by John Helmer, Moscow
In the trial of Russian murder alleged in the shooting-down of Malaysia Airlines MH17, Dutch lawyers for the defence announced on Monday for the first time that their client, Lieutenant Colonel Oleg Pulatov (lead image, left) declares himself innocent. The lawyers added their acknowledgement that their client must prove his innocence — not that the Dutch prosecution should prove him guilty beyond reasonable doubt.
In a brief resumption of the MH17 trial in The Netherlands, the presiding judge Hendrik Steenhuis (right) attacked the two lawyers representing Pulatov for delaying their filing of requests for additional investigations of the evidence in the case. Steenhuis also dismissed the defence requests for lifting court orders already issued for the secrecy concealing where and how the alleged parts of the Buk missile were found which Pulatov is charged with firing against the aircraft on July 17, 2014. Steenhuis even ruled that the name of the investigating judge who initiated the orders for secrecy covering the alleged weapon should remain secret. That the investigating judge is a woman was all Steenhuis allowed to be known.
Steenhuis opened the proceeding with a 15-minute script of his new rulings. He was followed by a 17-minute presentation by defence lawyer Sabine ten Doesschate. Follow the videotape record of the day in the courtroom near Amsterdam.
Left, Judge Hendrik Steenhuis reading his script during the September 28 hearing; right, defence lawyer Sabine ten Doesschate in her response.
The prosecution then told the court that defence requests for Steenhuis to order additional evidence were no more than delaying tactics. “We can’t continue to go on and on in this way,” said prosecutor Ward Ferndinandusse, “the way we have been proceeding in this pre-trial phase” (Min 1:27:45).
Steenhuis agreed. At the start, and then again in his concluding statement, the judge said he was “unpleasantly surprised” (Min 30:08) that the defence was taking so long to complete its requests for additional investigations. It is “all the more surprising” (Min 30:40), he added, that the defence lawyers weren’t ready with their final written requests by yesterday.
The judge made clear he agrees with the prosecution to speed up the trial. He set a deadline of November 3 for the defence to file their “investigating requests in full”.
Steenhuis also hinted he is likely to reject whatever new requests the defence lawyers make in November, just as he has dismissed those which have already been made. Videotape records of the purported discovery in eastern Ukraine of the Buk missile parts had been denied to the defence earlier by a ruling of the investigating judge, Steenhuis said. The unnamed judge had refused because the video “would lead to the fact that the interests of the witnesses would be insufficiently guaranteed” (Min 24:36). Steenhuis said he agrees.
The videotape and other details of the Ukrainian witnesses testifying to having seen the Buk firing and to know of Pulatov’s role have been made secret at the insistence of the prosecutors, and by rulings of the investigating judge. Steenhuis announced at the conclusion of the hearing: “the court accepts the advice of the investigating judge and refuses the requests of the defence in full” (Min 3:51:37).
If and when the defence lawyers return to court with new evidence requests, Steenhuis ruled that the defendant will first have to prove to the court that his innocence is likely enough to justify obtaining more evidence than the prosecutors have already presented. “The position of the defence in these proceedings,” Steenhuis announced, “will have to be substantiated in order to honour the investigation request” (Min 3:55:42).
Dutch and international lawyers observing the trial comment that Steenhuis is reversing the onus of proof that is required in criminal trials the world over — the prosecution must prove guilt, not the defendant prove innocence. For Pulatov to be obliged “substantiate” his innocence to the judge, in order for Steenhuis to allow the defence lawyers to challenge the prosecutors with new evidence, is “unacceptable legal practice. It’s back to front”, commented a London lawyer.
Ten Doesschate did not challenge this reversal of the onus of proof. Instead, she announced that Pulatov had told her he was innocent. “Our client has told us that he was not engaged in the ordering, guarding, transporting and hiding of the Buk missile in Pervomaisky; instructing the crew, firing or ordering to fire the missile at MH17 [Min 37:33]; that he was not engaged in that. He did not contribute to it. He was not engaged in the matter. Even more so, he does not have personal knowledge of how and why MH17 was downed [Min 37:51]. So our client does not know what indeed did happen.”
This was the longest statement the Dutch defence lawyers have made on behalf of Pulatov. Ten Doesschate then defended herself by putting Pulatov at arm’s length: “it is the job of Pulatov’s defence to contest the charges against him in line with his views” (Min 40:18).
For the full story of evidence fabrication by the Ukrainians and the manipulation of the trial by the Dutch, read the book , which will be published later this week.