Court session 13 November 2020
Response by the Public Prosecution Service. Delivered before the full-bench chamber of The Hague District Court. For the presentation (in Dutch, with English interpreter), please watch the video or read the text.
MH17: Reaction on the defense
Participation (part 5 of 5)
We will now discuss Pulatov's requests for investigation that relate to the charge that he was involved in the downing of MH17. He is of the opinion that further investigation should be conducted into the evidence of his material contribution, of criminal intent (with regard to both himself and other parties involved), and of a possible self-defence scenario. In the grounds he offers in support of these requests, Pulatov makes various statements that we believe are incorrect. Because these statements are relevant to the broader question of what needs to be investigated and proved, we will address them first. We will then discuss the various requests one by one.
The ‘mistake scenario’
Pulatov seems to think that a military aircraft actually had to have been present in order to conclude that the intention existed to shoot down a military aircraft (part 5, marginal no. 54). This is of course incorrect. Previously, we drew a parallel between this case and a mistaken-identity murder: these generally occur because the killer expects someone to be at a certain location, but that person turns out to be somewhere else instead. The same applies here: the ‘mistaken-identity scenario’ is perfectly possible if the people concerned were expecting a military aircraft which did not materialise.
The notion that ‘military aircraft’ is synonymous with ‘combat aircraft’ (marginal no. 54) is also incorrect. This misapprehension leads Pulatov to conclude that the Public Prosecution Service cannot decide that the evidence in the case file rules out the presence of a fighter aircraft while simultaneously asserting that the case file contains various leads that suggest that on 17 July 2014 the intention existed to shoot down a military aircraft (marginal nos. 51-55). This faulty reasoning is analogous to thinking, ‘A dog is a pet; therefore any pet must be a dog.’ It wrongly assumes that any military aircraft must be a combat aircraft. There are also military transport aircraft, such as the Antonov-26 and the Ilyushin Il-76. In fact, the initial reports following the downing of MH17 mention an Antonov, as we explained at the hearing in June. On 14 July 2014, a few days before the MH17 disaster, an Antonov-26 was shot down in eastern Ukraine. And a month before that, in June, a military transport aircraft (an Ilyushin Il-76) was also shot down in eastern Ukraine, killing 49 military personnel on board.
Then, in his summary of what must be investigated and proven, Pulatov mixes up criminal intent and motive (see e.g. marginal nos. 56 and 60). Simply put: criminal intent centres on what someone was seeking to do; motive on why he wanted to do it. Criminal intent has to be proven; motive does not. Obviously, it must be proven that the intention existed to shoot down an aircraft with a Buk missile. But there can be no reasonable doubt that such an intention existed. If a Buk installation shoots down an aircraft, it is doing the very thing it was built for. It was not built to slice a cucumber or mend a flat tire.
As we have already explained, the requirement for establishing criminal intent is no more specific than proving that the intention existed to shoot down an aircraft. Which aircraft was intended to be shot down, why that intention existed and what the specific reason was to push the ‘launch’ button are all questions that do not necessarily have to be answered at this criminal trial. This is why the court – rightly – did not include them in the list of questions arising from the indictment. The answers to these questions are important to many of the next of kin and may also be relevant in future criminal proceedings against other parties involved. This is why the Public Prosecution Service would ideally like to see these questions answered. But ordering further investigation into these matters cannot be deemed necessary for these proceedings.
The question of which aircraft the defendant intended to shoot down is also not relevant to a decision on whether the offence involved malice aforethought. As we have already explained: in a case of murder, criminal intent and malice aforethought relate to the killing of another person, not to the specific identity of the victims.
The evidential question is not currently under consideration; we are talking only about whether further investigation is warranted. In this regard the court can observe that we are dealing with two concrete, diametrically opposed standpoints. Over a period of several days, Pulatov and his co-perpetrators spoke to each other in various intercepted telephone conversations about their need for a Buk TELAR, which they saw as a solution to the problem of enemy air strikes. If these conversations related to the Buk TELAR that downed MH17, it is clear that malice aforethought existed. Pulatov states that he did speak to other parties on 16 and 17 July 2014 about a Buk, but claims that these conversations were meant to mislead the enemy and were not really about a Buk TELAR. If it is true that Pulatov merely spoke on the telephone about a fictitious Buk and had nothing to do with the downing of MH17, the court will acquit him and will have no further cause to consider the question of malice aforethought. Thus, regardless of who is correct, investigation into the question of which aircraft the perpetrators intended to shoot down should not factor into any decision the court must take about malice aforethought.
There are no grounds for further investigation into the possibility of self-defence, putative self-defence or use of excessive force in self-defence. ‘Self-defence’ (noodweer) is the legitimate defence of oneself or of someone else. ‘Putative self-defence’ (putatief noodweer) means that someone genuinely – but wrongly – believes they need to defend themselves. ‘Excessive force in self-defence’ (noodweerexces) means that in defending themselves someone goes further than necessary but that this is understandable given the circumstances.
It is clear from the explanation offered by the defence that they are merely tossing hypothetical balls into the air: there are no facts or circumstances that point to a self-defence scenario. The mere fact that a defendant wishes that there were grounds for immunity from criminal liability is not sufficient to warrant further investigation. The court will also not be ordering further investigation to determine if the crew of the Buk TELAR was under the age of 12, or not criminally liable by reason of diminished responsibility. There is simply nothing in the case file that would warrant this.
In taking these positions Pulatov ignores the fact that self-defence can already be ruled out (see marginal no. 57). Self-defence is a legal excuse. An action that can be characterised as a legal excuse can be seen, at the very least, as socially accepted and thus permissible. Because the concept of self-defence can exist only in circumstances of necessary defence, you might even say that a decision that self-defence is applicable in a given case is a way of saying that a defendant has done the right thing – the same thing that anyone would have done, morally speaking, in that situation. This label cannot be applied to the downing of MH17, regardless of the intended purpose of the Buk TELAR. To reach this conclusion, it is sufficient to observe how the international community has responded to the violence in eastern Ukraine since 2014.
If the court does indeed establish that a Buk TELAR of the Russian army was involved in the downing of MH17, this would constitute a violation of Ukrainian sovereignty and territorial integrity. Militarily invading another country without permission is a violation of international law, whether the invasion is meant only as a threat or is accompanied by shooting (regardless of the target). The only side in this conflict in the position to claim self-defence is the Ukrainian government. And there is no such thing as employing self-defence against another party's self-defence. The fact that the deployment of the Buk TELAR was not justified is also apparent from the fact that all the parties involved in it are trying to evade responsibility like thieves in the night.
Not only is there nothing in the file that would justify further investigation into a self-defence scenario; it is also clear even now that a defence based on this principle can never succeed. The same applies to the use of excessive force in self-defence and (for similar reasons) to putative self-defence. In addition, putative self-defence, as an excuse that would absolve the defendant of any guilt, is an individual exculpatory ground. This means that it applies only to the person who successfully invokes it, not to the other parties involved. For that reason an investigation into putative self-defence on the part of the crew of the Buk TELAR cannot have any consequences for Pulatov.
Requests for further investigation
After that introduction about the scope of the investigation in these proceedings, we will now turn our attention to the various requests for investigation.
Linguistic expert and Koreets (marginal nos. 6-13)
Pulatov requests further investigation of a conversation from 17 July 2014 which the case file asserts that he took part in. The other participant is Koreets (‘Tskhe’). This is a relevant conversation, because the participants talk about the downing of a ‘Sushka’, which had shot down a civilian aircraft a short time before. The conversation took place on a telephone number ending in ‘511’. Pulatov has stated on video that in 2014 this was his number and that he could always be reached on it.
In his video statement, Pulatov asks, after listening to the conversation, ‘Yes, but who is talking there? [...] I don't recognise them either.’ Then he says: ‘Koreets, he’s clear.’
One thing we can conclude from this is that Pulatov claims not to recognise the voice of the person using his telephone number. This may have to do with the fact that the voices in this conversation are more agitated than in most of the other conversations in the file, as we have been given to understand by Russian-speaking reporting officers.
It is unclear if Pulatov is claiming that he does or does not know Koreets. His statements in this regard contain internal contradictions, and those questioning him did not ask any follow-up questions. The case file contains various other conversations from the same period between Pulatov’s number and Koreets, who is also called ‘Tskhe’. In a conversation that took place at 13:22:24 on 16 July 2014, Koreets tells Pulatov that at that moment there is a ‘Zushka’ and a crew with him. Pulatov then orders him to head to Stepanovka. ‘Zushka’ is the nickname for the ZU-23 anti-aircraft gun; this can be inferred from various intercepted conversations in the case file. In a conversation that took place at 15:28:24 on 16 July 2014, Pulatov instructs Koreets to keep his eye on the skies because there was a ‘motherfucker’ flying around.This and other conversations between Pulatov's number and Koreets were provided to Pulatov in the form of audio files. If we consider a broader period, there were a number of additional conversations between these two individuals, but they were omitted from the case file due to lack of relevance. Conversations from June and July 2014 have already been provided to the defence for inspection.
If we take stock of all this information, we can only conclude that there is, at present, no need to look into this intercepted conversation any further. There are no grounds that would warrant an investigation into manipulation since the only thing that Pulatov clearly states is that he does not recognise his voice in the conversation. That is not an indication of manipulation. Pulatov has now had a chance to listen to hundreds of audio files of conversations involving this telephone number and to verify their authenticity on the basis of metadata and historical telecom traffic data. The fact that he has confirmed that he did indeed take part in a number of conversations and only disputes this particular one supports the conclusion we previously drew on the basis of the extensive validation investigation with respect to the telecom data, namely: there is no reason to suppose that conversations have been manipulated. The fact that Pulatov does not recognise his own voice in a single conversation does not give rise to a manipulation hypothesis that can be investigated in any meaningful way.
It does leave open the possibility that someone other than Pulatov had this conversation with Koreets. However, Pulatov's video statement raises a number of questions on this front. Does Pulatov know Koreets or not? Did Pulatov also listen to the other conversations with Koreets in his possession? These also dealt with air defences; perhaps these could refresh his memory.
