Conclusion on the investigation
On 8, 9 and 10 June 2020 the Netherlands Public Prosecution Service explained in court how the investigation into the crash of flight MH17 in eastern Ukraine was conducted, and what subjects have been investigated.
This is a summary of the speaking notes of the prosecutor. The full presentation can be watched in the video.
MH17: conclusion about the investigation
We have described how we investigated various categories of evidence, including:
- forensic evidence;
- witness statements;
- photos and videos;
- digital sources;
- radar data; and
- satellite data.
We have explained how investigators explored various scenarios that could explain the downing of flight MH17, namely:
- an explosion inside the aircraft;
- an attack by a fighter aircraft;
- the use of a missile system other than a Buk; and
- the use of a Buk missile.
We have explained how, within the scope of the last of these scenarios, various locations were considered as possible launch sites and how investigators examined Buk systems used by the Ukrainian as well as the Russian armed forces.
Finally, we have explained how an in-depth investigation was conducted into the workings of the Buk system and into the individual roles of the defendants, including the issue of whether they are entitled to claim immunity from criminal prosecution.
This brings us to the question of whether the case file is complete. In the course of our explanatory remarks, we have already indicated why we regard various aspects of the investigation as complete. But ultimately the completeness of the case file has to be judged on the basis of the substance of the indictments that are to be examined by the court.
For that reason we will in this part elaborate on the scope of the indictment. We will also argue our position on the necessity of certain specific additional investigative actions. Finally we will briefly discuss the further proceedings of this trial.
Scope of the indictments
We will start with the scope of the indictments. The question is, after all, not whether the case file contains every possible piece of evidence on any possible person involved. The question is whether the investigation into the circumstances of the downing of flight MH17, and the role the defendants played therein, is sufficient for the court to reach a decision in these four cases on the basis of the indictments. This is why it makes sense to reflect briefly on the scope of these indictments and the way in which they determine the scope of the investigation in this case. In addressing this matter, we have chosen to go into greater detail than is necessary for the court, as we believe that a more thorough explanation of this point serves to make these proceedings more comprehensible to the general public.
The indictments are the same for all four defendants. As we noted in our opening statement, the prosecution accuses the defendants Girkin, Dubinskiy, Pulatov and Kharchenko of playing a commanding, organizing and supporting role in deploying the Buk-TELAR that shot down flight MH17. Girkin and Dubinskiy were leaders within the self-proclaimed DPR, an armed group. Pulatov and Kharchenko were their direct subordinates. As stated in the indictments, they collectively requested the Buk-TELAR, transported it from the Russian Federation and deployed it in an armed conflict for the purpose of shooting down an aircraft. They used the TELAR as a tool to achieve their common goal in this armed conflict.
On 10 March 2020 we briefly touched on the reasons underlying this conclusion. From intercepted conversations we know that: the defendants desperately needed a Buk for their war effort; they instructed others with regard to its transportation; they directed the Buk-TELAR to the launch site; they had conversations after the crash about whether ‘their’ Buk had done its job; they expressed delight over the fact that an aircraft had been shot down; and they also made arrangements for the Buk-TELAR to be taken back to the Russian Federation.
The indictments do not say that the defendants personally pushed the launch button, nor that they identified a target or ordered the TELAR’s crew to fire. They are not being prosecuted as the individuals responsible for actually performing the launch process. It is therefore not necessary to provide any evidence about the exact course of events during the launch process in order for the court to reach a judgment about the charges against these four defendants.
In the Dutch criminal justice system, defendants are regularly tried for and convicted of homicide without the exact manner in which the offence was committed ever being established. Particularly in the case of planned offences, the exact way in which a weapon was used is irrelevant to the assessment of the indictment, as long as it can be established that the loss of life was intentional and that the defendant was criminally liable. In this particular case, the weapon used was larger than in many other criminal cases as was the number of victims, but the issues underlying whether the charges are found proven are the same. Did the defendants have criminal intent with regard to the offence in the indictment; did the offence subsequently occur; and did the defendants contribute to the commission of this offence in a way that renders them criminally liable? If so, the charges in the indictment can be proved, regardless of precisely how the offence was carried out. It is sufficient that there is evidence of criminal intent on the part of the defendants and of their contribution to the offence.
To date, the investigation has not been able to determine the proximate cause of the downing of flight MH17. The investigation into the workings of a Buk-TELAR did, however, yield information about the steps that must be taken to initiate the launch process and the (possible) instruments available to identify a target, but even with this information we still do not know what the crew actually did on the day in question.
