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by John Helmer, Moscow 

Dutch state prosecutors told the court in the trial of the shooting-down of Malaysia Airlines MH17 that Major-General of the Russian Army Igor Konashenkov should not be allowed as a witness for the defence. To justify this in a hearing last Friday, the prosecutors revealed an illegal trick exposing the evidence in the case as a fit-up by the Ukrainian government’s military and security agencies.

Dismissing almost all the defence applications to the court for new evidence and witnesses, prosecutor Ferdinandusse* (lead image, right) said: “We do not see any reasonable grounds for accusing the prosecution of not being objective” (June 26 hearing,  Min 9:17).

The trick the prosecution has asked the court to accept is that apart from the Ukrainian government’s say-so, there is no chain of custody for the evidence of the weapon alleged to have been fired by the accused to destroy the aircraft and kill its occupants on July 17, 2014. If the Russian government says the Ukrainian government is lying, planting the evidence and   fabricating the chain of custody, the prosecution has told the court to ignore the Russians – believe the Ukrainians. Presented in court last Friday, this chain of custody argument has transformed the trial into a Ukrainian war operation conducted by Dutch proxies, and mercenaries.

For there to be the trial of a crime there must be evidence; for there to be evidence there must be a chain of custody. Except in The Netherlands.

The formal Dutch charges can be read in this prosecution document, presented in court on March 9. The “punishable facts”, according to the indictment and summons,  were expressed peculiarly from the start: they are uncertain alternatives and not quite facts in the normal sense of term. The Dutch charges against the accused are “four alternatives: having acted as co-author in an organization context, alternatively: having participated in the commission of the fact, more alternatively: having participated in the instigation of aforementioned punishable facts and final alternative: having participated in the complicity in aforementioned punishable facts.”

The text of the prosecution summons, issued earlier on October 2, 2019, added even more uncertain alternatives, including “requesting and/or ordering (or letting another request and/or order) the provision of a (Russian) air defence system (with crew) [and] announcing (or letting another announce) the need for air defence for the armed struggle of the so called Donetsk People’s Republic (around Stepanivka and Marynivka) to the commander(s) and/or crew of that BUK TELAR”.  Omitted from the summons is the crime itself — the order to fire or launch the weapon at MH17.  Read the 8-page summons here.

“Co-author in an organization context”, “participation in the commission of the fact”, “instigation”, “complicity” – these are terms of association; and according to the summons, that was an association formed for “the need for air defence for the armed struggle of the so called Donetsk People’s Republic”. They aren’t facts of the crime of murder. Proof of murder requires evidence of the weapon and the means, opportunity, and intention to use it to kill.  If there is no chain of custody for evidence of the weapon, there can be no case to answer for those accused.

Follow the record of what was said at the June 26 court session here.   

In The Netherlands chain of custody is applied to the supply and trade of foodstuffs, consumer products, industrial processes, and the manufacture of machinery, so that government regulation and insurance liability can be enforced if or when the chain is broken.   Outside Holland, the chain of custody for evidence of a crime is a legal necessity, and this is what it means.  

In Dutch criminal law, there is no reference to the chain of custody for evidence. In the rest of the world, this is the idea that the planting of evidence, or tampering, forging, and faking of evidence must be prevented by a scrupulous record which is independent of police, prosecutors, and court officials. This record must preserve the sequence of discovery, control, transfer, analysis, storing, and disposition of the physical or electronic evidence which reveals no gaps. The evidence record must be provably the same at the end of the process as it was at the beginning.   

But there is no such control over the evidence for Dutch prosecutors, investigating magistrates and judges. The rules on evidence in the Dutch Code of Criminal Procedure (CPC) don’t mention chain of custody; the code doesn’t require it.  Instead, the phrase “legal means of evidence” is used. Deciding what’s legal evidence and what isn’t – what evidence is admissible in the trial of a defendant accused of wielding a weapon and committing a crime —  is at the discretion of the judge to decide.

