Prosecutor's reply May 16-17-18 May 2022
Seven years, nine months and twenty-nine days ago, flight MH17 crashed in eastern Ukraine. In the coming days we will be speaking for the last time before the court renders judgment. These proceedings are nearing their conclusion. As the outside world changes in response to the war in Ukraine, we are returning to 17 July 2014. To this case. This case is about establishing whether the four defendants are guilty or not guilty of downing flight MH17 that day.
On 22 December last year we presented our conclusions. In short, the Public Prosecution Service considers that there is lawful and convincing evidence that Girkin, Dubinskiy, Pulatov and Kharchenko are guilty of functional joint perpetration of causing flight MH17 to crash through the firing of a Buk missile with a Buk TELAR launcher in the vicinity of Pervomaiskyi, resulting in the deaths of all 298 passengers and crew, and of the murder of those passengers and crew. In the cases of all four defendants the Public Prosecution Service has recommended a sentence of life imprisonment for these offences.
In March this year Pulatov mounted a defence lasting 11 days. His defence argued that the Public Prosecution Service had forfeited the right to prosecute Pulatov because he had been denied a fair trial. That there is insufficient evidence that flight MH17 was shot down with a Buk missile. That if MH17 had been hit by a Buk missile, that missile could not have been fired from an agricultural field near Pervomaiskyi. And that – in so far as such a scenario had occurred – Pulatov was not guilty of it. In our reply we will respond to these defence arguments. We will also discuss Pulatov’s requests that certain documents be included in the case file.
We will begin with some general observations. In their statement of the case, Pulatov’s lawyers disputed virtually every aspect of the investigation. They have every right to do so, as is appropriate under the rule of law. We welcome the defence’s critical engagement, and on some points we agree. We also understand the danger of tunnel vision. One must be vigilant about that in any investigation, just as one must guard against a lack of focus. In this final phase of proceedings, that focus is lacking in the defence. We have heard many questions raised, but they usually concern side issues or are divorced from reality. Many assertions have been made, but there has been little in the way of factual substantiation. There is nothing wrong with criticism and mistrust in themselves, but without viewing the case file with an open mind and listening to the reasoned decisions of the court and the arguments of the Public Prosecution Service, such mistrust simply digs a tunnel of its own.
Criticism and mistrust have been integral elements of this investigation from day one. I would like to take you back to the period after the downing of flight MH17. Investigation by journalists has shown that in the first three days after the disaster no fewer than 111,000 tweets about MH17 were sent by fake accounts. Disinformation, intended to sow confusion among the public and undermine trust in a fair investigation. This campaign of manipulation began immediately after the disaster and has never stopped.
The unrelenting, global attention given to this investigation and the many attempts to undermine it have ultimately only made it stronger. The requirement was always to present hard facts. Because, as the Soviet writer Vasily Grossman said, there is only one truth. There is no such thing as a half-truth. Only incontrovertible evidence can withstand the storm of media attention and stand up in a court of law. And there is plenty of such evidence in this case. It includes photos, videos, satellite images and intercepted phone conversations that have been presented in this courtroom and can be viewed by the public. There is strong forensic evidence, such as a bowtie-shaped fragment from a Buk missile that was deeply lodged in the body of a crew member. We have shown the lengths to which the Joint Investigation Team went to verify the evidence in this case. The team investigated all kinds of alternative theories, even though they were unlikely. They checked, in every conceivable way, whether the aircraft was indeed downed by a Buk missile fired from that agricultural field in Pervomaiskyi, and whether the disaster could possibly have happened in any other way.
After the broad investigation phase and the extensive court discussions in the first two years of these proceedings, it is now time to narrow the debate. This second round – the Public Prosecution Service’s reply to the defence and the defence’s rejoinder – is intended to bring the debate back to the essentials. And yet, the defence’s statement of the case leaves us with a vague picture.
We are often left with open-ended questions or suggestions. For example, the defence ‘cannot help but think that there are more relevant facts, circumstances and/or events (...) of which we have no knowledge.’ It is difficult for us to respond to such unknown abstractions. At other times, the defence refers to sources in which it sees different things to what the experts and the prosecutors see. The defence states, for example, that no raised edges can be seen in a photo of a bowtie-shaped fragment from a Buk missile, even though those edges in the photo are visible to the naked eye, are pointed out with yellow arrows on the same photo, and are described in the accompanying caption. The defence also invokes a report by a Dutch legal psychologist, in which the official records of the interviews with witness M58 are repeatedly misrepresented. Furthermore, in its statement of the case the defence shared a great deal of information from the state-owned Russian company Almaz-Antey, none of which was particularly illuminating. It remains unclear, for example, what data and methods the company used. And at other times the defence presented conclusions from its own reports which were based on incomplete sources. A US consultancy concludes, for example, that the forensic investigation was supposedly incomplete, while the consultancy’s list of sources shows that it did not have the overviews or the main findings of that forensic investigation at its disposal. We will discuss this in more detail later.
Despite the confusion concerning some standpoints, the defence’s statement of the case did provide clarity on other points. Until April this year we did not know which precise positions Pulatov would adopt. We knew that he denied any involvement, and we had heard what he said on video about what he was and was not doing in July 2014, but on key points in this case Pulatov had as yet offered no response. The defence saved that for its statement of the case. Pulatov has now given two further video statements which were not shown at trial but have been included in the case file. Now it is time for us to take stock of things.
We would observe in this connection that there are various matters that we do agree on. We agree, for example, on the following circumstances:
on 17 July 2014, Pulatov was not a combatant and thus can make no claim to combatant immunity;
there is no reason to doubt the authenticity of the intercepted phone conversations in the case file;
the JIT'’s investigation in the conflict zone was limited in some ways by the circumstances;
phone mast data in itself does not provide conclusive evidence regarding the specific location of a transmitting phone and must therefore be assessed in relation to other evidence; and
loose missile parts that were only later discovered at the crash site, after the crash, have less evidential value that those found embedded in the wreckage of MH17 and the bodies of the victims.
We will return to these points later.
We would also observe that Pulatov has not relied on scenarios previously suggested by the defence, namely that flight MH17 was shot down by a Ukrainian combat aircraft or that a Ukrainian combat aircraft used flight MH17 as a human shield. The only alternatives referred to by Pulatov are that MH17 was shot down with a ground-to-air missile other than a Buk, or that MH17 was shot down by a Ukrainian Buk from a different location. In short: it is beyond dispute that flight MH17 was shot down by a ground-to-air missile, but the defence contends that there is insufficient evidence that the missile in question was a Buk and, in the event that it was a Buk, that it was not fired from the agricultural field near Pervomaiskyi controlled by the DPR. In our closing speech we explained the overwhelming and convincing evidence that this was in fact the case. Today we will show that the defence has failed to undermine that evidence.
The core of the debate between the Public Prosecution Service and the defence concerns the interpretation of the intercepted phone conversations. In the defence’s statement of the case, Pulatov stood by his statement that in July 2014 he was using the telephone number ending in -2511 (in full: +380 63 121 25 11) and could be reached on it at all times. He also stood by his previous, explicit acknowledgement that he had conducted various conversations on that phone line. During the defence’s statement of the case a new video statement by Pulatov was submitted, in which he explained two other intercepted conversations that were raised in the Public Prosecution Service’s closing speech. Pulatov does not dispute the other arguments, submitted in our closing speech, underpinning our conclusion that the conversations attributed to him were in fact conducted by him: the use of his own name (Oleg) and nickname (Giurza or Gurza) in the conversations, the substantive relationship between the conversations that Pulatov admits he conducted and other conversations conducted using the same phone, the fact that his phones pinged phone masts at the same locations where Pulatov himself says he was at the time, and lastly the findings of the NFI’s comparative voice analysis. The only thing Pulatov does in his video interviews with his lawyers is provide a different interpretation of the conversations. This alternative interpretation of the intercepted conversations forms the core and the spine of the defence’s statement of the case.
According to the defence, these conversations were not about a real or functioning Buk TELAR, but were instead part of a disinformation campaign and were intended to convince the Ukrainian armed forces that the DPR possessed a Buk system. In so far as we heard any new arguments, these provide no grounds for changing our previous position: namely, that this was not a disinformation campaign, and that the recorded phone conversations constitute a live account of the actual use of a Buk system. This is another point that we will discuss in more detail later today.
On certain other points, we must concede that the defence is correct. The defence rightly pointed out that we should have stated the exact width of a Buk TELAR’s caterpillar tread more clearly in the prosecution file. According to various Russian sources and the investigation’s own measurements, the width of the tread is 3.25 metres and the broader, total width of the TELAR’s chassis is around 3.4 metres. In addition, we did indeed make a typographical error in a footnote in the closing speech: the footnote in question reads ‘S38’, when it should have been ‘S39’.
Pulatov is the only defendant in these proceedings who has mounted a defence. Shortly after the Public Prosecution Service’s closing speech, Girkin and Dubinskiy commented in the media about our evidential conclusion and sentencing recommendation, but they stand by their decision not to participate in these proceedings. Kharchenko is also aware of his criminal case and these proceedings, but he has remained silent. In their cases too, we have various points to make. We will address the court’s further questions about the indictment in the cases of the four defendants, and about the legal qualification of their actions. We will also discuss new documents submitted by several injured parties. In addition, we will refine our existing position, prompted by a question from the court, on our seizure application in Girkin’s case. We assume that, as in previous instances, the court will include everything we submit in this reply in the official record of the hearing in the cases of all four defendants.
After our reply the defence will be given the opportunity to respond, and Pulatov will be given the opportunity to speak last in these proceedings. Then as now, we will listen attentively to what the defence has to say, trusting that the court will carefully weigh his case and those of the other three defendants, and reach a clear judgment on whether they are guilty or not guilty.
2. Response to defence requests for inclusion of documents in prosecution file
Before we address the defence's substantive submissions, we will briefly reflect on its requests, made during its statement of the case, concerning the inclusion of documents in the prosecution file.
Later on we will explain why several of these documents, such as the three reports from the US, cannot contribute to efforts to establish the truth, and in fact create further confusion. We have already explained why an anonymous online post about a Strela-10 missile system is not relevant. Nevertheless, we have no procedural objection to the inclusion of these and other documents whose inclusion the defence has requested. Naturally the nature and weight of these documents are different from the expert reports that have been produced and added to the case file in accordance with the careful procedure prescribed by the legislature. That should be clear to all concerned, and we will return to this subject later in our reply. Having said that, we do not object to the requested inclusion of the documents.
3. Admissibility - Public Prosecution Service
We now come to our response to the defence's submissions. First, we will discuss the basis for prosecuting Pulatov. According to the defence, owing to a series of restrictions, infringements and violations of the defence’s rights (part II, marginal no. 325) the Public Prosecution Service has forfeited the right to prosecute, and the prosecution case against Pulatov should therefore be declared inadmissible (part II, marginal nos. 323 and 329). We will respond to this shortly. Before doing so, however, we would like to reflect briefly on another admissibility issue: the matter of combatant immunity.
3.2 No claim to combatant immunity
Pulatov has made no claim to combatant immunity. He has explicitly and unambiguously waived any such claim. He stands by his statement that he did not participate in the armed conflict in eastern Ukraine on behalf of the Russian Federation, and that he joined the ‘people's army of the Donbass voluntarily’. We have already explained in detail why Pulatov would not be eligible for combatant immunity in any event, even if he had made such a claim. Pulatov therefore can and must be prosecuted like any other private citizen for the violent offences with which he is charged.
If the court agrees with the defence and the Public Prosecution Service that Pulatov does not enjoy immunity, then it need not address the matter further in its judgment. If, however, in the course of these hearings or afterwards, during its deliberations in chambers, the court should wish to raise new questions in this regard or should come to a different way of thinking from the Public Prosecution Service, we would hereby conditionally request the opportunity to respond.
3.3 Admissibility of Public Prosecution Service’s case
This brings us to the admissibility defence that Pulatov has presented. According to Pulatov, the Public Prosecution Service has forfeited its right to prosecute him, because his rights have been infringed to such an extent that he can no longer receive a fair trial (part II, marginal no. 329).
Declaring the Public Prosecution Service's case inadmissible for this reason is possible only in exceptional situations. In such a situation there must be an irreversible infringement of the right to a fair trial for which there is and can be no possible compensation (in a manner consistent with the requirements of an adequate and effective defence). Such an infringement must be able to support the overarching conclusion that ‘the proceedings as a whole were not fair’.
In a fair trial, the defence plays an important role. In short, it has two tasks. First, the defence, like the Public Prosecution Service and the court, must ensure that the proceedings are conducted fairly. Second, the defence can call incriminating evidence into question and adduce exculpatory evidence of its own. In these proceedings the defence has actively performed those tasks.
In the context of ensuring a fair trial, for example, it has done the following:
It requested a Russian translation of virtually the entire prosecution file, amounting to tens of thousands of pages, and received translations of the important documents in the file.
It requested and received ample time to prepare for the proceedings.
It applied for judicial review of decisions by the examining magistrate to grant 15 witnesses the status of threatened witness, and in one case (witness V11) succeeded in overturning the decision.
It requested the reassessment of the decision by the Public Prosecution Service to protect certain sources on the basis of article 149b of the Code of Criminal Procedure.
It requested and was offered the help of the Public Prosecution Service in presenting the intercepted telephone conversations for the purpose of its statement of the case.
It requested and received the opportunity to present an 11-day statement of the case.
In connection with its other task – to assess incriminating evidence and adduce exculpatory evidence – the defence did the following:
It requested and received access to large amounts of investigative material that was not in the prosecution file, including:
the metadata of all intercepted conversations in the prosecution file;
additional phone mast data and historical phone contacts;
an overview of witness interviews;
reports concerning field tests conducted by Almaz-Antey and concerning calculations of the launch location by Ukrainian and Australian research institutes;
official reports concerning the recovery of the bodies of the MH17 victims;
photos of the autopsy of the captain of flight MH17, during which a bowtie-shaped missile fragment was discovered;
the final half hour of the recording on MH17's cockpit voice recorder;
thousands of photos of pieces of wreckage; and
tens of thousands of audio recordings of intercepted phone conversations.
The defence subsequently had many of these documents added to the prosecution file.
It viewed recovered missile parts at Gilze-Rijen and at the Netherlands Forensic Institute.
It viewed the reconstruction at Gilze-Rijen and was given the opportunity to examine it together with an expert that it itself had appointed.
It requested and conducted the examinations of various witnesses and experts, which in various cases (and at its own request) lasted several days.
It commissioned its own counter-investigation, outside the scope of the court, into the identification of the weapon used, the calculation of the launch location and the reliability of witness M58, and it had the findings included in the prosecution file.
It provided video statements by Pulatov and had them included in the prosecution file.
In short, if we consider the tasks of the defence – ensuring the proceedings are conducted fairly, assessing incriminating evidence and adducing new information – we can only conclude that it performed them with vigour. Pulatov made effective use of his rights as a defendant, and the court allowed him ample scope to do so. If we are now to understand that Pulatov feels that his rights have been restricted, and restricted to such an extent that he cannot receive a fair trial, we can only respond with surprise. By making such a claim the defence is doing an injustice not only to this trial and the court, but also to itself.
According to the defence there has been an ‘accumulation of irreversible (written and unwritten, serious) breaches of procedural rules, which constitutes a serious infringement of essential principles of due process and as a result of which, either consciously or with gross disregard for the interests of [its] client, his right to a fair hearing of his case has been compromised’ (part II, marginal no. 329). We will run through each of the breaches of procedural rules and principles of due process alleged by the defence.
3.3.2 Presumption of innocence
First, the defence states that the Public Prosecution Service acted in breach of the presumption of innocence, the rule that every defendant is considered innocent until proven guilty. In support of this assertion the defence adduced remarks by the JIT, the Public Prosecution Service and politicians (part II, marginal nos. 35-52), and the JIT's decision to show Pulatov's photo and identity details on television and the internet (part II, marginal nos. 53-72).
126.96.36.199 Remarks about the circumstances of the crash
Here the defence is interpreting the presumption of innocence incorrectly. That principle ensures that a person must be considered innocent until proven guilty. The presumption of innocence does not stand in the way of the presentation of investigative findings about the circumstances of a given incident. In other words, if the police and the Public Prosecution Service reveal on a television crime appeal programme (Opsporing Verzocht) that someone was shot dead in the street, the presumption of the innocence of a suspect who emerges later is not compromised, even if that suspect later contends that the victim was not shot but was stabbed.
If we next consider the points (part II, marginal no. 37 and following) made by the defence, it appears that these mainly concern what weapon was used and where that weapon was fired from. During the press conferences of 2016 and 2018, the JIT spoke only about the cause of the MH17 crash and the origin of the Buk TELAR. Nothing was said about individuals who may be responsible for the crash. Pulatov was not mentioned at that time. Nor does the fact that members of the Dutch government and parliament commented on the investigation’s findings after the 2016 press conference detract in any way from Pulatov’s presumed innocence. These politicians did not mention his name either, or suggest in any way whatsoever that he should be considered guilty. Nor was Pulatov the subject of the state responsibility procedure the Dutch government brought against the Russian Federation. The matter of his guilt or innocence is not at issue in that procedure.
188.8.131.52 Public disclosure of identity and photo
Pulatov was mentioned as a suspect for the first time at a press conference held on 19 June 2019. At that time, the Public Prosecution Service announced that he and three other suspects would be prosecuted, that these criminal proceedings would begin on 9 March 2020, and that international arrest warrants had been issued against these individuals. At that time a photo of Pulatov was also shown. According to the defence, Pulatov’s name and photo should not have been publicly disclosed.
During the press conference on 19 June 2019 and in an accompanying press release the Public Prosecution Service emphasised that this only concerned a suspicion and a decision by the Public Prosecution Service to prosecute, and that Pulatov and the other three suspects were innocent until a court found otherwise, as is appropriate under the rule of law. In other words, before the eyes of the world the Public Prosecution Service itself pointed out that Pulatov was innocent until proven guilty, and emphasised the importance of this legal principle. The Public Prosecution Service made the same point at the start of these proceedings and in its closing speech. Therefore no violation of this principle took place.
In so far as Pulatov may have been in any way disadvantaged by the media attention, this can be taken into account when assessing any sentence that may be imposed. We will return to this matter later, when we discuss the sentencing recommendation.
184.108.40.206 Interview after closing speech
Lastly, the defence referred to an interview the public prosecutor gave in late December 2021. In that interview little was said that had not already been presented in court. In its closing speech, the Public Prosecution Service presented its own evidential conclusion, as required by law. In the interview concerned, the public prosecutor looked back on that conclusion. That is all. The defence has repeatedly cited parts of this interview. In doing so it has conjured an image that does not reflect the core substance of the interview. In the interview the public prosecutor also said the following:
‘It may sound rather weighty, but you could feel the importance of the rule of law. The fact that such a trial can be held, and the rights of all concerned are treated with care... I thought: this matters. Whatever the outcome.’
And this is indeed true: it is not the outcome, but the care taken in these proceedings, that is most essential. That is how the Public Prosecution Service has always approached this case. As we noted in our closing speech: no one in these proceedings has anything to gain from the conviction of an innocent person, or a judgment that cannot stand the test of time.
In short, there has been no violation of the principle of the presumption of innocence.
3.3.3 Issue of notice of summons and accusation without previous notice
This brings us to the second action by the Public Prosecution Service which the defence alleges was contrary to the principles of due process: the timing of the decision to issue Pulatov with a notice of summons and accusation. According to the defence, the Public Prosecution Service should (i) have asked Pulatov for a statement before summonsing him (part II, marginal no. 81), (ii) have first given him the opportunity to participate in the preliminary investigation (part II, marginal nos. 87 and 91) and (iii) not have withheld the documents in the action from Pulatov (part II, marginal no. 88).
Here the defence has painted an inaccurate picture. After all, what happened in reality? Just as in any other case, at a certain point Pulatov emerged as a suspect. These suspicions were subsequently investigated further, without Pulatov knowing about the investigation. This is a perfectly normal course of events, particularly in investigations into serious violent offences. After all, it is generally in the interest of the investigation that a suspect not be informed about it immediately. This case was no exception. In a regular murder investigation, once all the available incriminating evidence and exculpatory information has been gathered and there remain strong indications of a suspect’s guilt, the public prosecutor will order that suspect’s arrest. If there are grounds for doing so, the prosecutor will also apply to court for the suspect to be remanded in custody. If the court orders the suspect to be remanded in custody, under the law the case must be brought before a court within just over three months. Thus, it is precisely in cases of serious violent offences or murder that a suspect is, as a rule, confronted unexpectedly – or, as the defence puts it, without previous notice – with the authorities’ suspicions against him, before shortly afterwards being issued with a notice of summons and accusation. In such cases, too, the defendant receives a fair trial. And this case is no exception. When the Public Prosecution Service reached the conclusion that the investigation had produced lawful and convincing evidence for Pulatov’s guilt in the downing of flight MH17, it was decided that he should be arrested. Since he lived in the Russian Federation and that country does not extradite its citizens, effecting Pulatov’s arrest was not a simple matter. Nevertheless, on 19 June 2019 the Public Prosecution Service did announce that it intended to issue an international arrest warrant against Pulatov, in case he should at some point leave Russia.
Although it is unusual and not a requirement, the Public Prosecution Service did consider whether there were grounds for interviewing the four suspects, including Pulatov, before the arrest warrants were issued. This was not the case. After all, the Russian authorities had already informed us, back in 2018, that they had produced evidence that ‘the Russian side’ had no involvement in the MH17 disaster and for that reason would not provide any details regarding or interviews with Russian nationals. Various requests to the Russian Federation for legal assistance went unanswered, and repeated exhortations, including at high diplomatic level, failed to change that outcome. In January 2019, the Russian Federation’s deputy procurator-general again stated that there were no grounds for questioning Russian nationals because there was no evidence of any involvement by a Russian national in the MH17 disaster. It was therefore clear in advance that the chances of Russia acceding to an interview request in a reasonable timeframe was extremely small. At the same time, the Russian Federation had previously held its own press conferences on several occasions, in which the results of requests for legal assistance that had been implemented were made public before they were shared with the Dutch Public Prosecution Service. This created a real risk that the Russian Federation would itself publicly disclose the suspicions against the four suspects, including Pulatov, after the Public Prosecution Service had asked them to respond. That was unacceptable. The next of kin and the general public needed to hear the news that four suspects had been identified in the investigation from the Public Prosecution Service, and not from the Russian authorities. That is why the Public Prosecution Service did not notify the suspects in advance.
The four defendants, including Pulatov, were not disadvantaged by this. Their position was actually no different from that of other murder suspects, who are confronted with the authorities’ suspicions only after an arrest warrant has been issued. On 19 June 2019 Pulatov was informed that he was a suspect and that the Dutch authorities intended to prosecute him. From that point, Pulatov was free to engage a lawyer or could himself have requested a copy of the prosecution file (in accordance with article 30 of the Code of Criminal Procedure), and requested the Public Prosecution Service or examining magistrate to conduct a preliminary judicial examination (in accordance with article 182 of the Code of Criminal Procedure). Pulatov did not exercise those rights, however.
Instead, on 19 June 2019 he informed the investigation team that ‘for [him] personally it [made] no sense to communicate’ with the investigation team, and he expressed his ‘contempt’ for the JIT. The leader of the investigation team subsequently replied with the message that he took Pulatov’s response extremely seriously, and very much wanted to hear his side of the story. Pulatov answered as follows: ‘Re-read the first line of my first response to you and get the message in the last sentence of my first response to you. (...) the contemptible individuals will be ignored.’ He asked the investigation team not to contact him again and posted a screenshot of the exchange on an internet forum. When someone on the forum queried whether the JIT account was real, Pulatov responded as follows: ‘Does it really matter (...)? (...) I have expressed and published my justified contempt. The most important thing is that I have made known my personal attitude and my position on this situation.’ Pulatov had thus already said what he wanted to say. He made no use of the opportunity, which was offered to him, to be heard; he made no request for further investigation.
Over three months later, Pulatov ended his silence. By letter of 16 October 2019 he announced, via his Russian lawyer, that he disputed the accusation against him and that he wished to participate in the criminal proceedings. In this connection, Pulatov requested two months to find a Dutch lawyer, so that he could participate fully in the criminal proceedings. In response the public prosecutor contacted his Russian lawyer and offered to help in the search for Dutch legal representation. Furthermore, on 19 December 2019, the public prosecutor sent Pulatov’s Russian lawyer a Russian translation of the notice of summons and accusation, including an explanatory note on the procedure to be followed. On 16 January 2020 Pulatov’s Dutch lawyers presented themselves as counsel for him. Shortly afterwards, the public prosecutor visited their office twice to discuss the case with them. At that time he provided the defence with various documents, including the notice of summons and accusation and the previous correspondence between the Public Prosecution Service and the district court, and he himself alerted the lawyers to the scope available to Pulatov to apply for judicial review of the examining magistrate’s decisions designating various witnesses as threatened witnesses. In all that time, neither Pulatov, his Russian lawyer nor his Dutch legal counsel ever requested any further investigation or Pulatov’s examination.
Nor did the defence object to the intended scheduling of the hearing or request the Public Prosecution Service to withdraw the notice of summons and accusation. The defence did however apply for judicial review of the examining magistrate’s witness-status decisions. This, incidentally, was after the Public Prosecution Service had postponed the service of those decisions in order to extend, in the defence’s favour, the term for such an application. As noted, on 19 December 2019 and 22 January 2020 the public prosecutor provided the notice of summons and accusation to the Russian and Dutch lawyers respectively. On 23 January 2020, this document was also provided to Pulatov by the Russian authorities. Pulatov then had an eight-day period in which to lodge an objection to the notice of summons and accusation, and in which to advance the same defence concerning his alleged sidelining as he has now done in his statement of the case. The public prosecutor informed defence counsel on 22 January 2020 about the opportunity to lodge such an objection. If that objection were to succeed, the court sitting in chambers could have declared the Public Prosecution Service's case inadmissible. The proceedings would then have been stayed and the defence could have arranged further investigation by the examining magistrate behind closed doors. The defence lodged no such objection. It knowingly agreed to the start of these proceedings on 9 March 2020 and a hearing before this court.
That was also the preference of the Public Prosecution Service: an examination of the four defendants' cases at a public hearing of this court within the foreseeable future. That is why the Public Prosecution Service asked the court to determine the date of the first day of the hearing (pursuant to article 258, paragraph 2 of the Code of Criminal Procedure) before the press conference of 19 June 2019 took place. In this way the defendants and the next of kin could be informed at the same time about the accusations, the decision to prosecute and the scheduling of the hearing. Thus everyone participating in the proceedings knew where they stood well in advance. And in this way the Public Prosecution Service aimed to ensure a fair trial, held within a reasonable period of time.
In short, the Public Prosecution Service's decision to issue the notice of summons and accusation was in accordance with the principles of due process.
Even if the court should be of the opinion that this was not the case, the defence suffered no disadvantage in this regard. After all, it has now studied the documents in the action and had the opportunity to arrange further investigation. In so far as the defence takes the view that such further investigation should have taken place outside the public sphere of the hearing, it could have arranged for that itself. It could have done so, for example, by conducting this defence concerning Pulatov's alleged sidelining in the preliminary phase, before the start of the trial itself, or by requesting a hearing behind closed doors in the interest of the proper administration of justice (article 269, paragraph 1, Code of Criminal Procedure). The defence did not do so. It is only making a concrete objection now, over two years and three months after the notice of summons and accusation was issued. Taking no action for years on end and consciously waiving the use of lawful defence rights cannot be rewarded with declaring the prosecution case inadmissible and beginning the proceedings anew.
3.3.4 Preliminary investigation and prosecution file
The defence has further alleged a number of other breaches of procedural rules by the Public Prosecution Service, all of which essentially amount to the same thing: according to the defence, the preliminary investigation was flawed, the prosecution file that arose from it incomplete, and any trial based on that investigation and that prosecution file unfair from the outset.
To support this contention the defence alleges that:
the investigation was biased (part II, marginal nos. 111-134);
use was wrongly made of information obtained in the framework of investigations by the Dutch Safety Board, the SBU and citizen investigators and journalists (part II, marginal nos. 135-155 and 302-313);
evidence from the conflict zone was obtained too late and without a proper chain of custody, undermining its reliability and making counter-investigation impossible (part II, marginal nos. 156-171);
in two instances, no official report was drawn up when, in the view of the defence, it should have been (part II, marginal nos. 172-191);
the Public Prosecution Service did not include all relevant documents in the prosecution file, creating the possibility that exculpatory information was deliberately withheld (part II, marginal nos. 192-283).
We would first note that this collection of submissions mostly reads like a defence that the charges were not proven: i.e. the defence that the investigation did not produce balanced evidence and that certain evidence, originating from the aircraft wreckage, public sources or the verbal accounts of witnesses, is fundamentally unreliable because of the restrictions under which it was obtained. Such arguments cannot lead to a finding of inadmissibility, if only because the defence had every opportunity to restore balance by assessing incriminating evidence and adducing exculpatory evidence. In so far as there were in this respect any breaches of procedural rules concerning the preliminary investigation or in the composition of the prosecution file, the defence could have asked in the course of these criminal proceedings for these shortcomings to be remedied and the balance restored when it came to establishing the truth. If we understand the defence correctly, it has pointed out that in various cases it did exactly that. In that sense, therefore, the defence, in accordance with its task, helped to ensure the fairness of these criminal proceedings, and there is thus no reason to discontinue the criminal proceedings against Pulatov.
Nevertheless, we will run through a number of these points all the same.
220.127.116.11 Limitations imposed on investigation
First we will look at the limitations imposed on the investigation in eastern Ukraine, as referred to by the defence (part II, marginal no. 157). It is a fact that it was not possible to conduct an immediate, full investigation in the area where flight MH17 crashed. A fact the Public Prosecution Service itself has mentioned repeatedly, in the prosecution file, during the court hearings and in correspondence with the defence and the court. The same is true of the limitations this imposed on the evidence: in court we discussed, for example, the limited insight into the origin of certain items. When explaining the investigation we noted that foreign objects – suspected to be missile fragments – lodged in the wreckage or the bodies of the crew of MH17 provide stronger evidence for the cause of the crash than missile fragments that were only recovered later in the crash area. The defence can keep reiterating this here, and present it as its own discovery, but it is a fact that is beyond dispute. The same goes for the witness statements that were heavily redacted in the interest of those witnesses’ safety. Here too, if not enough information remains to enable the assessment of the statement's reliability, then no evidence will be gleaned from that statement. That too is beyond dispute. And let us be clear: if a witness makes an exculpatory statement, that statement cannot simply be redacted. Firstly, a witness in eastern Ukraine or Russia has little if anything to fear if he or she gives a statement that is in line with Pulatov's version of events. For that reason, various statements by witnesses who saw a combat aircraft were included in the prosecution file under the witness’s own name. And secondly, the examining magistrate (in the context of the assessment under article 149b or 226f of the Code of Criminal Procedure) must continually weigh the safety of the witness against the interests of the defendant. Therefore, an exculpatory statement cannot simply be redacted. The examining magistrate or the Public Prosecution Service must, within the bounds of the restrictions necessary for the witness's safety, show the exculpatory character of the statement in the file to the maximum possible extent. The limitations imposed on the investigation by the conflict and security situation in eastern Ukraine are therefore a hindrance primarily for the Public Prosecution Service, and not for Pulatov. After all, it is the Public Prosecution Service that bears the burden of proof in this case. The fact that, after years of investigation, we reached the conclusion that there is lawful and convincing evidence of Pulatov's guilt in respect of the downing of flight MH17 is not thanks to, but despite the limitations described by the defence.
18.104.22.168 Role of the Dutch Safety Board
Secondly, we come to the role of the Dutch Safety Board. The defence is mistaken in this regard (part II, marginal nos. 136-150). Contrary to what the defence states, the Dutch Safety Board was not involved in the criminal (or preliminary) investigation. The Board's only role was to recover the wreckage and flight recorders from flight MH17 and to provide certain objective information, such as radar data, to the Public Prosecution Service. The wreckage and flight recorders became part of the criminal investigation only once they were seized in the Netherlands. For its part, the Public Prosecution Service shared certain findings from the criminal (forensic) investigation of the wreckage with the Dutch Safety Board. And in each case this was done in accordance with the Kingdom Act establishing the Dutch Safety Board. The same is true of the inclusion of the Board's report and appendices in the prosecution file. Those documents may not be used as incriminating evidence, but were relevant to these proceedings. They were relevant, for example, to the assessment by the court and the defence of whether the criminal investigation was sufficiently comprehensive. The defence made requests, on the basis of the Dutch Safety Board's report, for further investigation into the aircraft wreckage, and the court used the report to assess whether there was any point in making a further request to NATO regarding AWACS radar data.
22.214.171.124 Role of the SBU
Thirdly, we come to the role of the Security Service of Ukraine (SBU). According to the defence, this Ukrainian intelligence and law enforcement agency may have tortured witnesses and manipulated evidence (part II, marginal nos. 302-322). To support this assertion the defence refers to reports by international organisations about the SBU's broader conduct.
From the start of these proceedings, it was clear to the Public Prosecution Service that Ukraine's role in this investigation would be called into question. The Public Prosecution Service was also aware, from the start of the investigation, of existing reports about the SBU, and we have closely followed reports that have emerged subsequently. During these proceedings we ourselves have referred to them on various occasions. We have also emphasised that great caution should be exercised when assessing evidence originating from Ukraine and from the SBU. And the Public Prosecution Service has always done exactly that. When we first made contact with the Office of the Prosecutor General of Ukraine and the SBU – before the JIT was even established – we and our Australian colleagues made one thing abundantly clear: in the eyes of the world, evidence from Ukraine would be worthless unless it could be verified by the Netherlands, Australia and possibly other countries participating in the investigation. The Office of the Prosecutor General of Ukraine and the SBU could not afford to put a foot wrong. Those on the Ukrainian side understood this all too well. That is precisely why they provided full access to the Ukrainian evidence.
It should be noted in this connection that the Dutch Public Prosecution Service was then, and is now, bound by the United Nations Convention against Torture. Under Article 15 of the Convention, a statement made as a result of any act by which pain or suffering, whether physical or mental, is intentionally inflicted may not be invoked as evidence in any proceedings. From the outset, the Public Prosecution Service has recognised this treaty obligation and acted in accordance with it. Before detained witnesses were questioned, the Dutch public prosecutors involved in this case ensured that they were interviewed outside the presence of Ukrainian officials about their ability to give a statement freely, the conditions in which they were being held and their treatment (current and previous) by the Ukrainian authorities. Given that the reports of these preliminary interviews were not included in the prosecution file and the reports of the subsequent JIT interviews were, it follows that not a single circumstance came to light in which there was any indication whatsoever of a detained witness having been tortured. Upon request, detained witnesses were promised that the preliminary interview would be treated as confidential and would not be shared with the Ukrainian authorities. Otherwise these witnesses may not have felt they could speak freely during the preliminary interview. Since the reports of the preliminary interviews added nothing of substance to the reports of the subsequent JIT interviews (in which witnesses were again asked if they had given their statement of their own free will), the preliminary interview reports were not included in the prosecution file. If just one of these preliminary interviews had produced any indication whatsoever of torture, the Public Prosecution Service would have addressed this with the Ukrainian authorities and reported it in the prosecution file. However, we are not required to report in the prosecution file what was not said or observed. Everything of relevance, namely the answer to the question of whether the witness was giving their statement of their own free will, is contained in the file.
There are thus no grounds whatsoever for the general suggestion that something may have occurred in respect of the witnesses in this investigation. The defence’s accusation that the Public Prosecution Service allowed witnesses in this case to be forced into giving a statement (part II, marginal nos. 306 and 318-322) is a serious one which demands, including in the light of the Public Prosecution Service’s previous explanations in these proceedings, concrete substantiation that specifically concerns the witnesses in this investigation. The defence has provided no such substantiation. The fact that the defence says that such statements – which in its view are probably the ‘products’ of torture – can be used in evidence (part II, marginal nos. 307 and 314) makes its accusation even harder to comprehend. In any case it is not in keeping with the core values of criminal procedure – establishing the truth and ensuring a fair trial – which the defence claims to subscribe to.
126.96.36.199 Duty to draw up official reports
Fourthly, the defence states that the duty to draw up official reports was not fulfilled. In addition to the aforementioned preliminary interviews, the defence has cited two other incidences. The defence states that in April 2015, house-to-house inquiries were made in Petropavlivka, and that the authorities failed to draw up an official report (part II, marginal nos. 184-185). This is incorrect. No criminal investigation took place in Petropavlivka, and therefore no duty to draw up an official report existed. In April 2015, members of the repatriation and recovery missions were searching for the remains and personal belongings of the victims, and pieces of wreckage of flight MH17. They were not members of the criminal investigation team; they worked under the authority of the Dutch Ministry of Foreign Affairs and the Dutch Safety Board. Any house-to-house inquiries performed in the context of the criminal investigation – that is, seeking out and questioning witnesses in the crash area – would have interfered with the repatriation and recovery missions and put the witnesses concerned in danger. Therefore, no house-to-house inquiries could be performed, or were performed, as part of the criminal investigation. The members of the repatriation and recovery missions worked for the Ministry of Defence. The majority of them were not law enforcement officers. Some of them did work for the Dutch Royal Military and Border Police (Koninklijke Marechaussee), and in that capacity were also law enforcement officers, but at that time they were not engaged in investigative tasks. For this reason, after these mission personnel discovered and subsequently secured missile parts, they were interviewed as witnesses in the Netherlands by the investigation team, of which they were not a part. It was certainly a complex situation in the crash area. An extensive official report was drawn up concerning the background and details of that situation. These witnesses thus had no duty to draw up an official report themselves.
It should be noted that Pulatov had the opportunity to question these witnesses about their activities during the repatriation mission in Ukraine.
