Court session 24 June 2021

On 24 April 2021 the Public Prosecution Service responded to the investigative wishes of the defense made on 21 May, 7 June and 24 June. For the presentation of the public prosecutor please watch the video (in Dutch, with English interpreter) or read the text below.

MH17: court session 24 June 2021

Introduction 

The Public Prosecution Service will now respond to the requests for further investigation made by the defence at today’s hearing and previously at the hearings of 21 May and 7 June. At the 7 June hearing a brief reference was made to a request made in an email of 3 June. The requests submitted to the court yesterday had previously been sent to the Public Prosecution Service in various emails and letters since the hearing of 21 May. Finally, there is also an open request on the part of the defence from June of last year on which the court deferred its decision. 

Last Friday, 18 June, we sent a detailed response to these requests submitted by the defence to the court and the Public Prosecution Service. Today, we will elaborate on the main points of that response. We would add that we stand by all the points we made in that written response, even if they are not repeated in full here in court. We will discuss the requests in chronological order.

Hearing of 22-23 June 2020: examination of Stolworthy

At the hearing last June, the defence asked the court to examine Stolworthy, the author of the US memorandum about the detection of the launch of a Buk missile from an area south of Snizhne. The defence wished to question this witness ‘about what exact information he observed and to use the examination to investigate whether and under what conditions the United States would be willing to share the relevant satellite images for the purpose of this trial’. As already indicated in our response to this request, the Public Prosecution Service has taken great pains to obtain more information about this detection on the part of the US than what is included in the memorandum.  In this connection we would also point out that the document in question refers to the detection of a missile, not to satellite images showing a missile. The court deferred issuing a decision on this defence request, pending the outcome of further investigation by the examining magistrate. The US authorities have since informed the examining magistrate that given the top-secret nature of the data in question, they cannot provide more information than is already contained in the memorandum. An examination of Stolworthy would therefore yield no new information. He is bound by a duty of confidentiality, which he will not be able to violate. Because this witness is not in a position to give a statement, the request to examine him should be denied. 

As we stated in June, Pulatov’s interests are not prejudiced by this decision. It is a fact that the US memorandum has limited probative value, and the Public Prosecution Service will not in any case be adducing it as evidence.

Hearing of 21 May 2021: various requests

Documents from the RMA

At the hearing of 21 May, the defence asked the court to instruct the examining magistrate to request missing documents from the Belgian Royal Military Academy (RMA) and then to provide them to the Public Prosecution Service and the defence (hearing of 21 May 2021, memorandum of oral pleading part 1, marginal nos. 1-14). This is the third time the defence has made a request relating to RMA documents. On 23 March 2021 it asked the examining magistrate to request further information about the RMA documents. The examining magistrate denied those requests because it is unlikely that the information sought by the defence could directly help answer questions about the pattern of damage and the calculation of the launch area. On 15 April 2021 the defence reiterated these requests in court. The court also denied these requests on the grounds that they were irrelevant and unnecessary. 

In this third request concerning the RMA documents, the defence invokes article 230 of the Code of Criminal Procedure. The defence offers no explanation as to why it is only now presenting this argument, when, for over a year now, it has had in its possession the documents which describe the instructions given to the RMA and which explain that more RMA documents exist. In our written response of 18 June we explained that the RMA drew up more documents than simply the reports that answer the questions contained in the examining magistrate’s instructions. Documents or reports that do not relate to or help answer the examining magistrate’s questions are not covered by article 230 of Code of Criminal Procedure. In terms of its substance, the defence’s request offers nothing new or different that would warrant a different assessment about the relevance or necessity of these documents. For this reason this repeat request for RMA documents should be denied.

Examination of NFI expert RC08 

On 21 May the defence also requested the examination of the expert RC08 of the Netherlands Forensic Institute (NFI) (memorandum of oral pleading part 1, marginal nos. 15-20). The defence has made this request before, and it was denied by the court on 25 November 2020. At that time the court held that the reports drawn up by this expert offered sufficient insight into how they came to be written and into the methodology used, and that the defence had offered no grounds for doubting the judgment of the examining magistrate regarding this reporting officer’s expertise. 

