After opening the hearing, the court discussed various matters. Aside from the announcements about the date the judgment is to be delivered, at the end of the day in court on Wednesday 18 May 2022 the court granted the request from Counsel for the Relatives to lift the previous court-ordered restrictions on access to the case file. This means that relatives may peruse the content of the prosecution file directly via their counsel, and that they may receive copies from the Counsel for the Relatives team. As is standard practice, relatives may use those copies of documents from the case file exclusively for the intended objective in the criminal procedure. The court may and should rely on the relatives to do so with care.
Counsel for the Relatives addressed the court on 16 May, and the Prosecution spoke on the other days.
Reaction from Counsel for the Relatives
Counsel for the Relatives observed first that the Prosecution shares their view regarding various legal principles relating to the position of the relatives. The one matter in dispute concerns the amount of compensation: the Prosecution believes that a lower amount should be granted than does Counsel for the Relatives. Counsel for the Relatives also observed that Defence Counsel does not contest the compensation – “the consequences may justify any compensation,” mentioned Defence Counsel, although their client is not the one who should pay. Counsel for the Relatives disagrees with the position of Defence Counsel that assessment of the compensation burdens these criminal proceedings excessively. In addition to arguing this in previous written filings, they substantiated this again today with various arguments. Counsel for the Relatives is of the opinion that Defence Counsel has not or has not provided sufficient substantiation in contesting the claims for compensation. According to a ruling by the Dutch Supreme Court, this means that the claims should be granted, unless the court finds those claims to be unlawful or unfounded. The latter not being the case, the court should grant the claims.
Reaction from the Prosecution
The Prosecution addressed the criticism from Defence Counsel as to whether the Prosecution is entitled to request the court for a conviction (admissibility of the Prosecution), considering that the trial is not fair. This concerns e.g. the presumption of innocence (a person is innocent until proven guilty), how the investigation proceeded and the right of Defence Counsel to examine witnesses. The Prosecution does not believe the trial has been unfair. Defence Counsel performed its duties very broadly, including ensuring a fair trial, reviewing incriminating evidence and providing new information.
The Prosecution is of the opinion that Defence Counsel has not presented a concrete, unambiguous and credible alternative scenario. Nor has Defence Counsel managed to cast reasonable doubt on the incriminating evidence raised against the defendant. The Prosecution addressed the evidence it raised in this case in the context of the arguments from Defence Counsel: downing with a BUK missile, the launch site and the reactions by the defendant to it (as heard in recorded phone conversations), the reliability of the witnesses (and their statements) and the statement from Almaz-Antey, the BUK manufacturer. In discussing the role of the defendant in downing the MH17, the Prosecution concluded that the defendant had an important position within the DPR, as he had a major part in supervising and coordinating the troops in the field and in supplying heavier anti-aircraft equipment: the BUK-TELAR with which the MH17 was shot down. The Prosecution also explained that this concerns a special form of criminal perpetration: being responsible alone or in conjunction with others for someone else who actually commits the criminal offence (functional co-perpetration). According to the Prosecution, all defendants are jointly responsible for others firing a BUK missile at the MH17, causing the MH17 to crash and the deaths of all those on board. Moreover, this concerns murder, because firing the BUK missile at an aircraft did not occur in the heat of the moment.
The Prosecution agrees with the Counsel for the Relatives that the claims from the relatives should be granted, because Defence Counsel has not or has provided insufficient substantiation in contesting them. The court will need to rule on the compensation amounts. The Prosecution has devised 3 categories: I persons who were living with the victim, II family members who were not living with the victim and III family members other than at I, who were living with the victim. The applicable compensation amounts are € 40,000.00, € 35,000.00 and € 30,000.00. Other compensation that the relatives received previously is not to be deducted from these amounts, and all defendants are jointly and severally liable for such payments (i.e. each defendant is accountable for the entire amount, and if one pays all, the others need not pay anymore). The Dutch State will need to collect the amount from those who are convicted. The Prosecution does not see the circumstances noted by Defence Counsel as cause to reduce the sentencing demand to less than a life sentence.
For the full texts of the reply from the Prosecution, see the website of the Prosecution. Repliek MH17 16,17 en 18 mei| MH17 vliegramp | Openbaar Ministerie (om.nl)
The way forward
Court will reconvene on Wednesday 8 June 2022. Defence Counsel will then have the opportunity to respond to the reply (rejoinder). Three days have been made available for Defence Counsel: 8, 9 and 10 June 2022.
Following the rejoinder, the judgment will be delivered on a date to be determined. According to the schedule composed previously, Thursday 22 September 2022 is a formal court day as well. At that hearing, the court is expected to state only that the hearing will be suspended immediately until 17 November 2022.
At this time, it remains uncertain whether the judgment can be delivered on 17 November 2022 or 15 December 2022.