Day 1: Perspective Summary of the day Monday 7 March 2022
Day 2: Not a fair trial (pleadings on 9 March 2022)
On this day the Defence argued that the trial was not fair according to ECHR Article 6. Because of the disposition of the JIT and the Prosecution and the reports in the media, the defendant has already been depicted as guilty. In addition, the investigation and the content of the case file were said to be biased and flawed. From the outset, the focus was on what was called the main scenario, and the Prosecution was no longer receptive to other possible causes for the crash of flight MH17. The defendant was intentionally excluded during the preliminary enquiry, and the Defence does not have all documents from that preliminary enquiry either, explained the Defence. As a consequence, the defendant has not been given the opportunity to present a genuine defence against the view of the Prosecution. These are serious and irreparable infringements on essential rights of the defendant and on fundamental principles pertaining to a fair trial. According to the Defence, the charges are therefore inadmissible, and the charges by the Prosecution against the defendant should be deemed inadmissible.
Days 3 and 4: Identification of the missile (pleadings on 11 and 16 March 2022)
On the third and fourth days of the pleadings Counsel for the Defence argued that the investigation by the Prosecution was too incomplete and inadequate to conclude that a BUK missile had caused the explosion at the MH17 aircraft.
The questions put to the NFI focused too much on the BUK missile scenario, the investigators lacked sufficient expertise, and the damage pattern on the pieces of wreckage was said not to rule out a different missile system. In addition, according to the Defence, the different missile parts found at the crash site and in pieces of wreckage, such as a green lump from the groove of the cockpit window, a lump from the truss, splinters and a tubular part, do not appear to be from the same type of missile and thus are not from the missile that the Prosecution submits caused an explosion at flight MH17 either. Moreover, no relation to the crash of flight MH17 can be determined conclusively for some of these parts.
In the view of the Defence, how and when they ended up in the area has not become clear, while other missiles are known to have been launched in the surroundings after the aircraft crashed (in the conflict in Ukraine). Nor was a conclusive relationship demonstrated between the missile parts and other metal splinters found in the aircraft and the victims. In addition, the forensic investigation has not yielded conclusive evidence that the metal splinters found in pieces of wreckage and bodies came from a (warhead of a) BUK missile, and the presence of certain traces in the explosives investigation is inconsistent with the use of a BUK missile (with that specific warhead).
Counsel for the Defence has asked a panel of American experts to perform what is known as a peer review, for example, regarding whether a missile – and, if so, which one – is identifiable based on the procedural documents available. This panel is said to support the position that based on the case file, no missile can be identified as responsible for the explosion near the MH17 aircraft. The Defence therefore does not believe that the charges made can be declared proven.
Days 5-8: Launch site (pleadings on 18, 21, 23 and 24 March 2022)
The next question addressed by the Defence was: if the MH17 was hit by a BUK missile, was that missile launched from the farm field near Pervomaiskyi? Counsel for the Defence holds the view that, if a BUK TELAR (the system with which the alleged BUK missile is said to have been launched) was in and around Snizhne on 17 July 2014, that TELAR would have been there because of its possible deterrent effect or as part of a military deception strategy (misleading the adversary).
The Defence believes that the witness statements about the smoke plume said to have been left by the BUK missile cannot be used as evidence, because the witnesses were deeply influenced, and the reliability of the photographs is highly questionable, the interview reports are flawed, and the Defence was not allowed or able investigate. According to the Defence, the witness statements and photographs available do not yield an unambiguous impression. Nor can any conclusion about the location of the vapour or smoke trail be reached, except that it must have been somewhere around Torez – Snizhne – Stepanovka – Pertrivske, while the cause of the smoke trail is not clear from the case file. The Defence argued that the ‘black spot’ in the farm field indicates nothing. Regarding the tracks in the field and at the intersection, the Defence has said that the tracks cannot have come from a TELAR, and that a TELAR cannot launch a missile on that site. The tracks may have many other causes.