The only thing the defence says in support of this repeat request is that it wishes to examine the expert about general matters such as expertise and research methodology. As the court previously held, these subjects have already been dealt with in detail in the case file. It is still unclear what specific questions of the defence remain unanswered. There is therefore no reason for the court to assess this request any differently from the one submitted in November 2020.  This request should therefore be denied. 

Questions regarding intercepted conversations 

The third request submitted by the defence on 21 May concerns additional information about telecom data (memorandum of oral pleading part 2, marginal nos. 1-13). This topic, too, has been discussed previously. In June and November 2020 the defence formulated several requests about the telecom material in the case file. In April of this year the defence again submitted requests of this nature. The court has denied each of these requests, though it did order a comparative voice analysis to be carried out. In that connection the court pointed out that the defendant Pulatov does not dispute the location data from his telephones in the case file or that his own statement about where he was on and around 17 July 2014 is consistent with the telecom data in the case file. Nor does Pulatov dispute that the telephone number attributed to him (ending in -511) was his; indeed, he has stated that he used that number constantly in 2014 and that he could always be reached on it. 

The only reason the defence now gives for the repeat request to examine the Public Prosecution Service about intercepted conversations is that it disagrees with the court’s judgment and the expert opinion of the NFI (as clearly stated in marginal no. 2). The defence’s opinion lacks support from any other quarter. The defence has adduced no new facts or circumstances, or any new information about opportunities for investigation. 

Contrary to what the defence suggests, the questions it has formulated are not helpful with a view to a sound forensic investigation. That would require specific hypotheses regarding manipulation, which must be based on content-related or technical queries regarding a specific intercepted conversation. Such concrete hypotheses of manipulation cannot be based on general information about a large number of intercepted conversations. Since 18 February 2020 Pulatov has had the audio files of the most important intercepted conversations in the case file that are attributed to him. Since 28 July 2020 he has had all the other audio files – over 900 of them – that have not been added to the case file, covering the period from 1 June to 31 July 2014. He has thus had considerable time to study those recordings himself and to have them (technically) examined by others. Such an exercise by the defence could have yielded specific points that would serve as a springboard for further expert investigation. The fact that the defence has not found a single concrete issue concerning any intercepted conversation and continues to engage in a mere fishing expedition is a clear sign that there is nothing here to investigate. Anyone who is in possession of the relevant audio files of their own conversations may be expected to be able to indicate what they believe is wrong with them within a few weeks, or at most a few months. Given that the defence has not provided any concrete indications in this regard, it seems unlikely that Pulatov will put forward any specific hypothesis regarding manipulation during this trial. 

The defence thus fails to realise that there are no grounds for further investigation and therefore no need for it. There is no objective fact that gives cause to doubt the authenticity of the intercepted conversations. Indeed, the remarks Pulatov himself made about the intercepted conversations in his video statement provide good reason not to doubt the authenticity of the intercepted conversations. There is only the defence’s desire to suggest manipulation. It is not the purpose of a court-ordered expert investigation to blindly go off in search of questionable elements that the defendant, who as a participant is very familiar with the conversations, cannot find himself. This repeat request should therefore be denied.

Recalling the expert from Almaz-Antey

We now come to the request to recall the previously examined expert from Almaz-Antey and to instruct him to draw up a report on Almaz-Antey’s previous investigation (memorandum of oral pleading part 2, marginal nos. 14-23). This too is a repeat request, and it has already been granted. Back on 3 July 2020 – nearly a year ago – the court instructed the examining magistrate to request pre-existing reports by Almaz-Antey on their own investigation, to appoint an expert from Almaz-Antey, to ask for his response to the reports by the NLR and the RMA and to examine him about topics including the workings of a BUK missile, the pattern of damage to MH17 and the calculated launch area. These instructions are materially exactly the same as what the defence is now again asking the court. 

The examining magistrate made extensive attempts to carry out these instructions and obtain the requested information. A detailed account of those attempts can be found in the lengthy legal assistance correspondence, which the examining magistrate has allowed both the defence and the Public Prosecution Service to inspect. The expert from Almaz-Antey was examined over the course of seven full days. The court also allowed the defence to ask this expert a large number of additional questions, supplemental to his examination.  He has not yet been asked these questions. In total there are 60 primary and subsidiary questions. 

