Court session 12 November 2020
Response by the Public Prosecution Service. Delivered before the full-bench chamber of The Hague District Court.
Presentation of the public prosecutors on 12 November 2020
MH17: Reaction on research wishes defense (introduction)
MH17: Reaction on the defense (forensic investigation - part 1)
MH17: Reaction on the defense (forensic investigation - part 2)
MH17: Reaction on the defense (forensic investigation - part 3)
Over the course of three days last week, Pulatov’s defence team submitted over 200 requests for further investigation. The court must also issue a decision on more than 80 such requests that were deferred in July. Today and tomorrow we will respond to these requests and advise the court about what decisions we believe should be taken.
In a few instances the defence rightly identified inaccuracies or omissions in the case file. For example, two staff members of the Ministry of Defence were identified as reporting officers in a summary official report and were also referred to as such in court when they were not, in fact, reporting officers.
In other instances the defence requested information that was already in the case file but not in the most logical place. That gives us the opportunity to indicate the correct place in the file. In those cases where the criticism expressed by the defence is valid, we will naturally rectify the omissions or errors they found and indicate where in the file the information in question can be found. In this way, this dialogue during the pre-trial review enhances the quality of the case file for the consideration of the merits of the case.
In addition to these pertinent observations, we have also heard a great deal over the past three days that we find perplexing. The case file is large and contains multiple documents of a technical nature. We also know that it is more difficult to grasp the contents of a case file if you were not personally involved in its assembly. So we can appreciate to a great extent the questions raised about the file and the critical approach taken. But our sympathy does have limits.
As it did previously in June, the defence has often requested information that is not only already in the case file but is also in the very documents cited in the request. Where relevant, we will discuss that later, occasionally illustrating our points with visual aids, so as to clear up any misunderstandings about this information.
As as it did in June, the defence has again misrepresented the content of certain documents. This begins with Pulatov’s video statement. The defence made the recording itself and the abbreviated version that was shown here in court. But in contrast to what the defence contends, at no point in the video do we do hear Pulatov mention an ‘anti-sniper device’ (memorandum of oral pleading, part 4 of 5, marginal number 163). We also do not hear him say that on the afternoon of 17 July 2014 he was around three kilometres from the launch site identified by the JIT (part 4 of 5, marginal number 477). Nor could this be inferred from anything else in his statement.
In the case file itself, we are often unable to find any textual support for what the defence concludes in its summaries. We would like to offer a number of examples. In light of the very large number of requests and the limited time available for this block of hearings, we will not run through all the factual inaccuracies in the defence’s argument. In any case, we regrettably had to conclude that we could not blindly rely on the reasoning presented in the requests; instead, we repeatedly had to return to the case file in order to check their assertions.
We were also struck by the defence’s practice of referring to the conflict situation in eastern Ukraine when convenient and ignoring it when that better fits their narrative. With regard to security risks to witnesses and the opportunities for conducting an on-site investigation, anything that departs from what might be seen in a shoplifting investigation in Badhoevedorp is characterised as noteworthy. The fact that MH17 came down in a war zone is apparently beside the point. Yet conversely, if the conflict situation can help the defence to explain away certain incriminating evidence or be used to justify requests for further investigation, we are evidently obliged to take it into account. Pulatov is of course free to adduce whatever arguments he likes, but it adds nothing to the debate.
We were also surprised to see that the Public Prosecution Service is accused of having an ‘rigid attitude’ in this case. We provided the court with an overview of all documents we shared with the defence for inspection and the visits to Gilze-Rijen we organised for the defence. In that overview you can see how little time passed between the submission of the requests and our granting of them. The court is also familiar with the correspondence between the defence and the Public Prosecution Service which shows that all reasonable, specific questions were answered swiftly. The defence has now requested and received dozens of documents, over a thousand digital photo files and more than a thousand telecom files, to study alongside the case file. In October we received an unsubstantiated, request from the defence to inspect the missile parts that had been found, a request we honoured at the shortest notice, even though it had been submitted far too late. Because we realise that the file is extensive and its contents complex, we have made a great effort from day one to offer the defence every support that could reasonably be asked of us, and more besides. Until shortly before the present hearing, the defence took full advantage of this.
It is indeed true that there were other defence requests that the Public Prosecution Service did not grant. This occurred if the requests were unreasonably broad or if their relevance was not evident. This was not due to a lack of will on our part, but rather a wish to respect the interests of other parties and prevent unnecessary work. The defence is now simply throwing requests at the wall in the hope that some of them will stick. Some of these arguments seem to vanish as soon as they are made. In June the defence expressly reserved the right to submit future requests for further investigation and present a defence related to combatant immunity. We assume that we will not be hearing anything more about this, now that we know that Pulatov acknowledged back in February that he was a volunteer in July 2014 and had left the Russian armed forces all the way back in 2008. On 10 June 2020 the defence indicated that it had information in its possession that the user ‘Khalif’ on the forum Glav was not Pulatov. Multiple requests on our part to provide us with that information so it could be examined went unanswered. Now that Pulatov has issued his own statement, which overlaps in certain key respects with previous comments by the user ‘Khalif’ on Glav, we assume that the defence will also drop this point. In June the defence asked the Public Prosecution Service to make available several thousand intercepted telephone conversations for the purpose of their own investigation into the relationship between Pulatov, his co-defendants and other individuals, and in order to have a better sense of Pulatov’s tasks and activities, among other things. Pulatov’s position and activities are described at length in the case file on the basis of various sources and are not disputed by Pulatov. This is why that request was only granted in part. Last week, Pulatov himself stated that Girkin and Dubinskiy were in charge and that he worked with Kharchenko. He also spoke about his tasks and activities in July 2014. All this is largely consistent with what is in the case file. The question remains whether Pulatov merely worked with Kharchenko or if he actually was in command of the latter, in view of the orders given in various intercepted conversations, but this does not matter for the assessment of the indictment. It is a mystery to us why the defence asked for intercepted conversations for the purpose of assessing information that Pulatov himself has now confirmed. We are also unclear about the purpose of all the requests submitted last week to examine deceased persons as witnesses.
The crux of this pre-trial review is the determination of what further investigation is needed in order to a) have all the information the court needs to properly assess the charges and (b) to ensure that this is a fair trial in which the defendants have every reasonable opportunity to present their positions with well-founded arguments.
The Public Prosecution Service is concerned above all with ensuring that requested investigations are conducted if they genuinely help to shed light on the truth. No one benefits from the conviction of an innocent person — not the defendant, not the police, not the Public Prosecution Service and not the next of kin. In this investigation and in this trial we are seeking to establish, to the best of our ability, what happened on 17 July 2014 and who is responsible, in order to ensure justice for the 298 victims. If further investigation can shed new light on the facts of the case, we are all for it. As we said back in March: we will go where the evidence takes us, and only there.
At the hearing back in June we noted that the defence likes to present itself as a seeker of truth but that is not the case. We see this again now: the defence asks for leeway to do everything it deems necessary as a self-styled seeker of truth. Once again it invokes the many years the investigation has taken and suggests that it too should be given abundant time (see, for example, part 2, marginal number 4). That suggestion ignores two key facts. Firstly, investigations have been conducted over the years not only by the JIT and the Public Prosecution Service but also by numerous other parties, including the Russian Federation and many critical journalists (both professionals and citizen journalists). And during that time, for example, the scenario that MH17 was shot down by a fighter aircraft has been dismissed not only by the JIT but also by the Russian Federation. The pathways that the defence is now seeking to revisit have already been explored by many others and incorporated into the investigation of the last few years by the JIT and the Public Prosecution Service. The results can be found in the case file.
Secondly, the defence is not Sherlock Holmes, nor a UN commission of inquiry; it is the voice of the defendant Pulatov. And a defendant does not function as an alternative investigative agency at his own trial. He is entitled to put forward his viewpoints, and he can call for further investigation if he can provide good reasons for doing so. He must, however, specify in a timely manner what the goal of the requested investigation is. A desire to verify everything is not sufficient. As we said back in June, echoing Amsterdam Court of Appeal: a defendant’s right to be granted the opportunity to dispute the methods and results of the investigation does not constitute an unconditional right to evaluate them. In a fair trial there are also limits to what defendants can request and how much time they are granted for that purpose. A defendant has the right to an effective defence, but not the right to determine the substance of the trial or how long it takes. If a defendant wishes further investigation to be conducted, he must submit a request in a timely manner and explain why the outcome of that investigation is relevant to the decisions the court will take in his trial. This is how we assess requests for investigation.
After this introduction, our response is structured as follows:
we will begin by discussing the standards by which requests must be assessed. We will then discuss the various requests that have been submitted. In doing so, we will more or less follow the order used by the defence:
- Question 1: was MH17 downed by a Buk missile?
- Question 2: was the Buk missile fired from an agricultural field near Pervomaiskyi?
- Question 3: was the defendant Pulatov involved?
Then we will turn our attention to the defendant’s questions about the case against the Russian Federation at the European Court of Human Rights.
After that, we will discuss the requests for investigation deferred in July and a number of requests for investigation formulated today by the Public Prosecution Service in response to issues raised during this block of hearings. We will then consider the question of how to efficiently carry out the requests for investigation that have been granted, and we will make a number of requests regarding the consideration of the merits before a brief conclusion.
Standards for assessing a request
Earlier in this hearing we already discussed the fact that Dutch law recognises two different standards for assessing requests for further investigation on the part of a defendant: the defence criterion (verdedigingsbelang) and the necessity criterion (noodzakelijkheidscriterium).
Back on 3 July 2020 the court announced it would make a decision about the criterion by which requests for further investigation would be assessed in this block of hearings after the defence explained why they had not been submitted earlier.
We will now discuss two issues in relation to the assessment framework: the point at which the requests were submitted and the matter of whether the existence of multiple anonymous witnesses in this case has any bearing on the standard.
Time of submission
It is the position of the defence that all requests that have now been submitted should also be assessed in a manner that is not essentially different from the ‘defence criterion’. In support of this, the defence refers to the nature and size of the case file, the need to coordinate with Pulatov and other defence activities. The Public Prosecution Service is unable to follow this line of reasoning. There have been no significant additions to the file for quite some time. It was in response to the defence team’s own request that they were afforded the opportunity to review a large number of irrelevant digital files; moreover, this material came with a warning from the Public Prosecution Service that the granting of their request did not imply that those thousands of files were relevant.
All the circumstances cited by the defence have been known for some time. The size of the case file and the need for sufficient time to review it were already known when the defence told the law journal Advocatenblad that it would be able to take on this job with all the staff at its law office. And all the other circumstances mentioned were already known when the defence announced in June that it intended to submit those requests for further investigation that required no additional consultation with Pulatov within eight weeks.
The fact that Pulatov eventually decided to make a statement at this trial is a positive development, but he must also bear the consequences arising from the lateness of that decision. As far back as June 2019 the JIT attempted to question him, and in December 2019 he was given the opportunity to tell his side of the story via the Russian authorities. He declined both opportunities. Pulatov has had legal assistance in this case since 16 October 2019, and since late 2019 the Public Prosecution Service has repeatedly asked him if he intended to make a statement, first through his Russian lawyer and later through his Dutch legal team. The fact that Pulatov ultimately chose to record a video statement in October 2020 cannot be an excuse for failing to submit requests for further investigation that can be formulated without further consultation by the end of the September block of hearings, as stipulated by this court in early July.
It is now even clearer that many of the newly formulated requests for further investigation could have been submitted much earlier, given that we now know what Pulatov told his legal team back in February 2020, before the trial had even opened. Even before the start of the trial in March, the defence was aware of Pulatov’s standpoint that he knew nothing about the transport or the presence of a Buk TELAR in eastern Ukraine or the cause of the downing of flight MH17, and indeed he believed it was impossible that a Buk TELAR could have been transported to the launch location identified by the JIT. One of the issues discussed at the hearings in March and June was whether it was necessary to examine multiple witnesses to that transport. At that time the defence had every reason and opportunity to submit the requests for witnesses that were not submitted until November this year. It was already clear before March that Pulatov disputed the possibility that witnesses could have observed what they claimed, but that he had no direct knowledge he could share about the subject. After March, the defence could have submitted these requests in June, August or September. The fact that they allowed all those opportunities to pass cannot be dismissed with a simple stroke of the pen. This is especially true if we take account of the fact that Pulatov has been commenting on this trial online from the very start. Anyone who could take to the internet as far back as April 2017 to explain that at the time of the downing of MH17 he was ‘in the vicinity of Stepanovka’, that the ‘missile launch trail from Snezhhoye was not visible’ and that spotters had reported that ‘a high-flying aerial target had brought down another aerial target with an attack’ could also be considered capable of offering that explanation in the various blocks of hearings that took place in the first nine months of 2020 and to formulate requests for further investigation prompted by such an explanation.
The same applies to the requests to examine experts from the NFI. Back in June the defence made extensive objections, with the help of a flow chart, about the possibility that experts could have been influenced by ‘contamination’ and submitted requests for an investigation into the findings of the forensic investigation. The fact that they are only now, in November – three blocks of hearings later – formulating the requests for investigation relating to the position they took in June cannot be understood without further explanation. The statement that Pulatov has now submitted is irrelevant to those categories of request.
The use of an anonymous witnesses in a criminal trial creates difficulties for the defence because it means they have less information than usual and cannot fully exercise their right to confront such witnesses. In that light we can fully understand the defence’s complaints about the amount of redacted information in the case file. We would also have preferred that the situation were otherwise. But the security risks facing witnesses in this trial are a fact which ‘unfortunately’ must be taken very seriously.
The question may arise whether we should be more accommodating when it comes to Pulatov’s requests to examine witnesses about whom information in the case file has been redacted. This would seem to be the position of the defence, given the scant grounds it offers in support of allowing the examination of numerous protected (226a and 149b) witnesses. Their reasoning in this regard would seem to be that, even without offering specific grounds in support of their position, the defence must be given a great deal of leeway to assess the reliability of witnesses because they do not have the full interviews at their disposal.
The law takes a different position on the matter. Various compensatory safeguards are built into the Dutch legal system so that the use of anonymous witnesses does not infringe on the right to a fair trial as laid down in article 6 of the European Convention on Human Rights (ECHR). For example, the independent examining magistrate who examines the anonymous witness is obligated to investigate the reliability of that witness and to draw up an official report on that subject, which will be added to the case file (article 226e, Code of Criminal Procedure). The law also stipulates that if the defence is not allowed to be present for the questioning of the witness because this would not be in the interest of shielding their identity, the prosecution is also not allowed to be present (article 226d paragraph 1, Code of Criminal Procedure).
The court, which will ultimately decide if the statement given by an anonymous (threatened) witness is reliable and thus can be used as evidence, is also bound to stricter rules than apply to witnesses whose identity is not shielded. For example, such a statement can only be used in connection with serious criminal offences (article 344a paragraph 2, Code of Criminal Procedure) and a finding that a given charge has been proven cannot rest solely on a statement by an anonymous witness (article 344a paragraph 1, Code of Criminal Procedure). Finally, the court must evince more grounds than usual to explain why it considers that a statement by anonymous witness is reliable. Taken together, these provisions serve to compensate the defendant for the fact that he is unable to fully exercise his right to examine witnesses.
Naturally, these rules also apply to the present proceedings. Time and again, the examining magistrate conducted an extensive and thorough investigation into the reliability of each witness and their statement. The results of that investigation are set down in an official report that has been added to the case file. This report explains such matters as how the examining magistrate verified the manner in which the witness was found by the investigation team, what contact the witness had had with others, and what prompted the witness to give a statement. It also explains how checks were performed to determine whether the statement made to the examining magistrate matched the previous statement given by the same witness to the police. The examining magistrate also assessed whether the statements were coherent, logical, plausible, consistent and detailed, and whether they were in line with the evidence in the case file and with information from public sources. In the spirit of honouring the principle of an ‘equality of arms’, neither the defence nor the prosecution were present for the examination of the anonymous witnesses.
These are all compensatory measures that were included in the law specifically because the defence cannot fully fulfil its role in assessing the reliability of threatened anonymous witnesses. So the complaint voiced by the defence that it faces restrictions with respect to assessing the statements of various witnesses is legitimate. But by law the compensatory mechanisms offsetting these restrictions rest with the examining magistrate and the trial judge. Thus, these restrictions do not call for a more accommodating attitude towards requests for additional investigation or for lower standards with regard to the grounds in support of such requests. Rather, the defence may be expected to be able to argue, with even greater precision than would be the case for a non-anonymous witness, what exactly they wish to ask the witness. After all, an examination on issues that were expressly excluded from the case file by the examining magistrate is plainly impossible. To grant such a request would undermine the decision-making power reserved to the examining magistrate. This would constitute an unacceptable interference in the statutory powers granted under our system of criminal procedure. The inability to examine a witness, anonymous or otherwise, does not in itself violate a defendant’s right to a fair trial. The decisive factor in this connection is whether the trial as a whole was fair.
There is thus no reason, generally speaking, to offer the defence the benefit of the doubt when it comes to the lateness of these requests for further investigation or to the grounds underlying the request to examine anonymous witnesses. An individual assessment must be made of every request for further investigation, or every category of related requests, in order to determine whether objectively sound reasons exist as to why the request was not submitted earlier. Since the defence has not adduced such sound reasons, we see no grounds for a more accommodating interpretation of the necessity criterion for requests for investigation in this block of hearings.
From the perspective of efficiency, we will only discuss the standard (the necessity criterion or the right to mount a proper defence) if it is relevant to the decision to be taken by the court. If we conclude that a given request should be denied without discussing the standards applied, that means that we reached the same conclusion under both options. After all, if a request for further investigation is not allowable – due to, for example, insufficient grounds or a lack of relevance – the court is not required to mention in its decision what standard applies to the investigation.
Response to forensic investigation (part 3 of 5)
In part 3 of 5 of the memorandum of oral pleading, Pulatov makes several requests concerning the forensic investigation. Most of these relate to examining experts with regard to reports included in the prosecution case file.
The court already granted several such requests back in July, including the examination of multiple experts, which are now again the subject of requests. We will now discuss these various requests. Before doing so, we will begin with a short introduction to the statutory framework as regards requests for the examination of experts. By first setting out our guiding principles for the assessment in general terms, we will be able to be briefer when we subsequently come to discuss the various requests.
The purpose of questioning an expert is to obtain information. A request to examine an expert cannot, therefore, be an advance statement of the defendant’s case, but must specify what relevant information the expert in question has not yet provided. The defence must, moreover, submit the request to examine experts in time. If a request could reasonably have been made earlier, the late submission may be instrumental in a decision to reject the request. The court has already determined that in this phase an explanation is required of why requests were not made earlier, in order for the necessity criterion to be assessed from the proper perspective. We have already concluded that there are no reasons to justify, in a general sense, the late submission of all the investigation requests that have now been made. That is especially true of the requests to examine forensic experts, since we stressed the time-consuming nature of such examinations back in March, and Pulatov himself made similar requests – concerning the same matters and in some cases the same experts – back in June. Pulatov does not explain why he did not make these requests at that time, or why he subsequently did not make use of the hearings held on 31 August and 28 September either.