Source:  http://www.ejtn.eu

Section 339 of the code allows experts, who are selected by the police, prosecutors, and the investigating judge, and who are paid by the same state organisations as they are, to analyse evidence of a crime without proof of the chain of custody. It also allows “written materials”, but the code contains no protection of these materials from tampering.  

Source: http://www.ejtn.eu/

This Section 344 exposes a loophole in Dutch criminal law: the defence in a criminal case cannot require the prosecution to prove the chain of custody, and the judge can decide to accept the prosecution’s claim that its evidence hasn’t been faked with no chain of custody record at all.

This is the loophole which makes legal in the MH17 trial of the District Court of The Hague, and the judgements of the three judges, Dagmar Koster, Heleen Kerstens-Fockens, and Hendrik Steenhuis (lead images, 1st, 2nd and 3rd from left) , to accept Ukrainian government, military and SBU evidence which would not be admissible in British, American, Canadian, Australian or international courts.  

Ferdinandusse presented the court with Russian government evidence when it fitted the prosecution’s case against Lieutenant-Colonel Pulatov and his three co-defendants, Colonel Igor Girkin (Strelkov), Lieutenant-Colonel Sergei Dubinsky, and Leonid Kharchenko.

To substantiate the conclusion of Dutch government sources and the prosecutors that there were no Ukrainian Air Force fighter planes in the air around MH17 at the time of the shoot-down, Ferdinandusse said last Friday: “the experts of…the Russian Ministry of Defence…indicated that the radar plots in the Russian primary radar data do not have, have not detected a fighter jet [Min 1:19:23]. According to the final assessment of the Russian Ministry of Defence, and Almaz Antei, after the time of the shooting-down, what we see on the radar plots are echoes of the wreckage of MH17” (Min 1:19:43).

When the credibility of Ukrainian Ministry of Defence documents was challenged on whether flight logs had been fabricated in Kiev to show there had been no fighter operations in the area  at the time of shoot-down of MH17, Ferdinandusse declared: “Other than Pulatov, we believe [the Ukrainian documents] are comprehensible…If Pulatov believes we blindly relied on information provided by the Ukrainian authorities, he is incorrect” (Min 1:25:22).  

The weapon which committed the crime, the Dutch prosecutors insist, was not a fighter jet of the Ukrainian Air Force, but a BUK missile which had been provided  by the Russian Army, transported from a Russian military base across the border into eastern Ukraine under the command of the defendants, and then fired under their orders. This is the crime for which Pulatov and his three co-defendants are standing trial (in their absence).  

The Dutch prosecutors have insisted they have found two parts of the weapon. In a press conference of May 24, 2018, they displayed the venturi (exhaust nozzle, below left) and part of the missile casing (right). They have not identified where in the Ukraine these parts were found, by whom; when; or what chain of custody record has been made from the discovery to the public display. No JIT official or Dutch prosecutor has referred to the chain of custody record. The Ukrainian SBU has the record of discovery, but this hasn’t been revealed by the Dutch.  

Left: the venturi and casing parts on display by the JIT; source: https://www.youtube.com/watch?v=mE4tyHBer1k Right: Australian Federal Police officer, Jennifer Hurst, said at the JIT press briefing:  “Different parts of the type [sic] of missile were found. These parts were secured by the JIT and carefully examined by forensic experts (Min 32:41]…A venturi and a casing were found in eastern Ukraine.” Hurst and the JIT sources she displayed did not identify where or when the parts were found. Nor did she or the JIT reveal the chain of custody of the evidence between the time and location of the discovery and their presentation by the JIT at the May 24, 2018, press conference. Hurst revealed what the JIT prosecutors wanted to know by appealing for witnesses who “have information about the numbers of the venture and the casing; or do you know someone who can tell us what these numbers mean? Are you or do you know someone with information about the missile in which these parts have been placed and to which unit this missile was delivered?” (Min 36:52).  After the MH17 trial began in March of this year, Hurst announced to the Australian media that she “expects[s] more disinformation from Russia during the MH17 trial.”  Hurst, who lacks advanced university and scientific qualifications, has been the subject of official investigation of misconduct and a lawsuit for discrimination in an Australian court.