In addition, the defence states that the circumstances under which pieces of wreckage of flight MH17 found in eastern Ukraine were discovered, recovered and transferred were not adequately reported (part II, marginal no. 188). The same thing applies here as to the members of the repatriation mission who made house-to-house inquiries. These activities did not take place in the framework of the Public Prosecution Service's criminal investigation, but as part of the safety investigation conducted by the Dutch Safety Board, which is an independent body. No members of the criminal investigation team were involved in these activities. We would again refer to the official report that was drawn up on this subject.
Let us be clear: like the defence, we would very much have liked a full criminal investigation to have been performed in eastern Ukraine. But as we have noted, given the conflict and the security situation, that was not possible. In so far as any investigation at all was possible, the repatriation of the victims and the recovery of the wreckage took priority. As we have also noted already, this situation was primarily a hindrance to the Public Prosecution Service, which bears the burden of proof, rather than to Pulatov, who is innocent until proven guilty.
Furthermore, the defence alleges in general terms that ‘many official reports of witness interviews’ were incomplete, because (if we understand the defence correctly) they were not transcribed word for word. The defence does not say who the witnesses in question were, nor how this serves to disadvantage Pulatov in his defence. This is nothing more than an empty and entirely unsubstantiated statement.
And so this part of the admissibility defence – which in essence is that in the aforementioned cases the duty to draw up an official report was not fulfilled – does not stand up either. And it certainly cannot result in an inadmissibility finding against the Public Prosecution Service.
188.8.131.52 Inclusion of documents in prosecution file
Lastly we come to the matter of the inclusion of documents in the prosecution file. Here the defence once again draws a very bold conclusion: that the Public Prosecution Service deliberately withheld exculpatory information and possibly continues to do so (part II, marginal no. 281). The only example the defence cites in this regard is the statement given by witness S45. In regard only to this single document, the defence asserts that its contents are exculpatory and that the Public Prosecution Service wished to keep it out of the file (marginal no. 219). As we have already noted previously, even with the best will in the world S45 cannot be described as the ‘crucial, exculpatory witness’ the defence would have him be. Witness S45 was a member of the Russian 53rd Anti-Aircraft Missile Brigade and made conflicting statements about the brigade's presence in eastern Ukraine. First he said that they were there. Then he said that they were not. Furthermore, S45 had no personal knowledge of the 53rd Brigade's possible involvement in the downing of flight MH17, and he said nothing about Pulatov. The court has previously held that the defence did not have a sufficient interest in the examination of this witness. Therefore, this witness is certainly not crucial or exculpatory.
It is even debatable whether his statement has any relevance at all to Pulatov's case. In the Public Prosecution Service's view, it does not. We did not see how S45's statement could be relevant to any decision to be taken by the court, not least when viewed against the backdrop of the prosecution file, which contains all the different sources who spoke about both the presence and the absence of the 53rd Brigade in eastern Ukraine. From the start of these proceedings, we have frequently noted that in an investigation of this size the composition of the prosecution file is not an exact science, and that the file may need to be supplemented in the course of the proceedings. Any later addition would depend on developments in the ongoing investigation into the crew and the Russian chain of command, and on concrete positions yet to be adopted by Pulatov. Pulatov adopted no such concrete positions before the defence presented its statement of the case. Nor did the defence make any concrete access requests aimed at specific matters, such as the role of the 53rd Brigade. Instead it confined itself to repeatedly requesting access to the entire case file, i.e. all notes of all activities performed in the investigation since 17 July 2014, regardless of their outcome. That includes notes of internal consultations made in the digital police system, websites that were consulted and working agreements with other JIT countries. That would generate considerably more paper than the tens of thousands of pages already contained in the prosecution file. The defence made this repeated, boundless request in the knowledge that it could never be granted, because the law provides no scope for fishing expeditions. The defence therefore never made a concrete information request that could have prompted the granting of access to S45's statement. When the court subsequently made a concrete enquiry to the Public Prosecution Service about the findings of the investigation into the crew of the Buk TELAR and the Russian chain of command, we provided S45's statement, together with other documents, for the defence and the court to review.
In short, S45's statement is not exculpatory – in fact its relevance was debatable – and the Public Prosecution Service identified and provided this document following a broader question from the court. The Public Prosecution Service did not, therefore, deliberately withhold exculpatory information.
Besides the statement by S45, the defence also referred in a footnote to ‘countless’ other documents in regard to which the Public Prosecution Service allegedly misinterpreted and misapplied the relevance criterion (part II, marginal no. 217, footnotes 196 and 197, and marginal no. 221, footnote 200). In this submission there is not even a suggestion that the documents in question could be exculpatory. The Public Prosecution Service consistently provided these documents to the defence, even if the defence itself had not asked for them. For example, the Public Prosecution Service voluntarily provided documents concerning the photos and videos of a journalist who was interviewed as a witness. Nothing, therefore, was withheld. In regard to various documents that the defence alleges were wrongly kept out of the prosecution file, we must observe that the Public Prosecution Service provided the documents to the defence, but the defence saw no reason to have them added to the file. For example, the defence never asked for the journalist’s photos and videos, the raw ETVR laser scan data, photos of wreckage or audio recordings of intercepted phone conversations to be included in the file. If the defence itself did not wish to have these items included in the file, how can it accuse the Public Prosecution Service of keeping them out of the file? Other documents contain only limited new information or unimportant information, such as the statement of the German retired pilot, Mr Haisenko, or reports by Almaz-Antey concerning detonation tests that were also discussed elsewhere in the file and contained no calculation of a launch location.
In short, this submission is nothing but a tired old tactic. Several times previously in these proceedings, the defence has made a point about the inclusion of and access to documents in the file, the Public Prosecution Service has repeatedly responded, and in each case the court has taken a decision. Back then there was no truth to the notion of exculpatory evidence being withheld, and today – with the same facts in play – there is no truth to it either. The only new circumstance since the court’s last decision on this matter is that the Public Prosecution Service – prompted by the court’s considerations – conducted a broad review and designated certain procedural documents (known as ‘BOB documents’ in reference to the Special Investigative Powers Act (BOB)) as relevant after all. Several of those documents concerned online investigation into persons other than Pulatov, and were provided to the court and the defence. Other documents concerned investigative activities into S45, but for the safety of that witness and other persons, they were kept out of the prosecution file with the examining magistrate’s permission. Obviously, these procedural documents are not exculpatory either. Nor were they deliberately excluded from the file.
The defence is thus making a serious accusation against the Public Prosecution Service, without providing any factual substantiation. The defence alleges that the Public Prosecution Service deliberately withheld exculpatory information, and may still be doing so. The defence mentions only one example of this, while squirrelling away other examples in a footnote. When we consider each of these examples, we find that the documents in question are not new or exculpatory, they were not deliberately withheld, and in various instances the defence itself saw no reason to include them in the file. Here, too, the defence’s grand statements are at odds with the facts.
3.3.5 The right to examine witnesses
The defence lastly invokes an alleged violation of its right to examine witnesses (part II, marginal nos. 286-322). As a result of security measures and other restrictions, the defence was allegedly unable to establish whether the examined witnesses had given reliable statements (marginal no. 314), and on this basis it alleges it is impossible to conduct a fair trial (marginal no. 322).
The Public Prosecution Service would first note that besides the right to examine witnesses, there are other interests at play in criminal proceedings, such as those of the victims, who have the right to information, and those of witnesses, who have the right to safety and respect for their privacy. In criminal proceedings, all these justified interests must be taken into account and weighed up on an ongoing basis. If a defendant is unable to examine a witness, for example because the witness is seriously ill, this does not mean that the defendant can no longer receive a fair trial. After all, in order to assess whether a trial is fair, it is necessary to consider the fairness of the trial as a whole.
A defendant’s right to examine witnesses is therefore not an unlimited or absolute right. Rather it means that a defendant must be offered a reasonable and effective opportunity to question, at some point in the proceedings, witnesses who have given incriminating evidence against the defendant. A defendant can be said to have been denied a reasonable and effective opportunity to question a witness only in the event that they are given no actual opportunity to pose their own questions, for example because the witness refuses to answer questions. Therefore it is not the case that the defence may pose any question it likes to a witness (either directly or via another party), or that the witness must answer all questions posed by the defence. Nor is it a hard requirement that the defence be able to pose its questions to the witness in person. An examination via a high-quality video link or in the form of written questions can also be an appropriate and proper arrangement. In such a case, it is true that the defendant’s right to examine witnesses is being restricted, but that does not necessarily mean that this restriction is incompatible with that right. After all, there may be good reasons for such a restriction. As we have noted, in criminal proceedings the justified interests of everyone concerned must be taken into account, and therefore, for example, security considerations may make it impossible for a witness to be examined in person. The key factor in such a situation is how severe the restriction was in the light of the interests at stake.
In this case, the need to balance the interests at stake clearly arises in regard to the threatened witnesses. The identity of these witnesses needs to be concealed in the interest of their safety. Since Pulatov does not know their identity, his right to examine them is restricted to a certain extent. To compensate for that restriction, a number of procedural safeguards are built into the arrangements concerning threatened witnesses in Dutch criminal proceedings. Each of these procedural safeguards, which are fully applicable in Pulatov’s case, serve to compensate for certain restrictions of the right to examine witnesses, as well as guaranteeing the defendant’s right to a fair trial.
The defence was unable to examine a small number of court-designated witnesses. However, in each case there was a good reason for this. Witness G9081, for example, was too ill to be examined, and in July 2021 he passed away. Witnesses Kharchenko, Dudnichenko and Radchenko could not be found, and therefore could not be examined. The owner of the agricultural field from which the Buk missile was allegedly fired was not examined because he cannot be reached. Witnesses Dubinskiy, Girkin and Muchkaev could not be examined because the Russian Federation refused to allow it. And lastly, X48 and V22 are threatened witnesses. The issue of whether these two witnesses could be examined safely was studied carefully, but the examining magistrate came to the conclusion that it would not be possible to examine them in such a way that their safety could be guaranteed.
With regard to the other witnesses, the defence was able to exercise its right to examine witnesses. The defence is making out that it barely had any opportunity to examine witnesses, but the reality is different. Witness M58, for example, was examined for four days, and at the end of the examination the defence stated that it had been able to ask all the questions it wished to. In regard to witnesses S20, S21, S40 and V07, the defence submitted a list of questions the defence wished to ask each witness. In each instance this list contained several hundred questions. These questions were put to the witnesses by the examining magistrate, who, when necessary, would continue a line of questioning in order to uncover the information required by the defence. The examining magistrate also performed an extremely extensive and thorough analysis of all these witnesses’ reliability. This is one example of a measure taken to compensate for the fact that the defence was unable to observe the witness responding to the questions. The purpose of the right to examine witnesses is to assess the reliability of a witness statement. If that statement’s reliability can be adequately assessed by means other than direct questioning, any disadvantage suffered by the defendant will be compensated for sufficiently.
In so far as it was actually possible to examine witnesses, the defence was thus given the opportunity to put plenty of questions to them. This fact alone shows that there was no violation of the right to a fair trial.
It should further be noted that the prosecution case cannot be declared inadmissible on the basis of an infringement of the right to examine witnesses. If the court should find that such an infringement did occur, this would at worst have consequences for the use of a statement in evidence.
This brings us to the end of our response to the defence’s submissions on admissibility. In short, the defence has used a great many words, but said little of concrete substance. There has been no breach of procedural rules that prevents Pulatov from receiving a fair trial. The case brought by the Public Prosecution Service is admissible.
4. Evidential questions
We will now discuss the arguments the defence has put forward regarding the evidence against Pulatov.
We will begin with a number of general remarks. In criminal proceedings the burden of proof lies with the Public Prosecution Service. The onus is on us to present legal and convincing evidence that Pulatov committed the offences he has been charged with and that he is jointly responsible for downing MH17.
The defence has a different task. It does not have to prove Pulatov’s innocence. He is presumed innocent until such time as the court establishes that legal and convincing evidence exists to the contrary. The defence needs only to refute the incriminating evidence. For this purpose it can use substantiated arguments to cast doubt on the incriminating evidence, and it can provide exculpatory evidence.
Providing exculpatory evidence involves presenting and offering substantiated arguments for an alternative scenario: an alternative interpretation of the events that diverges from the scenario laid out in the indictment. This could take the form of evidence for an alibi. The alternative interpretation must at least be credible and plausible. Furthermore, a defendant must specifically state that there is a credible and plausible alternative scenario. The mere suggestion that such a scenario exists will not suffice. If a clear and unambiguous position is not taken, the court is not required to respond. During the last 11 days of the court hearing, the defence has not presented any concrete, unambiguous and plausible alternative scenario.
Nor has the defence been able to cast reasonable doubt on the incriminating evidence against Pulatov. In its closing speech the Public Prosecution Service pointed out the many and varied sources of evidence that MH17 was shot down using a Buk missile (question 1), that the missile was fired from an agricultural field near Pervomaiskyi (question 2) and that Pulatov is jointly responsible for this act (question 3). What this means in essence is that in the case at hand, a mosaic can be laid, composed of numerous and varied sources of evidence: intercepted calls, historical telephone data, videos, photos, forensic evidence and witness statements. All of these sources of evidence are like small tiles which, when fitted together, provide a clear and unambiguous picture of what actually happened. The majority of these ‘tiles’ have been investigated and validated. If we look at the mosaic in its entirely the picture is crystal clear. Together, Girkin, Dubinskiy, Pulatov and Kharchenko are responsible for downing flight MH17, resulting in the deaths of all 298 persons on board, and the murders of those persons. The defence can remove the odd individual tile because it finds it unreliable, but that does not change the overall picture. There are simply too many tiles. For example, the defence can cast doubt on the forensic evidence pointing to a Buk missile, but that does not detract from the photos and videos of the Buk TELAR and the intercepted calls and witness statements regarding the deployment of that Buk TELAR. The defence can suggest that an intercepted call about a Buk was really about something else or that there was indeed a Buk but that it was deployed elsewhere, but that would be ignoring all of the other sources of evidence for the deployment of a Buk by the defendants from an agricultural field near Pervomaiskyi. In order to present a different scenario, the defence will have to explain why each mosaic tile does not fit in a particular spot. In a moment we will discuss why that explanation falls short every time. And even then, even if a tile were to be removed because the defence considers it to be unreliable, the overall picture would not change. There is simply so much evidence from so many different sources that there is no room for doubt.
We will now look at the defence’s arguments one by one for each evidential question.
4.2 Evidential question 1: was MH17 shot down using a Buk missile?
Let us begin with the first evidential question: whether MH17 was shot down by a Buk missile. The defence argues that Pulatov should be acquitted because it claims there is insufficient evidence. To substantiate this argument, the defence refers only to the forensic investigation and a report by American consultants.
4.2.2 Evidence the aircraft was shot down using a Buk missile
Before we look at the substance of this argument, we should note that it is a misconception that the question of whether MH17 was downed using a Buk missile can be answered solely on the basis of the available forensic evidence. Even if we were to disregard the forensic evidence, there is still sufficient other evidence to support the accusation that on 17 July 2014 the defendants used a Buk TELAR to launch a Buk missile from an agricultural field near Pervomaiskyi. Since much of this evidence went unmentioned in the defence’s statement of the case, we will summarise it now. We will provide a selection of the evidence rather than a full overview. Before we look at and listen to this evidence, we would remind you of the heavy fighting in the area. On 16 July 2014 the DPR was suffering severe losses. In an intercepted call on the evening before MH17 was downed Dubinskiy said that ‘the Buk is their only hope’. He told Pulatov that if the Buk arrived the next morning it would be sent immediately to Pulatov. Let us look at the events as they happened. It is 09:08 on the morning of 17 July 2014 when Dubinskiy is called by DPR fighter Chernykh. We will now listen to part of this conversation.
So Chernykh has arrived in Donetsk with the Buk and its crew. The Buk is on a trailer. It follows from phone mast data that during the conversation Chernykh’s phone was indeed transmitting to a mast on Illicha Avenue in Donetsk. The Buk TELAR that he is escorting was also photographed in this same street. Half an hour later a message appears on the social media platform VK announcing ‘bad news’: at around 09:00 a truck and trailer carrying a BUK M1 or M2 has arrived in Donetsk from the direction of Makeevka. The convoy has stopped and is occupying the two outer left lanes of the road. According to the post, the fighters appear to be awaiting instructions. Shortly afterwards the convoy with the Buk TELAR was also filmed. This can be seen here. The convoy is at a standstill near the motel roundabout.
At around 09:30 Dubinskiy calls Pulatov to tell him that Krot – i.e. Kharchenko – is now on his way to him with a Buk-M. This Buk-M is to be positioned in the vicinity of Pervomaiskyi. We will now play part of this conversation. A short time later Dubinskiy tells Kharchenko where he can find the Buk: behind the motel roundabout. Kharchenko is to go to Pervomaiskyi and guard that thing that he’s now going to escort. Giurza – i.e. Pulatov – will go there too. We will also play that conversation. Immediately after this conversation Dubinskiy calls Pulatov again and tells him to wait for Kharchenko. Kharchenko is now escorting the Buk, and together they are to go to Pervomaika, near Pervomaiskoye. Their job is to guard the Buk, and it is up to Pulatov to organise all of this. And now we will also play part of that conversation.
There are many pieces of evidence that point to the Buk TELAR indeed having been transported in the direction of Pervomaiskyi: witnesses saw the Buk TELAR on that route, and there are photos and videos, as well as various posts on social media. We will now take a closer look at Snizhne, the place where Kharchenko and Pulatov met each other at around 12:50 near the Furshet supermarket. Let’s listen to that now. The TELAR drives off the ‘lowboy’ (low-loader) near the Furshet. This is noticed by witness V22. He then sees the Buk TELAR driving off under its own power, accompanied by a dark-coloured jeep. Both vehicles stop for several minutes at Café Ugolek. Another witness, V7, also sees a Buk driving under its own power at the same Café Ugolek (‘Uholok’) in Snizhne early that afternoon. Witness V7 stated that the Buk was accompanied by an SUV and that they stopped together. After this stop, the Buk and SUV turn left at the café and continue on in an easterly direction. A photo was taken close to this location of a Buk TELAR driving under its own power. This photo was posted that same day on Twitter.
A short distance away, the Buk TELAR is seen by witness V51. At 13:10 or 13:15 he sees military equipment driving past that he has never seen before. This equipment, driving under its own power, is covered by a net and produces a loud rumble that resembles the sound of a tank. He sees it driving on Gagarina Street in the direction of Saur-Mogila. The Buk TELAR was also captured on film again on the same road. We can see those images now.
Riding in a TELAR is uncomfortable, demands a lot from the caterpillar treads and consumes a large amount of diesel. This is why non-tactical transport of Buk vehicles is carried out using trucks and trailers. A TELAR only drives under its own power during the last stretch of its journey, to the final destination. Given that the Buk TELAR was travelling independently from Snizhne onwards, it can be deduced that its final destination was not far away. There is more evidence of this. We would remind you that Dubinskiy instructed both Pulatov and Kharchenko to go to Pervomaiskyi with the Buk. The agricultural field near Pervomaiskyi is situated along the road where the Buk TELAR was filmed driving under its own power. Shortly after 14:00 Kharchenko phones Sharpov – one of his subordinates – telling him to guard the vehicle, which has stopped a little further along in the field. Once his subordinate has said that he will do so, Kharchenko says that he will go and fetch Ryazan and then return. Kharchenko was referring to DPR fighter Gilazov. We will now listen to this conversation. At the time of this call the phone of the subordinate – who can see the vehicle that has stopped in the field – was transmitting to a phone mast in Pervomaiske, while Kharchenko’s was pinging a mast in Snizhne. Both masts are within range of the launch location.
After this conversation nothing more was said about transporting, escorting or guarding the Buk. There is also no other visual material from that day showing the defendants’ Buk TELAR. In other words, the Buk TELAR must have reached its destination.
Over two hours later, at 16:19:31, MH17 is flying at an altitude of 10 kilometres, approximately 34 kilometres northwest of the agricultural field near Pervomaiskyi. It is the only aircraft flying within the Buk TELAR’s kill zone. The Singapore Airlines and Air India aircraft are outside of this zone. At 16:20:03, air traffic control loses contact with MH17. Two minutes later Ukrainian air traffic control is still searching for MH17 and contacts its Russian colleagues. They also cannot locate MH17, not even on the primary radar.
A few minutes later this photo was taken from Torez. The person who took the photo stated that at 16:20 he heard two heavy explosions with a short interval in between. The second explosion was so loud that it made the window panes shake. He grabbed his camera, walked to his balcony, saw this white smoke trail and took two photos. The location from which the photo was taken has been verified. The photographer’s line of sight was also established. This can be seen here. So the photo was taken while the photographer was looking in the direction of Pervomaiskyi.
The fact that the defendants downed an aircraft from that area follows from a conversation between Dubinskiy and Kharchenko at 16:48. During this call Kharchenko’s phone was transmitting to a mast in Snizhne within range of the launch location.
When confusion arises because a civilian aircraft has been downed, Dubinskiy wants confirmation that their Buk was fired. He calls Pulatov who reassures him that the Buk shot down the Sushka, which shortly before had downed the Boeing. Pulatov says that he is at the place where the aircraft crashed but that he is now going back to pick up Ryazan. We will now play part of that conversation.
The Buk thus shot down the Sushka, which just before that shot down the Boeing. In other words, the defendants’ Buk TELAR launched a missile at the time MH17 was shot down. The fact that at that moment MH17 was the only aircraft flying within the kill zone of this Buk TELAR and the only aircraft to have been downed in the area that day, should be reason enough to conclude that MH17 was the aircraft shot down using the defendants’ Buk TELAR. Ryazan, who as we just heard was picked up by Pulatov after the aircraft had been downed, and who, as we heard in December, called Kharchenko a few hours after the launch to tell him that one of the Buk’s fighters had got separated from the rest of the crew, also posted this in an online forum: ‘The Boeing was shot down by one of ours, by accident. I was there.’
‘I was there’, is what Ryazan, i.e. Gilazov, wrote. Phone mast details confirm that just before and just after the downing of MH17 his phone was transmitting to a mast in Pervomaiskyi.
The fact that the defendants shot down an aircraft using their Buk was discussed on the phone by all of them on 17 July 2014. It can be deduced that this was MH17 given that it was the only aircraft downed on that day and that one of Kharchenko’s subordinates said as much in a VK chat.
The forensic investigation results confirm this. And that is exactly how those investigation results should be viewed: in combination with all the other evidence available.
184.108.40.206 Attention paid to other weapons
The first argument is that too little attention was paid to weapons other than the Buk. By suggesting this, the defence disregards the fact that a thorough investigation was conducted into the two alternative scenarios: that MH17 was downed using an air-to-air missile or by a surface-to-air missile other than the Buk. In June 2020 we explained the investigation into these alternative scenarios and the results they yielded. For brevity’s sake we refer to what we said at the time.
The defence suggests that these other weapon systems were primarily ruled out on the basis of the findings by RC06, an explosives expert at the NFI. This is not the case. RC06 only considered whether he – on the basis of his knowledge of explosive substances and of the damage pattern observed and trace material found – could draw any conclusions about whether other weapons could have been responsible for this damage pattern. Contrary to what the defence argues, whether or not he has experience with Buk missiles is irrelevant. What is relevant is whether he has knowledge of – and experience with – the effects of explosive substances. And that he does, in very large measure. The defence has dedicated some 36 pages to discussing what value should – or rather should not – be attached to this specific report by RC06 but fails to refer to an essential part of the investigation into alternative weapons: the Russian and Ukrainian radar data. However, the examination of this data showed no evidence of a combat aircraft, and the air-to-air scenario can therefore be relegated once and for all to the realm of fantasy. So contrary to what the defence argues, it is not necessary to conduct a ‘full investigation’ into these types of air-to-air weapons.
We agree with the defence that, on the basis of his investigation, RC06 was not able to rule out all alternative surface-to-air weapons. However, this does not make those systems not excluded by RC06 a plausible alternative. As we have already said, RC06’s investigation was not the only investigation conducted into alternative surface-to-air weapons. And as we had already noted in June 2020, the incriminating evidence for the main scenario should also be included when considering whether there is a plausible alternative. As in June 2020, Pulatov is now also ignoring the incriminating evidence in the case file that points to a Buk missile. In the investigation as a whole there is not even a hint of plausibility that a weapon other than a Buk missile could have been used. Nor has the defence provided any concrete alternative scenario. It suggests that a different weapon, i.e. the SA-5, could have been used to down MH17. Its reasoning is that a number of ‘bullets’ were found in the aircraft and they could have come from another weapon.
The mere suggestion that the SA-5 could be the weapon used is insufficient to speak of an alternative scenario. Moreover, that this suggestion has no basis whatsoever can be seen here.
These are not fragments of a warhead, but small balls from a ball bearing: 27 to be precise. One of them has a diameter of 7 mm and almost all others have a diameter of 2 mm. They are much smaller than the ball-shaped fragments found in the warhead of an SA-5 that the defence hinted at in its statement of the case. According to the defence, the discovery of these ‘bullets’ should have prompted a further investigation into the SA-5. Because photos – despite the visible ruler – can give a distorted picture, we have brought these ‘bullets’ along to the hearing. We will put them here on our table so that the defence can have a look at them later during the break. Furthermore, these ball bearings have not been subjected to an explosion. It is therefore evident that there is no question of fragmentation of an exploded warhead. In everyday life – and in aircraft – ball bearings can be found in all kinds of parts, such as in hinges and wheels, of meal trolleys for example. So, contrary to what the defence argues, the discovery of these ball bearings does not warrant further investigation into the SA-5.
In brief: alternative scenarios have been investigated and found to be implausible. In fact, it is not even faintly plausible that any other alternative weapon system could have been used, and the defence has not presented an argument to that effect. Given that the use of an alternative weapon is not even faintly plausible, an additional investigation into such a weapon is unnecessary. Consequently, the lack of such an investigation cannot be seen as an omission from the investigative work that has been conducted.
In other words, the fact that other weapons were not investigated to the same level of depth as the Buk missile is due to the sheer implausibility that those weapons could have been used. By contrast, the indications pointing to the use of a Buk missile only grew as the investigation progressed. If there is no hint of plausibility that a different system was used, such an in-depth investigation is unnecessary. By way of comparison: if there is every indication that somebody was shot with a pistol and there is no indication whatsoever that a different type of weapon was used, you wouldn’t go and look into knives, shotguns or Kalashnikovs.
The defence that other weapons were not sufficiently investigated thus lacks a factual basis.
220.127.116.11 Focus during the forensic investigation
Secondly, the defence argues that there was a one-sided focus on the Buk missile during the forensic investigation. One example it gives is that two Buk missiles were dismantled as early as in October 2014, even though the wreckage had not yet been recovered.
The defence appears to be suggesting here that the forensic investigation should only have been able to commence once the wreckage had arrived in the Netherlands, whereas that investigation actually began on 25 July 2014 when the first bodies arrived in the Netherlands. It was during these forensic examinations that the first relevant findings were made, which partly set the course the investigation would take going forward.
For example, an autopsy was carried out on the bodies of the cockpit crew. Metal fragments were found in the bodies of the captain, the co-pilot and the purser, several of which had a recognisable bowtie or tile shape. The visual similarities were already established in late July and early August 2014.
The defence appears to dispute that a bowtie-shaped fragment was found. It argues that the investigation into its original shape was insufficient. The defence points here to an image in an NFI report showing the bowtie found in the body of the captain (AAHZ9117NL). The defence claims that no raised edges can be seen in this image, while they are visible in the images of a bowtie-shaped fragment from the 9N314M reference warhead. This claim by the defence shows that it did not read the NFI report carefully. The page referenced by the defence literally says: ‘Raised edges are visible in the micro-CT image of the bowtie’ (see the yellow arrows in figure 5A). We now see that image with the accompanying caption. The yellow arrows point to the raised edges which, according to the defence, were missing. As the defence said, those same edges were also observed on the fragments from the reference warhead. In other words, the NFI did indeed examine the original shape of the bowtie-shaped fragment.
This image speaks volumes to the Public Prosecution Service. We can clearly see a bowtie-shaped fragment.
The defence has also questioned the metallurgic investigation into the bowtie-shaped and other fragments recovered from victims and wreckage. It says that one of the NFI’s reports (Primo-9427) was incomplete and incomprehensible. By way of example the defence notes that the two fragments from a victim and from the wreckage that are still recognisable as being bowtie-shaped (with SIN number AAHZ9117NL and AAHZ4490NL #1) were not included in a particular table in annexe 9 to this report. However, the report itself states that this and other tables in annexe 9 are not complete and therefore do not include all of the fragments. There is also a reference to another table in which the two bowtie-shaped fragments (with SIN number AAHZ9117NL and AAHZ4490NL #1) do feature. This table shows that there is maximum overlap between the two other fragments and a large number of other fragments, including bowtie-shaped fragments from one of the reference warheads.
Furthermore, the ‘critical remarks’ pertain only to part of the investigation described in this report and do not touch on the NFI’s much broader conclusion based on the entire investigation. This was as follows: ‘The fragments taken from the victims and the wreckage are consistent with the fragments secured in the arena tests in Ukraine and Finland in every examined respect.’ The defence asked the NFI expert several questions about this specific conclusion, including what exactly is meant by ‘consistent [...] in every examined respect.’ The NFI answered as follows: ‘That the fragments are indistinguishable on the basis of the features examined.’
The Public Prosecution Service considers it a given that bowtie-shaped fragments were found that in terms of their shape, the type of steel and their microstructure are consistent with the fragments from a 9N314M warhead. According to Almaz-Antey, the manufacturer’s successor, bowtie-shaped fragments are unique to the 9N314M warhead.
These early forensic findings point towards only one possible warhead, i.e. the 9N314M type. According to all the experts involved, this warhead fits on only two Buk missiles; the 9M38 and the 9M38M1. The fact that the forensic investigation came to focus on the 9M38 and 9M38M1 Buk missiles is a logical consequence of these initial forensic findings. These forensic findings are consistent with a host of other early findings, such as photos and videos of a Buk TELAR loaded with several missiles that appeared online even before MH17 was downed. These Buk missiles were visibly recognisable as 9M38 or 9M38M1 missiles. The forensic findings are also consistent with the intercepted calls on 17 July 2014 in which the transportation of a ‘Buk’ or ‘Buk-M’ was discussed, as was the actual downing of an aircraft with that Buk.
Therefore, comparing metal fragments found in bodies in late July and early August 2014 – which on initial visual comparison show similarities with bowtie- and tile-shaped fragments – with reference material from Buk missiles does not imply a ‘one-sided approach’. Nor does the fact that the JIT dismantled two Buk missiles in October 2014, even before the first wreckage arrived in the Netherlands, suggest a one-sided approach. The choices made in the forensic investigation followed on logically from the initial forensic and tactical findings and were part of the preparations for the subsequent examination of the wreckage. Familiarity with the various parts of Buk missiles allows foreign material not belonging to the aircraft to be identified as such, and also enables investigators to rule out foreign material that did not or is unlikely to have come from these missiles, where necessary. Material of this kind that would rule out the use of a Buk missile was not encountered during the investigation.
The focus during the investigation was not one-sided, but the results were. Time and again, these point to one specific weapon: a Buk missile.
18.104.22.168 Wreckage as evidence
The third main argument by the defence is that all of the wreckage should be excluded from the evidence because it lay unattended in a war zone for several months and the chain of evidence was therefore broken. It is true that the wreckage lay unattended at the crash site for several months. During that time the pieces of wreckage could have been moved and in certain cases that did indeed happen. The defence and the Public Prosecution Service agree on this point. But this mere fact does not render the wreckage unusable as evidence. This also does not follow from the case law referred to by the defence in its statement of the case. The defence’s position would mean that a murder weapon recovered weeks or months after the crime could never be subjected to a forensic investigation. That would also apply to the body of a victim found some time later or at a location other than the crime scene. You do not need to be a legal expert to understand that that is not how things work in criminal law.
There are no grounds – either legal or factual – for a ‘bare exclusion’ of the wreckage as evidence simply because it was not immediately seized. What matters is that you are aware of the potential consequences of this state of affairs. The defence does not state what the consequences of the delayed seizure could be. Nor does it say how this would negatively affect the investigation. For that reason alone this argument cannot stand.
It is true that there are limitations due to the wreckage having lain unattended at the crash site for a lengthy period. The Public Prosecution Service has always been clear on this point. The value of the forensic investigation depends entirely on awareness of the limitations attached to the investigation material. The forensic investigators, the experts and the Public Prosecution Service have been aware of these limitations from the outset and have acted accordingly.
22.214.171.124.1 Possible contamination
For example, everyone has always been aware of the possibility that certain evidence could have been contaminated. If traces of evidence on the wreckage could have become degraded or been mixed up, for example during transportation or due to having lain in a war zone for a lengthy period of time, caution must be observed. That is why caution must be exercised when it comes to the findings of the explosives investigation. This is all the more true if the decomposition traces found during this investigation are residues of explosives that are widely used in civil and military contexts, such as RDX, TNT and PETN. It is for a good reason that the NFI expert noted that no conclusions as to the type of weapon used can be drawn from the explosives investigation. That is why the Public Prosecution Service is also not doing so.
And the defence should not either. Nevertheless, the defence has said that the presence of PETN is inconsistent with the use of a Buk missile. However, the NFI reports referred to by the defence show that PETN decomposition traces were found in only three of the 175 samples taken. And those three samples were from the same piece of wreckage, i.e. the nacelle of the left engine ring. All the experts agree that the explosion of the warhead must have taken place near the cockpit and not near the left engine. So PETN decomposition traces were found on a piece of wreckage that was not near the centre of the explosion, just as explosive decomposition traces were also found on a few other pieces of wreckage that were not near the centre of the explosion. In other words, the relationship with the explosion near the cockpit is not a given and other sources thus emerge for the explosive decomposition traces. The NFI expert notes the following in this respect:
‘Given that an armed conflict was taking place/had taken place in the area where MH17 crashed, the relatively long period of around five months between the crash and the transportation to the Netherlands and the complex nature of this transportation, I consider the most important alternative sources of the detected traces to be:
1. Transfer of traces of explosives at the crash site (for example through explosions of military materiel on the ground before or after the crash).
2. Transfer of traces of explosives during transportation/storage between the crash site and the location in the Netherlands where the samples were taken (Gilze-Rijen). This could involve the transfer of traces present in the means of transport used or the possible transfer of traces between individual pieces of wreckage.’
The expert also writes:
‘The detection of traces of explosives on pieces of wreckage for which there are no other physical indications that they were near an explosion and which were a relatively large distance away from the centre of the explosion is not unexpected given the way in which the aircraft wreckage was transported and stored.’
The engine ring lay at the crash site for several months while the fighting in the area continued. PETN is an explosive that is very widely used in both civilian and military contexts and is found in, for example, grenades and land mines. Therefore, contrary to what the defence claims, the detection of PETN on a single piece of wreckage does not rule out the use of a Buk missile. Rather it is an indication that the trace evidence could have become contaminated, which calls for caution.
126.96.36.199.2 Individual missile parts
Caution must also be exercised when considering the individual missile parts found at the crash site that can unmistakably be identified as parts of a Buk missile belonging to the 9M38 series, such as the casing. After all, they could have already been lying at the site before 17 July 2014 or have been placed there after 17 July 2014. We referred to this possibility earlier in the hearing.
We agree with the defence that absolute certainty cannot be obtained as regards a direct link with the missile that was used to down MH17 solely on the basis of elemental composition. For this reason in our closing speech we did not mention the casing, the exhaust (venturi) and other individual missile parts found separately. As previously mentioned, in our closing speech we referred only to the strongest pieces of evidence. This does not include the casing, venturi and other missile parts found separately.
188.8.131.52.3 Missile parts in the wreckage: the metal lump in the aircraft’s frame and the lump in the window frame groove
The situation is different in the case of the missile parts that were found firmly wedged and twisted into the wreckage of MH17 and could not have been planted there. This includes the metal lumps found in the aircraft’s frame and in the groove of the cockpit window frame. These are very strong items of evidence. There are no reasons to exclude these parts from the evidence purely solely because they were lodged in pieces of wreckage that lay unattended at the crash site. And as far as we are concerned, the defence has not put forward any reasons for doing so.
The defence incorrectly argues that the ‘precise original location’ of the lump in the cockpit frame cannot be established and that the fact that it lay in a war zone for several months ‘unfortunately contributed to this’. The exact location of this lump follows from the official report that was drawn up about the securing of this part. In this connection we refer specifically to the many images of this piece of wreckage in the media file. In those photos the lump is still seen firmly lodged into the cockpit frame. So there is no uncertainty as to the ‘precise original location’ of the lump. The fact that the wreckage lay in a war zone for several months did not lead to any uncertainty. There is therefore no reason to exclude the piece of wreckage in which the lump was found from the evidence.
On the basis of the images in the file the court can see for itself that both lumps were wedged firmly into the wreckage. Firmly enough, in fact, that a saw had to be used to remove them from the wreckage. These lumps are undeniably related to the downing of the aircraft. This has not been disputed by any of the experts, nor by the defence. What the defence does dispute is that these came from a Buk missile. However, they did not put forward any arguments for this claim and are not supported by any experts in this respect.
184.108.40.206.4 Do the metal lumps come from a Buk missile?
The AFP has identified the two lumps as being part of a slide cover and umbilical base plate, respectively, and the NFI’s metallurgic findings are consistent with this identification.
In relation to the metal lump in the aircraft’s frame, the defence merely notes that no clear conclusion can be drawn from the NFI’s findings as to whether the lump is part of a 9M38 missile, a 9M38M1 missile or a completely different missile. The defence does not therefore dispute that the NFI’s findings are consistent with both a 9M38 and a 9M38M1 missile. Nor does the defence dispute the AFP’s identification; it merely alludes to it.
As regards the green lump in the window frame groove, the defence offers a more in-depth discussion of the visual comparison performed by the AFP. It claims that this incorrectly shows that the lump could be from either the 9M38 or the 9M38M1 because the machining marks are more consistent with the reference base plate of the 9M38 missile. The defence showed images where the machining marks on both reference base plates can be seen across the full width of those plates, whereas the green lump had been identified as part of the base plate and does not therefore cover the full length of a base plate. That can be seen here. We would note in this respect that the reference base plate we see here is from a 9M38M1 missile. If we focus on the part of the base plate that the lump is thought to be from, we clearly see three strips with machining marks. These are highlighted in red. We also see three strips with machining marks on the metal lump. As far as the Public Prosecution Service is concerned, this similarity is striking and there are no grounds whatsoever for the defence’s argument that the marks on the distorted lump are more consistent with the base plate of a 9M38 missile.