Furthermore, relevant questions put to an expert about a report must relate to the investigation that was performed and must be confined to the expert’s area of expertise. The information to be obtained under examination must be specifically identified. Generalities are not sufficient. It is thus not sufficient to indicate that the defence ‘has questions’ about a given subject or report: those questions must be formulated in a sufficiently specific manner, so that the court can assess whether they indeed remain unanswered (in the case file as a whole) and whether they are relevant. The defence’s position that it has questions about the methodology used in a given investigation, for example, is merely a general announcement of questions that otherwise remain unspecified, and therefore it is insufficiently specific to justify such a request. An examination of witnesses is not important or necessary if the only questions to be posed are of secondary importance and the answers to those questions cannot influence the outcome of the criminal proceedings.
The fact that a defendant does not agree with the substance of a certain expert report or wishes to dispute the expertise of the author is not an independent ground for conducting such an examination. An examination, after all, is not a statement of the case. The matter at issue is always what specific information which is not yet in the prosecution file and is relevant to the criminal proceedings can be produced by examining an expert.
In its explanation the defence first makes a few general observations that are intended to form part of the basis for the requests. We will run through them briefly.
The expertise of the reports’ authors (marginal no. 17)
In support of his requests Pulatov first argued that none of the NFI reports described the precise nature of the training and experience of the experts who reported their findings. The defence thus fails to take into account that the examining magistrate explained elsewhere in the file the grounds on which in each individual concerned was designated as an expert. In doing so, the examining magistrate devoted attention to the training and assessment of the experts by the NFI and the fact that these experts all operate within the NFI’s accredited quality system. This explanation is only logical, given that the NFI is one of the world’s leading forensic institutes. The NFI conducts investigations not only for the Dutch criminal justice system but also for various international criminal tribunals.
If Pulatov wishes to verse himself further in the expertise of the individuals who reported their findings, he will find plenty of information in public sources. There are, for example, the many scientific publications that several of these experts have published in their field, not to mention the published case law in which their other investigations are discussed. These are established NFI experts who are tasked with reporting findings for the purpose of legal proceedings and who have been designated as experts on numerous occasions by various courts, including prior to 2014. There is thus no shortage of information available about the expertise of these individuals.
‘Contamination’ (marginal nos. 17-26)
Next, Pulatov wonders whether the reliability and credibility of the reports and their substance should be called into question, since it is possible, in his view, that the information in them has been contaminated. The defence is referring not to contamination in the sense of the adulteration or mixing of evidential material, but to the possible influencing of the experts by the information they obtained. It points out in this regard that the experts reported on their findings several times in this investigation, and also read other reports regarding the case, such as that of the Dutch Safety Board. The fact that the experts performed successive analyses on several occasions is also described as potentially hampering their ability to perform subsequent studies with an open mind.
The influencing of experts by information they receive can be a relevant point of concern when it comes to assessing the results of expert investigation. However, the relevance varies widely depending on the type of investigation. When an expert expresses an opinion on the likelihood of different hypotheses, for example, contamination is a more relevant concern than in the case of metallurgic investigation, which by its very nature is aimed at establishing the elemental composition of the material concerned. For this reason, the defence’s approach is too general.
Pulatov also sees problems where they do not exist. Take the statement that the information received that the aircraft, according to Ukrainian government sources, had been hit by a Buk missile system, would rule out an explosion inside the aircraft as the cause of the crash (marginal no. 54). This ignores the fact that this information was not a point of departure or an obstacle for investigators. It merely makes clear that the investigators – like the rest of the world – were aware of the Ukrainian government’s contention that a Buk missile was the cause. This can easily be seen in the case file, since NFI investigators not only provide reasoned explanations of which findings point to an explosion outside the aircraft, but also explicitly indicate those findings about which the same cannot be said.
Secondly, it makes the problems raised by the defence rather academic, since up until now the defence seems also to have worked on the assumption that flight MH17 was attacked from outside, and not inside, the aircraft. In June, for example, the defence indicated that it was exploring lines of investigation which it believed should have been followed ‘after it was concluded that an explosion from inside should be ruled out.’ The defence does not appear to dispute the conclusion that an explosion from inside the aircraft can be ruled out. Nor did the Public Prosecution Service hear anything further about this matter last week.
All in all, Pulatov only poses open questions about theoretical possibilities concerning the influencing of experts, without producing a single concrete indication this actually occurred. As we will explain when discussing the individual requests, no such indications exist.
On the contrary, the file does contain concrete indications that the various experts performed their work freely and with an open mind, and that they amended or qualified their conclusions if subsequent investigation justified doing so. This was the case, for example, with the examination of differences in the elemental composition of the variously shaped fragments contained in the warhead of a Buk missile, and with the comparative study of metal fragments recovered from the left wing and the ‘sweepings’, the missile engine casing and reference material.
A further compelling question is why Pulatov is only now submitting these requests. No explanation is offered as to ‘why now’, even though defence had already discussed in detail (back in June) the alleged danger of experts being influenced by contextual information, including in relation to the NFI investigation that is now the subject of renewed debate. The defence therefore had every opportunity to make these requests back in June or September.
Given the vague nature of the defence’s observations, and the late submission of these requests, we do not see the necessity of further investigation on this point.
Scope of investigation (marginal nos. 27-36)
Pulatov makes various observations about the scope of the forensic investigation: i.e. what was and what was not subjected to forensic examination. This too is a matter on which Pulatov believes experts should be questioned. Here the defence ignores the fact that the scope of the forensic investigation is determined not by the experts but by the Public Prosecution Service and the examining magistrate. This ‘scope’ is formulated by them in the investigation instructions, which are carried out by the experts and forensic detectives.
Given that an appointed expert thus performs investigative activities at the behest of the examining magistrate, and that those activities are performed within the parameters of the investigation instructions, there is no reasonable interest in asking about investigative activities not performed by the expert. The predictable response, after all, will always be that the expert received no instruction from the examining magistrate regarding such an activity. The case file, incidentally, contains multiple reports by experts indicating that additional investigation was needed, and instructions were subsequently issued in respect of such investigation.
If the defence is of the opinion that certain investigative activities were neglected, it can request a more detailed explanation from the Public Prosecution Service or the examining magistrate. It can request the court to order those activities now, or it can refer to the lack of that investigation when stating its case.
Asking experts why certain investigative activities were not performed is pointless, moreover, if other documentation in the prosecution file shows that the activities in question were performed, but were covered in another part of the file. That is the case, for example, with the alleged ‘one-sided focus on the Buk missile’ (marginal nos. 27-29 and elsewhere). As we explained back in June, there was an extensive investigation into whether any other weapon could have been used to shoot down flight MH17. If the defence believes that there are grounds for forensic investigation in which recovered trace evidence from MH17 is compared with reference material from a particular type of weapon that is not a Buk missile, we are very willing to hear about it. The defence must, however, indicate the specific facts and circumstances on which it bases the conclusion that investigation into a specific weapon could be worthwhile. If the defence is unable to do that, we are forced to conclude that although they perhaps would like there to be another type of weapon in contention, they are unable to substantiate this.
Following that general overview, we come now to the individual requests. We will stick to the order and lay-out used by the defence.
NFI request forms (marginal no. 21)
Pulatov has requested that the examining magistrate ask for all the request forms held by the NFI and add them to the file. This is a request to make use of your power under article 315 of the Code of Criminal Procedure, meaning that the necessity criterion is the applicable yardstick. No explanation has been given for why the request was not made earlier. Request forms are internal administrative documents. Their use is part of the NFI’s standard working procedure. The information contained in the forms that is relevant to the criminal proceedings, such as the questions asked, an overview of material to be examined and the information provided to the NFI along with the request, is always copied from the forms and included in the reports. Therefore, the requested information can already be found in the NFI reports. There is no reason to think that this request to the examining magistrate will provide any relevant additional information.
Primo-03956 (marginal nos. 37-45)
The request to examine the authors of the 2015 report no. 03956 is based on two grounds:
- questions about the investigative methodology that was used;
- questions about the findings and conclusions.
However, the reasoning provided in this connection is inadequate. The question regarding the methodology used concerns the investigative methods LA-ICP-MS and PCA. In the world of forensic science, LA-ICP-MS is a standard investigative method which has for some time been used in laboratories around the world. It is described in an NFI document that is appended to the report in the file. PCA is commonly used method of statistical analysis. A great deal of information about it is available in public sources. If the defence has concrete questions or suspicions concerning the use of these investigative methods for this specific investigation, it can of course put them forward. However, merely announcing that the defence wishes to ask questions about ‘the methodology used’ is not sufficiently concrete.
Nor do the questions raised about the findings and conclusions provide grounds for examining the experts about this report. The first question raised concerns the visual similarity between the recovered bowtie fragments from MH17 and the shape of the bowtie fragments in the dismantled missiles that served as reference material. That visual similarity can be observed by anyone on the basis of the photos in the file. There is no need to examine an expert about this.
A further question concerns the basis for the conclusion that recovered metal fragments which, in their elemental composition, closely resemble recovered bowtie fragments were originally bowtie-shaped. The report is indeed technical in nature, but the conclusion is clearly explained: analysis of the reference material showed that the differently shaped fragments in a warhead also differ in their elemental composition. In an analysis of elemental composition, the filler, square and bowtie-shaped fragments thus comprise distinctive groups. The report therefore explains that it is likely that fragments which have the same elemental composition as fragments still recognisably bowtie-shaped were originally bowtie-shaped too.
It should be noted however that this is a report from 2015, and that this conclusion was qualified somewhat in the later report Primo-9472. This is relevant to the assessment of Pulatov’s investigation requests in three ways. First, it shows that the prosecution file offers sufficient information about the course of the forensic investigation over the years: since many reports, from various years, are included, the reader can properly follow the course of the investigation. Second, this is also an example of the open-minded manner in which the NFI’s experts performed their investigation. They revised or qualified their conclusions as their subsequent findings dictated. Finally, all this also puts into perspective the importance of examining experts about the 2015 report Primo-03956: other reports from subsequent years offer more, and more current, information about the subjects raised by Pulatov in this regard.
This last point applies equally to the final question raised by the defence, concerning the layers of aluminium found on metal fragments (marginal no. 45). Firstly, it is striking in this regard that the defence cited only part of the relevant passage from the report, as if this were the entire answer. The answer to the question referred to in this passage can be found elsewhere in the report. At the start of the report, it is explained that ‘reference material’ refers to ‘cockpit glass and aluminium from the aircraft fuselage’ (p. 6). The cockpit glass and aluminium are then discussed in the conclusion (p. 24). The defence can thus find the answers for itself in the report. In so far as this report leaves certain questions unanswered about (the origin of) the aluminium found on the metal fragments, those questions are answered in other, later reports in the case file.
In short, the grounds given for this request do not make clear that any genuinely new or relevant information can be obtained from the requested examination. Therefore, for want of interest or necessity, the request should be denied.
Primo-09427 (marginal nos. 46-53)
In addition, Pulatov wishes to examine the authors of the report Primo-9427. This report deals with the investigation into the elemental composition of recovered pieces of warhead fragments and reference material. No explanation has been given for why this request has only been made now. The request must therefore be assessed in accordance with the necessity criterion. We can find no need in what has been adduced that would justify conducting an examination. The defence cites a single paragraph from the report, observing that it raises questions. We do not see why. To us it seems clear that this passage means that the fragments found in MH17 could not, in any event, have come from the warheads used as reference material. After all, this reference material was still intact when it was made available to the investigation, and as such it could not have been involved in the downing of flight MH17. However, since there were similarities in their elemental composition, the fragments found in MH17 and the fragments from the reference material could have both come from the same production source.
The only other question posed by Pulatov relates to investigative activities that these experts did not perform, namely whether it was possible to rule out that the fragments had come from another weapon (marginal no. 53). In this report the authors rule absolutely nothing out, but rather report on likely relationships. What is more, this subject is clearly outside the authors’ area of expertise: they are experts in micro analysis of trace evidence and materials, and in forensic elemental analysis. In their report and conclusions, they do not claim to be weapons experts, and they should not be invited, in some future examination, to express an opinion on surface-to-air or air-to-air missiles that they have not themselves investigated. This request too should therefore be denied, since its grounds are insufficiently explained and it has only now been submitted.
Primo-04162 (marginal nos. 54-63)
The defence next makes a number of observations and poses several questions about Primo-04162. Before discussing those questions and observations, it is worth pausing to consider the investigation described in that report. The investigation concerned the many fragments that were recovered from one particular body, which were submitted to the NFI with a request to examine whether they bore any relationship to an explosion occurring inside or outside the aircraft. In this investigation no comparison was made to reference material or to fragments recovered from other bodies or pieces of wreckage. And this is only logical, since the investigation was assigned verbally as early as 23 July 2014, and confirmed in writing on 28 July 2014.
The defence incorrectly states that a sentence appearing in the chapter ‘Information obtained’ – to the effect that the Ukrainian authorities believe MH17 was hit by a Buk missile – would rule out an explosion inside the aircraft. At the time, the investigation had yet to begin, and the assignment was clear: investigate whether any relationship could be found to an explosion outside or inside the aircraft. The sentence concerned merely provided context to the assignment and its constituent questions. It was a context, moreover, that at that time was the subject of world news and of which the relevant experts could be presumed to have been aware.
Next, the defence wonders how much freedom the report’s author had to reach a different conclusion from that given in two other reports he had written, the aforementioned reports Primo-3956 and Primo-9427. As the Public Prosecution Service has explained previously, there is no basis in the file for the concern about influencing. This instance is no different from the other in that regard. The defence incorrectly states that the findings in the report Primo-4162 were not made until 2017 and not reported until August 2017. Yet the defence, in its own explanation for the examination request, emphasised that this was a revised report, and the report shows that the previous report had been drawn up in May 2015. It also shows, moreover, that the revision related only to a few incomplete details, and that the conclusion had not changed. Therefore there can in any event be no question of the later findings from Primo-9427 exerting any influence on the report’s author, since these findings were not yet known at the time of this investigation. The same can be concluded with regard to Primo-3956. Not only did this involve a different type of investigation, but the investigation material dealt with in Primo-4126 was made available by the NFI well before the complete investigation material dealt with in Primo-3956: 4 August 2014 versus 25 March 2015.
The defence then identifies three passages in the report as the ‘most striking question marks’. We will now discuss those passages.
The defence does not understand what findings are being referred to in the sentence: ‘[On the basis of] the above-mentioned findings, it is suspected that the steel fragments came from a weapon that exploded outside the aircraft.’ Yet the findings in question are described in detail starting on page 13. The description of those results shows, for example, that another material was found on the fragments. The elemental composition of this glass-like material (which comprised sodium, aluminium, silicon, oxygen and zirconium) was consistent both with that of cockpit glass from a Cessna, which was available as a reference material at the NFI, and with the cockpit glass recovered from the wreckage at the air base in Gilze-Rijen. Other pieces of non-cockpit-window glass recovered from the wreckage and examined did not contain zirconium. Nor do other common forms of glass, such as window panes, car windscreens and phone screens contain any zirconium. In addition, the NFI expert noted that the steel fragments contained several explosive ‘signatures’, consisting mainly of morphological characteristics such as warped surfaces.
It is these findings that, in the text leading up to the sentence in question, form the basis on which ‘it is suspected that the steel fragments came from a weapon that exploded outside the aircraft’. This is not unclear. We are talking about pieces of steel recovered from the body of one of MH17’s occupants, which appear to have been warped by an explosion and on which melted cockpit glass was found. A careful reader of the report will understand that these steel fragments probably came from a weapon that exploded outside the aircraft. No additional explanation by an expert is necessary.
The defence further claims not to understand what is meant by the sentence, ‘The similarities between these fragments and reference material from possible weapon systems will be investigated further.’ Here, the defence wrongly states that this sentence was first written by the NFI in 2017. The careful reader will see that both the period of time involved and the further investigation referred to by the NFI are different to what the defence suggests.
The last question marks discussed by the defence relate to whether the origin of certain objects is unclear, why certain pieces of metal were not examined, and – briefly summarised – what is meant by the observation that no indications were found of a relationship to an explosion. However, this information too can simply be found in the report.
Overall, the Public Prosecution Service concludes that there is no need to examine experts with regard to report Primo-4162.
Primo-08882 (marginal nos. 64-69)
That brings us to Primo-08882. This report concerns the investigation of fragments recovered from a number of pieces of wreckage. It was presented to the NFI on 25 September 2015 in the framework of a preliminary investigation.
Given that the activities concerned were performed as part of a preliminary investigation it is only logical that this investigation was aimed at selecting material for follow-up investigation. In the questions section on page 3, the following can be found:
‘In order to obtain a clearer picture of what pieces of evidence are to be analysed, an inventory of the steel fragments found in the pieces of wreckage is required. (...) Once the inventory is completed, an analysis can, subject to consultation, be conducted, whereby the following questions can be addressed.’
It is clear from the question’s formulation that ‘only’ a specific selection of fragments would be chosen for further analysis. When making that specific selection, account was taken of the findings of the previous investigation of recovered fragments (examining their size and elemental composition) and of the consultation held in January 2015, as is explained in the report. Before the court the defence described this consultation as an ‘expert meeting’, while in fact it was merely an intake discussion between the police and the NFI concerning the investigative material to be submitted and the questions to be formulated in this regard. In large, complex investigations it is customary for experts to be involved in the selection of the material to be examined and the proper formulation of questions, especially when many items of evidence are involved. That selection is intended to ensure the utility and quality of the investigation. The defence has characterised this consultation as an indication of contamination. In view of the above-mentioned reasons the Public Prosecution Service sees this differently.
The defence also sees the reference to findings from previous investigations as an indication of contamination. As the report clearly shows, in this specific preliminary investigation the findings of the previous investigation were involved only in the selection process. That is something different from the incorporation of those previous findings into the interpretation of the findings of the investigation that had yet to be performed.
The defence next describes two elements of the report as the ‘most striking question marks’.
The first concerns the observation in table 2 that five fragments were not examined and that no explanation was given for why they were not examined.
Table 2 does indeed state that five SIN numbers had ‘not yet been examined’. This is in keeping with the question put to the NFI, to the effect that first an inventory should be made of fragments found in the pieces of wreckage in order to ‘obtain a clearer picture of what pieces of evidence are to be analysed.’ The fragments were not submitted to the NFI with the instruction that the Institute should examine all of them. The instruction was first to draw up an inventory of the items in order to facilitate a selection of which fragments should be analysed.
The requested inventory was subsequently performed, as described in chapter 4 (‘Investigation’) of Primo-8882. The fragments were photographed and examined, inter alia, for the presence of characteristics specifically showing a relationship to an explosion, such as sooting, cracks and melted and warped surfaces. Investigators also looked for the presence of green paint, rusted irregularities and easily identifiable characteristics such as magnetism. After this preliminary examination, the fragments were investigated further only if there was a reason to do so. The report thus contains ample explanation of why some fragments were subjected to further investigation and others were not. If the defence believes there are specific reasons why a certain fragment was wrongly excluded from further examination, it can adduce those reasons. The fact that the defence has not done so leads us to conclude that it has no specific substantive questions or objections.
The next ‘striking’ element concerns a paragraph in which the expert explains that a large number of fragments consist (or are believed to consist) of unalloyed steel, and that these possibly came from the weapon that was used. Apparently it is unclear what is meant by ‘the weapon that was used’, and on the basis of what facts and circumstances the expert came to believe this.