The defence has now had three extensive opportunities to ask the expert from Almaz-Antey about his investigation: in an individual examination, in a joint examination with other experts and in the form of dozens of supplemental questions. After those three examinations, he must undoubtedly be the most thoroughly questioned expert in the history of Dutch criminal procedure. Experts are generally examined for a few hours, or possibly a day. Anything over that is already exceptional. More than seven days is unique. 

Equally unique is the fact that the defence was given the exclusive opportunity to submit further written questions, without the involvement of the Public Prosecution Service in this new round of questioning. The examining magistrate chose to give the defence the opportunity to ask this expert additional written questions, but it denied a similar opportunity to the Public Prosecution Service because the examining magistrate considered the examination of the expert closed. Further written questions were allowed only from the defence; the Public Prosecution Service’s additional questions were deemed unnecessary.  The defence has been given an extraordinary amount of leeway in this regard. Its current request is excessive, and even with the best will in the world it cannot be described as necessary.

Almaz-Antey has chosen not to provide pre-existing reports, as requested, but rather to submit new documents which do not account for its own investigation. Furthermore, during his seven-day examination, the expert opted not to provide a clear explanation of the data and methods used by Almaz-Antey, on the basis of which the reliability of their results could be tested. Thus, the fact that less is known about Almaz-Antey’s methodology than that of the Netherlands Aerospace Centre (NLR) or the RMA has nothing to do with the questions that were put to Almaz-Antey or with the opportunity they had to provide an explanation, and everything to do with the answers that were given. 

A defendant has many rights, but the ability to examine experts until he gets the answers he wishes to hear is not one of them. For this reason, this request should also be denied. 

Creating an index of the investigation file

In its fourth request the defence asked the court on 21 May to instruct the Public Prosecution Service (i) to provide the defence with a detailed index to the investigation file and (ii) to give the defence access to the file. The defence first made this request back in June 2020. The court denied that request on 3 July 2020, with reference to, among other things, its lack of a basis in law, its impracticability, and the fact that owing to security-related issues in this case, granting such a request would be, in the court’s words, ‘possibly also irresponsible’.  In light of this, we can be brief about this request. The law has not changed, and nor has the security situation in this case. We have no such index ourselves, and to the best of our knowledge it is not commonplace in criminal cases like these to draw one up. 

Nor is there any reason to do so. Throughout the course of the investigation the Public Prosecution Service has carefully accounted for its methods and conclusions. A voluminous prosecution file of tens of thousands of pages has been compiled, in which due account is rendered for the investigation. The file contains indications relating to all alternative scenarios that were investigated, and at various points we explain which documents were not included in the file and why. Last June, over the course of three days, we explained in court how the investigation proceeded and what decisions were made during it. Since its initial contacts with the defence, the Public Prosecution Service has also offered and provided extensive opportunities to inspect documents that were not added to the prosecution file, including thousands of intercepted conversations (including metadata), historical telephone data, photos of all the wreckage and other documents, such as earlier versions of reports by the NFI and the NLR. The defence was also given the chance to listen to the entire cockpit voice recordings and to view the suspected missile fragments at Gilze-Rijen air base and at the NFI. Whenever these proceedings gave cause to do so, the Public Prosecution Service also provided additional information about the investigation to the defence on its own initiative, even if such information was not relevant to any decision to be made by the court.  

In short: the defence has already been given sufficient insight into the investigation, and in so far as it was necessary for the defence to review additional information about a particular topic, the Public Prosecution Service provided this information, whether or not at the behest of the court. For that reason, too, there is no justification whatsoever for retrospectively drawing up a list of everything that happened over the course of the multi-year investigation. This serves no reasonable interest. This request should be denied.

Hearing of 7 June 2021: assistance with visualisations

By email of 3 June the defence made the – by its own admission – ‘unusual request’ that the Public Prosecution Service be instructed to ‘enable [the defence] to make (or commission) similar visualisations of audio files, videos and statements selected by the defence’. The defence referred to this request at the hearing of 7 June.

In essence this request centres on funding. The defence apparently wishes to charge the cost of certain software or the fees of any company it hires to the Public Prosecution Service. This is not possible under Dutch law. The European Convention on Human Rights and the Dutch Code of Criminal Procedure do not empower the court to instruct the Public Prosecution Service to help defray the costs of the defence in a criminal trial. As we have said previously during this hearing, the defendant Pulatov has opportunities to have his defence funded by the State of the Netherlands if he cannot afford to pay for it himself.  However, the body responsible for arranging such funding is the Legal Aid Council, not the Public Prosecution Service. 

