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The Court has rendered an interlocutory decision on requests and applications made by the defence, counsel for MH17 relatives and the Public Prosecution Service
- Verrijkte uitspraak
District Court of THE HAGUE
3 July 2020
Public Prosecution Service No. 09/748006-19
Table of Contents of Interlocutory Decision
Table of contents
District Court of THE HAGUE
Three-Judge Criminal Division
Public Prosecution Service No. 09/748006-19
Date rendered: 3 July 2020
The Hague District Court, rendering a decision in criminal proceedings, has delivered the following interlocutory decision in the case of the public prosecutor versus the accused:
[date of birth] in [place of birth]
The matter was addressed at the hearings on 8, 9, 10, 22, 23, 26 June and on 3 July 2020.
The court heard the applications and responses of the Public Prosecution Service, the requests for investigation and responses of counsel for the accused [accused] and the requests of counsel for the MH17 relatives (hereinafter counsel for the relatives).
Nature of this criminal case
The MH17 criminal case is a special criminal case. Firstly, because this case is concerned with suspected participation in an incident in which a large number of innocent people lost their lives. Secondly, because it took place in an area in eastern Ukraine where conflict prevailed at the time, and where the geopolitical situation was unstable. These circumstances have made it difficult to investigate the cause of the crash. This was the experience not only of the Dutch Safety Board (hereinafter DSB), which was the first to investigate the circumstances, but of the Public Prosecution Service as well, which also encountered limitations in conducting the criminal investigation.
In the early days and weeks after the crash, the emphasis was on repatriating victims, personal effects and wreckage. Only in mid-2015 was it possible to conduct any form of criminal investigation in Ukraine for a brief period.
Results of the criminal investigation
As part of the criminal investigation, there was an enquiry into whether there had been irregularities in the departure of flight MH17 from Schiphol Airport. In addition, an investigation was conducted to determine whether there had been an explosion, and, if so, whether it had been inside or outside the aircraft and what type of weapon could have caused it.
The investigation produced a so-called main scenario, which was further scrutinised. According to that main scenario, flight MH17 is believed to have crashed following the firing of a BUK missile at the aircraft using a BUK-TELAR from a launch site which is presumed to be an agricultural field near Pervomaiskyi, a few kilometres south of Snizhne, in eastern Ukraine.
The criminal investigation has led to the prosecution of four suspects. The Public Prosecution Service has announced that investigation is still ongoing, on the one hand, into higher command lines and, on the other, into the crew of the BUK-TELAR. The current four accused are alleged to have played a role in the conflict in eastern Ukraine and to have been involved in organising the deployment or transport of the BUK-TELAR on 17 July 2014.
The indictment states that all four accused are charged with having been involved in the murder or manslaughter of 298 people and of causing an airplane to crash, as a result of which 298 people died.
The oral proceedings in this case opened on 9 March 2020. The case is currently in the pre-trial phase. In other words, it is currently being established whether further investigation is needed, or whether the case file is complete The Public Prosecution Service has given presentations on how the criminal investigation was conducted and on the current state of affairs. The Public Prosecution Service is of the opinion that the investigation concerning the four accused now on trial has been finalised, and that the case file is complete. That said, the Public Prosecution Service has made a limited number of applications.
Requests made by the defence
The defence considers that further investigation is necessary and has set out part of its requests for investigation, including requests that a large number of witnesses and/or experts be interviewed.1 In addition, the defence has requested that it receive access to documents, that further investigations be conducted, and/or to have the opportunity to scrutinise items of evidence (or have them scrutinised).
The defence also noted that it has not (yet) had the opportunity to discuss the case file with the accused, who resides in the Russian Federation. For that reason, the defence is not in a position to submit any investigation requests relating to the charged participation by the accused or to combatant immunity. This also holds true for the part of the file relating to which the defence has not yet had time to frame requests for investigation. That part concerned, as the court understands it, is in particular the part which has been included as the case file in the prosecution file. The defence has proposed that it be granted a period of eight weeks respectively to frame requests for investigation, further to subsequent study of the case file on the one hand, and further to consultations with their client on the other. The court will return to this matter in the section entitled “planning ahead.”
In the introduction to its memorandum of oral arguments, the defence specified which investigation steps should still take place in its view, noting that the investigation carried out by the Public Prosecution Service had encountered many obstacles, which had had an undeniable impact on the result of the investigation. In this connection, the defence notes that the crash site was unsupervised for four months, such that the loss of, tampering with or even planting of evidence cannot be excluded. It also notes that initially it was impossible to conduct other investigation; that only 30% of the crashed passenger aircraft was recovered by collecting the wreckage, which furthermore could not be recovered in a forensically sound way; that the Public Prosecution Service was not able to order telephone intercepts directly and was dependent on the SBU (the court understands the Ukrainian security service is meant); that the Public Prosecution Service was unable to carry out so-called network measurements shortly after the disaster; that it was difficult to find witnesses and to interview them expediently; that soil samples could not be taken shortly after the disaster; that the precise course of the identification and launch process could not be reconstructed; that the motive for the launch had not been established, and that arena tests to elucidate damage patterns were rarely conducted. In addition, according to the defence, there is no experience in the Netherlands with criminal cases in which surface or air missiles have been used; with dynamic simulation of a BUK or air missile explosion at an altitude of ten kilometres; with assessing damage patterns generated by such missiles at an altitude of ten kilometres in a passenger aircraft; and that no witnesses have been interviewed who saw exactly what happened at an altitude of ten kilometres. Considering of these limiting factors, in the view of the defence, it is safe to query whether such an investigation can yield a case file that is sufficiently reliable for sound decisions to be made based on it.2
The defence has the impression that, as far as the Public Prosecution Service is concerned, the BUK scenario must be maintained at all costs.3 The defence further notes that the main pillars of the Public Prosecution Service’s entire evidentiary edifice are largely based on expert reports. These reports have been drafted by a limited number of experts, who have, moreover, gradually become encumbered by information, which may subsequently have impeded those experts in assessing the facts objectively. According to the defence, another common thread is that if certain findings emerged that were not compatible with the BUK scenario, those findings were submitted to the NFI, for example, for validation. However, the findings thus assessed were not subsequently referred back to the first source, such that no rebuttal took place.
The defence also pointed out that the results of the ongoing investigation will be relevant, or possibly even essential, to assessing the forms of participation in an offence with which the accused is charged. An additional circumstance, according to the defence, is that the Joint Investigation Team (hereinafter JIT) turned to the media on several occasions to report its interim findings and, in so doing, made no secret of the main scenario that the JIT had in mind shortly after the disaster. Moreover, the case file is structured in a way that makes it difficult to use. Furthermore, the Public Prosecution Service has relied on Ukraine in securing reference material, telecom data, intercepted telephone calls, video files, soil samples, radar images and military flight data and in selecting witnesses.
Furthermore, the defence notes that, in the case of certain materials secured in April 2015, i.e. three shards and a tube, the case file does not state how long they had already been at the crash site, and how they got there. The defence asks what investigation was subsequently conducted on site in Ukraine to rule out the possibility that those materials might have originated, for example, from a BUK missile fired by Ukraine prior to 17 April 2015 and/or that they were planted as evidence?4 The defence points out that, given the tenor of the JIT agreement, it is entirely plausible that Ukraine was in a position to exert compelling influence on the investigation carried out by the JIT.
The defence's investigation requests were set out and further substantiated in various sections of their memorandum of oral arguments and relate inter alia to the warplane scenario, i.e. to support a possible line of defence that the warplane scenario cannot be excluded or has at least not been sufficiently investigated or has been rejected too lightly. Furthermore, the defence first wants to determine exactly how a BUK missile works when fired at target that must not be missed; what the most likely damage pattern is if a passenger aircraft is actually hit by a BUK missile (an impact detonation); what the most plausible impact point is; and, finally, whether, in light of all this, it is still plausible that the MH17 was struck by a BUK missile. Other requests for further investigation focus on satellite images, the Cockpit Voice Recorder (CVR), the launch site, the circumstances pertaining to the airspace on and around 17 July 2014, the recovery of victims and wreckage and telecom data.5 Furthermore, the defence first wants to determine exactly how a BUK missile works when it is homing in on an unmissable target; what the most likely damage pattern is if a passenger aircraft is actually hit by a BUK missile; and what the most plausible impact point is; and, finally, whether, in light of all this, it is still plausible that the MH17 was struck by a BUK missile.6 Other requests for further investigation focus on satellite images, the Cockpit Voice Recorder (CVR), the launch site, the circumstances pertaining to the airspace on and around 17 July 2014, the recovery of victims and wreckage, and telecom data.