Flight MH17 crashed on 14 July 2014. The Dutch Safety Board ruled out an accident or technical failure as the cause of the crash. That opinion is not disputed by the defence. The only remaining scenario is therefore that MH17 was downed by means of a weapon. The forensic investigation was aimed at establishing what type of weapon was used. The existence of uncertainty as to what type of weapon was involved does not mean that an expert is barred from stating that a weapon was used: it is obvious, after all, that a weapon was used. The phrase ‘the weapon that was used’ thus means nothing more and nothing less than the weapon with which flight MH17 was shot down.
The report offers clear insight into the facts and circumstances that formed the basis for the expert’s opinion that some fragments possibly came from the weapon that was used. I would again refer in this regard to chapter 4, which describes the anomalies the experts were alert to when conducting the inventory. When the inventory was made it emerged that some fragments displayed characteristics of an explosion. An aircraft does not generally contain fragments that display characteristics of an explosion, so it is neither strange nor confusing that an expert would qualify these fragments as ‘possibly from the weapon that was used’. The Public Prosecution Service therefore does not consider it necessary for the expert to provide further written or verbal explanation in this regard.
Taking all this into account, the Public Prosecution Service concludes that there is no need to examine an expert about report Primo-8882.
Primo-09126 (marginal nos. 70-88)
Between marginal numbers 70 and 88 the defence discusses Primo-09126, a report detailing the comparative analysis performed on the metal fragments found in the wreckage and one of the victims. The conclusion that the two authors of this report need to be questioned about ‘potential contamination’ rests on a number of inaccuracies.
The report by the Australian Federal Police (AFP) cited in this document does not, as the defence contends, already contain the answer to the question posed by the NFI about a single specific fragment. The AFP compared the external characteristics of the fragment in question to reference material, while the comparison performed by the NFI was based on the elemental composition of that fragment and the reference material. In other words, the NFI employed a different type of analysis, as described in chapter 4 of its report. The AFP’s findings prompted the comparative analysis by the NFI, but nothing more than that.
The next point is that the analysis made use of an experimental method (marginal nos. 73 and 74). The defence seeks to assess the reliability of this method by examining the individuals that carried out this analysis. It is unclear exactly what questions it intends to ask.
The method in question, known as micro-computed tomography (microCT), is a technique whereby three-dimension black-and-white images can be created of relatively small objects. The grey-scale intensity in these images indicates the density of the material in the object. MicroCT makes it possible to identify the presence of other materials in the material being examined. In this case, the lump of metal from the frame of the cockpit window (SIN AAHZ3650NL) was analysed with the aid of microCT. According to that analysis the lump contained no material besides stainless steel.
Contrary to what the questions posed by the defence suggest, this was not the only analysis performed on the metal lump. After microCT analysis yielded no indications that would point to the presence of any other material or metals besides stainless steel, the elemental composition was also determined using a different, more common method. This method also showed that the lump was composed of stainless steel.
It was not the results of the microCT analysis that formed the basis for the further investigation but rather the results of the other analysis. In light of this, there can be no interest in a further examination of witnesses with regard to microCT analysis because this would have no influence on the conclusions that can or cannot be drawn from the forensic investigation as a whole.
The defence would also like the examine the authors of the report about the Bayesian approach used (marginal no. 77). However, this is a question dealing with general information about the NFI’s standard working methods, As such, it does not warrant the examination of an expert by the examining magistrate. The defence can readily obtain such information from public sources. In the report itself the experts refer to an appended document containing terminology from the field of probability used by the NFI, which can also be found on the NFI’s website. The NFI offers an online course on this subject which is open to members of the public. Since the court is accustomed to interpreting reports in which results are presented in this manner, there is no need to examine experts about this subject for any decision it must render.
What remains of the grounds for this request is a hard-to-follow argument which reads like an advance statement of the defendant’s case crossed with a misreading of the report.
For example, the defence speaks about ‘findings that were set aside’ and discounted hypotheses (marginal nos. 82 and 87), while the report says nothing of the kind.
Taking all this into account, the Public Prosecution Service concludes that, on the basis of the explanation offered by the defence, there is no need to examine experts about the Primo-9162 report.
Other reports (marginal nos. 89-95)
Pulatov wishes to examine various experts about the reports summarised in appendix 3. Inthis connection, it provides no reasoned indication of what questions still need to be addressed because this would take ‘an unreasonable amount of time’ (marginal no. 90). At the same time they do announce that the examination of these experts should take several days per person (marginal no. 92). As we already stated in our introduction, such a request cannot be granted. In order to conclude that it is important or necessary to examine a particular expert, it must be acknowledged that there are relevant questions to be answered. This is not possible without providing concrete grounds for the request. The defence has had so much time to submit its requests for further investigation that the lack of concrete grounds is unjustifiable. If the defence was concerned about using up too much time during the hearings, it obviously could have put its reasoning in writing and simply summarised it in court.
The current request must therefore be denied due to insufficient grounds.
Primo-06556 (marginal nos. 96-98)
The defence also has questions about Primo-06556, a report containing the findings related to the analysis of a number of fragments recovered in Wijk bij Duurstede. This analysis sought to determine a possible relationship between these fragments and an explosion inside or outside the aircraft. The defence would like to examine the experts who performed this analysis about two specific fragments. One is a small piece of reddish brown steel, which was found melted in a piece of underwear. The underwear in question was found scattered among the luggage and other personal property; it was not being worn by one of the victims. The underwear arrived in the Netherlands on 21 October 2014, meaning that it had lain out in a war zone for several months. During that period there was active fighting between the Ukrainian armed forces and separatists. The report noted that the fragment could have originated from a weapon that was used in hostilities in the area where flight MH17 came down. The other fragment was also found amid the luggage and other personal property. It does not contain any characteristics indicative of an explosion, or any residue of explosive substances. The elemental composition does not match fragments recovered from the victims’ bodies. The questions raised by the defence are insufficiently clear or relevant to justify calling a witness. It is only natural that we would be unable to pinpoint the origin of every single fragment found at the crash site. In so far as the defence believes that these two fragments, which were found amid luggage exhibiting severe fire damage, could cast a different light on the weapon used, it is free to ask the experts who have yet to be examined about the pattern of damage.
Thus, it is not necessary to examine the authors of Primo-6556.
Primo-08139 (marginal nos. 99-108)
This brings us to Pulatov’s requests about Primo-8139, a provisional report from 2016 about the investigation into traces of explosives on the wreckage of MH17. Here, too, the defence has formulated its questions as if this report were a stand-alone document, whereas it is a provisional report that was replaced by a final report at a later date: Primo-8688. This fact alone shows that the reasoning offered in support of this request is inadequate.
The results of the investigation into traces of explosives on the wreckage are described in clear language, as are the limitations that make it impossible to attach more specific conclusions to these findings. These limitations mainly relate to the long period of time that the wreckage was sitting in a war zone and the way in which it was gathered and transported. The Public Prosecution Service does not understand why the defence would dismiss these limitations as ‘speculation’, let alone why that these ‘speculations’ would constitute grounds for examining a witness.
The defence also takes the position that the investigation was incomplete because the detonator of the warhead was not examined. This could have shown whether the detonator contained PETN. The defence wishes to question the expert about this. The defence fails to appreciate that such an examination is of no value: the presence or absence of PETN has no bearing on the limitations on the investigation into the wreckage, i.e. the fact that it was left outside in a war zone for a long period of time and the manner in which it was collected and transported. The defence neglects to explain in concrete terms what meaningful investigation was wrongly overlooked and what effect that might have had.
This request should also be denied, due to insufficient justification and relevance.
Addition of report 111 to the case file (marginal no. 104)
Pulatov asks the court to add NFI report 111, on traces of missile fuel, to the case file.
We have no objection to this.
Primo-07626 (marginal nos. 109-118)
In addition, Pulatov has questions about the report on the physical comparison of recovered foreign material to material from the two reference missiles. To that end, he wishes to examine the author of this report, a forensic investigator from the Australian Federal Police about his ‘expertise or lack thereof’ (marginal no. 113), the ‘limitations to his investigation’ (marginal no. 113) and the way in which he conducted the investigation (marginal nos. 114 and 115).
Here once again the defence raises objections to the report without making clear what additional information it wishes to learn from the witness concerned. There is no need for this forensic investigator to reaffirm that he is not an expert on Buk missiles. The police officer in question has already been quite clear about this point. This is also irrelevant since he is not making a technical judgment about a weapon. He confines himself to comparing the external characteristics and magnetic qualities of the objects found to parts of a Buk missile. The similarities he found are carefully described. All the questions posed by the defence about his ‘expertise or lack thereof’ are already answered in his report. The same applies to the fact that his reference material consisted of two different types of Buk missile. Further questions from the defence about this ‘limitation’ cannot be answered by this investigator. Moreover, the observation that there is a ‘limitation’ in this instance implies that the findings depend on which 9M38 missile and which 9M38M1 missile were involved in the comparison. Yet the documentation provided by the Russian Federation about the assembly process for such missiles makes it clear that this makes no difference whatsoever.
This leaves us with the questions raised by the defence about the way in which this expert performed his work. This was a straightforward comparison of the external characteristics and magnetic qualities of the material. This comparison was described in detail in the report, which also includes photographs. A total of 475 photos from this analysis were included in the case file. In combination with the in-depth report, they offer a detailed picture of the investigation and its findings. On 7 October we drew the defence’s attention to these photos.
The way in which this investigator performed his work is apparent not only from these and hundreds of other photos; it was also explained in detail in the text. Even so, the defence contends that it is ‘unclear’ whether ‘the reference material was physically present during the investigation and/or whether photographs of it were also examined’ and ‘whether a microscope or other devices were used’ (marginal no. 115). Those questions are all answered in the report and the photos: the metal lump, the other pieces of evidence and the reference material were physically examined and compared by the forensic specialist. In both Ukraine and the Netherlands, he took part in the examination of these missiles and other pieces of evidence. He continued this work in Australia on the basis of photos and 3D scans made by the Expert Team on Visualisation and Reconstruction (ETVR).
Pulatov also wishes to question this investigator about the direction of the impact (marginal nos. 116-117) and the location where the missile detonated (marginal nos. 117). The first question is answered in the report: on the basis of photos taken earlier (i.e. before the lump was removed from the window frame), the investigator described and explained in detail the general direction from which the lump must have entered the frame. This is a reasoned observation that the defence can assess for itself on the basis of the photos. According the defence, the question about the location of the detonation lies outside this investigator’s area of expertise (marginal no. 117), meaning that there is no reason to ask it.
Finally, Pulatov wishes to question the investigator about his conclusion that the ‘features’ of a foreign fragment (AAGK3338NL) ‘are consistent with the umbilical slide cover of both the 9M38 and 9M38M1 reference missiles’ (marginal no. 118). This, too, the defence alleges, is unclear. If we examine the report, we can see that the investigator describes his findings over the course of nearly four pages. These findings are further ‘illuminated’ by no fewer than 65 photos. On the basis of that detailed description and the attached photos, it is clear what ‘features’ the investigator’s conclusion is based on. Pulatov can object all he wants, but the photos tell the whole story. If the defence has reached a different conclusion from the investigator on this matter, it is free to inform the court. No one has to be examined for that purpose.
Primo-06937 (marginal nos. 119-124)
The next request relates to Primo-06937, the official report explaining how the aforementioned ‘lump’ was removed from the cockpit window frame. The defence wishes to ask questions about how the lump was found in the window frame, and in particular about the direction of the impact. It also raises the question of whether the researchers at the TNO, RMA, NLR and NFI endorse the findings of the reporting officers about the direction of the impact. To begin with the latter question: this is a question that the reporting officers are in no position to answer. A reporting officer cannot be asked about somebody else’s opinion. Nor have the organisations mentioned had a chance to form an opinion about the reporting officers’ findings. If the defence believes that these matters should be investigated further, it must first offer a concrete explanation of what the added value would be. The mere fact that reporting officers are not scientists is in any case insufficiently specific to presume such added value.
The first question, about the findings of the reporting officers themselves with respect to the lump of metal found in the cockpit window frame, is already answered in the official report. That report contains not only a factual description of what the reporting officers did and observed, but also 14 photos, which show the reader what the reporting officers are describing. The media file contains these and other photos in a higher resolution.
At the hearings in June we already discussed this official report in detail, and at that time we also showed some of the photos. We will now show three photos, two of which were shown in June:
In the next two photos you can see that, as described in the official report, other material in the frame had to be cut away to reach the lump. One of the two sections of the window frame was completely removed, thereby revealing the underlying brownish yellow part and making it easier to see the aforementioned crack. Once a final piece of the section was cut away, the lump then became visible, at the exact place where the crack was.
There are many more of these kinds of photos in the case file, but these three are sufficient to demonstrate that the defence is seeking to ask questions about a small element of an investigation which is documented in such meticulous detail, in writing and in photographs, that every relevant aspect of it can already be found in the case file, in text and images.
If Pulatov has further questions about this specific damage, he can, of course, pose them to the experts who are already scheduled to testify about the pattern of damage. We do not see how an examination of the authors of Primo-6937 can add anything essential to their official report or the expert testimony that is already scheduled to take place. There is also the question of why this request was not submitted until now, in November, when this official report and the findings it contains were discussed at length in the hearing back in June.
Investigation by the NLR, the RMA and TNO
The defence has requested the examination of the report authors from the Netherlands Aerospace Centre (NLR) (marginal nos. 160-167), the Belgian Royal Military Academy (RMA) (marginal nos.140-159) and the Netherlands Organisation for Applied Scientific Research (TNO) (marginal nos. 168-186).
In part, these requests relate to investigative work that was done at the behest of the Dutch Safety Board (OVV). This involved an examination of the pattern of damage to flight MH17, performed by external experts from TNO and the NLR.
As the defence itself has noted, this raises questions about the possibility of using the Dutch Safety Board’s final report and external reports by TNO and the NLR as evidence. Now that concrete requests have been made, those questions can be answered directly.
Under section 69 of the Kingdom Act establishing the Dutch Safety Board (ROVV) certain sources of information used in OVV investigations may not be used as evidence in a criminal case. The purpose of this principle is to prevent information gathered by the OVV from being used against the individuals concerned, for example in a criminal case. This ensures that those concerned can share information freely, without fear of being held legally liable, and the OVV can thus collect as much data as possible for its investigations.
Because such information from these parties may also be incorporated in the OVV’s final report, it was ultimately decided, following a parliamentary debate, to exclude the entire report from the evidence (section 69, subsection 1(f) ROVV). Consequently, the OVV report cannot be used as incriminating evidence against Pulatov and the other three defendants. The report can, however, be used as exculpatory evidence or to aid the court in assessing the completeness of the criminal investigation and any opportunities for further investigation. This is why the Public Prosecution Service added this report to the case file: so as to provide the most complete possible picture of the available information concerning the crash of MH17. It was for this same reason that, during its explanation of the criminal investigation, the Public Prosecution Service referred to the OVV’s findings about the sound waves picked up by the CVR, as these findings were in line with all the findings from the criminal investigation, which made it possible to rule out the possibility of both an explosion from inside the aircraft and an attack by a fighter aircraft. In light of that, no further investigation of the sound waves on the CVR was necessary because the OVV’s findings on that subject matched the findings that emerged in the course of the criminal investigation conducted by the Public Prosecution Service. The Public Prosecution Service has not cited the OVV investigation to serve as incriminating evidence, but rather to clarify its conclusion that no further investigation needs to be conducted on this point.
It is thus clear that the final report cannot be used as incriminating evidence.
Where the external reports by TNO and the NLR are concerned, this is less straightforward. According to the letter of the law, the reports are not documents that have been drawn up or approved by the Board within the meaning of section 69, subsection 1(f) of the Kingdom Act establishing the Dutch Safety Board, but by external experts, which were then released separately by the OVV. Moreover, the reports deal with the examination of pieces of wreckage which were also seized by the authorities in connection with the criminal investigation. The use of those technical findings in a criminal case does not jeopardise witnesses’ willingness to cooperate in an OVV investigation. Those pieces of wreckage are, as it were, silent witnesses, which automatically yield up the information they contain, not human beings who refuse to speak because they could subsequently be drawn into legal proceedings.
The legislative history is not clear-cut with respect to the interpretation of this statutory provision and the question of whether or not external reports appended to an OVV report can be used as evidence.
Be that as it may, it is the position of the Public Prosecution Service that reports about the pattern of damage commissioned by the OVV and drawn up by the NLR and TNO add nothing to the findings that were established in the criminal investigation. As far as the Public Prosecution Service is concerned, reports commissioned by the OVV are not expected to be used in evidence. For that reason, we do not see the need for or importance of examining the reports’ authors. In any case, in the explanation offered by the defence, we find no subjects for examination that could potentially shed a new or different light on the existing findings of the criminal investigation. To the extent that the defence has relevant questions about the NLR’s examination of the pattern of damage in the criminal investigation, it can put them to the expert of NLR in the ongoing investigation being conducted by the examining magistrate.
The ongoing investigation by the examining magistrate
In its interlocutory judgment of 3 July 2020 the court already called for the examination of experts from the NLR and the RMA about the pattern of damage to MH17 and the calculation of the launch area. With regard to the pattern of damage, the court considered that these individuals would be questioned by the examining magistrate ‘about the the extent to which the damage to the wreckage of MH17 pointed to the use of a Buk missile’. The court further considered that it was in the interests of the defence to be able to test the scenario specified in the indictment that MH17 was brought down by a Buk missile and that ‘[a]ccording to a number of individuals mentioned by the defence [...] the pattern of damage to MH17 allegedly showed traces of one or more other weapons’. With regard to the further investigation into the launch area, the court also decided to appoint an expert from Almaz Antey and involve that individual in the investigation. For both issues, the pattern of damage and the launch area, the court referred Pulatov’s case to the examining magistrate.
For various reasons those investigations have not yet taken place.
In the investigation into the launch area, the examining magistrate has yet to receive any reports from Almaz Antey, despite a request for legal assistance submitted last July and repeated subsequent contacts with the Russian authorities. Nor has the examining magistrate been able to appoint an expert from Almaz Antey, because the information needed for that purpose has not been provided by the Russian authorities. With respect to this aspect of the investigation, the ball is in Russia’s court. With respect to the investigation of the pattern of damage, the initiative has been with the defence for months now, given that this investigation can only commence with a visit to the reconstruction of MH17 by a competent person designated by the defence. That visit has not yet taken place because in the time since the decision of 3 July 2020, the defence has not yet designated such an individual. Only after that visit has taken place and this person has drawn up a report for the defence will it be possible for the experts from the NLR and the RMA to offer their response. And only then can the various experts be examined about this matter. At this point, the start of this examination process thus depends on the actions of the defence and the Russian authorities.