In this context the Defence has also analysed the reports issued by Almaz-Antey, which manufactures BUK missiles. In those reports Almaz-Antey has answered the questions relevant to the one about the launch site, such as about the impact of detonation on preformed fragments in a warhead, the perforations to be expected at a certain path of a BUK missile on pieces of wreckage after an explosion at an altitude of 10 kilometres and the perforating capacity of fragments. According to the Defence, Almaz-Antey has answered those questions integrally to ensure that the review is as comprehensive as possible. Given its years of experience developing BUK missiles, during which countless dynamic tests were conducted, this company has more advanced knowledge than that of the Netherlands Aerospace Centre (NLR) and the Royal Military Academy (RMA), explained the Defence. Using that integral approach and based on that experience, Almaz-Antey has concluded that the launch site was not in the area assumed by the Prosecution but in an area located circa 24 kilometres to the west. The Defence is therefore of the opinion that the damage pattern found on the pieces of wreckage from the aircraft is possible, only if the launch happened from the area designated by Almaz-Antey.
Next, the Defence spoke about the two witnesses M58 and X48, who according to the Prosecution witnessed the BUK missile being launched from the farm field near Pervomaiskyi. The Defence believes that the statements from these witnesses cannot be used toward the evidence, because these statements are unreliable or in any case could not be investigated (properly) by the Defence. The Defence notes that especially the statements by witness M58 turn out to be unreliable, because the witness was asked leading questions by interviewers who were convinced that the MH17 aircraft had been downed by a BUK missile fired near Pervomaiskyi. An expert on interviewing witnesses who was consulted by the Defence supports this conclusion. The Defence moreover considers it perfectly conceivable that witness M58 is confusing his recollection with the launch he observed on 16 July 2014 of a Strela missile that hit a fighter jet. Nor can the statements by witness X48, who is important for the evidence for the Prosecution, be used as evidence according to the Defence; in any case the evidence may not be based exclusively or decisively on that statement. After all, the Defence was not granted the opportunity to question this witness (or to have this witness questioned), and the Defence has no information at all about this witness.
According to the Defence, there is no conclusive evidence that a BUK missile was fired from Pervomaiskyi. For example, there is no soil sample from the farm field demonstrating that, there is no residue from a BUK missile at the crash site, and no satellite and radar images or radar data are available of the launch; none of the intercepted conversations reveal this either. Nor did other – local – witnesses see the launch of the BUK missile. Finally, the Defence mentioned the exculpatory statements by the defendants themselves. The Defence has reached the final conclusion that there is insufficient legal proof that the MH17 was taken down by a BUK missile.
Day 9: Alternative scenario (pleadings on 25 March 2022)
If it cannot be proven that flight MH17 was taken down by the BUK missile that the Prosecution envisages and is said to have been launched from the farm field near Pervomaiskyi, then acquittal should result. This does not require determining the actual course of events. Should the court, however, find the evidence sufficient to assume that the events were as the Prosecution has argued, then, according to the Defence on Day 9, it matters whether a different scenario is possible as well. The Defence then explained that and why the scenario that flight MH17 was unintentionally hit by a BUK missile fired by Ukrainian armed forces from the surroundings (south) of Zaroshchenske is credible and plausible and is not inconsistent with the evidence available either. According to the Defence, the outcome of this criminal trial should be acquittal for this reason as well.
Days 9 and 10: Involvement of the defendant (pleadings on 25 and 28 March 2022)
On these days the Defence presented submissions regarding the involvement of the defendant, in the event that the court accepts the scenario of the Prosecution (that flight MH17 was taken down by a BUK missile from the farm field near Pervomaiskyi). The Defence has noted that the Prosecution cannot provide a conclusive answer regarding the specific course of events during the launch of the missile, and that the defendants have not been charged with ‘pressing the button’ themselves or with issuing direct instructions to do so. A criminal conviction of the defendant for firing a BUK missile, with all the associated consequences, would be out of order, if he knew only – based on telephone conversations – about the BUK missile.