The Public Prosecution Service’s position on the defence’s requests
According to the Public Prosecution Service, the Air Traffic Centre’s (hereinafter ATC) audio recordings of the telephone communications between Ukrainian air traffic control (ATC Dnipropetrovsk) and Russian air traffic control (ATC Rostov) and of the radio communication between the Ukrainian air traffic control (ATC Dnipropetrovsk) and civil aviation (memorandum of oral arguments, section 4b, para. 16, other requests No. 2) may be added to the file.
Furthermore, the requests referred to in the memorandum of oral arguments, section 5, para. 23, regarding investigation into launch sites, may be granted, in the sense that the matter is referred to the examining magistrate, who will have an expert (No. 21) of the Dutch Aerospace Centre (hereinafter NLR), experts of the Belgian Royal Military Academy (hereinafter RMA) (Nos. 22 and 23) and an expert (yet to be identified and appointed) from [company] answer written questions submitted by the defence and the Public Prosecution Service.
Following referral of the matter to the examining magistrate, the reporting officers Primo Nos.17-496, 17-495, 17-511 and 17-512 (Nos. 61 to 64) may be interviewed about securing of an engine shroud and three shards in the disaster area.
Reporting officer Primo 17-170 (No. 70) may be interviewed regarding intercepted telephone conversations and recognition of [accused]'s voice (memorandum of oral arguments, section 8, para. Nos.24, 35 and 36).
Furthermore, the Public Prosecution Service does not oppose interviewing witness S09 (memorandum of oral arguments, section 2, para. 14, No. 36), radar expert D21 (memorandum of oral arguments, section 2, para. 52, No. 104), expert [name 1] (memorandum of oral arguments, section 3, para. 59, No. 19), and interviewing [name 2] (No. 14) regarding the capabilities and operation of a BUK system (memorandum of oral arguments, section 5, para. 23).
According to the Public Prosecution Service, the other requests for further investigation should be rejected.
Finally, the Public Prosecution Service stated that it would compile a full inventory of the requests for inspection made by the defence, with the exception of the report from [company] requested by the defence and the radar data from the radars [place 1], [place 2], [place 3], [place 4], and [place 5] (No. 30). The Public Prosecution Service has stated that it does not have this data in its possession. As soon as that inventory is ready, the Public Prosecution Service will relay its decisions (within fourteen days).
Requests made by counsel for the relatives
Counsel for the relatives has asked to receive documents from the second supplement to the case file, taking into account the frameworks previously used by the court. In addition, counsel for the relatives has asked to receive indexes to the case file, as well as documents concerning the transfer of the proceedings (this concerns Primo 13940). Finally, counsel for the relatives has requested access to the witness interviews conducted by the examining magistrate.
The Public Prosecution Service did not object to this request being granted, except insofar as the request related to witnesses interviews conducted by the examining magistrate.
Applications by the Public Prosecution Service and the response of the defence thereto
On 10 March 2020, the Public Prosecution Service made the following applications7:
that an expert be remitted to scrutinise possible indications of manipulation of footage in the two versions of the same video of the TELAR in Snizhne contained in the case file (Primo-02378, p. 127, 188.8.131.52), also in light of the statements by the Russian Federation (Primo-14207, paras. 54-64);
that an expert be remitted to investigate the assertion that the version of the same video referred to by the Russian Federation must have been uploaded by 16 July 2014 and must therefore have been recorded earlier (Primo-14207, para. 38-43);
that witnesses M58, S07, S17, S21, S27 and S32 be interviewed in a safe manner to be determined by the examining magistrate;
that the examining magistrate make a compilation of the interview by the examining magistrate of witness M58;
that a visit be conducted by the court to [place 6] to inspect of the reconstruction of the MH17 aircraft.
On 10 June 2020, the Public Prosecution Service added to this an application that witness X48 be interviewed by the examining magistrate.
The defence has agreed with the prosecution's application to interview witness M58 but has requested that the application for a compilation be made of the interview by the examining magistrate be put on hold or at least (provisionally) rejected. The defence defers to the court's decision regarding interviewing witnesses S07, S17, S21, S27, S32 and X48. The defence does not oppose the footage being examined by an expert. Finally, the defence defers to the decision of the court as regards the inspection but has requested that, in the event of it being granted, it be allowed to view it (in advance) accompanied by its own expert.
Decision of the court
Framework for assessing applications and requests
The court will now explain how it has assessed the applications and requests submitted to it and describe the decisions reached with regard to the requests made by the defence, as well as with regard to the applications made by the Public Prosecution Service and requests by counsel for the relatives.
Given that these court proceedings opened on 9 March 2020, the court has applied the principle of necessity in assessing requests made by the defence.8 It should be noted that, before these court proceedings opened on 9 March 2020, the defence were not in a position to frame their requests for further investigation. This was because the defence simply had not had sufficient time to study the case file in its entirety. As already stated at the earlier hearings in March, at this juncture, the court will assess how necessary the requests for further investigation are, but will do so in such a way that the outcome does not differ materially from that which would result from an assessment based on what is required to conduct a proper defence.
This means that requests from the defence to interview witnesses may be rejected, only if rejection thereof does not unreasonably compromise the accused’s defence. That is only the case, if the matters on which a witness can testify cannot reasonably be material to any decision to be taken in his criminal case under Section 348 and 350 of the Dutch Code of Criminal Procedure (DCCP), or if it may reasonably be excluded that that witness is in a position to testify about matters that are of material interest.
On the one hand, this approach implies a cautious use of the power to reject requests, but, on the other hand, it presupposes that the defence properly substantiates the request. If a request is not or is only summarily substantiated, the judge is unable to assess the request with respect to its pertinence to conducting a proper defence. The defence may be required to provide reasons, with respect to each of the witnesses that they wish to have interviewed, as to why that interview is relevant with respect to a decision to be taken in the criminal case. This might, for example, involve explaining why defence witnesses should be interviewed (their testimony may be of assistance in substantiating or contesting the charges) or why witnesses who were interviewed in the preliminary investigation should be interviewed (the credibility and reliability of these persons or their statements could thereby be reviewed).
Given the multitude and diversity of situations that may arise, no generally-applicable rules can be given concerning the instances in which and the extent to which the rejection of a request needs to be substantiated in some detail. The same is true when it comes to the question as to whether under special circumstances, for example unforeseen developments, the interests of a fair trial can militate against rejection. That said, the nature of the subject on which the witness can testify is important, as is the persuasiveness of the arguments put forward by the defence in support of interviewing him.
With regard to the right to a fair trial, recent case law of the European Court on Human Rights (hereinafter ECtHR) regarding the right to examine witnesses emphasises the criterion of the “overall fairness of the trial”, this includes a number of inter-related sub-aspects framed by the ECtHR (as mentioned in the judgment in the Saakashvili v. Germany case, §1079). The decisive factor here is whether the criminal proceedings as a whole are conducted fairly, and that can only be fully ascertained after the fact.
The court must assess whether a request to interview witnesses has been duly substantiated, and whether it should be granted in the light of all the circumstances of the case and by applying the correct criterion. If the court rejects a request, the factual or legal grounds for the rejection must be set out in the court record or in the judgment. This obligation to state reasons bearing on the court is based in part on Article 6 of the European Convention on Human Rights (hereinafter ECHR).
It may be in the interest of the accused to have content in the file that incriminates him further scrutinised by interviewing witnesses or questioning experts, as well as by interviewing witnesses and questioning experts (or having them interviewed and questioned) that can provide exculpatory testimony. Furthermore, the accused may see it as important that an alternative interpretation of events be investigated, an interpretation that does not contradict the evidence in the case file, but that is based on other facts and does not point to criminal involvement of the accused. If such an interpretation is possible, it is up to the accused and his defence to present the reasons and facts underpinning it.
The accused has the right to remain silent; he is not obliged to answer questions. There is no absolute obligation on the accused to make a statement on the substance of the case. Providing such testimony may, however, provide clarification to the court, which is obliged to rule on requests for investigative steps, as to why interviewing a witness or another investigative act can reasonably be deemed material to one (or more) decision(s) within the meaning of Sections 348 and 350 DCCP.
The court assessed the applications made by the Public Prosecution Service based on the principle of necessity, and, if an application has been made in a timely fashion, the court also takes into account whether interviewing the witness concerned serves the prosecutorial interest. All the applications were submitted on time.
Assessment by the court of the applications and requests made
The criminal investigation in this case focused on the suspected cause of the crash of flight MH17 and the persons who may presumably be held criminally responsible for it. As the Public Prosecution Service has explained, the investigation led to a main scenario, according to which flight MH17 was shot down by a BUK missile fired from a location near Pervomaiskyi.