Instead of visiting the reconstruction with a competent person, which would set in motion the preparations for the previously ordered examination of the experts from the RMA and the NLR, Pulatov once again asks that experts who have already been permitted to testify be examined on the same topics: the pattern of damage (marginal nos. 127-130 on Primo-05604, annexe 5; marginal nos. 153-159 on Primo-12419) and the launch area (marginal nos. 160-167 on Primo-10509). We do not understand this. This request is repetitive and causes an unnecessary delay in the hearing. Questions about these subjects clearly fall within the scope of the court’s previous referral to the examining magistrate. In so far as those questions are deemed relevant by the examining magistrate, they can be asked in the context of the ongoing investigation. As far as the Public Prosecution Service is concerned, these requests have already been granted previously and need not be discussed again.
Given that the investigation that has already been granted must be initiated by the defence itself, we would again ask it to consider either taking the necessary steps or forgoing the examination of the reconstruction by a competent person. However, the defence made clear last week that it still has nothing concrete to say about this matter. In light of that, our only option is to ask the court to set a deadline. We will do that after discussing all of Pulatov’s requests for further investigation.
Primo-12418 and Primo-12417 (marginal nos. 140-152)
Only the request to examine RMA experts about reports that deal (in part) with pieces of the missile that were found separately [from the aircraft] (marginal nos. 140-147 on Primo-12418 and marginal nos. 148-152 on Primo-12417) falls within the scope of the previously granted examination of these experts about the pattern of damage to MH17.
We cannot understand why the defence did not submit this request earlier. The Public Prosecution Service mentioned these RMA reports in its presentation back in early June. At no point in the successive hearings in late June, August and September did this lead to any requests on the part of the defence. No explanation has been offered for why they have waited until the fourth round of hearings.
If we then look at the questions the defence now wishes to ask about this subject, we find that they are already answered in the reports in question. In short, the defence is asking questions simply for the sake of it. The Public Prosecution Service sees no reason to burden the ongoing investigation by the examining magistrate with unnecessary questions, given that it is already taking more time than anticipated.
Minutes taken by the RMA/NLR (marginal nos. 187-191)
Pulatov has also asked to add certain documents to the case file.
In the first place, these include any ‘minutes, records and/or notes’ relating to a meeting between the NLR and the RMA, which is referred to in the NLR report about the calculation of the launch area (marginal nos. 180-184). The Public Prosecution Service is unaware of the existence of any such documents. In response to the request made by the defence at the June hearing, the Public Prosecution Service has already provided it with various documents from the NLR and the RMA for inspection. After this, the defence repeatedly requested and received access to other documents. It is unclear why this request to add certain documents to the case file is being made now, at this hearing, and why the defence did not ask the Public Prosecution Service to view these documents earlier.
The defence would like to review any ‘minutes, records and/or notes’ of this meeting between the NLR and the RMA ‘[i]n order to assess whether the experts might indeed have influenced each other’s investigations’ (marginal no. 187). This is speculative, to put it mildly. The sources cited by the defence in the NLR report mention that a ‘meeting’ took place with the RMA about the results of the arena test. There is nothing odd about this, given that the RMA and the NLR were both involved in conducting the arena tests in Ukraine. The RMA processed and registered the data obtained in those tests and then passed it on to the NLR for the latter’s investigation. That, too, was duly noted in the NLR report, which has been available to the defence for around nine months, together with the source of that processed data. We also referred to this in our explanation in June.
Two parties discussing an arena test which they jointly conducted is something different from influencing each other’s follow-up investigations on the basis of the results of that test. The various reports clearly show that the follow-up investigations by the NLR and the RMA were conducted independently of each other. The different launch areas calculated by the two institutions illustrate that.
With that in mind, we see no reason to enquire as to the existence of minutes, records or notes of that meeting. On the basis of the documents in the case file and the draft versions that have been provided for inspection, the defence already has ample opportunity to review the material and verify how the NLR report was produced. If the defence has any relevant questions about this, it can put them to the experts from the NLR and the RMA. The court has already allowed them to be examined.
There is therefore no need to instruct the examining magistrate to look into whether such documents exist, as the defence is requesting.
Primo-07628 (marginal nos. 192-197)
Secondly, the defence has asked to add a document to the case file with Primo number 07628 (marginal nos. 185-190). Reference is made to this document in Primo-12277, as the source of the conclusion that both types of Buk missile, the 9M38 and the 9M38M1, can carry a 9N314M warhead. In late August the defence also requested permission to inspect this document. As w e have already informed the defence in writing, this concerned a typographical error. This error was not only noted in the correspondence; it was also corrected in the general account. This official report (Primo-12277) should have referred to Primo-07626, not 07628. In the former document the Australian Federal Police reports on the dismantling of two Ukrainian Buk missiles, type 9M38M1 and type 9M38. Type 9N314M warheads were found on both missiles. The defence is well aware of this report: indeed, in its request to examine an Australian reporting officer, there is a direct reference to it (marginal nos. 109-118).
The expert Koeberg
All things considered, there is nothing in what the defence has adduced that clearly demonstrates a need for additional forensic investigation. However, this court is the only authority that can decide on that on its merits, because, as the necessity criterion dictates, the responsibility borne by the court for ensuring a comprehensive process to establish the truth is paramount. For the sake of completeness, we would note that if the court feels that it is reasonable to examine an NFI expert about the more general matters raised by the defence or about questions that the court itself may have about the NFI investigation as a whole, we believe (alternatively) that the most obvious course of action would be to examine the witness Koeberg. He has been involved in the investigation from the very start and is the author of the overarching IDFO reports, which discuss most aspects of the NFI investigation in relation to one another.
In conclusion, it is worth emphasising that this court’s decision of 3 July has already given Pulatov a great deal of scope to dispute the forensic findings of the investigation with his own counter-investigation. The court’s accommodating attitude in the past towards requests by the defence for further investigation is relevant to the question of whether other requests in the same area should now also be honoured: it is more difficult to argue the necessity of examining experts that have already submitted reports if the defendant has already been given the opportunity to review their findings and dispute them with his own expert investigation.
Witnesses to the launch site (part 4 of 5)
Pulatov wishes to examine a large number of witnesses about whether the Buk missile was launched from the vicinity of Pervomaiskyi (memorandum of oral pleading, part 4 of 5, marginal nos. 1-124, 187-221 and 471-532). Some of them have previously given statements about their observation of the Buk TELAR in eastern Ukraine (in particular); others have not yet made any statements in this investigation. For a number of individuals, we have no identifying information or contact details. In addition, Pulatov has requested historic telephone data (i.e. mobile phone mast data) for dozens of people in order to – as we understand it – ‘investigate their reliability’ (marginal nos. 149-156).
When assessing these requests, there are a number of circumstances that must be taken into account. First of all, the purpose of examining a witness, whether an ordinary member of the public or an expert, is to gather information. This is why it is necessary to indicate, for every witness, what they will be asked and why that is of interest or necessary. A relevant issue in this regard is whether the case file already contains an incriminating statement by the requested witness. The assessment of requests that are intended to further probe an incriminating statement that has already been made is, after all, a different matter than the assessment of requests for witnesses that are intended to obtain new, exculpatory evidence. The fact that, for some witnesses, Pulatov has failed to clarify if he is requesting an examination to assess incriminating evidence or to find exculpatory evidence does not make his requests any stronger.
In the case of witness requests that aim to further probe incriminating evidence, a number of issues must be considered. These include: whether the subject about which the witness will be questioned is actually under dispute; how much evidence there is about that subject in the case file as a whole and whether that subject is sufficiently relevant to a decision to be taken by the court. Or, to put it in simpler terms, whether it ‘really matters’. A relevant difference in this regard is whether a witness can provide information only about the offence in question, or if they have something incriminating to say about the defendant in particular. In the latter case, a further examination of that witness may be necessary, with a view to ensuring a fair trial; in the former, it is hard to conceive of a scenario where that individual could be considered the ‘sole and decisive witness’ in the defendant’s case.
The mere fact that a defendant disagrees with an incriminating witness statement in the case file does not constitute sufficient grounds for ordering a further examination of that witness. Rotterdam district court has previously explained this as follows:
‘The defence can and may be expected to indicate the specific elements of an (incriminating) statement with which it disagrees, or why the sources of their knowledge must be investigated, and to spell out these things in concrete language (at least to some extent). Otherwise, it is impossible to determine whether, why and in what regard a particular person’s statement should be assessed. Such an examination would then become a fishing expedition, with the witness being asked to reiterate their story, in the hope that certain details might come out differently, so that afterwards their reliability could on that basis be challenged or called into question. However, this is not the proper order in which things should be done.’
In other words, a supplemental witness examination must be more than mere repetition: it must serve to clarify something. The clearer a statement or official report is, the more concrete the grounds provided must be.
In cases with a large variety of possible types of evidence and many requests for further investigation, the court must take a critical look at which pieces of evidence are expected to be crucial to making the decisions that will inform its eventual judgment and which are not. After all, the court is responsible (in part) for ensuring not only a fair trial but also an expeditious one. The importance of an expeditious trial should be factored into any decision the court makes on requests for witness examinations. This means that such requests are not granted if they would cause serious delays to the proceedings but are not necessary to ensure that the defendant receives a fair trial – for example, because the defendant has already had enough other opportunities to dispute the charges. After all, in assessing requests to examine witnesses the court should look not only at the grounds for each individual request, but also at the extent to which its decisions on all requests for investigation could influence the fairness and swiftness of the trial as a whole.
If we use this assessment framework to examine the requests for investigation that relate to the launch site of the missile that shot down MH17, we are struck by a number of elements. Firstly, there is the fact that, back in June, the court granted other requests for investigation that deal much more directly with the evidence concerning the launch site than the ones Pulatov has now formulated. At that time the court decided that the witnesses M58 and X48, both of whom gave statements containing their observations about the launch site, could be examined further. The court also allowed further expert investigation into the calculation of the launch site.
Secondly, it is striking that Pulatov offers little or no explanation as to what information he is seeking to obtain from the requested examinations that could influence the court’s judgment about the launch site. If we understand the defence’s reasoning correctly, the idea is that everything relates to everything else, and that disputing every element of every statement by a witness who has seen a Buk TELAR ultimately relates back to the launch site. Plainly, this is not the case.
In June we explained that the investigation into the route taken by the Buk TELAR in question was important, in various ways, to the investigation as a whole. At the time, we also explained that the defendant is not a chartered accountant, whose job is to audit the entire investigation in general terms. A defendant must focus his attention on the charges against him and the evidence in his own case that relates to those charges. Given all the witness requests made in regard to the launch site, it would seem that the defence has lost sight of that distinction.
The defence’s general introduction to these witness requests (marginal nos. 9-46) contains only general statements that cannot be applied in any meaningful way to entire groups of witnesses. For example, there are questions about witnesses’ knowledge of military equipment, about whether they familiarised themselves with the investigation for the purpose of their statement, about how they became involved in the investigation, and about whether they were involved in the armed conflict. These questions may indeed be relevant to the assessment of witness statements, but that is precisely why, in most statements, they have already been answered, or taken into account by the examining magistrate when assessing the reliability of threatened anonymous witnesses. When assembling the case file, attention was paid to the need to make available any information that could be of importance to assessing the witness statements, even when certain information had to be protected due to serious security risks. Consequently, available information about, for example, a particular individual’s involvement in one of the parties to the conflict, their detention in Ukraine, or their military background has, to the greatest possible extent, already been included in the case file. If there are still unanswered questions on those points, this can be indicated for each witness individually. The generic manner in which Pulatov presents these topics as a laundry list of grounds for every witness is not acceptable.
If we consider the grounds offered by the defence on a witness-by-witness basis, we find them to be almost universally inadequate. We therefore conclude that all requested examinations that we discuss below should be denied. We will explain why.
Assessing requests to examine witnesses
We will begin by briefly considering the requests to examine two co-defendants and members of the 53rd Brigade. This will be followed by a broad category of witness requests. At the conclusion of this part we will discuss the request for mobile phone mast data, for the purpose of assessing the reliability of 38 individuals.
Kharchenko, Dubinskiy and members of the 53rd Brigade
We will wait until tomorrow to address the subject of Pulatov’s requests to question his co-defendants Kharchenko (memorandum of oral pleading, part 4 of 5, marginal nos. 52-58) and Dubinskiy (marginal nos. 182-183) and the members of the 53rd Brigade (marginal nos. 213-217). The defence is also seeking to examine these individuals about Pulatov’s participation in the downing of MH17, as specified in the charges. Questioning these witnesses about the evidence for Pulatov’s participation would seem more a more relevant avenue than questioning them about evidence concerning the launch site. This is why we will address these requests in our discussion of the former topic.
Some of the individuals Pulatov wishes to examine as ‘eyewitnesses’ (title of sections 2.2.2 and 2.4.3) about the evidence relating to the launch site have not stated that they were present there themselves. Another group of these ‘eyewitnesses’ has not previously been examined, and the defence has not asserted or made a plausible case that they were present. None of these witnesses has made incriminating statements about Pulatov. The section ‘eyewitnesses’ (2.2.2) also refers to individuals whom the defence wishes to call in order to probe the reliability of other witnesses, whereas the section ‘other witnesses’ (2.2.6) contains various people who would fit just as well into the category ‘eyewitnesses’.
In order to ensure a more coherent assessment of these requests, we will collectively discuss all the people referred to by Pulatov as eyewitnesses (or who can be designated as such). In doing so we will made a broad distinction between: witnesses to the route taken by the Buk convoy (220.127.116.11, route witnesses), witnesses who saw a missile (18.104.22.168, missile witnesses) and Pulatov’s fellow fighters who were present along the route or at the launch site, or witnesses who can testify to utterances made by these fellow fighters (22.214.171.124, fellow fighters).
The route witnesses S21 (marginal nos. 47-51), S07 (marginal nos. 63-65) and S27 (marginal nos. 112-118) were discussed during the hearings back in March and June. None of these witnesses were present at the launch site or made any statement about the launch site or Pulatov’s role, as the court noted in July when it rejected the Public Prosecution Service’s request to examine them further.
Witness S21 was involved in the return journey of the Buk TELAR and only joined the convoy at Snizhne, not at the launch site. S21 stated that S07 was also present when the Buk TELAR was removed after the downing of flight MH17. S07 did not acknowledge this when interviewed. S27 saw the Buk TELAR in Donetsk, but has no personal knowledge about the launch site to which the Buk TELAR was then taken. Therefore the examination of these three witnesses cannot shed any direct light on the location from which the missile was fired.
These are all examples of witnesses that the defence could have called before.
At the hearing in March the defence asked the court to be allowed to postpone its response to the prosecution’s request to examine these witnesses till June, and this postponement was granted. The argument adduced by the defence to obtain that postponement was that it needed more time to familiarise itself with the case file in order to take a position on the prosecution’s requests. Despite this, the defence stated in June that these witnesses’ statements dealt with ‘issues that the defence had not yet got around to’.
From the moment the first batch of evidence was handed over, the defence has had in its possession these witnesses’ statements and the files in which they are summarised. Starting in early March the defence was notified about these specific witnesses, and in response to the defence’s request, the court granted it three months in which to study what the case file had to say about these witnesses in particular. Since then, the defence has had the opportunity to formulate its requests for further investigation in regard to these witnesses, at the hearings in June, August and September. In light of this state of affairs, we can only conclude that the defence had plenty of time and opportunity to formulate its requests for further investigation vis-à-vis these witnesses at an earlier date. Therefore, these requests for investigation must plainly be assessed on the basis of the necessity criterion.
At this stage of the investigation, it is not necessary to examine these witnesses, especially given the reasoning offered by the defence, which places these requests in the context of evidence relating to the launch site. That said, the Public Prosecution Service does agree with the defence that the cited portion of the first examination of S21 is not clear in every respect. But this is why S21 was examined on two additional occasions by the JIT. These two follow-up examinations dealt in depth with the questions mentioned by the defence in light of the first examination. The defence does not mention these follow-up examinations in its explanation, even though they are obviously relevant to whether or not a further examination of S21 is necessary.
It is reasonable to ask why, in March, the Public Prosecution Service was in favour of subjecting these three witnesses to additional questioning, but now concludes, in response to Pulatov’s requests, that they no longer need to be examined. This has to do, on the one hand, with the different roles and rights of the Public Prosecution Service and defendants and, on the other, with the amount of time that has passed since March. To begin with the first of these: the Public Prosecution Service has a prosecutorial interest in pursuing additional incriminating evidence if this could not be done adequately during the criminal investigation. In March we requested the examination of these witnesses because we thought that further questioning might yield additional incriminating evidence. While a defendant does havethe right to seek out exculpatory evidence and dispute incriminating evidence in the case file, he does not have the right to first go off in search of even more incriminating evidence than is already in the case file and then dispute it afterwards. In that way, requests by the Public Prosecution Service and the defendant to further examine the same witness serve different aims, focus on different kinds of evidence and must therefore be assessed on the basis of different criteria. The second reason is the amount of time that has passed. If these witnesses had been allowed in March, as requested by the Public Prosecution Service, they could have been examined by now. As we pointed out in March, conducting the witness examinations allowed by the court in this case would, in many instances, take a considerable amount of time, given the legal assistance required from other countries and the security risks facing the witnesses. We can also see this in the progress of the examining magistrate’s investigation: the examination of the witnesses M58 and X48, which was allowed in early July, has now – in November – been prepared, but not yet carried out. For that reason as well, a request submitted now, in November, is very different from one submitted in March. Over time, the balance between ‘a complete investigation’ and ‘an expeditious investigation’ must gradually shift. Otherwise this trial will never come to an end.
In addition to S21 and S27, Pulatov would like to examine a large number of other witnesses who have previously made statements about the Buk convoy (marginal nos. 95-124 and 187-190). Here, too, we are talking about individuals whose statements contain no information about the launch site or Pulatov’s involvement.
In various cases, Pulatov believes that he can turn these incriminating statements into exculpatory statements if he challenges the credibility of certain parts of them (see, for example, marginal no. 114). This applies, for example, to the requests to examine S02 (marginal no. 96) and witness Y. (marginal no. 187), because they stated in 2015 that they had seen the Buk on another day or at another time of day. Even if we shared Pulatov’s view that this discrepancy is not the result of an understandable mistake but rather the genuine observation of a Buk convoy at another time, this does not alter the other evidence that supports the scenario that the Buk was transported on 17 July 2014. A short time before, Pulatov specifically argued that a convoy transporting a Buk is not as remarkable as it might initially appear, in wartime. On the basis of his own reasoning alone, we must conclude that such witness examinations cannot yield the exculpatory evidence that Pulatov is apparently hoping for.
To justify the examination of S05 (marginal nos. 99-103), Pulatov focuses on details. He points to the differing accounts given by the witness as to the number of missiles loaded onto the Buk TELAR (marginal nos. 99-100). The fact that the witness alternately mentioned two and four missiles is already clear, however, and can be taken into account in the assessment of the statement. The defence correctly points out a lack of clarity in the file (marginal no. 102): the map(s) on which S05 indicated his position should have been added to the Witness File. This was due to an error. But the documents in question proved to be present in filing cabinet 2 of the examining magistrate, meaning that Pulatov has also had access to them for some time. It is unclear to us what new and relevant information Pulatov is seeking to uncover by examining this witness. We therefore see neither an interest in nor a need for the requested examination.
