Requests by the defence
The court denies the request to inspect pieces of wreckage, other than the reconstruction of MH17, with a view to assessing the damage pattern. The experts have viewed the wreckage mounted on the reconstruction as well as photos of individual pieces of wreckage. This has been sufficient for them to come to their findings. None of these experts, who have been questioned by the investigating judge, indicated when interviewed that additional or other pieces of wreckage were needed in order for them to provide an expert statement. Should the defence nonetheless wish to inspect other pieces of wreckage, it may make a concrete request explaining the relevance of viewing that specific piece of wreckage.
The option of inspecting the reconstruction, with its own expert, remains open to the defence.
Apparently, the Netherlands Aerospace Centre and the Royal Military Academy have produced a laser scan to facilitate analysis of the damage present on the wreckage. The court requests that the prosecution add the data from the scan to the prosecution file so that the defence can present it to their expert.
Questioning of Netherlands Forensic Institute experts
The defence may put oral questions to the two NFI experts to further clarify written answers previously provided by them and their credibility. The interviews scheduled to take place over a number of days afford sufficient time to do this.
The defence has not yet taken a position on whether its client is a participant in certain intercepted conversations. Nor has it claimed that any intercepted conversations may have been manipulated, and if so, which ones. It is therefore not possible for technical investigation to be conducted into possible manipulation of intercepted conversations. The only investigative work that is useful at this juncture is to ascertain whether the participant in the intercepted conversations who the prosecution deems to be the defendant, is the same person in each instance. That work has already been ordered.
The report that was broadcast last week on the Nieuwsuur programme and the prosecution’s response to it make clear that the investigation yielded intercepted conversations beyond those that are currently in the prosecution file. The prosecution has been instructed to make available to the defence for its perusal all conversations intercepted from the four accused persons’ telephones between 1 and 20 July 2014 inclusive, to which it has access as a result of the investigation and which are not yet in the prosecution file.
Inadmissibility of claims submitted by relatives
The defence requested that the court rule on whether it is possible for the relatives’ claims for compensation to be dealt with as part of these criminal proceedings, given that doing so would involve addressing complex matters in the context of Ukrainian and/or international law. The court’s response to this is that it could only decline to hear the claims at this stage if it were already apparent that they could not be awarded. This is, however, not the case.
Nor can it be said that dealing with the claims would place a disproportionate burden on the criminal proceedings. The MH17 criminal trial will be exceptionally extensive and complex and is also expected to take place over a relatively long period of time (compared to other criminal proceedings). It is appropriate that the relatives’ claims be dealt with as a component of these criminal proceedings, and doing so will not overshadow the criminal trial.
Like the counsel for the relatives, the defence may seek the assistance of a civil law lawyer or expert with respect to matters of international law.
All other requests made by the defence are denied.
Requests by counsel for the relatives
The four accused and the defence are ordered not to disclose information or provide documents to third parties concerning the claims submitted by relatives. This covers lists submitted, individual claims for compensation and the associated forms, supporting evidence, and any information on payments to the relatives by Malaysia Airlines.
The court expects the prosecution also to abide by this prohibition.
Should the defence nevertheless need to provide documents to the defendant or to external counsel, it must consult the prosecution and counsel for the relatives in order that an anonymised copy may be provided.
The hearing will resume on Friday, 21 May 2021 at 10:00 CEST. The agenda for the judicial site visit (inspection of the MH17 reconstruction) which is to take place on 26 May 2021 will be set then.
The trial proper
The court intends to open the MH17 criminal trial proper on Monday, 7 June 2021 and, through examining and discussing the content of the prosecution file, to elucidate the key questions which it has already begun to address:
• Was flight MH17 shot down by a BUK missile?
• Was a BUK missile fired from an agricultural field near Pervomaiskyi?
• Did the accused play a role in this?
The personal circumstances of the accused will also be discussed insofar as relevant information is available in the prosecution file.
It is expected that the investigation will not have been completed before the trial opens. Consequently, the progress made in the investigation and what parts of it will have to be dealt with at a later stage will be discussed at the public hearing.
The relatives’ right to address the court
The early stages of the trial (June/July 2021) will be followed by an opportunity for the relatives to address the court in September 2021.
Those relatives who wish to exercise their right to address the court only after the investigation has been fully completed and the results have been discussed in court, may do so at a later stage.
Claims for compensation
The court set deadlines for, first, the defence to file written submissions on the claims submitted by the relatives, then the prosecution, and for counsel for the relatives to respond.