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THE DUTCH WRITING ON THE UKRAINIAN WALL – STEENHUIS RULING IN MH17 TRIAL PREJUDGES VERDICT

by John Helmer, Moscow 
  @bears_with [1]

The ruling issued on July 3 by Dutch district court judge Hendrik Steenhuis (lead image, right) requires the Russian defendant, Lieutenant-Colonel Oleg Pulatov (centre), to prove his innocence with evidence prepared by the Ukrainian Security Service (SBU). By the standard announced a month earlier by the Russian Foreign Ministry, this is a fundamental violation of Pulatov’s legal rights, making a guilty verdict inevitable.   

Russian and international lawyers believe the defence lawyers should walk out. “In the conditions which the Dutch court has set,” comments Canadian Christopher Black, a veteran litigator in international war crimes trials, “this is now nothing more than the Ukrainian civil war fought by the Kiev regime with lawyers instead of soldiers. It’s a show trial. Nothing more than propaganda. No legal right for the accused is served by having his lawyers present. Since the defendants have refused to appear in person – three of them disputing the Dutch jurisdiction — the defence lawyers should withdraw.”

The wording of the formal indictment charges Pulatov and three co-defendants with the crime of intentional homicide, according to this release by the prosecution on March 9 [2].  The text of the Dutch summons, issued [3]to Pulatov last October, is more ambiguous, raising the scepticism of international lawyers that the Dutch themselves aren’t convinced they can make their case under their own criminal code. For legal analysis of the Dutch criminal law which is being applied in the MH17 case, read this [4].

“The charges are vague when they should be specific,” Black comments. “Any defence lawyer would complain that it is not a proper indictment. In the [Anglo-American] common law when a charge is vague like that the defence can demand ‘particulars’ — that is, details of the specific acts which the accused are alleged to have committed, so that the defence can be prepared.”

Left: Christopher Black, Canadian attorney and war crimes specialist. Right: Maria Zakharova, Russian Foreign Ministry spokesman.

The principles, as well as the particulars required for the Dutch trial were identified on June 11 at the Foreign Ministry in Moscow. The question asked of the Ministry was: “court hearings on the Malaysia Airlines Flight 17 crash in Ukraine in 2014 have resumed in The Hague [district court]. Media outlets are quoting new statements made by the prosecution. How could you comment on them?”

“First of all, I would like to recall our principled approach,” the Ministry spokesman Maria Zakharova replied [5]in a prepared statement.  “The Russian Federation is not a party to the criminal trial now underway at the District Court of The Hague. Three Russian citizens, Igor Strelkov, Sergey Dubinsky and Oleg Pulatov, are facing charges [the fourth defendant, Leonid Kharchenko, is Ukrainian]. We are therefore following the trial, including compliance with their legitimate rights. As we know, there are lawyers representing the interests of one of the defendants.”

“So far, to the best of our knowledge, preliminary hearings are underway. The parties are presenting their positions as regards their readiness to examine the merits of the case. The Dutch Public Prosecution Service should display the results of the investigation of the circumstances of the tragedy, being conducted by the Joint Investigation Team. It appears that the prosecution is trying to make an impression on the court and is firing away quite controversial details of its work. The media immediately pick up sensational statements about ‘successes’ by the Public Prosecution Service; they work as a team and broadcast court hearings live. On the whole, we can see nothing new. It appears that the investigators care more about the propaganda effect of protracted speeches, rather than the validity of the evidence collected.”

“I would like to note once again that Russia is not a party to the trial, and I will therefore refrain from making any detailed comments on the prosecutors’ statements concerning evidence that they plan to submit. I believe that this is up to the lawyers.”

“We have repeatedly discussed our perception of the quality of the current criminal investigation and the completed earlier technical investigation, and it would now be pointless to repeat what we have already said. Our approach has not changed.”

