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by John Helmer, Moscow

“Where no case is made out against a man, or such a flimsy one that it cannot stand on its feet, he is entitled to say: ‘I ask the jury to say that I am not guilty without hearing a word from me.’”

That sentence was written almost sixty years ago by one of the most brilliant tellers of courtroom stories in the English language, Henry Cecil. Nom de plume of an English county court judge,  Cecil  put the words in the mouth of the barrister for the defendant, in his summing-up for the jury. The story is a whodunit, with much of Cecil’s characteristic poking of fun and then, at the end — well, a surprise I shan’t reveal.

In the tale of the trial of four defendants accused of murder in the shooting-down of Malaysia Airlines MH17, there are no jokes. But the proceedings which commenced at Schiphol, in The Netherlands, on March 9 and adjourned on March 23 for ten weeks, did have a surprise ending. That is also the point of Cecil’s defence speech. The point is that the Dutch prosecutors have revealed the case they are making out against the defendants, and also,  they insist, against the Russian state, is such a flimsy one, it cannot stand on its own feet. It should therefore be dismissed by the panel of three judges.

Recognizing this in his first ruling, issued on March 23, Hendrik Steenhuis, the presiding judge, gave the prosecution, the Dutch Government behind them,  and the US Government behind them,  one last chance.

This was his order to produce in court the crucial piece of evidence on which the case of murder depends – the US satellite images which US officials have long claimed to prove the firing of a BUK missile at MH17 and to have reported in secret to Dutch intelligence. But since the evidence of the chief of Dutch military intelligence, and also of the investigating police and prosecutors – official secrets now leaked in public – is that the US has not provided the evidence, the judge’s order is an ultimatum.

If the evidence isn’t produced by June 8, when the court resumes, the court will be asked to rule that the defendants have no case to answer.

In trials of murder, there are big differences between Anglo-American law and procedure and their Dutch and European equivalents. In the MH17 trial, there is no jury; the judges (and in the preliminaries, the examining magistrate) actively investigate and decide. The Anglo-Americans call it the inquisitorial system, contrasting it with their own adversarial system. In this, the defence lawyer cross-examines the prosecution’s witnesses and tests the prosecution’s evidence; the judge plays a relatively passive role, arbitrating between the advocates and directing the jury on the law.

In international cases in which the politics of warring states are in contest, the Dutch courts are regarded as reliable and predictable for coming to verdicts the NATO alliance wants. This was notoriously the case in the prosecution of a Libyan for the downing of Pan American Flight 103 over Lockerbie, Scotland, on December 21, 1988. In the civil litigation by Mikhail Khodorkovsky and his associates against the takeover of the Yukos oil group by Rosneft, the Dutch courts have proved to be far more indulgent towards Khodorkovsky than the British courts.

Veteran litigator in international crimes trials, Christopher Black, a Canadian, comments that one of the judges on the MH17 court panel, Heleen Kerstens-Fockens, “was one of the prosecutors at the Yugoslav tribunal; she is used to framing up people. This is another NATO op.” One of the prosecutors, Ward Ferdinandusse, who participated as a Dutch police investigator early in the MH17 case, should be called to testify by the defence, Black says, “as a witness and cross-examine[d] on his role, his instructions, his actions, etc. We did that at the ICTR [International Criminal Tribunal for Rwanda], but the tribunal would not allow it, so we protested, causing them no end of trouble.” At the outset of the MH17 trial,  the defence lawyers, believes Black,  “should have walked in,  stated the court has no jurisdiction, that it is a biased NATO court with a political agenda,  and walked right back out.”

Left to right: Christopher Black; Heleen Kerstens-Fockens; Ward Ferdinandusse. For more on verdict rigging the earlier courts and tribunals, listen to Black’s presentation here.

