Status of the investigation and position on the progress of the trial - part 2 (10-3-2020)
Pronounced before the full-bench chamber of The Hague district court.
We will now explain what applications we are making in regard to further investigation. On certain points, we will also explain that we seek no further investigation, as we do not believe that it would add anything meaningful to the case file. We will explain our thinking because we believe that the defence or the court may take a different view. By indicating at this early stage the areas in the case file where further investigation may be considered, we aim to facilitate the progress of the investigation. We also believe this will help enable the court to arrive at an opinion. After all, the court itself has a responsibility to ensure that the trial is sufficiently comprehensive, and it can order further investigation ex proprio motu.
We are applying for further investigation only in the case against Pulatov. In major criminal cases with multiple defendants, investigation in the case against one defendant is often ordered in the cases against the other defendants as well, even if those other defendants have not requested it. There is a practical reason for such parallel investigation: if other defendants should later request such investigation, it does not need to be carried out all over again.
In this case, the Public Prosecution Service would explicitly recommend that this not be done, because of the differences between the trials in absentia of Girkin, Dubinskiy and Kharchenko on the one hand, and the defended action involving Pulatov on the other. If further investigation in the case against Pulatov is simultaneously allowed in the cases against the other defendants, this could lead to a situation in which the other defendants who are currently abroad have to be notified in writing about various investigative activities, particularly with regard to threatened witnesses (article 226b, paragraph 1 of the Code of Criminal Procedure) and expert witnesses (article 228, paragraph 1 of the Code of Criminal Procedure). Experience has taught us that sending formal notifications to the other three defendants by means of requests for legal assistance is extraordinarily time-consuming and seldom successful. This results in unnecessary delay. We must assume on the basis of the case file that the three other defendants are aware of this criminal trial but have chosen not to participate in it. If investigation in the case against Pulatov should result in information that is relevant to the cases against the other defendants, that information can be added to their case files too. Any exculpatory information will in any event be added to their files. If the position of the three defendants should change in the future, and they should wish to participate in their trial after all, they can still invoke all of their rights as defendants (see article 280, paragraph 3 of the Code of Criminal Procedure). Until such time we will submit applications for further investigation only in the case against Pulatov, and we ask the court not to order further investigation ex proprio motu in the cases against the other defendants.
We will now discuss the following categories in turn:
- further investigation by experts of intercepted telephone conversations;
- further investigation by experts of visual materials;
- witnesses to be examined further;
- viewing of the reconstruction of MH17.
Intercepted phone conversations
Earlier we explained our comprehensive approach to validating the intercepted phone conversations that Ukraine provided. As far as the Public Prosecution Service is concerned, the authenticity and content of the intercepted calls have hence been investigated as fully as possible, using different methods. We do not rule out further investigation, but we consider that it would only be meaningful if it were based on serious and concrete new information about the intercepted calls.
As to the question of whether new information about the intercepted phone conversations does or does not warrant further investigation, it is necessary to look critically at the source of that new information. Specific accusations of manipulation are for example contained in a report by the Malaysian investigator A. Rosen that was published online. The investigation team analysed that report and added it to the case file. The following elements are worthy of note:
- Rosen investigated videos posted by the SBU on YouTube containing fragments of intercepted calls. In other words, this was not an investigation of the intercepted calls themselves. This leads for example to the – unsurprising – conclusion that the conversations in the YouTube videos had been edited. That conclusion is undoubtedly true, but it says nothing about the complete intercepted conversations that are contained in the case file and have been thoroughly investigated.
- Rosen writes that access to the original material – the intercepted calls – is necessary to be able to draw conclusions about its authenticity and that he does not have access to that material, but then goes on nevertheless to draw numerous conclusions about the authenticity of the conversation fragments. We cannot reconcile these assertions.
- Finally, Rosen labels at least one conversation as fake and inauthentic, but one of the participants has publicly confirmed that he took part in that conversation. This is a conversation of 17 July 2014 involving a certain Kozytsin. In an interview with a journalist from VICE News, the separatist Kozytsin acknowledged that he took part in that conversation and explained how, in his view, it should be interpreted.
Our conclusion at this stage, based on these findings, is that Rosen's report may say something about the clips in the YouTube videos that he investigated, but this report does not provide any compelling reason to doubt the authenticity of the intercepted calls included in the investigation. A specialist in forensic speech analysis from the Netherlands Forensic Institute (NFI) informed us of ways to investigate the authenticity of intercepted conversations, referring to Rosen's report as an example of how not to go about this task. This NFI specialist said of Rosen's report:
‘A proper investigation of authenticity must be carried out on the basis of a specific manipulation hypothesis and, where possible, using the alleged original recordings. Rosen's report fails to comply with either principle. The report's findings therefore have no relevance to question whether the underlying intercepted conversations are authentic.’
We therefore see no reason in Rosen’s report to apply for further investigation.
We enquired among specialists about how further investigation into disputed intercepted conversations could be carried out in a meaningful way. The following picture emerged. General accusations of manipulation – such as the contention that all intercepted calls have been falsified – cannot be meaningfully investigated. But specific and concrete information can. If such information comes to light, preferably as a result of a suspect adopting a specific position on an intercepted conversation attributed to them, there are various ways in which it could be investigated. Technical investigation of alleged anomalies or abnormalities, such as noises that can be heard or an alleged lack of background noise, can be carried out by forensic experts. More technical further investigation into the authenticity of conversations could be conducted by having a Russian-speaking forensic audio specialist assess one or more conversations regarding issues such as possibly illogical sentence structure or word order in sentences that were spoken. An investigation of this kind could possibly be carried out in one of the Baltic states. We expect that Russian-speaking forensic audio specialists can be found there who can carry out expert investigation into this case with sufficient impartiality. Finally, it would be logical to also perform tactical investigation into the disputed conversations. This involves analysing, with reference to other information from the investigation, whether – in the light of the conversation's content – there is reason to believe that a conversation has been manipulated.