The JIT photographs revealed the serial numbers of the weapon. In a normal forensic investigation outside the Netherlands, those numbers would have been traced. But the Dutch didn’t do this. Instead, they announced an appeal for “someone with information about the missile in which these parts have been placed and to which unit this missile was delivered”  – Min 37:03.

The Russians responded, and on September 17, 2018, the Ministry of Defence in Moscow revealed what their investigation had uncovered. The weapon had been delivered to the Ukraine in 1986, and had remained in a Ukrainian army unit ever since.  

Two Russian Defence Ministry officers presented their answers to the questions which Hurst had appealed for – Lieutenant-General Nikolai Parshin head of the Ministry’s Missile and Artillery Directorate, and Major-General Igor Konashenkov, chief spokesman of the Ministry. Claiming not to know their names nor to have seen their two-year old briefing, defence lawyer Sabine ten Doesschate announced in court on June 23 the request for Konashenkov to testify to the evidence that the weapon of the crime had been in the Ukrainian Army inventory since 1986. Read more here .

Steenhuis, the presiding judge, has announced he will rule on the request on July 3. Last Friday, he invited the prosecutors to comment on whether he should accept or reject the request. He was told to reject it.

Left to right: Dutch state prosecutors Thijs Berger and Ferdinandusse at the June 23 hearing announcing they oppose calling General Konashenkov as a witness.  

“Pulatov would [like] to have heard the representative of the Russian Ministry of Defence who was involved in providing and has knowledge of the missile administration,” Berger began (Min 2:31:12). He too avoided naming General Konashenkov.

“It is unclear to us what relevant results this could give. Why would one want to investigate this further?  According to the defence, the reason is that the prosecution is saying the [Russian Defence Ministry documents] are false. But this cannot be found in the case file nor in what we have said already. What we did explain is that the Russian Federation’s documents may say something about where the missile was between [19]86 and 91, but they say nothing about where the missile was in July 2014. Pulatov says in his substantiation of this request that the missile administration would not confirm nor deny that the BUK missile, with which, MH17, according to the JIT, was shot down, was in the possession of the Ukrainian armed forces. Well, if we apparently agree on that, then the question is what relevance could that interview possibly have. We have no reason to think that questioning information which goes up to 1991 would suddenly cover July 2014. So this request has not been sufficiently substantiated, and there is no expectation that it would give relevant information” (Min 2:32:47).

This is a claim about the custody of evidence. But it has been twisted to fit through the Dutch loophole.  When the Ukrainian Defence Ministry testifies it has no record of the BUK missile in its inventory, the Dutch prosecution has told the court to believe it. On the other hand, the possibility that the Russian Defence Ministry should now reveal to the court its evidence that the missile remained in the Ukrainian Army’s inventory until July 17, 2014, should not only be disbelieved when it is presented, but forbidden from presentation immediately.

[*] Ferdinandusse has a first name but this will not be reported. The reason is that Ferdinandusse repeatedly shows his animus towards the defendant, Oleg Pulatov, by refusing to use the conventional honorific “Mister”. This is so customary in Anglo-American court practice that the Dutch refusal to observe it makes a display of prejudice towards the defendant. That this is exceptional Ferdinandusse revealed  himself as he read his script. Twice he read out the name as “Mr Pulatov” -- at Min. 53:37 and 55:35.  Ferdinandusse had typed the honorific in his script, but read it out by mistake; this is the exception that proves his prejudice. Ferdinandusse’s practice is also in violation of the Dutch criminal code requiring the defendant in an indictment and in trial to be considered innocent until proven guilty. In court Pulatov is as much a Mister as Steenhuis the judge.

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