And has Pulatov listened to the conversation in which he does not recognise his voice in conjunction with the conversations about the same topic that he took part in before and after that one? After all, the conversation with Koreets does not exist in isolation. Shortly before, Pulatov called Kharchenko. In that conversation, Kharchenko told Pulatov that they had shot down a Sushka which had shot down a ‘Chinese passenger vehicle’ a short time before. Less than an hour after the conversation with Koreets, Pulatov called Dubinskiy and told him that the Buk had downed a Sushka after that Sushka had downed the Boeing. It seems quite likely that Pulatov would be able to recall his relationship with Koreets and also this specific conversation if he were to listen to it in the context of the other conversations.
But even if that is not the case, an investigation into this matter cannot be deemed necessary. This conversation is part of a series of interrelated conversations on the same subject. Kharchenko told Pulatov about an aircraft being shot down. Pulatov then passed this information on to other parties, first to Koreets and then to Dubinskiy. Pulatov does not dispute the conversations with Kharchenko and Dubinskiy. The question of whether or not he had a similar conversation with Koreets in-between those two conversations has no bearing on the decisions the court must make.
There is also no reason to think that an investigation into this one conversation could yield more information about other intercepted conversations than Pulatov can offer himself. At this point, the audio files of his own conversations that have the most bearing on the evidence have been in his possession for over eight months. And for months now he has also had all the data and audio files of hundreds of other conversations. If there was something wrong with this material, we surely would have heard about it by now. Moreover, Pulatov acknowledges that he was using the ‘511’ number at the time and states that people knew that he could always be reached at that number. Within this larger context, the fact that Pulatov cannot recognise his own voice in a single conversation, which is not a cornerstone of the evidence, does not constitute grounds for further investigation. Pulatov already has all the necessary resources to take a closer look at related conversations and in doing so refresh his memory.
Kharchenko (marginal nos. 14-17 and 39-45) and Girkin (marginal nos. 31-34)
Pulatov would like to examine his co-defendants Kharchenko (part 4, marginal nos. 52-58 and part 5, marginal nos. 14-17 and 39-45) and Girkin (part 5, marginal nos. 31-34) about various topics. There is no question that he has an interest in questioning these two individuals. They worked closely with him on and about 17 July 2014, and they are charged with working together to commit the offence in question.
As the court is aware, we have made a number of attempts to examine the co-defendant Kharchenko. We have also made considerable efforts to notify Kharchenko of his criminal trial. Thus far, none of these attempts have elicited a response. His whereabouts are unknown, and we have no way of contacting him.
An address is known for Girkin, but he has indicated on various occasions that he wants nothing to do with this trial. The requests to answer questions posed by the Public Prosecution Service were sent to his address, which is known to the Russian authorities. He did not respond. In April and May of this year, Girkin reiterated in interviews that he would not be cooperating with these criminal proceedings. He has the right, as a defendant, not to answer any questions as a witness.
It is reasonable to conclude that neither Kharchenko nor Girkin can be examined as witnesses within an acceptable amount of time. For this reason, this request must be denied, however much we, like Pulatov, would like to question these individuals.
Dubinskiy (part 4, marginal nos. 182-183 and part 5, marginal nos. 18-23)
The situation concerning the co-defendant Dubinskiy is somewhat different. He too has long refused to cooperate with this trial. Recently, however, he gave an interview in which he addresses the Public Prosecution Service and the court and comments on the charges against him. We have said repeatedly since March that we would like to hear the views of the defendants in this trial and that we as the Public Prosecution Service also have the task of safeguarding their legitimate interests. For that reason, we are now going to play the video interview with Dubinskiy, so that his standpoint can also be heard at this trial. Later today, we will ask that this footage be added to the case file in all four cases. The video starts with Dubinskiy talking about this trial.
We have listened carefully to Dubinskiy's words, just as we listened carefully to Pulatov last week. It is important that they have now spoken about these proceedings and the charges against them. It is also good to know that the defendants that are not represented here, such as Dubinskiy, are able to follow their trial adequately. The remarks of both defendants have now been played during this hearing so the court can factor them into its assessment of the requests for investigation and the evidence.
Dubinskiy states that he believes the intercepted conversations to be manipulated and that he received information about a Ukrainian Buk being in the vicinity of Zaroshchenske on 17 July 2014. He does not want to reveal whom he received this information from. He also states that he has had no contact with the Russian Ministry of Defence about the Buk TELAR, nor with the members of the 53rd Anti-Aircraft Missile Brigade. That is a remarkably narrow denial of the charges against him. We notably have not heard Dubinskiy deny that he was involved in directing the convoy and guarding the Buk TELAR. Indeed, Dubinskiy has since confirmed on multiple occasions that he was indeed involved in the transport operation: in an intercepted telephone conversation, to a witness and on the internet forum Glav.ru. On 24 July 2015 Glav user ‘Karahan’, who has been identified as Dubinskiy, posted the following message:
‘Sorry, I repeat, I have no comment on the Boeing. Especially since I had nothing to do with the Buk, except the transport.'
The way Dubinskiy has spoken about the intercepted conversations in which he was involved is strikingly general. At the hearing back in March, we explained at length how we made enquiries with experts about how to investigate whether intercepted conversations had been manipulated. The outcome of those enquiries was that general claims about manipulation cannot be investigated, though specific claims can be. Investigators require a concrete hypothesis that can be tested. In his interview Dubinskiy states that he has been following the criminal trial, but then he goes on to say, in purely general terms, that he believes the intercepted conversations were edited. He says this even though it must have been clear to him since at least as far back as March that such general assertions cannot be investigated by experts.
What Dubinskiy does not dispute in the interview is that he took part in the various intercepted conversations involving him which we previously played during witness appeals and in court, and which can be found online.
- In September 2016 the JIT released an intercepted conversation from 19:09:20 on 16 July 2014 in which Dubinskiy can be heard telling Semenov that they cannot do anything about the ‘Sushkas’ (a nickname for Sukhoi combat aircraft) and that it would be good if he could send over a Buk in the morning;
- Both in 2015 and in 2016 the JIT released an intercepted conversation from 09:08:26 on 17 July 2014 in which Chernykh informs Dubinskiy about the arrival of a Buk in Donetsk and in which Chernykh asks Dubinskiy whether the Buk has arrived with a crew;
- In September 2016 an intercepted conversation from 09:22:19 on 17 July 2014 was played in which Dubinskiy can be heard asking Chernykh if he has brought one or two. Chernykh replies that he has one, on a low-loader. Dubinskiy then tells him that the Buk will travel together with the Vostok tanks.
- At the hearing of 26 June, we played an intercepted conversation from 16:48:44 on 17 July 2014, i.e. shortly after flight MH17 was shot down. Kharchenko can be heard telling Dubinskiy that they are at the location and have just downed a ‘Sushka’. Dubinskiy then instructs Kharchenko to come ‘here’ (probably Donetsk) and to leave a company behind to guard the Buk;
- At the same hearing an intercepted conversation from 19:54:17 on 17 July 2014 was played in which Dubinskiy tells Girkin what he had heard from Pulatov a short time earlier, namely that the ‘Sushka’ had first shot down a Boeing and that that ‘Sushka’ was then itself shot down by the Buk;
- In 2015 the JIT released a conversation from 07:41:06 on 18 July 2014 in which Kharchenko informs Dubinskiy that ‘the vehicle’ is now in Russia;
- During the appeal for witnesses in March 2015, an intercepted conversation from 08:01:35 on 18 July 2014 was played, in which Kharchenko tells Dubinskiy that ‘Bibliothekar’ (Chernykh) has escorted ‘the vehicle’ to Russia.
Dubinskiy has not disputed any of these conversations, all of which are available for him to listen to. The only conversation that he does specifically dispute is the one from 17:42:43 on 17 July. Previously, the SBU released excerpts of that conversation. We will now play the whole conversation.
MH17: tapgesprek Dubinskiy - Botsman
Dubinskiy: Hello, yes Botsman, I'm listening.
NN: Hi, big brother, how are you?
Dubinskiy: Hi. Not so great. We’re in Marinovka now. That’s why things aren’t going so great, I have to say. But we’re holding up.
NN: So what’s going on then?
Dubinskiy: What do you think? We’re getting hit non-stop by Grads...They’ve only just now let up for a moment, fuck.
NN: Got it. A plane was shot down near us. I have to go there now to pick up the boxes. I’ll hand them over to you, just in case ... and then you can pass them on afterwards, right?
Dubinskiy: Who got shot down?
NN: What's that?
Dubinskiy: I won’t be in the city for another two hours or so. I'm in Marinovka now, as I said. We also just shot down a Sushka, over Saur-Mogila. We got a Buk-M, so... In about two hours, I.... And.. when will you? Hey, will you be in the city for a while?
NN: I’ll be in Gorlovka....I don't know. I'm going to look for ‘him’ now, look for the boxes. And as soon as I find them, I think I'm going head straight home.
Dubinskiy: What are the boxes for? Oh... those boxes. The boxes...
NN: The black boxes, yeah.
Dubinskiy: Got it, got it. My guys are looking now too. The Grads have been hitting us hard. The shelling has only just now stopped. But we’re managing to hold our position.
Dubinskiy: Yeah, of course, we’ll continue to hold Marinovka, and for them, that’s the only fucking way out of Lugansk province. So can you imagine— [interrupted by B]
NN: Have you had heavy losses?
Dubinskiy: Very heavy. So...
Dubinskiy: We captured.... Yesterday the reconnaissance battalion captured Marinovka, and the spetsnaz group took three hills. The infantry was deployed, and together we held our position, and after that, another infantry group came, and we only left this morning, and the infantry was completely crushed by the Grads, and we had to deploy another damn reconnaissance battalion in Marinovka. And now, once again— [Interrupted by B]
NN: I was in Lugansk last night. Last night I was in Lugansk.
Dubinskiy: They’re trying to flee Zelenopillya, but their only way out is through me [my position], do you follow? So that sucks. Yesterday two Sushkas were shot down, today another one. Thank God the Buk arrived this morning. That’ll be a big help. But of course, things will still be difficult. They’re not letting any bloody tanks through, no nothing. Five batteries of Grads are blasting everything to hell and three [unintelligible] batteries of SAU3s. In short, a real picnic.
