pulatov himself.

If Pulatov believes that he can claim any form of immunity, for example, it would make sense for him to advise us of that as soon as possible. This issue is unrelated to the substance of the case file and a positive response would be in his own interest.

If Pulatov believes that intercepted telephone conversations he participated in were manipulated, it equally makes sense for him to specify this without delay. His contention can then be investigated in good time. This too is in his own interest. The defence possesses the audio files of relevant conversations in which Pulatov participated, with translations in English and Dutch. Pulatov therefore has every opportunity to respond in a timely and specific manner to these conversations. We invite the defence to provide that response without delay.

With regard to other points, we understand that the defence needs more time to determine a position.

We would also like to be informed in due course, regardless of any examination at trial, whether Pulatov will offer any substantive response or whether he will continue to invoke his right to remain silent. If he is to offer a substantive challenge with regard to his involvement in the offences listed in the indictment, we would like to be informed, well in advance of the pre-trial review hearing in June, of where he was on 17 July 2014 and what he himself saw and heard regarding those offences in the period between 8 June and 18 July 2014. After all, his statement could be relevant to the assessment of what further investigation is required, and what investigation is unnecessary.

Girkin

The defendant Girkin is not present at this hearing, but we know from the interviews he has given and the messages he has posted on social media that he is following his case closely. We would therefore like to invite him to answer one specific question. That question concerns the witness statement that Girkin gave in February 2015 to the Russian authorities and which was disclosed by the Russian authorities. In that interview Girkin stated the following:

‘On 17 July 2014, at about 16.30 Moscow time, the commander of a people’s militia unit with the alias ‘Kep’ – currently the deputy Minister of Defence of the Donetsk People’s Republic; I don’t remember his personal details because we called each other by aliases – reported that the air defence had hit one of the two SU-25 aircraft of the Ukrainian air force. This occurred in the area to the north of the town of Snezhnoye. [...] About an hour after the report concerning the SU-25 fighter aircraft being hit, that is about 17.30, I received a message from the city of Gorlovka, Ukraine, that an unknown aircraft had crashed in the immediate vicinity of the aforementioned city.’

So, here Girkin himself states to the Russian authorities that on 17 July 2014, about 10 minutes after flight MH17 was downed, 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. On 17 July 2014 no wreckage of a fighter aircraft was found. According to the radar data, there was no other aircraft in the vicinity of flight MH17. Given what is now known, this statement begs for an additional explanation about which aircraft is meant by Girkin. We hereby invite Girkin to provide this explanation. 

Dubinskiy

Also Dubinsky has a lot to explain. Let us give one concrete example. The case file contains intercepted telephone conversations from September and October 2014 in which Dubinskiy negotiates about a prisoner exchange with someone he knows on the Ukrainian side. In one of these conversations Dubinskiy insists on releasing Russian members of the motorcycle gang Night Wolves who have been imprisoned in Ukraine. The person who talked to Dubinskiy has confirmed that he has indeed took part in these conversations with Dubinskiy. In one of these conversations, on 27 September 2014, Dubinskiy is told that he is associated with the ‘Boeing’, or in other words flight MH17. This conversation took place after the Ukrainian authorities publicised several recorded telephone conversations of Dubinskiy in relation to the Buk-TELAR in the months before. Dubinskiy has responded to the announcement that he is associated with the Boeing as follows:

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

It seems that Dubinskiy confirms that it is indeed his voice that can be heard in the conversations about the Buk. In these conversations, relating to the downing of MH17, he speaks about the “toy” that was moved in his area. In an interview with the BBC in June 2019 Dubinsky has said that he, as the head of the counter espionage agency, was not charged with the transportation or use of the Buk weapon system. If Dubinsky wants to clarify how these two statements which were made in relation to MH17, now is the time.