In short, we are not now applying for further investigation into the authenticity of intercepted conversations in the case file because we believe these conversations have been investigated sufficiently. At this time we see no information that is sufficiently specific and objective to cause us to doubt that authenticity. If nevertheless an intercepted conversation is disputed in a sufficiently specific manner, on the basis of a serious source, we will gladly express a view on what kind of meaningful investigation thereof can be performed. In order to facilitate the progress of these proceedings, we have already obtained information about how meaningful further investigation could be performed if the court should deem such investigation necessary. In view of the time such further investigation would be likely to take, it is important to decide on this matter as soon as possible. With this in mind, it is especially relevant to ascertain whether the defendants, and Pulatov in particular, dispute specific intercepted conversations.
Photographic and video material
We now come to the possible investigation of photographic and video material. The case file contains seven videos and three photographs of the TELAR, which according to the investigation were made on 17 and 18 July 2014 in eastern Ukraine. We have already explained with reference to one photograph how we validated these images. Again, further investigation is only meaningful if there are sufficient and concrete indications that these images have been manipulated.
The Russian Ministry of Defence alleges that a number of these images have been manipulated. It made this claim at a press conference on 17 September 2018.
The allegation of manipulation provided food for thought. With regard to a video of the TELAR in Luhansk, the Russian Ministry of Defence said on 21 July 2014 that the image was accurate, but that the recording had not been made in Luhansk but in Krasnoarmiysk, a town that was under the control of the Ukrainian armed forces. That assertion was based on an address that was, it was said, on an advertising sign. That address cannot be seen on the video itself. Geolocation techniques drawing on specific characteristics of the video revealed that the video had indeed been made in Luhansk and not, as claimed by the Russian authorities in their press conference, in Krasnoarmiysk. At the press conference held four years later the location of the recording was not discussed, and the claim was made that the images themselves had been manipulated.
This was not the first about-turn on the part of the Russian Ministry of Defence. On 21 July 2014 and 26 September 2016 it offered contradictory interpretations of the same radar plots: first it claimed that the reflections were from a Ukrainian fighter aircraft, and subsequently it said they were from debris from flight MH17. At the same press conference on 21 July 2014, the Russian Ministry of Defence also presented satellite photographs purportedly showing a Ukrainian Buk system that disappeared from view near Donetsk prior to 17 July 2014, reappeared on 17 July 2014 near Zaroshchenske and disappeared again a day later. In so doing it suggested that the missing Ukrainian Buk system was responsible for downing flight MH17. Satellite images from the European Space Agency and Google Earth and meteorological investigation by the KNMI demonstrated that the Russian photographs could not have been taken on the dates claimed.
There was therefore every reason to be sceptical about the Ministry of Defence’s latest allegations in 2018 that the images of the TELAR had been manipulated. Anyone who falsifies evidence and repeatedly produces contradictory versions of events cannot be considered the best source to evaluate the authenticity of other evidence. Nevertheless, these images and the Russian claims concerning them were referred to experts at the NFI. According to the NFI, there are no indications that the disputed images were manipulated.
Shortly before this hearing began we learned of new Russian accusations of manipulation. They are included in the written statement of the Russian Federation of 31 December 2019 in proceedings before the European Court of Human Rights. Those proceedings were initiated against the Russian state by various next of kin of victims of the downing of flight MH17. In this written statement, the Russian Federation asserts that other images of the TELAR were also ‘fake’. It even alleged a series of manipulated images, a ‘false digital story’.
The Russian Federation's written statement presents various images. With the exception of a photograph and a video of a TELAR moving under its own power in Snizhne, these images had already been mentioned by the Russian Ministry of Defence and investigated specifically by the NFI. That investigation satisfactorily refuted the Russian claims. According to the NFI, there are no indications of manipulation. That leaves the photograph and the video of the TELAR in Snizhne. They had not been disputed before. Various comments are made about how the photograph was exhibited in a JIT presentation, but the statement does not explain why the image itself is allegedly a fake. Specific, alleged indications of manipulation are only mentioned in respect of the video in Snizhne.
We asked ourselves whether these claims warranted further investigation of the images. Specifically, we considered how far we should go in validating images, what further investigation into image manipulation would add to the investigation that has already been performed, and how seriously we can still take Russian accusations in the light of all the demonstrable untruths already propagated by the Russian authorities in recent years. Nevertheless, at this early stage of these proceedings we consider that it still makes sense to have this specific example of alleged image manipulation investigated by experts. If such an investigation begins promptly it need not hold up these proceedings.
This investigation only examined metadata on original image files such as photographs and videos. Investigating other files would have served no purpose because metadata can change when resaving, sending or uploading files on services such as YouTube. In such cases, therefore, metadata sheds little light on when an image file was created or modified.
The Russian Federation’s written statement in the ECtHR proceedings claims that a YouTube version of the video of the TELAR in Snizhne gives 16 July 2014 as its ‘encoded date’, i.e. one day before the downing of flight MH17 and the making of the other images of the TELAR. The Russian Federation argues that the encoded date can never be earlier than the date on which the video is actually uploaded, and consequently the video must already have been uploaded on 16 July 2014.
That does not tally with the findings of the investigation. We can point to other evidence from various sources of a TELAR moving under its own power through Snizhne on 17 July 2014. We are also curious as to why a video which – if the Russian Federation is to be believed – was produced ‘with a propaganda motive’ on the part of the JIT was made on a date that is not consistent with the ‘propaganda’ message. At the same time, expert knowledge is needed to respond to the substance of this point concerning the encoded date. The NFI report referred to earlier does not address this new question. We would like this point also to be referred to an expert.
Conclusion photographic and video material
In brief, in regard to investigation of photographic and video material, we see grounds for an application for referral to the examining magistrate to order an expert examination of the video of the TELAR in Snizhne. Specifically, this examination should address:
- possible indications of image manipulation of the two versions of the same video of the TELAR in Snizhne included in the case file, partly in the light of the claims made 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.
We now come to the further examination of witnesses by the examining magistrate. We have already explained that we are now making applications for the further examination of witnesses because of the expected preparation time that will be required. In this regard, moreover, we expressly reserve the option of applying later, during the pre-trial review, for more witness examinations. First we will indicate the security issues surrounding the further examination of witnesses. We will then set out, in respect of several witnesses, the grounds on which we are applying for them to be examined further.
We will always refer to witnesses as ‘he’. If the identity of a witness is protected, it is possible that a female witness is being referred to. References to ‘he’ must therefore be understood to mean ‘he or she’.
