Today the court delivered an interlocutory decision, which comprises rulings on the requests for investigation submitted by the defence, the counsel for the relatives and the Public Prosecution Service at previous hearings.
This decision marks the end of the pretrial stage in the proceedings.
How the requests were reviewed
The court explained how the requests for investigation were reviewed. Equality of arms is one of the important principles here. This principle figures in Article 6 of the European Convention on Human Rights (ECHR). In the view of the court, this principle does not mean that the defence should be given the opportunity to repeat the entire investigation as conducted by the Public Prosecution Service. Nor does the principle entitle the defence to all information from the investigation by the Public Prosecution Service, give the defence carte blanche to question (all) witnesses and/or experts or allow the defence to review the methods and results of the investigation by the Public Prosecution Service. The equality of arms principle does mean that the defence must be able to read the case file properly and discuss it with its client. The defence must be able to verify incriminating evidence – if there is cause to do so – and to investigate that further. The defence must also have the opportunity to present exculpatory evidence. Another principle arising from Article 6 ECHR is that the criminal trial must be concluded within a reasonable time. Requests for investigation relating to incriminating and exculpatory evidence therefore need to be submitted by the defence as soon as possible.
The court asked the defence to structure its requests for investigation in 2 sections: requests for investigation to be made without consulting the client and requests for investigation made after the defence consulted the client. The defence had the opportunity to submit the first section in the hearing block on 28 September 2020 and the second section in the hearing block of November 2020. The defence said that various requests for investigation were ready in September but needed to be modified following consultation with its client. According to the court, however, the statement the defendant made in October 2020 was no different from the statement he had apparently made back in February 2020. The court is therefore of the opinion that many of the requests for investigation the defence has submitted now in November could have been submitted earlier.
The court has consistently assessed whether requests for investigation are sufficiently relevant for the defence to grant them. Requests for investigation submitted later are reviewed more rigidly by the court and may therefore be rejected. In each case, the defence needs to explain why an investigation is relevant is for its defence.
If the defence wishes to review the reliability or credibility of information, it will need to specify why such information is unreliable or implausible. If the defence is unable to do this, then in the view of the court there is a fishing expedition. That means: investigation – hoping – to obtain information of use to the defence.
Requests for investigation that the court considers to be pointless shall be rejected. One example would be asking questions that a witness already said he was unable to answer, for lack of knowledge or expertise.
The court has also assessed whether a request for investigation concerns important evidence.
The defence need not demonstrate how the MH17 was taken down. That is the duty of the Public Prosecution Service. If the Public Prosecution Service is unable to demonstrate that adequately, the court will acquit the defendant. Investigating an alternative scenario is not required to ensure a proper defence. If the defence argues, however, that based on the evidence of the Public Prosecution Service something else may have happened, and that therefore the defendant is not guilty, the court will review this. The court has also checked whether requests for investigation concern direct or circumstantial evidence.
The court has considered whether questioning witnesses again is worthwhile. In this case, the court believes that witness statements need to be considered with caution, because many witnesses were in a war zone at the time. They may be traumatized or feel more or less involved and sympathize with one side or the other, and witnesses may have – unintentionally – influenced each other. Witness statements may therefore conflict with one another. Questioning witnesses again is therefore not always worthwhile.
Decision on the requests for investigation
The requests for investigation granted by the court are conveyed concisely below. For the sake of simplicity, not all requests for investigation that have been rejected are indicated. Please see the interlocutory decision of 25 November 2020.
The requests for investigation from the defence concern 4 topics:
1. Alternative scenarios
2. Did a BUK missile take down the MH17?
3. Was that missile launched from a farm field near Pervomaisky?
4. The role of the defendant.
1. Alternative scenarios
The court is not ordering additional investigation of alternative scenarios for taking down the MH17. In the view of the court, the defence has not demonstrated that an alternative scenario is possible based on the evidence that the Public Prosecution Service has put forward for the main scenario. The court also believes that a discerning assessment of the main scenario is more relevant for the defence. The request to investigate the warplane scenario, in which the MH17 is presumed to have been taken down by a fighter jet, has therefore been rejected by the court.
The court is granting the request by the defence regarding two witnesses who according to the defence can say whether the damage pattern corresponds with a BUK missile or a different weapon. One of these two witnesses can bring the defence to the reconstruction of the MH17. The examining magistrate has previously been instructed by the court to appoint an expert from Almaz-Antey who can state whether the damage pattern of the MH17 is compatible with that from a BUK missile.
The court previously instructed additional investigation on the effect of the BUK missile, calculation of the launch area and the damage pattern. The defence may question an NFI expert about this again.