NN: Hang in there, what can I say? Call me if you need anything. I’ll come right over.
Dubinskiy: No need. Thanks, thanks, brother. In an hour or two I'm planning to go there. Things seem to have calmed down a bit. In an hour or two, I need to be in Donetsk: three 'Gvozdikas’ have arrived there, and I have to pick them up and bring them here because we’re having a tough time of it here [unintelligible].
NN: Maybe they need to be fired on by a Grad?
Dubinskiy: Ahhh, the thing is: we do have a Grad, but we haven't got a KAO, and that sucks. So that’s [point] one. And secondly— [Interrupted by B].
NN: That’s tough luck, for sure, not having a KAO.
Dubinskiy: Now we’re waiting because Russia is supposed to hit their positions from their side. They [i.e. the enemy, presumably] have taken position near the border, by Grigorovka, and they started fucking shooting at us! So that’s the current situation. But anyway, if I'm in the city, I’ll call you, okay?
NN: Fine, fine [unintelligible].
Dubinskiy: And listen, I talked to Pervy. They have nothing related to Palestinets. I assume he’ll be released in a day or two. Aha.
NN: And on the docks? Hey, is Mongol one of your men?
Dubinskiy: No. Mongol is one of Boroday’s assholes, shit! Mongol and Baranov. You know Baranov, right?
NN: Their conversation was tapped, the fact that they’re planning to...that they’re planning to knock Bez off.
[A man's voice (hereinafter: C) is audible in the background.]
C: ...in contact... speak... [The rest is inaudible.]
Dubinskiy: [unintelligible] ...want, shit. I told him just yesterday. I told him just yesterday where this fucking ‘Baran’s’ base is.
NN: [A man’s voice (C) is audible in the background. C: ‘received’] Khmury, I’ll call you later.
Dubinskiy: That’s fine.
Dubinskiy suggests that this conversation took place on 16 July 2014, rather than the 17th. In response to the position recently taken by Dubinskiy on the subject, the investigation team re-examined the available historical telephone data for both participants in the conversation and the metadata of the intercepted conversation. They show that this conversation took place on 17 July, not 16 July 2014. If any manipulation occurred, it would have been a complex form of manipulation which involved not only several parts of a single intercepted conversation, but also the metadata and historical data of various telephone numbers.
If we look at the substance of this conversation, we can conclude that it must have taken place on 17 July 2014, not 16 July 2014:
- in the conversation Dubinskiy says that the reconnaissance battalion captured Marinovka ‘yesterday’. The case file shows that this town was captured on 16 July, not 15 July 2014;
- in the conversation Dubinskiy can be heard saying: ‘Two Sushkas were shot down yesterday.’ According to multiple sources, two Ukrainian SU-25 fighter aircraft were downed in eastern Ukraine on 16 July 2014. That was not the case on 15 July 2014.
A striking aspect of this conversation is Dubinskiy’s remark that he was in Marinovka. The examination of various intercepted conversations, in combination with the historical telecom traffic data, shows that Dubinskiy was actually not in Marinovka either on 16 July or on 17 July 2014; rather, he was in Donetsk the whole time. Maybe this is an example of the kind of deliberate deception used in telephone conversations, which Pulatov has mentioned. It is unclear whether this misinformation was intended to mislead the enemy or Dubinskiy’s fellow fighters. In various online posts, Pulatov has described Dubinskiy as someone who makes things up, who likes to act important and who, during the conflict, was mainly concerned with enriching himself. This means that it is possible that during this telephone call Dubinskiy was sitting in his headquarters pretending to be with his men at the front.
Be that as it may: Dubinskiy’s unsubstantiated assertion that this conversation was misdated does not, in the view of the Public Prosecution Service, merit further investigation. The case file already contains so much evidence to the contrary that this is not necessary. Moreover, Pulatov has since admitted that on or about 17 July 2014 he and the people around him spoke on the telephone about the Buk. This is also at odds with Dubinskiy’s unsubstantiated assertion that incriminating intercepted conversations were edited.
At the end of the interview Dubinskiy states that he is prepared to answer further questions in the Russian Federation while connected to a lie detector. He does stipulate a number of conditions for this, however: he wishes to receive the questions beforehand, to decide for himself what he will and will not answer, and to answer only questions about ‘the Boeing’. This means the considerations associated with assessing Pulatov's request to examine Dubinskiy are different from those for the other two defendants. If there are indications that a major potential witness’s willingness to cooperate has changed in a positive sense, it may become necessary to examine that witness later in the proceedings.
There is no shortage of questions that can be put to Dubinskiy. We have just played the complete conversation in which Dubinskiy says on 17 July 2014 that ‘the Buk-M arrived this morning’. We also explained that while Dubinskiy disputes the date of the conversation, he apparently does not take issue with the content. This leaves many open questions about the Buk mentioned during this call, particularly given Pulatov’s statement about these kinds of conversations.
As already discussed in court, on 6 February 2015 Girkin stated to the Russian authorities that on the afternoon of 17 July 2014 he was informed that his troops had shot down an aircraft. It would also be relevant to learn what Dubinskiy knows about that, and especially to see if he has anything to say about what happened to that aircraft, if it was not MH17.
The fact that Pulatov did not submit this witness request earlier, that he offers no explanation for the late date of the request, and that the request he submitted last week does not mention Dubinskiy’s apparent change of heart – all this is less important to the Public Prosecution Service than his clearly major interest in examining Dubinskiy. In our view, in assessing this request in light of the necessity criterion, the court should take account of the fact that the indications that Dubinskiy may be willing to answer questions emerged only quite recently, and this request should be granted.
As far as we are concerned, the court would thus be accepting Dubinskiy's offer to answer further questions, namely as a witness in Pulatov's case. This does not need to be done using a lie detector, since that has no added value. Like most other countries and international tribunals, the Netherlands regards the results of a lie detector test as insufficiently reliable to serve as evidence in a criminal case. Given the late stage of this trial and all the reservations and conditions that Dubinskiy has formulated, we would ask the court to stipulate in its decision that the examination should be conducted in the manner deemed most efficient by the examining magistrate. In that connection the examining magistrate should be given the leeway to make the examination conditional on Dubinskiy’s prior consent to testify as a witness in Pulatov’s case. After all, such an examination can only be performed on a voluntary basis, because, as a defendant, he has the right to remain silent.
If the court does indeed grant this request, it seems unlikely that Dubinskiy’s statement will be ready before February or March. It is also by no means certain that an examination can be conducted at all. This proposed examination cannot interfere with the proceedings on the merits of the case. Over the past two years Dubinskiy has had multiple opportunities to give a statement. He has always refused to do so. It is uncertain if things will be any different this time. If Dubinskiy does submit a statement, it can be discussed after the presentation of the documents in the case file. The timetable for this trial cannot be made contingent on this.
For the record we would like to reiterate that we remain open to hearing the viewpoints of Girkin and Kharchenko as well. If, like Pulatov and Dubinskiy, they wish to explain their position on the charges in a practical manner, we will also listen to them. For example, we are curious to hear what Girkin thinks about Pulatov's position that all the conversations about a non-operational Strela on and about 17 July were intended to mislead the enemy and were not really about a non-operational Strela-10. In 2018, Girkin stated online that the DPR militia which he commanded had a single Strela-10 that was almost always out of commission, had a poorly trained crew and, as far as he can remember, never fired a missile, even during the fighting around Marinovka. Was Girkin still seeking, in 2018, to mislead the enemy about events that had occurred in 2014? Or was Girkin speaking the truth, and was that one Strela indeed non-operational? Of course, Girkin has the right to continue hiding behind Dubinskiy and Pulatov. But if he wishes to take responsibility and respond, we will listen.
Khodakovsky (marginal nos. 24-25)
The next request involves examining Khodakovsky about a conversation he had with Dubinskiy. The defence wishes to ask Khodakovsky ‘what he meant in this and possibly other conversations by “buk” and to explain that’ (marginal no. 25). The problem with this request is that in the conversation in question Khodakovsky does not use the word ‘Buk’ even once; it is mentioned only by Dubinskiy. The explanation does not specify what is meant by ‘possibly other conversations’. Thus this request, too, cannot succeed due to its lack of a basis in fact: you cannot examine a witness in the hope of obtaining an explanation of what he meant by something he never said.
Kim and Zakharchenko (marginal nos. 26-28)
Then there is the summary request to examine Kim and Zakharchenko about a conversation they had. This request is evidently meant to bolster Pulatov’s position that separatists were aware that their telephones were being tapped and took advantage of that fact in order to conduct misleading conversations. We already know from the material in the case file that various separatists knew that their phones were being tapped: no witnesses need to be examined for that purpose. The question of whether separatists were conducting misleading conversations is one that cannot be asked or answered in general terms. We must consider each conversation individually to determine if it was meant to mislead or not. In doing so, one relevant question is the extent to which the conversation reflects actual events and is in line with other, related conversations. While Kim may be able to say something about the conversations he himself took part in, he cannot shed any light on Pulatov’s conversations. Zakharchenko has long been unable to testify, as he was killed in a bomb attack in Donetsk in 2018.
Averyanov (marginal nos. 35-36)
The defence is asking to examine Averyanov about Pulatov’s activities on 17 July 2014. By doing so the defence can supposedly confirm that on that day Pulatov was involved in transporting tanks, and therefore not a Buk missile. This request seems to be rooted in the cliché that men are incapable of multitasking. Of course, this is largely true, but it does not rule out the possibility that a man could conceivably manage to do more than one thing on the same day. Pulatov himself has stated that he had ‘many tasks to complete’ on 17 July. The fact that Pulatov was also involved with tanks on 17 July 2014 is already documented in the case file and is not disputed by anyone. Yet this tells us nothing about all those other tasks that Pulatov had to fulfil that day. Therefore there is no point in examining Averyanov about tanks.
