The relatives speak
In the past three weeks over ninety relatives of victims addressed the court. They described the loss of their loved ones and shared their sorrow, pain, frustration and in some cases also their anger, as well as their memories of many cherished moments. Showcasing photographs, videos and mementoes has given the loved ones of these relatives a face in the courtroom as well.
These candid and personal touches included have deeply impressed the court. Speakers opened up their hearts and often the depths of their souls to all listeners. Everybody who spoke radiated a unique inner strength. As a result, the right to address the court has been exercised beautifully.
Questions from the court to the Prosecution following media reports
Questions from the court
Following recent media reports, the court asked the Prosecution questions at the end of the day in court on Friday 10 September 2021. In the first place they concerned a report from 2 September 2021 about a letter from the Joint Investigation Team (JIT) that was disseminated among the residents of the Russian city of Kursk. In that letter it is noted that ‘the subsequent investigation into the crew of and the decision-making about the use of the Buk-TELAR is very advanced.’ On 8 September 2021 a report then appeared in the media about an attempt to arrest two Russian servicemen who stated that they had been ‘involved in launching the Buk missile that was used to shoot down Flight MH17.’
The court has asked the Prosecution whether the subsequent investigation mentioned in the first report has yielded documents that might reasonably be of interest for decisions to be reached by the court in the cases against the four accused now being prosecuted. Based on the second report, the court has asked whether the Prosecution is aware of the activities mentioned in this report, and whether this information is accurate. The court would also like to know whether this has given rise to information or documents might reasonably be of interest to these criminal proceedings.
The reason for the court to raise these questions in this block of hearings is that the Prosecution noted at the start of the examination in court in March 2020 that at this time four accused are being prosecuted, but that investigation continues into the crew of the alleged Buk-TELAR and those responsible in the so-called higher chains of command. To date, however, as far as the court is aware, the additions to the case file do not relate to that subsequent investigation.
Answer from the Prosecution
At the end of the day in court on Monday 13 September 2021 the Prosecution answered the questions of the court and also addressed additional questions submitted in writing by the Defence.
The answers from the Prosecution were essentially as follows.
- Regarding the ongoing investigation (report from 2 September 2021)
The letter appealing for residents of Kursk to come forward with information mentions that the investigation, though at an advanced stage, is still in progress. In investigations as extended as this one, an advanced stage is relative. The investigation has now been in progress for over seven years and is not expected to conclude before the end of 2022. This is entirely due to the complexity of this investigation, with which the Russian Federation is not cooperating (fully).
No new information has surfaced in the ongoing investigation that might exculpate one of the four accused now being prosecuted or could be used to substantiate possible lines of defence, and that the Defence should be able to address.
Moreover, the charges against the accused currently being prosecuted do not require proof of the identities of the Buk-TELAR crew, of those who may be responsible in the chain of command in the Russian Federation or of other participants. The charges against the accused include incitement together with persons who may possibly have been located in the Russian Federation to shoot down an aircraft. To prove that such incitement was also committed from the Russian Federation, however, it is sufficient to determine that the accused must have collaborated with one or more unknown persons in the Russian Federation to convince the Buk-TELAR crew to shoot down an aircraft. Even without proof of personal contact with the crew and their direct superiors, it may therefore be concluded that the accused acted culpably because of their interference with the Buk-TELAR.
It is not unusual for persons to be prosecuted, when as yet unidentified individuals are known to have been involved. This happens regularly in drug cases and in other murder investigations. If this were not possible, most criminal offices in which many persons are involved would never advance beyond the investigation stage.
Sharing information from the ongoing investigation may also compromise that investigation. In addition to being undesirable, under the circumstances in which the investigation needs to be conducted (given its nature and place and the proven necessity to date to examine witnesses and experts anonymously), such action may also be irresponsible. The Prosecution is therefore extremely circumspect about sharing information concerning the as yet ongoing investigation into the crew and the chain of command.