Between Dutch and Anglo-American criminal law, the fundamentals are the same. In the MH17 case, the evidence of the crime must be proved beyond reasonable doubt. Proof of premeditation and intention to murder must also be proved. The presumption of innocence applies to the accused. In this case, the three Russians and one Ukrainian charged, including Oleg Pulatov, a former lieutenant-colonel of GRU, who has agreed to present his defence in court, are not obliged to prove their innocence. The Dutch prosecutors must prove their guilt as charged. The charge against them is that they “cooperated to obtain and deploy the BUK TELAR [anti-aircraft missile, the alleged murder weapon] at the firing location with the aim of shooting down an aircraft.”

According to Steenhuis in his opening speech on the first day: “It goes without saying that a defendant is innocent until proven guilty by law” (March 9 record, Min 23:56).  Ferdinandusse followed, adding allegations: “They may not have pushed the button, but they took delivery of the Buk [missile] and ‘directed the employment of the weapon to serve their own interests,’” he said. Afterwards, they had ‘noted with delight’ that a jet had been shot down.’”  

For more on the first day proceedings, read this.  

In court on the third day, March 23, Judge Steenhuis (right) warned the prosecution they must stick to proving their case against the four accused. “The investigation at the [June] hearing and the deliberations by the court about the questions shall be based on the charges” (March 23 record, Min 11:13), Incidentally, a week after this record was made, it has been viewed by less than 850 people, including lawyers and officials on all sides.  The only report to appear in the mainstream western press of the judge’s orders to the prosecution appeared in a Dublin newspaper; its reporter misunderstood what he had heard.

The adjournment of the trial until June 8 has been ordered by the judge to give the defence lawyers time to read the 36,000-page evidence file against Pulatov;  and for the prosecutors to bring the US satellite evidence to court, if it exists. Details of this order, and of the March 23 trial record, can be read here. Attempts by the Dutch government to suppress the new order, and the significance of this, were reported here.

Anglo-American and international criminal lawyers observing the MH17 trial  and the evidence reported so far,  believe that four sources of evidence comprise the foundation of the prosecution case; if they fail for proof now, the case will collapse, and Steenhuis must rule there is no case to answer (British law);  summary judgement (US law); or the Dutch equivalent of what is called in France  ordonnance de non lieu.   Practically speaking, this might mean a stay of prosecution until or unless new evidence can be presented; or the withdrawal of the case.

To American observers, this is being called the “Mueller choice”. They are referring to the decision by Robert Mueller, the chief prosecutor of alleged Russian interference in the US presidential election of 2016, to drop the indictment of the Concord group of companies, and abandon the trial. This was announced on March 16.

Source: https://int.nyt.com/

The prosecutors’ motion for dismissal concluded: “In light of the defendant’s conduct, however, its ephemeral presence and immunity to just punishment, the risk of exposure of law enforcement’s tools and techniques, and the post-indictment change in the proof available at trial, the balance of equities has shifted. It is no longer in the best interests of justice or the country’s national security to continue this prosecution.”

Despite repetition of their allegations against the Russian group, the prosecutors were obliged to tell the defence lawyers, which had requested proof of evidence, and the court, that the secret evidence on which the charges were based would not be declassified and released. They admitted this “forces the prosecutors to choose between a materially weaker case and the compromise of classified material”.

The prosecution and government claimed:  “a trial of this case risks publicizing sensitive law enforcement information regarding measures used to investigate and protect against foreign influence over the political system”.  The defence responded that the classified evidence doesn’t prove the case, and may not exist at all.   For the US media version in favour of the prosecution, read this.

In the MH17 prosecution, classified US evidence has been alleged as proving the crime scene and the murder weapon: these are US satellite images of a BUK missile being fired at MH17, detonating, and killing all 298 people on board. Produce this evidence by June 8, Steenhuis ordered the prosecutors last week. However, the release of secret documents in the case file shows police and prosecutors  working on the Joint Investigation Team (JIT) have acknowledged among themselves that the satellite images had not been provided.    Then the chief of Dutch military intelligence concluded in a secret report to the investigation in September 2016 that no evidence existed from the US or NATO of the alleged BUK missile firing. For details, read this .