Velikorodiny, Sinenkov and Averyanov (marginal nos. 37-38)
The next request deals with examining multiple individuals who allegedly attended a briefing with Pulatov at 10:00 on 17 July 2014 and who would be in a position to affirm that nothing was said there about a Buk missile. There is no evidence in the file that this was indeed the case. This request thus cannot serve to refute incriminating evidence. There are no concrete grounds for thinking that these requested examinations could yield exculpatory evidence. It should be obvious to everyone that there were many instances on 16 and 17 July when Pulatov was not involved in transporting and guarding a Buk missile. It is irrelevant how often, when and where Pulatov was not involved in committing the offence listed in the indictment as long as this information does not undermine the evidence that at other times Pulatov did play a role in those offence. Therefore, the defence does not have an interest in these examinations.
Dudnichenko and Sinenkov (part 5, marginal nos. 39-49)
The next person the defence wishes to examine is Dudnichenko, who used the call sign ‘14th’. The investigation showed that in July 2014 Dudnichenko was receiving intelligence about flight movements involving the Ukrainian armed forces and that as of 15 July 2014 he sought direct contact with Pulatov in order to pass on this information to him. Moreover, along with Pulatov’s telephone number, Dudnichenko’s number was the only number that sought contact with the number ‘-6335’ on 17 July 2014, making it likely that it was in use by a crew member of the Buk TELAR or someone in close contact with the crew. Furthermore, Dudnichenko’s number was the only one that actually connected to ‘-6335’, a connection that lasted for 60 seconds. This connection occurred at 14:00, i.e. around the time the Buk TELAR arrived at the launch site and a few minutes after Pulatov and the user of the number ‘-6335’ attempted to connect. The investigation revealed that approximately half an hour after being in contact with ‘-6335’ Dudnichenko called an intelligence source known as ‘Taiga’, who had access to information about flight movements from various airfields. In this telephone conversation Dudnichenko asks ‘Taiga’ to inform him immediately if any new ‘guests’ arrive, because they are already ‘waiting’. In a conversation between Dudnichenko and an unknown individual, which took place a few minutes before the conversation mentioned, Dudnichenko says that the lines of communication between him and ‘Taiga’ should be kept as short as possible when it comes to information about ‘guests’.
It is clear to us that Pulatov does have an interest in examining Dudnichenko. The Public Prosecution Service would like to have questioned Dudnichenko as well. The question of whether the defence’s interest is so great that an examination at this late stage can be deemed necessary must, however, be left open, due to practical considerations. This week we also made enquiries about Dudnichenko with the Ukrainian authorities, and like other figures in this case, his current whereabouts are unknown. Dudnichenko has been wanted by the Ukrainian authorities for years. He is being sought for his role in the violence in eastern Ukraine. He may still be living in the part of eastern Ukraine which is not under government control. There is thus no meaningful way of carrying out the request to examine this witness. It is not likely that Dudnichenko could be examined within an acceptable time span. The question of whether this examination is necessary can therefore be left unanswered.
In investigations where the pool of witnesses is limited to the Netherlands, the examining magistrate is sometimes, just to be on the safe side, instructed to examine a particular witness even if the examination is not expected to be possible in practice. In this trial, there are sound reasons for the court not to do this but instead to critically assess each examination individually, in order to determine which are feasible and which are not. In this case the examining magistrate would have to track down this witness, something the JIT has been unable to do in all these years. To do so, the examining magistrate would have to enlist the help of the authorities of other countries. Those authorities would then in turn have to conduct their own enquiries and report back on their findings to the examining magistrate. Only after receiving that report would the examining magistrate be able to make a concrete finding on the matter. This would be labour-intensive and time-consuming for all parties concerned. The Ukrainian authorities have no de facto authority over areas in eastern Ukraine or over Crimea. At the same time there is no relationship of legal assistance between the de facto authorities of those areas because the Netherlands does not recognise them as independent states. This makes it practically impossible to trace and call witnesses from that part of the country. In order to prevent unnecessary delays the examining magistrate should only be instructed to perform tasks that are actually feasible.
The defence wishes to question Sinenkov about the fact that he has been in contact with many telephone numbers from the same series as the number ending in ‘-6335’. The position that this could yield relevant information is, in our view, speculative. Although Sinenkov was indeed in contact with many other very similar numbers at that time, he was never in contact with that particular number. If Pulatov cannot remember whether he called this number (and if so, why), it seems unlikely that someone else, who has had no contact with this number, would be able to say many years later who the user is because he once had contact with similar numbers. The material about Sinenkov in the case file suggests that it is likely that the ‘-6335’ telephone number was used on 17 July 2014 by someone who was in contact with Sinenkov's and Pulatov's group. It does not suggest that Sinenkov himself knows the identity of the user of a telephone number he never called. It is therefore not likely that Sinenkov would be able to provide the requested information.
Audio recordings and text messages (marginal no. 46)
Pulatov has requested the audio of a conversation and the transcripts of a number of text messages from or sent to the number +380 63 342 63 35. Pulatov seems to be under the mistaken impression that there are intercepted conversations and text messages lying around somewhere. The report Primo-05484 states that historical telecom traffic data was received from the number +380 63 342 63 35 and that on the basis of this data, in combination with intercepted conversations involving other people, investigators attempted to trace the movements of that number’s user and gain insight into the role he may have played on 17 July 2014. The reference on p. 4 of that report to a 60-second conversation is based on the historical telecom traffic data. As indicated in the table on that page, a 60-second call took place at 14:00:57 on 17 July 2014 with the user of the number +380 63 121 25 01. Put simply, neither this 60-second conversation nor the text messages were intercepted. For that reason we cannot comply with this request.
Members of the 53rd Anti-Aircraft Missile Brigade (part 4, marginal nos. 213-217 and part 5, marginal nos. 39-49 and 64) and Gilazov (marginal no. 45)
At various points Pulatov requests permission to examine members of the Russian 53rd Brigade. In one instance the request refers to ‘the members of the 53rd Brigade’ (marginal no. 64); in another he specifies the names of various individuals (part 4, marginal no. 213). There is no cause to assess the substantive grounds for the request to examine members of the 53rd Brigade because it is not a valid request.
A request to examine a witness must be sufficiently specific and clear. It can only be deemed sufficiently clear if it contains enough identifying details of the witness in question. After all, without those details it is impossible to determine who the defendant wishes to question and whether that person can be traced. The request to examine ‘the suspected crew of the Buk, along with all members of the 53rd Brigade who may have been involved in its transportation’ is too general. There is no way to establish which individuals the defence wishes to examine. In its present form the request must therefore be denied.
The fact that the request mentions a number of names of individuals who must ‘in any case’ be examined (part 4, marginal nos. 213-214) does not make it any more likely to succeed. It is clear that the defence is merely listing the names of individuals from the 53rd Brigade, without knowing if they actually possess the requested knowledge. They provide no information to the effect that these individuals made up the crew of the Buk TELAR or were involved in its transportation. And these are the very people the request is aimed at (marginal no. 215). The defence has indicated that it cannot at present make a selection from among the members of the 53rd Brigade who need to be examined (marginal no. 221). This underscores the fact that Pulatov is seeking to obtain information from a military unit – not from an individual who can be examined as a witness.
Pulatov and the Public Prosecution Service are united in their desire to obtain information. The case file contains a request for legal assistance which shows that the Public Prosecution Service posed similar questions to the Russian Federation back in 2018 as the ones that Pulatov has now formulated. In that request for legal assistance the Russian Federation was asked to provide the location of the Buk TELAR ‘3X2’ between 23 June and 23 July 2014, to indicate which commanders were responsible for it between 15 July 2014 and 19 July 2014, and to specify who made up the crew during that period. Briefly put, the response of 25 October 2018 from the general staff of the armed forces of the Russian Federation stated that in July 2014 there was no Russian Buk TELAR in the territory of the provinces of Donetsk or Luhansk, and that the questions regarding who was responsible for the Buk ‘3X2’ and who was on its crew would therefore not be answered.
That lack of concrete information from the Russian Federation about the TELAR ‘3X2’ of the 53rd Brigade in July 2014 is a very striking element of this case. The Russian Federation has spared no expense or effort to influence this investigation. And yet it declines a straightforward opportunity to demonstrate that the 53rd Brigade was not involved. A simple answer to the question of where the TELAR '3X2' was on 17 July 2014 and who made up its crew, which would allow these individuals to be examined as witnesses, could have saved a great deal of investigation over the past few years. The fact that the Russian Federation has for years declined to provide that answer speaks volumes.
We can in any case say the following about Pulatov’s request: in so far as he is seeking denials from members of the 53rd Brigade who cannot make statements on the basis of their own knowledge but only as representatives of the Russian authorities, the case file already contains plenty of denials such as these. The court can factor these into its assessment. In so far as he is seeking denials from members of the 53rd Brigade who were personally involved in transporting or operating the Buk TELAR that shot down MH17, his request lacks the necessary details that would make it possible to identify these individuals.
In terms of the names mentioned, the request is not sufficiently substantiated, and in terms of its wider scope, it is invalid. Moreover, it is already clear that the Russian authorities are not cooperating in answering the questions concerned. This means that it will not be possible to conduct these examinations within an acceptable time frame.
As we already explained yesterday, Gilazov (marginal no. 45) cannot be examined because he is dead.
S40 (marginal no. 50) and S38 (marginal nos. 65-68)
It is true that several pages in witness S40’s statements have been redacted with the authorisation of the examining magistrate. This was done because of concerns for the witness's safety. It is, however, clear from the preceding pages that the redacted information is not exculpatory in nature: this witness states that he does not know what ‘Giurza’s’ role was.
Witness S38's entire statement was omitted from the case file with the authorisation of the examining magistrate, in order to protect their safety. It is already clear from the article 149b decision with regard to witness S38 that the examining magistrate asked the Public Prosecution Service to look into whether it was possible to draw up a ‘net official report’ on the basis of S38’s statement. We considered this request but concluded that this would not be possible. The examining magistrate adopted this conclusion and granted the application requesting that the entire statement be withheld. In short, the scope for adding information to the case file with due regard for the risks to S38's safety has already been expressly and critically assessed by the examining magistrate.