We have already explained why the examining magistrate decided not to include the identity of dozens of witnesses in the case file. The threat from the DPR in eastern Ukraine and the fact that the Russian Federation is going to great lengths to conceal its involvement in this case have significant consequences for the investigative activities that still need to be carried out in the coming period.
Every effort will have to be made to ensure witnesses can be heard safely. The safe examination of witnesses whose identity has been protected on the orders of the examining magistrate will not be possible in court. We must be mindful of the fact that anonymous witnesses can only be safely examined by the examining magistrate without the defence and the Public Prosecution Service being present. After all, in view of the nature of the threat, the mere fact of the time and place of a witness examination becoming known could give rise to an unacceptable security risk. That risk does not arise if the examining magistrate hears witnesses at a time – over an extended period – and in a manner unknown to others, on the basis of written questions from the Public Prosecution Service and the defence. Previously, the examining magistrate considered it necessary to remove from the case file the dates of the interviews conducted under article 226a of the Code of Criminal Procedure because those dates could provide clues to the identity of witnesses. That risk will be no different now.
The Public Prosecution Service considers that the examining magistrate is ideally placed to decide how new witnesses can be safely heard, while at the same time ensuring the defence can exercise its right to examine witnesses. The examining magistrate is in possession of the most information and has by now acquired considerable experience in examining threatened witnesses in this case. Referral to the examining magistrate will in any case be required in respect of all witnesses whose identity has been protected under article 149b of the Code of Criminal Procedure, because an assessment will have to be made of how they can be examined in a manner consistent with the earlier decision to omit their identity from the case file.
It would not be logical for the panel of judges hearing this case to designate one of its own number as examining magistrate. If it were subsequently to be determined that defence counsel and the Public Prosecutor may not be present at the examination of a witness, which is the expectation, that judge may no longer take part in the trial (article 316 paragraph 2 of the Code of Criminal Procedure). If the court were to take cognizance of information that cannot be added to the case file for security reasons, it would find itself in the unfortunate situation of knowing more about a witness than the defence does. This strikes us as undesirable. The Public Prosecution Service would therefore express its opposition in advance to the possible designation as examining magistrate of one of the judges hearing this case.
If the examining magistrate decides to examine witnesses without the Public Prosecution Service and the defence being present, it is conceivable that several rounds of written questions may be needed for some witnesses. It goes without saying that this will have an impact on the time it takes for the examining magistrate to hear witnesses. For witnesses who have not been heard before by the examining magistrate, an assessment will have to be made of how the process should be managed in practical and procedural terms, and time-consuming procedures under article 226a of the Code of Criminal Procedure may have to be followed. Given also that in many cases the examining magistrate will have to find an extremely discreet manner of acquiring the necessary international legal assistance for these examinations, it is clearly vital that they can begin this important task as soon as possible.
In this process, the basic principle must of course be to amply facilitate the defence in the exercise of its right to examine witnesses. Given the exceptional security risks in this case, careful account must be taken of a fair weighing of the interests at stake when determining how the defence will be able to exercise that right. In this case file we see no witnesses who could be viewed in due course as ‘sole and decisive’ within the meaning of the case law of the ECtHR. The anonymous witnesses in this case file are a considerable group of witnesses who in particular can provide statements about the delivery and removal of the Buk TELAR and the firing of the Buk missile. There is no single witness in the case file in its current form whose testimony could be considered potentially decisive for a conviction. This circumstance is relevant to weighing, on the one hand, the interests of the defendants in having witnesses examined and, on the other hand, the interests of witnesses in giving evidence in a safe manner.
The case file contains statements from witness M58. This witness eventually put their name to a statement, but at this stage of the proceedings we see no reason to disclose that name. This witness states, in summary, that in the summer of 2014 they were operating as a Russian volunteer in a separatist unit in the self-declared republic of Donetsk. They indicate that, on 17 July 2014, at the time flight MH17 was downed, they were at a crossroads south of Snizhne, in the vicinity of a Buk TELAR at the moment a missile was launched. They, together with others, were given the task of guarding the site. This witness also talks about other separatists who were at the launch site, and about various details of that location. M58 states that those present were initially pleased because they were told that a military transport plane had been shot down. However, when the first people returned from the crash site they said that it was a civilian aircraft.
In view of the content of M58's statement and their personal situation, specific measures have been taken to protect them. These protection measures have an impact on M58’s (further) effective availability to the investigation, the court, the Public Prosecution Service and the defence. For this reason M58 was examined in October 2019 by the examining magistrate. These sessions took place without the defence or the Public Prosecutor being present and were filmed. Measures were taken to conceal M58's identity on the recording. Experience shows that it is beneficial to the safety of protected witnesses to examine them as soon as possible because the process – especially in cases in which there is great media interest – can draw attention to such witnesses.
The Public Prosecution Service is applying for a further examination by the examining magistrate so that the Public Prosecution Service and, if desired, the defence can put questions to this witness. The witness's statements are consistent and clear, but there are a number of subsidiary points where they leave questions open, for example concerning the dates of a number of events in the run-up to 17 July 2014. The Public Prosecution Service would also like to ask further questions about what the witness observed at the launch site, for example concerning the people who were present. The witness addresses these points at certain moments. He states, for example, that he recognised Russian accents among the military personnel present at the launch site, that Russian military personnel were present with the Buk and that he heard from his companions that people from the FSB were present at the shooting down of the aeroplane.
The audiovisual recordings of the examination of M58 are in the possession of the examining magistrate. The Public Prosecution Service requests that the court instruct the examining magistrate to make a compilation of relevant parts of the recordings that, having regard to the security measures in place to protect the witness, could be added to the case file and if desired could be shown in court. The examining magistrate should take account the viewponts of the Public Prosecution Service and the defence when selecting, on the basis of the official report of statement, the relevant parts of the examination.
We assume that safety considerations will make it impossible to examine M58 in court. The prior disclosure of the time and place of the examination in court and the associated travel required would pose too great a security risk. If the court were to consider an examination in court we would ask it to consider seeking the views of the examining magistrate at an early stage on whether this can be done in a responsible manner. This is because of the importance, for security reasons, of not examining a witness like M58 more often than necessary.
