Court session 1 Februari 2021
Response by the Public Prosecution Service. Delivered before the full-bench chamber of The Hague District Court. For the presentation (in Dutch, with English interpreter), please watch the video or read the text below.
Requests submitted by the defence
Today, the defence submitted various requests which must be assessed by the court. On 25 November 2020 the court emphasised that that would be the final day of the pre-trial review phase, and that any further requests for investigation would be assessed in accordance with very strict requirements, which would be more rigorous than what had been in place up to that point. The manner in which the defence has formulated its requests today is not in line with that ruling. Most of the requests are largely or wholly unsubstantiated. We will review them in a moment.
But before doing so, we would like to clear up a possible misunderstanding. Here in court the defence has attributed a position to us, regarding the importance of certain intercepted telephone conversations, that we have never taken. Contrary to what the defence maintains (marginal no. 44), our contention that Pulatov was involved in the offence does not rest largely on the 15 intercepted conversations in his personal file cited by the court.
The conversation which – as we recently learned – did not involve Pulatov, was conducted on 19:25:39 on the evening of 17 July 2014, i.e. after the downing of MH17. This is not one of the conversations where participants spoke openly about the Buk. The conversation is mentioned in Pulatov’s personal file under the heading ‘PULATOV’s role after the downing of MH17’, which also discusses other conversations related to the crash site. Personal files contain not only evidence against the defendant, but also information that is not directly relevant to the evidence. We can understand why the court would wish to include this conversation in a forensic voice comparison; after all, this call took place amid other conversations that did mention the Buk. It is unfortunate that the case file previously identified Pulatov as one of the participants in this conversation, but at the same time, it is somewhat understandable: it is a conversation that took place at a time when fruitless attempts were being made to ring Pulatov’s number. And because the conversation is not relevant to the evidence, it was not subjected to additional verification, as were the conversations that are relevant to the evidence.
The fact that, contrary to what the defence claims, the Public Prosecution Service has never considered the conversation of 19:25:39 to be one of the ‘15 most important conversations’ (marginal no. 45) can be demonstrated in two ways:
The telecom file notes that a number of intercepted conversations that are relevant to the evidence were translated into Dutch. The audio recordings of those conversations were also added to the prosecution file. The conversation in question is not among them.
From the start of this case we have repeatedly asked the defence to comment on the intercepted conversations attributed to Pulatov. For nearly a year now, we have been asking the defence the very question the court asked today: will Pulatov take a position on the intercepted conversations attributed to him in the case file? On 23 March 2020 we wrote to the defence:
‘It is self-evident that the Public Prosecution Service’s request for a response to the telephone intercepts by the defence relates primarily to the 11 conversations for which a Dutch translation and audio recording are included in the file. Your client can listen to the recordings on the stand-alone laptop.’
As you will understand: the conversation of 19:25:39 is not one of these 11.
On 10 July 2020 we reiterated that request, and on 22 July 2020 we repeated it yet again.
The suggestion that we regard the conversation of 19:25:39 as a key piece of evidence is plainly at odds with the questions we asked the defence nearly a year ago. Against this background we would advise the court to take a decision now on modifying the instructions given to the examining magistrate and, if necessary, to set a deadline for Pulatov’s answer.
Requests related to Almaz-Antey (marginal nos. 4-11)
Request to include documents from Almaz-Antey
The Public Prosecution Service is not opposed to including the requested Almaz-Antey documents in the file (marginal no. 4). In late July 2020 these documents were provided to the defence and the examining magistrate for inspection, with a view to future investigation.The new reports recently received from Almaz-Antey refer to these documents and include illustrations from them.
Request to ask Almaz-Antey additional questions
The defence has also asked to put further questions to the individuals responsible for drafting the Almaz-Antey report and to request their CVs (marginal nos. 5-8). Last week, the examining magistrate already reported that at the suggestion of Almaz-Antey she would examine Mr Malyshevskiy as an expert and that she would request a recent CV, as is customary for such expert examinations.Contrary to the defence’s assumption, Almaz-Antey has already specifically responded to the reports drafted by the Dutch Aerospace Centre (NLR) and the Belgian Royal Military Academy (RMA) reports, in one of the reports it submitted. The Public Prosecution Service shares the opinion of the examining magistrate that this fulfils the court’s instructions. So there is no reason to ask Almaz-Antey any further questions. In this regard the defence’s requests are based on an imperfect grasp of the material provided by Almaz-Antey.
Request to facilitate an additional viewing by Almaz-Antey
The defence has requested permission for the expert from Almaz-Antey to view the wreckage (marginal nos. 9-11). This would, it claims, be in the interest of the expert examinations that will take place at Pulatov’s request.