There is also no reason to believe that S38 would be able to provide any exculpatory information. In the article 149b procedures the Public Prosecution Service explained, in respect of each individual witness, that no exculpatory information was being withheld and gave reasons for that position. The examining magistrate naturally took account of this issue in the assessment. The fact that these statements cannot be included in the case file because of the risks to S38’s safety is regrettable for the Public Prosecution Service, not for Pulatov.
These requests therefore stall at two obstacles we have previously explained in general terms: a witness examination cannot serve to have a witness re-state something that they have already said but which has been left out of the case file to protect their safety; and a defendant does not have an interest in seeking out additional incriminating information: something that is not there cannot be used against Pulatov.
As an alternative to this request, Pulatov asks the court to instruct the Public Prosecution Service to re-assess whether certain documents concerning S38 can be added to the case file. No grounds are given for this request other than the defence’s doubts that it is truly necessary to withhold these documents (marginal nos. 67-68). It adduces no arguments about changed circumstances or apparent errors in the initial assessment. Several months ago, the Public Prosecution Service, the examining magistrate and the court undertook a major re-assessment of a number of other protected documents. At that time the conclusion was that the circumstances had not changed. In the opinion of the Public Prosecution Service, an additional assessment of the documents relating to S38 would yield exactly the same result as the first one. Without substantive arguments to the contrary, this request can be regarded as unnecessary.
With these kinds of requests it is useful to consider that technical legal terms like ‘inconvenience to a witness’ do not properly reflect the problems we are dealing with in this case. As we have explained previously, we are talking about serious security risks. We are talking about acts of terror on the part of armed groups, civilians being locked in basements and tortured, and life-altering threats. This is the reality, and we must act accordingly.
Questions regarding the inter-State application
The Public Prosecution Service has previously answered various questions from the defence regarding the application before the European Court of Human Rights (ECtHR) that the Dutch State has instituted against the Russian Federation concerning its part in the downing of flight MH17. Even at the time, we wondered what relevance those questions had to Pulatov’s case. The defence has now provided an explanation: somewhere ‘on the horizon’ it sees the question arising of whether the Public Prosecution Service may have forfeited its right to prosecute by sharing information relating to the criminal proceedings with the Ministry of Foreign Affairs. In addition – that is, in an apparently unrelated request – Pulatov wishes to know whether the Public Prosecution Service is still free to arrive at a different conclusion in his case if the investigation should warrant such a reversal (part 6, marginal no. 6).
Assessment by the Public Prosecution Service
Let us begin with the second question. In our opening statement in these proceedings, we made clear that we are continually reassessing the evidence in this case with an open mind, and drawing the appropriate conclusions, even if that means we must adjust our position. We will go where the evidence takes us, and only there. For example, on the basis of new findings in the investigation the Public Prosecution Service revised its previous assessment of an intercepted telephone conversation involving the person with the call sign ‘Orion’. If, in the course of these proceedings, we encounter new information that casts a different light on Pulatov’s case, we will revise our assessment again. The Public Prosecution Service is seeking truth and justice. It is not blindly pursuing a conviction. If we were to do otherwise we would not only be neglecting our statutory duty, but – even more egregiously – we would be doing an injustice to Pulatov and the victims’ next of kin.
The iron rule of the Public Prosecution Service – to only go where the evidence leads us – means that any stance taken by another government body in another procedure is irrelevant. In the Netherlands the government does not decide the outcome of a court case or the position taken in it by the Public Prosecution Service.
In the Dutch legal system, the task of the Public Prosecution Service is characterised by independence and impartiality. The Public Prosecution Service has its own statutory powers, which it employs as it sees fit. That is why it is part of the judiciary. At the same time, given its role in enforcing the law, the Public Prosecution Service is subject to democratic scrutiny. Such scrutiny is the responsibility of the Minister of Justice and Security, who renders account to parliament for the actions of the Public Prosecution Service. In order to facilitate that accountability and ensure democratic scrutiny, the Minister, for his part, has the power to issue a specific direction to the Public Prosecution Service. Any such direction must be added to the documents in the case (section 128, subsection 5 of the Act on the composition of the judiciary and the organisation of the justice system (WRO)) and notified to both Houses of the States General (section 128, subsection 6 WRO). Furthermore, the exercise of this power must be in accordance with international treaties and general legal principles. According to the legislature a special direction is a last resort, and no such direction has ever been issued to date. This case is no exception: the Minister and the government have not involved themselves in any way whatsoever in our assessment of the evidence.
In addition, the questions currently before the ECtHR are not the same as the ones addressed in these criminal proceedings. The application before the ECtHR concerns whether the Russian Federation violated its treaty obligations, not whether individual persons are guilty or not guilty. For that matter it is also unlikely that the ECtHR will give judgment before this court gives judgment in the present proceedings.
Provision of information by the Public Prosecution Service
We understand from the Ministry of Foreign Affairs that the Dutch government has requested the President of the relevant Chamber of the ECtHR not to publicly disclose the contents of the application and the underlying documents. It made this request in ‘the interests of justice’: that is, in the interest of the ongoing criminal proceedings and the ongoing criminal investigation. The President of the ECtHR granted this request and ruled that the parties to the cases to which the inter-State proceedings have been joined may not share the relevant documents with third parties. In this way, the ECtHR cases can proceed properly, while the criminal proceedings can move forward with minimal hindrance to due process. The ECtHR's decision to observe confidentiality is in line with the court's decision of 23 March 2020. In view of the ECtHR's decision, the Public Prosecution Service cannot discuss the substance of the information provided.
What we can say is this: contrary to what the defence suggests, the Dutch inter-State application has not simply arrived out of the blue. During the first two days of these court proceedings, we referred to ongoing inter-State proceedings between Ukraine and the Russian Federation before the International Court of Justice and the ECtHR, the decision by the Netherlands and Australia to hold the Russian Federation responsible for its part in the downing of MH17, the next of kin's ongoing ECtHR proceedings against the Russian Federation and the decision of the State of the Netherlands to present its own position in these procedures (third-party intervention).
We have also already pointed out that those procedures are separate from these criminal proceedings. The criminal cases against Girkin, Dubinskiy, Pulatov and Kharchenko concern whether they are guilty or not guilty of the offences with which they are charged, no more and no less. The fact that other proceedings are occurring simultaneously is not unusual. Nor does the decision to hold the Russian Federation responsible for its part in the disaster have any bearing on these proceedings. The matter of state responsibility is separate from the criminal responsibility of the persons in question. Crimes are committed by individuals, and it must be possible for individuals to be held responsible for their crimes, even if they were acting in a broader context and a state may therefore also be liable, and even if we are talking about the same offences.
The fact that one set of proceedings is under way does not constitute grounds for suspending or postponing other proceedings. Justice must be allowed to take its course. Other interested parties, be they next of kin or states, cannot be denied legal remedies of their own.
It is up to the government to decide whether the State of the Netherlands holds another state to account. In order to assess whether the Russian Federation could be held responsible for its part in the MH17 disaster, the Dutch Minister of Foreign Affairs needed information, including information arising from the criminal investigation. For that reason, on 11 October 2017, the Minister of Justice and Security granted permission for the Public Prosecution Service to provide information from the criminal investigation to the Minister of Foreign Affairs pursuant to section 39g in conjunction with section 14 of the Judicial Data and Criminal Records Act.
Given that a compelling general interest is at stake, the provision of this information was necessary, and the Public Prosecution Service agreed to the Ministry of Foreign Affairs’ request for information. The Public Prosecution Service provided only information that could reasonably be deemed relevant to the establishment of state responsibility and that did not disproportionately infringe the privacy of the parties concerned.
Parliamentary papers and ECtHR publications further show how the various state responsibility procedures have proceeded. On 4 April 2019 the ECtHR gave notice of two applications by two groups of next of kin and invited the State of the Netherlands – as the High Contracting Party whose nationals were involved in the proceedings – to intervene as a third party. One month later the Dutch government announced that it would indeed intervene in order to provide support to the Dutch next of kin's cases against the Russian Federation. On 10 July 2020 the government decided that it could best provide such support by instituting a stand-alone inter-State application against the Russian Federation.
That is all we can say about the information the Public Prosecution Service provided to the Ministry of Foreign Affairs and the progress of the state responsibility proceedings. This is not relevant to the assessment of the admissibility of the case brought by the Public Prosecution Service. Clearly, the necessary and lawful provision of information has no bearing on the right to prosecute.
Deferred decisions on witness requests
In its interim decision of 3 July 2020 the court deferred its decision on various witness requests submitted by Pulatov on 22 and 23 June.
One of those requests requires no discussion: with regard to the request to examine the author of the memorandum by the US Office of the Director of National Intelligence (memorandum of oral pleading, 22-23 June 2020, part 4a, marginal no. 28), we will have to await the conclusion of the examining magistrate's investigation.
The court deferred its decision on the other witness requests because it was not yet clear at that time what parts of the charges Pulatov was disputing, what alternative scenario he wished to put forward and whether he would ultimately give a statement about the telephone intercepts and telecom data. In addition the court instructed the Public Prosecution Service to ask the Dutch Safety Board (OVV) to provide the name of the person who conducted the investigation into the noise peaks.
We have now received a response from the OVV, and Pulatov has given a statement. On Wednesday evening we received a letter from the defence containing 18 pages of observations on those earlier requests. What this letter above all makes clear is the chaotic nature of the many requests – formulated in various ways, with an abundance of brackets, qualifications and opaque references – with which the defence has bombarded the court. The letter also makes clear how poorly developed and speculative many of Pulatov’s requests are. In June the defence was still presenting him as an expert in military-strategic issues, not specifically in regard to the conflict in Ukraine. Now the defence writes that Klep is not an expert on Ukraine and therefore his examination serves no interest.
In accordance with the court’s decision and in light of this new information, the Public Prosecution Service will reassess the previous requests. Since, in most cases, we will be referring back to our previous response, we will offer an abbreviated assessment.
