Opening Statement public prosecutor (9-3-2020)

Suspects

Reference		09/748004-19
Name		Igor Vsevolodovich GIRKIN
Born		17 December 1970 in Moscow (Russian Federation)
Living in		without address or residence in the Netherlands
Reference		09/748005-19
Name		Sergey Nikolayevich DUBINSKIY
Born		9 August 1962 in Donetsk (Ukraine)
Living in		without address or residence in the Netherlands
Reference		09/748006-19
Name		Oleg Yuldashevich PULATOV
Born		24 July 1966 (birthplace unknown)
Living in		without address or residence in the Netherlands
Reference		09/748007-19
Name		Leonid Volodymyrovych KHARCHENKO
Born		10 January 1972 in Kostyantynivka (Ukraine)
Living in		without address or residence in the Netherlands

The context of these criminal proceedings

There have been other cases elsewhere in the world of civilian aircraft shot down. There have also been other cases involving high numbers of civilian casualties during armed conflicts. These cases have seldom led to criminal proceedings against those responsible. This may raise the question why this case warrants a criminal prosecution. As such, one must consider that the downing of flight MH17 differed in two respects from other tragedies where aircraft were shot down, even if at first glance they may seem similar.

First, the investigation shows that flight MH17 was not shot down during a military exercise or by armed forces who believed that they were defending their country from a perceived attack. The Buk-TELAR that downed flight MH17 should never have been in Ukraine, and it should never have fired a missile there, whether aimed at a civilian or military aircraft. This makes the assessment of this case fundamentally different from cases where errors of judgment during a legitimate military operation result in the loss of civilian life.

Second, the parties responsible for downing flight MH17 have taken no responsibility whatsoever for their actions. In other seemingly similar cases, sooner or later at least some degree of responsibility was accepted. This is crucial. It is important to be able to establish what actually happened. It is important to the next of kin that clarity be obtained and responsibility accepted. It is also important to prevent, as far as possible, similar tragedies from occurring in the future. An effective investigation, openness about the findings of that investigation, and – where possible – punishment of those responsible are not merely a moral obligation to the families of the victims. They are also a legal obligation under international human rights conventions. [1]

Both the entirely illegal character of the firing of the missile and the lack of accountability accepted afterwards by those responsible make the downing of flight MH17 different from seemingly similar tragedies. Both aspects make this criminal prosecution necessary, in order to establish what actually happened and to punish an act of large-scale, lethal violence that was not simply an error but should never have been planned or carried out in any form or against any target whatsoever at that place on the 17^th of July 2014.

These criminal proceedings are not the only legal proceedings concerning the downing of flight MH17. Interstate proceedings are also being conducted. Ukraine has instituted proceedings against the Russian Federation before the International Court of Justice, partly in relation to flight MH17. The Netherlands and Australia have formally held the Russian Federation responsible for the downing of flight MH17. Various proceedings against the Russian Federation and Ukraine have been instituted before the European Court of Human Rights in Strasbourg. The Dutch government has announced an inquiry into the facts surrounding the question of whether the airspace above and around eastern Ukraine should have been closed.

In addition, the JIT’s criminal investigation is still ongoing. The team has announced that it is still investigating other individuals involved in the downing of flight MH17. The JIT is focussing in particular on the members of the crew of the Buk-TELAR that was used, and on responsible parties in the chain of command, including in the Russian Federation.

All this requires that due care be taken in delineating the boundaries of the various procedures and the exchange of information between them. At the same time, it need not distract us from the questions confronting us in this criminal trial. This trial is about whether four defendants are guilty or not guilty of the offences with which they are charged. Nothing more and nothing less. It is not uncommon for there to be other simultaneous legal procedures under way concerning the same offences. Nor is it uncommon for the investigation of other potential persons of interest to still be ongoing. In the investigation of drug-related cases or other homicide investigations, for example, suspects are regularly charged with offences while the investigation of other persons of interest continues. What is required is that the role of the suspects to be prosecuted can be satisfactorily established, not that this can be achieved immediately and simultaneously in respect of every individual involved. A criminal trial is not a comprehensive attempt to establish the historical record. It is an investigation of the accusations against the defendants who are on trial. That is the case here, too.

