Additional investigation by the investigating judge
Prior to this hearing the investigating judge described in writing the state of play concerning the investigation that lies ahead. Part of that investigation has been concluded. The results will be added to the case file. Other parts of the investigation continue, including exploring ways to get the U.S. authorities to make satellite footage available. Several requests for mutual legal assistance sent to the Russian Federation and Ukraine to interview some witnesses, for example, are still pending.
Application to conduct an inspection
The public prosecution service has not waived the motion submitted earlier for an inspection. According to the public prosecution service, an inspection will clearly add value to the review, because the damage will be more visible when observed live than on paper or in a 3D scan. Defence counsel acknowledges that the damage pattern is crucial for the calculations and findings by the experts but does not see how an inspection could be conducive to the decisions to be taken by the court. After all, even the experts disagree about how to specify the damage. If the court decides to have an inspection conducted, defence counsel believes that the wreckage about which the experts disagree should be present as well.
As part of its responsibility for this criminal case file, the court has examined whether the intercepted conversations featured in the Nieuwsuur report last weekend could have been obtained from this criminal case file. Now that it has been established that they were not from the case file, the source of those intercepted conversations remains unclear. Defence counsel has questioned this and wants the court to instruct the public prosecution service to investigate how the intercepted conversations reached Nieuwsuur.
Defence counsel has also requested access to all available files and data from the intercepted conversations available to the public prosecution service (or other members of the JIT) and considers those intercepted conversations important to demonstrate that their client did not play the role the public prosecution service attributes to him.
Claims for damages
Op 13 April 2021, 290 relatives filed claims for damages. Counsel for the relatives provided a general account of these claims and the selection process. It was decided with the relatives, for example, that only compensation for pain and suffering would be claimed. The amounts of those claims were based on fixed sums of € 40,000 to € 50,000 for each relative of each victim, depending on the type of relationship/bond between relative(s) and victim(s).
Because of the complex questions and the background of Ukrainian and/or international law, which requires special expertise, defence counsel does not feel equipped to respond to the claims and has requested the court to decide whether the claims are admissible in these criminal proceedings. Counsel for the relatives has indicated that they opted deliberately with the relatives to submit restricted, clear claims as a safeguard against the court not being able to take a decision about them in these criminal proceedings. As far as the counsel for the relatives is concerned, the applicability of Ukrainian law in reviewing the claims is not cause to refrain from decisions on the claims in these criminal proceedings, because expertise can be obtained.
Right to address the court
The relatives have indicated that they would like to be notified well in advance as to when they may exercise their right to address the court. The court has stated that when discussion on the merits of the case takes place in June/July 2021, relatives wishing to describe the impact that the crash of the MH17 has had on their lives may exercise their right to address the court during the block of hearings in September 2021. Relatives wishing to make statements about the evidence as well would have the opportunity to address the court later on, once the investigation by the investigating judge has been concluded and has been discussed in court.
Additional requests from defence counsel
Defence counsel submitted additional requests, such as for further interviews of NFI experts and an expert from Almaz-Antey and interviews with two witnesses for whom the court had rejected a previous request. In addition, defence counsel would like the experts from the Netherlands Aerospace Centre and the Royal Military Academy previously interviewed by the investigating to provide the investigating judge with the information they still needed to obtain in response to questions from defence counsel.
The court has adjourned the hearing until tomorrow morning at 10.00 hours, when the public prosecution service will respond to the requests put forward, and defence counsel may react in turn. Wherever possible and necessary, the court will take several decisions tomorrow.