The majority of requests are aimed at investigating whether the so-called warplane scenario – in the words of the defence – 'comes into the picture’. In other words, they relate to investigating the possibility of mounting an – as yet unformed – defence based on the claim that MH17 was shot down by a combat aircraft. The requests concerned are those referred to in the memorandum of oral pleading of 22-23 June 2020, parts 1 and 2 (marginal nos. 1-13, 26-34, 36-52, 60, 76, 84-105) and part 3 (marginal nos. 42-44, 46, 48, 59, 61 and 72). Shortly before this hearing, Pulatov withdrew his request to examine Haisenko and indicated that he did not have an interest in examining Klep (letter from counsel, 11 November 2020, marginal nos. 10 and 13). He stands by his other requests.
Back in June the Public Prosecution Service already concluded that this entire category of requests for further investigation was inadequate. First, because this scenario is clearly at odds with a large amount of evidence, including forensic and technical material. We referred to the pattern of damage to flight MH17, the discovery of foreign objects lodged in the wreckage and the bodies of the victims, the information on the cockpit voice recorder and the radar data. We also referred to the telephone intercepts, witness statements, videos and photos, satellite images, observations by journalists and social media posts. It follows from all this evidence that flight MH17 was shot down by a Buk missile. On that basis it is not even vaguely plausible that flight MH17 was shot down by a combat aircraft.
In June we also pointed out that many individual requests related to this scenario were based on a misinterpretation of the case file. We further noted that the warplane scenario advanced by Pulatov was ambiguous. It is above all a scattershot array of questions and supposed clues that contradict one another. One witness allegedly saw or heard that MH17 was shot down by a single combat aircraft, a second claims it was shot down by two combat aircraft, and a third says that MH17 was first shot at from the ground and only later downed by another aircraft, while a fourth claims that a combat aircraft was shot down by a surface-to-air missile while flying alongside MH17. Finally, we have previously pointed out that the defence itself has not even claimed, let alone advanced a well-substantiated argument, that this scenario is even vaguely plausible. All it has done is express the desire that the requested investigation ‘[might] yield information pertaining to the question of whether a combat aircraft and/or missile was in the vicinity of flight MH17 and, if not, what this means in regard to whether there could have been a combat aircraft'.
Pulatov has now given a statement. By his own account, he ‘had and has no personal knowledge of how or why MH17 was shot down’. He is thus unable to say anything, on the basis of his own knowledge, about an attack by a combat aircraft. According to his video statement he heard a sound that reminded him of a Strela-10, a surface-to-air missile. He says nothing about seeing a combat aircraft on 17 July 2014, let alone anything about such an aircraft attacking flight MH17. Nor has Pulatov explained how the sound of a surface-to-air missile might fit into that scenario. Pulatov thus says nothing to substantiate the previous requests on this subject. Pulatov has not presented an alternative scenario. When asked if he knows who downed flight MH17, he says in his video statement:
‘That is a very difficult question, given the facts from intercepted telephone conversations. It would be wrong for me to speculate about that or to make assumptions. It is the court’s job to clarify this, without pressure from anyone else and without anyone playing with the feelings of the next of kin.'
This brings us back to the grounds for Pulatov’s requests in June. Back then, the warplane scenario did not go beyond speculation. Given the grounds provided, even back then it was – in the court’s words – ‘unclear what alternative scenario the defendant is advocating’. Pulatov himself now says he wishes to refrain from further speculation and will leave it to the court to make an assessment.
We therefore stand by our conclusion that any requests for further investigation that the defence has previously made under the general banner of the ‘warplane scenario’ should be denied.
The defence has mentioned no specific alternative scenario whose plausibility can be investigated. And in so far as any alternative scenario can be inferred from the grounds supplied previously, it is not even vaguely plausible enough to justify an investigation, even according to the defence's own explanation. A judicial investigation cannot be conducted on the basis of mere speculation, curiosity or a general desire for verification.
The defence’s subsequent letter of 11 November 2020 does not alter these facts. The observations in that letter about Haisenko and Biedermann read like an exercise in abstract dialogue. The letter does not specify what the relevance might be of Haisenko’s statement or of examining Biedermann, even though the defence itself has Haisenko’s statement at its disposal. The only concrete observation about this statement is that it – in the words of the defence – ‘takes up no less than 45 pages (!)’ (letter from counsel, 11 November 2020, marginal no. 7). That is indeed so, but this says nothing about the statement’s relevance. The user manual of a Singer 7105 sewing machine has the same number of pages, but we do not see this as a reason to add it to the case file. The new request to add Haisenko’s statement to the case file (letter of 11 November 2020, marginal no. 8) should therefore be denied on the grounds that it is unfounded.
Pulatov made three requests under the banner of the warplane scenario that we did not challenge in June. These were the requested examinations of S09 (memorandum of oral pleading, 22-23 June 2020, part 2, marginal no. 18) and the experts D21 (part 2, marginal no. 52) and Koeberg (part 3, marginal no. 59).
In the case of S09 we invited the defence to further substantiate the request in order that the requested examination could be focused on relevant matters rather than alleged observations that this witness, by his own account, did not make. The defence has not provided any further substantiation.
At that time we also indicated that, in the event that the court should in fact see scope for further investigation in regard to the warplane scenario, examining the experts D21 and Koeberg would be a more logical choice than other requests submitted by the defence. This is still the case, but it is now November and Pulatov has made no further progress in this regard. He has had ample opportunity to elaborate on his requests in relation to this topic, but has made no use of it. If anything has now become clearer, it is the speculative nature of all the requested investigation in regard to the warplane scenario. The Public Prosecution Service therefore now concludes – in light of the November requests – that these three witness requests should be denied.
We furthermore believe, as we indicated yesterday, that if the court should consider it necessary, in view of its responsibility to ensure a thorough investigation, to examine an expert about the course of the NFI investigation, then Koeberg would be the most logical choice in that regard.
Cockpit voice recorder
Another open request concerns the examination of the individuals who investigated the sound waves from the cockpit voice recorder (CVR). The findings of that investigation are included in the Dutch Safety Board's final report. The defence wishes to ‘investigate whether their findings are reliable’ (memorandum of oral pleading, 22-23 June 2020, part 4b, marginal no. 12).
The court deferred its decision on these requests because it first wished to know who performed this investigation, in order to assess whether these individuals could be examined. We made enquiries to this end at the Dutch Safety Board (OVV). By letter of 22 July 2020 we noted that the sound-wave investigation was performed by an OVV researcher (within the meaning of section 32 of the Kingdom Act establishing the Dutch Safety Board; ROVV) in cooperation with three employees of the US National Transportation Safety Board (NTSB). The latter agency participated in the international aviation investigation on behalf of the United States (the state that designed and manufactured the MH17 aircraft).
The Public Prosecution Service already indicated back in June that Pulatov had not provided sufficient grounds for this request, since he did not explain what might be wrong with the sound-wave investigation. Nor does he have an interest in pursuing this, as the investigation produced no incriminating evidence against him. It was merely one of several reasons for the Public Prosecution Service to conclude that the investigation into an alternative scenario could be considered complete. As noted previously, use of this investigation for incriminating purposes is prohibited by law (section 69, subsection 1 (f) ROVV).
It can be determined on the basis of the further information regarding the researchers that they cannot be examined about this investigation. Under section 69, subsection 4 of the ROVV, an OVV researcher cannot be called to testify. Under title 49, paragraphs 835.3 (b and c) and 835.10 (c) of the US Code of Federal Regulations, NTSB employees may not give expert testimony.
This request should therefore also be denied.
There are also open requests to examine witnesses about the repatriation and the recovery operation at the crash site. The individuals concerned are the OSCE employee Bociurkiw, an undefined group of unknown persons (‘a mixture of staff of the OSCE, the National Forensic Investigation Team and the JIT’) and the author of Primo-12501, an Excel spreadsheet summarising a number of findings from the forensic case file (memorandum of oral pleading, 22-23 June 2020, part 7, marginal nos. 21-23).
Back in June we discussed the vague nature of and deficient grounds for these requests. For more information regarding the repatriation and recovery operations, we referred the defence at that time to the relevant locations in the case file. We also provided further information, at the defence's request, about the repatriation of victims’ remains. Pulatov has now stated that he – unlike the JIT – was himself present in the crash area shortly after the downing of flight MH17, and that there he had ‘set up security to guarantee the security of all the evidence’. All this led eventually to a single specific question for the examination, which the defence posed in its letter of 11 November 2020 (marginal no. 84). That question can easily be answered on the basis of the case file.
We therefore stand by our earlier conclusion that these requests should be denied.
Telecom data and telephone intercepts
Finally, we will turn to the requests concerning the telecom data and intercepted telephone conversations. These requests concern the examination as witnesses of a large number of reporting officers (memorandum of oral pleading, 22-23 June 2020, part 8, marginal nos. 18, 19, 23, 24, 27 and 34) and the head of the SBU's Incident Response Centre in Kyiv (part 8, marginal no. 22). The purpose of these requests was to pose general questions about the investigation into telecom data (part 8, marginal no. 5). Pulatov also asked to examine a number of reporting officers about the identification of his voice (part 8, marginal nos. 36 and 38) and to obtain information about the absence of audio files from a certain provider on 17 July 2014 (part 8, marginal no. 42) between 14:58 and 15:37.
These requests were introduced in June with a broader discussion of the source of this telecom information: the Ukrainian authorities. According to the defence, that source was in itself already an ‘obstacle’ in the investigation, because no telephone intercepts involving the Ukrainian armed forces had been provided (part 1, marginal no. 6, D). In this connection, the defence wondered aloud whether the SBU was acting in good faith (part 1, marginal no. 96) and stated that security services such as the SBU were 'not the most reliable of partners’ when it came to ‘providing evidence’ (part 1, marginal no. 108). Finally, the defence stated – without providing any factual basis – that six Ukrainian public prosecutors who were involved in this investigation had been ‘fired on suspicion of corruption, among other things’. The defence's message to the court was thus clear: information from Ukraine should, on its face, be mistrusted. As the defence stated (part 1, marginal no. 137),
‘This can help prevent a situation in which we continue viewing reality through a window of Ukrainian design.’