Pulatov is seeking to examine other witnesses about aspects of their statements which have been left out of the case file for security reasons. For example, he wishes to examine S01 about the route taken by the Buk TELAR as he drew it (marginal nos. 89-94), S37 (marginal no. 107) about the time at which he saw the Buk convoy, S40 (marginal no. 109-110) and S08 (marginal no. 111) about where, when and in what capacity they saw a Buk, S06 (marginal nos. 104-106) and S39 (marginal no. 108) about the identity of the individuals from whom they heard about the Buk TELAR, and S04 about that same subject and about the sound of an explosion (marginal nos. 98 and 498-499). To protect the safety of these witnesses and their sources, it has repeatedly been necessary to redact this information. These decisions were given the prior approval of the examining magistrate. There is no reason to have these witnesses reiterate information they discussed in their previous statements, but which had to be left out of the case file for security reasons.
Moreover, Pulatov groups together 14 witnesses (S15, S16, S18, S20, S27, V7, V9, V22, V43, V45, V49, V51, V52 and V54) and asks that they be examined in order to assess their reliability (marginal nos. 112-118).
As we already discussed at the hearing in June, the examining magistrate found the statements of two of these witnesses unreliable: V49 and V54. For that reason, we have no intention of using them as evidence, and there is no interest in a new examination. Given our earlier explanation in June about the examining magistrate’s assessment of their reliability, we do not understand why Pulatov would request permission to question these witnesses more than four months later. Nor do we understand why the defence has complained that ‘nothing was done’ in the case file with the police’s determination that V49’s statement deviated from other information (marginal no. 116). The police duly drew up a report of the factual findings of the investigation and pointed out any inconsistencies they observed. This fact-driven and transparent working method is, in our view, the only correct one. The question of what such inconsistencies imply for the evidence is a matter for the court. It is not for the police to speculate in that regard.
The statements of the other witnesses questioned by the examining magistrate were, by contrast, found to be reliable. This is the case for V7, V9, V22, V43, V45, V51 and V52. The examining magistrate based this critical assessment on thorough investigation, relying on objective sources such as telecom data, both inside and outside the case file. The grounds offered for the requests do not mention the examining magistrate’s investigation and do not explain how the proposed examination could serve to further assess these witnesses’ reliability. For this reason, these requests lack sufficient grounds to establish that Pulatov has an interest in conducting these examinations, let alone that they are necessary.
The requests to examine the five remaining witnesses who were interviewed by the police (S15, S16, S18, S20 and S27) lack sufficient grounds. After the opening words of this section (marginal no. 112), witness S20 is not even mentioned by Pulatov. The defence suggests that there are inconsistencies in the time and details of the observations of the following witnesses: S15 (marginal no. 118), S16 (marginal no. 115), S18 (marginal no. 117) and S27 (marginal nos. 115 and 116). It does not explain what further information the witnesses could provide on these matters. Most of the questions Pulatov wishes to ask relate to issues that are not (or cannot be) included in the case file for security reasons (see, for example, marginal no. 118). Furthermore, these witnesses’ statements contained nothing about the launch site or Pulatov’s involvement. These examinations cannot be characterised as necessary.
Finally, Pulatov asked to examine three journalists from the Associated Press (marginal nos. 119-124). The defence wishes to question them about their news reports about tanks and the Buk in Snizhne. The fact that Pulatov was also involved with tanks on 17 July is not a matter of debate and requires no further substantiation. We will return to this in our discussion of the requests that deal with his participation. These journalists are in no position to comment about intercepted telephone conversations which Pulatov claims are about tanks rather than a Buk. Pulatov therefore does not have an interest in asking questions about these topics (marginal no. 121). The only remaining reason underlying such a request is to probe the general evidential value of their article (marginal no. 120). Given that Pulatov mentions no specific questions that he might want to ask, his request is insufficiently substantiated on this point. Furthermore, this article contains no information about Pulatov and as far as the Public Prosecution Service is concerned, this public document would not be an obvious choice as a source of evidence for a particular launch site. He therefore does not have an interest in the requested witness examinations.
In addition to posing questions about the route taken by the Buk TELAR, Pulatov also requested the examination of witnesses who could make statements of one sort or another about the launch of the missile. Here, he moves slightly closer to the evidence concerning the launch site.
According to the reasoning provided, the requested examination of S01 (marginal nos. 89-94 and 473-475), S40 (marginal no. 472) and S36 (marginal nos. 491-494) is aimed at obtaining information which was already provided by those witnesses in previous examinations but which the examining magistrate ordered be kept out of the case file due to security risks to these witnesses. As we have already explained, no request for examinations of this kind can be granted. This would not only pose a risk to the witnesses; if the information in question cannot be included in the case file, it would also be pointless, and even if the previously provided information can be included, it would be superfluous. A witness does not have to be examined a second time to talk about matters that are already discussed in documents which are currently under lock and key in a Dutch safe.
Witness S19 (marginal no. 500) has been examined more than once about his observation of a missile trail coming from Snizhne on the afternoon of 17 July 2014. As the defence rightly notes, the individuals conducting the examination failed to ask follow-up questions that would have elicited a description of the missile trail. On the other hand, the witness also explained that he had a military background and had previously seen multiple missile launches. This witness did state that the launch of the missile took place south of Snizhne, but offered less specific information about the launch site than, for example the photo of the smoke trail and the statements by M58 and X48. His statement is not crucial to any part of the evidence, and for this reason a further examination cannot be characterised as necessary.
The witness S11 (marginal no. 501) called the JIT’s witness line and was only examined by telephone. He stated that in July 2014 he was a separatist fighter and that from Donetsk, at a distance of 70 kilometres, he saw how ‘the plane’ was first shot at from the ground and later by an aircraft. At that distance this witness was unable to say anything about a specific launch site. For that reason alone, the request should be denied, for lack of an interest. Moreover, we find it odd that in June, Pulatov asked to examine witness S11 about a fighter aircraft, in connection with the ‘war plane scenario’, and that he is now putting this same individual forward as someone who saw the trail of a Buk. This request could have been submitted back in June. Our assessment of the request to examine S11 is therefore no different from what it was in June.
The defence wishes to examine witness S37 (marginal no. 502) about their observation of white smoke on the afternoon of 17 July 2014. However, this observation on the part of S37 is so vague that an examination by the defence about where and when it took place is not necessary at this stage of the investigation.
Pulatov has asked to examine witnesses V44, V45, V47, V49, V51 and V54 about their observation of a missile or missile trail (marginal nos. 503-512). He also also asked to examine four of these six witnesses about their observation of a Buk system.
As we already pointed out when discussing those requests, the examining magistrate deemed the statements by V49 and V54 to be unreliable. Here, too, the defence does not have an interest in examining them about this issue. Their statements are not eligible to be used as evidence.
By contrast, the examining magistrate did find the statements given by the other four witnesses, V44, V45, V47 and V51, to be reliable. Extensive grounds were provided for this conclusion in the official report of that reliability investigation. We are unclear about what additional reliability investigation Pulatov is seeking to conduct (marginal no. 510). All the issues that he deems relevant to the witnesses’ reliability – their ‘background, position, role in the conflict and/or specialist knowledge’, the time that their observations were made, the sound of the missile and the colour of the smoke trail – have already been investigated in detail by the examining magistrate and assessed on the basis of information inside and outside the case file. Pulatov is free to disagree with the outcome of that investigation, but he may at least be expected to explain what he aims to add to this investigation. He has offered no such explanation. The examining magistrate’s assessment of these witnesses’ reliability is not mentioned, and moreover, the witnesses have already given statements about the subjects in question. These requests thus lack sufficient substantiation.
Finally, Pulatov wishes to examine Van der Werff (marginal nos. 513-515). Previously, this witness stated that he had spoken to dozens of people in Pervomaiskyi and that they had not seen anything relevant to MH17 there. Van der Werff specifically asked them about a plume of smoke, and nobody said that they had seen any smoke trail. Van der Werff also stated that he did not make any record of these ‘negative witnesses’, i.e. those individuals who had not seen anything relevant. Given his statement, this would seem to apply to all the people he spoke to in Pervomaiskyi. Therefore, we do not see how an examination about the identity and contact information of the people he interviewed (marginal nos. 515) would be in the interest of the defence, let alone why it would be necessary.
Pulatov has requested the examination of various witnesses who were involved in one way or another in the armed conflict and who are alleged to have knowledge of the Buk convoy. None of these witnesses has made any previous statement about the launch location or Pulatov's involvement. It is unclear what kind of exculpatory testimony they may be able to offer with regard to the launch location or Pulatov's involvement. For this reason alone he does not have an interest in their examination.
When it comes to Gilazov (Ryazan), Sharpov (Zmey) and Zaibert (Dikson) (marginal nos. 59-62), the case file states that, according to various reports, they are deceased. Some of these reports have been added to and described in the case file, while others can easily be found in public sources. Pulatov would like these individuals to be examined ‘if they are not dead’, but he provides no information to suggest that they are still alive. It is therefore not likely that any of these individuals can be examined within an acceptable time frame.
Next we come to the request to examine Yefimov (marginal no. 81) and S24 (marginal nos. 78-79). These requests stem from an incorrect reading of the case file. Contrary to the defence's contention, S24 did not state that part of the group accompanying the Buk ‘was under his (Yefimov's) [sic] command’. Witness S24 stated that Yefimov recruited and mobilised former officers in the Russian Federation to fight as volunteers on the side of the DPR and LPR. According to S24, a part of that group later accompanied the Buk. Interviews about recruitment and mobilisation in Russia have no bearing on the evidence concerning the launch location or Pulatov's involvement. As a consequence the defence does not have an interest in examining these witnesses, and certainly not in adding the underlying protected statement by S24 to the case file (marginal no. 80).
Chernyk and Vlokh (marginal nos. 82-85) were not questioned previously and thus made no incriminating statements about the launch location or Pulatov’s involvement. On the basis of intercepted telephone conversations and other telecom data, they emerged as individuals who were involved at various points in the transportation of the Buk. The case file contains no indications that they were present at the launch location or had any contact with Pulatov. Similarly, there is no interest in confronting Chernyk and Vlokh with the ‘dates and intercepts corresponding to telephone numbers registered to them’ (marginal no. 84). Pulatov does not dispute the authenticity of the telecom data, and the identity of the users of these numbers is not relevant to the evidence in his case. It remains unclear what Chernyk and Vlokh could now be expected to say in a statement, let alone whether they would have anything to offer regarding the launch location or whether they could provide exculpatory evidence.
With respect to Protsenko (marginal nos. 86-88) we can be brief: according to Pulatov’s explanation, he was not involved in the Buk convoy or the launch location. The fact that the Buk might have passed by him on 17 July at an unknown location does not mean he can be expected to provide relevant information about the launch location.
Pulatov has also requested the examination of DPR fighters Godovanets and Sinenkov (marginal nos. 210-205) and the individual with call sign Umka (marginal no. 480). According to the defence they could have made relevant observations, given their position. It has indeed been stated that Umka was stationed at a checkpoint in Pervomaiskyi, but whether he was actually there on the afternoon of 17 July 2014 is an open question. Even in a war zone, people do not spend 24 hours a day at their place of work. The case file contains no statement by Umka to dispute. It is not known whether he was at his checkpoint or was perhaps asleep elsewhere on the afternoon of 17 July. And there is no concrete reason to suppose that he would provide exculpatory evidence if he were to be examined. Precisely the same applies to the requested witnesses Godovanets and Sinenkov, who are being put forward solely on the basis of the positions they held. There is nothing in the case file to show that these witnesses were in the right place at the right time to observe anything of relevance. Nor has the defence submitted anything concrete in this regard. For this reason, Pulatov does not have an interest in examining these individuals regarding the evidence pointing to the launch location.
These witnesses fall into the category of ‘door-to-door enquiries’, whereby police ask members of the public whether they happened to see something. At this stage of proceedings, such investigation is no longer of any value. The JIT did everything possible to trace potential witnesses, including issuing various appeals for witnesses, broadcasting local radio spots and sending text messages to phones that were transmitting to mobile phone masts at relevant locations. Where those efforts produced relevant witness statements, these are included in the case file.
There are specific indications that DPR fighter Tsemakh had knowledge concerning the downing of flight MH17. By his own account, he was involved in air-defence operations in Snizhne. According to witness S31, Tsemakh told him that he (Tsemakh) had sheltered a member of the Buk’s crew after the downing of the aircraft. Witness S30 stated in turn what S31 had told him about Tsemakh. Pulatov wishes to ask Tsemakh whether he saw a Buk pass by, and to confront Tsemakh, S30 and S31 with each other’s statements (marginal nos. 206-209). The JIT previously interviewed Tsemakh extensively. During this questioning, he answered the question raised by the defence unequivocally: Tsemakh stated consistently that during the conflict he had never seen a Buk in Snizhne or eastern Ukraine. This emphatic denial from Tsemakh can thus be weighed when the evidence is assessed. In addition, examining these witnesses about each other’s statements would offer no certainty as to what Tsemakh did or did not see on 17 July 2014. Given the large amount of stronger, more direct evidence, this is a matter of minor importance in the criminal proceedings as a whole. It therefore cannot be said that these three witness examinations are necessary for ensuring a fair trial or properly establishing the truth.
It can also be assumed that Pulatov’s co-defendant Dubinskiy had knowledge of the launch location. The witness T. gave a statement about a conversation he had with Dubinskiy in September 2014 about the release of prisoners of war. In that conversation Dubinskiy told him that he (Dubinskiy) was responsible for transporting and guarding the Buk in the province of Donetsk, but that he was not responsible for firing the missile. Pulatov wishes to ask T. whether he can still remember details of this conversation, whether he knows if Dubinskiy told others the same thing, and whether the witness told anyone else this at the time (marginal nos. 204-205). As with Tsemakh, the answers to these questions are already in the case file. The witness has already been interviewed extensively about the circumstances and details of this conversation. It is unclear what additional questions the defence would like to put to him. Asking whether the witness and Dubinskiy spoke to others about this at the time is apparently intended to assess the reliability of this witness statement by means of fresh interviews with these individuals. To us this seems like a rather convoluted way of assessing the statement's reliability – not least because the case file already contains ample information in this regard. In the same period that the witness says this conversation took place, Dubinskiy’s telephone was being wiretapped. Intercepted conversations confirm the interpretation of the witness that he negotiated with Dubinskiy about the release of prisoners of war. In one of those conversations, on 27 September 2014, the witness speaks with Dubinskiy about ‘the Boeing’, or flight MH17. In the preceding months the Ukrainian authorities had already published various intercepts of Dubinskiy speaking about the Buk TELAR. In response to the witness’s remark that he had been linked to the Boeing, Dubinskiy himself says the following:
‘When the toy was being moved around, got it. I mean the one, which was moved across the Republic's area. Yes. It really features my voice. But it does not mean that someone was shooting down.’
Given the abundant information available in the case file regarding the contact between witness T. and Dubinskiy, we see no defence interest in questioning this witness further.
If Pulatov should wish to know more about this conversation – for instance, if he wishes to pose the obvious question of what Dubinskiy meant by ‘toy’ – the logical approach would be to question Dubinskiy himself about this. As previously noted, tomorrow we will turn to the other questions he wishes to put to Dubinskiy.
Pulatov also requests the examination of a number of co-combatants, who apparently are meant to testify about what they did not hear concerning the launch of a Buk missile when they were in Pulatov's vicinity on the afternoon of 17 July 2014. According to his counsel's submission, Pulatov knows these individuals only by their call signs: Shmel, Pyl, Piton, Kharzis, Basmach, Zloy, Lesnik, Topaz, Brodyaga and Dobriy (marginal no. 479).
When the court asked whether Pulatov could provide more information about his comrades from that time, the defence was unable to answer. Nor was the defence able to state whether this had been discussed previously with him. To enable easier searching of the investigation file for information about these individuals, we asked the defence last week, outside the hearing, whether it was at least known whether these individuals were male or female. Counsel asserted that it should be possible to put this question to their client without delay. Yesterday we received an extensive letter from the defence, but this question could apparently not be answered.
It is striking that Pulatov did not mention the presence of these individuals in the video statement he made. It is also strange that Pulatov, by his own account, was in a car that had just begun moving when he heard the sound of the Strela, and yet now he asks for 10 individuals to be heard as witnesses who ‘were with him at that moment’ (marginal no. 478). Whether or not they were inside the car with him is not explained.
Whatever the case may be, this request is based on an inaccurate presentation of the situation on the ground. According to Pulatov’s video statement, on the afternoon of 17 July at 16.20 he heard a Strela-10 surface-to-air missile fired at a distance of around 300m away from him. He stated that the Strela’s location was two kilometres to the northwest of Marinovka. The defence contends, without providing any substantiation or referencing any sources, that Pulatov stated that the location of the car containing Pulatov and his 10 comrades was around 3km from the launch location indicated in the case file (marginal no. 477). This is factually inaccurate. Pulatov does not say this in the two videos provided, nor can it be inferred from what he has stated. The distance between the launch location and the closest edge of the village Marinovka is more than 8.5km, according to various sources.
You can see that in this image:
This means that on the afternoon of 17 July Pulatov’s group could not have been simultaneously around 2.3km from Marinovka and around 3km from the launch location.
In addition to the uncertainty about the distance to the launch location, Pulatov’s statement also raises questions about what the witnesses he has requested could in fact have heard. Pulatov’s statement is that he was in a car in the conflict zone which had just begun moving, a few hundred metres from where a missile was launched. As Pulatov himself emphasised elsewhere in his explanation (see marginal no. 273), there was heavy fighting in the area on 17 July. In such circumstances it would be much harder to hear things happening several kilometres away than, say, if you were enjoying a solitary stroll on the beach at Schiermonnikoog Oost. It seems far from self-evident to us that in the circumstances described by Pulatov, someone should be able to hear that another missile has been launched at precisely the same time many kilometres away. Even if we accept the accuracy of Pulatov’s statement, which still leaves many questions unanswered, we thus cannot conclude that questioning the individuals concerned would produce relevant information.
What is more, there is no feasible way of fulfilling this request. Pulatov himself is apparently unable to provide any leads that would help facilitate the examination of these individuals. Pulatov’s comrades are not sitting around together in the Watermolen holiday park in Wijlre. A mere call sign offers insufficient scope for submitting a request for information to the authorities in other countries. It is true that some of these call signs did come up in the investigation, but to date, none of the individuals behind them has been identified by the investigation team.
Thus, there are no grounds for assuming that anything said by the unnamed individuals in Pulatov’s video statement about what they did not hear on 17 July 2014 is relevant, and moreover the requests cannot feasibly carried be out.
Pulatov has also requested the examination of fellow DPR fighter Kupriyan (marginal nos. 191-198). He wishes to question him about his statement that on 17 July 2014 he was sent to the crash site to remove ‘malfunctioned equipment’ and transport it to another location. According to Kupriyan, he was to do this in order ‘to avoid the international conflict and to avoid the damage of the reputation of Russia’. He claimed that the individuals with call signs Dar and Indeets were also involved. Kupriyan said nothing about the launch location or Pulatov’s involvement. Pulatov contends that it is unclear whether Kupriyan’s statement ‘could be incriminating or exculpatory’. He wants to question Kupriyan, Dar and Indeets about this, and about how the activities described were organised and carried out (marginal nos. 196-198). It is not clear how this can contribute to the court’s assessment of the evidence concerning the launch location. Without clarification Pulatov cannot be said to have an interest in examining witnesses about the evidential value of a statement concerning the launch location when neither the launch location nor his presence at that location are mentioned in that statement.