In order to prove that the four defendants are guilty of the charges against them, it is not necessary to establish the proximate cause of the launch of the missile or the exact series of events associated with it. There was thus no reason to wait for the results of the ongoing investigation into the crew of the TELAR and the responsible parties within the chain of command in the Russian Federation. As far as the prosecution is concerned, the investigation into the circumstances of the downing of flight MH17, and the role the defendants played therein, is sufficient for the court to reach a decision in these four cases on the basis of the indictments.
The ‘mistake scenario’
The possibility that the missile that hit MH17 may have been intended for a military aircraft has no bearing on this. None of the charges in the indictment require intent as to the civilian nature of the aircraft or those inside it. The offences in question relate to the downing of any aircraft (article 168 of the Criminal Code) and the killing of another person (articles 287 and 289 of the Criminal Code), regardless of the civilian or military status of the aircraft or person in question. A targeting error makes no difference with regard to the evidence that such offences were committed.
Thus it is not necessary to provide any evidence that the defendants specifically intended to shoot down a civilian aircraft with their Buk-TELAR. Indeed, as we stated earlier, the case file contains various indications that the defendants did in fact intend to shoot down a military aircraft belonging to the Ukrainian air force. This can be deduced from intercepted conversations involving the defendants that took place after flight MH17 was shot down.
In drawing up the indictments, we explicitly took account of the possibility that the downing of MH17 had been a mistake. Anyone who intends to shoot down a military aircraft and then accidentally hits a civilian target is guilty of causing that aircraft to crash (article 168 of the Criminal Code) and of the murder of those inside (article 289 of the Criminal Code). We are familiar with the academic commentary suggesting that article 168 requires the intent to kill civilians. This is incorrect. Article 168 does not require any intention to kill those inside the aircraft whatsoever on the part of the perpetrator, let alone any intention to kill specific categories of people inside. Under article 168 it is a criminal offence to intentionally cause any aircraft to crash, without distinction as to the nature of the aircraft in question. The death of those inside is regarded as an aggravating consequence, not as a constituent element, of the offence. The legislature ensured that this was the case for all offences involving the risk of harm in Title VII of Book 2, which is where article 168 is found. Consequently, it is necessary to establish only that the defendants intended to cause an aircraft to crash, not that they intended to kill those inside.
Of course, the crimes of murder and doodslag (roughly equivalent to voluntary manslaughter) require the intent to kill another person, but not a particular category or specific number of victims. This is why in the Netherlands and many other countries someone can be convicted of murder if they accidentally shoot and kill random passers-by, instead of the intended victim. The concept of intent (in the case of homicides in general) and the concept of malice aforethought (in the case of murder) relates to the killing of another person, not to the identity of the victim(s). This is why it is also possible to be convicted of the murder of a random victim.
Thus, the matter of whether or not flight MH17 was shot down by mistake is irrelevant to the evidence at issue in this trial.
In our explanatory remarks on the investigation into the possibility of combatant immunity, we noted that there are no indications to suggest that the defendants should be considered military personnel. We also explained that combatant immunity is a strictly personal ground for immunity from prosecution. Because the defendants were apparently not combatants and thus were not permitted to shoot down any aircraft – whether civilian or military – it is irrelevant, from the point of view of possible immunity, what their intended target was.
Whether the defendants intended to shoot down a military or civilian aircraft may, however, can be relevant to the length of the sentence. But yet with that the main question is what the defendants themselves knew, intended and did. The question of what the other people did during the launch process is of no importance here. The available evidence regarding what the four defendants knew, intended and did can be found in the case file. If the defendants have anything to add to that evidence, they now still have that opportunity. They are, after all, better placed than anyone to possess this information.
As we look beyond the present trial of these four defendants, it is of course desirable to have greater clarity about what happened before and during the downing of flight MH17. This is important not only for the next of kin but also for drawing lessons for the future from this tragedy. This is one of the reasons the JIT investigation is still ongoing. The present trial concerns only the indictments against these four defendants. Establishing the truth of what happened to MH17 is of vital importance in this case, but the framework for establishing the truth in the present trial is set by the indictments. Questions that fall outside that framework are being investigated outside this trial.
The involvement of other parties
As the case file shows, there were other people besides the four defendants in this trial who played a role in shooting down flight MH17 – first and foremost the crew of the TELAR, but presumably also individuals within the chain of command in the Russian Federation. The JIT is still in the process of investigating such other parties. As previously stated, any relevant findings of that investigation will be added to the present case file. Particularly relevant is any evidence that can cast a different light on the case other than the information mentioned in the case file or evidence which may be advantageous to the defendants. The assessment whether or not incriminating evidence should be added to the case file should be stricter as the trial progresses.
As we approach the substantive hearings, it will be necessary to assess more carefully the added value of additional incriminating evidence, designating it as relevant and adding it to the case file. Additional evidence on the supply route and the origin of the used Buk-TELAR will be considered relevant less quickly than additional evidence on the individual roles the four defendants. For example, yet more similar witness statements about the route taken by the Buk-TELAR would not have enough relevance to be added to the case file at any time shortly prior to the substantive hearing.