Since issuing this warning, Pulatov has been able to study the telecom data further – in particular the intercepted telephone conversations which are attributed to him in the case file, and the locations of the phone masts to which, according to the file, his phone was transmitting. To this end, the defence could firstly study the case file, which refers to the telecom data and speaks at length about the investigation into that data and the multiple ways in which it was validated. Secondly the defence could make use of the detailed explanation of the telecom investigation that the Public Prosecution Service presented in court and in various letters. Pulatov could thirdly familiarise himself with the additional telecom data that the Public Prosecution Service provided to the defence: the text files containing the (full) metadata of the 1,823 intercepted conversations referred to in the file and audio and text files of all 1,040 available intercepted conversations, text messages and other intercepts of Pulatov in the months of June and July 2014. The metadata, including phone mast data, was also included. All this information was available when he worked through his case in September and October with his defence counsel in Russia during ‘intensive and useful conversations’.
For its part the Public Prosecution Service has repeatedly invited Pulatov to make a critical appraisal of the telecom data. At the hearing on 10 March and by letters of 23 March, 10 July and 22 July we asked him time and again to comment on the conversations attributed to him by the Public Prosecution Service.
Pulatov finally did so at the hearing on 3 November. In his video statement Pulatov presented his own ‘window on reality’. According to his statement, there was little wrong with the Ukrainian telephone intercepts he discussed. It was only the Public Prosecution Service's interpretation that he said was incorrect, and in one particular conversation he did not recognise his voice. According to Pulatov, in these conversations he made use of code words and disinformation in an attempt to wrongfoot his Ukrainian adversaries. In this way, between March and November Pulatov's position has shifted from possible misleading conduct by the Ukrainian authorities to his own misleading of the Ukrainian authorities.
After reviewing all the telecom data attributed to him in the months of June and July 2014, Pulatov thus confirmed the authenticity of various incriminating intercepted conversations, and did not dispute the authenticity of the other conversations.
Furthermore he stated that the telephone number ending in -511 was in use by him, and that others knew that he could always be contacted on that number. Pulatov has presented only one specific conversation in which he does not recognise himself (memorandum of oral pleading, 3-5 November 2020, part 5, marginal nos. 8-9). All the other telecom-related requests he has now, in November, submitted are aimed at examining the interpretation of those conversations, not their reliability.
In addition, Pulatov has stated where he was on 17 July 2014. After reviewing the mobile phone mast data for the conversations conducted with his phone in June and July 2014, he did not dispute the authenticity of the location data. The defence questions only the evidential value of the phone mast data in pinpointing the actual location of a telephone user (letter from counsel, 11 November 2020, marginal nos. 18-25). It is not in dispute that the investigation into phone mast data in a conflict zone was subject to limitations, or that caution must be exercised with respect to determining an actual location on the basis of that data. The Public Prosecution Service raised this very issue in court when presenting its explanation of the investigation in June. Those limitations are clear and require no further investigation.
Even after studying the defence's letter from two days ago, we are still unclear about what concrete information Pulatov now hopes to obtain by requesting examinations concerning telecom data. It is reasonable to ask him to explain this, not least because he himself has for some time now had in his possession all the telecom data he needs to check the associated conclusions in the case file.
On 3 July 2020 the court observed that no defence interest can be established regarding requests involving telecom data if it is not clear whether Pulatov believes that telephone numbers were incorrectly attributed him, that their location was incorrectly determined, that conversations were inaccurately translated, or that conversations should be viewed in the context of certain other conversations. There is now virtually nothing remaining that is disputed in concrete terms and would therefore require further investigation. There is the question concerning the recognition of Pulatov's voice in a single conversation. As discussed, the interest in this regard is limited, and none of the requested witnesses can make a statement about that conversation. There is also the question of the significance of Pulatov's conversations about the Buk: this will have to be assessed on the basis of all the information in the case file. The requested witnesses cannot give statements on this subject either. In so far as Pulatov believes that conversations not yet added to the case file could be useful in that regard, he can ask the court to add specifically designated conversations to the file, or to grant the defence access to them. He could, for example, ask for all available conversations from 16-18 July 2014 in which the words 'toy' or 'box' are mentioned.
We therefore stand by our earlier conclusion that the previous requests to examine reporting officers and the SBU department head should be denied. Previously we agreed – in the interests of efficiency – to the examination of reporting officer Primo 17-170, a Dutch police team leader, about his comparison of the quality and integrity of Ukrainian and Dutch telecom data. Given Pulatov's latest position, he no longer has an interest in that examination. That request therefore should no longer be granted.
Conclusion regarding open requests
The Public Prosecution Service therefore concludes that all of Pulatov's open witness requests should be denied, with the exception of the request to examine Stolworthy, a matter on which the court will have to decide at a later time.
Applications by the Public Prosecution Service with respect to requests for further investigation
Pulatov’s requests for further investigation and the recent interview given by Dubinskiy have prompted the Public Prosecution Service to submit several applications aimed at making this new information available in a readily accessible manner in all four cases.
- We are requesting that the two videos of Pulatov be added to the case file in the cases of the three other defendants as well. In those videos Pulatov talks about his participation in intercepted telephone conversations and the cooperation between the four defendants. These remarks are relevant to the other cases too.
- We request that the court order the verification of the transcript of the video that was shown in court, and where necessary have the contents of the video re-translated by the interpreters who prepared the transcript at the court’s instruction. We understand from Russian-speaking reporting officers on the investigation team that in several places the subtitles do not fully reflect what Pulatov said in the video. That is perfectly understandable, of course. The transcript was produced under enormous time pressure and was intended to provide the public with easy-to-read subtitles for the video when it was shown. However, we do need a precise translation of the questions and answers in the form of a transcript which can be referred to later. That is the reason for this request, and we would also ask that this second version of the transcript be added to the case file in all four cases.
- We are applying for the addition to the file of a full and verified transcript of the February video of Pulatov in all four cases.
- We are also applying for the video interview we showed of Dubinskiy to be added to the file in all four cases, together with a full transcript. The defence in Pulatov’s case has announced its intention to object to this, on the grounds that the video first needs to be investigated further. It has also submitted a written objection to the video being shown in court. We do not see any grounds on which this objection could be upheld. The matter of how the video came into existence and who was involved in that process is a good deal less relevant than the remarks made in it by a clearly recognisable Dubinskiy about the charges in these criminal proceedings. In so far as the video needs to be investigated, this can be done during the requested examination of Dubinskiy, and this need not stand in the way of its addition to the file.
Pulatov’s video statement also gives us reason to again request that the court instruct the examining magistrate to make a compilation of the relevant elements of the recorded statement of M58, which can be added to the file in Pulatov’s case – with due regard for the security measures in place to protect the witness – and, if required, can be shown in court. When making the selection the examining magistrate should take account of the positions of the Public Prosecution Service and the defence. In July the court denied our previous request to this end. The court considered that showing images of an anonymised witness whose voice was disguised did not seem necessary in order to clarify the case for the public. Since video footage of two defendants denying the charges has now been shown in court, we believe that the court should revise that opinion. We are now approaching the proceedings on the merits of the case, in which the denials of several defendants will be shown on screen. Those denials are challenged by a great deal of incriminating information, including the testimony of multiple witnesses, but for security reasons the most important of those witnesses cannot be called to testify in person or otherwise shown on screen. Their statements can therefore only be read out to the court. The impact of that is not the same as seeing actual footage of a witness. M58 is a key witness who can be shown on camera, albeit with measures in place to disguise their identity. It may be that the measures taken to disguise M58’s appearance and voice would be so far-reaching that showing the video becomes a pointless exercise. But at present we do not know, because we have not seen the footage. We are therefore not asking that the court decide now that this footage should actually be shown. We ask only that the court allow us to assess whether the footage could help the Public Prosecution Service present its case in court. One cannot speculate about that assessment without first studying the footage. The need for such an assessment is all the more compelling given that video footage has now surfaced which the defence will use to firmly advance its own standpoint.
5. We therefore again request that the examining magistrate make a compilation of parts of their interview with witness M58.
We would also make a conditional request further to Pulatov’s offer to answer questions from the court.
6. If the court wishes, in whatever manner, to put questions to Pulatov, we ask that the Public Prosecution Service be given the opportunity to propose questions too and (if possible) that the process be scheduled in such a way as to ensure that both the court and the Public Prosecution Service have Pulatov’s answers at least two weeks before the start of the proceedings on the merits.
Ensuring the efficiency of further investigation
A huge amount of further investigation has been requested. It is therefore important to make a critical appraisal of what actually does and does not need to be investigated.
It is worth remembering that where other countries are involved the mere preparation of witness examinations could take months. Examinations involving protected witnesses are particularly complex and time-consuming. In many cases, for example, the date on which an anonymous threatened witness was examined cannot be disclosed for security reasons. This means that in the official report of the examination, the examining magistrate had to indicate a span of several months within which the examination actually took place. When posing more detailed questions that require arranging an additional examination, the examining magistrate will need to observe this same protection measure. This will mean a considerable delay.
In addition it is important that the various investigations that have been allowed be performed as efficiently as possible. For this reason we would make the following requests:
- We ask the court to stipulate ground rules for any examination of individuals other than the three co-defendants, so that the topics on which witnesses and experts are to be questioned are clear to the examining magistrate, and the examinations do not take up any more time than necessary.
- We ask that, when considering examinations involving reporting officers, the court look into whether a witness examination is necessary or whether it would be sufficient to have a supplementary official report drawn up.
- With regard to requested witnesses generally, we ask the court to order that, in cases where a witness may be able to invoke the right to decline to give evidence, the examining magistrate be given scope to first establish whether the witness is prepared to answer questions, and to proceed to an examination only in the event of an affirmative response. This is in any case relevant to journalists, the co-defendants and other individuals whose active involvement in the armed conflict puts them at risk of prosecution in Ukraine, for example, and foreign government officials bound by a duty of confidentiality.