As regards the NFI investigation, the defence merely notes that no definitive conclusion can be drawn about the type of missile based solely on elemental composition. This is correct: the microstructure and elemental composition of the green metal lump are consistent with both the base plate of the 9M38 and the base plate of the 9M38M1 missile that was used in the arena tests. The fact that no definitive conclusion can be drawn regarding the type of missile does not detract from the findings that the elemental composition and microstructure of this lump are consistent with the base plates of 9M38- and 9M38M1-type Buk missiles. Those findings are rock solid and are not disputed.
So both metal lumps have been identified as being part of a base plate and slide cover of a Buk missile, and the metallurgic findings are consistent with this identification. According to the RMA’s expert, a base plate and slide cover determine the identity of a Buk missile. Despite having been invited (repeatedly) to do so by the examining magistrate, the Almaz-Antey expert has not contested this argument. Furthermore, in response to a question from the defence, the RMA’s expert confirmed that he also investigated whether the parts in question could possibly have come from a different missile system. According to the RMA that is not the case. Nevertheless, in its closing remarks the defence claimed – without further argumentation or specification – that these plates are also found in other missiles. In these proceedings the defence is all alone in holding this viewpoint. There is no evidence whatsoever for this claim.
The RMA’s expert states thus that the slide cover and base plate are unique to a Buk missile. The representative of the Russian manufacturer of Buk missiles did not dispute the identification of these missile parts; nor did he dispute the fact that these parts are unique to a Buk missile. He merely suggests that he himself did not investigate these lumps. Surely the manufacturer should be expected to know what the base plates and slide covers of its Buk missiles look like. For this it needs only to look at the detailed photos of the lumps, and no further investigation is necessary. The Public Prosecution Service therefore considers the identification of these parts as belonging to a Buk missile as a given. Furthermore, they are consistent with earlier forensic findings, such as the fragments secured from the bodies of the cockpit crew.
The indictment calls for evidence that a Buk missile was deployed, and that evidence exists.
Contrary to what the defence states, there is no evidence pointing to the use of two missiles. In order to follow this claim we need to return to the individual missile parts found separately at the crash site.
220.127.116.11 Indications for the type of Buk missile
Although the defence argues that it cannot be concluded with certainty that there is any connection between the missile parts found separately and the downing of MH17, it does claim on the basis of those individual missile parts that there is conflicting evidence or evidence of two missiles having been involved: an 9M38 and an 9M38M1 missile. The Public Prosecution Service does not follow this.
The AFP, which examined all the parts in minute detail, concluded that all of the individual parts are consistent with both a 9M38 and an 9M38M1 missile. Six of the seven individual parts are the most consistent with a 9M38M1 missile, but – as is clear from the report – that does not mean that they are not also consistent with a 9M38 missile. The seventh individual part is consistent with both missiles.
One of the items which, according to the AFP, is the most consistent with the 9M38M1 reference missile is the venturi. The defence contends that, according to the records of the Russian Ministry of Defence, this venturi was from a 9M38 missile. Earlier in the hearing we stated the limitations of these records, while the court has already ruled that these records say nothing about the situation in 2014. We are therefore of the opinion that these records provide no evidence to support the argument that the individual parts belong to different missiles.
The only correct conclusion is that although there are similarities between the individual parts and both types of reference missiles, there are more similarities with the 9M38M1 and these separate parts could indeed come from the same missile. There are no indications of conflicting evidence or evidence that two missiles were involved.
18.104.22.168 Investigation into the damage pattern
A fifth point of criticism is the damage pattern, which the defence claims was not investigated sufficiently. For the sake of clarity, we would note here that this concerns the damage pattern on the wreckage and not the missile parts in that wreckage. The defence contends that the investigation into the damage pattern was incomplete because it did not lead to a missile being identified. The defence also argues that the examination of the damage pattern focused primarily on establishing the Buk’s detonation location. The defence also claims that the damage pattern was not described in sufficient detail.
Let us begin with this last point: the case file contains not only the official reports referred to by the defence in which the damage is described and shown in images, but also official reports on the securing of wreckage on which that damage is visible, which also contain images (often including a ruler). There is also a 3D scan of the reconstruction in the file. You can move the image around and zoom in on the damage. And lastly, on the NLR’s instructions a 3D scan was made of all perforations that could have been caused by a primary fragment and all ricochets. Why these official reports and this 3D scan of the reconstruction should be deemed unreliable and unusable escapes the Public Prosecution Service. In any case, the court saw the damage for itself during the viewing and can consider these observations in its assessment of the damage pattern.
Then there is the contention that the investigation into the damage pattern was incomplete because it did not lead to the identification of a missile. It seems that the defence would only consider the investigation into the damage pattern complete if it resulted in a reporting officer or expert concluding, it was this or that missile. Here the defence again misses the point that question 1 does not have to be answered solely on the basis of the forensic investigation and certainly not solely on the basis of the damage pattern. The defence also misses the point that such a conclusion cannot always be drawn on the basis of the damage pattern. This is evident from the fact that one type of warhead sometimes fits on two types of missile, such as the 9N314M warhead, which fits on both the 9M38 missile and the 9M38M1 missile. What is possible is investigating whether the damage pattern found on the wreckage is consistent with the damage pattern visible after detonation of a Buk missile. And contrary to what the defence contends, this was examined in detail through the arena tests.
Those arena tests produced various results, including the damage pattern of a detonating 9N314M warhead and a detonating 9M38M1 missile. These tests clearly show that the secondary fragmentation – i.e. the exploded missile parts – had a significant effect on the damage pattern. Some of the perforations that could have been caused by the fragments from the warhead will actually have been caused by secondary missile fragments approximately the same size as the fragments from the warhead. That means that the damage pattern on MH17 should be considered with this in mind. In other words, it only makes sense to compare the damage on MH17 with the results of the arena test involving the complete missile. And that is exactly what was done in the forensic investigation. The damage visible on the witness plates after the arena test with the complete missile including the 9N314M warhead was compared with the damage pattern visible on MH17. That investigation concluded that the damage pattern on the witness plates matches the damage pattern we see on the wreckage of MH17. The NLR expert called it a ‘complete match’, while the RMA expert characterised it as a ‘very good match’.
On the basis of the findings of the arena tests the Public Prosecution Service concludes that the damage pattern on MH17 is consistent with the damage pattern caused by a Buk missile. There are no factual grounds for the defence’s argument that the investigation into the damage pattern was incomplete and this cannot therefore succeed.
4.2.4 Findings by American consultants
In its criticism of the forensic investigation the defence finds support in the conclusions of American consultants it conferred with. However, these consultants looked at the investigation with the same narrow view. Annexe 2 of their report shows that they familiarised themselves with only a fraction of the relevant evidence. It was the defence that provided them with this limited selection of documents. The footnote refers to the official reports of the forensic investigation that the Public Prosecution Service does consider to be relevant in relation to question 1, but which were not used by the American consultants in their peer review because they had not been provided with them by the defence. This amounts to 17 official reports and other reports relating to the forensic investigation to which we referred in our closing speech, including the general account of the forensic investigation which provides insight into the investigation conducted. Not to mention all the tactical evidence we also referred to in our closing speech.
In other words, the defence gave the American consultants only a very limited glimpse of the forensic investigation. So we cannot blame the consultants in this respect. However, the consultants write in their report that they closely studied the prosecution’s closing speech. If this is indeed the case, they could have known that they did not have all the documents relevant to question 1 at their disposal. The fact that these consultants relied on an assessment of a fraction of the available evidence and nevertheless drew conclusions about the possibility (or impossibility) of identifying the weapon used says everything, in our view, about the usefulness of their report: the Public Prosecution Service considers it unusable.
In terms of content it is also notable that the American consultants often cast doubt on or even flatly dispute the accuracy of the NLR’s and RMA’s findings because they contradict the findings and claims of Almaz-Antey. The Americans’ tendency to wrongly rely on the correctness of Almaz-Antey’s claims becomes apparent if we take a closer look at Almaz-Antey’s calculation of the launch area. To briefly summarise, we conclude that the American report in no way detracts from the evidence in the case file.
4.2.5 Conclusion evidential question 1
We will now conclude. As previously stated and as extensively substantiated in our closing speech, the Public Prosecution Service concludes that, on the basis of many more items of evidence than merely the forensic evidence, MH17 was downed using a Buk missile. In relation to question 1 the defence omits all of the tactical evidence available and furthermore concludes on incorrect grounds that the forensic evidence is insufficient to identify the weapon used to down MH17.
The defence’s argument that it cannot be proven that MH17 was brought down with a Buk missile is insufficiently substantiated and lacks any factual basis. The case file contains more than enough forensic and tactical evidence to prove the use of a Buk missile. This argument should therefore be dismissed.
4.3 Evidential question 2: launch location near Pervomaiskyi
That brings us to the second evidential question the court must answer, i.e. whether the Buk missile that downed MH17 was launched from a site near Pervomaiskyi. According to the defence there is insufficient evidence for this, too. In summary, the defence argues that the intercepted conversations showing that the defendants brought the Buk to and removed it from this location should be interpreted differently. In addition, the defence argues that the other evidence for this launch location is unreliable and that evidence that it believes one might have expected to find pointing to this launch location is lacking. Lastly, the defence has put forward an alternative scenario, in which MH17 was allegedly downed from a different location. We will now discuss these various arguments.
4.3.2 Alternative interpretation of intercepted conversations.
We will begin with the interpretation of the intercepted conversations. In its statement of the case, the defence gave various alternative views on how intercepted conversations should be interpreted. Pulatov also spoke about the intercepted conversations in his statements. The following, mutually exclusive theories can be deduced from his statements and the defence’s argument. First: the conversations were about a non-existent Buk TELAR. Second: they were about an existing, but non-functioning Buk TELAR, as part of a military deception effort. Third: there was a functioning Buk TELAR, but it did not fire a missile. We will now discuss these positions advanced by Pulatov and the defence. This will also include discussion of Pulatov’s deception strategy concerning the Strela-10 missile system. We will first discuss the interpretation of intercepted conversations in general. Then we will talk about the alternative interpretations that have been put forward.
22.214.171.124 Interpretation of intercepted conversations
The fact that parties to an armed conflict can make use of disinformation and veiled language does not mean that this was indeed the case in every conversation held by Pulatov or his co-defendants. In practice, it is more complicated than that. Public sources show that even today the Russian Federation still lacks secure means of communication and that sensitive military information is still sent via non-secure connections. Communication via open lines is therefore by no means always disinformation. We already discussed this earlier in these proceedings.
Contrary to what the defence argues, it is not necessary to consult an expert in order to decode veiled language. Criminal cases are peppered with veiled and coded language to hide the fact that criminal activities are being discussed. For instance, in a drugs case the word ‘car’ was used in intercepted phone conversations, when ‘aircraft’ was meant. A ‘garage’ was an ‘aircraft hangar’. And ‘book’ meant ‘cocaine’. This too is conscious deception, with the police as the ‘enemy’ (to use Pulatov’s terms) who is to be deceived. In criminal proceedings, words acquire meaning through the context of the entire conversation and through the assessment of that conversation in relation to other evidence, for instance chronologically or in respect of other intercepted conversations on the same subject. Pulatov acknowledged this when he said in his video statement that phone conversations should be viewed in relation to each other.
The Public Prosecution Service devoted a great deal of attention in this case to the validation of the evidence. As we have mentioned before, the investigation in this case was careful and wide-ranging. ‘Check and double-check’ is the watchword. Validation is important for assessing the value of the evidence. Investigators always ascertained who the user of a particular phone number was, and whether events discussed over the phone actually took place. Specific conversations about the Buk TELAR were also validated. And time and again it transpired that a great deal of the information acquired from intercepted conversations was confirmed in other sources. So in July 2014 the defendants were not talking about fictional events. Their conversations were about the harsh reality of the armed conflict.
Given the outcome of the validation process, Pulatov would have to offer demonstrable evidence in order to convince the court that he had nothing to do with a Buk TELAR. He has not done so.
126.96.36.199 Assessment of alternative scenario
As mentioned earlier, in its statement of the case the defence gave various alternative readings of how intercepted conversations should be interpreted. The court must assess whether this amounts to a realistic alternative scenario. When assessing an alternative scenario, the following is important.
In order to reach a judgment on the indictment, the court must assess the findings of the investigation in the context of, and in relation to, each other. If those findings match the details of the indictment considerably better than any other scenario, a conviction will follow. If there is reasonable doubt, the defendant will be acquitted. For the defendant to be convicted, it is not necessary for all alternative scenarios to be ruled out. However, in order to convict, the court must discount any alternative scenario adduced by the defence. The court can do so by pointing to evidence or facts and circumstances derived from that evidence that rule out the alternative version of events. But it does not have to. An alternative version of events can also be rejected by indicating why it has not been satisfactorily established, or can be dismissed as implausible. Implausible scenarios may be dismissed without extensive explanation (explicit refutation).
The question is therefore whether the alternative interpretation of intercepted conversations adduced by Pulatov and the defence is plausible. As far as the Public Prosecution Service is concerned, the answer is no. We will now discuss in more detail Pulatov’s statements and the first deception theory.
188.8.131.52.1 Pulatov’s statements
184.108.40.206.1.1 Witness not interviewed
We would point out first and foremost that the defendant Pulatov never agreed to be interviewed directly. He did not make a statement to the JIT or to the Russian authorities. And neither the court, the examining magistrate nor the Public Prosecution Service was able to question Pulatov directly, even though that is customary when a defendant is examined in a criminal case. That alone is sufficient reason not to attribute the same evidential value to his staged video statements as to a statement given by a defendant during a critical examination. If we next look at the substance of the statements, they prove implausible in terms of their content too.
For instance, in his statement of October 2020, Pulatov did not provide full disclosure. Contrary to what the defence states, not all of the Public Prosecution Service’s written questions were put to Pulatov and answered. Questions which, according to the defence, were too privacy-sensitive were not put to Pulatov. As regards a number of questions that concerned other defendants, the defence considered it inappropriate to put them to Pulatov, as he is not a witness in the cases of the co-defendants. Only one of those questions was put to him. Pulatov did not avail himself of the opportunity to answer questions in the setting indicated by the court. Pulatov is therefore keeping his cards close to his chest.
220.127.116.11.2 Pulatov’s statements are inconsistent
Even when Pulatov does give statements, he is not consistent. In his first video statement of February 2020, Pulatov said that he had nothing to do with a Buk system and never spoke about one. Eight months later, Pulatov himself undermined this statement. In his statement of October 2020, Pulatov, in summary, suddenly does acknowledge that a Buk was discussed in phone conversations. However, according to him this was disinformation. He knows nothing about the use of a Buk TELAR in the Donbas. Pulatov states that in July 2014 he also spread disinformation about a Strela-10 missile system.
Contrary to what the defence argues, this second statement by Pulatov clearly contradicts the first. The first assertion that no Buk was discussed in intercepted conversations and the second assertion that a Buk was discussed are diametrically opposed and mutually exclusive. When he gave his first statement in February 2020, the defendant already knew what he was accused of. There was nothing whatsoever to prevent Pulatov from immediately acknowledging that a Buk system was discussed, but that it was part of a disinformation effort. What’s more, given the severity of the accusation it would have made more sense to give that explanation immediately. The fact that the defendant did not produce this explanation until eight months later, once he and his counsel had familiarised themselves with the entire case file, undermines his credibility.
18.104.22.168.3 Pulatov does not substantiate
The defendant does not substantiate his later disinformation story either. In October 2020, Pulatov discussed only one alleged disinformation conversation with his counsel. This conversation was mentioned again during the defence’s statement of the case. This concerns the conversation of 16 July 2014 at 18:12, mentioned in our closing speech, between Pulatov and Dubinskiy about a non-operational Strela, the need for air-defence systems with a greater range, and losses suffered by the separatists. We stand by the view we presented in our closing speech: that this conversation was not disinformation. We substantiated this extensively, with reference to many more sources than the defence cites in its statement of the case. Pulatov’s statement does nothing to detract from this.
22.214.171.124.4 Pulatov mentions a ‘Buk’ after MH17 had been shot down
Besides the lack of substantiation, there is another reason to doubt this deception theory. This is the fact that Pulatov himself mentioned a ‘Buk’ after MH17 had been shot down. He did this in the intercepted conversation he had with Kharchenko on 17 July 2014 at 18:44. Here Pulatov talks about ‘our Buk’. In his conversation with Dubinskiy at 19:52, Pulatov says in response to the question ‘Did our Buk fire or not?’ that ‘the Buk [had] shot down a Sushka after the Sushka had shot down the Boeing.’ No one was being misled in these conversations. If Pulatov was speaking about a real Buk in the conversations following the downing of MH17, why would he have been speaking about a non-existent Buk before that? That is inconceivable, and Pulatov has not explained to us how these two versions of events can be reconciled.
The intercepted conversations were not efforts at deception. The deception theory initially put forward by the defence, i.e. that the conversations were about a non-existent Buk TELAR, is implausible, and the Public Prosecution Service dismisses it. There was a Buk TELAR, and there was a need for one.
126.96.36.199 Strela-10 versus Buk TELAR as air defence
Pulatov’s third video statement, recorded two years later, was adduced in order to substantiate the argument that there was no need for a Buk TELAR because their Strela-10 provided sufficient air-defence capacity. The defence submitted the video statement with its statement of the case and it was not shown in court.
188.8.131.52.1 ‘Non-operational’ Strela-10 as Pulatov’s deception strategy
We have indicated previously that there is sufficient evidence that the Strela-10 that was discussed in the conversation of 16 July 2014 at 18:12 was non-operational. In view of this, Pulatov’s deception theory – that he was merely pretending to the enemy that the Strela-10 was non-operational, but that in fact it was in good working order – is implausible. We will not discuss the Strela-10 deception strategy in any further detail, because this case is not concerned with whether or not there was a non-operational Strela-10. The possibility of deploying a Strela-10 on 16 and 17 July 2014 is, after all, a separate issue from the need to deploy a Buk TELAR. The court has already pointed this out too. It is therefore not necessary to consult someone with expertise or experience regarding the Strela-10 deception scenario put forward by Pulatov, as the defence would like.
184.108.40.206.2 The need for a Buk TELAR
The Public Prosecution Service disputes the defence’s argument that the DPR’s own air defence was adequate. In our closing speech we indicated that in July 2014 there was indeed a need for a heavier air-defence system, which could be used to shoot down aircraft at a higher altitude.
The intercepted conversations mentioned by the defence in its statement of the case do not refute the conclusion that on 16 and 17 July 2014 the separatists needed an air-defence system that could shoot down aircraft at a higher altitude. On the contrary, they confirm it.
The intercepted conversation of 11:43 on 16 July 2014 was about a Sushka – flying at high altitude and out of range – that had probably carried out an air strike on Marinovka. Units led by Kharchenko were fighting there, so it is irrelevant that one of the people in the phone conversation was in the Luhansk region according to the phone’s Cell ID. It is clear from the sentence, in the conversation of 11:50 that day with Koreets, describing how the Suskha hit Saur-Mogila from ‘very high altitude’, that the DPR was being targeted by aircraft flying at higher altitudes. As we have said, the conversation of 18:12 was not a disinformation effort. This means that the conversation of 18:55 about dead and wounded that the defence mentioned in connection with it was not a disinformation effort either. And it follows from that conversation of 18:55 and the conversation of 19:09 on 16 July 2014 that Dubinskiy was informed about air strikes by Sushkas from altitudes of between 5 and 7 kilometres. With its maximum altitude range of 3,500 metres, a Strela-10 cannot counter that, even if it is in working order. A Buk TELAR can. As we have noted, in that last conversation Dubinskiy said that it would be good if he could manage to get a Buk in the morning. Contrary to what the defence says, it does not matter that Pulatov did not take part in these conversations, because Pulatov worked closely with Dubinskiy and they kept each other informed about the fighting. In any case, Pulatov was aware of the high-altitude air strikes, as is clear from the conversations of 13:26 and 18:12. In the conversation of 13:26 Kharchenko says to Pulatov that ‘a Sushka is moving in there, fuck... is fucking us from above!’ and ‘They don’t let us take a breath! It’s right there taking off to the sky again! It has got us fucking out!’ We are playing the recording of this conversation because the audible emotion makes it clear how serious the situation is. In the conversation of 18:12 Pulatov attributes the losses to the air strikes and artillery fire. By his own account, the air strikes came from high altitude, beyond the range of their systems. Pulatov then says what they need: ‘long-range artillery and a decent air-defence system’. It is clear enough from this that the defendants, including Pulatov, were insufficiently able to counter air strikes from high altitude. Contrary to what the defence argues, there is a factual basis for this conclusion by the Public Prosecution Service. And there is no basis whatsoever for Pulatov’s assertion that there was no need for a Buk TELAR.
On 16 July 2014 there was a need for heavier air-defence systems. Whether it makes sense logically or not, on 17 July 2014 there was actually a Buk TELAR in Donetsk.
In view of this fact alone, the other theories put forward by the defence can be dismissed. Nevertheless, we will discuss the details of these theories in order to demonstrate that they do not hold water.
220.127.116.11 Non-operational Buk TELAR as part of military deception
At the hearing on 18 March 2022, the defence presented an interpretation of events in which Pulatov thinks that the phone conversations of 17 July 2014, particularly those of Dubinskiy and Kharchenko (which appear to be about the transport of a Buk), are part of a military strategic plan. A strategy of military deception on the part of Dubinskiy and Kharchenko in order to make the Ukrainian armed forces think that there is an operational Buk TELAR, while in fact there is not. The aim being deterrence aimed at the Ukrainian armed forces.
18.104.22.168.1 No statement of Pulatov
The Public Prosecution Service does not see even a hint of plausibility in this second deception theory. This theory has been adduced by the defence and was not mentioned by Pulatov himself in a video statement. Authorised counsel do not act as the defendant’s representatives, so their statements cannot be taken as statements by the defendant. This rule ensures that statements and announcements made by counsel cannot be used to the detriment of the defendant, for instance as evidence against him. This rule also means that counsel cannot present what they have understood Pulatov to mean or to have explained to them as a statement by Pulatov. The possibility that a non-operational Buk was present in the area is therefore only a theoretical possibility suggested by the defence, and is not based on a statement by the defendant Pulatov. That alone is sufficient reason to dismiss this theory as implausible.
22.214.171.124.2 No substantiation
In addition, this interpretation of the intercepted conversations is also insufficiently substantiated.
The Public Prosecution Service sees no substantiation in the content of the alleged ‘deception’ phone conversations referred to in the footnote by the defence. Even if these conversations of 2 and 13 July 2014 with words such as ‘toys’ and ‘boxes’ were to contain disinformation, it cannot be inferred from this that the other three conversations referred to by the defence, of 17 July 2014, which contain the word ‘Buk’, support this second deception theory concerning a non-operational Buk TELAR. Such a claim lacks any coherence.
We also do not see how the conversation of 16:30 on 17 July 2014, referred to by the defence, could support this theory. This is the conversation in which it is apparent that ‘Kim’ is waiting for an attack, that it is calm, and that they are ready, and the other speaker responds with ‘Well, thank God. Maybe simply intercepted the conversations.’ No ‘military deception’ can be inferred from this.
The interview with Dubinskiy, referred to by the defence in their statement of the case, does not support the second deception theory either. At most it proves a general point that disinformation is disseminated in intercepted conversations. However, the fact that disinformation is spread in times of war is not in dispute.
In the statement by witness V54, who upon seeing the Buk thought it had been brought in to make an impression, in the deterrent characteristics of the Buk and in the explanations given by witnesses G9462 and RC02 about the ‘protect’ tasks of a Buk TELAR, the defence sees signs that support the possibility that a non-operational TELAR was deployed as part of Dubinskiy and Kharchenko’s deception strategy to deter the enemy. Non-operational materiel was commonly deployed as a deterrent, including at Kharchenko’s initiative. According to the defence.
The fact that the defence itself is talking about a ‘possibility’ indicates that this is no more than a throwaway suggestion. These are not even any indications, never mind concrete grounds, for the suggestion that, as part of a plan by Dubinskiy and Kharchenko, on and around 17 July 2014 a non-operational Buk TELAR was driving around in the DPR in order to deter the enemy.
It is true that Kharchenko and Dubinskiy were not interviewed after this was requested by the defence. But it should be noted that the deception theory about a non-operational Buk TELAR did not form the basis for the witness requests. This theory was not put forward until the defence stated its case, that is, once it had studied the entire case file. This is such a late stage to submit such a theory that it can be given no credence. Besides, it does not tie in with the other evidence in the case file, which points to a Buk TELAR actually having been used.
The defence also submits that it is not apparent from the comparative image analysis (done to establish the origin of the TELAR) that the TELAR was a Russian TELAR of the 53rd Brigade, and that on the basis of that analysis it cannot be ruled out that it was a different, non-operational TELAR, for instance a Ukrainian one.
We would first point out that the mere presence in Ukraine of TELARs or TELs, operational or otherwise, cannot in any way whatsoever bolster the credibility of the ‘deception’ theory, i.e. that the defendants were in possession of a non-operational Buk TELAR. In its closing speech, the Public Prosecution Service set out at length the process by which the Buk TELAR was identified. But far more importantly, it is clear from evidence other than that used to identify the vehicle that the TELAR in the defendants’ possession came from the Russian Federation, that it was used to shoot down an aircraft and that after downing the aircraft it was taken back to the Russian Federation. There is therefore sufficient evidence that MH17 was downed by a Russian Buk TELAR. Conversely, there is no concrete evidence whatsoever that a different Buk TELAR was used, much less a non-operational TELAR.
The second theory put forward by the defence, that of a non-operational Buk TELAR, should be dismissed as utterly implausible.
126.96.36.199 Operational TELAR was not used
That brings us to the last theory about the Buk TELAR presented to the court by the defence. The defence paints a picture of the course of events on and around 17 July 2014, and concludes by asking whether it could perhaps have been the case that there might have been an operational Buk TELAR in the Snizhne-Saur-Mogila area, but that it left again without having been used.
188.8.131.52.1 Pulatov finds it ‘absurd’
As we said earlier, a lawyer cannot testify on behalf of their client. The defence’s third theory, i.e. that the Buk TELAR was not used, is even more far fetched. Here, counsel has outlined a theory that even their client considers ‘absurd’. A theory that the defendant himself – with all the military expertise that the defence has attributed to him – considers utterly implausible can never produce a plausible alternative scenario. Furthermore, this theory contradicts the overwhelming evidence for the launch of a missile by the defendants’ Buk TELAR, as submitted in the closing speech.
The defence’s third theory, i.e. that the defendants’ Buk TELAR did not fire a missile, should be dismissed.
The defence has not satisfactorily established that the conversations that the Public Prosecution Service considers relevant to the evidence contain disinformation. The defence has not succeeded in making the various contradictory alternative theories about the Buk TELAR plausible. This means that, following this part of the defence’s statement of the case, the Public Prosecution Service’s main scenario, i.e. that on 17 July 2014 the Buk TELAR launched a Buk missile which hit flight MH17, still stands.
4.3.3 Other evidence for the launch location
That concludes our discussion of Pulatov’s interpretation of the intercepted conversations. In addition, the defence has argued for five days that the other evidence regarding the launch location in the indictment falls short. Their argument rests on three pillars. The first is that all the tactical evidence of a launch from the vicinity of Pervomaiskyi is unreliable and should be excluded from the evidence. The second is that the pattern of the damage to MH17 cannot be reconciled with a launch from the vicinity of Pervomaiskyi. In other words, that the agricultural field near Pervomaiskyi cannot be the launch location. The third pillar is the notion that another scenario is plausible and cannot be ruled out by the available evidence, i.e. the scenario that a Ukrainian TELAR launched a Buk missile, from the vicinity of Zaroshchenske, at an Air India flight, after which MH17 was hit.
It will become clear from our response that all three pillars are built on shifting sand, and do not stand up to scrutiny. We will discuss the arguments put forward in this connection, starting with the evidence the defence believes should be excluded because it is allegedly unreliable.
184.108.40.206 Incriminating evidence in support of launch location unreliable
We will start with the defence’s argument that the incriminating evidence in support of a launch from an agricultural field near Pervomaiskyi is unreliable. They claim that there are various reasons for this, which support and reinforce each other.
One of those reasons is the statement by eyewitness M58. M58 is a Russian national. In September 2018 he contacted the JIT by email, stating that he witnessed the downing of ‘Boeing MH17’ by a Buk. He was subsequently interviewed several times: by the investigation team, by the examining magistrate as part of the preliminary investigation, and then another time by the examining magistrate in the presence of the defence and the Public Prosecution Service. The last interview took four full days.
In summary, M58 stated that in mid-July 2014 he was involved in the fighting, on the side of the DPR. The day before MH17 was shot down, he and several other fighters arrived at the agricultural field near Pervomaiskyi. On the day of the downing of MH17, he saw a large aircraft shot down from this field by a Buk TELAR. At first, everyone was happy because they thought they had shot down an enemy aircraft. This changed once it became clear that the downed aircraft was a civilian passenger jet.
According to the defence, M58’s statements are unreliable and for that reason cannot be used in evidence. The defence claims that his statements are implausible, contain internal contradictions, are demonstrably incorrect or cannot possibly be correct, and are unverifiable. Or that they were influenced by the interviewers’ questions or by information provided during interviews, press conferences or from other sources. The defence bases this on a report by a Dutch legal psychologist who assessed M58’s statements.
We will first discuss the psychologist’s report. We will then once again discuss our own assessment of M58’s reliability and comment on several of the defence’s claims.
220.127.116.11.1.1 Legal psychologist’s report
The defence asked the legal psychologist if he could assess the quality of the interviews, as well as the ‘the results of those interviews in terms of consistency and validity’. This request led to a substantial report. The conclusion of that report was that the legal psychologist found more indications that M58 had made his statements on grounds other than his memory, than that his statement was a true reflection of what he had seen and heard.
This legal psychologist is not an unknown quantity. He has issued expert reports in various criminal cases and works for an institution (the Exceptional Sex Offences National Expertise Group) that advises the police and the Public Prosecution Service. There was therefore every reason to take his report seriously,
Part of the report was certainly useful in assessing M58’s statement, i.e. the general part, in which the psychologist provides an overview of the available academic literature. For instance, his discussion of how memories are formed is certainly of importance. In that section, the psychologist points out that gaps between observations are often filled in, in order to tell a story. This is done by drawing logical conclusions (‘logical inferences’) and by means of one’s own interpretation. The legal psychologist also points out that, as a rule, inconsistencies between consecutive statements do occur, and do not in themselves suggest a statement is inaccurate. If a witness tells the same story over and over, it can in fact be a sign that he is lying. Only in the event of larger inconsistencies should there be any concern regarding the veracity of the statements. These phenomena are widely known and judges in criminal courts take them into account when assessing witness statements.
We therefore do not find fault with this general assessment framework provided by the legal psychologist. We take a different view, however, of his own assessment of M58’s statements. On closer inspection of that assessment, we were forced to conclude that the author of the report mainly saw it as his task to demonstrate that the police had not done its job properly, rather than to assess the actual interviews with an open mind and an unprejudiced outlook. The legal psychologist also appears to be more focused on establishing that M58’s statements are unreliable than on evaluating the witness’s memories against his own assessment framework and human standards. The legal psychologist reports incorrectly on the course of events during the interviews and on the answers or information M58 provided. In addition, in his final conclusion the author of the report takes it upon himself to pass judgment on the credibility of M58’s statements, whereas in the introduction to his report he says specifically that it is not his place to do so, because that is the court’s remit.
This is not the first time that this legal psychologist has shown prejudice against the police and given an incorrect account of the documents on which he has based a report. In 2017 he issued a report on statements made by a murder suspect. Before the murder suspect was arrested, he had admitted to other people that he had murdered someone and was having a crisis of conscience. Later he was arrested for that murder and denied it in various police interviews. He was subsequently released. A short while after his release he turned himself in to the police, stating immediately that he had indeed shot the victim dead. According to the legal psychologist, the police had steered him towards that confession. ‘s-Hertogenbosch Court of Appeal made short shrift of that conclusion: according to the appeal court this was not apparent from the interviews on which the expert based his conclusion. The appeal court also considered in this case that ‘it appears that the expert has gradually come to see it more as his task to demonstrate that the police had done shoddy work in the investigation of this case, rather than concentrating on the question at the centre of the requested assessment’. In its judgment, the appeal court gave various examples of prejudice against the police on the part of the legal psychologist and factual errors in his report. The appeal court noted that this overview was ‘not exhaustive’. On appeal in cassation the Supreme Court upheld this assessment.
We can see the same thing in this psychologist’s report on M58’s statements. Like ‘s‑Hertogenbosch Court of Appeal in that other case, we will give several examples, and we, too, would point out that this overview is not exhaustive.
First we would mention the incomplete and even suggestive account of the email in which M58 made contact with the investigation team for the first time. According to the legal psychologist, M58 wrote that ‘he was in the vicinity of the village of Snizhne at a checkpoint, where there was no gunfire, when the aircraft was shot down. “In the shade of the trees stood a vehicle, which later turned out to be a Buk”’. That concludes the summary of M58’s first message. In fact, M58 wrote in this first contact with the police that he was directed to other positions, where it was calm and there was no gunfire. After mentioning that there was a Buk in the shade of the trees, he wrote that they were in the vicinity of Snizhne, that there was a checkpoint there, that an aircraft flew overhead and that the Buk shot the aircraft down. He also wrote that ‘our people of the FSB’ were in that Buk and that they had downed a military aircraft, but that several hours later it turned out to be a civilian aircraft. In short, the legal psychologist failed to mention the most important information in M58’s email – his observation of the downing by a Buk of an aircraft that later turned out to be a civilian aircraft – and thus created the impression that M58 wrote that there was no gunfire at the location where he was.
Following his email, M58 was interviewed. With regard to that first interview, the legal psychologist argues that the interviewer did not ask M58 to tell the story freely, but proceeded to ask direct questions immediately. This is not true. The first substantial question of the interview was: ‘Perhaps, then, you could tell me in your own words where you were, what you saw, what you heard; in other words, you can now start telling your own story. And partly on the basis of your story, I might ask you some questions for clarification.’
The legal psychologist also argues that the interviewer assumed things during this interview that the witness did not say. He writes, for example, that the interviewer assumed that the witness was standing in the field from where the missile was allegedly launched. The witness did not say this, nor did the interviewer assume it. In the interview, the witness talked about a Buk in the field. And this was verified by the interviewer. ‘OK. Do I understand it correctly that it, as you say, was in the field (...)?’ By ‘it’ the interviewer therefore meant the Buk mentioned earlier by M58.
Regarding M58’s second interview, the legal psychologist writes that this began with an incorrect summary of the first interview. The legal psychologist quotes the interviewer’s summary and then writes that it cannot be ruled out that this was said by M58, but that in that case none of it was put in writing. As an example, the psychologist claims that the name ‘Dixon’ did not come up in the first interview. However, in response to the question of who his leader was, M58 responded as follows in the first interview: ‘The leader of our reconnaissance group was Dikson/Dixon, that is his call sign.’ In a footnote we have included the full summary of the first interview, including the sources for the various elements of that summary. Anyone who claims that none of the content of the summary was recorded in writing has not read that first statement. The legal psychologist’s suggestion that the summary mainly contained new information that the interviewer had provided to M58 is not supported by the underlying documents.
The legal psychologist then proceeds to argue that the third interview began with a spontaneous amendment of the witness’s story. He claims that this statement ‘differs drastically’ from the previous statement. Later the psychologist speaks about ‘changes in dribs and drabs’. He claims that it is unknown why the witness came up with these additions and that the witness was not asked about the reason. We do not agree with this view either. In the second interview it was explained to M58 that his statement had to be verifiable. He was asked to give further information, such as names, phone numbers and/or other contact details of fellow fighters, his own phone numbers, photos, etc. So M58 was made to think. This led to M58 providing additional information to the JIT between the second and third interviews (and later as well). Information that had been requested, such as contact details of fellow fighters and his own phone number from 2014. He was also asked to give additional answers to questions asked during the interview and to mention anything he had remembered in the meantime. We therefore do not agree with the psychologist’s assertion that it is not known why the witness came up with these additions. On the contrary, we see from the messages that, prompted by the questions during the interview, M58 digs deeper and deeper into his memory and thus remembers more and more. This indeed resulted in additions to the previous statements; the picture becomes clearer and clearer and gives us more and more insight into M58’s behaviour and movements while he was in the DPR.
However, the legal psychologist appears to have lost sight completely of what M58 was asked and what he stated in response. At the end of the fourth interview, the interviewer said: ‘It would be valuable to me if you would write down for yourself as many specifics as possible of what you did that day. Including details (...) Maybe you could think about it as much as possible and write it down for yourself, because anything could be of importance to us.’ In several sections of his report, the legal psychologist writes that M58 allegedly stated earlier that he had made notes and that it had been agreed that he would take photos of the notes and send them. In the first three interviews, the word ‘notes’ does not occur even once. Nor is there anything in the statements from which it could be inferred that M58 was asked to take photos of these previously made notes. M58 does, however, refer in his third interview to details he has subsequently remembered, which he has written down, and to photos that he has sent to the investigation team. So he is referring there to the information which he sent to the investigation team (by email or chat) separately from the interviews, and which is in the legal psychologist’s possession.
Nevertheless, the psychologist writes that he did not receive M58’s ‘notes’, thus suggesting at the very least that M58 has not kept his promises. Later on he even writes that this is ‘the first of two major contradictions in M58’s statements’: first talking about notes and later denying they were even made. However, the latter point refers to the negative response to the examining magistrate’s question whether M58 kept a diary. The picture being created here of M58 does not reflect the actual course of events during the interviews.
