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BLIND JUSTICE, DUMB LAWYERS IN THE MH17 TRIAL — NEW DUTCH COURT RULING ALLOWS SECRET WITNESS TESTIMONY FOR THE PROSECUTION

by John Helmer, Moscow
  @bears_with [1]

A new ruling by three Dutch judges in the trial of Russia for having shot down Malaysia Airlines Flight MH17 will allow the Ukrainian secret service, the SBU, to present fabricated witness evidence without investigation or cross-examination by defence lawyers representing one of the four military officers accused of launching a BUK anti-aircraft missile at MH17. On July 17, 2014, the aircraft was destroyed above eastern Ukraine, killing all 298 people on board.  

The two Dutch defence lawyers, Sabine ten Doesschate (lead image, centre) and Boudewijn van Eijck (right), have attempted to keep the court proceeding secret since mid-March when they were asked to clarify if they had filed a challenge to the use of secret witness statements in the trial, which began hearings in public on March 9.

A secret hearing followed on April 6 when ten Doesschate appeared in person. Two weeks later, a 16-page judgement was signed by three judges of the District Court of The Hague, Alexander Boogers, B.W. Mulder, and Mariette Renckens; an official translation into English was then prepared.  Ten Doesschate and van Eijck were asked last Thursday morning, April 23, to confirm that the judgement had been issued.

“Should you fail to respond,” ten Dosschate and van Eijck were told, “you will be reported as conducting yourselves in a manner that is inconsistent with the duties of a lawyer in defence of a client in a serious criminal case, with the intention on your parts, individually and collectively, to dissemble, mislead, falsify, and prejudice the defence you claim to represent and for which you are receiving money in payment.” Ten Doesschate and van Eijck have refused to answer.

International criminal lawyers who have reviewed the detailed summary of the lawyers’ argument in the new court document have condemned ten Doesschate and van Eijck for their failure to make an adequate defence. They are “sweetheart lawyers working for the prosecution”, commented one.

Reviewing the Dutch ruling, Christopher Black, a Canadian attorney who defended in the international war crimes trials for Yugoslavia and for Rwanda, said “the defence in this trial has now been reduced to a fig leaf. From reading this [ruling] and the language [the judges] use, it appears the defence will never have a chance to properly contest the charges. Since they cannot do that, they should walk out, hold a press conference explaining why, and face the consequences.”

Four men have been formally charged by the Dutch prosecutors of murder in the downing of MH17 — Igor Girkin (Strelkov),  Sergei Dubinsky, Oleg Pulatov (right), who are Russians, and Leonid Kharchenko, a Ukrainian; for their details and the story archive, click [2]. Pulatov, who remains in Russia, agreed to respond to the Dutch Government indictment last December. He has told the Russian press he “is not guilty, did not take any part…he had nothing to do with the crash.” So far his Dutch lawyers have not said this on his behalf, neither in court nor in their comments to the Dutch press.

The three sources of evidence against him according to public statements by the Dutch prosecutors and police and internal records of their investigation, are US satellite images of the alleged missile firing and detonation; witnesses on the ground; and tape-recordings of intercepted telephone and other communications between the four accused and others allegedly involved in the movement of the missile battery and its firing.  The Dutch prosecutors claim the line of Russian military command between them and the BUK missile unit runs all the way up to the Kremlin in Moscow.

The US satellite evidence has already been discredited by Dutch military intelligence reports which reveal the images have not been handed over to the Dutch; their existence has not been confirmed [3] by NATO intelligence. The intercepts and tapes have been shown [4]by independent audio engineers to have been edited, spliced, misdated, and tampered with. The witnesses, according to leaked records of the Dutch investors and prosecutors, are not independent.  “Only the SBU [Security Service of Ukraine] is able to locate witnesses and bring them in,” acknowledged [5]Manon Ridderbeks, one of the Dutch investigating prosecutors in a secret record which became public in March;   for additional evidence,  read this [6].

The new Dutch court ruling reveals that the defence lawyers failed to make the case that there has been witness tampering by the SBU.

Source:  https://uitspraken.rechtspraak.nl/ [7]  (Dutch); (English [8]). The court press release was issued at 1340 on April 23. It claims [9]the new ruling to keep the witnesses secret was based on “the [Dutch Government] case file, the public prosecutor’s substantiation of his application, and the personal circumstances of the witnesses”.    