That main scenario is based on the findings of forensic investigations, in the course of which pieces of metal and other objects found in victims’ bodies, aircraft wreckage and other objects, including victims' personal effects, were examined. According to the Public Prosecution Service, this scenario is supported not only by expert analysis of the damage pattern, which concludes that the damage pattern observed on the wreckage matches the damage caused by a BUK missile detonating to the left of the cockpit, but also by other findings of the criminal investigation, such as photographs, videos and intercept reports.
In addition, the investigation addressed other possible causes of the crash, such as an on-board explosion or the so-called air-to-air scenario, namely that a fighter jet attacked flight MH17, or that a surface-to-air missile other than a BUK missile, or a BUK missile launched by Ukrainian troops, was used.
The defence has asserted that the accused denies involvement in the offences charged. However, the court notes that the accused has not yet been specific in his denial. He did, however, have an opportunity to comment in specific terms on the charges at an interview that took place on 14 February 2020 in the Russian Federation further to a request for legal assistance made by the Public Prosecution Service. The latter set out the allegations and included specific questions regarding the offences charged. At that interview, the accused only stated that he was only willing to testify before a Dutch court in the presence of his Dutch lawyers.
The investigative steps requested by the defence focus inter alia on whether alternatives to a BUK missile launch have been ruled out with good reason. After all, according to the defence, if it can be demonstrated that such a scenario was possible, the main scenario cannot simply be considered to be the only possible scenario.
The court must assess whether granting the requests can reasonably be deemed material to the matters that must be addressed by the court pursuant to Sections 348 and 350 DCCP, and whether the witnesses requested are in a position to testify on the matters raised by the defence.
The following questions arise, in any case, from the offences charged:
Did an airplane, specifically flight MH17, crash in Ukraine on 17 July 2014?
Did all 298 occupants die as a result of the crash?
Was the crash of flight MH17 caused by a BUK missile launched from a BUK TELAR?
Was that BUK missile launched near Pervomaiskyi?
Was launching a BUK missile and causing an airplane to crash likely to endanger the lives of the occupants of that airplane?
In the period from 8 June 2014 through 17 July 2014, did the accused play a role together and in association with one or more others in requesting, transporting, escorting, guarding, hiding, despatching to the launch site and launching a BUK missile?
Did the accused do so as a functional co-perpetrator, a co-perpetrator, a co-perpetrator by incitement, or an accomplice?
When assessing the defence’s requests, the results of the requested investigative steps may not be pre-supposed. However, as previously explained, the court is bound to take account of all the circumstances of the case. In the present case,of those circumstances is that, after an extensive investigation, the main scenario, namely that flight MH17 was shot down by a BUK missile from Pervomaiskyi, is, at least in the view of the Public Prosecution Service, supported by various investigation findings in the case file. The Public Prosecution Service has, furthermore, investigated other possible causes of the crash of flight MH17. The Public Prosecution Service has rejected these scenarios based on independent investigative findings unrelated to the investigative findings supporting the main scenario.
The court has also borne in mind that the implausibility of one scenario cannot be seen in isolation from the plausibility of another. The scenarios are, after all, mutually exclusive. If the MH17 was downed by a fighter jet, it was not downed by a BUK missile and vice versa. The same reasoning applies to the launch site.
If the defence wishes to adopt the position that an interpretation of the events other than the main scenario cannot be ruled out as the cause of the crash of flight MH17, the question arises as to whether that is, in fact, material to the defence, if the defence does not also contest the pillars underpinning the main scenario. The court is of the opinion that, for this reason, the pertinence of requests relating to alternative scenarios can only be assessed correctly, when all requests for investigation, and notably those relating to the main scenario, are known.
What is more, the defence's requests for investigation largely aim to establish whether an alternative interpretation of events may become plausible. As noted above, the accused has not yet made any concrete statements regarding the allegations against him. This means that the court cannot yet determine how granting the investigation requests relating to that alternative interpretation will further the ability of the accused to conduct a proper defence, given that it is not clear which parts of the allegations against him he contests or which alternative scenario the accused espouses. For this reason also, the court is currently unable to assess the pertinence of a significant number of the requests. The court will therefore postpone taking a decision on those requests, until the defence has specified its other investigation requests - within a timeframe to be set - and it becomes clear whether and, if so, which parts of the indictment the accused disputes, or what position he wishes to adopt with respect to it.
Insofar as the requests for investigation relate directly to the main scenario, which underpins the indictment, the court recognises their pertinence for the conduct of a proper defence and will therefore grant them. For that reason, the court will grant requests by the defence that relate to that aspect.
Decision on requests for investigation made by the defence
Section 3, paras. 40, 41 and 45
The defence has requested that several witnesses/experts be interviewed, who can testify on the possibility that a BUK missile would detonate not adjacent to, but in the aircraft, if it were fired at a civilian aircraft, or who could testify on the improbability of the error scenario, according to which firing at a passenger aircraft was accidental. The Public Prosecution Service has argued that the request to interview those witnesses should be rejected, given that several investigations into the damage pattern have shown that detonation took place next to the aircraft.
The court considers that these investigation requests relate to the premise set out in the indictment by the Public Prosecution Service that the MH17 was shot down by a BUK missile. If it were to emerge that a BUK missile fired at a civilian aircraft could not possibly detonate next to the aircraft instead of in the aircraft, that would have an impact on the findings in the reports underpinning the main scenario set out in the indictment, that the aircraft was shot down by a BUK missile detonated next to the airplane. The defence therefore has an interest in being able to question a number of experts in this regard.
The question of whether the downing of a civilian aircraft must have been intentional, rather than the airplane having been mistaken for a military aircraft is also important for addressing the matters covered by Sections 348 and 350 DCCP.
The court will grant the request to interview [name 2] (No.14), G8091 (No. 50) and an expert from [company] (e.g. [name 3] No. 17) to question them regarding the possibility of a BUK missile (9M38 (M1)) fired at a passenger airplane such as the MH17 detonating next to the aircraft (using the proximity fuse rather than the impact fuse, hereinafter impact detonation) and regarding the possibility that a civilian aircraft may be mistaken for a fighter jet, given the relevant conditions (plausibility of the error scenario). The court considers that these experts could also be questioned regarding the plausibility of a scenario in which the MH17 is struck by a BUK missile that was intended for a fighter jet flying in the vicinity, with respect to the technical operation of a BUK missile fired by a BUK-TELAR (the “human-shield scenario”). Although the defence did not explain how they had an interest in establishing such a scenario, the court considers that it cannot be ruled out that it may be material to addressing the matters set out in Sections 348 and 350 DCCP.
Section 3, paras. 86, 87 and 92, and section 9, para. 3
The defence has an interest in being able to test the scenario, presented by the Public Prosecution Service in the indictment, that the MH17 was shot down by a BUK (9M38 (M1)) missile. According to a number of persons referred to by the defence, the damage pattern on the MH17 shows traces of one or more other weapons. The court will order the Public Prosecution Service to give the defence the opportunity to visit the reconstruction of the MH17 in [place 6] with a person they have selected and have found to be competent. This expert may then report on his/her findings. If desired, this report can subsequently be submitted by the defence, through the examining magistrate, to the experts of the RMA, [name 4] (No. 22) and [name 5] (No. 23) and to the NLR expert [name 7] (No. 21), who will then respond to it in writing. The examining magistrate will then summon the experts referred to and question them further to allow them to respond to each other's findings, and to enable the defence and the Public Prosecution Service to put further questions regarding their findings and reports. The outcome of this investigative action will help determine whether and when inspection of the reconstructed MH17 wreckage by the court is necessary.
Section 4a, para. 28
Regarding the request to interview [name 8], National Intelligence Manager for Europe and Eurasia and National Intelligence Crisis Manager for Ukraine (No. 25) on the memorandum in which he related that satellite images from the United States revealed a BUK missile being launched, and on the possible conditions under which such satellite images might be obtained, the court considers as follows.
The importance of being able to view and possibly add the satellite images to the case file is evident. The court notes that, since autumn of 2016, the Public Prosecution Service has made no further attempts to ascertain whether the satellite images could since be released for the purpose of these criminal proceedings. Both the lapse of time and the actual start of the criminal proceedings justify a new request to that effect to the relevant authorities. The court will refer the matter to the examining magistrate to investigate whether and, if so, under what conditions the satellite images can be made available. In the meantime, the court will postpone its decision on the defence's request to interview [name 8].
Section 5, para. 23
As regards the investigation into the possible launch site, the court will grant the request to appoint an expert on the matter from [company] (for example, [name 3], No. 17) to respond to the reports of the NLR and the RMA, to the extent that they relate to calculating the launch site. In addition, the English versions or the English translations of the reports on the MH17 previously prepared by [company] should be added to the case file.10 It appears from the NLR and RMA reports that they have these reports. The court is instructing the Public Prosecution Service to request the reports from the NLR and/or the RMA. If this does not yield results, the court instructs the examining magistrate to request the relevant reports from [company]. After that, the examining magistrate will summon the [company] expert and the experts from the NLR ([name 7], witness 21) and the RMA ([name 4], No. 22, and/or [name 5], No. 23 and/or [name 6], No. 24), and will interview them in each other’s presence, such that they may respond to each other's findings and the defence and the Public Prosecution Service may put additional questions to them on their findings and reports with respect to these points.
