The completed written exchange of positions about the 299 claims for compensation from relatives was considered as well. The court made several remarks on that written round and took decisions to prepare discussing the substance of those claims later on in the MH17 criminal proceedings.
Requests from the defence
The court granted some requests from the defence and denied others. The requests granted concern reports from the Royal Military Academy (RMA), investigation of the authenticity of intercepted conversations and provision of laser-scan data.
Documents from the Royal Military Academy (RMA)
During the interview of the RMA expert by the investigating judge, this expert noted that the RMA drafted a total of 18 reports relating to this criminal case. Not all have been incorporated in the case file. The investigating judge has now been tasked with assessing any of these reports not entered in the case file. If they are within the instruction to investigate previously issued by the investigating judge to the RMA, they will need to be added to the case file. Because the prosecution might also have other (partial) reports from the RMA that could be important for questions the court will need to answer, the court has granted the request from the defence to add all documents from the RMA to the case file: the prosecution is instructed to send the investigating judge a copy of all (partial) reports from the RMA. The investigating judge will then need to select from the documents drafted to comply with the previous instruction to investigate and from the other documents which ones are important for decisions to be taken by the court The investigating judge will need to send those documents to the court and to the defence.
At a previous stage in these criminal proceedings the defence submitted requests to investigate intercepted conversations. As those requests have been granted, fourteen intercepted conversations will be examined to determine whether the participant, who according to the prosecution is believed to be the accused, is the same person in each case. Requests from the defence to investigate whether certain intercepted conversations may have been manipulated have been denied thus far, basically for lack of what is known as a ‘manipulation hypothesis’ from the defence.
The court has now granted the repeated request from the defence to investigate the manipulation of intercepted conversations. The court saw the argument by the defence that a ‘manipulation hypothesis’ need not be necessary to investigate the authenticity of audio files as cause to reconsider the request. The court will ask the expert from the Netherlands Forensic Institute (NFI), which will already be doing voice comparisons of fourteen intercepted conversations, whether checking for traces of processing without a ‘manipulation hypothesis’ is also possible, and whether that might reveal anything about the authenticity of an audio file. If that is possible, such investigation will need to be conducted on the fourteen audio files, as they are in the case file. After all, the court may eventually need to issue an opinion on the (incriminating or exculpatory) evidentiary value of those files. Because advancing in these criminal proceedings is important, the court has determined that this investigation must be completed no later than 1 November 2021. This time limit may lead the investigating judge to curtail the instruction to investigate to the NFI, for example with respect to the number of audio files to be examined.
Following the decisions by the court on 22 April 2021, the prosecution added to the case file the data from a laser scan apparently performed by the Netherlands Aerospace Centre and the RMA enabling analysis of the damage present on the pieces of wreckage. The defence has indicated that it cannot access these data. The court has decided that the prosecution will need to provide the defence with the unedited version of these data. The defence has stated that it needs these data and must be able to access these files as well.
Preparation for substantive discussion of claims for compensation
Written round about the claims
On 31 August 2020 the court determined that for the time being Ukrainian law shall be deemed applicable in assessing the claims for compensation to be submitted by relatives. Counsel for the relatives has consulted experts on Dutch international private law and Ukrainian civil law on the matter. Counsel for the relatives presented the resulting reports together with the claims for compensation submitted.
In the written round during the preceding period the defence, the prosecution and Counsel for the relatives had the opportunity to state their positions about those claims and the substantiation thereof prior to the substantive discussion in court about the claims for compensation from the relatives. A written round might expedite the substantive discussion of the claims and narrow it down to the sections of the claims on which Counsel for the relatives, the defence and the prosecution remain divided.
In this written round the defence has not responded to the substance of the claims submitted by the injured parties and has indicated that it will be taking a stand about the claims only during the oral submissions. The defence has, however, mentioned questions that might be submitted, for example, to the International Legal Institute (the IJI), the knowledge centre for international private law and foreign law. Counsel for the relatives then requested that the court set a new deadline for the defence to respond to the substance of the claims from the relatives. Counsel for the relatives believes that the substantive position of the defence needs to be known to discuss the claims in court, as Counsel for the relatives will otherwise not be able to respond adequately.
Proposal from the defence about submitting questions to the IJI
The court sees no cause to submit the questions mentioned by the defence or any others to the IJI. Some of the questions raised by the defence concern matters in Dutch law that the court can resolve without seeking advice, and Counsel for the relatives has already submitted a report about some of those questions. The questions raised by the defence that concern the substance of Ukrainian law have been addressed in other reports submitted by Counsel for the relatives to substantiate the claims for compensation from the relatives. The reaction that the defence did provide to those claims does not indicate that the content of those reports is disputed. The prosecution has also noted that it does not have any further questions for the IJI. Nor does the court have any more questions.
Request from Counsel for the relatives for a substantive reaction from the defence
In Dutch criminal procedure claims are explained and discussed in court. In submitting its demand, the prosecution will then adopt a position about those claims, as will the defence during its oral submissions. Anybody who has submitted a claim for compensation (or a representative, such as Counsel for the relatives) may respond. Dutch criminal procedure does not provide for a written preparatory filing for addressing the substance of the claims for compensation in court. Accordingly, the court cannot compel the defence to respond to the substance of the claims before the oral submissions. The court will therefore not grant the request from Counsel for the relatives to set a new deadline for the defence to respond to substance of the claims from the relatives. As long as the defence has not responded to the substance of the claims and reserves that right, the court cannot take interlocutory decisions on parts of the claims at this time.
Nonetheless, the court has explicitly asked the defence to consider responding to the substance of the claims submitted before the substantive discussion of these claims and therefore before 1 November 2021. After all, should the position of the defence instigate additional investigation on the substance of foreign law, unnecessary delay might ensue.
Request from the court to submit information with the claims
At the hearing on 24 June 2021 the court indicated which information needs to be provided with the claims for compensation to assess those claims properly.
Summary of Thursday 24 June 2021.
The court has indicated that it understands that tracing these data may be difficult, especially without assistance from a lawyer. Because the importance of that information in assessing the claims cannot yet be ruled out, the court persists in the request that this information be provided.
As for payments received by relatives from third parties, only compensation for pain and suffering is relevant. If a relative has received a payment that may in part comprise compensation for pain and suffering, the share intended to cover pain and suffering is to be disclosed if possible. Whether a payment was awarded directly to the relative or to a victim (deceased), and whether the amount of that payment devolved (entirely or in part) to the relative via succession of an estate matters as well. Finally, whether the agency that made the payment (rather than the relative) can recover the damage compensated directly from the party that caused the damage may be relevant.
The way forward
This court day concludes this block of hearings. Court is adjourned and will resume on 6 September 2021 at 10:00 hours, when the relatives will have the opportunity to address the court.