Answers to questions of the court in the MH17 trial

At the last hearing the court put a number of questions to the Public Prosecution Service. That same evening the defence in the Pulatov case submitted several additional questions of its own. These questions relate to two subjects: the ongoing investigation into the involvement of other individuals in the downing of flight MH17 and media reports from 8 September 2021 about an alleged Ukrainian security operation that sought to lure Russian mercenaries out of the country.

Ongoing investigation

With regard to the ongoing investigation the court asked if the findings are being incorporated into the case file in the cases of the defendants Girkin, Dubinskiy, Kharchenko and Pulatov. In other words, has the ongoing investigation yielded any documents that could reasonably be assumed to be of relevance to the decisions the court must make in these cases? The same question was asked by Pulatov’s defence (email of 10 September 2021, questions 6 and 11). In addition, the defence  asked about the results of the ongoing investigation (questions 3, 7, 10) and the procedure for formalising them (questions 4 and 5). Finally, the defence asked questions about the way in which the call for information was issued: did the Public Prosecution Service inform the examining magistrate in advance about its intention to issue a call for information on 2 September (question 1)? Why did the Public Prosecution Service not wait until the examining magistrate had questioned the commander of the 53rd Buk Brigade as a witness (question 2)? Why was 2 September chosen as the date (question 8)? And how was this letter disseminated (question 9)? 

We will begin with a number of remarks. As we stated at the opening of this trial, the investigation into the involvement of other individuals is ongoing. This investigation is focused on the identities of the Buk TELAR crew and those responsible in the chain of command. 

In that investigation into other parties, we have issued various calls for information. The most recent were in November 2019 and on 2 September 2021. On the latter occasion, we addressed the residents of Kursk by way of a letter and two videos, asking anyone with direct knowledge to share what they know. In the letter we stated that while the investigation is at an advanced stage, it is still open. In investigations as prolonged as this one, the notion of what constitutes an ‘advanced stage’ is relative. The investigation has been going on for more than seven years, and is not expected to conclude before the end of next year. This is due to the complexity of the case. When it comes to gathering evidence as to the identities of the crew of the Buk TELAR and the further chain of command, all signs point in the direction of the Russian Federation. The Russian Federation has not provided its full cooperation. On the contrary, the Russian state has thwarted the investigation in various ways. For example, the Russian authorities previously provided incorrect information and, without any grounds under treaty law, refused to respond to requests for legal assistance with regard to the Buk TELAR ‘3X2’ and the 53rd Brigade.  This is what compelled the JIT to address the people of Kursk directly in its most recent call for information. The letter was sent by post and uploaded to the websites of the JIT and the Public Prosecution Service. Such decisions are not taken lightly. This is a course of action we only take if we have no other choice and if the investigation is at an advanced stage. However, this does not mean that the end of the investigation is in sight. This is and remains a long-term undertaking. 

A call for information like this one requires planning and coordination with various parties, including parties outside the JIT. This is why any postponement is not simple. Because there has been a request for legal assistance pending since 2 April from the examining magistrate to the Russian Federation, asking to question the commander of the 53rd Buk Brigade, we notified the examining magistrate about our intention to issue this call for information. In doing so, we gave the examining magistrate the opportunity to bring to our attention any negative consequences this might have for the ongoing legal assistance process or witness examination, so that we could factor them into our decision-making. Ultimately, this call for information was issued under our authority and by our decision, and not that of the examining magistrate.

In that connection it should also be noted that a request for legal assistance from a Dutch examining magistrate to examine a witness at the request of and in defence of a Russian national cannot be equated to a call for information issued by the JIT to other people in an investigation into other individuals involved in the offence in question – not from a Russian perspective either. These are two different investigative acts, originating from different authorities, in different investigations that each warrant a different assessment of the interests concerned. The call for information provides no grounds under treaty law for legitimately refusing the examining magistrate’s request to question the commander as a witness in the Pulatov case. 

This witness is not influenced by the call for information. The call for information effectively says the same as what was said at the JIT press conference of 2018, the previous calls for information of June and November 2019 and during this trial about the possible involvement of members of the 53rd Brigade, which was under the command of the witness in question. The fact that the witness, as commander of the Brigade, has the right to decline to give evidence is clear, and we previously discussed this with the defence at a review meeting with the examining magistrate. 

That brings us to the end of our remarks about the call for information. We now turn to the question about the findings of the ongoing investigation into other parties involved in the offence. It goes without saying that the results of the investigation are being formalised in files and shared with the Public Prosecution Service. This is required by Dutch law. The questions posed by the defence on this point therefore need no further answer. 

At the start of this trial we stated that if the ongoing investigation were to yield exculpatory information in the cases of Girkin, Dubinskiy, Kharchenko and Pulatov, it would have to be added to the case file and that this would indeed be done. We also said that if there were any doubt about whether a particular piece of information was exculpatory or not, we would consider the defendants’ standpoints in our assessment. If any such new information can be used in support of the defence announced by Pulatov, we will share it with his lawyers, so that they can express their opinion on its relevance.  Since this announcement in March last year, we have found no information that is exculpatory in the cases of the four defendants. Nor are we aware of any information that could possibly be used in support of any specific defence offered by Pulatov. 