The second alleged major contradiction in M58’s statements is that he denied having any sources of knowledge other than his memory. For instance, he is alleged to have said in his third interview that he did not look up any information and did not know about Bellingcat or the JIT. But M58 said no such thing. M58 was asked whether everything he had related was from his own memory or whether he had, for instance, consulted the internet or read reports by, for instance, Bellingcat, Novaya Gazeta or The Insider. M58’s literal response was: ‘No, I didn’t read it. I didn’t even know it was written anywhere. I know about your investigation into this case in the Netherlands.’ So M58 says he has not read any reports by Bellingcat, Novaya Gazeta and The Insider, but does know of the existence of the Dutch investigation. And contrary to what the psychologist claims, M58 made no secret of the fact that he had also seen online publications and videos relating to MH17. Not only did he mention this in interviews, but during interviews he also searched for videos and information that he had seen earlier. So in fact he was very open about what he had seen and read on the internet. The ‘second major contradiction’ claimed by the legal psychologist therefore does not exist.
In relation to a different interview (Primo-14140), the legal psychologist writes that M58 spoke about ‘the crossroads and the events there on 14 July, when he arrived’. The psychologist claims that the interviewer kept trying to get M58 to make a statement about that crossroads on 17 July 2014. Here, again, the psychologist is mistaken. In not one of his many statements does M58 say that he was at the crossroads on 14 July 2014. When he spoke about 14 July, M58 was talking about Marinovka.
And when M58 talked about a bus with locals, it was in relation to ‘the day when MH17 was shot down’ and ‘the crossroads’. He even drew this bus at the crossroads. The fact that the legal psychologist wonders whether the bus carrying locals arrived on 14 or 17 July 2014 and remarks that no further questions were asked about this point says more about the psychologist than about the interviewers or M58.
The legal psychologist also mentions annoyances on the part of the interviewers. We do not know where the psychologist gets this idea.
The legal psychologist also claims that the interviewers doubted M58’s credibility. M58 allegedly often only remembered things after he had been provided with information. He mentions as an example that one of the interviewers said that it concerned him that M58 only remembered things once they had provided him with information. M58 responds as follows: ‘You see, if you say something, then something or someone comes back into my memory.’ This passage is about the substance of a chat exchange that M58 had had four years earlier with DPR fighter Ryazan. A chat of which M58 had no active memories anyway, as is clear if you read the entire statement. Seven pages earlier, M58 was asked whether he had had any contact with Ryazan. M58 confirms that he had been in contact with Ryazan, possibly via VK: he was able to find him on VK. So perhaps there had been an exchange of messages. But he does not know for certain. Then M58 was confronted with a chat exchange that he had indeed had via VK, and he was asked questions about the substance of that chat, which he then answered. The interviewers’ comment thus does not stem from doubts about M58’s credibility at all. The interviewers merely preferred not to give the witness any information, so that he could make statements based on his own knowledge. The legal psychologist is reading things into the statement that are not there.
And he is reading things that are not in the text. For instance, the legal psychologist writes that he was struck by the following remark made by the team leader: ‘In the past few days you were offered money by [redacted] or given any other kind of undertaking if you agreed to make that statement?’ Whereas the following was said during the interview: ‘In the past few days you were interviewed by [redacted]. Have they ever made promises or offered money or given you any other kind of undertaking if you agreed to make this statement?’ A question that M58 answers with ‘no’, but that is beside the point here. The point is that with this ‘striking’ (according to him) but incomplete quote, the legal psychologist is leaving room for the interpretation that before the interview M58 was offered money or given an undertaking in exchange for making a statement. What then, according to the legal psychologist, is so ‘striking’ about this remark by the team leader, who in fact was checking whether M58 was indeed making his statement completely freely and at his own initiative, is not explained in the report. But this does amplify the suggestion of errors in the interview.
And this is not the only careless inaccuracy we have found. The report contains several other factual errors and assumptions, which have no basis in the underlying documents. We have listed these in Appendix I.
Given the many factual errors and assumptions identified, the report can in no way whatsoever support the defence’ s position that M58’s statements are unreliable.
18.104.22.168.1.2 Reliability of M58
If we ourselves look at M58’s statements, partly on the basis of the academic literature referred to by the legal psychologist and in relation to the other information in the case file, we can only conclude that they are reliable.
First we will look – in line with the court’s assessment framework – at the witness as a person. We can establish that M58 was fighting on the side of the DPR and that he has remained as pro-Russian as ever, including during his interviews. To this day he remains friends with other DPR fighters. M58 has stated that he does not trust Ukraine, but that he wants people to know the truth. In addition, making a statement has had huge consequences for him. His own wife considered him a traitor and his marriage has now ended. M58 is in a witness protection programme and fears for his safety. In other words, it was not in his interest at all to make a statement. In fact, by doing so he had nothing to gain and everything to lose.
Second, there is the manner in which his statement came about. The point of departure was his first email to the investigation team. In that email, M58 mentioned all the key elements of his observations: that he had watched, at a checkpoint in the vicinity of Snizhne, as a Buk shot down an aircraft, that at first it was said that ‘their people’ had shot down a military aircraft, but a few hours later it turned out to be a civilian aircraft. He was questioned at length about these elements. The interviews were documented in great detail. There were no insurmountable translation or communication problems. In some of the interviews, more closed questions were asked, but they did not steer M58 in a new direction. These questions were often prompted by the interviewer’s desire not to let M58 elaborate unnecessarily, and they tied in with what he had already stated. It should be borne in mind that the team’s initial contacts with M58 had to take place via a phone connection. These conversations could not last very long for security reasons, and they were sometimes cut off due to technical problems.
We agree with the defence that M58 could have gained knowledge about the circumstances surrounding the downing of flight MH17 from public sources before he emailed the investigation team and made his statement. Despite the possibility of prior influencing, however, we mainly see facts that suggest the contrary. M58’s statement simply contains too many striking details and details that differ from those public sources, which can only be considered authentic. Take, for instance, his statement that, like the other DPR fighters, at first he was happy that they had shot down a military aircraft and a number of them had driven off to the place where the aircraft had come down, but that a few hours later they returned in a sombre mood, that one of them told M58 that there were children’s toys everywhere and that everyone was devastated by that. During the interviews, M58 still became emotional when he talked about those toys. It is also noteworthy that, despite all the news reports about MH17, M58 stated that by his recollection this happened on 16 July 2014 and that he had difficulty drawing the launch location clearly on a map. These elements also counter the notion that he was subject to outside influence. Before joining the DPR, M58 had never been in the area in question in eastern Ukraine and he stated that he has difficulty with directions. By his recollection it was south of Snizhne in any case. He mentioned that town back when he sent his email, and in his first interview he added: ‘I don’t know what that area is called where we were, but it was below the town of Snizhne. There was a checkpoint there.’ Here speaks a self-critical witness who does not want to state anything beyond what he can remember. It is also noteworthy that M58 continues to maintain that he saw the missile hit the aircraft himself, while it is public knowledge that MH17 was flying at an altitude of 10 kilometres and was therefore beyond his field of vision. That memory can only be a mistake; why, otherwise, would M58 lie so demonstrably about this? A mistake, possibly caused by the phenomenon of logical inference, as mentioned by the legal psychologist: M58 saw a Buk missile being launched and was confronted with the consequences of the aircraft having been downed. M58 filled in the gap between those observations – i.e. that MH17 was hit at an altitude of 10 kilometres – in his memory himself. This is an entirely human – and scientifically recognised – phenomenon. It is by no means a sign of a ‘false memory’, as the defence puts it. Nor does it detract from the rest of his statement. On the contrary, it confirms that M58 made his statement on the basis of his own, human, fallible memory, and is another indication that he was not subjected to outside influence.
Third, various specific elements of M58’s statement can be assessed against other, objective sources. This process mainly serves to confirm his statement. For instance, M58 stated that sometimes he was allowed to use the phones of two fellow fighters named Ivan and Arthur. These are people who play no role whatsoever in our investigation and of whom no intercepted conversations were ever posted online. M58 provided the phone numbers, and when the telecom data was checked it emerged that Ivan and Arthur did indeed incidentally show up as B parties in tapped conversations.
Fourth, M58’s statements were consistent on the most important points, throughout a great many interviews. The key elements of his observations remain the same: that he had watched, at a checkpoint in the vicinity of Snizhne, as a Buk shot down an aircraft, that at first it was said that ‘their people’ had shot down a military aircraft, but a few hours later it turned out to be a civilian aircraft. The fact that during all those interviews with different people and on different subjects M58 sometimes gave differing answers on minor points is only human. This too is a scientifically recognised phenomenon, which does not detract from the reliability of his statement. During M58’s last witness examination, in the presence of the defence and the Public Prosecution Service, he mentioned how, due to the passage of time, he was starting to forget things and that he could no longer always confirm things that he had been able to remember during earlier interviews. In another case he wondered whether he had perhaps filled in certain gaps himself. For instance, during his last examination M58 stated the following about the agricultural field where he had seen the launch: ‘I told the police it was burnt, scorched, but actually I think it wasn’t. I think I imagined that.’ It’s hard to imagine a witness being more candid. If there is anything at all that points to M58 not wanting to say anything that he truly cannot remember, it is this passage. This again makes clear how self-critical this witness is.
In summary, the Public Prosecution Service considers M58’s statement to be reliable. There is no reason whatsoever to cast doubt on M58’s statement, much less to exclude that statement from the evidence, as the defence is requesting. This statement is convincing in itself and, moreover, is amply supported by other sources of evidence. The court could decide not to use M58’s statement in evidence because there is more than enough other evidence that MH17 was shot down by a Buk missile from an agricultural field near Pervomaiskyi, but not because the statement is not credible. There are no grounds for that whatsoever.
This brings us to witness X48. In his statement this witness said that on 17 July 2014 he saw an aircraft being shot down from the agricultural field near Pervomaiskyi with a Buk system.
22.214.171.124.2.1 Protecting the identity of X48
The identity of this witness has been shielded for his protection. To reiterate: for simplicity’s sake, we refer to this witness as ‘he’, but this says nothing about this person’s actual sex. There are good reasons for protecting his identity. Even early on in the investigation it was clear that the Russian state had no compunction about actively seeking to influence the direction taken by the investigation. Over the past few years, moreover, incidents in various European countries have made clear that the Russian security services FSB and GRU have a long reach. It is widely known that these agencies have the ability to hack into computers, tap communication lines and access countless information systems. Witnesses in this case who are willing to talk about matters that diverge from the narrative espoused by armed groups in eastern Ukraine and by the Russian state have reason to fear reprisals. So there are good grounds for taking far-reaching measures to protect the identity of witnesses like X48.
This is the task of the examining magistrate. Even we, the prosecutors in this case, do not know what X48 told the examining magistrate or what elements of his statement had to be redacted in order to ensure his safety. It is not difficult to imagine why the revelation of certain information could endanger witnesses like X48. For example, it was necessary to keep the date of the examination secret because the knowledge of that date could conceivably make it easier to trace and identify X48, possibly with the help of transport and border-control data. Even without any knowledge of the unredacted version of the official record of X48’s examination, we can imagine why the examining magistrate blacked out additional information about the individuals at the checkpoint (which the record of the examination refers to as a ‘blockade post’). Consider a scenario you might encounter in a Dutch criminal case: a person sitting with friends at an outdoor cafe happens to witness an underworld assassination. Simply knowing the name of the cafe and the number of friends who were there with the witness could enable someone to identify the witness. The greater the pool of potential witnesses, the smaller the chance of identifying an individual witness who has made a statement. In this scenario the examining magistrate must decide whether parts of the witness statement, such as the name and location of the cafe and the size of the witness’s group of friends, should be redacted or not. We believe this should be understandable to anyone.
Yet the defence finds it ‘impossible to comprehend’ why the number of individuals with whom X48 was standing at the checkpoint should need to be redacted (part IV.III, 24 March 2022, marginal no. 357). Once again, the defence has shown a lack of understanding when it comes to the security measures that are unfortunately necessary in this case. We have noted this before. At that time the public prosecutor offered to discuss this matter in general terms with the defence team out of court. The defence did not accept this offer. Instead, in its statement of the case, it showed the court a redacted passage of X48’s statement, which had mistakenly been shared with the defence lawyers by the examining magistrate, and discussed it in detail in open court. In doing so the defence took security risks that it was in no position to assess the implications of without any knowledge of X48’s full statement, identity and background, and which it should have discussed beforehand with the examining magistrate, who does have such knowledge.
126.96.36.199.2.2 Excluding X48’s statement from evidence?
The defence takes the position that X48’s witness statement should not be used in evidence. In support of this, the defence invokes legislative history (memorandum of oral pleading, 24 March 2022, part IV.III, marginal nos. 187-189), article 344a paragraph 1 of the Code of Criminal Procedure (marginal nos.191-197) and Article 6 of the ECHR (marginal nos. 198-426).
With regard to the legislative history, the defence is reading more into cited texts than they actually say. The quoted passage, which deals with a threatened witness who was examined in the investigation of an unknown suspect, implies only that the defence must in principle be given the opportunity to examine a witness. As previously stated, circumstances can arise that prevent such an examination from taking place. It is then up to the trial judge to assess whether the use of a statement given by a threatened witness is compatible with Article 6 of the ECHR, in the light of the criminal proceedings as a whole. The court is also obliged to provide supporting arguments in its judgment. Dutch law makes no provision for the specific exclusion from the evidence of statements by threatened witnesses that the defence had no opportunity to examine. The only statutory conditions governing the use of a statement by a threatened witness can be found in article 344a paragraph 2 of the Code of Criminal Procedure. Nor can the defence’s invocation of the first paragraph of this article succeed, because this regulation (like that laid down in article 344a paragraph 3 of the Code of Criminal Procedure, which explicitly excludes threatened witnesses) does not pertain to threatened witnesses like X48.
This leaves us with the defence’s invocation of Article 6 of the ECHR. In brief this provision of the Convention deals with the broader question of whether the defence has been granted a proper and effective opportunity to question incriminating witnesses in this trial. If a defendant has not been able to examine a particular witness because this cannot be done in a safe manner, it does not follow that the defendant has been denied a fair trial. To make that determination, it is necessary to look at the criminal proceedings as a whole, with due regard for the fact that there are other interests at stake, such as the safety of witnesses. In order to determine whether the use of X48’s statement in evidence is compatible with Pulatov’s right to a fair trial, it is necessary to determine (i) whether there was a good reason not to allow the defence to examine X48, (ii) what weight the witness statement brings to the evidence against Pulatov, in the context of all the other material produced by the investigation, and (iii) whether sufficient compensation has been offered, by way of assessing the witness’s reliability. Although the statement’s evidential value is a key aspect of this assessment, all three factors must be viewed in relation to one another.
We will consider them one by one. First there is the question of whether there were solid grounds for not allowing any further examination of X48. Plainly, there were. As we have already explained, there is a serious threat to witnesses in this case, including X48. Despite that threat, there have been in other instances in which the examining magistrate has nevertheless found a way to conduct follow-up examinations of threatened witnesses (such as S20, S40 and V7) in a safe way. This was not possible in the case of X48, however. The examining magistrate reviewed all the options, but unfortunately it proved impossible to conduct this additional examination safely. The examining magistrate explained the situation in as much detail as possible without jeopardising the safety of the witness. What all this amounts to, then, is that an additional examination could endanger X48’s safety. This witness’s rights to safety and life and the best-efforts obligation of the state of the Netherlands to protect those rights (on the basis of Articles 3 and 2 of the ECHR) carry greater weight than the defence’s interest in examining this witness. We regard this as not merely a good reason, but a compelling reason to bar such an examination.
This brings us to the second factor: the weight this witness statement brings to the evidence against Pulatov. That weight is limited. After all, the evidence supporting Pulatov’s involvement in the downing of MH17 does not rest on X48’s statement. We already mentioned this in our closing speech. There is more than enough other evidence that MH17 was shot down by a Buk missile from the field, as observed by X48. We previously presented a selection of this evidence when discussing question 1. X48’s statement does nothing more than supplement that evidence. The witness says nothing about Pulatov himself. The evidence for Pulatov’s involvement in the downing of MH17 is based on intercepted phone conversations, phone mast data and statements by Pulatov himself and his co-defendants.
Finally, there is the matter of whether the defence has been adequately compensated for its inability to investigate X48’s reliability. There is a procedural safeguard for this: because the need to ensure the safety of a threatened witness often makes it necessary to redact large portions of their statement, the examining magistrate has the statutory task of investigating the reliability of such witnesses. This involves asking questions during the examination, but not only that. For example, the examining magistrate can assess the entire witness statement, including those parts that have to be redacted for reasons of security, in the light of other information in the case file, or they can request additional information, such as telephone data, from the police. In this particular case the examining magistrate made note of the following in their report: (i) how witness X48 acted during the examination, (ii) the way in which he answered the questions put to him, (iii) the highly detailed character of his statement (and the nature of those details), (iv) the consistency of a number of those details with information in the case file and in public sources, (v) the fact that X48 was speaking about his own direct observation and that he was questioned at length about where he made those observations, (vi) the fact that the witness was capable of making that observation from his stated position or positions, (vii) the fact that the witness was good at distinguishing between his own observations and what he later came to learn, (viii) the consistency and coherence of his statement, (ix) the fact that the details of various answers did not change when he was questioned further, (x) the fact that the statement contained no internal contradictions, (xi) the fact that X48 did not amend his statement, with the exception of the make of the orange bus he had mentioned and (xii) the fact that the contact information provided was found to be accurate when investigated by the examining magistrate.
In addition, the examining magistrate actively investigated whether X48 had any personal, political or commercial interests in making the statement. The examining magistrate found no such interest or indeed any other interest that would induce the witness to lie. In addition the examining magistrate conducted a further investigation into the telephone usage referred to by X48. On the basis of telecom data that was obtained later, the examining magistrate determined that the place where X48 claimed to be on 17 July 2014 and the times when he would have been there were consistent with the data found in the witness’s telephone. In short: the investigation conducted by the examining magistrate into the witness’s reliability was exceptionally thorough and their report of this investigation offers the defence enough opportunities to come to its own conclusions. This constitutes sufficient compensation for the defence’s inability to assess X48’s reliability by means of its own examination. This is why X48’s statement can be used in evidence by the court.
188.8.131.52.2.3 Reliability of X48’s statement
X48’s statement is also convincing. Firstly, after a thorough investigation of the full statement, the circumstances in which it was made and relevant telecom data, the examining magistrate found nothing that would call the witness’s reliability into question. Secondly, even in its redacted form, this statement finds ample support in the other evidence.
The defence’s objections on this front do not hold water. What they present is a caricature of the examining magistrate’s careful investigation of the witness’s reliability. For example, on the basis of the redacted, abridged statement, the defence contends that the examining magistrate ‘did not even ask how he came to know [the location of the field that served as the launch site]’ (memorandum of oral pleading, part IV.III, marginal no. 324), even though the examining magistrate explained in the official record how they had determined how the witness came to have this knowledge. The defence forgets here that the examining magistrate’s examination and X48’s statement were more extensive than the record of the examination would suggest, because various parts had to be redacted for security reasons.
Furthermore, the defence is playing a verbal shell game with X48’s statement about his observation regarding the number of Buk missiles. They claim that X48 said that there was just one missile on the Buk TELAR before it shot down MH17 (part IV.III, 24 March 2022, marginal no. 326), and that afterwards there were no more missiles on the Buk TELAR (marginal no. 328). This is a misreading of X48’s statement on the part of the defence. In his first, partially redacted statement, X48 said that he saw a ‘military vehicle carrying a green-coloured missile with a white tip’ driving in the field and that he ‘later’ heard a ‘deafening boom’, saw a ‘white smoke trail’ and heard a ‘whistling noise’. Clearly, X48 is speaking here about his observation of the launch of the Buk missile. This first statement makes no mention of his observation of the number of missiles before and after the downing of the aircraft. In his second statement to the examining magistrate he said the following about that: ‘I noticed after the explosion that a missile was missing from the Buk.’ This is very different from the words the defence is seeking to put into his mouth, namely that the only missile was now missing. In the record of the examination the examining magistrate stated that the sentence ‘I noticed that after the explosions a missile was missing from the Buk’ was taken verbatim from the original (unredacted) statement. So there can be no doubt that this is what the witness actually said. This part of the statement is formulated differently in the redacted record of his statement (‘As far as the Buk goes, I can tell you that after the explosion the missile was gone.’). This is not remarkable, because there the focus is on other details. It was not an incorrect paraphrasing of X48’s statement on this point, but at most a less clear rendering [of it]. If anything, the fact that the examining magistrate clarified this on their own initiative testifies to the care taken in this regard. The defence’s contention that this constitutes an ‘error’ on the part of the examining magistrate which undermines trust in the records is incorrect.
In addition to the number of missiles, the defence also makes much of X48’s statement about the number of people in the vicinity of the agricultural field. It claims that the witness first said that he saw ‘11 people at the checkpoint’ and then later said there were far fewer. Whatever can be said about X48’s later statement to the examining magistrate, it is impossible to claim that the numbers given are inconsistent because the witness never said he had seen ‘11 people at the checkpoint’ in the first place. According to the record, X48 was ‘together with various soldiers […] in the area around this checkpoint” and ‘in that same area […] the land was being worked with a combine harvester and grain-transport vehicles were being loaded’. So the witness is talking about a wider area, which encompasses not only the checkpoint but also the fields beyond. X48 then says he saw a military vehicle carrying missiles driving from ‘near the row of trees there onto the field’. Around this time, according to X48, there were ‘in any case eleven (11) people present in the vicinity’. In short: according to X48’s statement he saw at least 11 people in the wider area around the agricultural field from which the Buk missile was launched. According to the record X48 does not say at any point that there were “11 people at the checkpoint”, as the defence claims. This means that any comparison with X48’s subsequent statement to the examining magistrate about the number of people who were ‘at’ that checkpoint is erroneous on its face. Once again, the defence has misrepresented the facts.
This is all the more disturbing because the defence uses these misrepresentations as the basis for serious accusations with regard to the examining magistrate. On the basis of the defence’s nonsensical assertions regarding the number of missiles on the Buk TELAR mentioned by X48 and the number of people at the checkpoint, the defence suggests that the examining magistrate may have excluded other exculpatory information from the case file and contends that there is cause to doubt the accuracy of the examining magistrate’s record of the examination. Here, too, the accusations made by the defence in its statement of the case are at odds with the facts.
Finally, the defence speculates about the various reasons why X48 may have made statements contrary to the truth. In that connection it speaks about the witness’s own possible involvement in launching the missile and politically driven blog activities for a Ukrainian website, as well as his alleged torture by the SBU. These are purely speculative theories which have absolutely no basis in fact. Moreover, we know from the examining magistrate’s record that an investigation was conducted to determine whether X48 had any personal, political or commercial interests in giving a statement. No circumstances whatsoever were found that would lead the examining magistrate to doubt the witness’s reliability.
We will now conclude our discussion of this subject. The court’s use of the statement by witness X48 about the launch of a Buk missile from the agricultural field near Pervomaiskyi in evidence is not contrary to Article 6 of the ECHR, and that statement is in itself, and in conjunction with other pieces of evidence, reliable and convincing.
184.108.40.206.3 Smoke trail: photo and witnesses
Just as the statements by X48 and M58 should not be excluded as evidence, the same goes for the photos of the smoke trail, the statement by the person who took these photo’s, and witness statements relating to this smoke trail. Contrary to claims by the defence, this material can indeed be used to support the evidence for the location of the launch site. There is no reason to exclude these photos and statements as evidence. We will now address the defence’s assertions one by one, starting with the photos of the smoke trail.
220.127.116.11.3.1 Excluding the smoke trail photos as evidence
First, the defence states that the smoke trail photos should be excluded as evidence because they are ‘from’ the SBU. This is not true: the photos did not come from the SBU; they were merely given to the SBU. The identity of the person who took the photos is known, and this individual was examined as a witness by the JIT. They handed over their camera, which was examined in the Netherlands. The photos taken by this witness were also examined. No indications of manipulation were found. The photos of the smoke trail are in the form of NEF files. If NEF files are manipulated, the altered files will be saved in a different file format, while the original image will remain as an NEF file. Since the photos of the smoke trail were secured as NEF files, there can be no doubt about the authenticity of the images.
Despite this the defence says that it has ‘many’ doubts about the authenticity of the photos of the smoke trail. In support of this the defence refers to a Dutch blogger, who started the media platform Bonanza Media with a Russian journalist who previously worked for the state broadcaster Russia Today. This is a media platform that is believed to have close ties with the Russian military intelligence service (GRU) and that is allegedly being used to spread disinformation about MH17. The Public Prosecution Service puts more trust in the findings of the NFI, the KNMI and its own investigation team than in the opinions of this blogger. Those findings give no cause to doubt the authenticity of the photos and are consistent with the statement given by the person who took them. There are no grounds to exclude the photos of the smoke trail as evidence.
18.104.22.168.3.2 Excluding statements related to the smoke trail as evidence
The same goes for the statements about the smoke trail given by no fewer than eight witnesses, which specifically mention the hill Saur-Mogila and the villages of Pervomaiske and Pervomaiskyi. The defence contends that these statements must be excluded as evidence, but they adduce no serious arguments as to why.
The defence asserts that these statements are the result of impermissible pressure or duress on the part of the SBU, but they fail to substantiate such a bold allegation. Making these kinds of baseless assertions without even attempting to offer supporting evidence is nothing more than posturing. In the Netherlands this does not constitute grounds for excluding evidence.
The defence also wonders if it is a mere coincidence that all the ‘smoke trail witnesses’ were (co-)examined by the SBU. Of course it is not a coincidence; if you interview witnesses in Ukraine, it is customary for the Ukrainian police to be present. The Netherlands is no different in this respect.
The defence also claims that these witnesses were induced to give certain answers. In support of this assertion the defence quotes very selectively from part of one statement given by one witness. The purpose of examining a witness is to clearly establish what that person saw and heard. The fact that the interviewer asks follow-up questions in response to a particular answer is not evidence that they are nudging the witness towards certain answers, but rather that they are conducting a thorough examination. The idea that these follow-up questions led the witness to state that he saw a white smoke trail, as the defence contends, is also incorrect. The witness describes ‘a white-ish something, a trail of something’. The witness mentions the colour ‘white’ himself and also uses the word ‘trail’ himself. The term ‘smoke trail’ does not appear anywhere in the statement. There is nothing to suggest the witness was being led.
The defence also believes that the reports of the examinations were mostly poor, incomplete or vague. In this connection the defence wonders if the person who took the smoke trail photo mentioned the time of 16:20 himself, or whether it was one of the reporting officers who mentioned this time? This is a truly baffling question. We will quote from his statement:
Q: How did you get home from work on the day in question (17 July)?
A: I drove home and arrived at around four in the afternoon. At 16:00 I was already home.
Q: Is that when you normally get home?
A: Yes! My workday starts at 7:00 and ends at 16:00. (...)
Q: Let’s return to the explosion. What exactly did you hear?
A: I heard two explosions, the first of which was less loud than the second. The windows shook harder with the second one. (...)
Q: Had you been at home for some time by that point?
A: I’d just gotten home. That must have been at 16:10 or 16:05. And this happened around 16:20, 16:25. My wife went to the balcony with me.’
So it is the witness himself who mentions the time of 16:20.
In relation to another witness the defence wonders how he can refer to the smoke trail of a missile even though he saw only the trail and not the missile. They state that there is nothing in his statement that would explain how he came to know this. This is another statement that the defence failed to read carefully. Witness S04 states that he bumped into an acquaintance on the street who had seen a missile and told him that.
In relation to these ‘smoke trail statements’ the defence also contends that the accuracy, completeness and comprehensibility of the witnesses’ accounts leaves something to be desired. In support of this position the defence refers to a record of the transcript of the audio recording of a conversation with witness S36. This is a verbatim written account of what the investigators, the interpreter and the witness said. It is a mystery to the Public Prosecution Service why a verbatim transcript of a witness examination should warrant the exclusion of evidence.
Finally, the defence believes that the statements should not be used because the defence was not given the opportunity to assess their reliability. In making this argument, the defence ignores the fact that its own failure to provide adequate grounds for examining these witnesses led to the denial of its requests. We will confine ourselves here to referring to the court’s interlocutory judgment of 25 November 2020. The defence cannot neglect to properly substantiate a request to examine a witness and then go on to contend that the witness’s statement is inadmissible because the defence was not permitted to examine that witness. This defence, which boils down to a request to exclude material from evidence, must therefore be dismissed.
22.214.171.124.3.3 Evidential value of photos of the smoke trail and witness statements
The defence next contends that the photos and statements regarding the smoke trail have no evidential value because they differ from one another too greatly and have too few distinguishing characteristics. It cannot be ruled out that the smoke trail on the photo was caused by something other than the launch of a Buk missile.
The defence rightly observes that the statements differ from one another. This is not uncommon in criminal cases: if you examine a variety of witnesses, you end up with a variety of statements. What is incorrect is their contention that these statements are so different that they lack evidential value. This is not the case. If we look at the aforementioned eight statements about a smoke trail coming from the direction of Saur-Mogila or Pervomaiskyi, we see that the gist of all the statements is the same. This becomes clear when all the statements are considered as a whole, zooming out instead of zooming in on irrelevant details. The defence fails to note that the witnesses do not only speak of a smoke trail; they also link this trail to what they saw and heard on 17 July: the downing of a passenger aircraft. The downing of MH17 was a spectacular occurrence that made a deep impression on people, an occurrence that was quite distinct from the ‘regular’ conflict-related fighting.
Taken collectively, the witness statements offer no grounds whatsoever for an alternative cause. The witnesses themselves linked the smoke trail to the downing of an aircraft that later turned out to be MH17. The defence’s suggestion that the smoke trail mentioned by the witnesses could have a different cause besides the launch of a Buk missile, and indeed that this scenario is even plausible, is not supported by the evidence in the case file. Here too the defence fails to appreciate that the file and all the evidence it contains must be viewed as a whole and assessed on its merits. The argument that the photos of the smoke trail and related statements have no evidential value must therefore be rejected.
126.96.36.199.4 Tread marks, plough marks and white spots
This brings us to the subject of the tread marks at and around the launch site. The defence takes the position that the tread marks leading to the field do not support X48’s statement. We do not share their opinion.
188.8.131.52.4.1 Tread mark near launch site
To start with, the defence points out that the width of the tread mark is unknown. The defence claims that although the reporting officer does state that the tread mark was over three metres, he does not specify whether this number refers to its length or its width. This is a misreading of the report in question. Page 2 clearly states: ‘The tread marks referred to in this report as caterpillar treads were measured and found to have a width of over three metres…’. The ‘three metres’ thus refers to the width and not the length of the tread mark.
The defence then states that the tread mark near the launch site cannot be from a Buk TELAR, because the dimensions of the chassis of a Buk TELAR do not correspond to the dimensions of the mark in the field. ‘Marks that are approximately three metres wide simply cannot be caused by a 3.4 metre-wide TELAR,’ claims the defence.
In our introductory statement we already noted that the dimensions of the various parts of a Buk TELAR could have been described more clearly in the prosecution file. We have now clarified that the chassis of the TELAR is 3.4 metres at its widest point and that the width of the caterpillar treads is 3.25 metres. Add to that the fact that the tread marks in the field were not ‘approximately 3 metres’ but ‘over 3 metres’, and the argument that the tracks in the agricultural field cannot be from a Buk TELAR no longer holds water. What we are left with, as the Public Prosecution Service has stated, is the fact that the tread marks in the agricultural field are consistent with those of a Buk TELAR. Once again, these marks are not visible in the satellite images from 16 July 2014, but they can be seen on those of 20 July 2014. (slide)
The defence further contends that because these tread marks are identical to other tread marks that could already be seen in the vicinity on 16 July 2014, they could not be from a Buk TELAR. They offer nothing to substantiate this position. It is a mystery to us why the tracks in the agricultural field should be from the same caterpillar-tread vehicle as other tracks visible on 16 July at other locations.
184.108.40.206.5 Tactical location of the Buk TELAR
Then the defence states that the Buk TELAR could not have been fired from the launch site because the distance to the row of trees is too short. No crew would be so foolhardy as to fire a missile from this location, according to the defence. The distance to the row of trees is indeed shorter than one would expect in an ideal launch situation. But in an ideal set-up the TELAR would also be in communication with another Buk radar vehicle (TAR) and the command post. This is to say that amid the chaos of war, circumstances are not and cannot always be ideal or optimal.
Ideal or not, the agricultural field is in any case a suitable location. The field is practically the highest point in the area; there are no electricity cables nearby and – and this is a crucial point – the area is in the hands of the DPR. The row of trees in question also enhances the security of the TELAR: before and immediately after the launch the vehicle can be moved out of the enemy’s view. This is important in a combat situation where air strikes are commonplace.
The distance to the row of trees is indeed short: around 30 metres at the shortest point, and around 60 metres if you work on the principle that the TELAR is oriented toward the northwest. This can be seen here. (slide) But the distance is not excessively short. According to all the experts, a Buk missile will take an almost straight flight path to a relatively static target like MH17. The launch angle – i.e. the angle of the missile in relation to the TELAR – is determined by the TELAR, which calculates the interception point with the target and then rotates the missile so that it is pointing in that direction. Thus the question of whether the missile will hit the trees – as the defence suggested – depends on the angle from which the missile is launched. We know the altitude of MH17, and we know the distance from the launch site to the point where MH17 was hit.
Assuming that the missile travels in a straight path to the target, this information can be used to measure the launch angle. This can be seen here. (slide) The estimated angle is 22 degrees. Almaz-Antey has stated that the missile is never fired directly in the direction of the interception point, but rather at a slightly higher angle. We can therefore surmise that the launch angle is at least 22 degrees.
Let us now return to the tread marks on the ground. To determine whether a missile will hit the trees from this location, we have to take account of the height of the TELAR: 3.7 metres. This means that the missile is being fired from a height of 3.7 metres. From this launch point, the tops of the trees are just 8.3 metres high. Even if the missile were to be fired at the minimum angle in a northerly, rather than a northwesterly direction (and thus straight at the trees), it would not hit the tops of the trees. This can be seen here. (slide) If the missile were launched in northwesterly direction, the distance to the row of trees would be greater, and the missile would clear the trees by an even greater distance. In short, the distance to the row of trees is not too short to fire a missile from the point marked by the vehicle tracks in the field. This defence cannot succeed either.
220.127.116.11.6 Plough marks in the field
The satellite images of 20 and 21 July 2014 reveal a black border around the black spot. We will now show an image from 20 July 2014. (slide) X48 stated that the field was ploughed after the fire. The defence sees nothing in this visual material that would support X48’s statement. Unlike the defence we do see indications of ploughing in the satellite image of 20 July 2014 which do not appear in the one from 16 July 2014. (slide) We are referring to the black border around the burn mark. While we cannot say with complete certainty that this is a plough furrow rather than some other type of digging, it is plain to see that something has happened to the field since 16 July 2014. The Public Prosecution Service believes that what can be seen in this visual material is consistent with X48’s statement that the field was ploughed after the fire.
We are therefore unable to follow the argument that the situation in and around the agricultural field as shown on the satellite images of 20 and 21 July 2014 offers no support for X48’s statement.
18.104.22.168.7 White spots to the upper left of the crossroads
Similarly, we do not agree with the defence’s argument that no white spots can be seen to the upper left of the crossroads in the satellite image of 20 July 2014 that would correspond to the drawing of the situation made by M58. Yes, it is true that M58 says different things about the number of tents (one versus two). He first writes that two tents had been put up. Then a few days later he makes a drawing of the situation which shows two tents, but in later examinations he thinks there was only one tent. We mentioned this change to his statements in our closing speech. Yet this alters nothing about what can be seen in the satellite image, namely: white spots that we believe to be consistent with the two tents that M58 (initially) mentioned and drew. We will show that again. (slide)
22.214.171.124.8 Burn mark
The defence makes the same argument in relation to the satellite images of the agricultural field near Pervomaiskyi of 20 and 21 July 2014, which clearly show the aftermath of a fire. According to the defence this burn mark at the launch site does not contribute to the evidence because it is unknown if the spot in question is actually a burn mark, and even if it is one, it is not known when or how the fire occurred. The prosecution does not share their doubts about the significance of the burn mark.
For one thing, the prosecution file contains sufficient evidence to prove that the black spot in the agricultural field near Pervomaiskyi is a burn mark. We will mention just a few of them here. X48 explicitly referred to a fire in an agricultural field near Pervomaiskyi. The British journalist who was in the field in question a few days after the launch also mentioned this in his statement. He spoke about meeting a farmer, who, when asked if he had seen a missile launch, told him that there was a fire a short distance away. With regard to what he found ‘a short distance away’, the journalist said: ‘There was a scorched patch of ground. It looked like there had been a burst of flame that set the grain on fire.’ The ESA report also mentioned a ‘significant degradation to the soil including burning.’ Thus there is no cause to doubt that this is a burn mark.
Nor does the file offer any reason to doubt the cause of that fire or the time when it broke out. It is a fact that a missile launch using a Buk TELAR can cause a fire. And multiple pieces of evidence show that this is indeed what happened. We already mentioned X48, who connects the fire with the launch of a missile. The fire mentioned by X48 also appears to be visible on the previously discussed photo of the smoke trail. As discussed in court, the KNMI examined the photo of the smoke trail. This involved editing the photo to accentuate the contrast. Thanks to this heightened contrast, not only is the vertical smoke trail more visible, but to the left of that white smoke trail – near ground level – smoke of a different colour can be seen. The court can see this dark-coloured smoke for itself. Like the white smoke trail, this smoke was captured in a photo on 17 July 2014 at 16:25. This can be seen here. (slide of photo)
In the face of these concrete indications of how the fire started, the defence raises theoretical possibilities that could also explain how the burn mark came to be. Theoretical possibilities are not counter-indications, however, not even when they are visualised with the help of a large number of photos from the internet. The Public Prosecution Service sees no concrete facts and circumstances that could point to a different cause for the outbreak of the fire in this specific agricultural field other than the launch of a Buk missile.