Section 5, para. 14
The court will also grant the request to interview [name 2], former BUK commander (No. 14), who can provide expert testimony on the maximum range of a 9M38 (M1) BUK missile. This is important in the context of the investigation into the launch site.
Section 7, para. 27
The court will also grant the request to interview the reporting officers named in official report of findings Primo-05356 on the special seizure of three shards and a tube, (Primo 17-496, Primo 17- 495, Primo 17-511 and Primo 17-512), to question them regarding their findings with respect to securing the alleged missile components.
Section 9, para. 4
The defence has agreed with the public prosecutor's application to interview witness M58. This is a witness who stated that he was present in the vicinity, when a missile was launched towards an airplane. The court will grant this application.
Section 2, para. 53
Regarding the (repeated) request of the defence to the Public Prosecution Service to provide a copy of the radar data from the radars in [place 1], [place 2], [place 3], [place 4] and [place 5] (the court understands [place 5] is meant) from the investigation file, the Public Prosecution Service stated in court that it did not have that data and therefore could not comply with the request. Given that the defence requested that the court consider this request to be reiterated and submitted to the court in the event that the Public Prosecutor's Office gave a negative response to it, the court will decide on the matter. That decision is that the defence’s request that the Public Prosecution Service be ordered to provide that information is rejected. In cases where the Public Prosecution Service has reiterated, providing reasons, that it does not have certain information, the court does not foresee that an order from the court to provide that information would lead to a different outcome. The request is therefore rejected as moot. The same holds for the alternative request of having the Public Prosecution Service draft an official report on what is known about the requested information, given that that information does not exist. The Public Prosecution Service explained in detail at the hearing what attempts had been made to obtain this information. Drafting an official report would merely amount to a repetition and, in the opinion of the court, is therefore also moot.
Section 2, para. 74
The defence has requested the officer who investigated the death of [witness 1] be interviewed. Aside from the purely speculative reasoning underpinning this request, the request is far removed from the defence's stated aim of supporting or disproving a possible scenario. In the opinion of the court, it is not clear from this reasoning that interviewing this witness 1 can reasonably be deemed material to any decision to be taken in the criminal proceedings against the accused. The request is therefore rejected.
Section 4a, para. 31
The description by the national public prosecutor in Primo-12236 of the answer to the question as to whether NATO can provide further information collected by AWACS aircraft does linguistically allow for the possibility that NATO does indeed have relevant data collected by AWACS aircraft. However, this report by the national public prosecutor read in conjunction with the answer given to the same question put by DSB to NATO (the data from AWACS aircraft did not yield any relevant data for investigating the crash of flight MH17) leads to the conclusion that such data is not available. That a new request will lead to a different conclusion can therefore reasonably be ruled out, and the request is therefore rejected.
Section 4b, CVR and ATC tapes
The case file includes an audio file of the last two minutes of an audio file lasting a total of 30 minutes from the flight MH17 CVR. The defence has requested to listen to the complete, original 30-minute audio file in the presence of its own expert. The Public Prosecution Service has stated that, although the requested investigative action cannot be considered necessary or useful, the defence will be given the opportunity to listen to the full copy of CVR audio file, if desired in the presence of its own expert. The court is of the opinion that this sufficiently satisfies the defence's wish to investigate, such that the request is rejected.
The defence has also requested a "verification investigation" of the CVR. The defence wish to have a more technical examination of the CVR performed by an expert yet to be appointed, to determine whether the CVR was received “entirely intact and unaltered” by the DSB. The Public Prosecution Service adopted the position that the request should be rejected. The court considers that, in light of the DSB’s determination with respect to examination of the CVR that the internal memory module of the CVR was intact and that there was no evidence or indications that the CVR had been tampered with, the defence has not sufficiently substantiated that such a verification investigation should take place. Therefore, the court is of the opinion that the requested verification investigation cannot reasonably be deemed to be material to any decision to be taken in the criminal proceedings against the accused, such that the request is rejected.
With regard to the request by the defence that the audio recordings of the Air Traffic Control Centre, the "ATC tapes" be added to the case file, the Public Prosecution Service has stated that the relevant audio files will be added with the next supplement to the case file. The court is of the opinion that this meets the defence's request for investigation, such that the request is rejected.
Section 5, para. 3
The defence requests that [witness 2] be interviewed "to ensure that the information recorded by this witness in a report has been properly understood." The court finds that the accuracy of the recorded information is not disputed by the defence, nor is the reliability or credibility of this witness in question as such. Absent such a stance, the court is of the opinion that the defence's request is not sufficiently reasoned, such that interviewing this witness cannot reasonably be deemed to be material to any decision to be taken in the criminal proceedings against the accused. The request is rejected.
Section 5, para. 23
This request pertains to interviewing several witnesses/experts who have stated or reported on potential launch sites of a BUK missile in relation to the MH17. Insofar as the request relates to witnesses Primo-17-311 and [witness 3], the court rejects the request. Interviewing [witness 3] is rejected because from what is known of his position and training and the role he had at the [company] press conference, at which alternative calculations of a possible launch site were presented, in the view of the court he clearly could not have made a (substantive) contribution to the underlying calculation. It can therefore reasonably be ruled out that this witness is in a position to testify on the points referred to by the defence. As for witness Primo-17-311, the reason for rejection is that this witness produced a summarising report based on findings and/or calculations by others. It can therefore also reasonably be ruled out that this witness is in a position to testify on the matters referred to by the defence.
Section 5, para. 36
The defence requested to interview an employee of the Russian Ministry of Defence to determine the evidentiary value and credibility of the sections of missile records provided by Russia. The court finds that the relevant parts of those missile records relate to the years 1986 and 1987. In that light, the court does not see how interviewing this witness can contribute to answering the possibly relevant question of where a specific missile apparently mentioned in those records was located in 2014. For that reason alone, the court is of the opinion that interviewing this witness cannot reasonably be deemed material for any decision to be taken in the criminal proceedings against the accused. The request is therefore rejected.
Section 6, paras. 12 and 13
This defence request has been split into two parts. In para. 12, it is requested that both those working at the Department of Defence who may request closure of the airspace and those working at the State Aviation Authority (SASE) who formally decide whether or not to close airspace be interviewed. In para.13, it is requested that SASE employees who were responsible for informing the separatists about the NOTAMs be interviewed, in particular regarding whether the separatists were informed and, if so, by whom and in what manner.
Both requests have been rejected.
As regards the request in para. 12, in the light of the matters to be addressed by the court in the framework of the current indictment, it is not apparent to the court from the reasons provided by the defence how the investigative action is material to any decisions to be taken in the criminal proceedings against the accused. To the extent that this request in para. 12 is substantiated by the scenario mentioned by the defence, in which the Ukrainian fighter jets sought to evade anti-aircraft weapons by taking cover in the vicinity of civilian aircraft, and that this could have been the cause of downing the MH17 (the ‘human-shield scenario’), the court is of the opinion that the previously granted request to interview [name 2], G9081, and an expert from [company], who may be questioned regarding the technical feasibility of this scenario, sufficiently accommodates this part of the request.
As regards the request in para. 13, the defence’s assumption that the separatists should be informed of the existence and content of NOTAMs is based on the mistaken and unfathomable idea that these so-called Notices to Airmen could or should be disclosed more broadly beyond those who, given their profession, work with such information. Inded, the abbreviation NOTAM means "Notice to Airmen". This wording, as well as the air traffic control system, indicates that a NOTAM is therefore specifically addressed to airmen. Those engaged in aviation are informed via a NOTAM about (temporary) restrictions in airspace and route use. Given the misconception underpinning the defence’s request, in the opinion of the court, it may reasonably be ruled out that the witnesses referred to here are in a position to testify on the points referred to by the defence or that interviewing them can reasonably be material to any decision to be reached in the criminal proceedings against the accused.
Section 8, para. 48
Even leaving to one side that the reasons given by the defence for this request only consist in speculation on the reasons for the dismissal of one or more Ukrainian prosecutors involved in investigating the crash of flight MH17, this request for investigation also flows from the unsubstantiated assumption that dismissal of those officials is under investigation in Ukraine. For those reasons alone, the request lacks any basis in fact and, as a consequence, the substantiation is insufficient to make prima facie plausible that implementing the request could reasonably be deemed material to any decision taken in the criminal proceedings against the accused. The request has been rejected.