The Volvo truck and the Ukrainian Buk ‘312’
What is now clear is that Kupriyan was involved, on 8 July 2014, in the confiscation of a Volvo truck which was used to transport the Buk TELAR. Abundant evidence for this has been included in the case file. Pulatov wishes to question Kupriyan about this, too. The only specific subject mentioned in this regard is whether ‘the truck was ever previously rented out to others, including the Ukrainian army’ (marginal nos. 191-195). Pulatov wishes to pose the same question to the owner of the truck firm and one of its employees. We do not see the relevance of this question. Whatever may have happened to the Volvo truck prior to 8 July 2014 has no bearing on the evidence pointing to the use of that truck on 17 and 18 July 2014. The statements of these witnesses also reveal no knowledge of what happened to the Volvo truck in the latter two days, or what involvement Pulatov may have had.
For this reason, Pulatov does not have an interest in their examination, and these requests should be denied.
These three witness requests are also linked to Pulatov’s request to examine a Ukrainian soldier/ex-soldier (marginal nos. 195 and 199-203). The request concerns an anonymous individual who spoke in an interview about a Ukrainian Buk with the number ‘312’. Pulatov wants to hear from this witness that in 2014 the Ukrainian army possessed a Buk TELAR with the number ‘312’, which was transported on several occasions using a ‘lowboy’ (low-loader). This would apparently make it very likely that the images in the prosecution file are in fact images of the Ukrainian Buk ‘312’.
This seems a rather roundabout approach, and in this regard we can spare the defence a great deal of work. Information about a Ukrainian Buk with the number 312 has been circulating on the internet for years, and has been thoroughly examined by the investigation team. In 2014 Ukraine did indeed have a Buk with the number 312, and this Buk was indeed sometimes transported on a ‘lowboy’. Public sources about this vehicle, including photos of the Ukrainian Buk ‘312’, are included in the case file. As we explained back in June, the investigation team compared the images of the TELAR ‘3X2’ on 17 and 18 July in eastern Ukraine with the thousands of images of TELARs in Ukraine and the Russian Federation. The TELAR ‘3X2’ was thus compared with various images of the Ukrainian army’s Buk TELAR ‘312’. These are two different TELARs. The truck and low-loader on which the Ukrainian Buk ‘312’ was photographed and filmed at different times in 2014 also differ from the truck and low-loader seen in the visual material of 17 July 2014. This can be established with a simple internet search. This is the Ukrainian Buk ‘312’ on a low-loader in video footage thought to have been recorded in March 2014.
And this is the same Ukrainian Buk ‘312’, next to an image of the Buk ‘3X2’ on 17 July 2014:
As you can see, it is a different truck and a different low-loader.
When comparing various images of the Ukrainian Buk ‘312’ with the images of 17 July 2014, the investigation team observed differences, for example, in the markings on the middle section, the vehicle number, the rubber side skirt and the bracket on the upper section.
In the case file the final conclusion of the comparison of all those thousands of TELAR images is set down in an official report. This was not separately set out in writing in the case of the Ukrainian TELAR ‘312’ because there was no indication whatsoever that this Buk was in Pervomaiskiy on 17 July 2014, or that it had shot down flight MH17. So in the case of this specific TELAR, there was nothing to challenge.
In short, the information Pulatov seeks to obtain from this witness request is already in the file. If the defence requires, it can easily find more visual material of the Ukrainian Buk ‘312’ in public sources if it should wish to compare those images with the images in the file. It thus does not have an interest in examining a witness in order to confirm facts that are already included in the case file and are also easily accessible elsewhere.
Witnesses on reliability
Besides alleged eyewitnesses to the Buk convoy and missile flight path, Pulatov also seeks to examine witnesses about the reliability of another witness, S21 (marginal nos. 66-77). None of these witnesses has been questioned before. Therefore there are no incriminating statements by them in the case file to assess. Nowhere in its explanation of the grounds for these witness requests does the defence make a concrete connection to Pulatov’s role or to the direct evidence that points to the launch location.
The individuals in question are:
- Kostia (Yaponets) (marginal no. 66);
- NN Delfin, Ivvanikov and Denis (Gera) (marginal nos. 67-69);
- NN1, NN2 and NN Aleksandr (marginal nos. 70-72);
- Radchenko (Umka) (marginal nos. 73-74);
- Aristov (Bakinets), Roman Ivanov (Permyak), Viktor Aleksandrovich Mukhin (Mukha) and NN (Moriachok) (marginal nos. 75-77).
Requests to examine witnesses about the reliability of other witnesses are almost never granted because the matters on which they are able to testify are too far removed from the alleged offences and the court is generally capable of assessing a witness’s reliability itself. Prior to this we had already come to the conclusion that the request to examine S21 should be denied. It is only logical that the same applies to the examination of other witnesses about S21’s reliability. The information that these witnesses could possibly provide about S21 is so far removed from the evidence relating to the alleged launch location that Pulatov does not have an interest in their examination.
Use of telecom data to assess the reliability of ‘witnesses’
As well as requesting the examination of the above-mentioned witnesses, Pulatov asks for the mobile phone mast data for the phones of many previously examined witnesses (part 4, memorandum of oral pleading, marginal nos. 149-156). On the basis of such data he wishes, ‘in addition to examining the witnesses’, to investigate the reliability of these witnesses (marginal nos. 149 and 156).
The Public Prosecution Service would first note that the reliability of incriminating witnesses is always investigated to the maximum extent possible. As noted, for the 226a witnesses, such investigation was conducted by the examining magistrate, partly on the basis of telecom data. For each witness the examining magistrate drew up an official report of the reliability investigation. This was also done in the case of X48, who gave a statement on the launch location, and in this case, too, use was made of phone mast data. The reliability of the statements given by M58 was also investigated. The results were included in an official police report of findings. The report explains what investigation was done into telecom data and other objective sources, such as photos and satellite images.
The defence’s request to be provided with telecom data should be assessed in light of the necessity criterion and, for various reasons, cannot be granted. First, these 38 alleged witnesses include various individuals who have not previously been examined, such as Aristov , seven individuals known by call signs, and two unknown ‘men who allegedly sat in the cabin of the low-loader’. Since these individuals have made no statement, their reliability cannot be investigated on the basis of phone mast data. Second, these 38 individuals include 21 witnesses who have previously been examined, and whose identity has been protected in the interest of their safety by – or on the authority of – the examining magistrate. Providing their telecom data could reveal their identity and jeopardise their safety. This would not be compatible with the statutory protection measures that have been put in place. Third, 10 of those 21 anonymous witnesses are so-called 226a witnesses whose reliability has already been thoroughly investigated by the examining magistrate. It is not clear why Pulatov would want the phone mast data of V54 given that the examining magistrate has already ruled, on the basis of that very telecom data, that V54’s statement cannot be considered reliable. The same applies to witnesses V11 and V49: the examining magistrate was unable to establish the reliability of V49, and all of V11’s statements have already been excluded from evidence. This was discussed in detail at the hearing in June. Pulatov therefore does not have an interest in obtaining these witnesses’ phone mast data. Fourth, the defence also asks for the phone mast data of individuals who took photos or filmed video footage – individuals whose identity is unknown or protected (such as S32), or whose telephone number is unknown. They request this data despite the fact that the location and time data of this material has already been subjected to extensive investigation, the findings of which are included in the case file. Fifth, providing telecom data could expose multiple individuals to risks, including people other than the user of the telephone number in question. As in the previous instance of the requested index of an investigation file, a request this broad is not advisable in this investigation. If the court considers that additional telecom data should be provided, it will be necessary to carefully assess whether this is possible without putting people in danger. Given the broad manner in which this request has been set out, it is impossible to establish necessity in regard to any single individual.
In light of all these circumstances, the defence’s request is insufficiently specific and insufficiently substantiated. The request should therefore be denied for want of necessity.
Photo and video material (part 4 of 5)
Another source of evidence in the case file is photo and video material. To answer the question of whether the Buk missile was launched from somewhere near Pervomaiskyi, Pulatov has submitted various requests for the further investigation of that visual material. These requests focus on photos and videos of the inbound and return route taken by the Buk TELAR and a photo of the condensation trail. We do not understand why Pulatov has waited until now to bring this up. These requests could have been submitted much earlier.
On the second day of the hearing back in March, we spoke at length about these photos and videos. We mentioned how many photos and videos of the Buk TELAR had been secured, where they could be found in the case file and how the images were validated over the course of the investigation. By way of example, we discussed the photo of the TELAR on Illicha Avenue in Donetsk. At the time, we also explained that we attempted to locate and examine the people responsible for each and every image of the TELAR and the condensation trail included in the file and, in each case, to seize and examine the camera in question. As we mentioned, in some cases we were able to do so, while in others, we were not. To the extent that the safety of the witnesses allowed it, the results of those efforts were included in the case file. During that same hearing in March, we stated that additional forensic investigation of the authenticity of these images only made sense if there were sufficient and concrete indications of manipulation. At that time, we requested further investigation into the video of the Buk TELAR in Snizhne, in response to a recent Russian accusation of manipulation. In that connection we emphasised that such investigation would take time, but that at that early stage of the proceedings it could be postponed without adversely affecting the trial.
At the hearing of 9 and 10 June we gave an in-depth explanation of the investigation as a whole. During that presentation we again spoke about these photos and videos, discussing in detail how investigators had validated the video of the TELAR on Makeevka Highway, the photo of the TELAR on Illicha Avenue, the photo of the condensation trail and the video of the Buk TELAR in Luhansk .
Even before March it was already clear that Pulatov was casting doubt on these images but that he could say nothing about them based on his own observation. His defence lawyers were familiar with this situation back in February, as was the Russian lawyer on his international defence team , who was in the Netherlands in March. According to their February interview in the journal Advocatenblad, his Dutch lawyers were appealing to his Russian lawyer to address the ‘factual and material elements’ related to the question: ‘Are all the facts in the case file correct?’ Beyond that, these were straightforward pieces of evidence that required little in the way of examination or strategic consideration. So there was no reason not to summit these requests at the hearings in late June, August or September. Indeed, there was every reason to do this earlier because additional investigation of inaccessible or unknown sources would be time-consuming. The longer those requests take to be submitted, the greater their potential impact on the progress of the trial.
For each of these requests, the court must therefore determine whether the requested investigation is objectively necessary for a thorough assessment by the court and a fair trial for Pulatov. The Public Prosecution Service sees no such necessity.
First of all, these images do not constitute direct evidence,; they are merely supporting evidence concerning the launch site. It is only the photo of the condensation trail that depicts the launch site itself in any way. Secondly, the reliability of these images has already been investigated extensively, using a variety of methods. This involved not only a wide-ranging examination of the images themselves, for example by experts from the KNMI and the NFI, but also the comparison of these images to other evidence, such as intercepted telephone conversations, mobile phone mast data, witness statements and satellite data. The investigation that Pulatov is now requesting has, in many cases, already been conducted or yielded no results. For this reason these requests should be denied.
To flesh out this general conclusion, we will also make observations on each of the individual requests. In various cases they, too, can be summarily denied because Pulatov does not have an interest in them.
Images of the inbound and return route
The first request concerns the investigator Primo 17-477. The defence is not seeking to examine him about the reliability of the photos and videos which were taken in Ukraine on 17 and 18 July 2014, but rather about the reliability of information he provided, which was then used by others to answer the question of whether the TELAR in those images was the same as the one in the images of the 53rd Brigade in Russia taken in June 2014 (marginal nos. 128-133). We do not see how this is relevant to the evidence concerning the launch site. What is more, the comparison that was performed was based on the TELAR’s external characteristics in the videos and photos: the defence can make this same comparison with its own eyes. The information that Primo 17-477 provided to the investigation team is consistently described in concrete terms in the case file. In many cases that information comes from other sources, which are specified. Primo 17-477’s role was mainly to point the investigation in the direction of those sources. Pulatov is free to verify the reliability of this information for himself. The fact that he is now requesting, in purely general terms, the examination of a witness for the purpose of assessing that witness’s reliability, and cannot point to a single aspect of the information that he believes to be inaccurate, would seem to suggest that the information is sound.
The defence also requests permission to examine witness S17 and the individual who, according to S17, shot a particular video (marginal nos. 134-137).
During the hearing in March 2020, the Public Prosecution Service asked to examine S17, in order to determine whether the video he was shown was one of the visual images of the Buk TELAR from 17 July 2014 which have since become known. The court denied this request, on the grounds that this witness did not claim to have been at the place designated by the Public Prosecution Service as the launch site or to know anything about Pulatov’s personal involvement.
There is nothing to indicate why such an examination would now be necessary. The witness merely states what he saw on a video, which was shot by someone else. It is not known what video this was. Pulatov does not have an interest in the requested examination of S17 or the person who shot the video, the provision of that video of a Buk, or any subsequent investigation into that video. Defendants do not need to collect evidence for charges that they themselves dispute. That is the job of the Public Prosecution Service. And even the Public Prosecution Service’s own request to examine witness S17 was denied by the court.
Pulatov also wishes to examine the individual who shot the video of the Buk TELAR in Makeevka and another individual who uploaded the video to the internet: S32 and S33 (marginal nos. 138-141). The defence wishes to ask the former (S32) if he can confirm that the video was shot in July 2014. They also want to confront him with the opinion of a biologist from Donetsk who claimed online that flowers visible in the video only bloom until June. Pulatov is thus requesting information that is already known: S32 has already stated that he believes the video was shot in July 2014 and a witness cannot be expected to render an expert judgment on a matter of botany. For his part, S33 has little to add here: he received the video from S32 during the same year S32 was questioned as a witness, namely 2016. Moreover, the date of the recording has also been confirmed by other evidence, such as satellite photos taken by the European Space Agency and Google, which show the same thing as S32’s video. Contrary to what the defence claims (marginal no. 141), these questions neither add to nor detract from this evidence.
The same applies to the requested examination of the person who shot the videos of the Buk TELAR in Zuhres (marginal nos. 142-143). These videos were uploaded to the JIT’s website on 26 July 2014. According to the metadata of the video files, they were recorded on 17 July 2014. The times given for these files were confirmed by an investigation conducted by the Royal Netherlands Meteorological Institute (KNMI). In July 2016 a video appeared online in which the person who shot the video of the Buk TELAR stated that the footage was not taken on 17 July, but rather on 5 July 2014. Further investigation by the KNMI showed that the videos could not have been shot on the latter date. In December 2016 the person who shot the video emailed the JIT to say that the video was indeed shot on 17 July 2014, but that he had been threatened by two armed men and forced to make a false statement for Russian television. He subsequently moved to a different address. After that point, the investigative team was no longer able to contact him. Now the defence would like to ask him if ‘the video was in fact shot on 5 July 2014’ (marginal no. 143). Given the objective examination that this piece of visual evidence was subjected to and the witness’s clear answer to this question in his email, these grounds are not sufficient. And now that there is no way of contacting this witness, there is also no reason to assume that this request can be carried out expeditiously.
In addition, Pulatov would like to examine witnesses about the date, time and location of the photo of the TELAR in Torez (marginal nos. 144-148). The individuals concerned are the person who uploaded this photo to the internet on 17 July 2014, the person who forwarded the photo to him and the unidentified person who took the photo. Of these three, the investigation team has only been able to track down the uploader. The JIT was unable to examine the person who forwarded him the photo or the unknown acquaintance who reportedly sent him the photo. The questions the defence wishes to ask about the date, time and location of the photo were already answered by the uploader in the two messages he posted on 17 July 2014 and in his subsequent interview. In this respect the requested examination only revisits subject matter that has already been covered. Moreover, an investigation has already been conducted into the location and the time, both by the KNMI and by investigators, using public sources.
Furthermore, this request centres on a single photo of a Buk TELAR in Torez, while there is copious other evidence documenting the route that was taken, and all that evidence regarding the inbound route only serves, in itself, to support the evidence for the launch site. In light of this, it would add little to examine the person who took the photo and the person who subsequently forwarded it about the date, time and location of the photo. The same goes for the questions regarding video cameras along the route, which were no longer in operation as of late June 2014. The requested investigation into visual material showing other weapon systems on a highway in June 2014 is not relevant to the evidence that supports the launch of a Buk missile from an agricultural field on 17 July 2014.
In addition, Pulatov asks to examine witnesses about the photo of the Buk TELAR on Illicha Avenue 78 in Donetsk (marginal nos. 232-240). This photo was emailed to the JIT. Specifically, the defence is seeking to question the person who sent the photo, the person who took the photo, Primo 17-467 (the reporting officer who found the photo in the JIT’s mailbox) and one or more unknown members of the research collective Bellingcat. The person who sent the photo later emailed the JIT a chat conversation he had had with a member of Bellingcat. Pulatov has also submitted a conditional request to examine this person about this conversation (marginal nos. 227-230).
Based on the information in the case file, the defence professes to be in the dark about whether the identity of the person who sent in the photo is unknown or if his contact details are known and investigators have had contact with him (marginal nos. 233-234). The documents cited by the defence itself show that the photo was received in the form of an email attachment and that the sender’s identity is unknown. Thus, the contact consisted of a single email, and from that his contact information (namely, an email address) was known. According to the chat session which the JIT later received from him, the sender of the photo was driving near the Buk for around 20 to 40 seconds; he then stopped to turn around and drove off in the direction of ‘the Motel’. In addition, the sender stated that three years had passed since the moment in question and that it was difficult to remember something that lasted all of a minute.
The identity of the person who sent the photo is unknown, and he did not respond to repeated emails from the JIT. We cannot state with certainly whether he is also the person who took the photo. By his own account he himself was in the vicinity of the Buk. Examining him about the location and time of the photo would not add any significant information to the other evidence that has already been gathered on this subject, including the findings of the KNMI investigation, the comparison of landmarks as depicted in public sources, social media posts, witness statements and telecom data. At the hearing in June we already discussed the extraordinary convergence of all that evidence concerning the location and time of this photo. The defence has had the opportunity to review these findings, and it has not cited a single instance where this extensive validation investigation has fallen short. The geolocation investigations carried out by both the police and Bellingcat can be found in the case file, with nothing redacted. If Pulatov is unable to adduce a single specific objection to this material or ask a single question about it, he does not have an interest in examining witnesses on this subject.
Pulatov also wishes to examine the individual who shot the video of the Buk TELAR on Makeevka Highway (marginal nos. 241-243). This request was prompted by an unclear passage in the statement given by an Australian journalist, in which she implied that between 10 and 22 May 2014 she was already familiar with the publication of the screenshot of this video in the French magazine Paris Match. On that basis the defence suggests that it is possible that the video had been shot before 17 July 2014, and they wish to examine the person who shot the video on that point. This seems a somewhat misleading presentation of what was said. First of all, it has been established that Paris Match published this screenshot after 17 July 2014 and not before. Secondly, this interpretation by the defence is not an accurate reflection of the witness’s statement. The journalist merely gives a brief, affirmative response to the question of whether she was familiar with the Paris Match footage, when she was in that Donetsk region between 10 and 22 May. The question itself is factually inaccurate, as Paris Match had not yet published any of that material. Moreover, it is clear from the examination that the purpose of the question was not to ascertain whether she had seen the photo, but whether she had seen the Buk TELAR depicted in that photo during her time in Ukraine. Elsewhere in the examination the journalist clearly says that she never saw anything of the kind when she was in the country. Therefore there is no reason to examine this Australian journalist or the person who shot the video.