Moreover, the indictments in the cases of Girkin, Dubinskiy, Kharchenko and Pulatov do not require any evidence as to the identities of the crew of the Buk TELAR, any responsible parties within the chain of command in the Russian Federation or any other participants. Nor do the indictments require evidence that the defendants knew those identities. With regard to the charge of the joint perpetration of procuring the commission of an offence, the indictment does offer the possibility that such procurement was also committed in the Russian Federation,  but this requires no evidence regarding the identities of the individuals involved in the Russian Federation. With respect to proving that the procurement of the commission of an offence was also committed from within the Russian Federation, it is sufficient to establish that the defendants must have worked with one or more unknown individuals in the Russian Federation to induce the crew of the Buk TELAR to shoot down an aircraft. Even without evidence of personal contact with the crew and their immediate superiors, it can thus be concluded that the defendants’ involvement with the Buk TELAR constitutes the commission of a criminal offence. 

It is not unusual to prosecute an individual in the knowledge that other parties involved in the offence in question have not yet been identified. This happens regularly in drugs cases and other murder investigations. If we did not take this approach, most crimes involving multiple perpetrators would never progress beyond the investigation phase, and we would never reach the prosecution stage at all. 

Sharing information from an ongoing investigation can harm the investigation. As this court has previously held, this is:

‘[…] in itself undesirable, but in light of the specific circumstances in which this investigation must be conducted, given [its] nature and location, and in light of the demonstrated need to examine witnesses and experts anonymously, it may be irresponsible as well’.  

We are thus extremely cautious about sharing information from this investigation into the crew and the chain of command. What we can say is that the investigation has still not resolved the issue of the exact circumstances that led to the downing of MH17. We made that point back in June of last year,  and the situation has not changed since then. The investigation into the workings of a Buk TELAR did, however, yield information about the steps that must be taken to initiate the launch process and the (possible) instruments available to identify a target, but even with this information we still do not know what the crew actually did on the day in question. The information about the workings of a Buk TELAR is already in the case file. But we still do not know what prompted the crew to press the button at the moment they did. Obviously, the ongoing investigation is also focused on that question, but in order to prove that the four defendants are guilty of the charges against them, it is not necessary to establish the specific reason for the launch of the missile or the exact series of events associated with it.

Thus, there was and is no reason to wait for the results of the ongoing investigation into the crew of the TELAR and the responsible parties within the chain of command in the Russian Federation. We said as much in June last year as well. The guiding principle in this connection is that a decision can be made if the questions relevant to the court’s assessment can be answered. The questions formulated by the court are as follows:

1. Was flight MH17 downed by a Buk missile?;
2. was this missile fired from an agricultural field near Pervomaiskyi?; and
3. did the defendants take part  in a manner that renders them culpable under criminal law? In the cases of Girkin, Dubinskiy, Kharchenko and Pulatov the case file contains more than enough information to answer these questions.

In short, the ongoing investigation has not yielded any documents that could reasonably be assumed to be of importance for any decision that the court must take in the cases of the defendants Girkin, Dubinskiy, Kharchenko or Pulatov. Given the nature of the planned investigation activities, we also do not anticipate that this state of affairs will change before the court gives judgment. If this should unexpectedly change, we will obviously inform the court, as we announced at the start of the trial. 

Media reports from 8 September 

The court also asked questions concerning reports in the media on 8 September 2021 about the attempted arrest of two members of the military who were allegedly involved in the launch of a Buk missile. Specifically, the court asked if the information in these reports is accurate, if the Public Prosecution Service is familiar with the correct information and whether this has yielded any information or documents that could reasonably be assumed to be of relevance to these criminal proceedings. In addition, the defence asked if this operation was carried out by or with the knowledge of the JIT (question 12), whether the Public Prosecution Service and/or the JIT was aware of this operation prior to 8 September 2021 (question 13) and what information the Public Prosecution Service has received and requested on this matter (questions 14, 15 and 16). 

Similar reports have appeared in the Russian and Ukrainian media since August last year. According to those reports, undercover Ukrainian security agents sought contact with mercenaries from the Wagner Group, a Russian private military company. Under the guise of military recruiters, these Ukrainian security agents allegedly interviewed these mercenaries and lured them to Belarus. According to the above-mentioned reports, two of the Russian mercenaries who were interviewed may have been involved in downing MH17, or may have information about it. This security operation did not lead to the extradition of Russian mercenaries to Ukraine. 

We would like to stress that this operation was not the work of the Dutch Public Prosecution Service, the Dutch police or the JIT. Consequently we are not in a position to indicate the extent to which all information in the media is correct. At a press conference last Friday the Ukrainian authorities confirmed the existence of this operation in general terms. 

In light of the media reports from last year, we naturally conducted an investigation of our own. It should be noted in this connection that an investigation into possible statements by mercenary soldiers made during job interviews with undercover security agents requires great caution. Verification is essential and time-consuming. What is considered factual on the basis of media reports may be cast in quite a different light following investigation.

What we can say here is that our own investigation has not been able to establish any connection between the individuals named by the media and the Buk TELAR that shot down MH17. We do not have any information that would place them at the launch site on 17 July 2014. In any case the investigation of these media reports sheds no new light on the cases of Girkin, Dubinskiy, Kharchenko and Pulatov. The media reports and investigation results are not exculpatory, nor do they add anything to the information already in the case file. As we have said before, the indictment does not require evidence of the identity of other parties involved in the offence. Furthermore, the results of our investigation do not contain any indication that the mercenaries in question would have anything to say about the involvement of one or more of the defendants in the downing of MH17. 

In short, in response to this question raised by the court we can say that there is no information or documentation that could reasonably be assumed to be of relevance to any decision the court must take in the cases of the defendants Girkin, Dubinskiy, Kharchenko and Pulatov.