Incidentally, the comparison being made between the Public Prosecution Service and the defence does not hold water. At the hearing of 10 June, the defence explicitly stated that it does not consider informing the public to be part of its brief. This is a different matter for the Public Prosecution Service. Whereas the Public Prosecution Service has the duty to keep the next of kin and the public at large informed about this trial in a comprehensible manner,  the defence serves the interests of its client vis-à-vis the court. 

Obviously, the defendant Pulatov must be able to articulate his positions in court as effectively as possible, but thus far no impediments seem to have arisen in this regard. At previous hearings in June and November of last year and in April of this year, the defence was able to present videos, photos and statements in a clear manner.

For this reason, this request should also be denied. 

For the record, we would observe, as we did in March of last year, that the Public Prosecution Service takes its obligations in relation to the defendants in this case seriously. This means that we apply equal standards when weighing incriminating and exculpatory evidence, and when referring to such evidence in court. At the start of these proceedings we cited various examples of how we perform this task: we discussed how, over the course of the investigation, multiple conversations and individuals were initially linked to the Buk that shot down MH17, and that subsequently, upon further study, evidence was found to be lacking.  In June 2020, for example, in our explanatory remarks on the investigation, we not only spoke about witnesses who had made statements about the downing of MH17 by a combat aircraft, but also showed them speaking in a video. 

As always, we follow the principle that we will go wherever the evidence takes us. If the defence is of the opinion that there is exculpatory evidence that has not been adequately discussed or presented during the consideration of the merits over the past few weeks, it could have used the opportunity offered by the court to point that out. There will be an opportunity for this in November, when additional remarks and material are submitted in the framework of the consideration of the merits. We invite the defence to make use of such opportunities if they believe that relevant evidence has not been adequately discussed. If the defence indicates in good time what it believes should be discussed further, we can consider if this constitutes grounds to create visual presentations of other intercepted conversations. 

Hearing of 24 June 2021: various requests

Today, the defence submitted a number of other requests to the court that it had previously submitted to the Public Prosecution Service. 

One of those previous requests has already been granted by the Public Prosecution Service. This is the request of 19 May to inspect photos of the autopsy of the captain of team A of flight MH17. As the court noted during the hearing in question, a piece of steel was found in the body of this crew member that matched, in shape and composition, the bowtie-shaped fragments of a 9N314M warhead of a Buk missile. The Public Prosecution Service granted this request and gave the defence the opportunity to come and examine these photos. If they wished, they could have also brought along an expert of their choosing for a specialist assessment. On the afternoon of 7 June the defence lawyers – without an accompanying expert – made use of this opportunity.

The Public Prosecution Service also answered questions asked by the defence in emails of 3 and 16 June about a piece of wreckage with a possible bullet hole, and about intercepted conversations involving Kharchenko. 

Other requests remain open, either because the Public Prosecution Service denied them, because we felt that they were outside the scope of the court’s instructions, or because we deferred our decision pending further explanation by the defence. These requests are now being made to the court. We will briefly run through the decisions we previously made on these requests. As we understand it, the defence will explain in the second session why it disagrees with these decisions and has chosen to submit its requests to the court. 

Raw laser scan data

First we will look at the request regarding the raw laser scan data. By decision of 22 April, the court instructed the Public Prosecution Service to add the ‘ETVR laser scan data’ to the prosecution file. (ETVR = Police Expert Team for Visualisation and Reconstruction.) According to the court’s decision, these words referred to the scan used by the NLR and the RMA to analyse the damage present on the reconstruction.  The same request was made by the defence: according to the defence the laser scan data was requested in light of references to it in the examination of experts from the NLR and the RMA, and it was intended to be used in the ‘testing and assessment of the accuracy and value of the findings of the NLR and RMA – based on that data’.  In response to this, we provided the defence and the court with the ETVR laser scan files used by the NLR in its investigation into the launch area. 