It is unclear why this is thought to be necessary. Almaz-Antey has not requested such a viewing. Recently, the manufacturer of the Buk drew up several new reports outlining conclusions on the basis of its own previous viewing of the wreckage in Gilze-Rijen in the context of the OVV investigation, photos of wreckage, and the results of their own detonation test with a Russian passenger aircraft of the type Ilyushin-86. On the basis of that information Almaz-Antey concluded that ‘the most likely type of missile’ was a Buk of the type 9M38. Nowhere in its report does Almaz-Antey say that it requires additional information. Thus, there is no reason to arrange a further visit by one of their staff. This would only interfere with the examining magistrate’s preparations for the expert examinations that have already been scheduled. Furthermore, the court did not instruct Almaz-Antey to conduct a new investigation into the pattern of damage, but simply instructed the examining magistrate to question the company about its previous findings.
Photos from the database that also contains photos of the non-repatriated pieces of wreckage (marginal no. 40)
In addition, the defence requested the court to ensure that ‘the photos from the database that also contains photos of the non-repatriated pieces of wreckage’ be provided to them. It is not clear to us what database and which photos the defence is referring to. On 28 July 2020 we provided the defence with a data storage device containing photos of all pieces of wreckage that had been recovered. Obviously, wreckage that was not salvaged by the OVV could not be included in the forensic investigation. So none of that wreckage was photographed in the Netherlands. It is also unclear why further investigation of a nebulous category of photos of unrecovered wreckage would be necessary. The request should therefore be denied on the grounds that it lacks sufficient substantiation.
Viewing the reconstruction (marginal no. 60)
The defence has taken the position that ‘all relevant, available wreckage must be included’ in an as-yet-unapproved viewing (marginal nos. 58-60). The defence does not indicate what pieces of wreckage it considers relevant and why. For this reason alone it is impossible to render a decision on this request.
The court has categorised its decision on the viewing alongside the question of whether MH17 was downed by a Buk missile. Under this same heading, on 3 July 2020 the court ordered further investigation into the pattern of damage to MH17 and granted the defence the opportunity to view the reconstruction. The court could decide, as the final part of this investigation, to order a viewing of that reconstruction, in so far as it is necessary.
As we noted at the hearing of 10 March, the reconstruction consists of the front of the aircraft: the outside of the cockpit, the business class section and a small part of the economy class section. These pieces of wreckage exhibit the highest concentration of impact damage. In concrete terms this part of the aircraft is riddled with hundreds of holes (both small and large), craters, and dents caused by a glancing impact. Consequently, it is this wreckage this provides the most information about the weapon used. Even if MH17 had been shot down by a weapon other than a Buk missile, that weapon must also have been capable of causing those hundreds of small and large holes, craters, and dents that are visible on the reconstruction. Other pieces of wreckage, which may exhibit other types of damage, will not add anything of relevance to, or detract from, this prevailing impression of the pattern of damage. For this reason the Public Prosecution Service sees no reason for expanding the scope of the viewing.
In our view the photos the defence showed today illustrate the need to continue upholding the customary requirements that requests must be specific and substantiated. If the defence wishes to know whether or not the objects it showed are relevant to determining what weapon shot down MH17, it would be well advised to look not only at the photos but also at the information on this wreckage that is already in the case file:
- The first object mentioned and shown by the defence, with SIN number AABA9818, is described in the general account (starting on p. 51).
- Various other parts shown by the defence were examined by the NFI and are described in the case file.
- For example, the part numbered AAHI2146NL is a metal fragment which is described in Primo-00756 and mentioned in the general account of the file ‘Forensic Investigation: Wijk bij Duurstede’. These sources explain that this specific metal fragment was transferred to the NFI for examination (along with other metal fragments). The general account of the main file dedicated to forensic investigation discusses the results of this investigation, including the reference to the relevant report by the NFI: Primo 8831. The report states that the origin of this piece of steel is unclear. In other words, it is not certain that it is a piece of the wreckage of MH17. For that reason it was not subjected to further examination. In the absence of further explanation, it is unclear what a visual inspection by Mr Biedermann could add to these findings by forensic experts.
In the interest of clarity, especially for the members of the public watching these proceedings: as stated in the file and explained at the hearing of 8 June 2020, all recovered wreckage was visually examined in the Netherlands by specialists from the NFI, forensic detectives and the OVV. Foreign material and wreckage exhibiting damage that was not consistent with a fall were set aside and examined in more detail. Photographs were taken of all pieces of wreckage that were visually examined. The digital photo files for all these pieces of wreckage were provided to the defence on 28 July 2020. On the basis of those photos the defence can decide for itself about the relevance of a given object.
