Day 1: Retrospective, investigation, evidence
On the first day of their address the Prosecution, after providing a recap of the events on 17 July 2014, described the investigation and the validation of the investigation data. They also outlined alternative scenarios. Next, the Prosecution examined the question as to whether the Dutch criminal court has jurisdiction to consider the downing of Flight MH17 and provided an affirmative answer. They discussed the indictment and the role and position of the accused therein, stating: “The four accused were not regular soldiers but self-declared volunteers who took up arms and contributed to the chaos and lawlessness in East Ukraine. Accordingly, they are subject to Dutch criminal law and may therefore be prosecuted for causing the crash of the MH17 and the murder of those on board pursuant to articles 168 and 289 in the Dutch Criminal Code.”
Regarding the evidence, the Prosecution explained that incriminating evidence was checked and exculpatory evidence sought for the accused. The evidence in this case is largely supported by footage and intercepts. The Prosecution sees no indication whatsoever that the incriminating intercepts, photographs and videos were manipulated. The Prosecution then addressed the intercepts that may be attributed to the accused and the response provided by the accused. The Prosecution also described the progression of the battle in East Ukraine and the role of the accused. The route the Buk TELAR covered from the territory of the Russian Federation to the firing location is relevant here. Photographs and video footage taken by witnesses were presented, and intercepts were played.
Day 2: More about the evidence
On the second day of their address, the Prosecution discussed the evidence that the MH17 was shot down with a Buk TELAR. The Prosecution mentioned all relevant facts and circumstances prior to and following the crash. They covered the witness statements, the investigation into the facts in Ukraine, the investigation of the weapon used and the pattern of damage to the aircraft. The Prosecution also considered the statements by the accused in their address and sentencing request and concluded as follows.
All four accused provided military guidance in the supply, deployment and removal of ‘their’ Buk TELAR. This constitutes functional co-perpetration. As such, they did not personally commit a criminal offence but did so by means of others, which renders them criminally liable as perpetrators. All four accused worked together closely to shoot down aircraft. All four were involved in violence against Ukrainian aircraft. That was the focus of their intent. In need of a heavier weapon to this end, they requested it and had it delivered, used it and had it removed after use. After shooting down the aircraft, they claimed the crash as their own accomplishment. The Prosecution finds that the accused have been proven guilty of A) causing Flight MH17 to crash, so that the 298 people on board were killed, and B) murdering the 298 people on board. This is known as committing two crimes in one and the same act.
Claims from injured parties
The Prosecution provided the court with ‘advice’ about these claims for compensation for pain and suffering. The Prosecution sees no impediment to the court considering these claims, which are subject to Ukrainian civil law in this case. Determining the amount of damages is difficult. Rulings by Ukrainian courts do not provide guidance in assessing this case. The Prosecution considers the amounts that are standard in the Netherlands for emotional damages in the event of death as a result of a criminal act to be a reasonable guideline and has therefore assumed a base amount of € 20,000. That amount is to be increased because of the exceptional circumstances in this case. The Prosecution has noted in particular the extensive and ongoing media attention and the inaccessibility of the crash site, as a result of which the relatives were unable to view the site themselves and had to watch the repatriation of the remains of their loved ones from a distance. Although no amount of money can truly do justice to the distress caused, the Prosecution has set compensation at € 30,000 to € 40,000 per relative per victim, with the exact amount depending on the type of relationship or bond between relative(s) and victim(s). There is no reason to subtract other payments to the relatives from these amounts, because this is not provided under Ukrainian law either.
The Prosecution has asked the court to issue the compensation order. This means that the Dutch state will advance the amounts of compensation and recover them from the persons sentenced. The Prosecution believes that the accused may be held severally liable for the compensation payments. This means that each of the accused may be deemed responsible for the entire amount, and that if one of them pays, the others no longer need to pay. Finally, the Prosecution has requested the measure of coerced detention for a maximum duration of one year, if the accused are convicted. In that case, a person sentenced who does not pay will be imprisoned to force him to pay the compensation.