S21 and S07
Witness S21 states, in summary, that in the summer of 2014 they belonged to a separatist unit that was operating in the area around Donetsk. They reported to the defendant Kharchenko. S21's duties included manning checkpoints, patrolling, and guarding locations and assets. On the day that flight MH17 was downed, S21 was deployed together with others in the evening to transport a Buk TELAR from Snizhne. They transferred the TELAR to others in the vicinity of Debaltseve.
Witness S07 stated that they too were active in the period in question in a separatist unit that was under the leadership of Kharchenko. S07 is not very specific about his activities on 17 July 2014. S21 stated that S07 was also present when the Buk TELAR was removed after the downing of flight MH17. S07 did not acknowledge this when interviewed.
The Public Prosecution Service wishes to question S07 further on this point and put S21’s statements to them. The Public Prosecution Service would also like to ask S21 questions arising from the statements given by S07 and M58. For example, M58 describes the situation at the launch site and in the surrounding area, and the people who were present. S21 was also present at these locations.
S17, S27 and S32
Witness S17 was interviewed in 2015. In their statement they describe being shown a video on 17 July 2014, before the downing of flight MH17, in which an air-defence system resembling a tank could be seen. The person who had recorded the video had done so earlier that day. In the meantime, of course, several images from 17 July 2014 showing a Buk TELAR have come to light. The Public Prosecution Service would like to put further questions to S17 in order to determine whether the video concerns one of these images.
Witness S27 was also interviewed in 2015. According to their statement they saw a Buk TELAR at two different moments and locations on 17 July 2014. One of those locations is Illicha Avenue in Donetsk. A photograph of the Buk TELAR was also taken there. S27 also describes the people who were with the Buk TELAR and recognises specific uniforms they wore. S27's statement also refers to conversations with people who heard the missile being launched. The Public Prosecution Service would like to interview S27 in more detail about the grounds on which S27 concluded that a Buk TELAR was involved. At the current stage of the investigation the Public Prosecution Service would also like to ask S27 more specifically about the people with the Buk TELAR.
S32 stated in 2016 that, in July 2014, they filmed a BUK with an accompanying convoy using their dashboard camera, and had someone else upload it on YouTube.
All three of these witnesses were interviewed quite some time ago, and have not yet been interviewed by the Public Prosecution Service. With respect to all three witnesses, we had intended to apply earlier – before June 2019 – for them to be examined by the examining magistrate on the basis of article 226a of the Code of Criminal Procedure. When we were preparing these applications, however, it transpired that it was not feasible to speak to the witnesses at that time, because they could no longer be contacted or could not be examined by the examining magistrate in a manner that would ensure their safety.
This situation may now have changed with the passage of time. We believe it is necessary for the examining magistrate to hear these three witnesses now, if possible, in a safe manner, either in accordance with the procedure under article 226a of the Code of Criminal Procedure or otherwise. Further questions can then be put by the Public Prosecution Service and the defence and, if the examination is conducted in accordance with the procedure under article 226a of the Code of Criminal Procedure, the examining magistrate may carry out an investigation of witness reliability on the basis of article 226e of the Code of Criminal Procedure. The statements of all three of these witnesses are important as regards to the assessment of the video and photographic material relating to the Buk TELAR in the case file. As we have just explained, doubt has been cast in some quarters as to the authenticity of this video and photographic material. It therefore makes clear sense for these witnesses to be examined in more detail.
Lastly there is the possibility of a viewing of the wreckage. Giving the court, the defence and the Public Prosecution Service the opportunity to see the wreckage of MH17 for themselves would deepen their insight into the forensic case file. In that way the participants in the proceedings would be able to get a sense of the perforations and pitting on the left side of the aircraft, and of the various pieces of wreckage where the fragments struck and were removed that show similarities to a Buk missile of the 9M38 series. A viewing would help create that broader picture of the damage, as it is difficult to capture it effectively in photographs. The case file includes a 3D reconstruction of the wreckage. It provides a clearer picture than photos do, but it still does not give the same impression as viewing the wreckage in person would.
The reconstruction made by the OVV of the front of the aircraft is in Gilze-Rijen: the outside of the cockpit, the business class section and a small part of the economy class section. Most of the pieces of wreckage in which fragments were found that match parts of a Buk missile can be seen in this reconstruction. Only the left wing, in which several such pieces were found, is stored at a different location. The same goes for the various larger and smaller fragments that match various parts of a Buk missile, both visually and in terms of element composition. They were removed not only from the wreckage, but also from the bodies of victims and the crew’s flight documents. Larger parts were found separately at the crash site. These parts, which are thought to be from a missile, are stored elsewhere. The same goes for the parts of the various dismantled and detonated reference missiles from Ukraine and Finland, which were compared to the fragments found, and the aluminium witness plates used for the arena tests. We believe the photos in the case files provide a clear enough picture of these, so they do not need to be viewed in person. If necessary, smaller fragments can be shown in the courtroom at a later date. A viewing of the reconstruction will suffice to create a broader picture of the damage. We therefore apply to the court to move the hearing to the hangar at Gilze-Rijen Air Base at a date to be determined. If the court would prefer to view the other items we just mentioned that are stored elsewhere, it can of course decide that ex proprio motu.
Such a viewing will require sufficient familiarity with the forensic case file on the part of the defence. A viewing could therefore also take place in June or even later. In this case, too, we think it would be desirable for the court to make a decision now, so that the necessary logistic preparations can be made and the further scheduling of hearings can take account of it.
Access to documents for Pulatov’s counsel
This brings us to the issue of access to documents. As we have noted, the Public Prosecution Service will actively offer the defence access to various documents that are not in the case file because we did not consider them relevant, but about which the defence may think differently. After all, in assembling the case file we have not yet been able to take into account any defence from Pulatov, as none has been disclosed so far. The defence is also free to request, giving reasons, access to other documents that are not in the case file, to substantiate specific defences. The case file sets out why several specified documents have not been included. If the defence wishes to access such documents, that is of course possible. The Public Prosecution Service would only refuse such a request if that were necessary on serious grounds (article 187d of the Code of Criminal Procedure), such as the safety of witnesses or the interests of the ongoing investigation into other persons of interest. If the Public Prosecution Service and the defence disagree as to whether such access can be given, the court will decide. To expedite these proceedings, the Public Prosecution Service proposes that the examining magistrate be instructed to rule, in between hearings, on behalf of the court on any objection the defence may lodge against any refusal on the part of the Public Prosecution Service to give them access. We think that this, too, would be in the interests of the investigation and of the progress of the trial.