Three lawyers were engaged to defend Pulatov; none has experience in international criminal cases, military law, or war crimes.  Two, ten Doesschate and van Eijck, are from the Rotterdam law firm Sjocrona van Stigt (SVS); ten Doesschate, 39, is a junior partner since 2019; van Eijck, 57, is one of the firm’s founding partners. Ten Doesschate, has never conducted a defence in a murder trial; she specializes in white collar fraud. Van Eijck, her leader, has a career record of defending Rotterdam police in collaboration with Rotterdam police commanders and prosecutors. He has had a relationship he has not revealed to date with Fred Westerbeke, lead prosecutor of the MH17 investigation, and Dedy Woei-A-Tsoi, one of the three prosecutors now in court.

The third defence lawyer, Yelena Kutyina, is a junior in a Moscow law firm led by Anatoly Kovler, a former Russian Government appointee on the bench of the European Court of Human Rights. Kutyina has never defended in a domestic homicide case; she has not appeared in an international court before. Kovler’s firm is a regular representative of the Russian Ministry of Interior and the Prosecutor-General.

According to the court record, ten Doesschate and van Eijck filed a first written appeal against the use of secret witnesses in the prosecution’s case on February 20.  

The court ruling reveals that thirteen witnesses were presented by the Dutch prosecutors to an examining magistrate. The witnesses were assigned codes to conceal their identity; nothing about their circumstances was revealed in the evidence reported in the court summary. The name of the Dutch examining magistrate, a woman, has also been kept secret; the record of higher court reversals of her decisions also remains secret. If the defence lawyers know it, they are withholding the information from their client.

The dates of the witness testimony, recorded in the court document of last week, reveal that no Ukrainian witness was found or questioned until at least eighteen months after the MH17 incident on July 14, 2014. One witness, X48, was first identified by prosecutors and questioning commenced in January 2016. The twelve remaining witnesses were not found until four years had elapsed from the shoot-down. The records of their interrogations by the magistrate indicate the witnesses did not appear until February 2019 for the first of them (V7). Up to three months elapsed between the start and conclusion of some of the witness interrogations; the reason for this has not been explained, though it’s suggestive that through Ukrainians working with the Dutch on the investigation, SBU agents were able to dictate what the witnesses were telling the magistrate.

There has been no disclosure of where the witnesses were questioned by the examining magistrate — whether in The Netherlands, in the Ukraine, or in another country – who was also present, and under what conditions.  The defence lawyers did not request these details; they did not contest the long delays, the circumstances of the interrogations, the payment of money for witnesses, or the presence of SBU and other Ukrainian officials at the interrogations.

Left: General Vasyl Hrytsak. In July 2014 he was SBU First Deputy Head and chief of operations in eastern Ukraine; from June 2015 until the presidential election of May 2019, he was Head of the SBU. Centre: Oleg Peresada, former Ukrainian prosecutor whose admissions to the Dutch investigators about Ukrainian methods for obtaining witness evidence were reported here [10].   On October 20, 2016, Peresada was awarded a special state medal “for labour and valour” for his “significant personal contribution to the strengthening of the defence capacity of the Ukrainian state, courage, dedication and high professionalism shown during combat operations and in the performance of official duties.” At the award ceremony the then-Prosecutor-General of Ukraine, Yury Lutsenko,  told Peresada: “I want to thank you on behalf of the state and on my own behalf for the work that you are doing on all investigative actions in a very important case for Ukraine and the whole world – the investigation of the MH17 disaster.” Source: https://gordonua.com [11]
Right: Gyunduz Mamedov, a deputy general prosecutor in Kiev and currently head of the Ukrainian delegation to the Joint Investigation Team (JIT) supporting the trial. He was appointed by the Kiev regime to be chief prosecutor for Crimea after the territory joined Russia.

Instead, the court summarized the defence lawyers’ argument that “the examining magistrate’s decisions and the subsequent course of events have formal and substantive defects and that the resulting errors are serious and irreparable, such that the decisions should be reversed.” No particulars of witness tampering were submitted by the defence lawyers to the three judges hearing their appeal.

The prosecutors argued that secrecy was necessary to protect the witnesses from threats and coercion. In the closed-door hearing on April 6, the lead prosecutor arguing this in front of Boogers, Mulder and Renckens was Ward Ferdinandusse (right). According to his career record, he was a police detective and chief of the Dutch team investigating the MH17 case at the beginning. His role with the SBU in procuring witnesses was not revealed to the examining magistrate, nor reported to the District Court judges by the defence lawyers. Ferdinandusse told the judges it was lawful for the magistrate to take the witness testimony against Russian targets he had selected as a police investigator because the Russian names had not been formally indicted by the prosecution team he joined later, after the magistrate held her interrogations.

The court ruled that Pulatov “was first identified as a suspect in the criminal investigation on October 25, 2016, when an official report of suspicion was drawn up against him.” Accordingly, the prosecution had no legal duty before then, the court also ruled, to inform the targets of the witness testimony being given against them.  