The argument that the burn mark visible on the satellite images does not support the conclusion that the agricultural field near Pervomaiskyi was the launch site lacks any basis in fact and must therefore be dismissed.
126.96.36.199.9 Pervomaiskyi as possible launch site
In addition the defence states that the Buk missile that shot down MH17 could not have been launched from the agricultural field near Pervomaiskiy, because Almaz-Antey states that the launch must have been in the vicinity of Zaroshchenske. The defence fully endorses the findings of the Russian Buk manufacturer and argues that Almaz-Antey has far more knowledge of the subject than either the RMA or NLR. This additional knowledge supposedly results in a ‘more comprehensive approach which, among other things, takes account of all available pieces of wreckage in order to reach the most complete possible assessment’. According to the defence, the RMA and NLR opted for a ‘less in-depth approach’ when it came to interpreting the damage to MH17. Ultimately the defence takes as its ‘explicitly substantiated standpoint’ that only a launch from the place designated by Almaz-Antey could have caused the pattern of damage observed on MH17. Finally, the defence concludes on the basis of the launch site designated by Almaz-Antey that the defendant must be acquitted.
The conviction with which the defence hold up Almaz-Antey as somehow omniscient is striking. In terms of both their supposed ‘expertise’ and their ‘assertions’, there are grounds to question what Almaz-Antey has said. We use the word ‘assertions’ deliberately, because Almaz-Antey says a great deal but offers little to nothing in the way of supporting evidence. We will start by looking at Almaz-Antey’s ‘expertise’ and then examine a number of its assertions.
188.8.131.52.9.1 The expertise of Almaz-Antey
First, the company’s alleged expertise. Let us begin by acknowledging that Almaz-Antey, as the manufacturer of the Buk missile, has the necessary knowledge. The question, however, is whether Almaz-Antey used that knowledge in this case in a proper, expert way. The Public Prosecution Service believes it did not.
To begin with there is the matter of intelligibility and clarity. An expert is supposed to be able to give an intelligible answer to questions from the court and offer insight into the investigative methods used. Almaz-Antey decided not to provide pre-existing reports, as requested by the examining magistrate, on its calculations of the launch site, but rather to submit new documents which do not account for its own investigation. Furthermore, during his seven-day examination, the representative of Almaz-Antey proved unable to provide a clear explanation of the data and methods used by Almaz-Antey, on the basis of which the reliability of their results could be tested. For example, it is incomprehensible how the identification of the type of weapon on the basis of the pattern of damage can depend on the angle of approach of that weapon; how a detailed 3D representation of the pattern of damage sustained by MH17 can be made from 2D photos and technical drawings; how straight lines can be drawn in flat figures when those figures are meant to depict three-dimensional objects; or how the results of a static detonation test using an Ilyushin-Il86 are initially presented in reports as compelling scientific evidence and later, after well-founded criticism on the part of the RMA, dismissed as ‘demonstrational rather than investigative in nature’. Furthermore, during its examination Almaz-Antey proved incapable of explaining how the actual damage to MH17 compared to simulated damage by a Buk missile, even though that is the key factor in the calculation of the launch site. After patient and persistent questioning by two examining magistrates, Almaz-Antey eventually answered that the comparison was made using a computer calculation. However the manufacturer was unable to say anything about the particulars of this calculation.
It was not until the joint examination that Almaz-Antey stated, with regard to that same comparative study of the damage, that a warhead of the older 9N314 type was used. The Almaz-Antey reports say nothing about that. They only mention the use of the 9N314M. Despite that, the company representative maintained in his examination that it was in their reports, referring to pages where no such information could be found, even after the questioning was paused to give him the opportunity to look this up at his leisure. So not only was his report incomplete; the author also read things in it that were not there. Over the course of two reports and supplemental written answers amounting to hundreds of pages of text and a seven-day examination, an expert should be able to explain his conclusions in a clear-cut manner. Yet the representative of Almaz-Antey was not able to do so. The manufacturer merely raised a smokescreen of technical detail which served to obfuscate rather the clarify the issues at hand. We will return to this point later on, but for now we will simply observe that the reports and examinations contained insufficient information about the methodology used and raise questions about the thoroughness of Almaz-Antey and the competence of the representative who was examined as an expert witness.
Doubts have also arisen about the independence and impartiality of Almaz-Antey. As noted by the European Court of Justice, Almaz-Antey is owned by the Russian state, has very limited freedom of action, and its activities are largely dependent on the Russian government. According to the company’s own website, the Russian president and the government themselves supervise the prioritisation of scientific activities. And yet, during his examination the representative of Almaz-Antey was unable to answer the simple question of whether Almaz-Antey was a state-owned enterprise.
Furthermore, Almaz-Antey stated in its report and confirmed during the examination that previous press conferences given by Almaz-Antey on MH17 were largely prompted by the EU sanctions against the company. This implies that Almaz-Antey has a commercial interest in the outcome of its investigation in this case. The fact that Almaz-Antey is far from an unbiased party is also evident from the interview given to Komsomolskaya Pravda by the representative examined in 2016. There he accuses ‘the Netherlands’ of ‘fraud’ in the investigation into MH17; he says that Russia is being blamed for everything and that an ‘information war’ is taking place. This does not inspire much confidence in an impartial investigation.
This same representative of Almaz-Antey also proved to be in possession of a Russian translation of a summary report on the course of the investigation, which had been provided solely to Pulatov. When the representative was asked how he came to acquire this document, he replied on two occasions – even after being given a week to look into the matter – that he had found it on the internet. This is simply not true. Here, too, with regard to the question of how he obtained the Russian translation of a court document that had been provided solely to Pulatov, the representative of Almaz-Antey was not candid and provided factually inaccurate information. All this brings us to the conclusion that we cannot trust that Almaz-Antey conducted its investigation into the location of the launch area with the necessary competence, intelligibility, clarity, independence and impartiality. In short, their investigation cannot be qualified as expert in a criminal-procedure sense.
184.108.40.206.2 Substantive assessment of the Almaz-Antey investigation
This brings us to the substance of the Almaz-Antey investigation. The manufacturer states that if the pattern of damage sustained by MH17 was caused by a Buk missile, this is only possible if the missile was on a collision course with MH17 and was launched from somewhere in the vicinity of Zaroshchenske. The defence takes the ‘explicitly substantiated standpoint’ that the pattern of damage sustained by MH17 could only have been inflicted by a missile launched from the area designated by Almaz-Antey. What this ‘explicit substantiation’ comes down to is cutting and pasting from the many reports drawn up by Almaz-Antey over the years, the quality of which leaves much to be desired. The reports, for example, are full of criticism of the findings of the investigations conducted by the Dutch Safety Board, NLR and the RMA, but they offer no insight into Almaz-Antey’s own investigative methods or the data it used. We will return to this point shortly.
220.127.116.11.9.2.1 JIT arena tests
The defence also criticises NLR and the RMA, and of course they have every right to do so, though one must ask whether this criticism is justified. We do not believe it is. Contrary to what the defence suggests and indeed strongly emphasises in its conclusion, the arena tests conducted by the JIT in 2016 – two tests, not one as the defence incorrectly says on more than one occasion – were performed properly. As the representative of Almaz-Antey stated to the examining magistrate: ‘The Belgian experts conducted an excellent arena test.’
Moreover, these tests yielded results that were entirely in line with Almaz-Antey’s data. We again quote the Almaz-Antey expert: ‘As you can read in the report by the expert from the RMA, an arena test was conducted in Ukraine and the results were shared. And it showed that the results are fully consistent with the technical features of the Buk weapon system that was previously provided by the company Almaz-Antey to the experts of the Safety Board.
So the arena tests were excellent, and their results matched the data that Almaz-Antey provided to the Dutch Safety Board, according to Almaz-Antey’s own expert. And yet in court the defence claims that the way these tests treated the data suggests an ‘unscientific approach’ and ‘a boundless faith in one’s own abilities’.
Almaz-Antey only mentioned two differences between the results of the arena tests conducted by the RMA and NLR and the technical features of the Buk system provided to the Dutch Safety Board by Almaz-Antey: they claimed no separate registration had been kept of the primary fragments of the warhead and insufficient attention had been paid to those primary fragments’ penetrative capacity.
In response the experts at NLR and the RMA stated that the first point was incorrect. Two arena tests were conducted: one with just a warhead and one with a complete missile. That first test obviously yielded data regarding the primary fragments, while the second test gave a combined picture of the primary fragments from the warhead and the secondary fragmentation from the missile. In this connection it was also observed that only the results of the second test were incorporated into the later calculations because it was a complete missile that exploded right by the Boeing, and not merely a warhead.
The second ‘difference’ mentioned by Almaz-Antey is that the RMA and NLR allegedly did not take adequate account of the penetrative capacity of the primary fragments. In response to this the experts of the RMA and NLR reported that the penetrative capacity of these fragments was indeed investigated in the arena tests. This also follows from the report made of that was drawn up on the arena tests. At the same time the experts point out that those results are irrelevant to the eventual calculation of the launch area, because they only examined the pattern of damage to the outside of MH17’s fuselage.
The expert from the RMA put this as follows: ‘This is why I do not think that “difference” is the right word. Almaz-Antey has additional data that wasn’t of any importance to us.
EM2: And why wasn’t it important? So we know in what context to interpret your answer.
FC: We were only looking at the impacts on the exterior of MH17 and not at where a fragment went after piercing the skin of MH17.’
In other words: for NLR and the RMA the only matter at issue was whether the primary and secondary fragments could pierce the skin of the Boeing, whereas Almaz-Antey believes that the damage caused by the primary and secondary fragments after piercing the skin is also relevant. In specific terms, Almaz-Antey is referring to damage to the interior and the ‘framing members’ , along with the penetration damage.
18.104.22.168.9.2.2 Field test involving Ilyushin Il-86
To support this position Almaz-Antey refers to the field test conducted with the Ilyushin Il-86 passenger aircraft, which allegedly showed, inter alia, that a detonation occurring above and to the left of the cockpit should cause a great deal of exit damage on the right side of the cockpit.
The defence concurs with this view, and in court presented 10 slides (nos. 27-34 and 36) showing exit holes and not penetration damage on the right side of the Ilyushin Il-86. At the same time, the defence – like Almaz-Antey – pointed out that these exit holes were not visible to the same degree on the right side of MH17.
Like Almaz-Antey, here the defence is comparing apples to oranges. An Ilyushin Il-86 is not a Boeing 777, and the defence knows it. Echoing the Almaz-Antey expert, it states that the main difference is the fact that crew consists of four people, but says nothing about all the other differences, even though there are a huge number of them. As the NLR expert points out, the Ilyushin is an ‘old-fashioned’ four-engine aircraft from 1976, while the Boeing 777 is a modern aircraft from 1994 of an entirely different design. The forward landing gear, for example, is an extremely strong component which, in the case of the Boeing, is located directly beneath the cockpit. On the Ilyushin it is located much further back. In addition, the Ilyushin is a good deal more pointed than the Boeing. This means that its cockpit diameter is much smaller than the Boeing’s. And thus, exit damage is more likely to be found on the Ilyushin than the Boeing. What is more, the Boeing’s cockpit was manned at the time of the disaster, and fragments were discovered in the bodies of the crew. And the Boeing in flight was pressurised, while the Ilyushin was open at the rear. According to the expert from the NLR, therefore, one cannot say that the damage to the Boeing should have been the same as the damage to the Ilyushin.
The RMA’s expert confirmed that the findings of the Ilyushin test cannot be simply ‘transferred’ to a Boeing. He adds that certain environmental factors or conditions are simply impossible to reproduce in any test; not in the arena tests, and not in the Ilyushin test either. As examples, he cites the temperature and pressure in the cabin, as well as the associated velocity vectors of the missile and the aircraft. If one adds these additional factors or vectors to the measured speed of the fragments, one arrives in what is known in ballistics as ‘the hydrodynamic domain’.
In this connection we would point out that ballistics is the primary field of expertise of the RMA expert, and not of the NLR or Almaz-Antey experts. At the request of the examining magistrate the RMA expert explained what exactly he meant by this, namely that at this type of velocity a solid fragment will behave more like a liquid, and as a consequence the penetrative capacity measured during a static arena test will be significantly reduced. According to the RMA expert, this phenomenon is impossible to reproduce during a static test. This means that the results of a static test are mainly indicative, though great care must be taken when drawing quantitative conclusions about an object’s penetrative capacity.
When asked to respond to these caveats concerning the relevance of the Ilyushin test, the Almaz-Antey expert said the following: ‘I fully agree with Mr [name] about the fact that the experiment with the Ilyushin was mainly demonstrative in nature rather than investigative. For us it was not necessary to perform a traditional arena test (…).’
According to Almaz-Antey, then, the test involving the Ilyushin Il-86 was mainly demonstrative in nature and not really ‘investigative’. Given Almaz-Antey’s choice to conduct the test using a different aircraft to the Boeing 777 – with different dimensions and an entirely different design – and under different circumstances, it was clear from the outset that the pattern of damage after the test would not be representative of the pattern one would expect on the skin of a Boeing. That means this pattern of damage is of no value in the investigation of whether MH17 was downed by a Buk missile and whether that missile was launched from Pervomaiskyi. And yet, this is the pattern of damage that Almaz-Antey used at a press conference in October 2015, and this is the pattern of damage that Almaz-Antey cited in its reports in order to substantiate its claims and its conclusion that the missile path calculated by NLR and the RMA could not be correct. And the defence is just as quick to adopt those claims.
As far as the Public Prosecution Service is concerned, it is clear that the pattern of damage visible on the Ilyushin Il-86 has no value whatsoever when it comes to calculating the launch location. Just as Almaz-Antey’s reports have no value whatsoever when it comes to the question the court must decide on, namely whether the Buk missile was launched from Pervomaiskyi. We will explain this.
22.214.171.124.9.2.3 Comparison of the actual pattern of damage to MH17 with simulated damage
All the experts agree that the calculation of the launch location – put in very simple terms – basically involves comparing the true pattern of damage to MH17 with a computer-simulated pattern of damage following the simulated launch of a Buk missile from a given location. All the parties agree that the actual damage to MH17 must be entered into a computer model in order to provide a point of comparison with the simulated damage. We are thus comparing two quantities: the true damage to flight MH17 and simulated damage. Obviously, if one of those quantities is not accurate, the result of the damage comparison will tell us nothing.
We agree with the defence that determining the correct pattern of damage to MH17 is crucial. We have therefore examined how the actual damage to MH17 was determined by all the experts, and what type of damage they took into account.
The way in which NLR and the RMA did this and the type of damage they took into account are described in their reports. Put briefly, each relevant perforation and ricochet on the reconstruction was scanned in 3D. Their coordinates were then determined, and these were positioned on a 3D model of a Boeing 777.
Almaz-Antey’s reports provide no information whatsoever about the method that was applied. It was only during the joint examination by the examining magistrate that it became clear how Almaz-Antey had mapped out the damage to MH17, and that it had applied a similar matching method using simulated damage. Getting to the bottom of this was no simple matter, as the following exchange makes clear:
EM1: ‘If I can just go back to the very beginning of your answer, Mr [name]. Our question was: “How was the damage matched? What method was used to do this?” The examining magistrate also asked: “Did you use a model to do this?” You then replied: “Yes.” You were then asked: “Could you explain how this model worked?” We are trying to learn, to understand, how the model works. To be honest with you, I am not much clearer on this as yet. Perhaps you could explain the model in such a way that it is at least clear to the other experts.
MM: I will try. By making use of photos and technical drawings of the Boeing aircraft, we determined the coordinates of around 350 perforations. This damage was applied to a number of basic surfaces that were used to make the 3D model, and these elementary surfaces contained the number of perforations and their coordinates. Since the surface area of each of these elementary surfaces is known, the model contains three markers, three benchmarks for comparison. Firstly that is the delineation of the fragment-spread area, the relative density of the spread of fragments and the actual number of perforations. And by comparing this damage with the results of computer detonations, we examined the degree to which they matched when it came to the area of the delineation of the fragment-spread region, and we examined whether they matched at the level of relative density. To be more precise, we examined the distribution of the relative density over the aircraft fuselage. I hope that this makes it a little more comprehensible.’
In summary: only at the tail end of the examination, after lengthy questioning, did Almaz-Antey ultimately explain how the actual MH17 damage pattern was determined, and that it had been compared with the results of computer-simulated detonations. What this method comes down to is that the coordinates of around 350 perforations were determined on the basis of 2D photos and 2D technical drawings. This information was then entered into a 3D model as actual damage, which was then used in the comparison with the simulated damage.
As noted, Almaz-Antey’s reports contain nothing about this method of matching damage (which it apparently also used) or the results of that comparison. This means that it is impossible to assess the accuracy of the reports’ assertions in any way whatsoever, which is why these reports are of no use to the court.
The Almaz-Antey expert’s answer also makes clear that the pattern of damage on the Ilyushin Il-86 played no role whatsoever in the calculation of the launch location. After all, in its damage comparison, Almaz-Antey compared its version of the pattern of damage to MH17 with ‘the results of computer detonations’. The Ilyushin test was not a ‘computer detonation’ but a physical detonation test.
And yet, the summary of the Report of Research contains the following statement: (slide) ‘If it were the BUK missile that downed the Boeing 777 aircraft, then that could happen at a collision course only. (…) In this case, the launch area could be the area shown in the presentation at the press conference of Almaz-Antey Corporation held in October 2015 based on the full-scale experiment results (Figure 4.1).’ The footnote in the report then refers to the test involving the Ilyushin conducted in October 2015.
This sounds confusing, and it is: the Almaz-Antey expert says one thing to the examining magistrate and writes something different in his report. When asked, in connection with the calculation of the launch location, about the damage comparison, he says that the damage to MH17 was compared with simulated damage generated by computer detonations. But in his main report he writes that the launch location was based on the results of the ‘full-scale experiment’ of October 2015, which, according to the footnote, was the test involving the Ilyusha Il-86.
This is something we have seen several times with the Almaz-Antey expert: he says one thing, but writes something else in his reports.
126.96.36.199.9.2.4 Discrepancies in Almaz-Antey’s written and verbal remarks
One of the main criticisms levelled against NLR and the RMA is that the pattern of damage to MH17 on which they based their calculations of the launch area was too limited. In its Summary Almaz-Antey describes the pattern of damage identified by NLR as follows: ‘A new model ("reference") takes into account only damage to fragments of the outer skin of the nose section of the aircraft fuselage that were mounted for 3D reconstruction in August 2015. Damages to framing members and internal equipment are not taken into account.’
In its Report on Research Almaz-Antey also refers to other forms of damage that ‘the Dutch’ did not include when determining the pattern of damage: the aircraft nose section, the left wing console and left engine.
The reports thus suggest that Almaz-Antey worked on the basis of a larger pattern of damage. And in his individual examination before the examining magistrate, the Almaz-Antey expert confirmed this:
D: ‘(...) The only thing is that, in addition to the damage measured on the outside of the aircraft, we also took measurements in the aircraft’s frame, from the cockpit floor, and from the main equipment in the cockpit. We also created images of those pieces of wreckage that were especially important to the investigation but were not present on the 3D reconstruction.’
One would expect, then, on the basis of this remark and the reports that were drawn up, that when it determined the actual pattern of damage on MH17 Almaz-Antey did include the damage that ‘the Dutch’ had not. But nothing could be further from the truth. The joint examination addressed the way in which the experts had determined the actual pattern of damage to MH17, with a view to calculating the launch location. The examining magistrate summarised what the Almaz-Antey expert had said in his individual examination, and asked if that summary was accurate. I will now quote the examining magistrate:
‘You received a diagram in which all the pieces of wreckage from MH17 were linked to individual components of the aircraft. You also had in your possession a technical drawing of section 41, the nose section of the Boeing 777. Photos were taken using these materials, and with the help of a ruler. And this is how you were able to record the coordinates of all the points of damage. In this way, all the points of damage, without exception, were applied to what you call the 3D model of the aircraft. (...) In addition to the damage measured on the outside of the aircraft, you also took measurements in the aircraft’s frame, from the cockpit floor and from the main equipment in the cockpit. You also created images of those pieces of wreckage that were especially important to the investigation but were absent from the 3D reconstruction. Is this a correct summary, (name redacted)?’
The Almaz-Antey expert replied as follows. ‘Almost, yes. We were not able to apply absolutely all the damage to the model. We were able to place around 350 points of damage working on the basis of the part of the aircraft for which we had technical drawings. These were 350 points of damage from the aircraft fuselage only. The damage to the frame and the floor is another story.’
And so, contrary to what Almaz-Antey suggests in its reports, and contrary to what the expert stated during his individual examination, Almaz-Antey also used only the fuselage damage from MH17 in the pattern of damage in its 3D model, and not the damage to the frame (the so-called ‘framing members’), the damage to the cockpit floor or the damage to the main equipment. Nor did it use the damage to the left wing and left engine. This verbal explanation touches directly on the reliability of the reports: these reports’ own assertions regarding their methodology are apparently incorrect.
The same is true of the reports’ findings on the ‘direction of damage’. For example, the Report on Research states that, ‘Direction of damages objectively observed on the fragments of the Boeing 777 airliner fuselage (outer skin and framing members) is fundamentally different from the "reference" ones.’ In addition, in the ‘supplementary report’ drawn up after the joint examination of the experts, Almaz-Antey refers to the importance of including the direction of damage, or ricochet damage, when comparing the simulated damage with the actual damage. Even now the reports assume that Almaz-Antey included this ricochet damage in its comparison of the actual damage to MH17 and the simulated damage from the simulated detonations. But that now turns out not to be the case either.
We would recall that the Almaz-Antey expert stated that he had recorded 350 points of damage in the ‘computer model’ as actual damage to MH17. When asked by the Public Prosecution Service whether Almaz-Antey drew up a report of these 350 points of damage, the expert said no: the results of the measurements were (only) recorded in the computer model as ones and zeroes. So we don’t know which 350 points of damage these actually were. When the NLR expert asked whether the directions of the ricochet damage were included, the Almaz-Antey expert replied, ‘Of course: after all, we began our investigation of the damage to the aircraft with the direction of the ricochet damage.’ In response, the NLR expert asked whether these directions were also included in the digital model of the damage. The Almaz-Antey expert replied, ‘No, they were not recorded in the computer model. We used a video during the process of verifying the results of the model.’
In other words: although Almaz-Antey states in its reports that the direction of ricochet damage must be included in the comparison of simulated and actual damage, it apparently did not do so itself. NLR and the RMA, by contrast, did do so.
188.8.131.52.9.2.5 Almaz-Antey’s rendering of damage: incomplete and inexact
In the case of both the RMA and NLR, it is clear what damage they included in their calculations: 271 perforations and ricochets, marked on the wreckage with stickers and subsequently scanned in 3D. Contrary to what the defence stated in court, damage to the cockpit roof (both perforations and ricochets) was also scanned. During the viewing the court was able to observe the damage for itself, and that damage is also visible on two images in the NLR report.
The same cannot be said of the ‘roughly 350’ perforations (without ricochets) that Almaz-Antey included. We don’t know which perforations were included, and we have no way of checking. We can only guess. We do now know, however, that the majority of those 350 perforations were located on pieces of wreckage that were not recovered. The defence discussed and presented these pieces of wreckage extensively during its statement of the case. We will now show one of the defence’s images again. (slide) During the examination we asked the Almaz-Antey expert whether Almaz-Antey had itself measured all perforations with a ruler. We will read out this part of the examination verbatim, as it illustrates the way in which Almaz-Antey repeatedly tried to avoid answering questions aimed at obtaining insight into its working methods.
Public prosecutor: I have a simple ‘yes or no’ question. Did Almaz-Antey measure all the perforations on the MH17 wreckage itself?
D: I assume the question concerns the arrangement [of wreckage] we have seen? There we made use of the perforation measurements referred to in the NLR report.
Public prosecutor: So the answer is no?
D: If you are indeed referring to all perforations, without exception, then the answer is no.
Public prosecutor: How many perforations in the aircraft did you measure?
D: We took into account roughly 350 perforations.
Public prosecutor: Of those 350 perforations, did you measure all dimensions with a ruler?
Public prosecutor: How many did you measure? That, after all, was the question.
D: Roughly 40.
The answer to this question is disturbing for a number of reasons. Almaz-Antey measured only 40 perforations from the reconstruction. That is less than 12% of the total number of perforations that Almaz-Antey said it used as MH17’s ‘actual pattern of damage’. Which means that less than 12% of the so-called actual pattern of damage came from the reconstruction. And yet, surely no one would deny that the actual damage on the reconstruction amounts to far more than 40 perforations? The other 310 perforations that Almaz-Antey included in its pattern of damage are thus located on pieces of wreckage that were not recovered and not included in the reconstruction. In other words on the pieces of wreckage the defence has circled in red. (Same slide)
This does not mean – as the defence would have us believe – that Almaz-Antey worked on the basis of a broader pattern of damage. It means that Almaz-Antey failed to include in its actual pattern of damage at least 231 perforations and ricochets that NLR and RMA did include in theirs. We can see that here. The vast majority of perforations and ricochets on the reconstruction (circled in yellow here) were thus not included by Almaz-Antey in its rendering of the damage to flight MH17. We are talking here about 231 perforations and ricochets that the experts at NLR – which had fragments of a 9N314M warhead to hand – determined could have been caused by primary fragments from that warhead, and that therefore must be included when determining the pattern of damage. These 231 perforations and ricochets, which are visible to anyone on the reconstruction, were not included by Almaz-Antey in its rendering of the pattern of damage to MH17. Those perforations and ricochets were therefore not included in its computer model either, and as a result they played no role whatsoever in Almaz-Antey’s damage comparison.
Instead, Almaz-Antey used 310 other perforations that are unknown to us, whose ‘exact’ locations were determined using images on the internet. Such images cannot possibly provide a true picture of the three-dimensional shape and deformation of the wreckage, let alone allow the exact location of these perforations to be deduced. This is to say nothing of the impossibility of measuring the exact size of these perforations, even though their size is highly relevant when determining whether a perforation could have been caused by a primary fragment. In the view of the Public Prosecution Service this method of determining the pattern of damage to MH17 cannot possibly be considered a proper method, let alone a reliable one.
And Almaz-Antey’s rendering of the pattern of the damage cannot possibly be considered a true reflection of the pattern of the damage to MH17. It was incomplete, since a significant proportion of the damage on the reconstruction was not included, and it was inexact, given the way in which the location of the perforations that were included was determined. This means that the results of Almaz-Antey’s calculations of the launch location – whereby its rendering of the pattern of damage to MH17 was what was compared with the simulated damage – are worthless.
Where the calculations of the launch location are concerned, it is now time for us to conclude. In the Public Prosecution Service’s view, Almaz-Antey’s reports are completely unusable. Not only is Almaz-Antey’s position in this case not independent and impartial, its substantive research is also not up to standard. Its reports contain no explanation whatsoever about the investigation it performed or the methodology it used. Nor do they provide any insight into the data that was used. We therefore have to rely on information given orally during the various expert examinations. On a great many points this information was not consistent with the contents of the reports, revealing that the pattern of damage to MH17 was determined in an irresponsible and inexact manner, and that a considerable amount of the real, actual damage to MH17 was ignored. And yet, the calculation of the launch location centres on the comparison of that actual damage with simulated damage. If the damage programmed into that computer model is incomplete, inexact and entirely unverifiable, then the result of the comparison will by definition be unreliable, unverifiable and therefore unusable.
It is now clear that, when determining the actual pattern of damage to MH17, Almaz-Antey took no account of a significant proportion of the perforations and ricochets that had been marked up by NLR and measured in 3D by the Police Expert Team for Visualisation and Reconstruction (ETVR). It thus disregarded a large part of the damage that the court itself was able to view on the reconstruction. Apparently the defence has no objection to this, but for the Public Prosecution Service it is clear that the pattern of damage determined by Almaz-Antey cannot be considered the true pattern of damage. It is equally clear that the outcome of the damage-matching process conducted by Almaz-Antey cannot possibly be considered reliable. The defence that, on the basis of the investigation conducted by Almaz-Antey, it cannot be proven that on 17 July 2014 a Buk missile was fired from an agricultural field near Pervomaiskyi cannot succeed and must be dismissed.
184.108.40.206 Second report of the US consultants
In regard to the evidential question of the launch location, the defence also relied on the second report by the US consultants. In its memorandum of oral pleading, the defence notes that, ‘According to these experts, it is certainly likely that the missile responsible was launched from the area calculated by Almaz-Antey. That supports our explicitly substantiated standpoint that if a Buk missile was fired on 17 July 2014, this could only have occurred from an area near Zaroschenske, and not Pervomaiskyi.’
As far as the Public Prosecution Service is concerned, this report gives no reason whatsoever to doubt the established launch location. The US consultants are as uncritical in their adoption of Almaz-Antey’s claims as the defence. Anyone who, having read Almaz-Antey’s reports, does not realise that most of its statements are unsupported and completely unverifiable, does not seem to have read them very carefully. And anyone who, having read the official record of the joint examination of the experts from NLR, the RMA and Almaz-Antey, still claims that NLR and the RMA worked on the basis of too limited a pattern of damage to MH17, loses all credibility as far as the Public Prosecution Service is concerned.
Therefore the Public Prosecution Service does not agree with the defence’s contention that this report helps show that Pervomaiskyi cannot have been the launch location. This defence should also be dismissed.
220.127.116.11. Absence of expected incriminating evidence
The defence has further claimed that there is an absence of all kinds of evidence that one would expect to find if a missile had been fired from Pervomaiskyi. Given the contents of the file, the defence’s expectations are not very realistic. We can see that in the first piece of evidence the defence says it would expect to see: burn residues in the ground.
18.104.22.168.1 Burn residues
The defence states that soil samples were taken but were not analysed. This is not true. On 24 April 2015 the JIT received soil samples from a German journalist, and from 19 to 22 June 2015 the JIT took soil samples from three different locations in eastern Ukraine. The location from which the German journalist said he had taken soil samples was not the agricultural field near Pervomaiskyi but an agricultural field near a railway north of Snizhne. To be clear: we are not talking here about the soil samples a British journalist allegedly took from the agricultural field near Pervomaiskyi four days after the crash, which the JIT never received.
In its statement of the case, the defence stated the following. ‘And of course all kinds of things can be said about the samples taken by the journalist(s). Those samples were not taken by an expert institute. And it remains uncertain where exactly those samples were taken from.’ Precisely for this reason, the NFI first tried to verify the origin of the soil samples that were received by comparing their composition with the composition of the samples taken by the JIT in 2015. This research showed that the composition of the soil bore similarities to two of the three JIT locations and that it is likely that this soil is prevalent in multiple locations. The origin of the soil samples therefore could not be confirmed, and thus the soil provided by the German journalist is more or less worthless as investigative material.
Next we come to the defence’s complaint that no investigation into burn residues was performed. Here we would recall that investigators certainly did examine targeted soil samples from Kramatorsk, where a Buk missile launch definitely had taken place. No burn residues were found in these soil samples. Contrary to what the defence suggests, the NFI does not believe that this finding could be explained solely by the passage of time. In fact, no one even knows whether burn residues are left in the soil [after a missile launch], let alone whether they can be detected after a certain passage of time. The NFI therefore considered that investigating the soil samples taken by the JIT had little chance of success and would not be able to tell us much. This is only a forensic assessment. If we look at the soil samples from a legal perspective, we would observe that the results of the analysis of these samples would not tell us anything. If no burn residues were found, this would not mean that no launch had taken place. We know this, after all, from the analysis of the soil samples from Kramatorsk. And if burn residues were found, it would be impossible to state that they resulted from a missile launch on 17 July 2014. After all, the soil samples were taken 11 months later, in a region where a war had been raging throughout the intervening period. Whatever the outcome, then, the results would tell us nothing about whether a missile launch took place on 17 July 2014.
22.214.171.124.2 Buk missile debris
Another piece of evidence not found in the agricultural field was the cap of a Buk missile. If we understand the defence correctly, the JIT could have found this item during the soil sample study performed at this location in June 2015. The defence states that although the absence of such a cap does not mean that no missile was launched there, the discovery of the cap would have provided a strong indication that such a launch had taken place. This is a striking observation. When it comes to loose missile fragments that were found at the crash site, the defence says that no causal link can be made with the downing of MH17. However, this cap, which was not found, would have been ‘strong indication’ that a launch had taken place. This is a double standard. As the Public Prosecution Service has said several times before, it is not a given that individual scattered items are related to MH17. And what is more, it is hardly surprising that this cap was not recovered. As we understand it, launch crews generally consider these sorts of caps to be a kind of trophy, and they hunt for them after a missile has been launched. And besides, this cap could also have been taken by someone other than the crew. Furthermore, as the file shows, the field in question was used for agriculture again after 17 July 2014. We can see that here. The land has clearly been worked, the soil ploughed and new crops planted. The fact that no cap was found 11 months after the downing therefore says nothing at all.
126.96.36.199. Satellite and radar images
Equally, the fact that no satellite images showing the missile launch are available also says nothing about whether a launch took place or not. And the same goes for radar images, too. Contrary to what the defence claims, we did not have to tie ourselves in knots to explain the absence of a Buk missile on civil radar images. In June 2020 we discussed how, according to experts, this could be explained, and we would note that the defence does not dispute those experts’ findings. Should it wish to dispute them at this point, it is rather too late in the day.
188.8.131.52.4 Radar detection of TELAR and drones
The next example of evidence that is supposedly missing is data from ‘radar tracking devices’ (which are not defined in any more detail) that would apparently have registered radar activity from the TELAR’s radar. We do not know where the defence got the idea that this sort of data should exist. The statement given by RC02, to which the defence referred, does not explain it, in any case. RC02 confirms only that the TELAR’s radar can be detected, something which no one disputes. However, RC02 does not state that the radar actually was or should have been detected. There are no indications that this data does in fact exist. The absence of any registration of the TELAR’s radar in data that we do not have and are not aware of cannot possibly serve to disprove the location of the launch site.
The same goes for the alleged drone images. There is nothing to suggest that such images even exist. And yet the defence finds the absence of these images ‘striking’. The only drone to emerge in the entire course of the investigation is an object that was observable on Russian primary radar and was acknowledged by the Russian Federation to be an Orlan-10 type ‘Russian drone’. On 17 July 2014 this object – after all, we don’t know if it was in fact a drone – was circling over Russian territory around the time of the downing of flight MH17. If there are indeed any indications of a drone that could have filmed the missile launch, then it would have been this object flying in Russian air space. We agree with the defence that if this was in fact a drone that was filming or photographing the launch, we have not received these images, despite our broadly worded request for legal assistance to the Russian Federation to provide us with all relevant information. Unlike the defence, however, the Public Prosecution Service prefers not to speculate about this possibility.
184.108.40.206.5 Intercepted phone conversations
Lastly we come to intercepted phone conversations that the defence suggests are missing. It is true that we do not possess intercepted conversations in which someone says the Buk missile should be launched, or in which the order to fire is given. That is hardly surprising, and it certainly is not evidence that no Buk missile was fired from Pervomaiskyi. First we would observe that there are various ways of communicating with the crew of a Buk TELAR. Using a mobile phone is only one of those methods, and is in fact also the least logical choice. Furthermore, if a TELAR is operating autonomously, i.e. without a direct link to the Command Post or the Buk radar vehicle (TAR), information about the target is generally communicated to the crew in two ways. This occurs either prior to deployment, during a briefing, or during the deployment via shared intelligence, e.g. via a spotter. It should be noted here that RC02 did not consider this latter option very likely. Therefore there is unlikely to be any telephone contact with the crew prior to a missile launch. But even if this were the case, we cannot say that no one spoke by phone with the TELAR crew. After all, the crew’s phones were not being tapped on 17 July 2014. Just as other phones, including Pulatov’s, were not being tapped.
In short, the absence of phone conversations prior to the moment the missile was fired does not mean that no Buk missile was fired. Not least because we now have phone recordings that reveal that the Buk TELAR did in fact fire a missile. Let me again quote Pulatov, who responded to Dubinskiy’s question about whether the Buk had fired by saying, Buk hit Sushka … which Sushka hit Boeing before that. We see the same thing, incidentally, on 16 July 2014: there were no conversations to the effect that a missile should or would be fired. Nor do we hear any order over the wire tap to fire missiles at Sushkas. What we do hear – after those Sushkas have been shot down – are conversations about the fact that Sushkas have been shot down.
Finally, the defence states that, apart from X48 and M58, no other witnesses were examined who specifically referred to the agricultural field near Pervomaiskyi as the launch location. That is correct. There are however a great many witnesses who have stated that on the afternoon in question they saw and/or heard a smoke trail or a flying object or missile. Some have linked that missile or object to a faint smoke trail. Others have not. One of them stated that, on the day of the crash, at around 16:15, they heard the sound of a missile. The sound came from the direction of Saur-Mogila and travelled in the direction of Hrabove. In the witness statements regarding the smoke trail, no fewer than eight witnesses referred to an area to the south of Snizhne. These witnesses specifically spoke about the hill of Saur-Mogila and the locations Pervomaiske and Pervomaiskyi. As we have previously noted, there are no grounds for excluding these statements from the evidence. And contrary to what the defence has argued, these are genuine witnesses whose statements support the conviction that on 17 July 2014 a Buk missile was fired from the agricultural field near Pervomaiskyi.
The defence to the effect that certain evidence one would expect to find if Pervomaiskyi were the launch location is lacking has no factual basis and therefore cannot succeed.
220.127.116.11 Alternative scenario: lock over
Finally we come to the alternative scenario advanced by the defence: that a missile was launched from a location other than the area around Pervomaiskyi. As we have noted previously, the defence and its US consultants have wrongly given credence to Almaz-Antey as the source of an alternative launch location: Zaroshchenske. We have explained why Almaz-Antey’s investigation was unreliable and cannot undermine the ample evidence that the Buk missile was fired from the agricultural field near Pervomaiskyi. We will now discuss how those US consultants fleshed out Almaz-Antey’s theory further. The defence describes this theory as the ‘lock-on lock-over scenario’. According to this theory, a Ukrainian Buk missile was fired at an Air India passenger aircraft from the area calculated by Almaz-Antey, but after the launch the missile locked on MH17 instead. The defence itself says that this scenario may ‘at first sound hard to believe’. The Public Prosecution Service agrees with that assessment. We would add that the proposed sequence of events is not only implausible but also factually impossible, as well as being at odds with the evidence in the file.