By email of 25 May the defence stated that the laser scan data provided did not meet its expectations and then asked for the raw laser scan data. In our written response of 18 June we explained that the findings of the investigation carried out by the NLR could be evaluated on the basis of the files provided and that the raw laser scan data was not well suited to that purpose. Moreover, the raw data cannot be consulted without a licence, and in any event it is uncertain if the files can be opened in the digital dossier. 

In our written response we took the position that by providing the laser scan files, we had carried out the court’s instructions. To be on the safe side, we asked the court if this was a correct interpretation of its instructions or not. The court replied by saying that the purpose of its instructions was to give the defence the opportunity to carry out an investigation using the available laser scan data – if necessary, with the help of an expert. In that same email the court asked the defence to further specify what investigation it was seeking to conduct with the laser scan data, and what it would need for that purpose.  

We would like to hear the defence’s answer to that question, and after today’s hearing the defence can convey that information directly to the Public Prosecution Service. Specifically, we would like to know what the subject of that investigation is, what methodology will be used, what laser scan data is required and what expertise and software the defence has at its disposal. On that basis the Public Prosecution Service can determine, with the help of the ETVR, what laser scan data can reasonably be of use, and in what currently available form it can be provided and added to the file. 

Overview of the locations of the wreckage

By email of 3 June the defence asked the Dutch Safety Board (OVV) to provide an overview of all the recovered wreckage, complete with the associated stringer and station numbers. In the view of the defence this could help make the detonation points calculated by the experts easier to understand. 

Previously, the defence asked to be allowed to view all recovered wreckage. On 22 April the court denied this request on the grounds that all wreckage deemed relevant by the experts was now stored at Gilze-Rijen and that there was nothing to suggest that other wreckage was of any relevance. In addition, the court stated that in order to view other wreckage the defence would have to give concrete reasons why a specific piece of wreckage was relevant. To provide those concrete reasons the defence could rely on the photos of all the wreckage provided to it by the Public Prosecution Service on 28 July 2020. This new request for an OVV overview of all wreckage is also formulated in general terms and gives no concrete reasons as to why the location of specific pieces of the aircraft is relevant. 

The Public Prosecution Service will not spend any further time addressing the defence’s reasoning or the need for the requested information because it cannot grant the request in any case. We do not have the OVV overview mentioned by the defence, and thus we cannot provide it or add it to the case file. This request should therefore be denied.

Information about the identity of participants in intercepted conversations

By email of 16 June the defence requested, in general terms, additional information about the identity of participants in the intercepted conversations provided. This request concerns information relating to thousands of conversations; yet the defence has made no selection on the basis of the conversations’ relevance. What is more, to judge from the formulation of the request, the defence has made no attempt whatsoever to first search in the case file for the requested information or to check with the defendant Pulatov. The case file already contains a considerable amount of information about the identities and roles of the participants in intercepted conversations. This information can easily be found using the search function in the digital dossier. Since the defence placed this request in the context of an investigation into the defendant Pulatov’s position in the DPR, one would think that Pulatov himself would be in the best position to provide information about the participants in relevant conversations. 

For this reason the Public Prosecution Service asked the defence to state which participants in which specific conversations the defence wished to identify, and to specify what defence interest would be served by this. Pending this clarification, the Public Prosecution Service deferred its decision on this request. 

We would like to know if the defence can provide this clarification in the second session.

Information about Kolomoisky

In the same email of 16 June the defence requested information from the Public Prosecution Service about the possible role played by a certain Kolomoisky in the downing of MH17. This request was made ‘in order to determine if [...] further investigation is warranted’. It is thus a prelude to a possible request for further investigation. In support of this request the defence refers to an internet link to a video of Kolomoisky, in which, in the words of the defence, he ‘appears to say that he had something to do with the downing of MH17’ [underlining ours]. At no point does the defence explain what concrete indications it believes this video can provide and in what way it could challenge the available evidence against Pulatov. 

In the run-up to the pre-trial review phase, the Public Prosecution Service informed the defence that it intended to set more stringent requirements regarding grounds for requests to inspect documents or other evidence.  On 25 November 2020 the court announced the completion of the pre-trial review, noting that any further requests would have to meet very strict requirements.  This request does not meet those requirements, and it is hard to see it as anything other than a fishing expedition. That is why we denied this request for information.