It is also not uncommon for questions to remain - quite apart from the criminal proceedings - about the conduct of the authorities concerned: whether they should have done more to prevent the crime. Such questions are always investigated separately from those criminal proceedings. This is because the answer to the question of whether public authorities could have done more to prevent a murder can never absolve the murderer. A criminal trial deals with whether the defendant is guilty or not guilty. The question of whether Ukraine should or should not have closed its airspace is therefore outside the scope of these proceedings, just as there are many other questions that may be asked and could lead to useful answers, but not here in these proceedings. In this courtroom we are concerned with what Igor Girkin, Sergey Dubinskiy, Oleg Pulatov and Leonid Kharchenko did on and around 17 July 2014.

Lastly, any decision by other countries to hold the Russian Federation responsible also does nothing to detract from the charges being brought in this courtroom against the four defendants. State responsibility is a separate matter from the criminal responsibility of individuals. Criminal offences are committed by individuals, and individuals must be held accountable for their crimes, even if they are acting as part of a larger whole and states may therefore also be culpable.

Trial in absentia

As you can see, none of the four defendants has complied with the summons by the Public Prosecution Service to appear in court today. The situation is not expected to be otherwise on subsequent days, either. Many people may wonder why the Public Prosecution Service should embark on a trial when it could be assumed in advance that the defendants would not appear, and when it is highly questionable whether the defendants – if convicted – will ever be punished in practice. We have naturally considered this question as well, but we have never once doubted the necessity of this trial.

A criminal trial, after all, is also concerned with establishing what precisely happened. With establishing the truth. A defendant can play a key role in that process by giving evidence about what, in his view, occurred, but his participation is not necessary for a legitimate outcome. It is fairly common in criminal trials for a defendant not to appear, or to appear but refuse to give evidence. In such cases, too, the court must, on the basis of the evidence presented, reach a judgment on what happened and what the role of the defendant was, in the context of criminal law. This case is no different in that regard. In our view, over the past five-and-a-half years the investigation has produced so much material that the court will be sufficiently capable of reaching a well-founded judgment on what occurred, even without any input from the defendants. The Public Prosecution Service will do everything that is reasonably possible to give the defendants the opportunity to tell their side of the story. We will discuss this in more detail shortly.

The possibility that the defendants in this case may not face punishment even if convicted is not, in our view, a reason to forgo a trial. Sentencing is often a key element of a criminal trial, but it is not always more important than establishing the truth. It is not a foregone conclusion, moreover, that the defendants will succeed in evading a possible future punishment. There are laws and treaties that provide for the possibility of the defendants serving a Dutch sentence abroad. Also, a person who appears untouchable today, may still face court tomorrow. Should a sentence be imposed in the present proceedings, we will do everything in our power to ensure that it is enforced, whether in the Netherlands or elsewhere.

In short, it is our opinion that this criminal trial is necessary, even in the absence of the defendants themselves. The guiding principle in this regard is that the cases against these four defendants should as far as possible be heard at the same time and in parallel. For this reason, all four cases are being presented to the court at the same hearing. Since this mainly concerns trials in absentia, it is possible that a defendant or counsel in one case should decide to appear at a later date. Under the law, in such an event his case must be heard again, so that the defendant can still present his defence. If that occurs, the cases of these defendants cannot reasonably be tried in a joint trial, as this would subject all the cases to the same delay. That would not be compatible with the right of the next of kin to timely proceedings or the interest of the efficient administration of justice. We therefore take the view that the guiding principle should be for these cases to be heard together where possible and separately where necessary. It is also conceivable that the cases against these four defendants may proceed at different speeds, but that the court ultimately gives judgment on all four cases at the same time.

Prosecution decisions: the defendants

Introduction

How did we reach the decision to prosecute these four particular individuals? We will gladly explain. The JIT has conducted an extensive, open-minded and extremely thorough investigation into the downing of MH17. In the course of that investigation, the team profoundly examined various different scenarios: not only the scenario that MH17 was shot down by a Buk-missile, but also the scenarios that MH17 crashed after an on-board explosion, that it was shot down by a fighter aircraft, and that it was shot down by a missile system other than the Buk.

