- Print This Post Print This Post

By John Helmer, Moscow 

The release by the Dutch prosecutors of their presentations last week in the MH17 trial before The Hague District Court reveal the extent of the incompetence and negligence of the two Dutch lawyers paid by Moscow for the defence – Sabine ten Doesschate (lead image, centre) and Boudewjin van Eijck (right). The two lawyers, whose previous experience of criminal defence trials has been limited to defending the Dutch police, are keeping secrets which not even the prosecutors are concealing now.

Last Thursday and Friday, April 15 and 16, Manon Ridderbeks and Thijs Berger for The Netherlands Public Prosecutor’s Office presented a detailed reply to the new round of defence presentations by ten Doesschate. The prosecution has released the videotape recordings and also the texts at this link.  

The defence lawyers also read from scripts in court. However, they continue to keep them secret without explanation. They refuse to answer press questions.

Ridderbeks’s career and her involvement in the MH17 case can be followed here. According to leaked documents from the prosecution files, she has been working in the MH17 investigation since 2014; she has had special responsibility for collaboration with the Ukrainian Security Service (SBU) in Kiev to obtain witness testimony and telephone tapes. Before that, Ridderbeks served as a colonial administrator in the Dutch Caribbean islands. Her role in the MH17 case became public at the end of July 2020 when she replaced Dedy Woei-A-Tsoi in the courtroom.  

Berger came to the MH17 case from the Dutch government’s war crimes unit. The only war crimes he has prosecuted are those alleged against Serbians and Afghans fighting against NATO invasion forces.

The new presentation by Ridderbeks confirms that the investigating judge (“Judge Commissioner”, Rechter-Commissaris  ) in the MH17 trial is playing the decisive role in the case, not the presiding judge Henrik Steenhuis. Ridderbeks confirms the superior judge is a woman. “The Judge-Commissioner did not indicate in the first reports of progress when she expects to complete the various parts of her investigation.” The rulings of this judge, taken in secret, have determined that the SBU witness, audio and videotape evidence is admissible. She has also ruled that there is no evidence of  witness coercion or corruption, and no tape tampering or faking.

This judge has also rejected all attempts by the defence lawyers to challenge the  credibility or conflicts of interest of the expert witnesses presented so far from Dutch state institutions such as the  Netherlands Forensic Institute (NFI) and  the Netherlands Aerospace Centre (NLR).  In his rulings, Steenhuis has followed the investigating judge’s orders. These have been transmitted to the court, according to Berger’s court presentation on Friday, by email and letter.

The defence lawyers know the name and background of this woman; they are keeping the details secret, although Dutch law does not require them to do so. Dutch court sources who also know these details admit they are too frightened of official punishment if they leak the information.  

Source: https://www.om.nl/onderwerpen/ -- for English translation, click on Google translate button. 

Source: https://www.om.nl/onderwerpen/  -- for English translation, click on Google translation button.

In their presentations last week, Ridderbeks and Berger also confirmed that the SBU telephone tapes which were leaked to NOS News Hour, a state television programme, on April 11 were in the prosecution’s case files. For more details and link to the broadcast, click to follow.  

According to Ridderbeks, “the conversations relevant to this criminal case from that [television broadcast] report are contained in the case file and have also been discussed in part at the hearing. However, it is not the case that this large collection of conversations as described by Nieuwsuur is in full form in our case file. The calls were also not provided by the Public Prosecution Service or the police… Most of these conversations have not been recorded specifically as part of the investigation into the downing of MH17 and the conversations contain information about many other serious crimes committed in Ukraine. Of course, we find it undesirable for evidence in this criminal case to be discussed in the media before this is done at the hearing. In our opinion, however, Nieuwsuur’s reporting does not give rise to the thought that the tap conversations mentioned from our case file or at the hands of a JIT partner have fallen into the hands of third parties.”

Berger is more revealing. He claims the defence lawyers have already obtained the leaked tapes. “Nieuwsuur’s reporting contains little or no information about Pulatov that had not already become known by other means and, moreover, concerns business, professional information without details about his private life, so that it is not immediately apparent that that reporting is at all a violation of his right to privacy.”