To date, however, the investigation has not yielded conclusive information about the concrete reason for shooting down Flight MH17. Why the Buk-TELAR crew pressed the button the moment it happened remains unknown. The ongoing investigation is obviously focused on that question as well. But proving the charges against the four accused now being prosecuted does not require knowing the actual cause of and the precise course of events in firing the missile. Accordingly, this is not cause to await the outcome of the ongoing investigation into the Buk-TELAR crew and those responsible in the higher chain of command either.
The current case file comprises more than enough information to answer the three questions formulated by the court: 1) Was Flight MH17 taken down by a Buk missile? 2) Was this missile fired from a farm field near Pervomaiskyi? and 3) Are these four accused criminally liable for the way they participated?
- Regarding the report from 8 September 2021
Reports comparable to the one from 8 September 2021 have appeared before in Russian and Ukrainian media, i.e. since August 2020. According to those reports, Ukrainian security officers covertly contacted mercenaries from a private Russian military company. Under the pretext of a military recruitment campaign, these Ukrainian security officers are alleged to have interviewed the mercenaries and to have lured them to Belarus. According to these media reports, two of these Russian mercenaries may have been involved in shooting down Flight MH17 or might have information about it. This security operation has not led Russian mercenaries to be extradited to Ukraine.
This action does not derive from the Prosecution, the Dutch police or the JIT. The Prosecution is therefore unaware of the extent to which the media reports are accurate. During a press conference on Friday 10 September 2021 the Ukrainian authorities did confirm the general existence of this operation.
Following the comparable media reports from 2020, the Prosecution conducted its own investigation. Significantly, investigating possible statements by military mercenaries during job interviews with security officers operating under cover requires great circumspection. What was perceived as a fact when reported in the media may prove otherwise following investigation. The investigation by the Prosecution did not establish a connection between the persons mentioned in the media and the Buk-TELAR used to shoot down flight MH17. The media reports and investigation results are not exculpatory and add nothing to the information already contained in the prosecution file.
Reaction and additional question from the court
At the end of the day on Monday 21 September 2021 the court shared its reaction to the answer from the Prosecution.
In the opinion of the court, the provision in the law about (adding documents to) the prosecution file should be understood to mean that basically all documents that might reasonably be of interest for any decision to be taken by the court pertain to the procedural documents and should therefore be added to the prosecution file. Once the investigation is under way, it is the court that determines whether documents need to be added. Whether those documents are relevant is what matters, not whether the documents are incriminating or exculpatory.
The court has also questioned the distinction by the Prosecution between the investigation in the cases concerning the four accused being prosecuted in these criminal proceedings and the ongoing investigation into other persons who may be involved in the crash of flight MH17. After all, they all concern the same act, namely the crash of flight MH17.
Documents from the ongoing investigation that might reasonably be of interest for answering the questions relating to the weapon used and the firing site also pertain to the procedural documents in the cases of the current four accused. Regarding the question about the involvement of the accused, the possible contribution of these four accused need not be all that matters. The many legal questions that may need to be answered in this case (such as questions concerning the types of participation with which these accused are charged, the requirements for intent, as well as the formal question as to the admissibility of the Prosecution) may require placing the activities of the four accused in these criminal proceedings in the context of activities and intentions of others,. Documents relating to this may also reasonably be of interest for decisions the court will need to take in its final judgment.
The court has therefore asked the Prosecution again whether any procedural documents from the ongoing investigation should be added to the criminal cases against the current four accused.
The way forward
This concludes this block of hearings. The next day in court will be on 1 November 2021 and will start at 10.00 a.m.
Assuming that the investigating judge concludes the investigation before 1 November 2021, the results will be discussed on 1 and/or 2 November 2021. Claims by the injured parties will be discussed at that point as well.
As soon as the investigation has been concluded, and the results of it have been discussed in court, some more relatives who would like to discuss the evidence (as well) will address the court.
Additional schedule information for the time being appears in the Summary of the Day for 6 September 2021.
Watch the livestream footage here:
Livestream 24 September 2021_part 1
Livestream 24 September 2021_part 2
Livestream 24 September 2021_part 3