Translation for Pulatov’s counsel
It may also be in the interests of the defence to have a translation of case documents. Before this hearing, the Public Prosecution Service provided a Russian translation of the notice of summons and accusation and the general account. That account is a detailed summary of the case file comprising (in the Dutch version) 147 pages. This took a considerable amount of time. In addition, the Public Prosecution Service has undertaken to provide a Russian translation of the personal case file: an overview of the investigation with regard to the defendant Pulatov of (in the Dutch version) 68 pages. This translation is nearly completed. After the defence notified the court that they would act as counsel, the Public Prosecution Service also added to the case file the audio files of the intercepted telephone conversations most relevant to the evidence, so that the defence would have access to the original Russian-language audio files. This too will help the defendant gain insight into important evidence against him.
The Public Prosecution Service believes that these documents will provide the defendant with sufficient insight into the charges and the evidence adduced by the Public Prosecution Service. On the basis of these documents and the further discussion of other information in the case file in the consultations with his counsel (with the aid of an interpreter or his Russian lawyer), the defendant should be able to carefully determine the course of action he wishes to adopt during the proceedings. It can then be assessed on the basis of specific, substantiated requests whether it is in the interests of the defendant to have Russian translations of other documents.
Before this hearing, the Public Prosecution Service already discussed the fact with the defence that any requests for translation of additional documents must always explain why the defence considers translation necessary. This is in accordance with Dutch (article 32a, paragraph 1 of the Code of Criminal Procedure) and European legislation. According to the relevant European Directive, these must be documents which are essential to ensure that the defendant is able to exercise their right of defence (article 3, paragraph 1 of Directive 2010/64/EU). Documents or parts of documents to which this does not apply, need not be translated (article 3, paragraph 4 of the Directive).
From this point onwards any requests for translation will have to be submitted to the court. Here, too, we propose that the court instruct the examining magistrate to decide, in between hearings, on behalf of the court on any requests for translation from the defence, in order to expedite the proceedings.
Next of kin
Like the defendants, the victims’ next of kin also have certain rights. For instance, they too are entitled to gain access to case documents, in so far as that is in their interests (article 51b, paragraphs 1 and 6 of the Code of Criminal Procedure). Certain documents may be relevant to any statement they wish to make in exercising their right to address the court, or to the substantiation of any claims for damages.
On the other hand, in providing copies of case documents to next of kin the Public Prosecution Service must take into account possible consequences for the present criminal proceedings. On account of the exceptional media interest in this case and the large number of next of kin, there is a real chance that case documents may end up in the public domain. We believe it would not be in the interest of due process if this were to occur before those case documents had been examined at a public hearing. The Public Prosecution Service therefore adopts a restrictive approach vis-à-vis the provision of case documents to next of kin, assessing each request individually in terms of whether there are arguments in favour of deviating from that general restrictive approach.
In view of the interests of the next of kin, we do believe we can provide a copy of the summary of the investigation (the general account), as soon as the consideration of the merits has taken place. We have previously undertaken to do so. We have also undertaken to ensure in any event that they will receive that summary no later than four weeks before they are asked to submit their claim. To that end, sufficient time – at least four weeks – will have to be scheduled between the completion of the consideration of the merits and the submission deadline for the claims of injured parties. Now that the hearing is under way, the court will have to decide on any requests for access to or copies of case documents. We hold the view that the rights of next of kin are best served when a substantial presentation of several parts of the case file is given during the preliminary phase of the trial. We will elaborate on this.
In addition to the right to information, the next of kin also have the right to be heard in court during the criminal proceedings and the right to claim damages. The next of kin have been asked about this, and as it stands, 49 persons wish to exercise their right to be heard in court, 84 wish to submit a claim as an injured party and 82 wish to submit a victim impact statement. This is just a first estimate. All next of kin are free to change their minds on this matter. In the interests of the process, it would be our preference for the next of kin to exercise their right to be heard in court before the closing statements. The same goes for the first clarification of the claim for damages.
We would ask the court to take the above into account when scheduling the rest of the trial.
Looking ahead to the consideration of the merits
We would like to conclude with a look ahead to the assessment of the merits of the case. It is partly influenced by the way efforts to establish the truth in this case have been obstructed over the years, since 17 July 2014.
Over the past few years, public awareness of the dangers of disinformation has grown. ‘Disinformation’ is the deliberate, often covert, dissemination of misleading information, with the aim of damaging (inter alia) the public debate, democratic processes and the rule of law. These days, states try to exert influence and mislead by means of manipulated information. Democratic states that respect the rule of law now widely recognise that disinformation forms a serious threat to the stability and quality of democracy, the rule of law and an open society. Like the European Union and many other countries, the Dutch government has taken measures to counter the dangers of disinformation campaigns.
After MH17 was shot down, a disinformation campaign began that continues to this day. Using open sources and intercepted telephone conversations we can pinpoint the start of that campaign very precisely. In the first few hours after the crash, what little information existed was still being shared without any kind of filtering. For instance, the pro-Russian television station LifeNews reported as follows on 17 July from 16.34, i.e. within 15 minutes of the crash:
‘Rebels inform us that they have succeeded in downing another transport aircraft of the Ukrainian air force. This occurred above the city of Torez in the self-proclaimed Republic of Donetsk. This was around 5.00 Moscow time. An AN-26 was flying over the city. A missile suddenly penetrated the aircraft. An explosion followed and the aircraft began to fall. Black smoke could be seen in the air. The AN-26 fell down on the side of the mine and the residential areas. I would add that Torez is not far from the town of Snizhne and the Saur-Mogila hill. These areas are controlled by rebels.’
It can be noted that in this early media coverage important elements are mentioned that came to be established later on in the investigation: the involvement of the ‘rebels’, who apparently themselves claimed to journalists that they shot the aircraft down; the use of the missile; and the link with the area around Snizhne, which was controlled by the ‘rebels’. Only the nature of the downed aircraft was incorrect.
There is more evidence in the case file that the DPR openly claimed to have shot down an aircraft shortly after the crash of MH17. For instance, a photographer who was in the area described in a World Press video interview how he was phoned by the press spokesperson of the separatists after the crash of MH17, who told him that they had shot down a military aircraft belonging to Ukraine. He received this phone call before it became known what type of aircraft had been shot down.