This theory is based on a number of assumptions, namely that:
- there was a Ukrainian Buk missile installation at a launch site near Zaroshchenske;
- the Air India aircraft was flying within range of the Buk missile that ultimately hit MH17;
- the selection of MH17 as the target was caused by problems with the identification of the Air India aircraft; and
- a ‘lock over’ occurred from Air India to MH17
We will now present visualisations of two of those assumptions. On that basis alone it is clear that this lock-over scenario, given the information in the prosecution file, is not only ‘hard to believe’, but can be ruled out entirely. We will deal with the other assumptions made by the defence and its US consultants in Appendix II.
18.104.22.168.1 Insufficient missile range
We will start with the assumption that the Air India aircraft was within range of the Buk missile that hit MH17. According to the US consultants a Ukrainian target acquisition radar vehicle (TAR) spotted the Air India aircraft shortly after it entered Ukrainian air space. A missile was then allegedly fired at that target from the area south of Zaroshchenske, and at 16:20 local time it hit flight MH17.
This is factually impossible. Given the evidence in the file, including the statement by witness RC02 that was cited by the defence in its statement of the case, the Air India aircraft cannot have been the original target of the missile that downed flight MH17, and certainly not if that missile was fired from Zaroshchenske. Even if a Ukrainian Buk TELAR could have been present at Zaroshchenske, and even if it had fired the missile that hit MH17 at 16:20, the Air India aircraft was flying well out the missile’s range at that moment. With regard to Buk missiles of both type 9M38 and type 9M38M1, witness RC02’s statement describes a maximum functional range of 45 kilometres. But when MH17 was hit, the Air India aircraft was still 69.5 kilometres away. That is much too far away for it to be hit by a Buk missile launched from Zaroshchenske. We will now show this on a map.
Here you can see Zaroshchenske, the place designated as the launch location by Almaz-Antey; you can see the maximum range of a Buk missile – 45 kilometres; and you can see the passenger aircraft Malaysia Airlines MH17 and Air India AIC113. The latter aircraft was far outside the missile’s range.
22.214.171.124.2 Impossibility of lock over
Besides the fact that the Air India aircraft was flying outside the range of the Buk missile that hit MH17, a lock-over scenario in this situation is impossible given the information in the prosecution file. The defence refers in this regard to witness G9081, but his statement shows precisely that no lock over could have occurred from Air India to MH17 . According to this arms expert, a lock over ‘is possible in theory’ but ‘doesn’t actually happen (...) in practice’. He says that this could only occur:
‘(...) if the original target (aircraft) were flying in a single line with another aircraft at a higher altitude and in a single line with the Buk M1’s radar beam, and the difference in altitude between the two aircraft were sufficiently small that the radar did not see it. The two aircraft would also have to be travelling at the same speed.’
The defence also invokes the statement given by witness RC02. According to this Buk specialist, a lock over can only occur if the distance between two aircraft is small. He stated that the two aircraft ‘[would have to be] flying really close together, with a distance between them of no more than a few hundred metres’ or would have to be flying from the same direction ‘on the same optical axis’.
In short, according to the specialists cited by the defence (G9081 and RC02), a lock over can only occur if two aircraft are flying close to each other or on the same optical axis.
The video provided by the defence, which visualises the assertions of the US consultants, shows how the Buk missile turns in the direction of MH17 after the launch. It looks like this.
In the defence’s scenario, the alleged lock over took place when the Air India aircraft and MH17 were dozens of kilometres away from each other, as evidenced by the distances shown on the map, and were coming from opposite directions. The Air India aircraft was also flying at an altitude 7,000 feet higher than MH17. According to the experts, no lock over could have occurred under these circumstances.
What is more, the defence ignores the fact that the aforementioned witnesses described the possibility of a lock over occurring because the radar beam from the Buk TELAR had switched to another target. There is nothing whatsoever in the file to support the scenario sketched by the consultants and the defence, whereby after its launch the Buk missile, of its own volition, seeks a new target via an ‘onboard radar’.
In short, anyone who understands precisely what a lock over is, also understands that the events in question could never have occurred in the way the defence suggests.
126.96.36.199.3 Sub-conclusion lock over
It is now time for us to conclude. Where the other assumptions of the defence and its consultants are concerned, we would refer the court to appendix II.
The consultants who drafted the US report have suggested, without any credible basis, a completely new version of events which has been supplemented in court by the defence and which the defence believes could provide an answer to the question of ‘why the missile was launched and how it is possible that such an error was made’. The authors of the report and the defence take this new sequence of events as their point of departure, and have picked passages from the case file documents to set alongside the assumptions made in the report. What this amounts to, ultimately, is that the defence, armed with this report, is suggesting that a lock over could be the possible cause of the downing of flight MH17. It describes how this could have happened in a scenario, but does not substantiate it further. The defence’s speculation is all the more painful because it suggests an answer to the one question that has tormented so many next of kin for so long: why was that launch button pressed?
Given the information in the prosecution file the occurrence of the lock-over scenario is not only ‘hard to believe’ but can be ruled out entirely. If we – like the US investigators – ask ourselves ‘what would make sense?’ it is in any case not this scenario.
4.3.4 Conclusion evidential question 2
This completes our discussion of the second evidential question. Contrary to what the defence suggests, there is sufficient and convincing evidence that flight MH17 was shot down by a Buk missile from the area of Pervomaiskyi. The alternative interpretation proposed by the defence regarding the intercepted phone conversations does not hold water. The defence has failed to undermine the reliability of the other evidence in support of the launch location, and its alternative scenario involving a Ukrainian attempt to shoot down an Air India aircraft is speculative and patently impossible.
4.4 Evidential question 3: Pulatov’s participatio
We now come to the third and final evidential question: that of the involvement of the defendant Pulatov in the offences he has been charged with. We will first run through the defence’s arguments relating to Pulatov’s actions. We will also run through the actions of the other defendants: Girkin, Dubinskiy and Kharchenko. After that we wel discuss the legal kwalification of their actions.
4.4.2 Defendants actions
The discussion will include Pulatov’s position in the DPR’s chain of command, his role in the offensive towards the south and in organising air-defence capabilities, and lastly his involvement with the Buk-TELAR. Of course, the other defendants (Girkin, Dubinskiy and Kharchenko) will also feature in our discussion. We will try to avoid repeating what was said in our closing speech, but some repetition is inevitable and necessary in order to provide a coherent chronological overview.
188.8.131.52 Position of the defendant Pulatov in the DPR’s chain of command
As regards the hierarchy among the defendants, the defence has argued that Kharchenko is not Pulatov’s subordinate, but that they are equals. The defence has adduced this in connection with one of the accusations against the defendants, i.e. that by making use of their position of authority, they guarded and/or concealed the Buk-TELAR or arranged for this to be done.
As we indicated in our closing speech, the DPR was established in April 2014. The defendants belonged to this armed group and worked together. As Minister of Defence, Girkin held a senior leadership role within the DPR. One of the units under Girkin’s command was the so-called reconnaissance battalion, headquartered in Donetsk. Dubinskiy was the leader of this battalion and was also designated as Girkin’s deputy. Pulatov and Kharchenko, for their part, fell under Dubinskiy’s authority.
Pulatov was Dubinskiy’s deputy. He received orders from Dubinskiy, but also directly from Girkin. Pulatov was in charge of other DPR commanders, such as Piton, commander of the first company under Pulatov, and Tskhe (call sign ‘Koreets’), commander of an air-defence unit. By his own account, when Pulatov was attached to the intelligence staff, he had approximately 1,150 personnel under his command.
Kharchenko received orders from Girkin, Dubinskiy and Pulatov. Kharchenko himself was also in charge of other commanders. In various intercepted conversations in July 2014, Kharchenko was addressed as ‘commander’ by people including Gilazov (call sign ‘Ryazan’) and Sharpov (call sign ‘Zmey’) and gave them assignments. In July 2014, Kharchenko had around 350 personnel in his unit.
In the Public Prosecution Service’s opinion, it was Pulatov’s coordinating role in particular, as also mentioned by the defence, that created a hierarchical relationship between Pulatov and Kharchenko. The fact that the defendants also worked together does not detract from that. However, the hierarchy among the defendants is not the primary concern here. As we said our closing speech, more important for the evidential question is the nature and intensity of the actual cooperation between the four defendants. Even before 17 July 2014, they formed a close-knit offender group that, inter alia, shot down aircraft in a planned and organised manner. That is why the actions of the four defendants, including Pulatov, must be assessed specifically in the light of their collective plan to shoot down an aircraft. When discussing Pulatov’s actions, therefore, it must be borne in mind that, while what he did is relevant, it is not necessary to establish in great detail his individual contribution to the offences. His actions must be viewed specifically in the light of the group’s shared intention and his cooperation with Girkin, Dubinskiy and Kharchenko. Later on we will discuss what this means in respect of the legal qualification of their actions.
It can be concluded that in July 2014, Pulatov held an important position within the DPR. He operated directly under Girkin and Dubinskiy, and was part of the military leadership. They formed a close-knit group, operating on the basis of plans, that engaged in acts of violence on a daily basis, such as the downing of aircraft. What this looked like in practice will be clear from the following, in which we will discuss the context in which the defendants’ actions took place.
184.108.40.206 Offensive towards the south
The defence has argued that the preliminary reconnaissance conducted by Pulatov south of Snizhne and his role as coordinator of the DPR troop movements had nothing to do with the deployment of the Buk-TELAR on 17 July 2014. In the Public Prosecution Service’s view, here the defence is ignoring the fact that Pulatov’s actions in the period from 6 to 17 July 2014 cannot be viewed separately from that deployment. The course of the conflict against the Ukrainian armed forces formed the prelude to that deployment. In view of the defence’s argument, we will look in greater detail at the offensive towards the south, Pulatov’s essential role in it, and his cooperation with Girkin, Dubinskiy and Kharchenko.
220.127.116.11.2 6 and 7 July 2014
In early July 2014 there was heavy fighting on the southern front around the Saur-Mogila hill. Partly with a view to the supply of materiel from the Russian Federation, it was strategically important to control the southern part of the DPR area. Besides Donetsk, this area comprised the towns to the southeast, such as Snizhne, Pervomaiske, Dmitrovka, Stepanovka, Marinovka and Tarany. You can see this here. From 6 July 2014 onwards, the DPR was making preparations on the southern front to create a corridor to Russian territory. Pulatov and his co-defendants played a key leadership role in this offensive, which on 17 July 2014 was still ongoing.
We will now discuss in more detail the phone conversation that Dubinskiy had with Pulatov on 6 July 2014 at 17:13. This conversation took place a few hours after Dubinskiy and Girkin had met up in Donetsk early that afternoon. Pulatov and Dubinskiy later saw each other in Donetsk too. Pulatov was summoned there because Dubinskiy had an urgent assignment for him. After Pulatov asked Dubinskiy for directions in the building, the conversation ended, but the phone line remained open via Dubinskiy’s phone. As a result we can witness what was discussed when Dubinskiy, Pulatov and several other individuals met up in person. Dubinskiy can be heard explaining the corridor that is to be established. Dubinskiy describes a particular area. He mentions the border with the Russian Federation, the border with the Luhansk region and the towns of Dmitrovka and Dibrovka, and seems to be pointing out things on a map. Pulatov is instructed to go to Snizhne with the men under the command of Piton, a commander under Pulatov, and then make contact with Prapor, another commander. Prapor will take them to Dmitrovka. Pulatov and Piton’s men are tasked with conducting additional reconnaissance of four areas of higher ground. It is apparent from the location data and an intercepted conversation of 7 July 2014 that Pulatov indeed went to Snizhne and that he was back in Donetsk the following day. He reported by phone to Dubinskiy that he would provide information. We will now play part of the conversation that took place on 6 July at 17:13.
In his video statement, Pulatov confirmed that on 6 July 2014 he met with Dubinskiy and was instructed to go to the Dmitrovka-Dibrovka area. According to Pulatov, this preliminary reconnaissance was for the purpose of upcoming combat operations to enable the People’s Army to force a breakthrough to create a corridor to the eastern neighbors.
The Public Prosecution Service is prepared to take Pulatov’s word for it that at that point the preliminary reconnaissance was not specifically focused on the town of Pervomaiskiy or the positioning of a Buk-TELAR. However, this preliminary reconnaissance cannot be viewed separately from the offensive towards the south, as part of which the Buk-TELAR was later deployed. It is clear from this preliminary reconnaissance that the defendants not only communicated with each other through the chain of command, but were also in direct contact with each other, and discussed their military plans. In addition it shows that Pulatov was operating literally on the front line of the DPR forces.
In his video statement, Pulatov confirmed that on 6 July 2014 he met with Dubinskiy and was instructed to go to the Dmitrovka-Dibrovka area. According to Pulatov, this preliminary reconnaissance was for the purpose of upcoming combat operations to enable the People’s Army to force a breakthrough to create a corridor to the eastern neighbors.
The Public Prosecution Service is prepared to take Pulatov’s word for it that at that point the preliminary reconnaissance was not specifically focused on the town of Pervomaiskiy or the positioning of a Buk-TELAR. However, this preliminary reconnaissance cannot be viewed separately from the offensive towards the south, as part of which the Buk-TELAR was later deployed. It is clear from this preliminary reconnaissance that the defendants not only communicated with each other through the chain of command, but were also in direct contact with each other, and discussed their military plans. In addition it shows that Pulatov was operating literally on the front line of the DPR forces.
18.104.22.168.3 15 July 2014
The cooperation between the defendants and their front line activities are also apparent from various intercepted conversations on 15 July 2014. As a reminder: Stepanovka was captured in the night of 14 to 15 July 2014. On the afternoon of 15 July, Pulatov and Kharchenko were given an assignment by Dubinskiy. In fact the assignment originated with Girkin. This can be inferred from the contact earlier that day between Girkin and Dubinskiy, when Girkin said he had an urgent assignment for Dubinskiy. And from a conversation later that day between Kharchenko and Girkin’s assistant, in which Kharchenko said that it was Girkin who had issued the instruction.
As shown by an intercepted conversation between Pulatov and Kharchenko, after they both spoke to Dubinskiy it was Pulatov who decided when they would leave and when he would issue his orders. It can be inferred from an intercepted conversation between Pulatov and Kharchenko that same evening at 23:29 that the orders in question concerned units moving towards Snizhne. At this time, Kharchenko was in Snizhne. Pulatov had instructed him to find Prapor and tell him that they were the first to arrive and that the main force was behind them. Pulatov was still on his way.
Pulatov thus clearly had operational command over Kharchenko and the units that moved to Snizhne in the course of the evening. What is more, in an intercepted conversation between two commanders that evening, he was referred to as the person coordinating all DPR troop movements. We will now play this conversation.
So Pulatov played a prominent role. It is clear that Pulatov, referred to by his nickname Giurza, was the subject of this conversation from the fact that it took place at the point when Pulatov was occupied with moving the troops to Snizhne. Snizhne was also discussed in the conversation. In addition, the participants were Oplot commanders. In July the Oplot battalion was involved in the fighting around Snizhne, and therefore the two commanders knew the players in that area of operations.
22.214.171.124.4 16 July 2014
On 16 July 2014, too, when Marinovka was attacked by the DPR, the defendants worked together, and Pulatov played a substantial role. This is clear from the following conversations. Kharchenko is with Girkin when he is phoned at 03:33 by Pulatov, who wants to know what area of higher ground has been reached. Kharchenko does not know. In a conversation at 04:37, Pulatov instructs Kharchenko to report to Girkin that he has driven the ‘boxes’, a commonly used code word for heavy materiel, to the first ‘landmark', and that he (Pulatov) is going back. At that time, Pulatov’s phone was transmitting to a phone mast in Snizhne. At 07:34, Pulatov reports to Dubinskiy that there has been no breakthrough yet, because they are faced with too many reinforcements and long-range fire from two locations. When the subordinate Gilazov (call sign ‘Ryazan’) reports to Kharchenko at 08:59 that he is under fire in Marinovka, which has just been captured, Kharchenko says that Pulatov is on his way to the village. When, at 12:30, an unknown man (‘Taran’), who is on ‘high ground’, asks Kharchenko whether he is in contact with anyone in command of this operation, Kharchenko says that he cannot reach anyone, but that Averyanov (‘Tor’) and Pulatov (‘Giurza’) are coming to him (‘Taran’). Girkin himself is on the front line, and that morning he personally is in command on the front at Marinovka.
It is clear from these conversations that there was contact between the four defendants from the early morning onwards, that the lines of communication were short and that Pulatov held a central, coordinating role in the field. This continued into the afternoon.
In an intercepted conversation at 13:26, Kharchenko informs Pulatov of the status of his troops. Kharchenko is dealing with casualties and with air strikes by a Sushka. Shortly after this (at 13:33), Pulatov orders Kharchenko to have Tor’s people cover the high ground and says that the tanks should go there. Kharchenko has to inform Tor of this because Pulatov cannot reach him. The next conversation is at 13:39. Pulatov instructs Kharchenko to organise the defence and hold the line they have captured. He is also to count the dead and wounded and report the numbers to Pulatov. At 17:11 Kharchenko speaks to Dubinskiy. Kharchenko explains that he has been instructed by Pulatov to defend the village Marinovka (‘to hold the ground here in the village’) and that he is under constant fire. Pulatov has left. Dubinskiy says that Girkin (‘Pervyi’) is on his way and that when he gets there Dubinskiy will ask him to order a retreat, as Kharchenko is suffering heavy losses. Later in the day (at 17:54) Pulatov again wants to know from Kharchenko how many dead and wounded there are because these numbers have to be discussed with the ‘senior staff’. So here, too, Pulatov serves as the link between the units at the front and the senior staff.
Later, at 18:12, Pulatov indeed reports to Dubinskiy on the situation after a day of fighting. In this conversation he says that battalion commander Averyanov (‘Tor’) and Kharchenko (‘Krot’) have suffered casualties and mentions the same numbers of dead and wounded that he was given before by Kharchenko. He also mentions that two tanks and the ‘Strela’ air-defence system have been disabled. Pulatov has already received the information about the Strela from Kharchenko earlier that afternoon. Pulatov says that he will try and bring the two ‘boxes’ and the Strela with him, for repair or further evacuation. They discuss new targets and Dubinskiy says that ‘Pervyi’ is busy passing them on to Moscow. Pulatov also tells Dubinskiy that it is important to hold a bridge in Marinovka. He also says that the hills that Dubinskiy has set his sights on do not play a decisive role. In response to a question from Dubinskiy, he confirms that the eastern side is not relevant at all.
Girkin gets involved too. When he gets back to Donetsk at the end of the day (16 July), he ensures that the reconnaissance battalion receives reinforcements from two of Kep’s companies. ‘Kep’ or ‘Cap’ is a call sign belonging to Velikorodnyy, a DPR commander in the vicinity of Snizhne who is under Girkin’s direct command. In the conversation at 18:12 mentioned earlier, Dubinskiy informs Pulatov about Kep’s reinforcements. In the same conversation they also discuss the need for a decent air-defence system. We will come back to this later.
Two hours later (at 20:11), Pulatov is phoned by Dubinskiy, who tells him what he told Kharchenko before, i.e. that both Kharchenko and Pulatov must go on stand-by in Stepanovka. Piton is to go with Pulatov. The positions to be taken by Kep/Cap and Tor near Marinovka and Stepanovka are discussed. The Buk is also discussed in this conversation, a fact we will come back to later.
In summary, it is clear from the conversations on 16 July 2014 that the four defendants acted together that day in the offensive towards the south, each acting in their own capacity within the internal hierarchy. They discussed targets and the loss of materiel and personnel, and determined the locations of various DPR units. Pulatov led and coordinated the troops south of Snizhne. He was in charge of Kharchenko and reported to Dubinskiy, who in turn commanded Pulatov and Kharchenko remotely, whereby Pulatov helped decide on tactics. Girkin was informed by Dubinskiy about the course of events and, from his most senior position, also actively involved himself in the course of events that day.
126.96.36.199.5 17 July 2014
Next we come to 17 July 2014, the day MH17 was shot down. On that day there was more heavy fighting in the area around Saur-Mogila, Stepanovka and Marinovka towards the Russian border. You can see that area here. It is clear from what we have just outlined that the lines of communication between the defendants were short and that they were functioning well as a team. This way of working together, which was natural for the defendants and aimed at a common objective, continued on 17 July 2014. That common objective was to establish a corridor towards the south, to the border with the Russian Federation. To achieve this objective, the defendants engaged in their own combat operations against the Ukrainian armed forces, on land and in the air.
If we zoom in on Pulatov’s role, we see that on 17 July 2014, too, he was an important player on the ground. He gave orders to others, including Kharchenko. That morning, Kharchenko was in the SBU building in Donetsk, where Girkin and Dubinskiy were also located. He then left to accompany the Buk-TELAR. Prior to this meeting, Pulatov had spoken to Kharchenko on the phone at 07:05. At this point Kharchenko was already in Donetsk. It is apparent from this conversation that Pulatov has been ‘assigned to be a man in charge’. We will now play part of this conversation.
By his own account, Pulatov took part in a staff meeting of commanders in Snizhne on 17 July 2014 at 10:00. Around that time Girkin phoned the commander with call sign ‘Tor’, mentioned earlier. In this conversation, Girkin confirms that Pulatov, as commander, is in charge as long as he has not handed over command to Kep/Cap. Girkin says that he has given Pulatov all the instructions and instructs Tor to report to Pulatov.
In the morning, Pulatov speaks with Dubinskiy about positioning weapons (tanks) and maintaining a corridor. More specifically, in an intercepted conversation at 09:31 Dubinskiy reports to Pulatov that three tanks from ‘Vostok’ are on their way. At this time, Pulatov’s phone is transmitting to a phone mast in Snizhne. In a phone conversation at 09:55 Dubinskiy hands out assignments and Pulatov knows what he has to do. For instance, Pulatov says, ‘I’m going to organise all this now. Yes, first I’m going to take my (...) ‘spitters’ [most likely a reference to artillery] to their positions. (...) Plus I’ll keep the corridor open here, so as to be able to supply to Tor without obstruction.’ It is also clear from this conversation that Pulatov has a short line of communication with Girkin, because after Dubinskiy tells him that three tanks from Vostok are going to Kep, he tells Dubinskiy that he has just spoken with ‘Pervy’. He is referring to the conversation between Girkin and Tor that we just discussed, in which Girkin said he had given Pulatov instructions and that Tor was to report to Pulatov.
By his own account, in the afternoon Pulatov was busy moving tanks to the vicinity of Saurovka and towards Stepanovka, and having them take up position. According to his first video statement, from his command post he supervised various reconnaissance units operating in the area below Snizhne, near Stepanovka.
According to an intercepted conversation, that afternoon Pulatov was in contact with a man about a Ukrainian operation in Dmitrovka near a ‘white house’. The man suggests positioning air defence (ZU) behind a bridge. Pulatov makes it clear to him that he should not concern himself with tactics. So here Pulatov asserts his leadership position. We will now play part of this conversation.
It is clear from what we have just discussed that the defendants were together engaged in fighting the Ukrainian armed forces and that Pulatov played an important leadership and coordination role with regard to the troops in the field during the offensive towards the south. This role follows in part from Pulatov’s involvement in the DPR’s air defence in the area, which is another element on which the defendants acted together, even well before 15, 16 and 17 July 2014. We will now address this in more detail.
188.8.131.52 Air defence
In our closing speech we explained that the area controlled by the DPR was regularly targeted by air strikes, leading to heavy losses for the separatists. The separatists did not have their own air force with which to down Ukrainian aircraft, but they did succeed in doing so with air-defence systems. In the period from April to July 2014, at least 12 helicopters and 4 airplanes were hit, killing several crew members. Between 1 and 17 July 2014 another six aircraft were attacked by the separatists. So the defendants had been working together to shoot down enemy airplanes well before the fatal day of 17 July 2014.
Contrary to what the defence suggests, it is not necessary to establish that Pulatov was personally involved in each of these attacks. Pulatov held an important position in the DPR. He worked closely with his co-defendants, including when it came to shooting down aircraft. They deployed other DPR fighters and instructed them to carry out their plans. We will now discuss Pulatov’s air-defence role in more detail.
- Pulatov’s statement
Pulatov spoke in his video statements about the DPR’s air-defence capability. He used the word ‘we’ when speaking about air defence, and said that they had ‘Strela-3 MANPADS’ and a ‘Strela-10 installation’. According to Pulatov, the Strela-10 system provided ‘more than sufficient air defence at tactical level’ to provide cover for his command post. He also stated that, besides ‘organising the gathering, processing and analysis of information’, his work consisted of ‘providing the planning and combat training, making decisions on combat missions and thus monitoring their execution, as well as organising the interaction with other structures’. And in his statements submitted in the defence’s statement of the case, Pulatov presents himself as someone with extensive knowledge about the strategic deployment of air-defence systems. It therefore follows logically that Pulatov, together with his co-defendants, was involved in the downing of aircraft.
The defendants’ involvement in combat missions and air defence in general can be seen from their contact with DPR platoon commander Tskhe (call sign ‘Koreets’), who commanded an air-defence unit. For instance, in a conversation on 15 July 2014: Kharchenko needs two trucks and Dubinskiy allows him to take one of Koreets’s, as long as he takes Koreets and the crew with him. This has to be agreed with Pulatov, though.
On 16 July 2014 Pulatov speaks to Koreets at 08:47. At this time, Koreets is about 300 metres from the first area of ‘high ground’, where the ‘zushka and boxes’ are located. ‘Zushka’ refers to the ZU-23 anti-aircraft gun. Koreets has run out of fuel. Pulatov instructs him to do his work from that location. He says that before he ‘downs’ anyone, Koreets must check who is flying over, because it could be a ‘friendly’ coming from the south. At 13:22 speaks with Koreets again. As mentioned before, his Zushka is out of fuel. Pulatov arranges for Koreets to be brought to Stepanovka with the anti-aircraft gun (‘Zushka’) and his crew. When he gets there, Koreets is instructed by Pulatov at 15:28 to monitor the sky, because an apparently enemy aircraft (‘motherfucker’) is flying over. We will now show part of this conversation.
In view of this, the defence’s assertion that Pulatov's duties were limited to intelligence and that he was not involved in air defence does not hold water. His involvement went much further than gathering information and intelligence. Pulatov also exercised authority over Koreets. Contrary to what the defence argues, it is not really relevant whether Koreets was directly involved in the downing of two Sushkas (Su-25) on 16 July 2014. What matters is that it is clear from the foregoing that Pulatov was actively involved in the DPR’s air defence. In this connection he worked together with his co-defendants.
184.108.40.206.3 Their air defence
Thus, the reconnaissance battalion was specifically involved in air defence. In various intercepted conversations, Dubinskiy himself talked about the downing of aircraft. In an intercepted conversation on 13 July 2014, Dubinskiy can be heard saying to Bezler that they (‘we’) have shot down ‘two motherfucking jets’ today. Dubinskiy adds that one was shot down by the ‘Desiatka’ and that the other was hit by ‘ack-ack fire’.
In a conversation just after midnight on 16 July 2014, Dubinskiy tells Khodakovskiy that ‘my guys’ shot down two ‘Sushkas’ that day.
On 16 July 2014 Dubinskiy talks to Pulatov about downing aircraft as well. On 16 July 2014 at 20:49, Pulatov reports to Dubinskiy that their air defence (‘our ack-ackers’), a MANPAD, has shot down a Sushka. We will now show part of that conversation. Within 10 minutes (at 20:57), Pulatov informs Dubinskiy that the aircraft was not shot down by a MANPAD, but by a ZU-23 anti-aircraft gun. This shows that cooperation took place between the defendants.
Earlier that day, Pulatov and Dubinskiy also discussed their air defence. In the previously mentioned conversation on 16 July 2014 at 18:12, Pulatov tells Dubinskiy that losses have been suffered due to an air strike and artillery fire. Dubinskiy then asks ‘what are our air defense doing?!’ and Pulatov replies that the Strela is non-operational. In other words, the defendants’ air defence is not doing much at all any more.
It is also clear from this conversation that the deployment of long-range artillery in particular is a real headache for Pulatov. He says that the tanks Dubinsky is offering him are not needed. What is needed is long-range artillery and a decent air-defence system, because an aircraft has been operating at high altitude and hardly any system had sufficient range to hit it. As Pulatov notes in this conversation, even the Iglas (a man-portable air-defence system), which were fired twice in his presence, did not hit anything. Dubinskiy replies that he is already occupied with the locations near Grigorovka, from which the DPR units are being targeted by artillery fire. He says: ‘(…) I’ve put the targets on the map. Now Pervyi is sending it there, to Moscow.’
220.127.116.11.4 Pulatov discusses the need for strong air defence
This conversation at 18:12 is important, because in it Pulatov discusses the need for heavier air-defence systems. Dubinskiy indicates that Girkin is in contact with Moscow. An hour later, in a conversation at 19:09 with Semenov, the deputy commander of the Vostok battalion, Dubinskiy says that he needs a Buk in the morning, because they have no answer to the Sushkas. Dubinskiy says he can deal with the ‘grads’, but if the Sushkas strike in the morning, they will be in trouble. When, after another hour, Semenov informs Dubinskiy that ‘that thing’ that Dubinskiy was talking about is coming to him ‘in two units’, Dubinskiy immediately phones Pulatov to tell him the good news. In this conversation, at 20:11, Dubinskiy tells Pulatov that if a Buk-M is brought that night, it will go directly to Pulatov. That Buk is our only hope, says Dubinskiy. ‘We have no other option.’ During this conversation, the phone used by Pulatov was transmitting to a mast in Snizhne.
Just how important the arrival of the Buk is also becomes apparent in a conversation just after midnight between Dubinskiy and Khodakovsky. According to Dubinskiy his unit has taken Marinovka, with only a few wounded, but after that Sushkas started attacking, and his unit suffered 10 fatalities. Khodakovsky starts to say something but Dubinskiy interrupts him, saying: ‘but a Buk is arriving tonight and then all problems will be solved.’
It is clear from the foregoing that in the run-up to the downing of MH17 Pulatov also played a key role in the air defence. He actively involved himself in the deployment of air-defence systems and – most importantly – on 16 July 2014 he actively informed Dubinskiy that he needed heavier air-defence systems.
In an attempt to cast doubt on Pulatov’s involvement, the defence has argued that in the conversation at 18:12 the word ‘Buk’ was not used, and that the Buk had already been requested at that point in time. It is true that, in this conversation on 16 July 2014, Pulatov does not literally mention a Buk, and that earlier that day Dubinskiy had consulted with Chernykh of the logistics unit, who was responsible for the delivery of the Buk-TELAR. Nevertheless, the 18:12 conversation is certainly relevant to the conclusion that Pulatov was involved in the organisation of the air defence and the request for its reinforcement. The fact that no Buk was mentioned in this conversation is irrelevant. After all, less than two hours after this conversation Pulatov was told by Dubinskiy that once the Buk arrived the next morning it would go directly to Pulatov. The substance of this conversation corresponds with that of the conversation at 18:12, and it makes clear that Pulatov was involved in the defendants’ plan to actually deploy the Buk-TELAR. A plan that led to the deployment of 17 July 2014.
Contrary to what the defence has argued, the fact that Pulatov cannot be directly linked to previous requests for military materiel is irrelevant. Girkin was the person designated for that purpose. Since his arrival in the DPR, Girkin had maintained close contact with Russia concerning military support for the DPR. For instance, Girkin relayed artillery targets to Moscow, as well as consulting Russia about arms deliveries. On 8 June 2014 Girkin expressed the need for Russian support, including ‘decent anti-aircraft systems manned by trained personnel’ via Aksyonov, the Russian-appointed leader of Crimea. In addition, Girkin was involved in the military transport that took place on 15 July 2014 to Donetsk from the border crossing with the Russian Federation near Severny. This convoy included four tanks, three artillery vehicles, an armoured personnel carrier (BTR) and a white truck with a white trailer. This convoy was escorted by the DPR’s logistics unit, of which Vlokh and Chernykh were members. Girkin and Dubinskiy were in charge of them. It is also clear from the conversation on 16 July 2014 at 18:12 that Girkin was the link with ‘Moscow’.
Since the military materiel being delivered was indeed deployed in the DPR’s operations, Pulatov can certainly be linked to this type of transport operation. That is also a very important observation, and one which confirms Pulatov’s involvement.
18.104.22.168.5 Sub-conclusion air defence
By telling Dubinskiy in the conversation at 18:12 that he urgently needed heavier anti-aircraft systems, Pulatov ensured that the Buk-TELAR was brought to him. The shared interest that Pulatov and his co-defendants had in the deployment of a Buk-TELAR is evident. Only a decent air-defence system would suffice to counter the air strikes by Ukrainian combat aircraft. The fact that the DPR was also conducting successful operations does not alter the fact that the defendants had not succeeded in fully gaining the upper hand in the fighting against the Ukrainian armed forces. Contrary to what the defence has argued, there was a need for a different anti-aircraft system in order to hit aircraft at higher altitude. We have explained this before. The stronger air-defence system that was requested arrived in the form of a Buk-TELAR.
22.214.171.124 Pulatov’s involvement with the Buk-TELAR
Earlier in this reply to the defence we discussed a selection of the evidence showing that the four defendants were responsible for firing a Buk-missile – using a Buk-TELAR – from an agricultural field near Pervomaiskyi on 17 July 2014. We will now focus on Pulatov’s involvement with the Buk-TELAR itself.
126.96.36.199.1 Delivery of the Buk-TELAR
188.8.131.52.1.1 Buk-TELAR transported to Pulatov with Kharchenko, at Dubinsky’s instructions
As we have noted previously, at 20:11 on 16 July 2014 Dubinskiy said that as soon as the Buk arrived it would be brought directly to Pulatov. Once the Buk and its crew had arrived in Donetsk on the morning of 17 July 2014, a meeting was held at Girkin’s headquarters at around 09:20. Dubinskiy was with Girkin, and Kharchenko joined him. Given Pulatov’s statement that important information was shared face to face, this was a crucial meeting. Although Pulatov was not present, he spoke to Kharchenko by phone prior to the meeting and was phoned by Dubinskiy immediately after it. Dubinskiy also communicated with others about the deployment of the Buk-TELAR.
For instance, Dubinskiy was in close contact with Chernykh, who was responsible for the delivery of the Buk-TELAR and had been instructed to wait for Kharchenko in Donetsk. Dubinskiy also maintained contact with the commanders of the Vostok battalion. In this phase, Dubinskiy was talking specifically about his Buk. In a conversation on 17 July 2014 at 09:23, for example, he can be heard talking about ‘my Buk’, which has to go with the Vostok convoy. In the end it is Dubinskiy who decides that the Vostok convoy should leave first, and that the Buk-TELAR convoy will catch up with it.
At just after 09:30 Dubinskiy tells Pulatov that Kharchenko will bring him a Buk-M and that it should be positioned in the vicinity of ‘Pervomaisk’. Pulatov says that he understands. At this point, Pulatov’s phone is transmitting to a phone mast in Snizhne. We played this conversation before, and we will now show part of it.
It is clear from this that Pulatov was given responsibility for the Buk-TELAR and must therefore be considered its co-owner. The defence’s disputation of this fact therefore does not hold water. The same is true of the assertion that Pulatov was not involved at the beginning of the events in question.
Twenty minutes later (at 09:54), Dubinskiy phones Kharchenko and gets straight to the point. He says: ‘So, now, behind the Motel ring road, call Bibliotekar, there will stay you know what? Yes?’ Kharchenko’s answer is short and to the point: ‘Yes’. Kharchenko asks no questions and apparently needs no explanation about the fact that the Buk is behind the motel roundabout, and that he has to phone Chernykh (call sign ‘Bibliothekar’). In view of the meeting that morning with Dubinskiy at Girkin’s headquarters, it makes sense that he would be aware of the plan. In addition, Dubinskiy instructs him to go to Pervomaiskyi with ‘that thing you’re going to escort now’ and says that Pulatov (‘Gyurza’) will go there too. Kharchenko’s tasks are: to be on stand by and guard.
The fact that the ‘Gyurza’ mentioned in this conversation refers to Pulatov is apparent from the conversation immediately after, at 09:55, when Dubinskiy phones Pulatov again. Pulatov says that he knows what to do with the Vostok tanks intended for Kep/Cap, because he has just spoken to Girkin. As we also said in our closing speech, we do not know exactly what instructions Girkin gave Pulatov. However, what we do know from this series of conversations is that, within an hour of the meeting at Girkin’s headquarters, the defendants communicated with each other about the Vostok tanks and about the transport of the Buk-TELAR.
In a conversation at 09:55 Dubinskiy next says that Pulatov must wait for Kharchenko, who at that point is escorting the Buk. Pulatov is instructed to find the town of Pervomaiskyi and stand by. His task is to guard the Buk and organise all of this. We have also played this conversation previously, and we will now show part of it.
The fact that at a certain point on 17 July 2014 Kep/Cap took over command from Pulatov, as mentioned by the defence, does not preclude Pulatov’s active involvement with the Buk-TELAR. In fact, you could argue conversely that Pulatov had the opportunity to involve himself actively with the TELAR precisely because Kep took over his command role.
As instructed by Dubinskiy, Kharchenko joined the Buk-TELAR convoy in Donetsk and took over escort duties from Chernykh. The convoy proceeded to Snizhne. You can see that here.
Events then unfolded according to the plan outlined by Dubinskiy in the various phone conversations. Kharchenko escorted the Buk convoy from Donetsk to Snizhne, where Pulatov, who was waiting for him, met him. After they met, Kharchenko made sure the Buk-TELAR reached the pre-arranged location in Pervomaiskyi. Meanwhile, Pulatov tried to maintain contact with the crew of the Buk-TELAR. We will now discuss this in more detail.