Source: Berger’s footnote 47 to his April 16 presentation: https://www.om.nl/onderwerpen/ 

“Let us be absolutely clear,” Berger said. “We would like the evidence to be discussed here at the hearing, not in the media. But we also like to see media coverage not misused to complicate a criminal trial with unenforceable investigative assignments that have no relevance to the decisions to be made by your court. The defense’s outrage is also rather selective. The defense has previously requested and accessed many hundreds of wiretaps in addition to the court filing because, according to the defense, it was necessary to be able to assess the evidence in its context. Should we then investigate the way in which similar benefits are provided in Ukrainian criminal trials? Thousands of wiretaps seem like a lot, but in the armed struggle in Ukraine, the suspects and their contacts with many phones were constantly called. The vast majority of those tap conversations are irrelevant to this criminal trial. Many wiretaps have already been added to this dossier to outline the context of the evidence, and, as has been said, more conversations have been provided to the defence. It is good to continue to realise that the occupants of MH17 were not the only victims of the DPR [Donetsk People’s Republic]. Ukraine has every right to investigate and prosecute the many other crimes committed by the armed group of these suspects, and to disseminate wiretaps to lit participants if necessary. As unfortunate as it is that these conversations have been published in the media, Pulatov is not harmed in his defence as a result and no relevant results can be expected from an investigation into the sources of Nieuwsuur. This request must be rejected.”  

Berger contradicted himself over the identity of the investigating judge.  On the one hand, according to Berger, “that is why the Judge-Commissioner did not put that part of the questions to the expert and the remaining questions did. He [sic] made that decision meticulously, on a question-by-question note.” On the other hand, a few minutes later, “the defence did not give the Judge-Commissioner an insight into the questions she [sic] wanted to ask the expert during the hearing.”

There is only one investigating judge, Ridderbeks revealed in her presentation. “The number of decision-making parties,” she said, referring to the court,  “[are] in addition to your hearing judge [Steenhuis], this is the Judge-Commissioner [singular] and probably also a panel that will have to rule on the expected appeal of suspect Pulatov concerning some witnesses for whom the Public Prosecutor’s Office has claimed the status of endangered witness.”

The panel of appeal judges before whom the defence lawyers have already argued their case is also acting in secret. They are Alexander Boogers, B.W. Mulder, and Mariette Renckens. Their names and an early ruling were reported a year ago.

Veteran trial lawyers point out that in a criminal trial the prosecution must prove its case for the alleged crime and guilt of the accused beyond reasonable doubt. The defence must not, the sources say —  should not attempt to prove an alternative case. “This is one of the strategic mistakes ten Doesschate and van Eijck have been making,” comments one source. “Another is to produce [defendant Lieutenant Colonel Oleg] Pulatov in court on video. The lawyers’ position must be that there is no case to answer; Pulatov should not respond personally to fabrications of evidence.”

Ten Doesschate presents her client Pulatov on video, November 3, 2020. In Pulatov’s introductory statement, being read out by an English interpreter off-screen, Pulatov reveals that he has been misinformed by the lawyer on the defence strategy in court. “It is extremely important to find out who is truly responsible for downing this civilian plane, and my defence lawyers will all be working very hard to find out who is guilty.”

In her court statement last week, Ridderbeks exploited the defence mistakes. “Pulatov spoke only through his video statements. Those are Pulatov’s words that we have to deal with… This culminated in the video statement at the hearing in November. So that video statement was deliberately made. In assessing it, it is not only due to what Pulatov has stated in the affirmative, but also to what he has not stated or expressly disputed. Such as: Pulatov declined to say what phone numbers he used in July 2014 in addition to the number ending in -511. Pulatov has denied any involvement in the shooting down of MH17 and did not state any reason to think of a severe weather scenario. Pulatov has denied belonging to the Russian armed forces and has not stated anything that gives reason to think of combatant immunity.”

On the combatant immunity and other defences open to Pulatov but not prepared by his defence lawyers in court, read this. On the inadmissibility of illegally obtained evidence of the SBU type, this is what Dutch law says.

“So what the defence has said on these issues and says in the course of this process,” Ridderbeks said, “must be contrasted with Pulatov’s denial or silence on these issues…There is normally no room for an exploration of facts and circumstances that might be relevant to defences that have not been specifically announced and, moreover, are contrary to what the defendant himself has stated.”

According to Dutch and international lawyers, the only justification for the defence lawyers to expose Pulatov on video and at the same time preserve secrecy when Dutch law does not impose it, and when the prosecutors have relaxed, is that it conceals ten Doesschate’s and van Eijck’s professional incompetence and negligence.

Leave a Reply