Boogers, the presiding judge who also drafted the text of the April 23 decision, accepted that “these offenses occurred in an area of conflict involving multiple parties. The outcome of the criminal investigation may therefore be of interest to one or more parties involved in this conflict. The investigation into the offenses has not yet been completed. In view of this conflict and the associated interests, it is possible that when it becomes known which persons have been identified as suspects by the public prosecutor, one or more parties may have an interest in influencing, directing and / or opposing the investigation.”

It was lawful for the magistrate to accept that the witnesses were subject to pressure and threats in order for their identities and testimony to be kept secret. It was not up to  the magistrate, he and his co-judges Mulder and Renckens (right) ruled, to decide from which side the threats were coming; on which side in the area the witnesses were living when they were interrogated; and from which side in the military conflict the witnesses were likely to be most directly threatened. In earlier cases, Renckens has ruled [12]on evidence of war crimes in Ethiopia and Syria.

The practical effect of their ruling is to allow the Russians to be tried on evidence submitted by  the SBU, and to disallow the defence from investigating how the SBU and the Ukrainian military  recruited and controlled the witnesses. More than that, the judges have now ruled that the magistrate was legally allowed to accept the prosecutors’ reports on each of the witnesses presented without evidence of their credibility independent of the prosecutors’ say-so. “Each of the prosecutors’ respective claims is accompanied by a ‘Report on safety risks for witnesses in the JIT MH17 investigation’,” the court has now revealed, before deciding that this prosecution report “may be deemed to form part of those claims, and on which the examining magistrate’s opinion is also based.”

“The examining magistrate has a more or less complete overview of the investigation,” Boogers wrote. “As a result, he [she] is able to properly assess a claim or a request to conceal the identity of a witness.” Boogers also acknowledged there was only one source of evidence available to the magistrate on the circumstances of threat in which the witnesses agreed to give their evidence – the prosecutors collaborating with the SBU.

“Attached to this letter is a report from the Public Prosecution Service regarding the safety risks for witnesses in the JIT MH17 investigation. The examining magistrate concluded that there may be a concrete threat to witnesses in this investigation. The fact that there is a situation already defined as armed conflict in Eastern Ukraine for the time being by various international organizations and NGOs is very relevant in answering the question of whether there is a concrete threat. Several reports indicate that there is very strong evidence that all parties to the conflict are guilty of wrongful detention, inhuman treatment and violence against persons known to be critical of the party. In support of the threat, the public prosecutor has also argued that cooperating in the investigation by making a statement as a witness in this investigation will be regarded as disadvantageous by one or the other party. The examining magistrate considers this plausible. The threat applies strongly to witnesses who live or work in the conflict area…Some conflict parties have more power than others, but they are all capable of violence and willing. In addition to these general circumstances, the examining magistrate took into account the personal experiences of the witness when assessing whether there was a concrete threat. In the opinion of the examining magistrate, it has been established with regard to witnesses who have been granted threatened witness status that the disclosure of his or her identity constitutes a threat to the fundamental interests or rights of the witness or of a person for whom the witness ensures or is responsible that this threat is concrete.”

In the sixteen pages of the  judgement,  there is no record that ten Doesschate and van Eijk objected that this amounted to the prosecutors taking political sides in the Ukraine civil war, and presenting evidence to the magistrate from only one side – that of the Kiev regime. The defence lawyers did not charge the magistrate, whose name they have also withheld, from taking the same side.

International lawyers express surprise that such a display of prejudice would be admissible as evidence, first to the magistrate, and now to Boogers, Mulder and Renckens of the District Court. The defence lawyers are throwing the fight, Black believes. “Cross-examination of the witnesses as to motive, bias, reliability and also to try to establish facts that may be beneficial to the defence is essential, as well as disclosure of how they became involved as witnesses in the first place. If Pulatov’s defence lawyers do not object, then there is no real defence.”

Boogers conceded in his ruling that the defence argument “that the examining magistrate appeared to be biased against him [Pulatov] by not giving him the opportunity to be heard on the application [to the magistrate]” was irrelevant to the issue of keeping the witness identities secret. “Whatever else may be said of this argument, the court is of the opinion that it exceeds the scope of the present proceedings. Insofar as the appellant [Pulatov] believes that the examining magistrate has shown bias against him, it is open to him to seek to have the examining magistrate disqualified.”

Ten Doesschate and van Eijck refuse to say if they will do so. Instead, they issued [13]a brief written comment to the Dutch press last Friday, claiming the ruling is “a provisional one”, and they may raise objections to the magistrate after the trial recommences on June 8.   

The defence lawyers have not said they will demand the trial judge, Hendrik Steenhuis, allow direct questioning of the witnesses.