Section 9, para. 36
This request has been rejected. The court agrees with the Public Prosecution Service that it is sufficiently clear from established case law that the principle of using Dutch in Dutch criminal proceedings - which is the case here - does not mean that documents drafted in a different language, even if the source language is another language, are inadmissible and must always be translated into Dutch. Any other languages used, however, must be sufficiently comprehensible for the participants (present) in the proceedings. In the opinion of the court, this may be assumed to hold true for English, especially for the defence, that has stated that its command of English is sufficient. It is therefore not necessary to grant a generic request for translation into Dutch of all documents drafted in English. If, however, substantiation is provided with regard to specific documents or parts thereof as to why they need to be translated into Dutch to be comprehensible, a request may be made by the defence in that specific case. For practical reasons, the court envisages that such a request first be addressed to the Public Prosecution Service, and that, should it be denied, the request may then be re-submitted to the examining magistrate for assessment in periods outside the scheduled hearing block. For that reason also, the court is referring the matter to the examining magistrate. During scheduled hearing blocks, such a (re-submitted) request may be addressed to the court at the hearing.
Section 9, para. 53
In examining the case file, the defence has indicated that it encountered certain obstacles, as a result of which it does not have a complete overview of all documents relevant to each file section and of the investigative powers used and investigative acts performed. According to the defence, this does not aid access or orientation and complicates studying the case file. For that reason, the defence wishes to receive tables of contents/indexes of relevant court documents per sub-file, as well as an index of the media file and a chronological report of investigative acts performed and investigative powers used during the investigation. The defence also referred to the Court Documents in Criminal Matters Decree (hereinafter the Decree), from which the obligation to draft those overviews would flow.
The court notes that, according to the relevant provisions in the Dutch Code of Criminal Procedure, the case file must contain all documents that may reasonably be material to the decisions to be taken by the court in the trial. The Public Prosecution Service is responsible for selecting and entering those documents and thus for the composition of the case file. The Decree established a number of requirements for the structure of that case file to ensure a logical sequence and format. To this end, the Decree requires a table of contents, for example. The aim is for participants in the trial to understand as readily as possible which documents may be relevant to the criminal proceedings. The court finds that the layout requirements set by the Decree relate to the case file as a whole. In the view of the court, the accessibility and completeness of the case file must therefore be considered as a whole and not by section. Logically, therefore, when a case file is divided into several sub-files, the layout requirements do not apply per sub-file but for the case file as a whole. In that light, the court is of the opinion that the request of the defence for a table of contents by sub-file lacks any legal foundation. The current case file has a thematic index by sub-file and sub-sub-file, contains references (links) to underlying documents by (sub) sub-file, contains a total index listing all annexes by Primo number stating whether the document has been officially entered in the file or not and contains summarising reports per sub-file and an Investigation Overview document covering the entire investigation. As regards the accessibility of the content and the completeness of the case file, all these documents must be viewed in inter-relation with each other. The court is of the opinion that this provides a sufficiently clear view of the structure and content of the case file. In addition, the defence has recently received a paper copy of the case file from the court - in addition to the digital case file already provided, on the basis of which the court itself conducts the criminal case in court – which also serves the stated aim of the request, namely to place the right documents in the right context to get a complete overview. This paper copy additionally enhances insight into the scope and composition of the case file. Furthermore, the Public Prosecution Service provided detailed presentations on the investigation in court, which the defence has said was very useful.
In the same light, the court does not believe that the Public Prosecution Service has an obligation to compose a table of contents of the media files present in the case file. Given that that part of the file does not have a separate table of contents and contains a 'jungle of files' (the court agrees with the defence on this), the court considers it highly desirable for the Public Prosecution Service to endeavour to make that part of the file more user-friendly, for example by grouping the files contained therein thematically. For instance, the existing media files could be grouped under headings identical to the (sub) sub-files to which they relate (media files by accused, supply route, warring parties, arms, forensic material, etc.).
In view of the above, the court sees no reason for compiling a chronological report of investigative acts performed and investigative powers used during the investigation. An additional consideration is that an account of this can be found in the file on the special investigative powers used that is also attached and that the requirement to provide such a chronological report ceased to exist when the Decree was amended in 2016 because an digital case file has to be compiled in accordance with certain requirements making the time factor apparent and the current case file meets those requirements
Section 9, para. 59
The request for provision of an index to the investigation file has been rejected. As indicated earlier, the Public Prosecution Service compiles the case file on the basis of a selection of documents from the investigation file. The Public Prosecution Service can and should be relied upon to enter all relevant documents from the investigation file in the case file. It has done so in this case, as the Public Prosecution Service has emphasised, while additionally flagging in the case file documents that were previously considered to be relevant, but later considered less relevant or irrelevant (as the court understands it, in part due to insight gained over the course of the investigation, as the court understands, stating that those documents are not official entries in the case file, The existence of these documents is thus known to the court and the defence and may, if desired, be requested from the Public Prosecution Service for examination or provision. In the opinion of the court, this has taken sufficient account of the interest of the defence in being able to examine any other relevant documents deemed desirable.
There is no legal basis for drafting an index of the entire investigation file. Nor is the indisputable right of the defence to a 'fair trial' in the sense of Article 6 ECHR affected by not having such an index. Apart from the question of whether the Public Prosecution Service may and should be expected to compile such an index in an investigation as vast as the present one, such an index might very well, given that the investigation is still in progress and currently focussing on other potential suspects in particular, disclose too much about that ongoing investigation, which could compromise it. This is intrinsically undesirable and could well be irresponsible, in light of the circumstances under which the investigation must be conducted, given its nature and location and the need hitherto to interview witnesses and experts anonymously.
Section 9, para. 61
The defence also requested a translation of the material sections of the case file. This concerns the entire file, except for a number of specified sections. In this request, the defence referred to the reasons that it had provided in an identical request submitted to the examining magistrate on 24 April 2020. The court notes that the examining magistrate rejected that request on 7 May 2020, duly explaining why such a generic request could not be granted. The examining magistrate stated that the request was insufficiently specific and insufficiently substantiated with respect to Section 32a DCCP, in part in the light of the documents already translated. The court shares this view, and given that the defence in the current request simply refers to its previous request to the examining magistrate, the court rejects the request, adopting the reasons given by the examining magistrate.
The foregoing seen in context signifies that the court will postpone its decision on the following requests made by the defence, until it is clear what other investigation requests the defence will make and the reasons therefor, as well as the stance that the accused will adopt at trial. At that point, the court will review the requests for investigation on which the decision was postponed in accordance with the aforementioned standards and frameworks. The court will then decide on any future requests for investigation – after the defence has explained why they were not made earlier – based on the relevant criterion.
As regards the requests set out in section 1 of the memorandum of oral arguments (introduction and road map) and section 2 (warplane scenario - presence of fighter jets), this applies to the witnesses assigned the following numbers:
1. through 13, 26 through 34, 36 through 49, 60 (with respect to interpretation of the flight plans of the Ukrainian air force) 76, 84 through 105 and the Russian traffic controller (not numbered).
It applies to the requests set out in the following paragraphs of section 3 of the memorandum of oral arguments (warplane scenario):
- 42 ( No. 15);
- 43 ( No. 77);
- 44 ( No. 16);
- 46 ( No. 51);
- 48 ( witnesses referred to in No. 78);
- 59 and 61 (No. 19);
- 72 ( Nos. 20 and 60, insofar as they relate to official report Primo-10618).
It applies to the request set out in the following paragraph of section 4a of the memorandum of oral arguments (satellite images):
28 ( No. 25).
It applies to the requests contained in the following paragraphs of part 7 of the memorandum of oral arguments (recovery of wreckage):
- 21 ( witnesses concerned in No. 56);
- 22 ( No. 6);
- 23 ( No. 59),
It applies to the requests contained in the following paragraphs of part 8 of the memorandum of oral arguments (telecom):
- 18 ( Nos. 65, 66, 67 and 68);
- 22 ( No. 54);
- 23 ( No. 69);
- 24 ( witnesses referred to in No. 70);
- 34 ( Nos. 71 and 80);
- 36 ( No. 70 (Primo 17-170), 71 and 81);
- 38 ( No. 72);
- 42 ( No. 73, 74 and 75).
Telecom and intercepted conversations
The defence have made a number of requests regarding telecom data and intercepted calls. The Public Prosecution Service has opposed the granting of all these requests, with the exception of the request to interview reporting officer Primo 17-170 (No. 70).