Kharchenko

The last time we heard from Kharchenko was in a video which was uploaded on the internet on 19 and 20 December 2019. In this video the presenter questions the results of the JIT investigation. According to the presenter, it is a carefully prepared provocation done by the security services of other states. No Buk-missile was fired from the area which was controlled by the DPR. The presenter refers to interviews with several DPR-fighters, including with Kharchenko. In his video interview Kharchenko states that in five years he never saw a Buk on the soil of the DPR. The case file contains objective forensic evidence that MH17 was downed with a Buk-missile from an area which was controlled by the DPR. Additionally, the file contains a large amount of intercepted telephone conversations and other telecomdata from which it follows that Kharchenko was directly involved in the deployment of the Buk-system in the DPR area. This begs for an explanation. If Kharchenko can give this explanation on video, he should do that now.

Importance of the trial's progress

In these proceedings a balance must be struck between various interests. First, the defence must obviously be given sufficient time to study the case file, determine its position in the trial, and prepare for the consideration of the merits. In any criminal proceedings conducted with due care, the defendant must be given sufficient opportunity to prepare and present their defence. That is in the interest not only of the defendant but of everyone: it contributes significantly to the quality of the criminal trial and the legitimacy of its outcome.

On the other hand, it is also necessary to ensure the progress of these proceedings as effectively as possible. This is essential in respect of both the next of kin and society's interest in the proper and efficient administration of justice. Efficiency is important for the next of kin, because they should not be burdened longer than necessary. They have a right to expeditious conclusions on what happened to their loved ones. Moreover, to many of the bereaved this trial and all the public attention it receives are painful confrontations with their loss. As worded by one of them: “it takes you back in time, you start from the beginning”. This trial prolongs the ‘torture’ endured by this father since 17 July 2014.[15]

It is important for the quality of these proceedings, as the more time that passes the more difficult it generally becomes to establish the truth. It is also important for the many witnesses in this case who have understandable concerns about their safety. They have a right to be able to fulfil their duty as witnesses as soon as possible, so that they can move on with their lives without the worry and complications their position as witnesses currently entail.

The court has announced that the investigation requests of the defence and the Public Prosecution Service will be discussed at the pre-trial review hearing in June. In a criminal case of this nature and size it is to be expected that at a later date, for example in the autumn, a second pre-trial review will follow in which the findings of the examining magistrate can be assessed before the merits of the case are considered. In order to use the coming period as efficiently as possible we believe it would be sensible – as is customary in cases of this size – to enable the examining magistrate to ensure the progress of the trial between hearings and to decide on a specific category of requests to be defined by the court, which can be made before a pre-trial review hearing.

It is likely that, where many investigative activities are concerned, the examining magistrate will need plenty of preparation time in order to contact the authorities in other countries and carefully explore a safe method of proceeding. Possible further investigation by experts, for example in connection with the authenticity of visual images or intercepted telephone conversations, will also in most cases take many months. It is therefore important always to enable the examining magistrate to carry out the necessary activities at the earliest opportunity. To that end, today we will also be making several applications to hear witnesses, which in our view the court can decide on at this stage. This does not mean that these witnesses will be examined next week. When allowing those applications, the court may determine, for example, that the court orders will not be implemented until the final hearing day in June, in order to give the defence sufficient preparation time. However, allowing them now, in March, will enable the examining magistrate to make the preparations necessary to ensure that these witnesses can be examined in July or August, for example. If the court should postpone its decision until the end of June, there is a good chance that implementation of the court orders will not be possible before September, meaning we will lose valuable months in these proceedings. What is more, the examining magistrate would then be subjected to an unnecessary backlog of instructions for further investigation, as the defence can be expected to formulate various investigation requests in June. It is therefore in the interest of the trial’s progress that decisions be taken now on further investigation where possible.  

Footnotes

[1] ICTY Appeals Chamber 23 October 2001, Kupreskic et al., Judgement, § 334 and references; ECLI:NL:RBDHA:2017:14782 and references.

[2] Office of the United Nations High Commissioner for Human Rights 15 July 2014, Report on the human rights situation in Ukraine, p. 3, 7.

[3] A/HRC/40/59/Add.3, para. 96-102.

[4] BBC, Russia 'behind Chechen murder', 30 June 2014, news.bbc.co.uk/2/hi/middle_east/3852697.stm.