Considering the interest of an expeditious trial

We would ask that the court pay attention, when assessing all the requests submitted by the defence, to the interest of the expeditious progress and conclusion of this trial. In the past few weeks a number of the victims’ next of kin have expressed the hope to the Public Prosecution Service that once they have exercised their right to address the court in September the trial can be brought to a close within a reasonable time period. Many of the next of kin are looking forward to the court’s judgment, followed by a period of rest.  This issue has been raised earlier in these proceedings.  

Of course, any necessary investigation must be conducted. But the interest of an expeditious trial and of the next of kin in particular, means that the longer these proceedings last, the more critical we need to be in looking at what is truly necessary in order to properly and fairly establish the truth. In this connection it is important to consider that further investigation that may appear relatively straightforward often takes longer than we think. This point was discussed in court in March 2020,  and we have seen it in the course of these proceedings. For example, in November 2020 the court granted a request to examine witnesses in the Russian Federation, something for which there is still no concrete plan, over six months later. It is still an open question whether these examinations can be conducted, and if so, when. Since the beginning of this trial, the defendant Pulatov has been given abundant time and scope to shape his defence. At this advanced stage, the expeditious progress of the trial should weigh more and more heavily in the assessment of requests, including those we have just discussed. 

Mindful of this interest in ensuring an expeditious trial, in September the Public Prosecution Service will present the legal framework which it will use in its assessment of jurisdiction, the criminal offences and forms of participation listed in the indictment, and the ‘mistake scenario’ (error in objecto and error in persona). We have already discussed a number of issues on previous occasions: for example, at the hearings back in June and November of last year, we explained the position of the Public Prosecution Service on the role of Pulatov and his co-defendants,  the matter of criminal intent, malice aforethought and the form of participation listed in the indictment.  In November of last year  and last week  we highlighted documents in the case file that the Public Prosecution Service believes are relevant to the assessment of Pulatov’s statements that incriminating intercepted conversations in which he took part contain disinformation. We also explained previously why the Public Prosecution Service believes that Pulatov is unable to claim immunity  or self-defence.  Furthermore, the findings of the investigation into the downing of MH17 by a Buk missile launched from an agricultural field near Pervomaiskyi were discussed at length at the pre-trial review in June and November of last year and during the consideration of the merits. Pulatov has thus been given every opportunity to prepare his defence in a timely manner. The Public Prosecution Service’s final assessment in its closing speech will not come as a surprise to him. 

While the Public Prosecution Service is laying its cards on the table, the defence is keeping its cards close to its chest. In this phase of the proceedings, the defence may be expected to explain why further investigation is necessary to underpin a specific defence. Yet often we see no such explanation in its requests. At present it remains unclear precisely what defence Pulatov wishes to present. Likewise, it remains unclear whether, and if so when, the defence is going to present to the court the results of its own investigations, which it has mentioned on multiple occasions. Nor is it clear what the procedural implications will be in such an event. What we do know is that in this trial the defence does not always choose to adhere to the deadlines laid down by the court or the substantive limits the court has imposed on requests for further investigation.  All this makes it difficult for the court, the Public Prosecution Service and the Legal Aid Team (RBT) to ensure that the trial comes to an orderly and timely conclusion. Obviously, Pulatov has every right to play his cards close to the chest but as long as the defence’s interests are not made concrete, there is no way of taking account of them. 

Conclusion

This brings us to our conclusion. The Public Prosecution Service believes that the defence’s requests should be denied because they lack adequate justification or a basis in law or fact, or because they cannot be feasibly carried out.

Continuation explanatory remarks

This morning we explained the contents of our written response to the requests made previously by the defence. Some of those requests – which initially were directed only at the Public Prosecution Service – are today being put to the court as well, together with more detailed grounds. We will now respond in more detail to some of those requests. For the rest, our position is unchanged, and in regard to our reasoning we would refer specifically to our written position of 18 June 2021.

ETVR laser scan data

We will begin with a brief observation about the laser scan data recorded by the police's Expert Team for Visualisation and Reconstruction (ETVR). This is not as simple a matter as the defence today suggests. The raw ETVR laser scan data consists of three different files containing numerical sequences obtained from three different scanning positions. These three files were combined into a single file in which this numerical data was converted into a single image file that cannot be opened without a licence. We understand that the defence wishes to consult such data in a format that it can open itself, but for that we will need, at a minimum, information regarding the software the defence intends to use for that purpose. Furthermore, it is open to question whether this data can reasonably be of use to the defence’s investigation. It is also inevitable that granting this request will lead to further requests from the defence. In our view there are insufficient grounds for this request.