Only after extensive investigation did the JIT conclude that flight MH17 was shot down by a Buk-missile launched from an agricultural field near the town of Pervomaiskyi, to the south of the town of Snizhne; that a Buk-TELAR of the 53rd Anti-Aircraft Missile Brigade of the Russian army had been used for this purpose; and that this Buk-TELAR was transported from the Russian Federation on the night of 16-17 July 2014 and transported back to the Russian Federation shortly after the downing of flight MH17.

Many people were involved in this course of events. In the case of the armed group to which the defendants belonged, the so-called Donetsk People’s Republic (DPR), several dozen people played a role in transporting and guarding the Buk-TELAR. Several of them could not be identified in the investigation, or have since died. Our point of departure, when considering which of the identified suspects should and should not be prosecuted in Dutch criminal proceedings, is naturally always the question of whether there is sufficient evidence to launch a criminal prosecution with a reasonable prospect of securing a conviction. On that basis, a number of individuals who in recent years have been linked in the media to the downing of flight MH17 had to be discounted. The open-minded approach with which the investigation was conducted and the decisions on prosecution were taken is clearly illustrated if we take a look at who is not on trial here today.

Tsemakh

Firstly the Ukrainian Vladimir Tsemakh. He is considered a suspect and his extradition from the Russian Federation has been requested. The Public Prosecution Service has not yet decided whether Tsemakh will be prosecuted, however, as the investigation into his role has not yet progressed to the point where such a decision can be made. The evidence against him is not comparable to that against the four defendants charged in this case.

Bezler

Secondly we mention Igor Bezler, a comrade of the four defendants in this trial. Much has been reported in the media about an intercepted phone conversation he had on the afternoon of 17 July 2014. In it he told the person on the other end of the line that a ‘bird’ was coming his way. This was a very short time before the downing of flight MH17. Both this telephone call and Bezler himself were the subjects of thorough investigation. That investigation was unable to establish that this conversation had actively contributed to the downing of flight MH17. The investigation revealed, moreover, that the time between this conversation and the launch of the missile was so short that it was questionable whether the conversation could have contributed to the downing of the aircraft. We would like to elaborate on this at a later moment. We did not, and as things currently stand in the investigation still do not, consider that there is a provable criminal case against Bezler in relation to flight MH17.

Orion and Delfin

In September 2016 the JIT appealed for witnesses concerning the identity of two individuals who in July 2014 were using the call signs ‘Orion’ and ‘Delfin’. These individuals were probably two higher-ranking Russian officers who played a role in the armed conflict in eastern Ukraine. At the time of its witness appeal in 2016, the JIT suspected that these men had also played a role in the downing of flight MH17. In an intercepted phone conversation on 14 July 2014, for example, Orion said that ‘they’ now have a Buk and are going to shoot down aircraft. However, subsequent investigation that took place after September 2016 revealed that in the days prior to 17 July 2014 various persons and groups fighting the Ukrainian armed forces were trying to acquire a Buk-system. Most of these attempts appear to have been unsuccessful. Orion’s conversation of 14 July probably concerned a Buk-TELAR that was brought across the border from the Russian Federation but then caught fire and was rendered useless before it could be deployed.

Other telephone conversations feature discussion of Buk-systems that were expected but in the end were never delivered. The JIT’s investigation ultimately yielded concrete information about only one Buk-system that was in the area in question and could actually be deployed on 17 July 2014. That was the Buk-TELAR that was brought to the agricultural field near Pervomaiskyi.

Therefore, in regard to Orion’s telephone conversation, which in September 2016 seemed so relevant, we have now concluded on the basis of the latest findings of the investigation that the conversation was unrelated to flight MH17, and instead concerned another Buk-TELAR which caught fire before it could be used.