2. Did a BUK missile take down the MH17?
The NFI report is of great importance in judging this criminal case. The examining magistrate will be tasked with questioning an NFI expert who has drafted a summary report. The questions may address only the knowledge and expertise of the expert and what he described in his summarizing report. In the previously assigned investigation of the effect of a BUK missile, the launch site and the damage pattern, the defence may put questions to experts from the Netherlands Aerospace Centre, the Royal Military Academy, Almaz-Antey and TNO. The examining magistrate shall determine how the experts may be questioned.
3. Was that missile launched from a farm field near Pervomaisky?
The court finds the evidence arising from investigation by experts to be more important than statements by witnesses. The court also finds evidence from the launch site to be more important than evidence concerning the inbound and outbound route of the BUK-TELAR.
The court decided previously to interview witnesses who have given statements about the launch site. Another witness will be added. A colonel who is presumed to have been in charge at that time of the 53rd AAM Brigade that allegedly transported the BUK missile may be interviewed as will. The court notes that the request to interview the colonel comes from the defendant, a citizen of the Russian Federation, so that the Russian authorities may now be releasing information about this brigade.
The court is granting the request to put additional questions to 3 witnesses who have described their observations in the immediate vicinity of the Furshet supermarket in Snizhne. This is because the court assumes that that the Public Prosecution Service would also like to base the evidence of the involvement of the defendant in taking down the MH17 on his presence in the immediate vicinity of that supermarket. Because the defendant has denied being present there, the defence has an interest in putting additional questions to those witnesses.
Because the court previously issued instructions for additional investigation of possible distortion of footage from the inbound and outbound route, and because evidence about the inbound and outbound route is less important, the request for further additional investigation on this has been rejected. The court is instructing additional investigation into an unusual shadow on a photograph. The defence may also put additional questions to a witness who gave an account of the situation at the supermarket. The examining magistrate is also instructed to verify certain telecom data.
The request by the defence to question a co-accused about the use of certain terms in telephone conversations and their meaning has been granted by the court. The court has inferred from a video-recorded statement by this co-accused that he is willing to testify.
The court has instructed the Public Prosecution Service to add certain official reports that the defence had requested and an NFI report about an investigation of explosives to the case file.
The defence may interview again a witness who stated he was present at the checkpoint near Pervomaisky. The same holds true for a witness who mentioned having been at the launch site shortly after the crash and having taken pictures and made video recordings there. The owner or user of the farm field near Pervomaisky may be interviewed again as well.
4. The role of the defendant
In a video recording shown during the hearing the defendant commented on telephone conversations played in the video. As far as the court is aware, the defendant has not contested the geolocation data for those conversations. The court has decided that additional investigation should be conducted on 1 telephone number to examine whether the defendant took part in several conversations that conducted with that number. Such investigation might, according to the court, involve comparing the voice in the telephone conversations with the voice of the defendant in the video footage of the defendant now available.
Because the defendant is charged with committing the criminal offences together with co-accused, the court believes that the defence has an interest in being able to question the co-accused. The examining magistrate will be tasked with investigating whether this is possible. The co-accused may then give their statements as witnesses, rather than as accused. The court believes the co-accused may be willing to do this.
The defence may interview a witness presumed to have been in proximity of the launch site and to have spoken about ‘Giurza,’ who is alleged to have been in Snizhe.
The colonel/commander of the 53rd Brigade mentioned above may also be interviewed again by the defence regarding the role of the defendant. A witness presumed to have been in contact with the crew of the BUK-TELAR may be questioned as well.
The defendant has agreed to reply to questions put by the court in writing. The court, however, is of the opinion that the regular procedure should apply. That means that the court is inviting the defendant to appear in court and answer questions there from all parties to the proceedings.
Requests by the counsel for the relatives
The court has decided regarding requests to provide – sections of – the case file that counsel for the relatives will receive 1 copy of the digital file. This file is not to be disseminated.
Requests by the Public Prosecution Service
The court is rejecting the request by the Public Prosecution Service to have the examining magistrate assemble a compilation of footage of a witness. The Public Prosecution Service would like to show such footage at the hearing on the merits and considers the impact of the compilation to be important. The court has rejected this request before and is maintaining this decision. The video of a co-accused will be added to the case file by the court.
The way forward in this criminal case
Now that the pretrial stage has been completed, the hearing on the merits is approaching. The investigations approved must now be launched and completed. The court does not find it necessary for all investigations to be completed before the hearing on the merits begins. What does need to be clear, however, is which ones have not yet been completed, and how long they will take.
The court will discuss how specifically it would like to conduct the hearing on the merits by correspondence with the Public Prosecution Service and the defence before 1 February 2021.
The presiding judge has adjourned the hearing until 1 February 2021 at 10.00 hours.