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by John Helmer, Moscow 

The presiding judge in the trial of the shooting-down of Malaysia Airlines Flight MH17 announced on Friday afternoon that he will not allow the evidence of Major-General Igor Konashenkov and other Russian Defence Ministry officers on the Ukrainian Army’s possession of the BUK missile alleged to be the weapon which shot down the aircraft, killing all 298 people on board.

Judge Hendrik Steenhuis declared that the Russian evidence revealed so far of the parts of the missile is limited to the manufacture of the weapon in Russia in 1986, and delivery of the weapon to a Ukrainian Army unit between December 1986 and early 1987. Steenhuis refused to allow  Russian military intelligence to reveal where the missile was located between 1987 and July 17, 2014, when the Dutch prosecution claims the missile was fired by a Russian military crew at MH17.

“The defence wishes to interview these witnesses in order to establish the evidential value and credibility of the parts of the missile administration supplied by Russia,” Steenhuis announced. He refused to identify Russian Army generals Igor Konashenkov, the Defence Ministry spokesman,  and Nikolai Parshin, head of the Ministry’s Missile and Artillery Directorate, whose detailed briefing on the missile parts, their origin,  and their deployment in the Ukrainian Army was broadcast from the Defence Ministry in Moscow on September 18, 2018. “The court finds that the relevant records relate to the years 1986 and 1987. In that light, the court does not see how interviewing this witness [Gen. 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.”

Steenhuis repeated to the letter the prosecution’s argument,  presented in court on June 23,    that the Russian evidence should not be allowed in the trial. The judge has opted to accept the Ukrainian Government’s claim that the missile was not in the Ukrainian Army’s inventory in 2014.

Steenhuis did not explain why he accepts the Ukrainian Army version; rejects all Russian Army evidence in advance of its presentation to the court; and will allow no further evidence or witnesses to explain how, according to the Dutch prosecution story,  the Ukrainian Army missile found its way from a Ukrainian Army base to a Russian Army base, before being sent back across the border into Ukraine to attack MH17.

Steenhuis read out his judgement for an hour and quarter at the Schiphol courtroom on July 3. A text in Dutch and English will be released later, Steenhuis said. After he had completed his recitation, Steenhuis adjourned the trial until August 31.

The Dutch government does not allow an archive video record of the courtroom proceedings nor publication of the transcript except for selected prosecution presentations, which have been released in Dutch here. Transcripts of the defence lawyers’ presentations have not been released by the court.

An archive video record is preserved by Ruptly, a Berlin-based video news agency which is part of the Russian state broadcasting network. YouTube publishes the Ruptly archive of the MH17 trial with a warning against Russia.  Steenhuis’s performance in court today can be followed here.   Steenhuis’s rejection of the request for Konashenkov’s evidence runs from Min 58:50 to 59:40. 

The parts of the BUK missile which the prosecution alleges to have been the murder weapon were first identified in a press conference by the Joint Investigation Team of Dutch, Australian and Ukrainian police and prosecutors on May 24, 2018; follow the presentation here.  The Russian Defence Ministry briefing which traced the missile to the Ukrainian Army was broadcast six months later, on September 18, 2018; click to watch.  

International lawyers point out that the Dutch court cannot resolve the conflict of evidence over the weapon without examining, then cross-examining Ukrainian Army and Russian Army witnesses. Steenhuis decided today that there is no conflict of evidence because he will allow no Russian evidence. For analysis of the illegality under Dutch law when the prosecution made the same case last week, read this.

Since the trial began on March 9 Dutch prosecutors have repeatedly charged the Russian Army and the military command in Moscow with being unindicted conspirators in the downing of MH17 by a BUK missile.  The judge also said on Friday he will accept evidence in the trial from the “continuing investigation into the higher command and the crew of the BUK TELAR [Transporter Erector Launcher and Radar]”; by which Steenhuis meant the Russian Army.

In June Maria Zakharova (right), spokesman for the Foreign Ministry in Moscow, said “Russia is not a party to the criminal proceedings conducted by the District Court of The Hague”. She added: “ Three Russian citizens, Igor Strelkov, Sergey Dubinsky and Oleg Pulatov, are facing charges. We are therefore following the trial, including compliance with their legitimate rights.”

Zakharova was issuing a diplomatic warning that if the Dutch court continues to prejudge the case by accepting Ukrainian Government evidence and rejecting Russian evidence, then the defence representation of Lieutenant-Colonel Pulatov may be withdrawn.

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