184.108.40.206.1.2 Furshet supermarket in Snizhne
At 12:42 Kharchenko phones Pulatov and says that he is in Snizhne with ‘the toy’ next to the Furshet supermarket. We will now show part of that conversation. Pulatov asks him to wait there, saying that he will come to him. Pulatov does not deny having taken part in this conversation. He even gives an explanation. That explanation is implausible, however, because it is clear from the context that ‘toy’ is a reference not to portable equipment but to the Buk -TELAR.
Ten minutes later Pulatov and Kharchenko, with the Buk-TELAR, meet at the Furshet supermarket. The clear proof of this is the loud horn that can be heard in the intercepted conversation on 17 July 2014 at 12:51. Given its relationship with the previous conversation, the Public Prosecution Service believes Pulatov took part in this conversation too. It is apparent from this conversation that Pulatov has arrived at the Furshet supermarket but cannot find Kharchenko. Kharchenko asks whether he can see a trailer (‘lowboy’). As we know, the Buk-TELAR was transported to Snizhne on a low-loader of a white Volvo truck. This is what it looked like.
After the horn has sounded, followed by some directions regarding the roundabout at the supermarket, Pulatov says he sees Kharchenko. We will now show part of that conversation. This is the moment that Pulatov joins the convoy with the Buk-TELAR. Dubinskiy’s assignment to Kharchenko – to bring a ‘Buk-M’ to Pulatov – has now been completed.
We will therefore disregard the defence’s assertion that, given the timeline of the route from Donetsk to Snizhne reconstructed by the defence (seen here), Pulatov could not have met the Buk convoy. The fact that different times can be distilled from the various sources of evidence does not make them unreliable. There are various plausible explanations for this. For instance, with regard to events observed by witnesses it is not always possible to establish precise times, because we are trying to reconstruct events that must be drawn from the human memory. Furthermore, sometimes exact times cannot be revealed for security reasons, as was the case with the video footage of the Buk-TELAR in Torez. In addition, the time it takes to travel a certain distance, such as from Torez to Snizhne, is determined by a combination of factors, and cannot be established exactly simply by looking at the distance and a notional speed. The various items of evidence must be viewed in the context of, and in relation to, each other, and in the Public Prosecution Service’s view they confirm that the Buk-TELAR travelled to Snizhne. Moreover, the TELAR was not only seen there by witnesses, but was also captured on camera several times. As we have said, Kharchenko was tasked with escorting the Buk transport. In the intercepted conversations at 12:42 and 12:51, Pulatov and Kharchenko themselves confirmed that they were in Snizhne at the Furshet supermarket, and the mast locations of their phones confirm those remarks. Kharchenko’s question – whether Pulatov can see the ‘lowboy’ – confirms that the Buk convoy was there too. The fact that Kharchenko escorted the Buk-TELAR onwards to the launch location means that he was with the Buk when he met Pulatov at the Furshet supermarket.
220.127.116.11.1.3 Launch location
From Snizhne, the Buk continued to the launch location under its own power, escorted by a passenger car. You can see it here. Kharchenko’s phone moved with the Buk, transmitting to masts in Snizhne (13:09) and Pervomaiske, near Pervomaiskyi (13:39). As we have said, Pulatov was to go to Pervomaiskyi too, on Dubinskiy’s orders. The Buk arrived at the launch location at around 14:00. At 14:07 Kharchenko instructed a subordinate, who answered Sharpov’s phone, to guard the Buk, which had come to a halt in a field near Pervomaiskyi. It was Sharpov with whom Kharchenko had the conversation at 13:09 about the route to be taken to Pervomaiskyi. So this is evidently a different ‘Oleg’ from the defendant Pulatov. And contrary to what the defence said in its statement of the case, this conversation has been in the file from the beginning.
Kharchenko also said that he would collect Gilazov (call sign ‘Ryazan’), another of Kharchenko’s subordinates, and then he too would go ‘there’. They would then ‘allow events to unfold further’. Gilazov was indeed collected by Kharchenko. And – as we have shown before – Gilazov was in the vicinity of the launch location when MH17 was shot down.
Given the course of events we have outlined, it is clear that, like the other defendants, Pulatov had prior knowledge of the deployment of the Buk-TELAR, and that he made an essential contribution in the run-up to the actual launch. It is clear from the meeting at the Furshet supermarket that Pulatov and Kharchenko carried out Dubinskiy’s assignment, i.e. to organise the operation, position the Buk-TELAR near Pervomaiskyi and guard it. In this way they took direct charge of the Buk-TELAR’s deployment at the launch location. Contrary to what the defence has argued, the fact that upon arrival Kharchenko instructed subordinates to guard the Buk-TELAR does not preclude Pulatov’s criminal involvement. After all, he was tasked with the overall organisation and, like Kharchenko, was responsible for guarding the Buk-TELAR. Pulatov’s overall organisation therefore also included Kharchenko escorting the Buk-TELAR to the launch location.
18.104.22.168.2 Contact around the time of the launch of the Buk missile
Unlike the defence, the Public Prosecution Service believes there is no gap in the evidence in the period from roughly 14:10 to 16:30. Flight MH17 was downed at 16:20. Our argument so far, i.e. up to the point when the Buk-TELAR arrived at the launch location, has concerned Pulatov’s actions prior to the offences of causing flight MH17 to crash and the murders of the 298 persons on board. It is perfectly clear that the defendant Pulatov not only was part of a close-knit offender group that operated on the basis of a plan and was focused on shooting down an aircraft, but also played an active individual role during this period. The actions that on 17 July 2014 led to the downing of flight MH17, the actual launch of the missile, occurred in the period between 14:07 and 16:20. It is likely that Pulatov was not at the launch location when the Buk missile was fired, but near Marinovka. Be that as it may, Pulatov can be linked to the launch location and to the firing of the Buk missile by means of telecom data. We will now discuss this.
22.214.171.124.2.1 Provision of phone with Ukrainian phone number
First we would note that there is indeed, as the defence has said, no evidence that Pulatov or his co-defendants provided a phone with a Ukrainian phone number to the crew, the guards or the transport personnel. We have said previously in court that there is insufficient evidence of this. Since we requested the defendants’ conviction on the principal charges, we did not explicitly request acquittal in respect of this part of the indictment. This does not alter the fact that, contrary to what the defence has argued, Pulatov was the link to the Buk-TELAR’s crew.
126.96.36.199.2.2 Contact with crew before launch of Buk missile
Pulatov (-511) was in contact with the phone number ending in -6335, which the Public Prosecution Service has attributed to a crew member of the Buk-TELAR or someone who was in contact with the crew. We will refer to this as the crew’s number. This number was active only on 17 July 2014. Video footage shows that between 13:11 and 13:58 the Buk-TELAR proceeded towards the launch location on rural road T0522. In the period between 13:35 and 13:52 Pulatov and number -6335 each tried calling the other. So, contrary to what the defence has argued, it was not just Pulatov who phoned. Number -6335 tried phoning him twice too.
At 13:52 number -6335 pinged a phone mast in Snizhne. This mast covers an area that includes the launch location. At 13:52 Pulatov’s phone also pinged this mast. We do not know exactly who was where. Nor do we need to. The important thing is that Pulatov has offered no explanation as to why he and the Buk-TELAR crew made three attempts to contact each other.
188.8.131.52.2.3 Contact between intelligence unit and aircraft spotters
At 14:00, a 60-second conversation took place between number -6335 and a phone number ending in -2501. That means this was around the time the Buk-TELAR arrived at the launch site and a few minutes after Pulatov and the user of number -6335 tried contacting each other. The number -2501 belonged to Aleksandr Dudnichenko, a colonel and senior analysis officer in the first division of the DPR’s intelligence service, who used the call sign ‘14th’. Dudnichenko was under Dubinskiy’s command. In July 2014, he received intelligence about flight movements of the Ukrainian armed forces. This information came from spotters. Dudnichenko (‘14th’) was also in direct contact with Pulatov, passing on such information as shown by a conversation on 15 July 2014.
It is noteworthy that around half an hour after the 60-second conversation between the crew (number -6335) and Dudnichenko, at 14:34 the latter phoned an intelligence source, Zhuk, who was nicknamed ‘Taiga’. ‘Taiga’ was an intelligence source with access to information about flight movements from various airfields. Enemy aircraft were referred to as ‘guests’.
In a conversation between Dudnichenko and an unknown individual, which took place a minute earlier (14:33), Dudnichenko says that it is important for the lines of communication between him and ‘Taiga’ to be kept as short as possible when it comes to information about ‘guests’.
Subsequently, in the phone conversation at 14:34, Dudnichenko is in direct contact with ‘Taiga’, Zhuk’s nickname. Dudnichenko asks ‘Taiga’ to inform him immediately if any new ‘guests’ arrive, because they are already ‘waiting’. Zhuk says that no ‘guests’ are expected for the time being. At the time of this conversation, Zhuk’s phone was transmitting to a mast near a military airfield and a civilian airport in Poltava. The city of Poltava (Kashubivka) is about 180 kilometres northwest of Donetsk. MH17’s flight path was around 50 kilometres south of the mast in question. Zhuk’s phone was inactive for the rest of the day.
It is noteworthy that, at 14:37, a few minutes after Dudnichenko’s phone calls, Pulatov (-511) was called by number -2356. The user of this number has been identified as a man with call sign ‘63rd’. This is Oleg Shlyapin, head of the first intelligence unit of the DPR. He was a colleague of Dudnichenko and he too fell under Dubinskiy’s command. It is clear from intercepted conversations, an online chat on the Antikvariat forum and a message posted by Pulatov on the Glav forum that he was acquainted with the person from the ‘former intelligence department’ of the DPR with call sign ‘63’. This phone conversation between Pulatov and Shlyapin (at 14:37) was the last actual phone call Pulatov made with number -511 prior to the downing of MH17. Unfortunately Pulatov’s and Shlyapin’s phone numbers were not tapped, so the content of that conversation is unknown.
Although the content of the aforementioned conversations is unknown, it can be inferred from these contacts that on 17 July 2014 Pulatov served as a link between the intelligence branch of the DPR – with direct access to spotters and their observations of enemy aircraft – and the crew of the Buk-TELAR. Intelligence personnel Dudnichenko (‘14th’) and Shlyapin (‘63rd’) and their informants were active around the time the Buk reached the launch location. There was contact between the intelligence service – Dudnichenko (‘14th’) – and the crew (-6335).
In the absence of any statements from Dudnichenko or the crew, we have to rely on the defendant Pulatov, who also worked for the intelligence service at the time, for an explanation about the aforementioned noteworthy contacts. No such explanation has been forthcoming.
184.108.40.206.4.4 Contact with crew after launch of Buk missile
Such an explanation is all the more warranted given that, even after the downing of MH17, Pulatov (-511) continued to seek contact with number -6335. When it emerged that one of the crew members of the Buk-TELAR was missing, Kharchenko asked Pulatov at 21:40 if he could contact the fighters of the ‘new box’. At 21:42 on 17 July 2014, immediately after his conversation with Kharchenko, Pulatov phoned the crew’s number (-6335) three times, but got no answer. Gilazov phoned Pulatov at 21:42 and 22:52, probably to discuss the missing crew member of the Buk-TELAR. After all, eight minutes earlier Gilazov had reported to Kharchenko that the crew member of ‘the Buk’ was with him, and he was instructed by Kharchenko to bring that crew member to Snizhne. And Pulatov had been told by Kharchenko that Gilazov was waiting at the Furshet supermarket in Snizhne. Immediately after he was called by Gilazov, Pulatov tried again, first at 21:53 and then at 22:53, to contact the number ending in -6335, but to no avail. As we have said, these are noteworthy contacts, and Pulatov is in a position to explain them because he was using the number -511 the entire time. But he has given no such explanation.
220.127.116.11.2.5 Conditional request to examine Sinenkov as a witness
The defence made a conditional request to examine Sinenkov as a witness concerning the Public Prosecution Service’s position that Pulatov served as the link to the crew. The Public Prosecution Service does not consider this necessary because that link is already clear from the aforementioned attempted phone calls between Pulatov’s number (-511) and number -6335. There is nothing that Sinenkov can add to this. There is no relationship between Sinenkov and this specific number ending in -6335. The fact that he was in contact with similar numbers at this time is insufficient reason to examine him as a witness in this phase of the criminal proceedings. The Public Prosecution Service therefore asks the court to deny this request.
18.104.22.168.2.6.Contacts with the intelligence service and the crew cries out for an explanation
As we have noted several times, Pulatov has not given any explanation about his contacts with the Buk-TELAR crew and the intelligence service. Given the facts in the file, it is not unreasonable to expect such an explanation. The absence of a plausible explanation is relevant for the assessment of the evidence.
After all, according to case law, ‘if the evidence cries out for an explanation but the defendant fails to provide that (plausible) explanation and the only common sense conclusion that can be drawn is therefore that the defendant must have done it [...] the absence of an explanation [can] be included in the assessment of the evidence.’ This Dutch case law is consistent with the case law of the European Court of Human Rights (ECtHR), for instance in Murray v. the United Kingdom. It does not constitute an unacceptable curtailment of a defendant’s right to remain silent or a violation of the privilege against self-incrimination (nemo tenetur principle).
The Public Prosecution Service believes that, given the other evidence that links him directly to the Buk-TELAR, Pulatov’s calls or attempted calls to a phone number that can reasonably be linked to the crew of that TELAR and to the DPR’s intelligence service serve to substantiate the evidence. These contacts confirm that the defendant was involved in the offences he is charged with, because they link him to the launch location and to the launch of the Buk missile. In its assessment of the evidence, therefore, the Public Prosecution Service has counted the absence of a plausible explanation from Pulatov against him. More specifically, in our closing speech we listed these contacts with the crew as evidence. Contrary to the defence’s assertion, it is also clear from the contacts with the crew after the downing of MH17, in the period when the Buk-TELAR was removed, that Pulatov remained involved till the end.
The contacts with the intelligence service support the conclusion that the defendant was criminally involved in the downing of flight MH17.
22.214.171.124.2.7 Control over the deployment of the Buk-TELAR
In an attempt to dispute the defendants’ control over the deployment of the Buk-TELAR, in its statement of the case the defence went into great detail regarding the command structure of a Buk-TELAR. The defence has ignored the fact that, given the defendants’ decision to deploy the Buk-TELAR for the purpose of their armed conflict and the positioning of the Buk-TELAR in the agricultural field near Pervomaiskyi, the order to launch the missile had essentially already been given. There could be only one reason to position the Buk-TELAR there, i.e. to launch a Buk missile in order to down an aircraft. The crew of the Buk-TELAR was the instrument used to effect that launch.
126.96.36.199.2.8 Communication between defendants after downing of MH17
The fact that Pulatov was indeed involved right till the end is also apparent from the communication between the defendants after the downing of MH17. By his own account, Girkin was informed at the end of the afternoon by the ‘commander of a People’s Army unit with the alias “Kep”’ about the downing of a Ukrainian aircraft (Su-25) by the DPR’s air defence.
Dubinskiy and Kharchenko spoke at 16:48. In this conversation, Kharchenko tells Dubinskiy that they are ‘at the location’ and have already downed one ‘Sushka’. Dubinskiy says they have done well. Dubinskiy then tells Kharchenko to come to him but to leave one company behind ‘to cover the Buk’. Almost half an hour later, Dubinskiy checks with Kharchenko whether the Buk has been positioned so as to prevent it being hit by artillery fire. Kharchenko reassures Dubinskiy: ‘They won't reach it. We are too far away.’ So the Buk is well hidden.
After speaking with DPR fighters, Dubinskiy and Girkin learn that they have shot down a passenger aircraft. It is Pulatov who contributes to the way in which this is communicated. He discusses a scenario with Kharchenko and Dubinskiy in which the Buk missile shot down a Sushka, after that Sushka had shot down the Boeing. In conversations at 18:44 and 19:52, Pulatov and Dubinskiy talk about ‘our’ Buk. During the 18:44 conversation Pulatov specifically says ‘our BUK’ to Kharchenko. And at 19:52 Pulatov replies to Dubinskiy’s question ‘did our Buk fire or not?’: ‘The Buk shot down a Sushka after the Sushka shot down the Boeing.’ Dubinskiy then communicates this version of events to Girkin. As the investigation showed, Girkin’s doubts about this version of events were justified. No Sushka had been shot down. In fact no Ukrainian military aircraft was shot down at all. The separatists do consistently talk about the fact that their Buk has shot down an aircraft. As no other aircraft was shot down in Ukraine on 17 July 2014, they can only be referring to flight MH17.
Pulatov’s phone calls or attempted phone calls in the period prior to the launch of the Buk missile and shortly afterwards with the crew, the intelligence branch and his co-defendants show that Pulatov was actively involved in the launch of the Buk missile. Pulatov has not given any explanation that refutes that conclusion.
In order to fully complete the discussion of the events surrounding the Buk-TELAR, we will now briefly discuss the removal of the TELAR. This was done via the route you can see here in red.
At around 20:30 Girkin instructs Dubinskiy to remove the Buk-TELAR, informing him that a new escort will take over once they reach LPR territory. There, he will be met by a unit with a low-loader and a crane. Dubinskiy says that Kharchenko is currently guarding the Buk and has BTRs. Girkin says that he will have to take care of the problem with the aircraft.
Immediately after that, Dubinskiy passes on Girkin’s instructions to Kharchenko. He tells him that a low-loader will be coming to collect the Buk-TELAR and that it will have to be escorted to the LPR border. When Kharchenko reports to Dubinskiy 45 minutes later that the Buk has already left for Snizhne under its own power, Dubinskiy says that he will ask Girkin what to do. As we have said, in this period Pulatov sought contact with the crew at Kharchenko’s request, because one of the crew members had become separated from his unit. In the end the Buk-TELAR departed Snizhne late in the evening of 17 July 2014, after Dubinskiy had given further instructions to Kharchenko.
In accordance with those instructions the next stage of the Buk’s removal was carried out by subordinates of Kharchenko, at his direction. When the removal did not go according to plan, Girkin intervened and continued hounding Dubinskiy until he received word that the Buk-TELAR was in the Russian Federation.
It is clear from this brief summary that all four defendants were actively involved in the removal of the Buk-TELAR and its crew.
188.8.131.52 Conclusion on Pulatov’s actions
We now come to the conclusion of our discussion of Pulatov’s actions. In 2014 he held a prominent position in the DPR. During the armed conflict he worked closely with his co-defendants, Girkin, Dubinskiy and Kharchenko. Pulatov was operating literally in the vanguard, working to establish a corridor to the border with the Russian Federation. While establishing this corridor, they encountered fierce resistance. The defendants then did what the separatists had done before, deploying their air defence to shoot down enemy aircraft. As the DPR fighters were not equipped to withstand the air strikes by the Ukrainian air force, they needed to come up with a different strategy. It was in the defendants’ interest to acquire a heavier anti-aircraft system. On 16 July 2014 Pulatov actively informed Dubinskiy that there was a need for a heavier anti-aircraft system. Once it arrived from the Russian Federation, the defendants could once again be seen acting together. On the morning of 17 July 2014 a meeting was held at Girkin’s headquarters. Dubinskiy was with Girkin, and Kharchenko joined him. Kharchenko then left, to escort and guard the Buk-TELAR. Pulatov was given an important task, organising the arrangements and guarding the Buk-TELAR. His coordinating role is apparent from his behaviour during the transport of the Buk-TELAR to the launch location and after the launch of the missile. He met Kharchenko with the Buk convoy at the Furshet supermarket in Snizhne; he maintained phone contact with the crew – or with someone who was in contact with the crew – before and after the launch of the Buk missile; he had undefined contact with the intelligence branch; and after the launch he spoke with his co-defendants Dubinskiy and Kharchenko about the downing of an aircraft by their Buk.
So, contrary to what the defence has asserted, Pulatov did have prior knowledge of the deployment of the Buk-TELAR. After all, he worked actively from beginning to end on the deployment of the Buk-TELAR, which resulted in the downing of flight MH17. As we have said, given the close cooperation with his co-defendants it is not necessary to establish exactly which individual actions Pulatov carried out.
184.108.40.206 Conclusion on the actions of Girkin, Dubinskiy and Kharchenko
Since we have discussed the other defendants as well, we will also briefly summarise their involvement here.
Girkin was the commander-in-chief and commanded his troops remotely. He was the link to the Russian Federation in terms of arranging military support for the DPR. He was continually updated on the fighting. Girkin also involved himself actively at times. Contact often went via Dubinskiy, but Girkin also gave orders directly to Pulatov and Kharchenko. On the morning of 17 July 2014 a meeting was held at his headquarters in Donetsk. After this, the further transport of the Buk-TELAR was set in motion. That morning he also gave instructions to Pulatov. After the downing of MH17 Girkin was immediately informed that the DPR had shot down an aircraft. He also spoke on the phone with Dubinskiy about the downing of an aircraft by their Buk-TELAR. Lastly, Girkin was closely involved in transporting the Buk-TELAR back to the Russian Federation.
As head of intelligence and leader of the reconnaissance battalion, Dubinskiy also led his troops remotely. He was the main link between Girkin on the one hand and Pulatov and Kharchenko on the other, though, as we have said, they also had direct contact with Girkin.
On 16 and 17 July 2014, Dubinskiy was actively involved in the delivery of the Buk-TELAR to the launch location in Pervomaiskyi. In this context, after the meeting on 17 July 2014 at Girkin's headquarters, he gave instructions to Pulatov and Kharchenko, making them responsible for escorting and guarding the Buk-TELAR. After the downing of MH17, he spoke with Girkin and Pulatov about the downing of an aircraft by their Buk-TELAR. He, too, was actively involved in removing the Buk-TELAR to the Russian Federation. He was given instructions by Girkin, and he in turn directed Kharchenko with regard to the Buk-TELAR’s removal.
Kharchenko was a DPR leader and, like Pulatov, was more of a commander in the field. He attended the meeting at Girkin’s headquarters on 17 July 2014. After that meeting, Kharchenko was responsible, as per Dubinskiy’s instructions, for guarding the Buk-TELAR and escorting it to the launch location. In that context Kharchenko directed his subordinates. He also met with Pulatov, who was tasked with coordinating all the arrangements, at the Furshet supermarket. After the launch of the Buk missile, he spoke with Dubinskiy and Pulatov about the successful downing of an aircraft. As instructed by Dubinskiy, Kharchenko had to ensure that the Buk-TELAR was taken back to the Russian Federation. Kharchenko then proceeded to instruct his troops accordingly.
4.4.3 The legal qualification of the actions of the defendants
The next question is what is the legal qualification of the actions of the defendants. For that we will first consider the indictment. We will then outline the legal framework and finally we will explain in more detail why we have come to the conclusion that suspects should be regarded as functional co-perpetrators of the downing of MH17.
220.127.116.11 Explanatory note on charges in the indictment
First the indictment. Prompted by a question from the court at the last hearing in March about how the charges in the indictment are set out, the Public Prosecution Service provided a written explanatory note on this subject. We will now summarise this explanatory note.
The principal charges against the defendants under offences 1 and 2 are functional perpetration and joint perpetration. The alternative charge for each offence is ‘regular’ joint perpetration. The Public Prosecution Service opted to distinguish between principal and alternative charges in order to obtain an explicit judgment from the court on the issue of whether there was functional (joint) perpetration in this case, as set out in the principal charges.
The essence of the concept of functional perpetration is that someone who did not themselves physically commit the criminal act is nonetheless criminally liable because they are responsible for that act. Although the defendants themselves did not press the launch button, a Buk TELAR missile launcher requires a great deal more than simply being fired. It requires joint planning and organisation. The actual act of pressing the launch button is merely the inevitable final link in the chain of a Buk TELAR’s military deployment. The final responsibility for the launch of a missile lies not merely with the person who pressed the button but also with those individuals who deployed the weapon for that purpose. In this case, those individuals were the defendants: they took the initiative, they directed the Buk TELAR to the launch location, and they arranged the deployment. They used the TELAR and its crew as their weapon. That is why they themselves are responsible, as functional perpetrators. Because they did this together in an organised manner, whereby each of the defendants played his own significant role, the Public Prosecution Service decided to express this in the indictment in the form of functional joint perpetration. This form of perpetration accurately reflects the Public Prosecution Service’s accusation against the defendants: that they jointly executed a joint plan to shoot down an aircraft by means of a Buk TELAR.
In the Public Prosecution Service’s view, the manner in which the charges are set out in this case does not warrant the partial nullity of the summons.
Where the evidential question is concerned, if an indictment sets out principal and alternative variants of the charges, the court will in principle consider the alternative variant only if it has concluded that no conviction can result from the principal charges. This case is no exception. The Public Prosecution Service is therefore of the opinion that given the way in which the indictment is set out, the court must first give judgment on the principal charges under offences 1 and 2. Those charges relate to functional joint perpetration (expressed in the words ‘together and in association with one or more other persons, as co-perpetrators’) and functional perpetration (expressed in the words ‘or alone, as a functional perpetrator’). Only if the court finds that the principal charges under offences 1 and 2 cannot be proven, would it have to consider the alternative charges under offences 1 and 2. These relate to the ‘regular’ variant of joint perpetration (expressed in the words ‘together and in association with one or more other persons’).
18.104.22.168 Legal framework
After this further explanation of the indictment, we will now turn to the legal framework. Given the court’s request to reflect in more detail on the application of the legal framework in this case, we will now take a more in-depth look at this framework in relation to functional perpetration and joint perpetration.
22.214.171.124.2 Functional perpetration: general framework
As we noted in our closing speech, an individual can be criminally liable even if he himself did not physically commit the offence but rather committed it by means of one or more other individuals. This means that the act of the physical perpetrator can be attributed to another individual, because that individual is responsible for it. This is known as ‘functional perpetration’ of a criminal offence.
This is not an ‘evidential aid’, as the defence argues. It is a manner of interpreting the charges in a way that accurately reflects the statutory criminal provisions.
There is no mandatory assessment framework for establishing functional perpetration. It is often assumed that there has to have been ‘control’ and ‘acceptance’ on the part of the defendant (the so-called ‘Iron Wire Criteria’), but these are certainly not the only criteria on the basis of which functional perpetration can be established. These criteria may be helpful in establishing the passive variant of functional perpetration, whereby someone takes no action even though he may have been expected, on the basis of his position, to intervene to prevent the criminal offence from being committed.
When it comes to the active variant of functional perpetration, whereby someone actively helps to bring about the occurrence of an offence committed by another party, the Iron Wire Criteria are less well suited, since ‘acceptance’ implies passivity. Where active functional perpetration is concerned, it is necessary to consider the role a defendant played in the offence that he had another party commit, and to examine whether the defendant’s concrete involvement in that offence was such that he can be held primarily responsible for it.
For example, a doctor who instructed his assistant to perform a termination when the pregnancy was too far advanced was held to be sufficiently involved in the offence that he was convicted of the murder. Someone who dictated a fake press release was convicted of forgery. And someone who hired others to smuggle goods across the border was himself deemed a smuggler. In all these cases, the defendants’ initiating or organisational role was so significant in the occurrence of the offence that they could be held primarily responsible for it. Each was convicted as the (functional) perpetrator of the offence in question, despite not having physically committed the offence.
In addition to functional perpetration, a person may also be guilty of functional participation. In that case, the requirements of both the form of participation and functional perpetration must be met. If, in the aforementioned ‘Abortion judgment’, there had been not one but two doctors, who together hatched a plan and instructed their assistant to perform the illegal termination, they could each be deemed functional perpetrators. Given their cooperation, however, they could also be designated functional co-perpetrators. They would then be jointly responsible for the criminal offence that they had their assistant perform. Equally, a company director can be guilty of functional joint perpetration if his employee jointly commits an offence either with the director’s agreement (passive variant) or at his instruction (active variant).
In the case of some offences, the criminal liability of those responsible for the act may more accurately reflect the course of events than the liability of the party that physically carried out that act. This is the case, for example, when prosecuting crimes committed in the context of an armed conflict. In such a context, hierarchical relationships often come into play, whereby individuals higher up the chain of command make plans that are ultimately carried out by foot soldiers. When prosecuting such offences, the specific goal is to find those responsible, namely those who planned the offence. It is in such situations that the doctrine of functional perpetration specifically comes into play.
In the Public Prosecution Service's view, a functional interpretation of the charges in this case would also more accurately reflect the true course of events on and around 17 July 2014. Because, who is responsible above all for the downing of flight MH17? Is it the people who were instructed to carry out an order at the launch location, or is it the people who issued that order and got others to do their dirty work? Like the doctor who instructed his assistant to perform an illegal abortion for him, our defendants used the crew of a Buk TELAR to shoot down an aircraft for them. Like the person who conceived and dictated a fake press release, our defendants conceived and dictated the location from which the Buk should shoot down an aircraft for them. And what is the distinction between arranging for others to smuggle items across the border for you, and arranging for others to shoot down an aircraft for you? What the Supreme Court considered back in 1887 in the ‘Butter’ case still applies today: ‘a person must be considered to have done himself anything that he has another person do.’
126.96.36.199.3 Joint perpetration: general framework
As the Public Prosecution Service has explained previously, and will repeat today for the benefit of the broader public, established case law states that in order to prove that a person is guilty of joint perpetration, there must have been sufficient close and deliberate cooperation with one or more other persons, with the emphasis on the cooperation rather than the question as to who carried out which specific acts. The court must establish that the defendant’s intellectual and/or material contribution was of sufficient weight. To prove that a person is guilty of joint perpetration, it is not necessary for the weight of a defendant’s contribution to be equal to that of his co-perpetrators.
Where the essence of the defendant’s contribution consists of actions associated with being an accessory, a finding of joint perpetration will require further substantiation. The Supreme Court pointed, inter alia, to the following factors to consider: the intensity of the cooperation, the division of tasks, the role in the preparation, execution or implementation of the offence and the importance of the defendant’s role, their presence at key moments and their failure to extricate themselves at an appropriate moment. If the defendant’s contribution in its essence does not comprise joint execution, but rather various acts performed before and/or after the criminal offence, it must be clear why the contribution was of sufficient weight. The court must assess whether these requirements have been met in the circumstances of the case in question. An important factor in this regard may be the extent to which the court is able to establish the specific circumstances. In this connection, the course of action adopted by the defendant in the proceedings can play a role. If the defendant fails to provide a plausible explanation, the court may take this into account in its assessment of the evidence.
In the assessment of whether a person is guilty of joint perpetration, the defendant's intention is a key focus area. A co-perpetrator sees the offence as ‘his own’ offence, while an accessory offers help in the commission of an offence that he sees as someone else’s offence. The defendant’s contribution must therefore explicitly be viewed in relation to his subjective intentions.
If the defendant was part of an offender group focused on a particular aim, his actions must explicitly be assessed in relation both to each other and to the shared intention of the group. The shared intention that is apparent from the joint actions is more important in this respect than the weight of the contribution that a defendant makes to the offence.
In addition, the existence of a plan that is clear to all participants also provides a strong indication of joint perpetration. In the event of several people acting together with a view to accomplishing a joint plan, joint perpetration may have taken place, even if a defendant’s actions cannot be considered, when viewed in isolation, to be a contribution of sufficient weight to the charges in the indictment. The defendant’s own interest in the accomplishment of the offence and his functional position may also contribute to a finding of joint perpetration.
Against this background we will now explain and examine further the roles played by the four defendants.
188.8.131.52 Legal qualification of the charges in the indictment
184.108.40.206.1 Functional joint perpetration
When assessing the principal charges listed under offences 1 and 2, the matter of functional (joint) perpetration, the court must establish whether each defendant was a functional perpetrator and whether he committed the offences in close and deliberate cooperation with one or more other persons. As noted, where functional perpetration is concerned, the primary question is whether a defendant is responsible for an offence that was carried out by someone else. It may be a matter of passive perpetration – of control and acceptance – as in the case of the classic Iron Wire judgment. It may also be a matter of active perpetration: that is, truly ‘bringing about’ the offence.
In Girkin’s case, we see that the situation in this respect is not entirely black and white. In its closing speech, the Public Prosecution Service said that Girkin was an active perpetrator. Today we have reiterated that the events leading up to 17 July 2014 are relevant because they were the prelude to the Buk TELAR’s deployment on 17 July. In regard to Girkin, the following is therefore significant.
From May 2014, Girkin was the Minister of Defence of the self-proclaimed DPR and commander-in-chief of its ‘People’s Army’. In this capacity, he coordinated the (combat) activities of army units, and his subordinates reported to him on the progress of the armed conflict. By his own account he was ‘in charge of the entire theatre of operations’. Thus, Girkin decided on the deployment of troops and weapons, and was aware that his DPR fighters possessed weapons that served the (sole) purpose of shooting down aircraft. And he knew that these weapons had in fact been used to shoot down aircraft in the period prior to 17 July 2014. He personally contributed actively in this regard, both by coordinating the fighting and by requesting personnel and equipment, including anti-aircraft weapons, and ensuring those weapons reached the right fighters. Without Girkin’s contacts with Moscow, and without his requests for military support, the TELAR would not have been delivered. Following the arrival of the Buk TELAR in Donetsk, a morning meeting took place at Girkin’s headquarters. Dubinskiy was with Girkin, and Kharchenko also joined him. After this, Dubinskiy communicated with various individuals about the deployment of the Buk TELAR that had just arrived. That day Girkin also communicated operational decisions to Pulatov. After the Buk’s deployment, subordinates immediately reported to Girkin, as the commander with supreme responsibility, and he subsequently decided what should be done next.
Girkin was thus the commander of an armed group fighting a conflict on a daily basis in the course of which aircraft were also shot down. He himself contributed actively to these activities. Girkin knew about the presence of the Buk TELAR. As commander-in-chief he could decide on its deployment and he played an active, organisational role in the fighting where that TELAR was first required and subsequently deployed. Girkin used the Buk TELAR’s crew as a tool in order to commit ‘his’ offence, i.e. the downing of an aircraft. As commanding officer Girkin is responsible, and as a functional perpetrator he is criminally liable.
We would note that the nature of his active role was different from that of the other defendants. Girkin was higher up the chain of command, and as a result was operating at more of a distance. We therefore do not find him in the vicinity of the Buk TELAR, but owing to his position he had decision-making power over the TELAR’s deployment. Given his more distanced role, his situation comes close to that in the classic Iron Wire case. In his case, too, one might speak of ‘control’ and ‘acceptance’. But Girkin does more than simply ‘accept’; he is actively involved in the offences with which he is charged. This can be seen most clearly after the downing of flight MH17, when panic reigns and the TELAR needs to be disposed of. At this point it becomes clear that Girkin is the person who decides what needs to be done.
This active involvement is even greater when it comes to the other defendants. Dubinskiy – like Girkin – directs events from a further remove, while Pulatov and Kharchenko are the commanders on the ground. Given their active role, the classic ‘control and acceptance’ criteria from the Iron Wire judgment do not apply to them. They were closer to the fighting, and on the basis of their actions they were responsible for the downing of flight MH17. We will now consider this in more detail.
In the period encompassed by the indictment, Dubinskiy also held a leadership position in the DPR. In that role he commanded units that in July 2014 were participating in the southern offensive, close to Snizhne – specifically the units of Pulatov and Kharchenko. He was the person who largely determined what would happen, how tasks would be allocated and what resources would be deployed. By ensuring he was informed about the losses in the armed conflict and the need for heavier air defences, and by using his position to articulate the need for a Buk, he contributed to the delivery of the Buk TELAR for the purpose of ‘his’ armed conflict.
Dubinskiy attended the meeting at Girkin’s headquarters on 17 July 2014. Dubinskiy was in a position to determine (in part) where and how the Buk should be deployed once it arrived. This is clear from his own words. On the morning of 17 July 2014 Dubinskiy takes part in conversations in which he mentions a ‘Buk-M of mine’ and says that he will now explain where it needs to go. He is also the person who communicates to Kharchenko and Pulatov that this Buk-M must be sent to Pervomaiskyi. In conversations later that day, including ones that took place after the downing of MH17, he also regularly refers to ‘our Buk’. He thus expresses a strong sense of ownership regarding the Buk, as well as a high level of decision-making power. Dubinskiy was therefore in a position to determine (in part) whether the Buk would actually be deployed or not, and in this leadership capacity he helped initiate and devise the particulars of the Buk TELAR’s deployment. When the Buk TELAR arrived in Donetsk, he was the first person to be called. This confirms that it was ‘his’ weapon.
After the TELAR was delivered, Dubinskiy decided to proceed with its deployment and made the necessary arrangements. He ensured that everything necessary to successfully shoot down an aircraft was in place. He did so in the knowledge that aircraft had been shot down previously under his leadership. So he also knew that if the plan were put into operation, an attempt would be made to shoot down an aircraft. That, after all, is the sole purpose of a Buk TELAR, and it was precisely what Dubinskiy wanted to accomplish. The Buk’s deployment was, by Dubinskiy’s own account, their ‘only hope’. After the missile was fired, Dubinskiy actively concerned himself with the removal of the TELAR.
Dubinskiy’s organisational, leadership role meant that his involvement in the downing of flight MH17 was such that he is responsible for it. He is therefore a functional perpetrator.
In July 2014 Pulatov held a prominent position in the DPR. He was in close contact with the other defendants, took part in decision-making at tactical level and played a leadership and coordinating role in the DPR’s troop movements to the south of Snizhne. Pulatov was also involved in the DPR’s air defence and worked alongside the other defendants in this regard. On 16 July 2014 Pulatov actively expressed the need for heavier anti-aircraft weapons. On 17 July 2014 that need was met, with the deployment of the Buk TELAR. Thanks to his position in the DPR and his active role in coordinating, accompanying and guarding the convoy, Pulatov had joint control over determining both that the Buk TELAR would be deployed and where it would be deployed. Pulatov wanted an aircraft to be shot down, and left the execution of that task to others. However, his coordinating role gave him the power to ensure that the Buk TELAR and its crew were taken to the appropriate location in order to commit this offence for him. Pulatov was in contact with the crew, and he used that crew as a tool to achieve his goal of downing an aircraft. As noted, Pulatov played an active role in the entire process of acquiring, firing and disposing of the Buk system. His involvement in downing flight MH17 was such that he is responsible for it. He is therefore a functional perpetrator.