Information about participants in intercepted phone conversations

As we noted in our first session, this request concerns information about the identity of participants in thousands of conversations; yet the defence has made no selection on the basis of the conversations’ relevance. What is more, to judge from the formulation of the request, the defence has made no attempt whatsoever to first search in the case file for the requested information or to check with the defendant Pulatov. That is why we asked the defence to state which participants in which specific conversations it wished to identify, and what defence interest was served by the request. We have still not received any such specific explanation. The Public Prosecution Service does not see how simply reeling off dozens of phone numbers, without indicating what the conversations conducted by those numbers’ users were about, can be deemed a more detailed explanation. And without such specificity and reasoning, the granting of this request cannot be deemed necessary.
 
If we look at the 10 phone numbers the defence cites in support of its request for more information about the participants in the intercepted conversations it has received, several questions arise. By simply searching in the digital prosecution file for the last four digits of each number, we just found the users of seven of those 10 numbers within half an hour. Three of these numbers are already listed in the case file on the convoy's outbound route (see p. 8 (-1455), p. 37 (-5527) and p. 58 (-2376)), and two of them are cited in the official report on the chain of command (see p. 56 (-9607) and p. 61 (-5867).  One is cited in the personal file on Dubinskiy (see e.g. p. 14 regarding the number -5710) and another is listed in the official report on the identity of the user concerned (see Primo-06819 concerning the user of number -7970). In several cases, the request concerns individuals who have already been the subject of considerable discussion, such as Tor, Batya, Sharpov and Bibliothekar. As we have said before, the defendant Pulatov can find many of the answers to his questions by studying the prosecution file thoroughly.

In addition we would observe that the object of this request will hardly be a central feature of the rest of this case. According to the defence, further information about the identity of participants in intercepted phone conversations involving Pulatov and his co-defendants is relevant to understanding Pulatov’s role within the DPR chain of command.  But the defence does not explain how this is relevant to the assessment of the charges against Pulatov. Pulatov’s own statement about his position in the chain of command in relation to that of his co-defendants  is consistent with the position ascribed to him in the case file: he received orders from Girkin and Dubinskiy and worked alongside Kharchenko.  In so far as there will be any future debate about Pulatov’s position in the chain of command, this will centre on the orders and instructions he gave and received in the intercepted conversations relevant to the evidence that were highlighted when the case file was presented. There is no need to trawl though many thousands of intercepted conversations that have nothing to do with the Buk TELAR.

By formulating its questions in this manner the defence appears simply to be trying to cast the widest possible net in its pursuit of further information. This cannot be considered necessary. This request should therefore be denied.  

Investigation file

Today the defence has submitted countless questions underpinning its repeat requests concerning the investigation file. Many of them have not previously been submitted to the Public Prosecution Service or the court. These questions therefore cannot serve as illustrations of information alleged to have been withheld from the defence. We consider the defence’s allegations inappropriate. During the second consultation with the defence, which took place even before the first hearing in March 2020, we explained how investigative information was registered in a digital police system, and that this system could be searched only by using targeted questions. Providing a chronological overview of every registration of information (mutatie) would neither produce information of substance nor provide any clarity. 

In regard to the subjects that have been discussed previously, we still do not see any concrete grounds for the assertion that not all relevant documents have been added to the case file, nor any concrete indication of what specific document is relevant to which question to be addressed by the court. The fact that the examination of the witness Haisenko is cited as an illustration says enough. The application of a standard relevance criterion leads inescapably to the conclusion that Haisenko's statement is not relevant to any decision to be taken by the court. He has no relevant training or experience in the field of weapon systems of any kind whatsoever; yet considers himself sufficiently expert in this regard because he has spoken on occasion with fellow air traffic controllers who had military experience.  No new factual information emerged as a result of the examination, nor any new, expert perspective on information that is already known. His personal opinions on what he has found at home in public sources are as irrelevant as, for example, the internet sleuths who conclude, on the basis of public sources, that flight MH17 was switched with the missing aircraft MH370  or as the Malaysian author who wrote a book outlining his conclusion, based on public sources, that the downing of flight MH17 is the result of an Illuminati conspiracy.  