The court notes that to date the accused has not commented on whether the telephone numbers attributed to him by the Public Prosecution Service were indeed his, or on whether he in fact participated in the conversations for which the Public Prosecution Service believes this to be this the case. As a consequence, it also remains unclear whether the accused, if he was indeed party to the conversations, believes that his statements have been mistranslated or, for example, had a different meaning to what the Public Prosecution Service has assumed, in the context of other conversations not included in the case file. Finally, it is currently unknown whether the accused, if the phones were indeed his, believes they were incorrectly traced on 16 and 17 July 2014.
As long as the accused has not specifically commented on the intercepted conversations attributed to him personally, and it remains unclear whether, and if so, how he contests them, the court cannot assess which investigation steps are necessary for a proper defence to be conducted. Currently, partly because corona restrictions impede confidential consultation between the accused and the defence, it is not certain whether the accused - the court emphasises without being compelled to do so – will comment on these matters at a later stage. Given that the accused has already stated that he is prepared to make a statement solely for the benefit of the Dutch court in the presence of his Dutch lawyers, however, this certainly cannot be ruled out.
Since the Public Prosecution Service may well rely heavily on the content of the intercepted conversations and the telecom data in its evidentiary edifice when it comes to the (alleged) personal involvement of the accused, the court, unlike the Public Prosecution Service, considers rejecting these requests (almost entirely) for lack of substantiation inappropriate at this time. Therefore, the court will postpone a decision on these requests, until it is clear whether the accused will testify in this regard and, if so, what the tenor of that testimony is.
Section 4b, Cockpit Voice Recorder and ATC tapes
With reference to the presentations given by the Public Prosecution Service with regard to the sound wave or sound peaks that were allegedly audible on the CVR and the findings of the DSB with regard to that sound wave, the defence have requested that inquiries be made with the DSB as to which investigators made these findings, with a view to interviewing those investigators. The Public Prosecution Service has argued, with reference to Art. 69(4) of the DSB Act, that the request must be rejected.
The court considers that the description of the work done on the CVR the DSB (Annex H to the final report) mentions that during the last 20 milliseconds in the CVR recording two sound peaks were identified; these sound peaks were also graphically depicted. Section 3.5.2 of the final report contains the findings of the DSB with regard to the sound peaks and/or sound wave, to which the Public Prosecution Service refers. It is not apparent from the DSB report which investigator(s) made the relevant findings.
Art. 69(4) of the DSB Act stipulates that an investigator must not be summoned as a witness or expert in respect of an investigation in which he has been involved. Pursuant to Art. 14(1) in conjunction with Art. 32 of the DSB Act, this also applies to "experts” designated by [and] “reporting to the Minister” who have assisted the Board in the investigation. However, Art. 14 of the DSB Act allows the Board to hire experts from outside central government.11 Said articles do not prevent such "external" experts from being called as witnesses or experts.
Given that, based on the above, who conducted the investigation and as a consequence whether or not that person or persons may be interviewed as a witness(s) in view of the aforementioned rules remains unclear, the court will postpone deciding on the defence’s request, and instruct the Public Prosecution Service to inquire first who conducted the investigative work referred to by the defence and in what capacity. Only once the name or names and the capacity of that person or persons is known, can the court assess whether interviewing is feasible and appropriate.
Given the number of requests for investigation, and in some cases that they comprise multiple layers, the court, despite careful consideration and assessment of the requests, may have omitted to take a decision on a given request. Should that be the case, the defence are expressly allowed to reiterate the request at a subsequent hearing, after which it will be assessed by the court based of the same criterion as applied for its interlocutory decision of 3 July 2020.
Decisions on applications by the Public Prosecution Service
Interview of witness M58
Given that the defence for the accused have agreed with the request to interview this witness, the court will, as previously considered, allow witness M58 to be interviewed (anew) regarding statements which (according to the defence) are inconsistent, contradictory and regarding implausible claims this witness has made. The court is referring the matter to the examining magistrate to this end.
Interview of witness X48
To explain the application to interview X48 as a witness, the Public Prosecution Service stated at the hearing on 10 June 2020 that the application had not been made earlier, because, at that time, the council chamber of the court had not yet ruled on the appeal by the accused against the decision to grant a number of witnesses, including witness X48, the status of anonymous threatened witness; the Public Prosecution Service was thus unable to express a view on a possible additional interview of this (or those) witness(es) at the time. Witness X48 testified briefly to the examining magistrate that on 17 July 2014 he or she was present at or in the immediate vicinity of the launch site identified by the Public Prosecution Service and saw a missile being launched there. The Public Prosecution Service was able to submit only a few written questions prior to the examining magistrate’s interview of this witness. It is therefore in the interest of the investigation and thus of the prosecution that the Public Prosecution Service be given the opportunity to put further questions to this witness, notably in view of the testimony since given by witness M58. The court is referring the matter to the examining magistrate to this end.
Expert regarding manipulation of TELAR footage in Snizhne
The same interest applies to the request by the Public Prosecution Service that an expert be appointed to scrutinise further possible indications of manipulation of footage in the case of two versions of the same video of a possible BUK TELAR in Snizhne that have been included in the case file and the assertion that the version of that same video referred to by the Russian Federation must have been uploaded by 16 July 2014 and thus must have been recorded prior to that date. The court is also referring this application to the examining magistrate to this end.
Interview of witnesses S07, S17, S27, S32
The court notes that these witnesses have already made a statement to the JIT. Unlike X48, these witnesses have not stated that they were at the launch site identified by the Public Prosecution Service. Nor have these witnesses made statements regarding the personal involvement of the accused. Lacking further substantiation as to why further questioning of these witnesses is material to conducting a proper defence, not least given that the Public Prosecution Service has now stated that they need not be interviewed in the cases against the other accused, who are suspected of committing the same offences, these applications have been rejected.
Compilation of recordings of interview of M58
Witness M58 was interviewed several times by the examining magistrate in October 2019 in the absence of the Public Prosecution Service and the defence. The interviews in question are recorded audiovisually. For that reason, the M58’s appearance was obscured.
Upon request, the Public Prosecution Service explained the utility of its request that the relevant parts of the recorded interviews of M58 conducted by the examining magistrate be compiled, entered in the case file and played in court, by noting that it was not known whether M58 could be examined in court, and that the right of the accused to examine the witness therefore needed to be addressed. The Public Prosecution Service pointed out that entering the interview footage in the case file and playing it at the hearing should be seen as compensatory measures that may help satisfy the right to examine the witness. The Public Prosecution Service also argues that showing the footage in court would render the proceedings comprehensible to the public.
Even after additional substantiation by the Public Prosecution Service, the necessity for, and in line with that the prosecutorial interest, of entering a compilation of the footage concerned to the case file and presenting that compilation at the hearing is still not sufficiently clear to the court. The fact that the defence has not supported this request and has therefore not endorsed the utility of (showing) this compilation as a compensating measure in the interest of the accused has also been taken into account by the court. In addition, M58 will be interviewed again by the examining magistrate, on which occasion the defence will also be able to question to the witness in a manner to be determined by the examining magistrate. The court does not consider that presenting footage from sections of interviews of a witness whose appearance has been obscured and voice distorted is necessary in the interests of rendering the trial more comprehensible to the public, as important as that is, and does not appear to be in the prosecutorial interest either.
The court therefore rejects this request, noting that any similar request made later with additional substantiation will be assessed anew.
The official report of the interview of V11
The council chamber of this court granted the appeal by the accused against the examining magistrate’s decision pursuant to Section 226a DCCP assigning V11 the status of “protected witness” (hereinafter the decision on status) and rejected the prosecutor’s application for status to nonetheless be granted, in short, because erroneously the application was not made specifically with respect to the case of the named suspect, he was not given the opportunity to express his views on the matter either in advance or after the fact, and this error could no longer be remedied, given that the official record of the interview of V11 had already been provided to the Public Prosecution Service. Although not hearing the views of a suspect on the matter of granting a status to a witness is unavoidable in cases were a witness is interviewed in a case where no suspects have yet been identified yet (a case against a person or persons unknown), in the case of V11 the suspect had been identified by the time the Public Prosecutor requested that the examining magistrate designate him/her as a threatened witness. The request to grant this witness the status of threatened witness should therefore have been filed with respect to the case against the named accused and not in a case against a person of persons unknown, so that the accused would be given the opportunity to express his views on designating this witness as a threatened witness.
The legal consequence of the error ascertained is specifically prescribed by law in Section 226b (3) DCCP. This paragraph states that if an appeal against an order given for granting status is deemed well-founded, and the examining magistrate has already interviewed the witness, the examining magistrate shall ensure that the official record of the interview is destroyed. In such a case, the statement does not appear in the case file, and the statement therefore cannot be used as evidence.
