Today the court resumed its session after adjourning on 8 November 2021.
Request for Mutual Legal Assistance
At the hearing on 8 November 2021 the court referred matters to the investigating judge, including further execution of the request for mutual legal assistance submitted to the Russian Federation. Today, clarity was provided in this matter.
On 3 December 2021 the Ministry of Justice received notice from the Russian authorities that a request can be rejected based on the European Convention on Mutual Assistance in Criminal Matters, if the Party requested, in this case the Russian Federation, holds that executing the request might harm essential interests of the country. The Russian authorities state that in the documents the questions submitted to be put to witness Muchkaev concern data from military and other matters subject to non-disclosure pursuant to Russian law. Execution of said request for mutual legal assistance may impact state secrets of the Russian Federation and, consequently, essential interests of the Russian Federation. This is why the Ministry of Justice of the Russian Federation is unable to help follow through on the Dutch request for mutual legal assistance to a Russian court that has jurisdiction.
Following this response, the investigating judge holds that the referral order by the court to interview Mr Muchkaev as a witness cannot be carried out.
As such, all investigative acts by the investigating judge have been completed to the extent possible, and the investigating judge has ended the investigation.
301 Claims Submitted
The court has reported that the relatives of the victims have filed 301 claims for compensation.
Requests by the Defence
Next, Counsel for the Defence addressed the court about the course of events relating to witness S45. Based on the law, the European Convention on Human Rights and case law, the Prosecution is required to provide all documents relevant to the decision to be taken by the court, both to the court and to the Defence. The Defence holds that the Prosecution has not applied this so-called relevance criterion correctly.
The Defence requests the court to order that all documents pertaining to witness S45 be provided to the court, and that an additional official report be drafted by the investigating judge about the course of events surrounding her decision about non-disclosure with regard to witness S45.
Clarification on the Claims by Relatives
Subsequently, Counsel for the Relatives was invited to clarify the claims for compensation submitted. They highlighted that the attitude of the accused and their failure to accept responsibility for downing MH17 has added to the distress. This continues to complicate coping with the loss. Therefore, the relatives of the victims have one last resort, which is to claim financial compensation to mitigate distress.
Ukrainian law applies to the assessment of the claims for compensation. Only claims for compensation for pain and suffering have been filed, and these were previously submitted to the court in writing. Experts on Ukrainian law have clarified these claims. Estimating the compensation under Ukrainian law resembles the process under Dutch law.
A list was provided as well as clarification of the payments that relatives have received from other parties, such as Malaysian Airlines and Petronas. Counsel for the Relatives holds that those payments cannot be subtracted from the amounts claimed in these proceedings, as they do not replace the personal liability of the perpetrators. The relatives have not received payments for pain and suffering from insurance companies.
Book of Sorrow
Counsel for the Relatives has submitted a number of written impact statements to the court, the Prosecution and the Defence. These statements substantiate the claims, together with the impact statements that relatives delivered in the previous block of hearings. They call this the Book of Sorrow.
Questions by the Court
The court has said that it will read these new written impact statements attentively as well.
Next, the court asked several specific questions about the claims from the injured parties (the relatives). Counsel for the Relatives will respond to these in writing. In addition, the court has stipulated five principles that it will apply in assessing the claims.
Prosecution’s Response to Requests by the Defence
The Prosecution responded to the requests by the Defence in respect of witness S45. The Prosecution noted out that the court had previously rejected the request by the Defence to interview witness S45, as the court deemed that statement to be insufficiently relevant, and because the statements by S45 vary. The Prosecution holds that the requests must be rejected and explicitly indicated the security risk that a witness such as S45 faces.
The Defence responded briefly and said – among others – that it failed to understand why all information about witness S45 is protected for security reasons.
The Way Forward
On 20 December 2021 the court will take a decision on the request by the Defence. Next, the Prosecution will be allowed to address the court and request sentencing.
Court has adjourned this hearing until Monday 20 December 2021 at 10.00 a.m.