Pulatov has also submitted various requests about the video of the Buk TELAR in Makeevka (marginal nos. 244-254). The request to examine the three ESA researchers about a satellite image (marginal no. 253), which was used in the investigation of this video, will be discussed separately later on, together with other requests about satellite images, such as the one of the Furshet supermarket in Snizhne (marginal nos. 264-273).
In addition, Pulatov has asked for a number of documents to be added to the case file. The first of these is the official report explaining how investigators secured the video of the Buk TELAR in Makeevka, because, the defence contends, this explains how the location of that video was determined (marginal nos. 244-254). However, that information can already be found in the official report documenting the findings of Primo-07288, which was added to the file. The same applies to the digital satellite photos the defence has requested. These are referred to in the official report on the investigation of the date and time of this video of the Buk TELAR, which was based on these photos. The second page of this report contains a link to the relevant images in the media file. These can be reached with two clicks of the mouse, starting on the page the defence itself referred to.
In relation to the video of Torez, Pulatov again requests information which was left out of the case file based on a decision by the examining magistrate. This decision explains that the information in the official report that was included in the case file came directly from a range of other official reports, and is a faithful representation of those other reports. The decision also explains that withholding the official reports in question is necessary in connection with the safety of one or more witnesses. In so far as security concerns allow it, the questions posed by the defence are already answered in the case file. This also applies to the question about the photographic images of the video stills. Several stills from the video are included in the appendix to the official report to which the defence itself refers. It also follows from this official report and the decision by the examining magistrate that specific metadata was indeed obtained from the video file, but that for security reasons the material in the case file only gives a rough indication of the location and time of the recording (‘around 09.00’ UTC +3). This does not put the defence at an ‘insuperable disadvantage’. After all, the court does not have access to the underlying metadata either. Apart from this, the case file contains copious amounts of other evidence concerning the location, date and time that this video was shot.
Pulatov has also submitted requests about the photo and video of the Buk TELAR in Snizhne. This brings the Buk somewhat closer to the launch site.
Pulatov questions whether the photo of the Buk TELAR on Karapetyan Street in Snizhne was actually taken there. To ascertain this, he is seeking to examine a contributor to the website Koreandefense.com (marginal number 278). It is unclear to us what he hopes this witness can tell him. This photo was made public in a tweet, which specifically mentions a ‘Buk’ in ‘Snezhnoye’. The contributor to the website then found a satellite photo of Snizhne and compared it to landmarks on the photo of the Buk TELAR. Anyone can verify the accuracy of this comparison with their own eyes. There is nothing more to be said about the matter, even by the witness. Therefore Pulatov does not have any interest in this examination either. He has also requested the opportunity to examine two reporting officers, Primo 17-184 and Primo 17-154, about their efforts to determine the identity of the person who took this photo. The reason for this is that the defence wishes ‘to investigate whether everything that can reasonably be expected was done to establish the authenticity and reliability of this material’ (marginal no. 280). The purpose of examining a witness is not to evaluate their work. The Public Prosecution Service is responsible for the investigation and can be held to account in that regard. If Pulatov feels that the investigation was incomplete, he must indicate what additional investigation must be conducted and what defence interest this would serve. We have heard nothing of this sort from him.
Snizhne video (T0522 dig00131XX2378 and digi07691XX2378, marginal nos. 282-294)
Pulatov also refers to further examination of the video of the Buk in Snizhne (marginal nos. 282-294). The video is already being examined by the examining magistrate, at the behest of the Public Prosecution Service. The defence has now announced that depending on the outcome of that examination, it will decide whether to request further investigation. The current status of the examining magistrate’s investigation is that she intends to appoint forensic experts from Sweden to look into the matter. Sweden lost no nationals in the MH17 disaster, and in geopolitical terms, it is a country with a well-established reputation for neutrality. Nevertheless, last Friday, the day after the last hearing, the defence cast doubt on the impartiality and independence of these experts, in part because the Swedish Minister of Foreign Affairs tweeted her support for the JIT investigation in 2018 (annexe 1). We were surprised by this response because that Swedish tweet was in line with Resolution 2166 of the UN Security Council, which calls upon all UN member states to support the criminal investigation. Moreover, back on 29 July we already spoke about this Swedish National Forensic Centre (annexe 2), and the defence raised no objections at any previous time. We now have a better sense of why the defence is having trouble getting its own expert investigation off the ground: if a simple expression of support on the part of a political official for an effective investigation into the downing of MH17 is reason enough to mistrust an expert from that country, it will indeed be exceedingly difficult to find a ‘neutral’ expert. As long as these Swedish experts have not yet submitted a report, we will not be able to address Pulatov’s future wishes with regard to further investigation, and the examination of the Snizhne video will – as far as he is concerned – have to remain on the back burner for a time.
For now, he is confining himself to requesting the inclusion in the case file of the official reports documenting how investigators secured the two versions of this video (marginal no. 287) and the examination of the person who shot the video (marginal no. 289). Information about how the video was secured and the way its contents were examined is already included in the case file. An official report on how investigators secured a video adds nothing to what is already there. The stated purpose of the request to examine the person who shot the video is to establish the time, location and authenticity of the recording. We would note that Pulatov could have made this request earlier, at least as far back as June. As noted, back in March the Public Prosecution Service requested an expert investigation into the authenticity of this video and the time it was shot. At that time we addressed the Russian Federation’s assertion that the video may have been manipulated and was allegedly uploaded as early as 16 July 2014. The question is therefore whether the requested examination is now necessary. Given the fact that the recording does not show the launch site, reveals nothing about Pulatov’s involvement and is being subjected to a forensic examination, no such necessity exists.
Luhansk video (marginal nos. 295-312)
Finally, Pulatov wishes to examine a series of witnesses about the video of the Buk in Luhansk (marginal nos. 295-312), namely: the reporting officer who examined the video, the SD card and the camera with which the video was shot, Col. Yanovski, Minister Avakov, members of the secret surveillance units of the Ukrainian intelligence service MVD and the person who shot the video . The defence wants to ask all these witnesses a large number of questions but fails to say anything about the findings that the investigation already turned up about this video. In that connection the defence wishes to ask all sorts of questions about matters which they do not specifically dispute and which have already been subjected to extensive investigation, such as the authenticity of the video and the way in which the location was determined. Yet they do not explain what the examination of these witnesses could add to or detract from these things. Moreover, we could easily disregard this video showing the Buk TELAR in Luhansk, during its return journey, and this would do nothing to undermine the evidence pointing to a launch site near Pervomaiskyi, around 70 kilometres away. For that reason these requested examinations are not relevant to answering this evidential question.
Pulatov then complains about ‘missing documents’ that have allegedly been left out of the case file, ‘against the wishes of the author’. He requests permission to examine Primo 17-181, one of the compilers of the case file, about this. This complaint seems to be based on a lack of knowledge of Dutch criminal procedure. In Dutch criminal proceedings, the Public Prosecution Service is responsible for compiling the case file that is submitted to the court (article 149a, paragraph 1 of the Code of Criminal Procedure). The Public Prosecution Service certainly takes account of the reporting officers’ opinion, when determining what to include, but it is not the decisive factor. In a large-scale investigation it is up to the Public Prosecution Service to ensure that the case file is not cluttered up with a large number of irrelevant documents. That would needlessly delay the trial. As a result of this approach, official reports may, for example, refer to large appendices, which have been left out because they are irrelevant. Between February and now, Pulatov’s defence team has had the opportunity to ask to inspect documents that were not included in the case file, and every specific request that was even remotely relevant has been granted. During that time he has had abundant opportunity to familiarise himself with the documents that were left out of the file. The request to examine the individual who compiled the file should therefore be denied, because it was not his responsibility to decide which documents would and would not be included. Any questions about the compilation of the case file can be put to the Public Prosecution Service.
Pulatov also asks that six official reports be added to the case file. Three of these are already in the file. The other three documents explain how certain information was secured and contain nothing relevant that is not already in the file. The general account explains why such documents were not included in the file. The defence does not explain why (contrary to what is stated in the explanation in the file) these documents are in fact relevant. For this reason, this request should also be denied.
The defence then turns to the matter of the aforementioned KNMI report, which deals with determining the time of day at which eight image files were created. Among other things Pulatov seeks to question the author of the report about his investigative methodology, the scope of his investigation and what information he had at the start. All this information is already in the report. In addition, the defence is seeking to ask how many satellite images the report’s author had access to, even though this is already described in the report. It is wrong to suggest that ESA indicated that there are no satellite images available for 17 July 2014. The ESA report specifies the exact areas for which satellite images of 17 July 2014 are and are not available. The defence is also incorrect when it states that the ESA investigation did not incorporate MSG satellite images. Indeed, the opposite is true. The defence’s focus on the satellite images in relation to this KNMI report is striking. It is clear from the report that the times of the recording are derived from the direction of the shadow which can be seen in the visual material. In the report, these shadow are marked with yellow arrows in every piece of visual material. The satellite images are merely used to determine whether the clouds that can be seen on the visual material match those shown on the satellite images. Given that all questions – in so far as relevant – have already been answered in the report, there is no need to examine its author.
Witnesses connected to the photos of the smoke trail
In addition to requesting further investigation of visual material pertaining to the route taken by the Buk TELAR, Pulatov has also asked for the examination of witnesses about photos of a smoke trail. This brings him somewhat closer to the launch site.
Witness A26 (marginal nos. 481-483), who was questioned by telephone only, made statements about the photo of a trail of smoke and the weather on the day in question. He has no particular knowledge of that photo: he is simply discussing it as an internet user who also happened to be in the area that afternoon. Because more objective investigation has been conducted into that photo of the smoke trail, including in relation to the meteorological conditions that afternoon, Pulatov does not have an interest in examining A26 about that photo.
Pulatov also wishes to examine the person who took the photo of the smoke trail. This brings us to a point where the difference between the defence criterion and the necessity criterion becomes clear. The photo of the smoke trail is a piece of evidence concerning the launch site. If the defence had submitted this request in time, in June, we would have been in favour of granting it, given that the defence is entitled to assess incriminating evidence, and the more obviously incriminating and relevant a particular piece of evidence is to the case, the less justification is needed to warrant further investigation. If the request had been submitted in time, this person could have been examined before February, like witness RC02. There was every reason to submit the request in time. The photo of the smoke trail was shown back at the June hearing, and the examination that it was subjected to was explained at that time.
Because Pulatov has waited until this late date to submit this request and not offered any comprehensible explanation for the delay, the requested examination can only be allowed if it is objectively necessary. Given that the photo in question is certainly not the only, or even the strongest, piece of evidence for the launch site, there is no such necessity here. The grounds for this request are very limited: Pulatov apparently only wishes to ask the witness about the way in which he handed over his camera and SD card to the SBU. It is not clear how this relates to any decision that must be made, considering that the case file already mentions the transfer of these items, and Pulatov does not explain why it is relevant to know the exact nature of this handover.
The defence wishes to ask witness S13 (marginal nos. 495-497) about information which, as we already know from his first statement, he does not have: the identity of the person who took the other photos of the smoke trail. Here we will once again reiterate what we pointed out back in June: in assessing requests for further investigation, it is relevant if the contents of the case file offer scope for the existence of the possibility underlying the request which is meant to be investigated by way of a witness examination. As Scheele puts it:
‘The arguments in support of the request must be at least faintly plausible, tenable or sound; that is, the contents of the case file must offer scope for the existence of the possibility underlying the request which is meant to be investigated by way of a witness examination. It cannot be too speculative; it must have a chance of success.'
A defendant’s desire to reshape certain facts about the world is not an alternative foundation for an examination. The only other issue about which the defence is seeking to examine S13 relates to the news site on which the photo was published. The name of that website can be found in the correspondence with S13 which is attached to his statement and is repeated in the case file on the launch site.
Explanation of intercepted telephone conversations (part 4 of 5)
Furthermore, the defence has made requests, in some cases conditional requests, to examine an expert with regard to audio surveillance during an armed conflict (marginal no. 167) and various witnesses with regard to the use of code words in intercepted conversations (marginal nos. 174-178), the dissemination of disinformation by telephone (marginal nos. 179-183) and the use of secure communication channels and in-person interaction regarding important matters (marginal nos. 184-185).
As far as the Public Prosecution Service is concerned, it is not in dispute that phones were tapped in Pulatov’s vicinity, that multiple conversations show that DPR fighters were aware of this, that telephone code words were used, that individuals also spoke to each other without using telephones, and that individuals also spoke to each other using secure forms of communication. We pointed out back in June that we had missed out on some information from separatists’ conversations precisely because of the use of secure telephones.
In other organised crime investigations, too, this is a given. There, too, all kinds of code words are encountered, depending on the subject being discussed and the people who use them. These range from well-known codes for drugs, such as ‘brown’, ‘white’, ‘whole’ or ‘half concert tickets’, ‘doves’, ‘soup’ and ‘spaghetti sauce’, to codes for many kinds of weapons, such as ‘keys’. In this case, too, we have seen various individuals in Pulatov’s circle using a range of different code words.
We therefore concur with Pulatov’s statements in this regard even without further investigation. However, it is not possible to draw the far-reaching conclusions that Pulatov would like. The limitations of the use of coded language that we see in most criminal investigations were also observed in this case. Sometimes, secure connections are unavailable, too far away or not functional. Sometimes, people forget they are talking on an unsecured line or make mistakes for other reasons. Whatever the cause may be, in this case too we have regularly seen information being shared over unsecured lines which should not have been discussed.
Coded language has its limitations too. In this case file we can see that code words do not always have the same, fixed meaning for everyone. Sometimes the same object is referred to using different code words. Sometimes a caller clearly struggles to understand the meaning of the code word used by the other party. In other cases the parties to a call first speak freely, and only later switch to more veiled language. Thus, the fact that code words were used does not necessarily mean that they were used consistently, or that anyone who used a code word at one time or other can be examined on the universal meaning of that word. Investigation into the meaning of code words must always be done on a person-by-person and conversation-by-conversation basis. There is too little consistency in the coded language in this file to suppose that someone could interpret conversations to which he himself was not a party.
Semenov (marginal nos. 174-175 and 182-183) had a tapped telephone conversation with Dubinskiy which is designated in the file as a likely announcement of the Buk TELAR’s impending arrival. It is therefore clear that Pulatov has an interest in questioning Semenov about that conversation. It is up to the court to determine whether it should be concluded that the requested examination is necessary. From the perspective of ensuring a fair trial, it is not: there is so much other evidence in the file that it cannot be said that at this late stage it is necessary to examine Semenov. From the perspective of ensuring a thorough investigation, we see no necessity either. Had we been able to examine Semenov earlier, we would certainly have done so, but his statement is not required in order to be able to establish the facts.
In order to keep the court as fully informed as possible, we made enquiries this week with the Ukrainian authorities as to whether they have information concerning Semenov’s current whereabouts. They do not. Therefore we see no possibility of examining Semenov, should the court decide to grant the request.
Plotnitskiy, Bugrov and Manohin
Pulatov does not have an interest in the examination of Plotnitskiy, Bugrov or Manohin (marginal nos. 176-181). The conversations in which they took part related to Buk systems other than the Buk TELAR at the centre of the charges (marginal nos. 179-181) or to the removal of that Buk (marginal nos. 176-178). Further investigation into those conversations will not be able to influence the judgment of the court. They are simply too far removed from the direct evidence relating to the charges.
Dubinskiy and Semenov (marginal nos. 182-183): We will discuss Dubinskiy later, when we consider the matter of Participation. We have already discussed Semenov.
Finally, the defence also has no interest with regard to the conditional request to examine Kupryan (marginal nos. 184-186). Contrary to what the defence claims, Kupryan’s statement does not support Pulatov’s general position that important matters were discussed only in person, and never over the telephone. While Kupriyan does state that he received certain instructions from Girkin in person as a rule, (‘[H]e used to tell that sort of thing in person’), he also states that his subordinate reported to him (Kupryan) by telephone (‘[T]hat’s why I wanted to hear the recording of our conversations with him reporting to me’). Leaving aside the fact that no conclusions about Pulatov’s habits can be drawn from examining a witness about Girkin’s habits, this request fails for want of a factual basis.
Twitter users and other social media (part 4 of 5)
Pulatov has also made conditional requests to examine 14 users of certain social media accounts. These requests require no decision if the court does not intend to include these posts in the evidence. Although the Public Prosecution Service does not expect the court to express a view now on the inclusion of possible evidence, in our opinion a decision on these requests can already be taken.
What these social media users have in common is that they all posted multiple times on social media on 17 July 2014 about a Buk, a missile or anti-aircraft guns. Although some posts specifically mention that the user observed these things for themselves, it is not clear in the majority of posts what the user’s knowledge is based on. The users may have been posting their own observations, but they may also have simply been repeating others’ observations or posts. With regard to these tweets, the Public Prosecution Service does not consider it particularly relevant whether the posts relate to an individual’s own observation or hearsay. The limitations in this regard are clear. The most relevant things are the date and times of the posts, and these can be found in the case file. These are largely messages posted before the downing of flight MH17.
The places mentioned in the posts – Torez, Donetsk and Snizhne – are consistent with the places linked to the transportation of the Buk TELAR. As we learned last week, Pulatov gave a statement about the Buk’s transportation back in February 2020. At that time he stated that it was physically impossible to move a Buk TELAR using a trailer, because all transport routes between the so-called Republic of Donetsk and Luhansk were blocked by Ukrainian army checkpoints. Even at that time, then, Pulatov disputed the accuracy of any evidence pointing to the transportation of a Buk TELAR using a truck and low-loader. In so doing he also disputed the contents of all the social media posts we are now discussing.
Since Pulatov already disputed the accuracy of these posts back in February, the question is no longer whether he has an interest in examining these social media users, but whether their examination is necessary. Another question is why he waited so long to make these requests. It is significant that people were tweeting about the transportation of a Buk TELAR, and the relevant locations and times, even before flight MH17 was shot down. The matter of whether the individuals who posted the tweets in question observed the convoy themselves or whether it was observed by their neighbour or milkman is far less relevant, given the rest of the evidence in this case file. The Public Prosecution Service therefore sees no need to examine these individuals.
Satellite images (part 4 of 5)
Furshet and the launch location
Pulatov wishes to examine Ministry of Defence employee Primo 17-476 about caterpillar tread tracks. This image analyst studied the images in question (memorandum of oral pleading, part 4 of 5, marginal no. 270);
In this connection Pulatov also wants official report Primo-00387 to be added to the file (marginal no. 268). This official report is already in the file, however, as discussed in the latest supplement to the general account.