The difference between the Mueller choice in the Concord case and the MH17 trial is that senior US officials have already promised the Dutch to declassify the satellite evidence, although they haven’t subsequently done so. Judge Steenhuis named and quoted his source for that.   To lawyers observing, this appears to cut the ground from under a claim the prosecutors may try,  when the trial resumes in June,  that declassification is not permitted.

Without proof of weapon and of commission of the crime, there is no case for Pulatov and the others to answer. It’s a non-lieu.

The JIT and prosecutors also claim they have direct witnesses to the missile strike, including a secret witness of the Russians firing it. The problem for proving these witnesses in the Dutch court isn’t different from Cecil’s story which he titled “Independent Witness”. In the story, the prosecution presented eight witnesses, seven of whom swore they saw the defendant’s car driving at high speed through a Stop line, and causing a crash with a motorcyclist. On investigation and cross-examination by the defence lawyer, however, each witness revealed he had been persuaded by the others, and by the police taking their statements, to see the same thing – when they had not.  In short, there was no independent witness. “Witnesses may lie or be mistaken,” the defence lawyer told the jury. “But basic facts cannot”.  It will not spoil the surprise last chapter of Cecil’s story, titled “The Truth”, to say the jury agreed with that.

In the MH17 case, Dutch and Australian police and prosecutors have admitted in the secret minutes of their meetings that they have no independent witness. Instead, all of them have been identified, interviewed, investigated, and controlled by the Security Service of Ukraine (SBU).  In one of their meetings, Manon Ridderbeks, a Dutch prosecutor, told the others:  “only the SBU is able to locate witnesses and bring them in.” Once this is clear in court, the defence doesn’t have to prove witness tampering by the SBU. It will be enough for the judges to conclude there is provable suspicion that what the witnesses say has been coaxed or fabricated, and reasonable doubt they are telling the truth.  For more on witness tampering by the Dutch, Australians and SBU, read this.

The evidence of the crime which remains independent of the satellite images and the witnesses, the prosecutors told the court on March 10, comprises intercepted telephone conversations of Pulatov and the other defendants; plus photographs and film clips recorded on telephones and distributed by social media. Long before the opening of the trial, even before the JIT launched the indictments last year, there has been a stream of evidence by audio and image experts to show the SBU, in combination with a NATO source called Bellingcat, have faked photographs; spliced and edited telephone interception tapes, and more.  For a sample of details, read this.

Dutch criminal law and procedure don’t require the defence lawyers to prove this evidence manipulation. Rather, the prosecutors must prove Bellingcat is telling the truth. By allowing more time to the defence lawyers, and reserving his decision on their application for fresh expert investigations, Judge Steenhuis is cautioning that if there is reasonable doubt about the veracity of the telephone taps and pictures, this evidence will be ruled inadmissible. In advance then, the prosecutors have been warned against being caught at more than lying and faking. They face the prospect of discovery of what is called in English law a conspiracy to pervert the course of justice.

“It remains to be seen if Judge Steenhuis advances or retreats,” an American lawyer comments. “We are at the point now where he has to be recognized for having criticized the prosecutors across the board, and directed them to answer questions they thought they could avoid. That’s why they were so angry in court last week over the leaks. Now their position is worse.”

“Remember,” says the judge to the jury in Cecil’s story. “It is not for the accused to prove that he did stop at the halt line, but for the prosecution to prove that he did not.” In the British court, the judge was then able to pass responsibility for deciding the issue to the jury. “Once again, and for the last time I ask you this question: ‘Are you sure that he did not?’”

There is no jury in the MH17 trial. Judge Steenhuis and his two fellow judges must decide on their own responsibility. Unless the Dutch government is certain enough of what that decision will be, it will either prolong the case for several years to come; or else it will withdraw in advance on the ground that the corona virus pandemic makes effective proceeding impossible.

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