- We request that the court set a deadline for the visit to the MH17 reconstruction by a qualified person to be designated by the defence. On 3 July 2020 the court instructed the Public Prosecution Service to facilitate this visit, but the defence has not yet designated a qualified person. It remains unclear when it will eventually do so. Furthermore, this visit will take time to plan and carry out. It is worth asking in this connection how significant the defence’s interest in this investigation actually is. The defence stressed to the examining magistrate that it had not (officially) requested this investigation. It is far from ideal when approved investigative activities are delayed for a lengthy period yet continue to hang over the proceedings. It is therefore appropriate to set a deadline.
- With regard to experts that have yet to be examined, we request that the court have the examining magistrate determine the most appropriate manner in which to obtain the information concerned (in person or in writing), working on the basis of the questions provided by the defence and the Public Prosecution Service.
- We ask that the court review its consideration of the expert request granted in July, whereby the court stressed that the priority must be efficiency and that the examination of experts need not be made dependent on the prior designation of an expert from Almaz-Antey. The reason for this request is as follows: in this part of the investigation the examining magistrate planned to proceed in a certain order, based on the court’s considerations in July. According to that schedule, the Almaz-Antey expert needs to have been appointed and have responded to the reports by the NLR and the RMA before other experts can examined. In July and August, this order of events seemed logical to us. However, it is now November, and we are forced to observe that the expert from Almaz-Antey still has not been appointed, let alone produced any written document. It is both undesirable and unnecessary for other examinations to be delayed as a result of this. The operative part of the court’s July decision already gives the examining magistrate the latitude to depart from the previously envisaged order of events and to conduct all examinations as soon as possible. We believe that the progress of this trial would be expedited if the court were to rule on the desirability of this. Such a ruling would not need to limit the substantive scope of the investigation: if, once all examinations have taken place, there are grounds for allowing experts to respond to each other at a later date, that could still be arranged.
Lastly, we wish to respond to the defence’s request that the court rule that, for all examinations, the defence may ask all the questions itself and be present at all examinations, and also that all questions must be answered (part 2, marginal no. 28). This request ignores the serious security risks facing witnesses and other individuals in these proceedings. It also ignores the procedural safeguards that are in place in these kinds of situations. Various provisions of the Code of Criminal Procedure grant powers to the examining magistrate and the Public Prosecution Service that enable them to fulfil their responsibility to ensure the safety of witnesses and other individuals. A court cannot simply scrap those powers from the Code. Since this defence request is not merely irresponsible but also impossible under the law, it must be denied.
Looking ahead to the proceedings on the merits
Both prior to and at the start of this block of hearings, the court indicated that it plans to consider the merits of the four defendants’ cases concurrently in February and March 2021. We also understand that the court will give the defence and the Public Prosecution Service the opportunity during the consideration of the merits to adduce additional documents. The court has said that it will strive to provide more specific information by 1 December 2020, if possible, about its intended approach to the consideration of the merits.
With a view to this planned schedule the Public Prosecution Service would ask the court to consider a number of matters. We are concerned with three interests in this regard: the exercise of due care in the proceedings on the merits, the comprehensibility and predictability of the proceedings for the next of kin and general public, and the efficient use of the time allocated for hearings.
We would first request that the court announce a schedule (which would also include the subjects to be addressed) as far in advance of the proceedings on the merits as possible. This will enable the defence and the Public Prosecution Service to assess in advance which documents they wish to see presented and to determine quickly after the consideration of the topic in question what additional documents/evidence they still wish to put forward. Working in this manner will ensure that this additional evidence can be put forward in such a way that it relates sufficiently to the topic in question.
Second, we would request that the court see to it that the defence and Public Prosecution Service always inform the court and each other about additional evidence to be discussed well in advance of each hearing. The court should preferably set a deadline in this regard. This would ensure that the parties do not surprise either the court or each other. It is also important that the parties inform the court and each other as fully and specifically as possible about what further evidence they wish to adduce. Some sources leave room for differing interpretations. Other sources tell contradictory stories. Take, for example, the intercepted conversations of the fighter with call sign 'Mongol' regarding the downing of flight MH17. These are rather inconsistent.
There is the conversation he had with his wife on the evening of 17 July 2014 (21:47:47), in which she asked him twice, ‘It was you who shot down the Boeing?’ and Mongol answered: ‘Yeah…We, we did it (...) but we did it accidentally, it was accidentally.'
There is also the conversation two days later (19 July 2014, 07:37:57), in which he tells his wife something different, namely that flight MH17 was shot down by another aircraft, and not by a surface-to-air missile. So Mongol’s statements are all over the place.
This example underlines the importance of knowing in advance what specific part of the case file one party wants to address, so that the other party can supplement it if necessary. We see no reason to discuss Mongol’s intercepted telephone conversations at the proceedings on the merits because, as the case file shows, although Mongol does talk about the downing of MH17, he provides differing, inconsistent accounts without explaining how he knows what he does, and there is no reason to suppose that he was personally involved. However, if the court or the defence does opt to present one or more of Mongol’s conversations, it would then be important that this be done in the context of his other conversations. In short, a procedure that makes clear to all parties what specific evidence is to be presented will prevent unnecessary debate on that evidence at the hearings.
Third, we request that the court schedule over-run days at specific times at the beginning and end of a given block of hearings or during the discussion of a particular topic. This extra time can then be used to deal with procedural issues or additional requests. Last week the defence indicated that it was still searching for experts and that the outcome of its ongoing investigations may prompt it to submit new requests for further investigation. If Pulatov wishes to submit new requests, for example to add documents to the file or to examine new witnesses or experts, he must be afforded the opportunity to do so. At the same time, the proceedings on the merits must not be constantly interrupted by the discussion of such requests. That will not make the trial any easier to follow for the next of kin and the general public.
Finally, we would like to touch on the issue of the defence’s access to documents that are not included in the file, and of the defence’s inspection of physical evidence. Since 23 March we have provided copies of such documents on several occasions already. And we have allowed the defence to inspect other documents containing more sensitive information. We have also arranged viewings of the MH17 reconstruction and the foreign (i.e. non-aircraft) material recovered in the course of the forensic investigation. In December we will provide an opportunity to study residual foreign material at the Netherlands Forensic Institute.
Before the hearing in August we informed the defence by letter of our views on requests for access to documents/evidence in the run-up to the closing phase of the pre-trial review. The pre-trial review is now almost at an end, and we are rapidly approaching the proceedings on the merits. This means that we will continue the approach we outlined previously when it comes to assessing access requests. It is reasonable to expect more compelling arguments now, in respect of such access requests, than at the start of the proceedings. After all, access requests that were refused by the Public Prosecution Service in the past can only be granted now if such access is necessary. When assessing such requests, several factors should be weighed: the time that has passed, the opportunity for access provided previously and the phase of the proceedings.
We therefore see no reason to issue a new referral to the examining magistrate for a decision on access requests, certainly not in regard to decisions taken by the examining magistrate pursuant to article 34 of the Code of Criminal Procedure.
We have now discussed all of Pulatov’s requests for further investigation, as well as several practical matters concerning the further course of these proceedings.
The Public Prosecution Service has not challenged the addition to the case file of NFI report no. 111 about missile fuel traces.
For the rest, the Public Prosecution Service has concluded that:
- the request to examine co-defendant Dubinskiy as a witness should be granted;
- all other requests submitted between 3 and 5 November 2020 should be denied.
- all open requests submitted between 22 and 23 June 2020, the decisions on which were previously deferred by the court, should be denied.
There are numerous reasons why virtually all requests for further investigation should be denied. First of all, this follows from the lengthy and extensive nature of this investigation. Over the course of six years the JIT has accumulated so much information, investigated so many different scenarios and explored so many murky paths that there is not much investigation left to perform in order to enable the court to render a judgment on whether these four defendants are guilty or not guilty. The result is a very sizeable case file, and the court has given the defence a lengthy period to prepare. The critical observations put forward by the defence are already included in the file: witnesses who claim to have seen combat aircraft, denials by the Russian government about the 53rd Anti-Aircraft Missile Brigade’s involvement and countless code words used in intercepted telephone conversations. We appreciate that it is no easy matter for Pulatov to find areas of investigation that have not already been explored. But this cannot be a reason to allow a defendant to conduct his own investigation if that can make no difference to what the court is able to establish.
In the case of many requests for further investigation, our conclusion is that the request should be denied because it remains unclear, even after the defence’s explanation, what relevant questions may be asked of the witness or expert concerned. Witness examinations should not pursue information that is already contained in the case file. Nor is there any point in initiating the examination of individuals who we already know cannot be located, to say nothing of pursuing the examination of the deceased. A criminal trial is not a job creation programme. In a criminal case we all have to follow the rules of criminal procedure. It is a question of equality and legal certainty.
Pulatov still has every opportunity in these proceedings to vigorously argue his side of the case. Back in July he was given the opportunity to have a qualified person of his choosing assess the pattern of damage on the MH17 reconstruction, and at his request the court will also hear not only multiple experts who have already submitted reports, but also a new expert from Almaz-Antey who will testify about the operation of a Buk missile, the pattern of the damage to MH17 and the calculation of the launch area. At his request, the Public Prosecution Service has provided the defence with large numbers of documents, photos and telecom data files that Pulatov can use when studying and disputing the case file.
Also with a view to making a thorough assessment of the new standpoints put forward by Pulatov last week, the file contains a great deal of relevant information. For example, there is Pulatov’s statement that the transportation of the Buk TELAR as identified by the JIT was factually impossible because of the position of the Ukrainian army on 17 July 2014. The case file contains a large amount of material about the position of the front lines at that time and about whether the roads and transport routes between the Donetsk and Luhansk regions and the region bordering the Russian Federation were blocked by the Ukrainian armed forces. For example, there is visual material of a convoy carrying heavy materiel which travelled from the Russian-Ukrainian border to Donetsk on 15 July 2014, taking virtually the same route as the Buk TELAR would two days later. The accompanying vehicles in the convoy of 15 July 2014 show striking similarities to vehicles that were part of the Buk convoy two days later and were caught on camera several times along this supply route.
We now know that a key question during the proceedings on the merits will be whether the intercepted telephone conversations about the Buk missile related to genuine events or not. As far as assessing that question is concerned, there is a great deal of relevant material in the case file. We look forward to discussing it.