With regard to Primo 17-476, we can only guess at what questions might be asked during a witness examination. The only thing explained in the grounds for the request is the goal of examining the witness. Pulatov wishes to examine the Ministry of Defence employee in order to establish the ‘evidential value’ of his findings. But he does not mention what information might be obtained that could contribute to this goal. Nor is this self-evident, since the satellite images that were investigated are included in the file and the defence can therefore study them itself. In so far as Pulatov believes that Primo 17-476’s findings are at odds with other evidence in the case file (marginal no. 270), he can raise this issue in court. A witness examination of Primo 17-476 is not the appropriate forum for that. An expert from the Ministry of Defence can give a statement only about his own findings, not about how those findings relate to other evidence or what their ultimate evidential value are. The findings themselves are clear, and Pulatov can assess them on the basis of the satellite images and the extensive official reports that were drawn up concerning them.
Since Pulatov apparently cannot provide a single question he wishes to ask the Ministry of Defence employee, he does not have an interest in the requested examination.
The defence complains about the poor quality of the images in official report Primo-02733. This report was drawn up by a reporting officer but also contains the findings of an image analyst. We would note that, according to its own explanation, the defence is aware that this analyst is an employee of the Ministry of Defence. This analyst is therefore not a reporting officer, and that is why the official report of his findings was drawn up by someone who is a reporting officer. As we will explain in more detail later, anyone who produces a numbered report is assigned a Primo number, but this does not mean that everyone with a Primo number is a reporting officer.
The report in question compiles various findings relating to satellite images of the so-called scorched area of the agricultural field in Pervomaiskiy. Pulatov wishes to examine the image analyst about the quality of the satellite images that were consulted. He also asks that the original images be added to the file. However, the images in question are already in the file. They are not exactly difficult to find, either. Hyperlinks to the images can be found on page 1 and page 4 of the report the defence itself refers to (Primo-02733).
The other questions prompted by the image analyst’s findings were evidently formulated without reference to high-resolution versions of the satellite photos in question. It is therefore necessary to look critically at whether further witness examination is necessary to answer these questions – particularly since it is unclear whether the defence is familiar with the other documents in the file that fleshed out the findings in this official report.
Primo-02733 refers to two other official reports which describe relevant findings relating to the scorched area. Primo-02733 also contains a link to a video recording of a witness that features the suspected launch location. This witness’s statement is also included in the file. In addition, two reports are appended: one drawn up by NEO in cooperation with Delft University of Technology, and another by the Royal Netherlands Meteorological Institute (KNMI). In discussing Primo-07233 the defence says nothing about all these underlying source documents, which form the basis of that official report.
The defence’s questions are adequately addressed in the digital files of the satellite photos and the aforementioned documents. The Public Prosecution Service therefore sees no need to examine the image analyst in question.
The defence next discusses two reports by the European Space Agency (ESA).
Pulatov wishes to examine four individuals about these reports:
- Reporting officer Primo 17-105;
- and the ESA researchers who were involved in producing the two reports.
Request to examine Primo 17-105
Reporting officer Primo 17-105 wrote the case file ‘Launch location’. The entire investigation into the launch location is summarised in this official report. This report mentions one report by ESA. However, the file as a whole contains additional ESA reports. Pulatov wishes to examine this reporting officer about a number of passages in the case file ‘Launch location’ which allegedly have no basis in the underlying ESA report. However, the answers to Pulatov’s questions can be found elsewhere in the prosecution file, and are derived directly from the findings of the ESA experts. We would refer in this connection to ESA report Primo-09909, which is included in the file.
Pulatov also wants to ask this reporting officer whether the JIT attempted to obtain Chinese satellite images. We answered that question during our explanatory remarks at the hearing back in June. At that time we indicated that the Chinese authorities had been contacted and that they had replied that although a satellite had been present over the area, it was not working.
Given that the requested information is contained in the prosecution file and we have already explained it, in part, at a hearing, there can be no interest whatsoever in examining this reporting officer.
Request to examine ESA experts
Pulatov wishes to put the same question to the ESA researchers. In this regard, the decision can only be the same as the one concerning Primo 17-105: questions about information that is already available in the file do not warrant a witness examination.
Pulatov also wishes to examine the ESA researchers about two reports, Primo-09910 and Primo-09908.
In the first report, the experts describe their investigation into a number of potential launch locations and other areas identified in the report as ‘(other) points of interest’, and the conclusions they drew on the basis of that investigation.
Pulatov wishes to ask the researchers why they did not use any MSG satellite images. Reports Primo-09909 and Primo-09910 show that ESA did in fact include MSG satellite images of 17 July 2014 in the investigation, but that owing to heavy cloud cover these were unusable in this part of the investigation.
Secondly, the defence wishes to ask the researchers why they selected had other points of interest (i.e. locations other than those relating to the launch site), what the relevance of these areas was and what the conclusions of this investigation were (marginal nos. 387-388). Pulatov himself has previously noted that it was not the ESA researchers but the police who selected the so-called point of interest. This is also what the report says. Concrete questions about this selection and its relevance therefore cannot be answered by ESA. They can, however, be submitted to the Public Prosecution Service.
In addition, the defence claims that the investigation’s conclusions are not clarified in the report. Yet Pulatov fails to indicate what he finds unclear about this part of the report. On pages 25 and 47, an overview diagram is provided, showing the locations (supplied by the police) for which satellite images are available and the date of those images. There is no visual material available for the majority of the locations indicated. All the satellite images that were available were reproduced in the report. The report also includes what ESA saw, or believed it saw, in these images. Since Pulatov has neglected to formulate any concrete questions about these findings, he does not have an interest in examining these researchers.
The defence furthermore wishes to examine the same researchers about their investigation of satellite images of 17 July 2014. This investigation also involved the previously discussed dashcam video that was recovered. Pulatov talks about certain observations by ESA, which he describes as ‘contrary’ findings that allegedly mean it is impossible for the dashcam video to be consistent with the satellite images of 17 July 2014. If we consult the report, we are unable to follow this argument. With regard to the observations in question, ESA is clear: they do nothing to detract from the match between the dashcam video and the satellite image. There is therefore no question here of ‘contrary’ findings. In fact, in its conclusion ESA describes a satellite image that ‘shows a number of features that are fully consistent with a dashcam video obtained by the Dutch Police. At the same time no obvious inconsistencies could be detected’.
The report’s contents provide no scope for examining the researchers in order to assess whether the findings are in fact ‘contrary’, as suggested by Pulatov. Without further explanation this request is incomprehensible.
Pulatov’s final observation concerns the quality of the images included in the reports. The Public Prosecution Service would refer in this regard to page 1 of both reports, where, in the left-hand margin – next to the title – a link is provided to higher quality images.
Should the court take a different view from ours on the necessity of these requests, we would observe that in the present circumstances the ESA experts would probably be able to comply considerably more quickly with a request to answer further questions in writing than a request to be examined as witnesses.
NFI (part 4 of 5)
The following defence questions concern three reports by the Netherlands Forensic Institute (NFI).
The defence wishes to examine five witnesses about the first report, Primo-06616: Two military advisers and three NFI experts. The defence wants to probe the knowledge, experience and expertise of these individuals since they all indicated that they had no previous or individual experience of the use of Buk TELARS. Here the defence answers the very question it wants to pose, making a witness examination on these matters unnecessary.
The requested examinations should be aimed at the conclusions drawn in the report. Only the authors of the report can be asked about those conclusions, therefore, and not the military advisers. Examining those authors seems unnecessary to us. This report is only a small element of the overall investigation to establish the origin of the Buk TELAR. The visual material that was examined is included in the file, meaning the defence can check the experts’ observations itself. Given the extremely limited scope of the conclusions described and the fact that the defence can assess the visual material for itself, it is hard to see what interest Pulatov might have in the examinations he has requested. What is more, it is unclear what information the defence is seeking to obtain. The report shows that the limitations described within its pages influenced its conclusions. We find no concrete question in the defence’s explanation that could be relevant to a decision to be made by the court.
The second report is Primo-12574. This is a report that we discussed in our explanatory remarks on the investigation in June. In this connection we also showed images from the report at the hearing. As noted, the defence itself spoke at length back in June on the matter of contextual information in investigative activities performed by experts. The defence therefore had every reason to formulate questions about this report back in June. It has not explained why it chose to wait until now to do so. Not does it say why the genesis of the questions formulated for the investigation could be relevant to any decision to be made by the court. The report concerns an expert investigation aimed at validating visual material, not a forensic investigation into a complex crime scene in which countless choices are possible. The report itself does not constitute incriminating evidence; it merely validates incriminating evidence. That is a relevant distinction when it comes to the question of what further investigation can be considered necessary at this point. Finally, we believe that having studied the report, which incidentally was written by only one expert, one cannot reasonably raise questions about the conclusions it contains. Taking all this into account, we believe that there is no need for the requested examinations.
Nor is there any need to add requests to the file. As we noted previously, the genesis and formulation of the questions to be investigated are accounted for adequately in the NFI reports. Pulatov mentions no facts or circumstances that warrant further investigation in this area.
The same applies to the requests stemming from an alleged lack of clarity about the chronological order of the reports. That order is clear, and can be seen in the file.
The final report is Primo-13488, in which the NFI examined one specific image in more detail, as prompted by findings by the KNMI. This investigation was performed by the expert Zoun. Pulatov mentions other researchers whom he believes should be examined. Clearly, experts who were not involved in this investigation do not need to be examined about its findings. Zoun answered the question that was put to the NFI – do the KNMI’s findings constitute indications of manipulation? – with one word: no. Zoun had previously investigated the Russian Federation’s allegations of indications of manipulation, and he did the same in regard to one specific image of a shadow that the KNMI had referred to. It is only natural, in the interests of due care, that a potential indication such as this should be submitted to an image expert from the NFI. The defence contends that the NFI’s conclusion that there were no indications that the image had been manipulated was unclear, given the lack of substantiation or explanation provided. However this conclusion was extensively substantiated on page 6 of the report. This report too was discussed in detail back at the June hearing, and the image in question was shown in court. We do not understand, and the defence does not explain, why this is only now – five months later – the subject of a new request for further investigation.
Therefore, in regard to this report, too, he Public Prosecution Service concludes that there is no need for one or more experts to be examined.
Forensic investigation witnesses (soil samples) (part 4 of 5)
The defence wishes to examine three NFI experts as witnesses about an investigation in which the NFI determined that no conclusion concerning the launch location could be drawn from its findings. The NFI concluded that additional investigation into the presence of chemical traces of a Buk missile in soil samples had little chance of success and moreover would produce little in the way of relevant information. It also concluded that additional electron-microscopic investigation had little chance of success either, and would be extremely time-consuming.
The NFI drew these conclusions after examining soil samples from a location where a Buk missile launch had definitely taken place. No residue of fuel used in a Buk missile was found in these soil samples. It was therefore decided to dispense with further examination of the other soil samples.
Without offering any grounds for his opinion, Pulatov questions whether the soil samples the NFI examined were taken from a location where a Buk missile launch had actually occurred. Yet the file offers concrete information in this regard which the defence does nothing to challenge.
Moreover, the NFI’s conclusion that further investigation would be pointless was explained in detail. The NFI established that combustion samples from missile fuel mainly contain ammonia, perchlorate and chloride. These substances may be detectable in the soil. However, chloride and ammonia are present in the environment anyway, and in light of that do not necessarily indicate that combustion has occurred. In other words, if those substances were to be found in soil samples, this would not necessarily mean that a Buk missile had been launched from there. By the same token, the absence of those substances after the passage of time does not signify anything either. It could mean that no Buk missile had been fired from that location, but it is also possible that the combustion residue was broken down in the soil or washed away by rain water, for example, or displaced and diluted by agricultural activity. In view of the NFI’s findings, it is clear that further examination of these specific soil samples would be of no additional value. There is therefore no need to examine experts in this regard.
Naturally, one might wonder why the JIT opted to collect soil samples if subsequent investigation revealed nothing of value. Let us be clear: if this had been known in advance, the soil samples would not have been taken. The NFI findings that prompted these insights were not yet known at that time.
Pulatov also wants documents regarding the soil samples added to the file. In its explanation the defence refers to the ‘need for possible further investigation’ (marginal no. 458). The ‘possible’ character and convoluted nature of such investigation is in itself a powerful indication of its lack of necessity.
According to the defence the statement by Bensmann should be added to the file in order to make clear when Bensmann took his soil samples. However, this information is already clear from an article by Bensmann that is included in the file; the samples were taken in mid-November 2014. The article also refers to Bensmann’s reason for visiting eastern Ukraine: his search for the launch location. The investigation began in Zaroshchenske, where, according to Bensmann, no one had seen or heard a Buk. Following a tip from (according to Bensmann) a local separatist leader from Snizhne named Bondarenko, Bensmann arrived at a field close to a railway and a factory, to the north of Snizhne. This is the field from which he apparently took his soil samples in mid-November. Since the requested information is already contained in file, adding the document is in any case unnecessary – leaving aside the question of whether doing so would serve any interest.
The same goes for the request to add an NFI report dated 5 December 2016 to the file. The report Primo-08139 explains that a more extensive report will follow, but that the conclusions are not expected to change. The fact that these conclusions indeed did not change is made clear in Primo-09856. That report states (with reference to requests 140 and 153) that the discovery of chemical combustion traces would be both unlikely and unhelpful. Since this investigation has been described in two reports and the conclusion in clear, there is no added value in adding the report of 5 December 2016 to the file. This request can therefore also be classified as unnecessary.
Further information regarding legal status of Primo reporting officers (part 4 of 5)
Pulatov has repeated his request for information about all reporting officers who drew up numbered official reports. The reasoning adduced in this regard is the observation that two of the four individuals who were involved in the discovery of missile parts in eastern Ukraine were law enforcement officers, and two were not, while in an official account they are designated as four reporting officers, and the Public Prosecution Service repeated that designation in court when discussing the account. That designation was indeed incorrect. It was an error in an official account, which was repeated in court.
However, the defence’s repeated claim (see marginal nos. 541 and 547) that this error is not reflected in the file is not accurate. The documents to which that official account refers state that two of the four individuals in question work for the Dutch Royal Military and Border Police (Koninklijke Marechaussee) (and are therefore reporting officers), and that one (Primo 17-511) works for the Royal Netherlands Army.
This is the first page of the statement taken from Primo 17-511. It reads:
‘In his capacity as a member of the Royal Netherlands Army, Primo 17-511 was present in Ukraine from 19 July 2014 up to and including 8 May 2015, with periodic interruptions. He was there as part of a repatriation mission that was launched further to the air disaster involving flight MH17 on 17 July 2014.’
Although the Public Prosecution Service regrets that these two individuals were incorrectly referred to as ‘reporting officers’, even though there are no reporting officers employed by the army, there has never been any confusion about their position. This had already been stated when the file was first provided. In September 2020 – before these four individuals had even been examined – further documents were provided to the defence specifically explaining that Primo-512 works for the Ministry of Defence and is not a law enforcement officer.
The defence ignores the fact, moreover, that these are two Ministry of Defence employees who have both been assigned a Primo number but have never drawn up an official report. They were interviewed by reporting officers about their findings. They did not draw up a report of those findings themselves. All the passages that the defence subsequently cites about ‘reporting officers with an assigned number’ are thus not applicable to these two individuals. They each have a Primo number, but they are not reporting officers. The file contains no official reports signed under their numbers. Ultimately, therefore, the issue here is an error in an official report which caused the defence confusion as to who is and who is not the signatory of an official report in this file. That confusion has now been cleared up, and this request should therefore be denied for want of a factual basis.
Individuals who discovered and identified the pipe (part 4 of 5)
Pulatov requests the court to order the Public Prosecution Service to provide the examining magistrate with the names and contact details of the individual who discovered the pipe and the individual who drew the authorities’ attention to it. This is apparently for the purpose of requesting the examination as witnesses of one or more individuals from the area where the missile parts were recovered. However, it is clear from the previous decision by the examining magistrate on this ‘special seizure’ and her letter of 21 September 2020 that a request has already been submitted for maximum provision of information about the discovery of these missile parts, and that information about individuals in the area cannot be disclosed without putting them in danger. In this connection we would repeat what we have said previously: these recovered missile parts have been subjected to extensive forensic and other investigation. Their evidential value can be assessed effectively without the requested witness examinations. These requests should therefore be denied.
Radar data (part 4 of 5)
Pulatov further contends that all the investigation into radar data that he requested in June in order to explore the so-called war plane scenario is also necessary in regard to the evidence concerning the launch location. Those requests, in so far as they have not already been denied by the court, were aimed, according to the defence’s explanatory remarks, at obtaining ‘clarity regarding the question of whether more radar data is, or should be, made available, or may yet be brought to light’. If that radar data could subsequently be ‘brought to light’, a Buk missile could, according to the defence, be visible on it (marginal no. 561). The defence thus agrees that various hurdles need to be cleared before relevant radar information can be obtained.
The new request to examine S26 (marginal no. 569) falls into the same category. This request too concerns an interim step towards factual information: questioning a witness as to whether there could be other Ukrainian radar data and how it might be obtained. The defence assumes in this regard that S26 would be able to answer these questions, while there is nothing in his statement to support that conclusion. The only thing that can be concluded from his statement is that S26 was a member of a group of volunteers who worked with the border control guards. They gathered military intelligence and laid mines. His account of the registration of the radar activity of a Buk was purely hearsay.
The defence then attaches to this statement by S26 a request to obtain registrations from – evidently Ukrainian – Airborne Warning and Control System (AWACS) aircraft, which could have picked up the radar activity in the area in which MH17 crashed (marginal no. 571). It is not clear to us on what basis the defence concludes that Ukraine possessed such radar aircraft. This cannot be concluded from S26’s statement, and we are not aware of any such thing.
As we explained in June, the Public Prosecution Service has extensively investigated Ukrainian radar data, and not only the available data, but also the reasons why other data could not be provided. That investigation produced no indications that Ukraine possessed any relevant radar data other than that which it provided to the JIT. Repeated requests were made to the Ukrainian authorities for primary and secondary radar data, both in raw and processed form. The Ukrainian authorities informed us that they possessed no relevant radar data other than that which they had provided to the JIT.
And yet, Pulatov continues to press for further investigation into Ukrainian radar data without providing any specific indications pointing to the availability of relevant data.
With regard to evidence relating to the launch location, the defence should be expected to specify why the radar data in question could reveal information about an operational Buk system. After all, for all the reasons we already discussed in June, a Buk missile is less easy to detect than, say, a combat aircraft. Here too, a detailed explanation is also lacking.
The fact that Pulatov is requesting only Ukrainian radar data does not make his request any easier to comprehend. If he is indeed concerned with ‘hard data’ and ‘facts’ about the launch of a Buk missile, as he claims (marginal no. 574), then he should have also requested Russian radar data.
After all, on 21 July 2014 the Russian Ministry of Defence itself stated that on 17 July 2014 it had registered increased activity by a 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 these radar data.
The same is true of the radar data from a Russian air traffic radar system in Buturinskaya, which, according to the same press conference held by the Russian Ministry of Defence on 21 July 2014, allegedly detected a military aircraft in the vicinity of MH17. It was not until 18 February 2020 that the Russian authorities finally informed us that the radar data from Buturinskaya had not been saved. We do not see how the defence can tacitly accept this Russian response, while claiming that ‘it is impossible to justify why the JIT made so little effort to obtain all radar data (...) from Ukraine’. It is in any event hard to reconcile this with the defence’s claim that this investigation is necessary.