“I will only share some observations. For example, Dutch prosecutor Thijs Berger has recently noted that the type of the missile that hit Flight [MH]17 had been established. This conclusion was made by noting that only two out of 370 fragments that had been recovered bear a distant similarity to the I-beam shape of the missile warhead fragments. However, the material of the Dutch technical investigation openly says that such fragments account for just 25 percent of their total number. Consequently, there should be about 100 fragments. By the way, not a single I-beam-shaped hole was found on the aircraft’s fuselage, and the fragments themselves were recovered under dubious circumstances.”

“And, finally, two years later, the prosecution did recall material submitted by Russia and proving the Ukrainian origin of a missile that, according to the Joint Investigation Team, hit Flight 17. Nevertheless, the prosecutors are making groundless claims that the Russian evidence had been tampered with and doctored. This is yet another lie. They were invited to Russia in order to make sure that the files are authentic. However, the investigators quickly lost interest in this subject, did not voice their desire to visit Russia and did not send any additional inquiries. It goes without saying that the Ukrainian files contained no information concerning the missile’s location after the breakup of the Soviet Union. Don’t the investigators themselves find this strange?”

“During their speeches, the Dutch prosecutors claimed that the Armed Forces of Ukraine did not operate in the disaster area on the day of the crash. This was done to absolve Ukraine of any suspicions. However, the entire world knows the video footage showing Ukrainian officials posing in front of operational Buk surface-to-air missiles deployed in the so-called Counter-Terrorist Operation Zone. Prosecutors themselves note directly that Buk SAMs of the Armed Forces of Ukraine were located around and in direct proximity to the disaster area.”

“All this is taking place among claims that it is Russia which is not playing it fair and is trying to lead investigators into a blind alley. And don’t the investigators themselves who are obviously becoming confused want to ask Ukraine any questions about the numerous discrepancies? They are also overlooking Kiev’s responsibility over its failure to close national airspace in the war zone. We have also repeatedly noted this. And, of course, it is no good that the court examined evidence from the Security Service of Ukraine, an obviously interested party, regarding a number of episodes.”

“It would now be better to allow the judges themselves to assess the conclusions of the investigators. This is not the right time for anticipating the court’s decision.”

The prosecutors presented their case in court on June 10 and 11; follow the details here [6] and here [7]. Two Rotterdam lawyers, Boudewijn van Eijck and Sabine ten Doesschate have been appointed by the court and say they are paid by a Russian foundation to represent Pulatov. They followed the prosecutors with an outline of their defence on June 22 and 23. Transcripts of their remarks and analysis of their claims can be read here [8]and here [9] .

Left to right: prosecutors Berger and Ferdinandusse; defence lawyers Van Eijck and ten Doesschate.

The prosecution was given an opportunity to counter-attack on June 26.   [4]

This set the stage for the first major ruling by the court; it was read out last Friday.  A brief  summary of Steenhuis’s judgement  was published on the court website here [10].    Click to view the judge reading his text in full [11].  Although Steenhuis claimed the ruling he read in court would be published “as soon as possible” (Min 17:27), this hasn’t happened yet.  

Steenhuis’s ruling breaches every one of Zakharova’s warnings. The first of them was that the Dutch court should not politicise the trial. Russia is “not a party to the trial”, Zakharova said twice over in case the Dutch were hard of hearing. But this is not the position of the judge. He expects, Steenhuis said in his ruling,  that the Russian military command and thus the Russian government will be implicated in an “investigation still being conducted, on the one hand into higher command lines, and on the other, into the crew of the BUK TELAR [Transporter Erector Launcher and Radar]” (Min: 20:35). These are references to the Russian Army and its line of command to and from Moscow. The prosecution has repeatedly made the same connection in press conferences, interviews and presentations.