Lastly, Kharchenko too held a leadership position in the DPR. Although he was subordinate to the others, on 16 and 17 July 2014 his position was such that he participated in the decision-making at tactical level. After all, he had direct access to Girkin, Dubinskiy and Pulatov. On 16 and 17 July 2014 Kharchenko was also performing this leadership role. He was leading a number of units that were part of the offensive to the south of Snizhne. On 16 July 2014 these units were dealing with serious losses owing to artillery attacks and air strikes. Kharchenko too needed better air defences, and so it was in his interest for the Buk TELAR to be deployed. On 17 July 2014 Kharchenko attended the meeting at Girkin’s headquarters. The subsequent allocation of tasks was such that Kharchenko would guard the Buk TELAR and accompany it from Donetsk to Snizhne. From that moment on, he was responsible for the Buk TELAR. After meeting with Pulatov in Snizhne, Kharchenko and his troops accompanied the weapon to the launch location. In this process he directed his troops to position the Buk TELAR in the agricultural field near Pervomaiskyi and ordered his subordinates to guard it. He picked up another subordinate but then returned to wait until the Buk missile had been fired. Less than half an hour after the downing of flight MH17, Kharchenko informed Dubinskiy that they were ‘at the spot’ and that they had just shot down an aircraft. Afterwards, Kharchenko was actively involved in first concealing and later removing the Buk TELAR.
Given the foregoing, Kharchenko was in a position to (help) determine whether, where and how the Buk TELAR would be deployed. He was thus also in a position to determine whether or not the offence would occur. Kharchenko was the final key component of the defendants’ plan. Throughout the day he actively helped realise that plan by arranging for the Buk TELAR to be made ready for its crew, with a view to the launch of a missile. This occurred just as Kharchenko planned. His involvement in the downing of flight MH17 was such that he is responsible for it. He is therefore also a functional perpetrator.
220.127.116.11.2 Joint perpetration
It is clear that the defendants were jointly responsible for the Buk TELAR’s deployment. That is why the principal charge in the indictment is ‘functional joint perpetration’. We will now discuss this concept in more detail.
18.104.22.168.2.1 An offender group that worked together closely
As we have noted, the defendants had been working together closely, each in his own capacity within the DPR, for quite some time. This is illustrated by their in-person meetings and their many phone conversations about the progress of the armed conflict in the period from 6 to 17 July 2014. It was the defendants who, each in his individual capacity, outlined the military strategy together. The fact that the chain of command determined that one individual had more say than another, and that Pulatov and Kharchenko’s roles were more ‘hands-on’ than Girkin and Dubinskiy’s, does not change this. Together they formed the group that was in charge. One of their goals was to shoot down aircraft of the Ukrainian air force. The Public Prosecution Service therefore views the defendants as a close-knit offender group, which sought to commit violent crimes against Ukrainian aircraft, among other things.
22.214.171.124.2.2 Deployment of Buk TELAR on 17 July 2014
On 17 July 2014 their goal was the same as on 16 July: they wanted to shoot down aircraft. This time they carried out their plan using a Buk TELAR. On 17 July 2014 the defendants again collaborated closely, as shown by their in-person encounters and their phone exchanges throughout the operation. We do not know exactly what the defendants discussed during their in-person meetings. This is not a problem from an evidential point of view, because we do not need to establish in detail who said what, or when they said it. These meetings, moreover, did not take place in a vacuum, and must be viewed in relation to the intercepted phone conversations the defendants conducted. Those conversations are clear. Girkin serves as the group’s direct line to ‘Moscow’, which as noted is relevant in regard to the Buk TELAR’s arrival. Dubinskiy talks specifically about ‘his’ Buk, and the Buk is their ‘only hope’. The name of the launch location, ‘Pervomaiskyi’, is also mentioned explicitly. It is therefore clear what they were talking about. And it is also clear whom they were communicating with. In intercepted conversations, Dubinskiy explains to Pulatov that the Buk is on its way to him (Pulatov), and he instructs Kharchenko to make the arrangements. In other words the defendants’ criminal activities are literally described in their phone conversations. When viewed in conjunction with other evidence, such as visual materials, it can be concluded that the criminal collaboration among the defendants was aimed at getting their Buk TELAR transported to the launch location and having the missile fired from there. The defendants’ active contribution in the run-up to the Buk TELAR’s deployment shows that they were responsible for the launch of the Buk missile. Their reactions and conduct after the downing of MH17 also make clear that the defendants saw the Buk TELAR as ‘their’ weapon and the downing of the aircraft as their achievement. All four defendants thus committed to a joint plan to shoot down an aircraft using a Buk missile. In such cases, the defendants’ actions must be specifically assessed in conjunction with one another and in connection with the intention shared by the group.
It is a logical consequence of military procedures that the four defendants did not continually act together and in each other's company throughout the process of acquiring, firing and removing the missile system. This is no impediment to a finding of joint perpetration. The point is that they worked together. The defendants, acting in their own capacity, each made a sufficiently weighty contribution to the implementation of their joint plan to shoot down an aircraft with the Buk TELAR. This shows that they also had the shared intention of downing an aircraft and thus the intention of killing the aircraft's occupants.
As noted, the defendants are not the ones who actually pressed the button to launch the Buk missile. But they were the ones who together caused this to happen in practice. The Public Prosecution Service therefore considers them functional co-perpetrators.
126.96.36.199.2.3 Conclusion – 1st and 2nd principal charges:
Girkin, Dubinskiy, Pulatov and Kharchenko can be designated functional co-perpetrators.
188.8.131.52.3 In the alternative: joint perpetration
Should the court find that the principal charges have not been proven, the Public Prosecution Service would submit the following in regard to the alternative charge of joint perpetration. Where active perpetrators are concerned there is often overlap between functional (joint) perpetration of an offence and the regular variant of joint perpetration. The defendants’ actions described above are therefore also relevant to the assessment of the alternative charges. And since – as we have noted – this offender group was focused on a particular aim, whereby all four defendants had committed to a joint plan to down an aircraft using a Buk missile, those actions must be specifically assessed in conjunction with one another and in connection with the intention shared by the group. The following should be viewed against that background.
There is sufficient lawful and convincing evidence that flight MH17 was downed by a Buk missile. The missile was launched by the crew of the Buk TELAR. There is no direct evidence that Girkin requested this Buk TELAR in the period prior to 17 July 2014, but given the previous weapons deliveries at his request and his direct involvement, it is very likely indeed. In any event, it has been made clear there was a need for stronger air defences and this resulted in a Buk TELAR being brought in from the Russian Federation. This weapon and its crew were provided at the initiative of the defendants. On 17 July 2014, all four defendants were aware of the presence of the Buk TELAR. Together they arranged for that Buk TELAR to be brought into position, for the missile launch to take place and for the removal of that Buk TELAR afterwards. Everyone had their own role to play. Girkin was ‘in charge of the entire theatre of operations’. On the morning of 17 July the already mentioned meeting took place at Girkin’s headquarters. Dubinskiy was with Girkin, and Kharchenko also joined him. At the end of that day Girkin was involved in arranging the removal of the Buk TELAR. That day Girkin gave instructions to Pulatov. Otherwise he kept his distance. Throughout that time, Girkin – as commander-in-chief of the People’s Army – approved the plan of shooting down aircraft with a Buk TELAR. The same conclusion can be drawn from the period after the downing. For example, when Dubinskiy told him that evening that ‘our people hit sushka with a BUK’, Girkin knew immediately what he was talking about.
The Buk TELAR’s deployment was primarily arranged by Dubinskiy. That day he gave instructions to Pulatov and Kharchenko. In accordance with those instructions, Kharchenko accompanied the Buk TELAR to the launch location, guarded it and concealed it after the missile launch. Pulatov coordinated the operation as instructed, met Kharchenko on the transport route and tried to reach the crew or someone who was in contact with the crew. Thus, he too was accompanying and guarding the TELAR, or in any event as coordinator he was supervising its delivery. This demonstrates the defendants’ dedicated commitment to implementing their criminal plan: to shoot down an aircraft. That dedication was reaffirmed by their continuing activities after the downing of flight MH17: their intensive communications after the missile was fired and their involvement in the removal of the Buk TELAR.
In view of the foregoing, on 17 July 2014 each of the defendants made a sufficiently weighty contribution to the criminal offences of which they are accused. Each of them, acting in his own capacity, cooperated with the others to shoot down an aircraft. As noted, they intended to work together, and they intended to shoot down an aircraft, meaning they also intended to kill the aircraft’s occupants. Since they each had the same criminal intent, they are each criminally liable for each other’s acts, even though they were not continually in each other’s immediate vicinity. As explained above, in an offender group that is focused on a particular aim, the shared intent demonstrated by its members’ joint actions carries more weight than any single defendant’s contribution to the offence. The defendants had a shared interest and a joint plan, and they implemented that plan jointly.
The fact that other parties actually fired the Buk missile is thus no impediment to a finding of joint perpetration, given the essential role the defendants played prior to (and after) the missile launch. The defendants ensured that the Buk TELAR and its crew were safely brought to the launch location and that once there, the crew members were able to shoot down an aircraft. All this was in service of implementing the defendants’ joint plan.
In summary, if the court should find that the charges of functional joint perpetration or functional perpetration have not been proven, the Public Prosecution Service believes that the defendants are guilty of joint perpetration (alternative charges under offences 1 and 2).
184.108.40.206.4 Charges in the further and furthest alternative
If the court should find otherwise, it must then decide on the charges in the further or furthest alternative: solicitation and being an accessory. Both variants are recorded in the indictment in the form of joint perpetration. This means that, given the defendants’ close and deliberate cooperation as set out by the Public Prosecution Service, every element contained in the bullet points in the indictment can be proven. As we have already said, there is only one element where this does not apply, and that involves the provision of a telephone with a Ukrainian phone number.
As regards the charges in the further alternative, the means of solicitation was abuse of authority. The defendants used their position of authority – with Girkin in the lead as the most likely link to the Russian Federation regarding the request for the Buk TELAR – to bring about the delivery of that Buk TELAR. This was done in the service of their unlawful conflict, in which there was a need for a Buk TELAR. By ensuring that everything necessary for the missile’s transportation and launch was in place, they also provided the opportunity and means for the offence to be committed.
With regard to the charges in the furthest alternative, the court will consider this option only if it finds that the contribution of one or more of the defendants was not of such weight as to be qualified as joint perpetration. This concerns the charge of being an accessory both prior to and (in Kharchenko’s case) at the time of the offences.
Therefore, even if the court finds insufficient evidence for joint perpetration, the defendants can in any event be held responsible for soliciting or being accessories to the offences. In this connection, all implementing actions included in the indictment can be proven with the exception of the provision of a telephone.
Under offence 2 in the indictment, the defendants are charged with various forms of participation in the murder of all passengers and crew of flight MH17. This means that as well as acting with ‘deliberate intent’ the defendants must also have acted with ‘premeditation’. In our closing speech we noted that, given the planned nature of their actions, the defendants committed this murder with premeditation. Little more needed to be said, since it is clear that the defendants did not act in the sudden heat of passion. Given the course of events of 16 and 17 July 2014, as set out above, it can be concluded that the defendants had time on numerous occasions to consider the significance and consequences of their joint decision to deploy the Buk TELAR, and to take those factors into account. The fact that they probably did not intend to hit flight MH17 but rather a military aircraft, does not alter the fact that their intent was to down an aircraft and kill its occupants, or the fact that this was a premeditated act.
220.127.116.11 Conclusion evidential question 3
In its reply to the defence’s statement of the case, the Public Prosecution Service explained how, in its view, the indictment should be assessed by the court. We also discussed the legal framework of functional perpetration and joint perpetration. We have explained in detail why convicting the defendants of the principal charges under offences 1 and 2 is the most appropriate course of action. We have also explained why, in the event that the court should acquit the defendants of the principal charges under offences 1 and 2, there is sufficient lawful and convincing evidence to convict the defendants of the alternative charge of ‘regular’ joint perpetration under offences 1 and 2. Lastly we have indicated what we believe the court’s judgment should be, with respect to the charges in the further alternative (solicitation) and the furthest alternative (being an accessory), in the event that the court should consider these options.
To be clear, we stand by the application we made during our closing speech. Girkin, Dubinskiy, Pulatov and Kharchenko should be designated functional co-perpetrators (principal charges, offences 1 and 2). However, if the court should acquit the defendants of those charges and instead convict them of the alternative charges under offences 1 and 2, the same responsibility and culpability apply. It would therefore make no difference to the sentence to be imposed.
5. Claims by the injured parties
We now come to the claims of the injured parties. We will start by responding to the defence’s position concerning the claims of the next of kin represented by the Legal Aid Team (RBT). Then we will consider the claim of the injured party which the Public Prosecution Service sought to have declared inadmissible in its closing speech. After that we will address the RBT’s further substantiation with regard to a number of other injured parties. Finally we will address two compensation claims that have not yet been discussed.
5.1 Position of Pulatov’s defence in relation to RBT claims
5.1.1 Statement of the case
The defence has argued that the claims of the injured parties represented by the RBT are inadmissible because the defence does not have sufficient expertise concerning Ukrainian law to assess them properly. In the alternative it was argued that in the event of a conviction, Pulatov is not the person ‘who should bear all that responsibility and all those compensation claims’.
5.1.2 Position of the Public Prosecution Service
We explained earlier that there is no impediment to a Dutch lawyer assessing the claims of the injured parties under Ukrainian substantive law. The court, the defence and the Public Prosecution Service have sufficient information to assess the claims, partly thanks to the submission of expert reports by the RBT. If the defence had wanted more information, it could have engaged an expert itself to obtain such information. It did in fact do so in relation to other matters in these criminal proceedings. We therefore maintain the position that there is no reason for a declaration of inadmissibility, whether on the ground advanced by the defence or on any other grounds.
The Public Prosecution Service concludes that the defence has failed to provide a substantiated rebuttal of the injured parties’ claims. This means that under procedural law, these claims can be allowed. With respect to assessing the amount of the non-pecuniary damage, Ukrainian law gives the court a certain degree of discretion. Consequently, the Public Prosecution Service maintains the position that it took in its closing speech.
5.2 Additional documents concerning injured party represented by Ms Collignon
In its closing speech the Public Prosecution Service said that it considered the claim of an injured party represented by Ms Collignon to be inadmissible. The claim concerns the loss of the injured party’s minor grandson with whom, according to the claim, she cohabited. The Public Prosecution Service's reason for applying in its closing speech for the claim to be declared inadmissible was the lack of sufficient explanation confirming that the injured party had the close relationship to the victim that is required by law.
After the closing speech Ms Collignon submitted additional documents to further substantiate that relationship. In the Public Prosecution Service’s opinion, the statements submitted are sufficient to establish that the two were related. But there is still a lack of sufficient substantiation to show that they cohabited as part of the same family. The documents submitted after the closing speech show that the injured party regularly lived with the victim, sometimes for long periods, and that they regularly went on holiday together. She was regarded as a second mother and at least until 17 July 2014, she also provided financial support to the family to which the victim belonged. This information and the information submitted earlier on the matter of cohabitation was not unequivocal. In addition, the period of cohabitation was too short and insufficiently continuous to be treated for the purposes of the law as cohabitation.
The Public Prosecution Service therefore maintains the position it expressed in the closing speech in the cases of the four defendants, in other words that the claim of this injured party is inadmissible.
5.3 Additional documents concerning other injured parties
Additional documents were also submitted in relation to other injured parties discussed in the closing speech. Because the Public Prosecution Service already considered their claims admissible on the basis of the substantiation previously provided, we have no comment to make on those documents.
5.4 Two other injured parties
5.4.1 Amount of claims
We now come to the compensation claims of two next of kin that have not yet been discussed. Their joinder form was submitted before the closing speech and supplemented at a later date. They therefore joined the proceedings on time.
The next of kin each claim a sum of €40,000 in non-pecuniary damages. In their explanation of the compensation claims the next of kin emphasise the consequences of the death for the victim. This is very much an expression of love and pride. It is inherent in the family ties that the next of kin have experienced psychological suffering as a consequence of the loss of their loved one. The explanation of the claims expresses this as ‘emotional loss’ and ‘emotional distress/psychological damage’. This psychological suffering gives rise to their non-pecuniary damage.
In addition the two next of kin each claim half of the pecuniary damage that has been adduced. They claim a total sum of €3,000 in damages for the loss of a laptop belonging to the victim. They also claim a total of €12,473.16 in damages in relation to ‘travel costs to the crash site in Ukraine in July/August 2014’.
5.4.2 Procedural questions under Dutch law
18.104.22.168 A single joinder form
The court previously asked the Public Prosecution Service to address the requirements applicable to a single compensation claim, such as the use of one claim form per injured party.
The Public Prosecution Service does not believe that any procedural objection arises from the fact that the two injured parties included their claim in a single joinder form and provided a joint explanation of their claims. What the claims relate to is clear. These next of kin say that having to fill out the form separately would also place an excessive psychological burden on them.
22.214.171.124 Competence of the court
The court is competent to take cognisance of these two injured parties’ claims. This competence is based on article 51f of the Code of Criminal Procedure and arises from the court’s competence in the criminal proceedings against the defendants, irrespective of whether they are conducted as a defended action or in absentia. The court’s competence in the criminal proceedings in turn arises from the Netherlands’ jurisdiction over these criminal proceedings and all the charges in the indictments in these proceedings.
126.96.36.199 Admissibility of the injured parties’ claims
With respect to the admissibility of these two injured parties’ claims, the Public Prosecution Service would observe the following.
188.8.131.52.1 Non-pecuniary damage
The two next of kin have sufficiently substantiated that they had the close relationship to the victim that is required by law. The psychological suffering is more than sufficiently connected to the causing of the crash of flight MH17 and the murder of those on board. The connection between the non-pecuniary damage adduced by the two injured parties and the downing of flight MH17 is a given.
This means that the requirement that the non-pecuniary damage for which claims are submitted can be regarded as direct damage suffered by victims within the meaning of article 51f, paragraph 1 of the Code of Criminal Procedure, as a result of the criminal offences of which we believe the defendants should be convicted, is satisfied.
184.108.40.206.2 Pecuniary damage
With respect to pecuniary damage, the Public Prosecution Service would observe the following.
The costs claimed as ‘travel costs to the crash site in Ukraine in July/August 2014’ are costs incurred by the two next of kin in the context of paying their last respects to their loved one and to other victims in Ukraine. According to the explanation provided for these claims, they should be deemed financial loss within the meaning of article 6:96, paragraph 2 of the Dutch Civil Code. Under this provision, reasonable costs for establishing damage and liability are eligible for reimbursement. The item ‘travel costs’ as adduced by the two next of kin cannot be deemed to fall within this category. The Public Prosecution Service also sees no reason for admissibility under article 51f of the Code of Criminal Procedure. The costs incurred cannot be deemed direct damage within the meaning of paragraph 1. Although the next of kin understandably regard their visit to the crash site as a ‘private funeral’, in legal terms it does not constitute a funeral. The costs adduced cannot therefore be deemed cost of funeral arrangements within the meaning of article 51f, paragraph 2 of the Code of Criminal Procedure.
The Public Prosecution Service concludes that the claims of the two injured parties are inadmissible in this respect.
The victim’s laptop was lost in the crash. The Public Prosecution Service assumes that the next of kin are her heirs. This means that joining the criminal proceedings is possible on the basis of article 51f, paragraph 2 of the Code of Criminal Procedure. Nevertheless, as will be explained later, this damage is not eligible for compensation.
220.127.116.11 No disproportionate burden on the criminal proceedings (article 361, paragraph 3 of the Code of Criminal Procedure)
In our closing speech we said that the consideration of the claims presented by the RBT did not place a disproportionate burden on these criminal proceedings. The same applies to these two remaining claims. The compensation claims of these injured parties are therefore also admissible.
5.5 Assessment of claims under Ukrainian law
5.5.1 Applicable law
The merits of the claims must be assessed on the basis of Ukrainian civil law.
The actions of the defendants which the Public Prosecution Service believes are to be proved will, upon conviction, constitute the following legal elements under Ukrainian civil law: an ‘illegal act’, ‘culpability’ on the part of the defendants and a sufficient ‘causal connection’ with the damage to which the claims relate./ Consequently, the defendants are liable for the damage suffered by the two next of kin and, in principle, a right to compensation exists.
The next question is which damage is eligible for compensation under Ukrainian law.
18.104.22.168 Pecuniary damage
Ukrainian law allows ‘pecuniary damages’ to be compensated. The loss of the laptop does not fall within this category. The claim should be denied in this respect.
22.214.171.124 Non-pecuniary damage
With respect to non-pecuniary damage, the Public Prosecution Service's assessment corresponds with the assessment of the claims presented by the RBT, as discussed previously in the closing speech. That means that the non-pecuniary damage claimed is eligible for compensation under Ukrainian law. This damage can be deemed ‘moral damages’ within the meaning of article 23, paragraph 2 (2) of the Ukrainian Civil Code.
5.5.4 Persons entitled to take legal action
Finally, as parents of the victim, the next of kin also have a right to take legal action under Ukrainian law.
5.5.5 Assessment of non-pecuniary damage
In its closing speech the Public Prosecution Service concluded in relation to the next of kin represented by the RBT that the following amounts can be awarded for non-pecuniary damage:
- for category I: spouses and registered partners of the victims and life partners, children, parents and guardians of the victims who cohabited with those victims: an amount of €40,000;
- for category II: non-cohabiting children and parents of victims: an amount of €35,000;
- for category III: brothers, sisters, grandparents, grandchildren, aunts and uncles, nephews, nieces and cousins and in-laws who cohabited with victims as part of the same family: an amount of €30,000.
We ask the court to regard the explanation of this damage assessment as having been inserted here.
The two injured parties we are discussing today would be in category II if they had been represented by the RBT. From the perspective of equality under the law, we believe it is important for all injured parties in this case to be compensated in equal measure for their non-pecuniary damage. This means that the two injured parties are both eligible for an amount of €35,000. The Public Prosecution Service asks that that amount be awarded to each of the two injured parties.
The two injured parties explained that they have received payments from third parties in connection with the crash of flight MH17. These consisted of multiple payments from Malaysia Airlines and a donation from the Malaysian oil company Petronas. They have not received any compensation from an insurance company.
The Public Prosecution Service’s position on these two claims is the same as its position on the claims presented by the RBT. Because there are no grounds for applying deductions, the Public Prosecution Service sees no reason to deduct the payments received from the amounts to be awarded in damages. Subrogation and recourse do not arise in this case either.
5.5.7 Other proceedings
The two next of kin are involved in the cases that are pending before the International Criminal Court (ICC) and the European Court of Human Rights (ECtHR) as joint applicants.
In view of their nature, these ongoing proceedings are not relevant to the assessment of the compensation claims submitted against the individual defendants in these criminal proceedings.
5.5.8 Joint and several liability
The Public Prosecution Service’s view is that an order to make payment on a joint and several basis is also possible and appropriate in relation to these two injured parties. The Public Prosecution Service therefore asks that payment be ordered on this basis.
The two injured parties are claiming the statutory interest on the compensation to be awarded, as of the date on which the damage arose. Just as in relation to the claims of the injured parties represented by the RBT, the Public Prosecution Service considers that in the interest of the proper administration of justice the court should award statutory interest from the date on which the judgment in this case becomes final and unappealable.
5.6 Compensation order
As said, we believe that the claims of all injured parties in this case should be allowed in equal measure. This means that the Public Prosecution Service also asks that the compensation order be imposed on a joint and several basis in relation to these two injured parties. The amount per injured party is equal to the amount of non-pecuniary damages.
5.7 Committal for non-compliance
Finally, we believe that committal should be used to enforce compliance, ensuring that the compensation order is paid. In our closing speech we asked, in relation to the claims submitted by the injured parties represented by the RBT, that the number of days’ committal be set at the statutory maximum of one year. We ask that the court regard the two claims discussed today as being covered by this too. We would also note that the application of committal does not eliminate the payment obligation.
In summary, the Public Prosecution Service continues to support the claims submitted by the injured parties represented by the RBT. Despite the further explanation provided, the Public Prosecution Service still considers the claim of one injured party to be inadmissible.
The claims of the two injured parties discussed for the first time today are admissible in relation to the non-pecuniary damage claimed. Their claims in this respect can be allowed for an amount of €35,000. In addition, the compensation order, with committal for non-compliance, should be imposed for that amount. The statutory interest may be awarded from the date on which the judgment in this case becomes final and unappealable. The defendants should be required to make payment on a joint and several basis. Any other or additional non-pecuniary damage claims should be denied. The two injured parties’ pecuniary damage claims are inadmissible or should be denied.
In the Girkin case the court rightly observed that a number of seizure items were listed twice. At your request the Public Prosecution Service has produced a specification of our earlier application in relation to those items. You received that specification prior to this hearing. A copy of it has been added to our reply to the defence as Annexe V and we ask that the court takes its decision on seizure accordingly. We would also ask the court to substitute this application for our previous application in relation to these specific items.
7 Sentencing recommendation
7.1 Response to the defence invoking Article 8 of the European Convention on Human Rights (ECHR)
We now come to the sentencing recommendation. In its closing speech the Public Prosecution Service explained the reasoning behind this recommendation in great depth, reflecting on the nature of the offences, the seriousness of the consequences, the division of roles and the defendants’ personal circumstances. For guidance we looked at penalties that have been imposed in other cases, both in the Netherlands and abroad.
The defence has not responded to this. Pulatov denies any involvement in the offences, and for that reason he has seen no reason to adduce circumstances that may justify a lighter penalty, if he should be convicted.
The defence has asserted that the JIT acted improperly by naming Pulatov as a defendant at an international press conference and showing his photo. According to the defence, the disclosure of his name and appearance was an infringement of the presumption of innocence, and due in part to this, criminal proceedings against Pulatov should be discontinued. We have previously explained why this is not justified. In that connection we also noted that, in so far as Pulatov was harmed by these actions, this can be factored into the assessment of the penalty to be imposed. We will now address this point in greater detail. And because it is also relevant to the cases of his co-defendants, we will do so in all four cases.
To begin with, we would note that when it comes to determining a penalty, the court is in principle free to take account of any harm the defendants might have suffered as a result of the public attention surrounding their cases. This is the case even if that harm was not caused by the Public Prosecution Service and even if the defendants’ privacy was not infringed within the meaning of Article 8 of the ECHR. Those last two factors are, however, of importance for assessing the seriousness of the harm and the degree to which it can be taken into account in deciding on the penalty. For this reason we will first discuss whether the disclosure of the defendants’ names and photographs was compatible with Article 8 of the ECHR. Then we will consider the seriousness of the harm the defendants might have suffered as a result of the public interest in their case and what this means for the eventual penalty.
7.1.1 Compatibility with Article 8 of the ECHR
Let us begin with the question of whether the disclosure of the defendants’ names and photographs constituted an unjustified infringement of their privacy.
126.96.36.199 Public nature of the announcement of the trial and the subsequent proceedings
This is certainly not the case where the criminal proceedings are concerned. There is a compelling general interest in holding public proceedings, and this is a basic principle in a democracy governed by the rule of law. Moreover, there is worldwide interest in these proceedings, both on the part of the victims’ next of kin and among the public at large. In order to ensure that this criminal trial was public, as required by law, it was necessary to make the proceedings accessible to the next of kin and the wider public by means of a livestream. Over the course of the proceedings the names of the four defendants were mentioned, and photos and videos were shown in which they could be seen. This was necessary for the public hearings before the court. Given the interests at stake and the forseeability of the defendants’ names and photographs being disclosed during the trial, this cannot be considered an unjustified infringement of their privacy. Furthermore, it should be noted that the defence raised no objection to the public disclosure of Pulatov's name and video statement. Indeed: they contributed to such public disclosure themselves, by showing several of Pulatov’s home-made videos in court.
The defence is focusing its critique solely on the press conference held by the Public Prosecution Service on 19 June 2019. This seems selective, since the specific intent of this press conference was to announce a public trial in which a court would assess the possible criminal liability of four individuals for the downing of flight MH17, something which had been called for, in general terms, by the United Nations Security Council, the next of kin and ordinary people all over the world. This is another reason why the announcement of these proceedings had to be publicised on a global scale. At the press conference it was announced which defendants would be prosecuted for which offences and when the trial would begin. During those criminal proceedings the identity of the defendants would in any case be disclosed and, in all likelihood, images of them would be shown. For example, the case file includes various videos in which the defendants can be seen making relevant statements, and various published interviews in which they discuss the downing of MH17. As we have said, a number of those images were ultimately shown in court. In addition, it was necessary to take account of the possibility that the defendants would want to mount a defence in public hearings. And indeed, that is what Pulatov did. Given that the defendants in these criminal proceedings would be tried publicly, there was no reason why their identities could not be disclosed.
188.8.131.52 The right of the next of kin and the public at large to information
Secondly, the next of kin and the public at large also had the right to know which individuals would (and would not) be prosecuted. In the preceding years, a number of different names had been circulating in the media as potential defendants, including Girkin, Dubinskiy, Bezler, Borodai, Tsemakh and the individuals who used the call signs ‘Orion’ and ‘Delfin’. We are talking about an investigation that was being followed by people around the world, and a great deal of relevant information could only be obtained through public channels. Given that various names were being bandied about, the next of kin and the public at large deserved clarity about who would and would not be prosecuted. Additionally, the next of kin had the right to complain about the decision to prosecute one person and not prosecute another. What is more, the general public was more affected by these offences than would be the case in other criminal investigations. In our closing speech we already noted the 16 countries that had lost nationals in the crash, the images of the disaster that were greeted with horror and outrage around the world and the unanimous resolution by the UN Security Council, which called for an investigation and accountability. Thus, the public at large was also entitled to clarity about who would and would not be prosecuted.
There was no real possibility of informing the next of kin and the broader public in a more limited way. Even if the Public Prosecution Service had chosen to inform only the the next of kin and to withhold this information from the general public, it would not have been possible to do so in a different, more discreet manner, as we did not have the addresses of all the family members who had a right to this information. This was an exceptionally large group of people. Firstly, not all next of kin entitled to this information were known to the authorities of the country in question. Secondly, the authorities of the countries concerned were not able to provide the current addresses of all known next of kin either. For that reason alone, the JIT and the Public Prosecution Service had to publicly disclose the key developments in the investigation and the decision about who would be prosecuted. This increased the chance that all the next of kin would be informed, in accordance with Dutch law, and that they would be able to exercise their rights as victims in both the investigation and the criminal proceedings.
184.108.40.206 Importance of public disclosure in context of investigation and transfer of prosecution
Thirdly, there were other interests related to criminal procedure underpinning the decision to make the defendants’ names and photos public: that of the investigation and and the transfer of the defendants' prosecution. The Public Prosecution Service, after all, had not only decided that they should be prosecuted; it also proposed taking over that prosecution from Ukraine and ordered the arrest of the four suspects. This is why their names were placed on the national list of wanted persons and why international arrest warrants were issued by Interpol. In order to serve those warrants, it was important that these individuals would be recognised and found as soon as they crossed the Russian or Ukrainian border. It was for this same reason that the Dutch police and Interpol published photos of the wanted individuals online and that their photos were shown at the press conference of 19 June 2020.
In addition, the Ukrainian public prosecutor had to publicly disclose the names of the four defendants in connection with the transfer of their prosecution, which the Netherlands had proposed to Ukraine. Prior to that transfer the Ukrainian public prosecutor had to inform Girkin, Dubinskiy, Pulatov and Kharchenko about the accusation against them (via a written notification), so that the defendants could exercise their rights under the rules of criminal procedure in Ukraine. Because the defendants’ whereabouts were unknown, this notification process took place in the form of a request for legal assistance to the Russian Federation (in the case of Girkin, Dubinskiy and Pulatov) and the publication of the notification in the official gazette of the Ukrainian government and on the SBU’s website. Thus, it was also in the defendants’ interests under Ukrainian rules for criminal procedure that their names and the accusations against them were made public during the press conference.
In short, there were various reasons for publicly disclosing the names and photos of these defendants, and this was done in accordance with the relevant rules.
220.127.116.11 Foreseeability of public interest
Furthermore, the defendants could have foreseen that their identity would be made public when they decided to deploy a heavy-duty missile system below an international civil aviation route before the eyes of the world.
18.104.22.168 Sub-conclusion with regard to compatibility with Article 8 of the ECHR
The fact that their identity became public during the announcement of the trial and over the course of these proceedings was thus compatible with Article 8 of the ECHR.
7.1.2 Serious harm
That said, it is still possible that the defendants were harmed by media coverage of their prosecution. The next question is whether such harm, even if it was no fault of the Public Prosecution Service and is compatible with Article 8 of ECHR, may warrant a lesser penalty. In order to make that determination, it is necessary to consider the severity of the harm.
22.214.171.124 Nature of nuisance
It goes without saying that once the whole world knows that a given individual is suspected of having downed flight MH17, they will the subject of public attention. This plainly constitutes a certain degree of nuisance. The severity of that nuisance depends on the particular circumstances of the case in question. In the Russian Federation or in territory under the Russian sphere of influence or Russian control, the defendants are less likely to be harassed than in other countries. After all, the dominant narrative in those places is that they are innocent. The fact that they currently have no choice but to stay there is prompted less by a fear of public opprobrium than by the fact that there is an international arrest warrant hanging over their heads. If they cross the border they will be arrested. This restriction of the defendants’ freedom cannot be considered in their favour because they have no lawful interest in evading arrest. In brief: within their own, pro-Russian circle the defendants may well be subject of public interest, but they need not expect public outrage or condemnation.
It is clear from the defendants’ own statements that the harm they have experienced as a result of this situation has been limited. For example, in reply to a question from his lawyer about what impact the trial has had on his daily life, Pulatov said the following:
‘It’s had a very negative impact on my life. I can’t find work anywhere. I can’t move around from place to place. Everyone calls me to ask about my role in this case. Why I'm being accused. And there comes a point where you’ve just had enough of it.’
The fact that people keep asking Pulatov why he has been charged must be annoying, but this is a far cry from the ‘kangaroo court’ described by the defence. We have been unable to find any other statements by Pulatov himself about the impact of media attention on his private life. If we have overlooked anything in this regard, we would like to be notified by the defence in the form of a rejoinder. The court can then incorporate this into its assessment.
In an interview Dubinskiy said that
‘after the start of the case, [he] had completely had it with journalists (...) the ones who work for “our” papers, the ones who work for papers that were not quite “ours”, let’s say, and (...) from the foreign media’.
Dubinskiy went on to say that ‘literally two weeks after the start of the case’ a journalist rang his bell and asked him for an interview. According to Dubinskiy, he responded by firmly showing the journalist the door. Then he said to the journalist:
‘I live in a democratic country, so if I want to give an interview, I will, and if I don’t want to, I won’t.’
Dubinskiy then said that the journalist offered him substantial sums of money, but that he declined the offer. According to Dubinskiy he told the journalist:
‘You know, I’ve served for 30 years – over 30 years – in the army. I’ve got a solid pension (…) which I'm totally satisfied with.’
Here, too, there is nothing to suggest that the defendants are suffering severe nuisance, let alone that they have been subjected to a ‘kangaroo court’ or a ‘media storm’ as the defence contends in Pulatov's case.
126.96.36.199 Defendants have sought publicity themselves
Each one of the defendants has gone public as defendants in this case. After the announcement of the decision to prosecute them, on 19 June 2019, Dubinskiy and Girkin repeatedly spoke about their case in various media and online forums. In doing so the defendants also appeared on camera. Video interviews of Girkin, Dubinskiy and Kharchenko, in which they spoke about the case or the JIT investigation, were published online. The same goes for Pulatov. After the announcement that he would be prosecuted, he spoke about his case and the JIT investigation (under his account name, but identifiably as himself). In addition Pulatov allowed himself to be interviewed by his lawyers on video, and those videos were played in court and via livestream. After the JIT’s press conference he thus repeatedly chose to present himself to the world as a defendant in the case.
188.8.131.52 Sub-conclusion with regard to the severity of the harm
In brief: if we consider the defendants’ own statements, the harm they suffered as a result of the public announcement of the decision to prosecute them and of the public nature and livestreaming of these criminal proceedings was within reasonable bounds. In addition, we must conclude that the defendants themselves evidently saw no reason to limit that harm, because they actively sought publicity. Consequently any harm they suffered from the public interest in their cases was relatively limited.
7.1.3 Impact of public interest on the penalty
That harm, i.e. the personal nuisance experienced by the defendants as a result of the public interest in their cases, does not outweigh the seriousness of the offences – downing flight MH17 with fatal consequences and the murder of the 298 people on board – the deep and irreversible suffering of countless family members and the great shock this caused to local residents in Ukraine and the rest of the world. That nuisance experienced by the defendants – the (in Pulatov’s words) ‘very negative impact’ that the public interest in this trial has had on his life – was not only foreseeable; it pales in the face of the great seriousness and consequences of their actions.
Given that the defendants have not cited any other circumstances that would justify a lesser penalty, the Public Prosecution Service sees no reason to alter its sentencing recommendation of life imprisonment.
This brings us to the end of our response to the defence’s statement of the case. Before closing we would like to recall the words of a few of the next of kin one last time. While exercising their right to address the court, they said the following about the importance of this trial, the truth and justice:
‘Finally, taking part in these court procedures of the MH17 criminal court case feels like one of the last acts of love that I can perform for my son, and all those other lives lost when MH17 was shot down. It is my sincere hope that this court will find justice for us and our loved ones.’
‘Because once the truth has been established, I might be able to leave some of this behind and move on a bit. So my life becomes more bearable.’
‘After seven years you would think missing someone gets easier. But it doesn’t.
Hidden in the depths of grief, sits a fire of “hope” that will never extinguish. Justice is a painfully long road, one where all you have left to hold onto is hope.’
On that painfully long road to justice, the judgment of this court is a crucial step.