The indictment sets out various forms of participation in an offence: joint perpetration in a functional capacity, ‘regular’ joint perpetration, joint perpetration of procuring the commission an offence and the joint perpetration of aiding and abetting an offence. None of these forms of participation requires evidence as to the identity of the other parties involved. A defendant can be convicted of being the joint perpetrator of an offence even when the identity of the other perpetrators is unknown. A defendant can be convicted of procuring the commission of an offence without knowing who was eventually persuaded to commit the offence in question. A defendant can also be convicted of joint perpetration even if the identity of the actual perpetrator he or she supported is unknown. Thus the indictments do not require any evidence as to the identity of the crew of the Buk-TELAR, any responsible parties within the chain of command in the Russian Federation or any other participants. Nor do the indictments require evidence that the defendants knew their identity. With regard to the charge of the joint perpetration of procuring the commission of an offence, the indictment does offer the possibility that the court will find that such procurement was also committed in the Russian Federation, yet this charge requires no evidence regarding the individuals involved in the Russian Federation. With respect to the evidence that the commission of an offence was also procured from the Russian Federation, it is sufficient to establish that the defendant must have worked with one or more unknown individuals in the Russian Federation to induce the crew of the TELAR to shoot down an aircraft. Even without evidence of personal contact with the crew and their immediate superiors, it can thus be concluded that the defendants are criminally liable for their involvement with the Buk-TELAR.
Conclusion with regard to the scope of the indictment
For these reasons the prosecution feels that the case file contains sufficient information for the court to form a judgment about the charges against these four defendants, even though it provides only limited information about the precise chain of events with regard to the launch of the missile that hit flight MH17 and about the identity of various other parties involved. As we said back in March: it is common for people to be criminally prosecuted in the knowledge that other parties involved have not yet been identified, for example in drugs cases and other murder cases. If we did not take this approach, most crimes involving multiple perpetrators would never progress beyond the investigation phase, and we would never reach the prosecution stage at all. The fundamental principle in this context is that the state can proceed with a prosecution if the questions relevant to that prosecution can be answered. That is indeed the case here.
In discussing the forensic investigation and the investigation of the context, the alternative scenarios, the origin of the TELAR and the workings of the weapon, we have already explained why we believe that this investigation is complete.
We have, however, applied for a viewing of the reconstruction of MH17. In our letter of 27 May 2020 we explained why we think such a viewing would have clear added value in the assessment of the (forensic) case file. In our opinion, matters such as the difference in damage between the left and right sides of the aircraft, the soot marks and their location, and the concentration of the impact damage will be better visible if viewed in person rather than on paper or on a 3D scan.
We have also applied for further investigation of several other points. In the light of recent Russian allegations of manipulation, we considered it opportune to conduct a further investigation of the video of a TELAR in Snizhne. In addition we have further questions for several witnesses who were present at some point along the route to and from the launch site, or at the launch site itself. We therefore applied in March for further hearing of witnesses M58, S07, S17, S21, S27 and S32.
All of these applications, which we made and explained at the hearing in March, still stand. As already mentioned in March, we will request for these applications only in the case against the defendant Pulatov.
Additional application: questioning of X48
On 10 March the court had not yet ruled on Pulatov’s appeal against the examining magistrate’s order giving a number of witnesses the status of threatened anonymous witness, so at the time we could not yet say anything about possible further questioning of these witnesses. We can do so now, however. One of those witnesses is X48. The only additional application the prosecution is making today is a referral to the examining magistrate for witness X48 to be questioned as well, in a safe manner to be determined by the examining magistrate.
Like M58, X48 was present at the launch location. In brief, this witness states that on the afternoon of 17 July 2014, near a roadblock put up by the self-proclaimed DPR on the road from Snizhne to Saur-Mogila, he saw a Buk being driven, and minutes later he heard and saw a missile being launched. X48 saw the field catch fire and points out where the missile was launched. It is the same location that emerged from the investigation of the satellite images. X48 states that after the launch of the missile the Buk-TELAR was driven to the road and there were also four soldiers in identical uniforms. The uniform was khaki-coloured, with a helmet with ‘ears’ on it. These soldiers looked different from those manning the roadblock.
This witness was questioned by the examining magistrate in 2016, without the prosecution present. The prosecution was, however, given the opportunity to submit a number of written questions. No defence was known yet at that time.