When it became clear in the following hours that the target hit was not a military aircraft but civilian flight MH17, the disinformation campaign started immediately. The pro-Russian television stations changed their reporting. On LifeNews, for example, by around six o’clock the claim by the ‘rebels’ and the eyewitnesses about the missile were gone entirely. Instead it was reported at 18.02 that MH17 had been shot down with an S-300 missile system belonging to the Ukrainian armed forces. Just under half an hour later, that version was replaced by the report that the Boeing had been shot down by a Ukrainian fighter aircraft, which was then in turn shot down by the ‘people’s army’.
A few days later, the Russian Ministry of Defence adopted this line of reporting, in a press conference in 21 July 2014 which we have referred to before. During that press conference the Ministry suggested two scenarios, saying on the one hand that MH17 may have been shot down by a Ukrainian fighter aircraft; and on the other hand pointing to a Ukrainian Buk system. From then on, both scenarios were maintained by, among others, the Ministry of Defence, Buk manufacturer Almaz Antey, the Russian criminal investigation authority, the deputy Prosecutor General, the Minister of Foreign Affairs and the foreign ministry spokesperson. Until mid-2015, an attack by a Ukrainian fighter aircraft was the dominant scenario. Once the OVV published its draft and final report, however, the emphasis shifted to a Ukrainian Buk missile. Various interpretations were given as to what type of missile and what type of warhead were thought to have been used, and it was repeatedly asserted that the Russian armed forces no longer used those types. As of 26 September 2016, the scenario of a Ukrainian fighter aircraft faded into the background. That is the date on which it was announced that Russian radar data had been found, and that those radar images did not show a fighter aircraft. From then on, the Ukrainian Buk missile became the dominant scenario. This was confirmed in 2018 by the presentation of documents that allegedly show that the Buk missile responsible was delivered to a Soviet unit in Soviet Ukraine as early as 1986. According to the Russian Ministry of Defence, the missile remained there all that time. The same line was taken by the Russian deputy Prosecutor General in early 2019. He too pointed to the evidence of it being a Ukrainian missile. Nevertheless, the Russian Federation has continued to keep both options open: its response in the proceedings before the ECtHR only went as far as referring to the ‘alleged shooting down of MH17 by a BUK missile’. To this very day, the Russian authorities have never taken a definitive position on what exactly they think happened on 17 July 2014.
The Russian narrative is aimed solely at sowing doubt about the evidence pointing to a Russian Buk missile and at disqualifying the JIT’s investigation. For instance, the JIT has been accused of being biased, using falsified information and not taking the Russian information seriously. At the same time, the Russian authorities have provided plainly incorrect information about satellite and radar images, while refusing to provide any information about the Buk TELAR that was identified in the JIT’s investigation as being the system used to shoot down MH17. In 2019, the deputy Prosecutor General stated that there was no reason to interview Russian citizens, as there was no evidence of their involvement.  He did, however, ask the Dutch Minister of Justice and Security to transfer the prosecution of the three Russian suspects to the Russian Federation.
The fate of flight MH17 has become known as a textbook example of a disinformation campaign by the Russian government. It is clear we have not yet seen the end of it. In a letter to parliament in 2019, the Dutch government said the following on this issue:
‘One of the subjects about which disinformation is deliberately being disseminated is MH17. As the Minister of Justice and Security, as the coordinating minister for state threats, said during his meeting with the parliamentary committee on national security and crisis management, theories abound about the circumstances of the crash. Many of those theories have proven to be untrue. In some cases it transpired they had been created deliberately in order to sow confusion. On behalf of the government the Minister of Justice and Security has said before that in the run-up to and during the criminal proceedings with regard to MH17 we must be prepared for disinformation aimed at adversely affecting the criminal proceedings and undermining trust in the independent judiciary.’ 
That warning turned out to be justified. Shortly before the hearing, a number of documents from the JIT’s investigation were made public on a website. One of those documents is part of an image report by the Australian Federal Police. It discusses the metadata of four digital image files of the TELAR that were found on the internet. They are two photos from Paris Match of a TELAR on a trailer behind a Volvo lorry in Donetsk, a photo of a TELAR on a trailer in Torez and a photo of a TELAR moving under its own power in Snizhne. The leaked part of this report mentions the metadata of these files. According to the Australian investigators these files ‘appear to have been manipulated’, because the ‘modified’ date of the files is earlier than the ‘created’ date. That is not a conclusion about actual manipulation, because such differences can be due to image files being re-saved, transmitted or uploaded. The Australian investigators say as much themselves: ‘Various reasons could explain why this is so [...].’ More important is the fact that over the years much more investigation has been conducted of these images than this report from 2015 shows. For instance, the video has been secured from which the two Paris Match stills were taken. Investigation of this video has shown that according to the metadata it was shot on 17 July 2014 at 10.23.54 at a GPS location on Makeevka Highway in Donetsk. On the basis of the shadows in the footage, the KNMI estimated that the video had been shot at around the same time. A comparison of visual elements in the footage with Google Streetview confirmed the same location. The NFI investigated this video and found no indications of manipulation. In addition the presence of the TELAR at this location is confirmed by witness statements and telecom data. The other two photos in the Australian report, taken in Torez and Snizhne, were also subject to more in-depth investigation, which showed that these photos were made public as early as 17 July 2014. That is earlier than the Australian report had been able to establish on the basis of the metadata. These photos were validated too, by means of investigation by the KNMI, comparison with information on Google Streetview, witness statements and telecom data. So although the published Australian report does show how critically the JIT has assessed the evidence obtained, it has now been superseded by all the validation that has taken place in the years since the report was drawn up.
Incidentally, the full version of that report mentions another video file: a video shot in Zuhres. This part of the report was not published on the website in question. According to the information in the original report, this video was shot on 17 July 2014 at 11.37.58 local time, at a GPS location in Zuhres. This information is confirmed by other sources in the case files.
Apparently the website saw reason to publish only those investigation results that could be used to suggest visual material had been manipulated. Parts of the report that confirm the authenticity of a video were not published. This website’s goal is therefore not to share information in a responsible, journalistic manner, but rather to spread disinformation.