The same applies to the photos that appeared online – over two years after the downing of MH17 – showing a fragment of shrapnel and a circuit board that had not been recovered. The defence does not explain what relevance this visual material might have to any decision to be taken by the court. The Public Prosecution Service maintains its position that this repeat request should be denied.

Kolomoisky

We now come to the request for information further to a YouTube video featuring a man named Kolomoisky. When the defence put this request to the Public Prosecution Service, we denied it owing to its unfounded nature.  The Public Prosecution Service and National Police cannot be expected, for each and every exploratory question posed by the defence throughout the course of this entire trial, to continue sorting through information that has been obtained about extraneous matters over the past seven years, especially when the defence’s explanation consists of nothing more than a link to a YouTube video.

This request fits within a pattern of previous requests made by the defence in these proceedings which have consistently served as the prelude for a potential request for further investigation. In this connection the defence has already posed questions about the possibility that flight MH17 was shot down by a combat aircraft, the possibility that MH17 was shot down in error after a combat aircraft had cloaked itself behind it, and the possibility that MH17 was shot down by a Buk missile that did not detonate outside the aircraft (as all the experts agree) but instead hit the aircraft directly. It has also posed questions concerning the well-known Romanian fraudster known in these proceedings as 'Carlos the air traffic controller'. 

The defence says nothing about what concrete indications this video could provide, or how it could challenge the evidence against Pulatov. In their second session the defence argued that this video is ‘seen by many as a confession’ (defence response, marginal no. 131). Who exactly these ‘many’ are and what their assessment is based on is not clear to us. Nor is it clear how the video constitutes a confession. The video, to which the defence provided a link, dates from 23 October 2014 and bears the description ‘Kolomoysky denies the accusation for the Boeing MH17 crash' [emphasis ours].  This is not a confession, then, but rather a denial made years ago. The English subtitles on the video are also more indicative of a denial by Kolomoisky than an admission of involvement in the downing of flight MH17, as suggested by the defence.  One thing the subtitles make especially clear is that the defence is relying, in support of its request, on a vague, flippant dialogue that reveals nothing about the knowledge or role of the participants in the conversation. 

A quick internet search reveals, moreover, that there are no reasonable grounds for reports that Kolomoisky knows anything more about circumstances of the downing of flight MH17. Such reports remain purely in the realm of speculation, and in many cases consist of conspiracy theories in which the CIA and ‘the Zionists’ also figure.  The European Union’s disinformation taskforce, EUvsDisinfo, has designated reports about Kolomoisky and MH17 as disinformation.  This request can clearly not be considered necessary and should be denied.

Conclusion

Each defence request, even if it is being made for the second or third time in these criminal proceedings, must be assessed on its merits. But it is also worth stepping back now and then and looking at the bigger picture to establish what is happening in these proceedings as a whole. A request like the one involving Kolomoisky is in keeping with what, in previous proceedings, has been called the ‘moving target strategy’. This involves ‘delaying proceedings by bombarding the court with reports, requests for stays, and confusing questions about side issues.’ 

In this case too, the defence has submitted stay requests (in June and September 2020) which, the court was later forced to conclude, served no reasonable purpose.  And in this case too, the defence continues to ask questions about side issues or subjects whose relevance is not explained or demonstrated. In the process the defence continually turns the assessment framework on its head: it is not up to the Public Prosecution Service to explain why the defence’s many questions and requests should be denied. Rather, it is up to the defence to provide grounds for its arguments that they should be granted. With that in mind, at this phase of the proceedings specific information is needed, demonstrating that the object of the defence’s request is necessary in order to properly and fairly establish the truth.

In recent weeks it has become very clear what evidence against Pulatov exists, and what remains to be discussed in this final phase of the trial.  Years-old conspiracy theories of the same ilk as Carlos the air traffic controller can neither add to nor detract from that evidence. Nor can general questions about thousands of intercepted phone conversations. We look forward to conducting a substantive debate on the evidence and the questions that relate to the charges, but so far such a debate has eluded us. If the defence does not wish to engage with this debate until the last moment, that is its decision. But that does not absolve it of its duty to specify and substantiate new requests for further investigation at this late stage of the proceedings.