Additionally, the Defence concludes that it cannot be proven that the defendant knew the BUK system was present either. The transmission mast data that the Prosecution uses as evidence, according to an expert on this matter engaged by the Defence, are insufficiently accurate and reliable to reach any conclusions about who conducted a conversation, and exactly where the speaker was located. According to the Defence, the telephone conversations do not reveal that the defendant issued instructions to (e.g.) the other defendants (who have not put forward a defence) and in doing so had the BUK TELAR guarded and/or concealed. The defendant was tasked with intelligence and was not part of a close organized group intent on taking down aircraft. Comparative speech analysis has not revealed decisively that the defendant took part in certain specific telephone conversations or issued orders to the BUK-TELAR crew members. The argument by the Prosecution that anti-aircraft artillery capable of hitting targets at high altitudes was needed lacks foundation in the case file. The defendant was not the person who requested the BUK system. Nor was he the link to its crew. The Defence notes the way that a BUK-TELAR system is deployed, and based on that reaches the conclusion that the defendant was not part of that group (of perpetrators). Significantly, according to the Defence, the Prosecution does not consider the defendant to have been involved at the ‘start’ of the events or at their culmination.
The Defence then described the legal qualifications of involvement in the criminal offence in the charges; what matters is not that the defendant committed a criminal act himself, but that he was involved in (criminal) actions by others. The Defence rejects this. It cannot be inferred from the actions of the defendant that he ensured (in sufficient measure) that others took down MH17 aircraft with a BUK missile. This is especially true, because who the BUK TELAR crew members were is unknown, and determining the relationship of authority and the relationship between them, as required by law, is impossible. Nor can it be concluded based on the case file that the defendant knowingly accepted as qualified in legal terms that the BUK missile would be fired. In addition, the close and intentional collaboration required by law did not exist between the defendant and the persons who fired the BUK. Nor has a sufficiently essential contribution toward firing a BUK missile been proven. According to the Defence, the more and most alternative forms of collaboration charged cannot be proven either, so that acquittal should result. Incitement, for example, requires ‘abuse of authority’ and ‘providing opportunity, means or intelligence.’ Because the case file does not reveal that the defendant was in contact with the BUK-TELAR crew at any point, this cannot have been the case, argues the Defence. Nor does the case file reveal that the defendant made taking down the MH17 ‘possible or easier,’ as the law requires for complicity. The defendant did not collaborate closely and intentionally with others in inciting or in being an accomplice to the downing of flight MH17.
A conviction moreover requires intent, with respect to both the involvement of the defendant in the punishable offence and of the punishable offence itself. The Defence argues that the defendant lacked such intent with respect to the predicate offence. He cannot be said to have accepted the considerable chance that an aircraft would crash, and/or that those on board would be killed by a BUK missile. That the defendant could have accepted the considerable chance that flight MH17 would crash is still less applicable. Murder requires ‘premeditation.’ Nobody, however, had a preconceived plan to take down the MH17 aircraft.
Regarding ‘combatant immunity,’ the Defence stated that the defendant waives any active claim to it, because he was not in Ukraine on behalf or at the remit of the Russian Federation and does not want to use this as an excuse. The defendant wants the facts to be reviewed in a fair trial. Because the Defence believes that the defendant should be acquitted, they did not discuss a sentence to be imposed. In their view, the claims from the injured parties should be denied.
Day 11: Conclusion
On day 11 the Defence delivered concluding remarks. They summarized their arguments from the previous days of hearings, according to which the arguments put forward by the Prosecution should be questioned. In doing so, they emphasized how important it is to consider seriously and allow for the indications and arguments for the scenario that the situation and course of events were different from what the Prosecution suggested. After all, injustice is to be averted at all costs.
Closing remarks by the court and the way forward
The court wrapped up the days of pleadings with a brief retrospective. The conclusion of the pleadings takes the MH17 trial to the stage of reply and rejoinder. This means that the Prosecution will respond to what the Defence has argued, after which the Defence will be given the floor again to respond. The court mentioned several topics, such as the forms of participation in the charges, the seizure of (a hundred) objects in containers and incorporating the (peer review) report from the panel of American experts commissioned by the Defence, on which the court in any case expects the Prosecution to react or express a position.
Counsel for the Relatives will also have the opportunity to respond to what the Prosecution and the Defence have said about the claims for compensation submitted by relatives.
On 16 May 2022 court will reconvene. At that point, Counsel for the Relatives will speak first to respond to the point concerning the claims for compensation. Next, the Prosecution will deliver the reply. Three days are available for the reaction from Counsel for the Relatives and the reply from the Prosecution.
Court is adjourned until 16 May 2022 at 10.00 hours.