[5] Sir Robert Owen, The Litvinenko Inquiry Report into the death of Alexander Litvinenko, January 2016, webarchive.nationalarchives.gov.uk/20160613090324/https://www.litvinenkoinquiry.org/report; BBC, Litvinenko inquiry: Key findings, 21 Januaty 2016, bbc.com/news/uk-35371344; BBC, Salisbury Novichok poisoning: Russian nationals named as suspects, 5 September 2018, bbc.com/news/uk-45421445.

[6] BBC, Berlin murder: Germany expels two Russian diplomats, 4 December 2019, bbc.com/news/world-europe-50659179; Spiegel International, Putin's Killers in Europe - How Russian Agents Hunt Down Kremlin Opponents, 9 December 2019, spiegel.de/international/world/how-russian-agents-hunt-down-kremlin-opponents-in-europe-a-1300091.html.

[7] RadioFreeEurope/RadioLiberty, Report: Turkey Swapped Two Alleged Russian Spies For Crimean Tartar Leaders, 29 November 2017, rferl.org/a/report-turkey-swapped-two-alleged-russian-spies-for-crimean-tatar-leaders/28886977.html.

[8] RadioFreeEurope/RadioLiberty, Bulgaria Charges Three Russians In Absentia Over Attempted Murders In 2015, 23 January 2020, rferl.org/a/bulgaria-charges-three-russians-gebrev-poisoning-in-absentia/30393608.html.

[9] Dutch Ministry of Defence, Verklaring over de verstoring van een cyberoperatie van de GRU door de MIVD op 4 oktober 2018 in Den Haag, 4 October 2018, defensie.nl/downloads/publicaties/2018/10/04/statements-over-de-verstoring-cyberoperatie-gru-door-de-mivd-op-4-oktober-2018, p. 1.

[10] E.g. The Hague Court of Appeal, 18 June 2009, ECLI:NL:GHSGR:2009:BI8685 (“The Court of Appeal agrees with the court that an untimely intervention by the police, which led to more damage done by the defendant, does not lead to a reduction of the sentence, given that the damage was not inflicted by the alleged negligence of the police but by the irregular behavior of the defendant. […] Moreover, it are not the interests of the defendant which are harmed by an untimely intervention of the police, but at most the interests of the victim. The question whether the police has responded adequately should therefore not play a role in assessing the sentence.)

[11] See e.g. ECLI:NL:RBROT:2019:1574 (“a substantial statement of the defendant about the allegations is not an absolute condition. Such a statement could, however, be important for a decision of the court if and why, the interview of a witness or any other investigation act is important for any of the decisions to be taken in conformity with articles 348 and 350 of the Code of Criminal Procedure. When such a statement is not made or the defendant is not willing to make such a statement it may lead to the conclusion that the necessary information in the case file is missing in order to substantiate the necessity of hearing such a witness. The risk lies with the defense”). ECLI:NL:RBROT:2018:10294 (“…a contestation by the defense is not enough to substantiate the procedural questions of the defendant.”) ECLI:NL:RBGEL:2017:1646 (“When looking at the aforementioned European Jurisprudence a more strict motivation may be required for witnesses a decharge (for the defense) then for requests for incriminating witnesses. Both the ‘sole and decisive’ and the ‘proper administration of justice’ rules may play a role during the assessment. The procedural attitude of the defendant during the trial could be helpful when understanding an alternative scenario”); Municipal Court The Hague, 23 April 2013, ECLI:NL:RBDHA:2013:BZ8217.

[12] Art. 131a Sv jo. Besluit videoconferentie art. 2 lid 1 sub d.

[13] Appeals Court The Hague 10 December 1999, ECLI:NL:GHSGR:1999:AA5285; Appeals Court The Hague 30 June 2000, ECLI:NL:GHSGR:2000:AA6305; Trouw, Vrijgeleide voor Bouterse juridisch mogelijk, 13 August 1997, trouw.nl/cs-b1c4fa89.

[14] Artikel 8 European Convention on Mutual Assistance in Criminal Matters.

[15] nos.nl/l/m/2326254.