X48’s statement is clear, and in the opinion of the examining magistrate it is reliable. The prosecution does, however, think further questions are necessary, in any case about the four soldiers with tank helmets and identical uniforms, which were different from the others. It is not clear from the statement whether the witness saw these four soldiers in or near the Buk-TELAR. It is also not clear whether the witness saw these four soldiers before or after the missile was launched, or both, and whether the witness saw what happened to these four people with tank helmets after the launch. In order for X48’s statement to be properly assessed, the prosecution considers it necessary to ask further questions on this point.
We are aware that when he was previously questioned by the examining magistrate the witness answered more questions than were included in the official report, because some answers were not included so as to protect the identity of the witness. We realize that if the witness is questioned again, some of the answers may not be included in the official report as that could jeopardise the safety of the witness. If the examining magistrate establishes beforehand that questions submitted have either already been answered but not included in the official report, or in the examining magistrate’s opinion cannot be asked and answered without jeopardising the witness’s safety, this could prompt the prosecution to retract those questions or to withdraw its request to question the witness again. We do not want to place any unnecessary burden on the witness. As is the case with M58, we assume that X48 cannot be examined in court for safety reasons. As we indicated earlier with regard to M58, publicly announcing when and where the witness will be questioned and the related travel itineraries carries disproportionately great risks.
No further application for questioning of V11
We have considered whether following the court’s ruling we should make an application to have witness V11 questioned again by the examining magistrate as a threatened anonymous witness. We see no reason to do so. Witness V11 is one of several witnesses who have made statements about the route taken by the Buk-TELAR. There is also other evidence for that route, in particular visual material, a satellite photo and telecom data. If the defence team wishes to question V11 as a witness, it is of course free to make a timely request to that effect. For its part the prosecution does not wish to do so, however, even after the court’s ruling.
Summary of additional applications:
In the case against Pulatov we apply on the grounds of article 328 of the Code of Criminal Procedure for the following:
- that the hearing be moved to Gilze-Rijen Air Base for a viewing of the reconstruction of flight MH17, at a date to be determined by the court;
- referral to the examining magistrate of the following:
- the examination of witnesses X48, M58, S07, S17, S21, S27 and S32 in a safe manner, to be determined by the examining magistrate;
- the composition of a video recording of the previous examination of witness M58, after the defence and the prosecution have had the opportunity to express their wishes with regard to that composition;
- that an expert be requested to investigate:
- possible indications of manipulation of visual material with regard to two versions of the same video of the TELAR in Snizhne (included in the case file), partly in the light of the assertions by the Russian Federation;
- the contention that the version referred to by the Russian Federation of the same video must already have been uploaded on 16 July 2014 and hence must have been recorded before then.
Further schedule of the criminal proceedings
Lastly, we would like to comment briefly on the schedule of the criminal proceedings.
We believe that the cases against the three co-defendants of Pulatov are ready for the substantive hearings. At the same time the council of defendant Pulatov will only request for a limited number of additional applications in the current hearings block. According to the defence, the substantive hearings in the case of defendant Pulatov can only be conducted on the long term. They have argued that a second round of pro-forma hearings can only take place when:
- Pulatov and his council have sufficient knowledge of the case file;
- the travel restrictions caused by COVID-19 have been lifted, so that direct contact between Pulatov and his council and between his lawyers and specialists can take place; and
- a relationship of trust is built up between Pulatov and his council.
When these conditions could be fulfilled remains to be seen. The next of kin are entitled to a clearer prospect. For them, certainty about the course of this procedure is of great importance. Not only because of their possible preparations to exercise their rights in court but also because of the emotional burden further postponement and uncertainties may impose.
For these reasons we request the court to address the further planning of this procedure and to decide on the form and planning of the consecutive hearings.
We are coming to the end of our remarks. We have endeavoured to provide insight into how the investigation proceeded and what choices were made. On the basis of this explanation and the underlying case file, it can be determined whether the investigation is complete, and if not, what further investigation will have to take place. That is up to the court to decide.
As we said in our introduction, we have not given an overview of all the evidence available, nor have we drawn conclusions about what can and cannot be proven. That will not be done until the defence has had the opportunity to have additions made to the case file and the court has examined the merits of the case.
Our explanation has by its very nature been objective and procedural in tone. We have not spoken about the consequences for the next of kin. At the same time we are aware that what we have discussed here will not have left the next of kin unaffected. We realize that when we talk about the examination of the victims’ bodies or demonstrate the destructive power of a Buk missile we could be reopening old wounds. That is the high, but unavoidable, price of a criminal trial. In the prosecution’s regular contacts with the next of kin – and again in the context of this block of hearings – we hear and read how intense and how difficult this is for many of the next of kin. We take that into consideration, in as much as due process allows it. At a later point in this trial we will reflect on the effects that all this has had (and continues to have) on the next of kin. In the end, to all involved in these cases justice must be done.