The court will also need to take a decision about the items seized, such as the remnants of the aircraft and missile parts. The Prosecution argues that the aircraft parts should be returned to Malaysia Airlines, and that the missile parts are to be forfeited. This is to be done only once the judgement is final. The outcome of a possible appeal therefore needs to be awaited.
Day 3: Request for sentencing, note from the court and the way forward
On the third day the Prosecution formulated the request for sentencing.
The Prosecution noted the serious nature of the offences: the downing of an aircraft, thereby killing those on board, and the distress thus inflicted on all the relatives. As civilians, the accused were not authorized to resort to violence. The accused were aware of the risk of hitting civilian aircraft that might be flying over the battle zone. Nothing suggests that the accused considered this risk, according to the Prosecution. The Prosecution also blames the Russian government for failing to recognize the risk that a civilian aircraft would be hit. Despite denying any involvement whatsoever in the armed conflict in East Ukraine, the Russian Federation supported the insurgents with artillery and smuggled a Buk system, stripped of nearly all distinctive marks, across the border.
Because the consequences of a criminal offence are relevant for determining the sentence, the Prosecution once again considered at length the experiences of the relatives after learning that the MH17 had crashed, and that all those on board had been killed, including the shock of the announcement and the wait for and uncertainty about the repatriation of the remains. These experiences have caused many relatives to suffer extended and ongoing psychological injury. The consequences for the relatives have been immense. The international community has been shocked by the crash of the MH17.
Next, the Prosecution tried to base sentencing on similar cases, but the MH17 situation is unique. The Prosecution explained which guidelines and circumstances apply to sentencing in murder cases. A life sentence is given only in exceptional cases. Mistaken identity does not matter there: murder concerns killing a person, not causing the death of a specific individual.
This case involves devastating, methodical and deadly violence. The accused initiated, organized and had others perpetrate the criminal offence. A life sentence is appropriate and indicated, according to the Prosecution. A life sentence, according to the regulations in the Netherlands, is not at odds with the European Convention on Human Rights, because a commission may assess whether a pardon merits consideration over time.
The allocation of roles between the accused is not cause for issuing different sentences. Two of the accused were in charge from a distance, and the other two were operational commanders. The Prosecution severely reprimands the accused who did not appear at the trial for failing to account for their actions. The same holds true for the accused concealing the offences, hiding and removing the Buk TELAR and actively disseminating untrue scenarios of the course of events. The accused who is conducting a defence in these criminal proceedings is the only one who has expressed regret for the distress of the relatives and the desire that the truth be revealed and those responsible punished. In the view of the Prosecution, however, he has not cooperated in the criminal proceedings. The Prosecution sees no personal circumstances of the accused that would be cause to mitigate the sentence. The accused have expressed no remorse or regret but in fact actively contributed to the additional distress that the relatives experienced.
Because of the particulars of this case, the duration of these criminal proceedings do not justify mitigation of the sentences, according to the Prosecution.
At the end of their address and sentencing request, the Prosecution demanded that all four accused be sentenced to life in prison.
The Prosecution has expressed the hope that the accused will serve their sentences in the future. In the interest of realizing this, the Prosecution has also demanded that they be remanded in custody immediately, so that the accused may be incarcerated, even if the judgement is not yet final.
Conclusion by the court and the way forward
At the end of this day, the court spoke briefly and noted that delivering the address and sentencing request concludes a stage. Next, because the accused are considered to be innocent until the court decides otherwise, the court encouraged listening to the Defence attentively and with interest, when they present the defence arguments in March 2022.
The court has announced the following schedule. In the cases being tried in absentia the hearing has in fact been concluded, but the accused still have the option of presenting a defence in the proceedings. On 7 March 2022 court will reconvene at 10.00 hours for the oral arguments by the Defence. From 16 May 2022 three days have been reserved for the Prosecution and the Counsel for the Relatives to respond to the Defence (reply). Then on 8 June 2022 the Defence will have another opportunity to respond again (rejoinder). Next, the court will enter the period of deliberations. If all goes as scheduled, the court may deliver the judgement on one of the three days reserved: 22 September 2022, 17 November 2022 or 15 December 2022.
This court hearing is adjourned until 7 March 2022 at 10.00 hours.