In the present case however, the witness's statement is already in the case file. This happened because the granting of status seemed irrevocable, given that it had been (wrongly, as it was later established) applied for and granted on the basis of a case against a person or persons unknown and not in the name of the accused. Contrary to the defence, the court, in its capacity as the court hearing the case, sees no legal means of doing what the examining magistrate is instructed to do in the aforementioned Section. The court does not have the discretion to remove, let alone destroy, documents from the case file. It will, however, determine that the statement by V11 to the examining magistrate – and, moreover, all underlying anonymised statements by V11 to the police and all other documents, insofar as they relate to (statements of) V11 – are excluded from the evidence. The objective pursued in Article 226b(3) DCCP, namely to prevent the statement(s) from being used as evidence, will thus be achieved. That the court has already had sight of the statements is unfortunate but not insurmountable. It is not unusual and is even inherent in the opportunity to exclude evidence that the court has taken cognizance of documents it may not subsequently include in its considerations.
Decision on the requests made by counsel for the relatives
Counsel for the relatives has requested a (digital) copy of the additional documents. The court sees no ground to provide all additional documents in the case file, nor does it see grounds to take cognizance of the witness interviews conducted by the examining magistrate that have been added. In the view of the court, the interest of the relatives in these documents has not been properly substantiated, not least in light of the documents already provided. The court does see the utility of providing the additions to the summarising reports, as these will provide counsel for the relatives with an understanding of which documents have been added to the file and will enable counsel to submit a properly substantiated request for those documents, if desired. To that end, the court will also provide a copy of the indices currently in the case file, naturally insofar as these have not previously been provided. In addition, the court considers that it has been sufficiently substantiated that counsel for the relatives has an interest in receiving a copy of the documents relating to the transfer of the criminal proceedings from Ukraine to the Netherlands, inter alia in light of the jurisdictional issues that may come into play in the assessment of the claims that the aggrieved parties are likely to lodge. The court will ensure that counsel for the relatives receives a copy of Primo-13940 and the underlying documents linked to it. All these items are provided subject to the conditions and restrictions set out in the court’s decision of 23 March 2020.
Matter to be addressed during the upcoming hearing block – from August through November 2020
This hearing block will be followed by another one, running from 31 August 2020. There will be three successive two-week periods, each separated by a two or three-week interval.
In the court decision of 23 March 2020, the court set out a number of questions regarding possible claims for compensation by the relatives. These questions have been partially and provisionally answered by the Public Prosecution Service. Counsel for the relatives has announced that it will have a response ready in early September.
The court intends to use the hearing block starting on 31 August 2020 to discuss the views of counsel for the relatives, the defence and the Public Prosecution Service and to take decisions if necessary, in order that counsel for the relatives may submit claims for compensation if desired.
In addition to the defence, counsel for the relatives, and the relatives represented by that counsel, the court’s decisions may be relevant to relatives or other victims who are considering claiming compensation independently.
The court would also like to raise the matter of the point in time by which claims for compensation must be filed. The court proposes that the substantive discussion of those claims be preceded by a round of written submissions, in which the defence and the Public Prosecution Service put questions or respond to the claims as necessary. Counsel for the relatives could then respond to that in turn. Such preparation will render the discussion of those claims later on in the trial more efficient.
Furthermore, on 31 August 2020, the progress made by the defence in framing its additional requests for investigation will be discussed, both the requests that the defence can formulate without consulting its client, but also those requests which are contingent on such consultation. The defence has requested to be allowed two non-overlapping eight-week periods to formulate these requests for investigation. The court will accommodate this to some degree.
The court requests that the defence ensure that its other requests for investigation are submitted during the hearing period that begins on 28 September 2020. This gives the defence nearly three months to prepare from today. The court wishes to be apprised no later than during the hearing period that begins on 2 November 2020 of investigation requests the defence can formulate only after meeting with the accused.
The court expects that by then there will have been sufficient opportunity to establish contact between the defence and the accused. The court also assumes that the defence and the accused will use the opportunities available to meet in person. One possibility might be to meet outside the country in which the accused resides. It seems to the court that, if permission from any authority is required, such travel might be qualified as essential travel for the accused in light of his interests as an accused person.
Dates earmarked for hearings in 2021
The court has reserved the following weeks in the courtroom schedule for 2021:
weeks 5 and 6 (February 1 through 12)
weeks 9 through 12 (March 1 through 26)
week 15 (April 15 and 16)
week 16 (April 21 and 22)
week 20 (May 20 and 21)
week 21 (26 through 28 May)
week 23 (7 through 11 June)
week 24 (17 and 18 June)
week 25 (21 through 25 June)
week 26 (1 and 2 July)
week 27 (5-9 July)
weeks 36 through 38 (6 through 24 September)
weeks 44 through 46 (1 through 19 November)
Weeks 23 and 24 have been added to the list which the court announced at the hearing of 26 June 2020. Furthermore, not all weeks are available in full. This has been specified in the list.
Based on the above, the accused may be summoned for the hearing periods that begin on 15 April 2021 (through 28 May 2021); 7 June 2021 (through 9 July 2021), 6 September 2021 (through 24 September) and 1 November 2021 (period through 19 November 2021).
Hearing on the merits
With regard to the matter raised by the court of how the hearing on the merits of the case might be structured, the presiding judge will discuss it further with the defence and the Public Prosecution Service. The matter is more suitable for discussion other than in a public hearing, given that it largely concerns organising and arranging the proceedings.
The court grants the following requests for investigation made by the defence and applications made by the Public Prosecution Service and refers the matters in the case against the accused to the examining magistrate entrusted with criminal matters in this court:
1. to appoint an expert to conduct further investigation into:
possible indications that footage has been manipulated in the two versions included in the case file of the same video of the BUK-TELAR in Snizhne (No. 2c)
the assertion that the version of the same video referred to by the Russian Federation must already have been uploaded on 16 July 2014 and must therefore have been recorded prior to that (No. 2c)
2. to appoint an expert from [company] to respond to the NLR and RMA reports regarding calculation of a launch area/the launch site
3. to interview the following witnesses/experts in a manner deemed appropriate by the examining magistrate and in a sequence to be determined by the examining magistrate and in timeframes to be determined by the examining magistrate (if applicable, after receipt from the defence of a report by the person accompanying them to inspect the wreckage of MH17):
M58 (No. 35)
Primo 17-496 (No. 61), Primo 17-495 (No. 62), Primo 17-511 (No. 63), Primo 17-512 (No. 64)
[name 2] (on operating a BUK missile (range, impact detonation, and with respect to what is known as the error scenario and the human-shield scenario)) (No. 14)
G9081 (on the operation of a BUK missile (impact detonation and with respect to what is known as the error scenario and the human shield scenario) (No. 50)
aforementioned expert from [company] (on the operation of a BUK missile (impact detonation and with respect to what is known as the error scenario and the human shield scenario), on the extent to which the damage pattern observed on the wreckage of MH17 indicates the use of a BUK missile, on the calculation of the launch area/launch site)
[name 7] (on the extent to which the damage pattern observed on the wreckage of the MH17 indicates the use of a BUK missile, on the calculation of the launch area/launch site) (No. 21)
[name 4] and/or [name 5] and/or [name 6] (on the extent to which the damage pattern observed on the wreckage of the MH17 indicates the use of a BUK missile, on the calculation of the launch area/launch site) (Nos. 22, 23 and 24)
4. to investigate the possibilities and conditions under which the satellite images of a (BUK) missile launched on 17 July 2014 from a location approximately 6 kilometres south of Snizhne, which are apparently available to the (authorities of the) United States of America, may be made available to the court and, if appropriate, actually to request them
5. to request the reports already drafted by [company] on (the launch site of) the BUK missile, if the Public Prosecution Service does not obtain these from the RMA or NLR and, if necessary, to have them translated into English
6. as well as, where appropriate, to take a decision regarding:
a. translation into Russian of documents contained in the case file
b. translation into Dutch of non-Dutch documents contained in the case file
c. a request of the public prosecutor to grant authorisation to refuse the defence access to documents not included in the case file.
The court entrusts the documents to the examining magistrate to carry out the aforementioned and to perform whatever tasks the examining magistrate deems necessary for the purpose of, or further to, the aforementioned.
The court orders the Public Prosecution Service to:
7. request the RMA and/or the NLR for the reports of [company] available to them regarding (the launch site of) the BUK missile and, if necessary, to have them translated into English; these reports must be provided to the examining magistrate
8. enquire of the DSB as to the name and capacity of the investigators who examined the CVR
9. facilitate an inspection of the reconstructed aircraft in [place 6] by the defence, assisted by a third party they have deemed competent.
The court considers it highly desirable that the Public Prosecutor's Office:
10. group the files in the media file of the case file, so as to render the media file more user-friendly, for example by grouping the files contained therein thematically aligned on the structure of the case file.
The court entrusts the documents to the examining magistrate to carry out the aforementioned.