It appears that Delfin, in any event, was involved in the removal of the Buk-TELAR that downed MH17, but at this point in the investigation there is no evidence that his role was comparable to that of the four defendants in this trial. It should be noted that although a suspect’s role after an offence has been committed may be relevant to the assessment of the part he played overall, a criminal prosecution above all requires evidence that a suspect played a relevant role before and during the commission of the offence. [2] To date, there is no such evidence where Orion and Delfin are concerned, and therefore they are not being prosecuted in these proceedings. This illustrates once again that in this matter we continue to weigh up the evidence with an open mind and draw the appropriate conclusions, even if this requires us to adjust our point of view. We go where the evidence leads us, and only there.

Evidence and individual role

With regard to the group of suspects against whom the investigation produced sufficient evidence, we subsequently examined the role played by each separate individual. Only those who played a leading role can be prosecuted in the Netherlands. Of course, there should be no impunity for individuals who played a smaller role, but they can be prosecuted in Ukraine. Many DPR fighters played a minor role, taking no individual initiative themselves. This is true, for example, of those involved in transporting the Buk-TELAR, or in guarding it before and after the downing of flight MH17. Their cases can better be heard in Ukraine, and in several instances this has already occurred. These individuals have already been prosecuted in Ukraine, not specifically for the supporting role they played in the downing of flight MH17, but more generally for their participation in the so-called DPR, as members of a terrorist organisation.

Among the DPR fighters, we view Girkin, Dubinskiy, Pulatov and Kharchenko as leading players in the downing of flight MH17. Girkin and Dubinskiy were top military leaders of the DPR. Pulatov and Kharchenko were Dubinskiy’s direct subordinates. Together, these four men took delivery of the Buk-TELAR from the Russian Federation and deployed it as part of their own military operation, with the aim of shooting down an aircraft. The crew of the TELAR pressed the button, but according to the indictment it was Girkin, Dubinskiy, Pulatov and Kharchenko who directed the employment of this weapon in order to serve their own interests. They were in command of others; they directed the Buk-TELAR to the launch location; they talked during intercepted communications about the need for a Buk to serve their cause and whether ‘their’ Buk had done its job; they noted with delight that an aircraft has been shot down; they direct others in the delivery of the system to the launch site and they organise the removal of the Buk-TELAR to the Russian Federation. When it comes to evidence and responsibility, as of now no other suspects in the investigation are in the same position as Girkin, Dubinskiy, Pulatov and Kharchenko.

As mentioned previously, the JIT’s investigation is still ongoing. In complex investigations into offences involving many individuals, the Public Prosecution Service often has to take account of different factors and interests when deciding whether or not to prosecute. Not only the interest of being able to thoroughly investigate all parties of interest without hindrance, but also the next of kin’s interest in obtaining clarity about what happened as soon as possible. Last year, this led to the decision to summon these four defendants.

The continuing investigation is particularly focussed on the crew members of the Buk-TELAR that was used and on the chain of command, even in the Russian Federation. It remains to be seen whether this part of the investigation will result in a criminal prosecution against other individuals in the future. The Prosecution Service does not expect to be able to take more prosecution decisions in the near future. This phase of the investigation is, if anything, more complex than the first phase. Whatever the outcome of the continuing investigation may be, it does not detract from the importance of holding these defendants to account now for their role in the downing of flight MH17.

Prosecution decisions: the charges

The four defendants are charged with intentionally causing an aircraft to crash, resulting in the deaths of 298 passengers, and with the murder of those 298 victims. In our view, these charges clearly express what in fact occurred. We do not think that these defendants pressed the button that launched the Buk-missile. However, we do think that they played a significant coordinating role in the transportation and positioning of the Buk-TELAR, and in its removal back to Russia, making them so closely involved that they can be held responsible under criminal law for the downing of flight MH17.