While it is true that the reconstruction of MH17 consists of only those pieces of wreckage which the various experts deemed most relevant, the defence has in its possession photos of all recovered pieces of wreckage, and all those parts were examined before investigators made a selection of what was relevant to the reconstruction. It is worth noting that ever since the case file was first delivered to the court, it could be read in the seizure file that 18 shipping containers’ worth of wreckage was being stored in Soesterberg. So this is not new information that would warrant a less strict assessment of requests related to that stored wreckage.
The viewing of the reconstruction and the examination of the pattern of damage is otherwise distinct from the investigation of the foreign material (or suspected parts of the missile) found in the wreckage, the victims’ bodies and belongings, and the crash site as a whole. The Public Prosecution Service has already permitted the defence to view the requested foreign material in Gilze Rijen. Next Thursday it will view additional parts at the offices of the NFI. Thus the defence has every opportunity to critically assess the findings of the investigation.
Information that could shed light on the operational capability of the Strela-10 in the period of July 2014 (marginal no. 64)
The defence requests information that can shed light on the operational capability of the Strela-10 in the period of July 2014. Contrary to what the defence has stated (marginal no. 62), the court denied that request back in November. The defence offers nothing that would lead to a different decision now. In any case, the defence’s reasoning – that the question of whether the Strela-10 was non-operational in July 2014 is crucial for determining whether the defendant’s armed groups were in need of a Buk – is incorrect. To begin with, the Buk has a much greater range than the Strela-10 and, as the case file shows, the DPR was having problems with air strikes by Ukrainian combat aircraft, which flew at a greater altitude than the DPR’s anti-aircraft guns could reach, prior to 17 July 2014. A Buk TELAR, which is capable of reaching those altitudes, would be a valuable addition to the DPR’s defences, regardless of whether or not their Strela-10 was operational. This repeat request should be denied because it is not necessary.
Data radar tracking devices (marginal no. 74)
The defence has asked the court to review its decision on requesting Ukrainian radar data. In its interlocutory judgment, the court held that there was no point to requesting this information since Ukraine had already repeatedly stated that it possessed no radar data other than that which it had already provided to the JIT. The defence does not explain why that data could now suddenly be provided. To be clear: the JIT and the Public Prosecution Service have repeatedly asked the Ukrainian authorities to provide all types of relevant radar data, including data related to the detection of other radar systems. The Ukrainian authorities have informed us that they have provided all available relevant radar data. We again must ask ourselves why the defence persists in its limited focus on Ukrainian radar data. As we noted at the hearing in November, the Russian Ministry of Defence stated that on 17 July 2014 it had registered increased activity by the radar (a 9S18 or ‘target acquisition radar’) of a Ukrainian Buk system, apparently in the vicinity of Zaroshchenske. Despite the Public Prosecution Service’s request, the Russian authorities have not provided this radar data. It is unclear to us why the defence is satisfied with Russia’s response regarding radar tracking devices, but not Ukraine’s. In any event, this repeat request should be denied because the defence has not put forward any information that would lead to a different decision from the one issued in November.
‘Leon’ and the commander of the Konstantinovka reconnaissance company (marginal nos. 77-78)
The defence wishes to examine two new witnesses: two individuals who were identified by witness M58 as ‘Leon’ and the commander of the Konstantinovka reconnaissance company. The defence states that this is necessary in order to validate M58’s statements and in order to address questions about the weapon used and the launch location. Yet the defence never explains why this is necessary. It is hardly self-evident. The case file already contains a considerable amount of information which the court can use to assess M58’s statement, including an extensive official report in which sections of his statement are compared to other information. The file also contains a great deal of information about the weapon used and the launch site. Going in search of additional witnesses is neither necessary nor sensible if we know as little about them as we do about these two individuals.
In November the court laid out the requirements governing requests for witness examination that seek to challenge the reliability and credibility of previously obtained information. These requests do not fulfil these requirements and should therefore be denied.
We look forward to hearing the court’s more detailed schedule for the coming hearings. Like the defence we believe it is as yet difficult to estimate how much time is actually needed for a round of written observations about the claims by the next of kin because we do not know the nature or the scope of what will have to be discussed in that round. In any event, the Public Prosecution Service attaches great importance to the efficient use of the blocks of time reserved for the hearings and to ensuring that the schedule is clear to all parties well in advance. Partly in that light, we would like to take this opportunity to suggest that, if the written round takes so long that the time planned for the hearings would otherwise be unused, it might be worth considering scheduling the public prosecutor’s closing speech and the defence counsel’s statement of their case before the oral proceedings of claims by the next of kin.