Left:  Wilbert Paulissen, Head of the National Criminal Investigation Service of the Netherlands, presenting “the entire chain of responsible parties”. Right: image from Paulissen’s animation of the line of command running from Donetsk, through each of the four defendants to Moscow; presented at the press briefing of  the Joint Investigation Team (JIT), Amsterdam, June 19, 2019. Voiceover [12] in English of Paulissen: “together they formed a chain linking the so-called Donetsk People’s Republic to the Russian Federation. It was through this chain that the suspects were able to get heavy military equipment. ”

Zakharova’s statement was also a warning that if the court accepts that witness testimony, telephone tapes, video and photo records provided by the Ukrainian SBU are “valid evidence”, but Russian evidence is not, the proceeding is nothing more than an extension of the Ukrainian civil war, with no protection of the defendants’ rights. Zakharova was explicit regarding “material submitted by Russia and proving the Ukrainian origin of a missile that, according to the Joint Investigation Team, hit Flight 17.” About that evidence, she said, “the prosecutors are making groundless claims that the Russian evidence had been tampered with and doctored. This is yet another lie. They were invited to Russia in order to make sure that the files are authentic. However, the investigators quickly lost interest in this subject, did not voice their desire to visit Russia and did not send any additional inquiries.”

Zakharova’s statement was in layman’s language. Lawyers say the criminal law standards which the Foreign Ministry was invoking are the onus of proof; the admissibility of evidence; the chain of custody of evidence; presumption of innocence and proof beyond reasonable doubt.

On Friday Steenhuis ruled to dismiss the defence request to interview the Russian Defence Ministry spokesman, Major-General Igor Konashenkov, for his evidence of the Ukrainian BUK. “The relevant records relate to the years 1986 and 1987,” the judge claimed. “In that light, the court does not see how interviewing this witness [Konashenkov] can contribute to the question of where a specific missile mentioned in that record is located in the year 2014. For that reason alone the court is of the opinion that interviewing this witness cannot be of importance for any decision to be taken in the criminal case of the accused. The request is therefore rejected” (Min 58:50 to 59:40). For more details, read this [13].

Steenhuis went further. He refused to rule on whether to approve other requests from Pulatov’s lawyers for fresh witness and evidence verification until and unless Pulatov presents his defence to the charges. “The accused has not yet made any concrete statements about allegations against him. And that means the court cannot yet determine how granting the investigation requests relating to that alternative interpretation can contribute to the accused’s ability to conduct a proper defence [Min 45:13] given that it’s not clear which parts of the allegations against him he contests, or which alternative scenario the accused espouses” [Min 45:23].

This claim astonishes experienced criminal lawyers. They say the judge here reverses the onus of proof. Instead of the requirement in a normal court of law, required by the Dutch criminal code of procedure, that the onus of proof of a crime is on the prosecution to demonstrate, Steenhuis is requiring Pulatov to defend his innocence with evidence of whatever alternative to the prosecution’s evidence he can come up with.

“The court is currently unable to assess the pertinence of a significant number of [defence] requests and the court will therefore postpone taking a decision with respect to those requests until the defence has specified its other investigation requests within the timeframe to be set, and it becomes clear which parts of the indictment the accused disputes, or which position he wishes to adopt with respect to that” [45:53].

Russian lawyers believe the record the Dutch judge has now made is too illegal by international standards to ignore. The purpose of representing Pulatov in the preliminaries, they add, has been served. To continue, they are discussing in Moscow, makes Pulatov’s lawyers accessories in the Dutch government’s campaign against the Russian state.  

Left: Judge Anatoly Kovler. Right: Igor Krasnov, appointed Prosecutor-General on January 20 [14] of this year.

The principal Russian lawyer in the case is Anatoly Kovler; he was a judge of the European Court of Human Rights between 1999 and 2012, and since then he has been an advisor to the Russian Constitutional Court and member of the Venice Commission [15] of the Council of Europe.  Kovler’s eponymous Moscow law firm is representing Pulatov through a junior attorney, Yelena Kutyina. For the time being,  Kovler and Kutyina do not respond to questions about the MH17 trial or the Dutch law violations.