The court grants the request of the counsel for the MH17 relatives for a copy of the additions to the summarising reports, the indexes in the case file, as well as of Primo-13940 and the underlying documents linked to therein.
The court rejects the request of:
1 the defence, that the following be interviewed:
a. [witness 3] (No. 18)
b. persons from the SASE responsible for producing NOTAMs (No. 52)
c. persons from the Ukrainian aviation authority responsible for informing the separatists about the NOTAMs (No 53)
d. the representative of the Russian Ministry of Defence who was involved in providing the missile administrative records to JIT and has knowledge thereof (No. 55)
e. officials who conducted the investigation into the dismissal of prosecutors in Ukraine (No 57)
f. the investigating officer in charge of the investigation into the death of [witness 1] (No. 58)
g. Primo 17-311, insofar as the interview would concern calculation of the launch site (No. 60)
h. [witness 2] (No. 83)
2. the, that the Public Prosecution Service be ordered to give the defence the opportunity to have the CVR examined in a more technical manner, in particular to ascertain whether the CVR received by the DSB on 22 July 2014 was entirely intact and unaltered (known as a 'verification investigation ') (No. 1b)
3. the, that the examining magistrate be instructed to enquire of NATO whether on 17 July 2014, around the time that flight MH17 crashed, any observations and/or recordings were made by AWACS aircraft in the area of eastern Ukraine and, if so, to request that those observations and recordings be provided (No 4)
4. the, for an index stating which court documents are relevant by sub-subject (No. 9)
5. the, for a chronological report of the investigative actions conducted, revealing when and which investigative actions were conducted and which investigative powers were used in the course of the investigation (No. 11)
6. the, for an index or a summary listing which documents are in the investigation file (and providing a brief description of a document, if this is not apparent from its name) (No. 12)
7. the, for a Dutch translation of the original reports/official records of witness interviews not conducted in Dutch, to be done by a certified interpreter (i.e. from the language in which the interview was originally conducted; not from the English translation or a version thereof) (No. 13)
8. the, for a translation into Russian of the parts of the case file referred to in the letter of 24 April 2020 (No. 14)
9. thethat the Public Prosecutor's Office be ordered to provide a copy of the radar data from the radars in [place 1], [place 2], [place 3], [place 4] and [place 5] (the court understands: [place 5]) from the investigation file, and that the Public Prosecutor's Office draft a report on what is known about that information
10. the, to order the Public Prosecutor's Office to include the audio recordings of the ATC, the telephone communications between Ukrainian air traffic control (ATC Dnipropetrovsk) and Russian air traffic control (ATC Rostov), and the radio communication between Ukrainian air traffic control (ATC Dnipropetrovsk) and civil aviation (Nos. 2 and 16) in the case file (given that the Public Prosecution Service has now promised to add that file to the case file)
11. the original audio file of the CVR of flight MH17 to the case file (given that the defence will now be given the opportunity by the Public Prosecution Service to listen to a copy of it), that the Public Prosecution Service be ordered to add the
12. the, that the examining magistrate be instructed to make a compilation of the video recordings of the examining magistrate’s interviews of M58
13. the, that the following be interviewed:
14), that they be provided with a copy of the outstanding recent supplements to the case file and be given access to the recently added interviews conducted by the examining magistrate.
The court postpones its decision regarding:
1 The request of the defencethat the following witnesses be interviewed:
[witness 4] (No. 1)
[witness 5] (No. 2)
[witness 6] (No. 3)
[witness 7] (No. 4)
[witness 8] (No. 5)
[witness 9] (No. 6)
[G8150] (No. 7)
[witness 10] (No. 8)
[witness 11] (No. 9)
[witness 12] (No. 10)
[witness 13] (No. 11)
[witness 14] (No. 12)
[witness 15] (No. 13)
[witness 16] (No. 15)
[witness 17] (No. 16)
[name 1] (No. 19)
[witness 18] (No. 20)
[name 8] (No. 25)
[witness 19] (No. 26)
[witness 20] (No. 27)
[witness 21] (No. 28)
[witness 22] (No. 29)
[witness 23] (No. 30)
[witness 24] (No. 31)
[witness 25] (No. 32)
[witness 26] (No. 33)
[witness 27] (No. 34)
S09 (No. 36)
S14 (No. 37)
S21 (No. 38)
V54 (No. 39)
S03 (No. 40)
S27 (No. 41)
S36 (No. 42)
V44 (No. 43)
A26 (No. 44)
N4 (No. 45)
029 (No. 46)
S34 (No. 47)
S10 (No. 48)
S11 (No. 49)
Primo-17-311 (No. 60), insofar as related to interpretation of the flight plans of the Ukrainian air force and insofar as related to his official report Primo-10618
the author of the manual containing the technical description of 9M38M1-series missiles (No. 51)
the head of the SBU Incident Response Centre in Kiev (No. 54)
persons present during the recovery operations (No. 56)
reporting officer from Primo-12501 (No. 59)
Primo 17-841 (No. 65)
Primo 17-843 (No. 66)
Primo 17-844 (No. 67)
Primo 17-149 (No. 68)
Primo 17-275 (No. 69)
Primo 17-170, 177 or 078 (No. 70)
Primo 17-147 (No. 71)
Primo 17-399 (No. 72)
Primo 17-181 (No. 73)
Primo 17-407 (No. 74)
Primo 17-352 (No. 75)
Primo 17-309 (No. 76)
Primo 17-230 (No. 77)
experts on the impact point in the case of a direct strike, the damage that may be expected in such circumstances and experts who compare all this information with the damage pattern known in this case (No. 78)
[witness 28] (No. 79)
the interpreters who translated those intercepted conversations that are the most relevant to the accused from Russian to English (No. 80)
the interpreters who, according to reporting officers, recognised the voice of the accused (No. 81)
[witness 29] (No. 84)
[witness 30] (No. 85)
[witness 31] (No. 86)
[witness 32] (No. 87)
[witness 33] (No. 88)
[witness 34] (No. 89)
[witness 35] (No. 90)
[witness 36] (No. 91)
[witness 37] (No. 92)
[witness 38] (No. 93)
[witness 39] (No. 94)
[witness 40] (No. 95)
[witness 41] (No. 96)
[witness 42] (No. 97)
[witness 43] (No. 98)
[witness 44] (No. 99)
[witness 45] (No. 100)
[witness 46] (No. 101)
[witness 47] (No. 102)
[witness 48] (No. 103)
expert D21 (No. 104)
[witness 49] (No. 105)
the Russian air traffic controller who was in contact with his Ukrainian counterpart around the time that the MH17 crashed.
2. The application by thefor the court to visit the air base in [place 6] to inspect the reconstruction of the aircraft.
This interlocutory decision was rendered by
Judge H. Steenhuis, presiding,
Judges D.A.C. Koster and C.I.H. Kerstens-Fockens,
in the presence of
J.L.D. Timmermans, M. Sepmeijer-Kovacevic and R.A. Hopman, clerks,
and delivered at a public hearing of this court on 3 July 2020.
1 Numbering (where included) refers to the memorandum of oral arguments by the defence and Annex 1 enclosed (overview list).
2 Memorandum of oral arguments 1 of 9, Introduction & road map, para. 8.
3 Memorandum of oral arguments 1 of 9, Introduction & road map, para. 10.
4 Memorandum of oral arguments 1 of 9, Introduction & road map, paras 78 and 79.
5 Memorandum of oral arguments 2 of 9, Warplane scenario, presence of fighter jet(s), para. 10.
6 Memorandum of oral arguments 3 of 9, Warplane scenario, presence of fighter jet(s), paras. 29, 30 and 31.
7 Numbering (where included) refers to the submissions and applications of the Public Prosecution Service of 10 March 2020.
8 Cf. Supreme Court, 16 March 2010, ECLI:NL:HR:2010:BK3359, Supreme Court, 1 July 2014, ECLI:NL:HR:2014:1496, Supreme Court, 4 July 2017, ECLI:NL:HR:2017:1015
9 ECtHR, 15 December 2015, No. 9154/10.
10 The court understands that RMA, NLR and TNO refer to three press conferences held by [company], namely on 2 June 2015, 13 October 2015 and 26 or 28 September 2016. It is not clear to the court whether there are reports regarding the calculations presented during the press conferences. In 26DLRPRIMO-05604, Annex 8, TNO mentions two English translations of presentations or reports of [company] dated 29 July 2015 and 6 August 2015. In its report of 10 January 2010, at footnote 5, the RMA mentions a report dated 11 September 2015, which it seems to associate with the presentation by [company] at one of stated press conferences.
11 Explanatory Memorandum, Parliamentary Papers II 2002/03, 28 634 (R 1727), No. 3. p.25.