It is perfectly conceivable that the true intention of these defendants was to shoot down an aircraft of the Ukrainian armed forces. Several items of evidence point to this scenario, including intercepted conversations the defendants had after the downing occurred. It is up to the court, of course, having fully considered the case file, to reach a judgment on this evidence. When drawing up the indictment we explicitly took account of this ‘error scenario’. The offences with which the defendants are charged concern the prohibition on causing any aircraft to crash and on killing another person, regardless of the type of aircraft and regardless of the military or civilian status of that other person. In the Netherlands anyone who destroys a Royal Air Force fighter aircraft can also be prosecuted under article 168 of the Dutch Criminal Code, and for the murder of the pilot. The offences in the indictment are as applicable to the downing of a military aircraft as to the downing of a civilian aircraft. In principle, any error concerning the target makes no difference in respect of the proof that such offences were committed. That is why, in the Netherlands and in many other countries, people are convicted of murder if they happen to shoot dead a passer-by instead of their intended victim. [3]

When drawing up the indictment we also took account of the fact that there was an armed conflict in Ukraine in July 2014. As you know, in July 2014 eastern Ukraine was the scene of heavy fighting between the Ukrainian armed forces and various armed groups. The rules that apply in wartime and peacetime can be different: this is the doctrine of combatant immunity, according to which military personnel may participate in hostilities within the limits of international law. These different rules, however, apply only to regular military personnel acting under the authority of a state in a group that respects international humanitarian law. Other people who commit acts of violence in an armed conflict are subject to the ordinary rules laid down in criminal law.

War is not a mandate for violence by all. That is not the case in the Netherlands and neither in Australia, Belgium, Malaysia, Ukraine or the Russian Federation. All states in the world have developed rules to limit the consequences of war as much as possible. A guiding principle is that wars are fought between combatants, and that civilians are not involved in any way. When despite this principle civilians in Ukraine use violence against Dutch, Malaysian, Australian and Belgian citizens, this violence falls under the scope of the ordinary criminal laws of these countries. These civilians commit ordinary crimes, such as murder and the downing of an aircraft leading to the death of its occupants, regardless of whether they used a rifle or an advanced rocket launcher and regardless of whether the intended victims were civilians or combatants. The same applies to armed fighters in Ukraine who claim to be ordinary civilians: ordinary criminal law applies to them too.

A mandate - or immunity - for deadly violence is only exceptionally provided. This does not take place in situations of chaos and lawlessness, but exclusively when using controlled and proportionate force. By ‘controlled’ we mean: regular soldiers who are recognizable as such, who fight under the responsibility of a state and in an organizational form which respects international humanitarian law. Groups that fight independently or do not respect the laws of armed conflict are therefore excluded. Like any other civilian, members of such armed groups are not allowed to use force. The ordinary criminal law applies to them just like anyone else. The same applies for soldiers who pretend to be ordinary civilians. This is also not allowed because it provokes reciprocal violence against real civilians. For this reason it is possible to punish soldiers for using violence when they conceal their status while doing so.

To date the defendants in this case have never asserted that in July 2014 they were regular military personnel acting on behalf of a state in Ukraine. Moreover, our investigation into the structure of their organization revealed that in the summer of 2014 the defendants’ armed group did not comply with the requirements of international humanitarian law. This part of the investigation, for example, has provided much information about systematic and large scale violations of international humanitarian law by the DPR in 2014 and thereafter. It concerns thousands of cases of looting, abduction of civilians, torture, inhumane treatment, executions of civilians and prisoners of war, the laying of (prohibited) land mines and other violations of international humanitarian law.

Our preliminary conclusion is therefore that the suspects were not entitled to claim combatant immunity in July 2014 and that they had no right or excuse to use violence in Eastern-Ukraine. Who systematically violates humanitarian law cannot benefit of any rights thereof in a criminal trial. The suspects can therefore be tried for crimes such as murder and intentionally downing an aircraft.

The Public Prosecution Service’s position

The central aim of Dutch criminal proceedings is to establish the truth. The task of the public prosecutor – like that of the court – is to establish as far as possible what happened, whatever conclusions may result from that search for the truth. In the process, the Public Prosecution Service – like the court – must safeguard the legitimate interests of everyone involved: suspects, defendants, next of kin and witnesses.