This is borne out by two other leaked documents, which are in the case file. These are official reports by the Netherlands Defence Intelligence and Security Service (MIVD) that provide information about the locations of Ukrainian and Russian Buk systems in the region where MH17 was shot down. These two leaked reports refer to a previous report which clearly states that this military information is limited to locations where ‘activity [involving Buk systems] has been observed over longer periods of time in June and July 2014’. So the MIVD does not conclude that there was no Russian Buk system present in eastern Ukraine on 17 July 2014, as suggested by the website. The MIVD report concerns only locations where Buk systems were stationed for longer periods of time. Short operations, whereby a Buk system is delivered, used and removed immediately, fell outside the scope of the MIVD’s observations, as described in the reports.
Last Saturday, the makers of this website have made public new documents. These were minutes of a closed JIT-meeting. These minutes contain what has been brought up by us earlier: that the JIT-countries deliberated about what investigative work could be done. Such meetings are not relevant to this trial. What is relevant, is the investigative work that has actually been conducted. You will find this in the case files. It is apparent that we can expect further publications like these in the course of the proceedings.
We have looked at how these documents could have been obtained. Only the Netherlands, Belgium, Australia and Malaysia had access to all the published documents. So far none of these four JIT states has been able to identify any leaks. There are indications, however, of previous attempts by the Russian GRU to hack the Malaysian police and attorney general’s office. On 4 October 2018 the Dutch and UK authorities held a press conference on the thwarted GRU cyber operation that had targeted the OPCW in The Hague. The Dutch Ministry of Defence announced that one of the Russian intelligence officers involved in this operation had previously been active in Malaysia, targeting the MH17 investigation. This was confirmed by the UK authorities. They said the GRU operation in Malaysia was aimed at obtaining information about the MH17 investigation from the Malaysian attorney general’s office and the Malaysian police. Given these circumstances, we must take into account the possibility that the published documents were obtained following a successful GRU hacking operation in one of the four JIT countries mentioned above. In this respect, we note that information about anonymous threatened witnesses has been stored at another, more heavily secured, digital location than the documents that have been disclosed thus far. At this stage, there are no indications that information about such witnesses has fallen in the wrong hands.
The cynical disinformation campaign regarding the fate of flight MH17, which has gone on for more than five years now, places a heavy strain on many of the next of kin. As we already stressed in our opening statement, the next of kin of victims of serious offences deserve to receive clarity about what happened and who is responsible, at the earliest possible moment. Especially if government authorities are involved.
One of the next of kin has worded this appropriately in a Dutch newspaper last week:
“On 17 July 2014, 298 people lost their lives in a violent manner. 80 of them were children. For such a loss, the scale of human emotion is insufficient. That is the immensity of the MH17 tragedy. Just as immense is the importance of this trial. The question of why happened what happened is particularly significant to the next of kin. Their questions are still as numerous as their grieving is deep. The truth also lays the necessary legal foundation for justice and accountability”.
For many next of kin such information it is an important step in the grieving process. Due to the large number of next of kin in this case, that information cannot be shared with them in a meeting with the Public Prosecutor; it has to be done at the public hearing, as soon as the proceedings will allow.
But there is also a wider public interest in the swift sharing of information at this hearing. In the case of grave human rights violations such as in this case, not only the next of kin but the wider public too have a right to know what happened and who is responsible. The ECtHR has said the following in this respect:
‘Furthermore, where allegations of serious human rights violations are involved in the investigation, the right to the truth regarding the relevant circumstances of the case does not belong solely to the victim of the crime and his or her family but also to other victims of similar violations and the general public, who have the right to know what has happened. An adequate response by the authorities in investigating allegations of serious human rights violations may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of impunity, collusion in or tolerance of unlawful acts. For the same reasons, there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory […]’.
Partly for that reason, the JIT has previously shared a limited amount of information about the cause of the crash of flight MH17.
In 2006 the United Nations High Commissioner for Human Rights also pointed out the right of next of kin and the wider public to the truth following grave human rights violations. That includes not only information about the circumstances, but also about the ‘progress and results of the investigation’.
Thus, international human rights bodies emphasise the right of the next of kin and the public to information, including during the investigation. Of course a balance must be struck between the rights of the next of kin and the public on the one hand, and the defendants’ rights on the other. But especially in a criminal trial during which disinformation is constantly being spread, placing a heavy strain on the next of kin, the shutters cannot be kept down much longer.
We have to assume that further investigation in this case will not be completed before the end of this year. The consideration of the merits will therefore not begin until some point in 2021. In the meantime, the disinformation campaign will no doubt continue.
And in the meantime, there are also ongoing proceedings against the Russian Federation, brought before the ECtHR by next of kin. The Dutch government has announced it will intervene in those cases. In those proceedings too, the Russian state has cast doubts on the evidence in the case file of the criminal trial. We have already discussed the allegations that visual material was manipulated. The next of kin have contacted us, asking how they are meant to respond to these allegations if they have no access to the case file. The Public Prosecution Service is authorised to disclose criminal case information, but has been cautious in doing so, in the interest of due process. We hope that we do not have to disclose information until that information has been discussed at a public hearing. That way the court retains control of the case file. But the longer it takes before the consideration of the merits can begin, the more compelling the interests in other proceedings become. The next of kin will then have to be given the opportunity to refute any unjustified accusations of manipulation of visual material before the ECtHR. They will have to be able to adduce information in those proceedings about the validation of intercepted telephone conversations and the results of the extensive forensic investigation. If such subjects cannot be discussed at the hearing in June, there is a reasonable chance that the Public Prosecution Service will have to consent to disclosing that information on the basis of requests by next of kin on the grounds of section 39f, subsection 1 of the Judicial Data and Criminal Case Information Act. This would be beyond the scope of the court.
Lastly, there is the size and the complexity of the case file to consider. It contains information about how radar systems work, the capabilities of the Buk missile system, the forensic investigation and vast amounts of Ukrainian telecom data. In addition, it reports on the extensive investigation by the JIT into scenarios other than the one named in the indictment: the possibility of an explosion inside the aircraft, of an attack by a fighter aircraft and of a Buk missile fired from Ukrainian territory. These are all complex issues that must be discussed at the hearing but are not directly related to the defendants’ involvement.