With respect to the next of kin

When I began this opening statement I said that we in this courtroom want to achieve, as fully as possible, justice for all the victims and all the families, wherever in the world they are from. For that reason, Ukraine agreed, at the Netherlands’ request, to transfer the prosecution of the four defendants to the Netherlands. This was not in fact necessary in order for this trial to take place. The Netherlands, after all, has legal jurisdiction over the downing of flight MH17 by virtue of the large number of victims who were Dutch nationals. That jurisdiction extends to the entire offence, that is, intentionally causing an aircraft to crash, resulting in the deaths of everyone on board that aircraft, and with that the murder of all passengers. To avoid any doubt about the position of the non-Dutch victims, Ukraine was nevertheless requested to transfer jurisdiction. This highlights once again that all the victims and all their next of kin have an equal place in this criminal trial.

In the run-up to these proceedings, many public prosecutors and victim coordinators have spoken with many next of kin who wished to talk. These were often distressing conversations.

Relatives have told us in detail about their deceased loved ones, about their sense of loss, about the far-reaching consequences of the sudden loss of family members, about the grief that does not go away. We have also heard stories of people who have managed to go on with their lives, while always keeping their loved ones close in their thoughts. We have heard relatives say that this trial can offer some hope, but that it will also be another difficult and emotional period, in which their grief, pain and loss will be ever present.

We know that there are relatives who want to hear every word of this trial so that they don’t miss a thing. But we know there are other relatives who will deliberately avoid the news over this period, so as not to be confronted again, day after day, with reports about MH17 and the emotions that will inevitably resurface.

These criminal proceedings will probably take a long time, because thorough proceedings that take account of everyone concerned in a just, careful and even-handed manner do take time. It is important that the defence have the time and opportunity to study and supplement the case file with anything the defendants wish to put forward. If additional research by experts is needed, it must be conducted with due care. This takes time.

The next of kin can nevertheless expect the Public Prosecution Service to do its utmost to ensure that the trial does not go on any longer than necessary, and that we keep them as well informed as possible about the progress of the proceedings.

In addition we believe it is important for the next of kin that the day-to-day management of proceedings be communicated as clearly as possible. That means, for example, announcing as far as possible in advance what will happen on a given day, and ensuring that unexpected matters of procedure are discussed in ad hoc sessions dedicated for that purpose. Only then can the next of kin (and other interested parties) properly decide how they wish to follow – or even avoid – the trial. This doesn’t change the fact that the trial will take time, but as with the investigation, which has lasted several years, due care must be our priority, and that takes time.

With respect to the defendants

As I have said, in Dutch criminal proceedings the Public Prosecution Service must safeguard the statutory interests of the defendants, and this case is no different. To that end, we have made every effort to notify the defendants about this trial, so that they may defend themselves if they choose. Irrespective of any response they may give in this courtroom, we have done our best to include in the case file all relevant remarks made by the defendants, for example in interviews, concerning the charges against them. This will enable the court to obtain as clear a picture as possible of the defendant’s standpoints – even if they themselves choose not to present a defence here in court. We have also extensively investigated the matter of whether the defendants can possibly claim combatant immunity, despite none of the defendants up to this point indicating that they consider themselves combatants. We will provide a more detailed explanation of that investigation on a moment decided by the court.

Another of the Public Prosecution Service’s tasks with regard to the defendants in the area of legal protection is to ensure that all the evidence is considered critically. During the investigation over the past several years, very extensive studies were conducted of the authenticity and reliability of the evidence that has emerged in the course of that investigation. These are known as validation studies. Not only have extensive analyses been performed of the internal cohesion between items of evidence, but many different experts have been consulted too. This has resulted in multiple kinds of validation studies, such as expert forensic investigation, meteorological studies, empirical comparative studies and expert studies in the field of missile technology. We took seriously accusations that intercepted phone conversations and open-source visual materials had been manipulated, and submitted them to independent experts. It is thus not a matter of depending solely on the defendants or the defence for a critical assessment of the available evidence. We would like to elaborate on the way in which this important validation research was done when the court finds that it fits in the planning of the trial.

Of course, none of this alters the fact that the defendants themselves are the people best able to present their points of view. That is why the Public Prosecution Service has done everything possible to give them that opportunity. And indeed they have every opportunity. They can appear here in person. They can send a lawyer to explain their side of the story. They can testify to the Russian authorities. They can respond via the website of the JIT or via social media. They can send a video message or respond to written questions. There are countless ways in which the defendants in this case can present their points of view. Issues of distance or national borders need not be an obstacle, as shown by the fact that several former separatists, like Igor Bezler, have given statements to the JIT. Anyone who remains silent does so by choice.