If we look at all of this in conjunction – the disinformation campaign, next of kin’s and broader public’s right to information, the exceptional public interest in this case, the ongoing state responsibility procedures and the size of the case file – we believe there is reason to adopt a staged approach to this trial.
By that we mean that the consideration of the merits should take place in several stage. For instance, the alternative scenarios that are not under discussion or the (technical) subjects with regard to which the investigation has already been completed could be discussed in terms of merits at the hearings in June or September.
If the defence agrees with the Public Prosecution Service that an explosion on board MH17 or an attack by a fighter aircraft can be ruled out, the court could already discuss those matters at the hearing. There would be nothing strange about that: these scenarios have previously been rejected by the OVV, and the Russian Federation now appears to have abandoned them as well. By now there is even more objective evidence ruling out these scenarios: forensic evidence and primary radar data. Or to put it another way: if the defence wanted to hear eyewitnesses of an attack by a fighter aircraft, it would be the same as hearing a so-called eyewitness to a stabbing in a case where the victim had died of bullet wounds. So those alternative scenarios could be discussed at an earlier stage.
The same goes for other subjects. If the defence agrees with the Public Prosecution Service that every possible forensic investigation has been conducted, or that no more investigation is needed into radar data and the functioning of the TELAR, the court could already discuss these investigation results. Even if the Public Prosecution Service and the defence were to disagree about the interpretation of these investigation results, that would not preclude consideration of the merits in this respects. The court can, for example, discuss which radar data has been sought after by the Prosecution Service, which data has been received, and the expert analysis conducted in relation to the data. This is all included in the case files. The court can present this factual information, or ask the Prosecution Service to elaborate on this information. Should the defence and prosecution differ in their views on the evidential value of this radar data, this can be debated during later stages of this trial.
An approach in stages is in the interests of progress in the proceedings and the right to information of the next of kin and the wider public. It will put people’s minds at ease and provide clarity; without such a prior discussion the public will struggle to follow what is being discussed at the hearings. To our minds such a state of affairs is not reconcilable with the requirements of ‘accessibility’ and ‘scrutiny’ which the ECtHR sets in cases like these.
It is also in the interests of the defendants and of the quality of the hearing. It will focus the debate between the Public Prosecution Service and the defence: the most important points will be discussed last.
It will also clamp down on the disinformation campaign. In so far as the court examines the case file in stages, the public will be able to gain timely knowledge of the indications for various scenarios and of incriminating or exculpatory evidence. On the basis of that information the public will be able to come to an informed opinion step by step.
We therefore request the court to consider such an approach in stages, once it is known what the defence’s course of action during the proceedings will be. The court could set a deadline before the next pre-trial review hearing by which the Public Prosecution Service and the defence have to state in writing what they wish to have investigated in relation to the whole case file or at least parts thereof. On the basis of those wishes, the court could decide what subjects require further investigation and what subjects can already be discussed in the pre-trial review process. The court could consider examining certain subjects itself, or first inviting the Public Prosecution Service and the defence to put forward their standpoints.
Conclusion and applications
In the case against Pulatov we apply on the grounds of article 328 of the Code of Criminal Procedure for the following:
1. 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;
2. referral to the examining magistrate of the following:
a. the examination of witnesses M58, S07, S17, S21, S27 and S32 in a safe manner, to be determined by the examining magistrate;
b. the composition of a video recording of the previous examination of witness M58, after the defence and the Public Prosecution Service have had the opportunity to express their wishes with regard to that composition;
c. 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;
d. the setting of a deadline by which Pulatov’s counsel must comment, with reasons, regarding:
- Pulatov’s wish to be examined as a witness at the hearing or by the examining magistrate and his willingness to answer questions at that time;
- Pulatov’s (possible) disputing of one or more intercepted telephone conversations, of which the audio files have been provided;
e. the (possible) preparations for examining Pulatov as a witness;
f. further decisions on:
- a possible objection by the defence to possible (partial) refusal by the Public Prosecution Service to give the defence access to documents that are not part of the case file; and
- possible requests by the defence for translation of case documents.
In addition we request that the court consider:
3. in the case against Pulatov, setting a deadline in good time before the hearing in June by which the Public Prosecution Service and the defence state in writing what they wish to have investigated in relation to the whole case file or at least parts thereof; and
4. on the basis of those wishes, deciding which subjects can be discussed in terms of merits in the cases against Pulatov, Girkin, Dubinskiy and Kharchenko at the hearings in June and September.
 E.g. Kamerstukken II 2006/07, 31 116, nr. 3, p. 3 (“De rechter heeft een zelfstandige verantwoordelijkheid voor de deugdelijkheid, volledigheid en grondigheid van het onderzoek dat onder zijn leiding plaats vindt. Hij dient daarbij “the best available evidence” na te streven.”) and Kamerstukken II 2003/04, 29 271, nr. 1, p. 9.
 E.g. https://euvsdisinfo.eu.
 E.g. Kamerbrief Beleidsinzet bescherming democratie tegen desinformatie, 18 October 2019, https://www.rijksoverheid.nl/documenten/kamerstukken/2019/10/18/kamerbrief-over-beleidsinzet-bescherming-democratie-tegen-desinformatie.
 https://ria.ru/20190121/1549650959.html. English translation at: https://sputniknews.com/interviews/201901211071672704-mh17-crash-jit-russian-prosecutor/?utm_source=https://t.co/7F1ipQFzqy&utm_medium=short_url&utm_content=k6vB&utm_campaign=URL_shortening.
 Kamerbrief Beleidsinzet bescherming democratie tegen desinformatie, 18 October 2019, p. 5. At https://www.rijksoverheid.nl/documenten/kamerstukken/2019/10/18/kamerbrief-over-beleidsinzet-bescherming-democratie-tegen-desinformatie.
 ECHR, Al Nashiri against Poland (Nr. 28761/11 July 2014, at 495.
 Office of the United Nations High Commissioner for Human Rights, Study on the right to the truth, E/CN.4/2006/91, para. 38 (8 February 2006).
 E.g. Appeals Court The Hague, 23 November 2010, ECLI:NL:GHSGR:2010:BO4912, at 4.1-4.7.
 E.g. ECHR (grand chamber), Güzelyurtlu and Others tegen Cyprus and Turkije (Nr. 36925/07), 29 January 2019, r.o. 219.