With respect to the witnesses

Many dozens of witnesses wanted to share what they experienced on 17 July 2014 and in the period before and after that day. How they saw the Buk-TELAR being transported, what they saw at the missile launch site, what they knew about the defendants’ organisation. All these accounts provided crucial information for the investigation. They are pieces of a puzzle which, together with the forensic evidence, the photos and videos, the telephone intercepts, expert reports and all the other evidence, form a robust case file. Witnesses in the DPR-controlled area in eastern Ukraine and witnesses from the Russian Federation run a serious risk when giving statements the authorities there consider ‘treasonous’. For that reason the examining magistrate has decided that the identities of dozens of witnesses in the case file must remain secret. This is unfortunately an essential requirement to enable those witnesses to tell their stories in a safe setting. When we explain the investigation in full we will discuss in more detail the need to use anonymous witnesses in these proceedings and the strict guarantees that apply in this regard.

Conclusion

Since 17 July 2014 the investigation into the circumstances of the downing of flight MH17 has been hampered by many attempts to distract attention from the true course of events. Not only by people consciously spreading lies and disinformation, but sometimes also by people who in this tragedy saw an opportunity to make money or attract attention to themselves. Over the past few years the investigation team has done its best to focus its time and energy as much as possible on that which can help establish the truth, and not allow itself to be caught up in the many attempts to distract, mislead and actively obstruct the investigation that we have seen in this case right up to the present time. During the criminal trial, too, this will be one of the biggest challenges we face. In the period ahead, too, we must expect that considerable efforts will be made to distract attention from the facts and obstruct the search for the truth. So it is important to properly distinguish between the smokescreen that will no doubt be raised and the real questions at the heart of this criminal trial.

After more than five years of preliminary judicial investigation it is now for the court to lead the examination at trial and reach a judgment on the charges set out in the indictment. This is a heavy responsibility, for several reasons.

For many of the victims’ relatives, obtaining clarity about the circumstances of the downing of flight MH17 is a key part of their grieving process. The importance of dignified and efficient criminal proceedings for the grieving process of those who have lost loved ones is widely recognised in academic research and international case law.[4]

And there is a broader interest, as well. The Russian writer Aleksandr Solzhenitsyn once said that ‘Violence has no way to conceal itself except by lies, and lies have no way to maintain themselves except through violence.’ [5] When hundreds of innocent people are killed, a world that doesn’t take the trouble to establish the truth and punish the guilty sends the message that its people are fair game. Establishing the truth in this case can help prevent fresh violence in the future. That is another reason why it is so important to separate truth from lies here, and to punish the guilty. That is the task with which we in this courtroom are faced.

Footnotes

[1] See e.g. European Court of Human Rights (ECtHR) (Grand Chamber), Güzelyurtlu and Others v. Cyprus and Turkey (no. 36925/07), 29 January 2019, consideration 219; and F. Vellinga-Schootstra and W.H. Vellinga, 'Positive obligations' en het Nederlandse straf(proces)recht (inaugural lecture), Deventer: Kluwer, 2008.

[2] See e.g. Supreme Court of the Netherlands, 10 July 2018, ECLI:NL:HR:2018:1159.

[3] See e.g. Supreme Court of the Netherlands, 8 April 1997, NJ 1997, 443. See also Supreme Court of the Netherlands, 12 June 2018, ECLI:NL:HR:2018:895.

[4] See e.g. European Court of Human Rights, Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, consideration 86, 2002; Arnhem-Leeuwarden Court of Appeal, 16 July 2018, ECLI:NL:GHARL:2018:6512; J. Parsons and T. Bergin, ‘The impact of criminal justice involvement on victims' mental health’, Journal of Thematic Stress, vol. 23, pp. 182-188 (2010).

[5] Nobel Lecture in Literature 1970, available at: https://www.nobelprize.org/prizes/literature/1970/solzhenitsyn/lecture/.