- Print This Post Print This Post

by John Helmer, Moscow 

Dutch Prime Minister Mark Rutte (lead image) surprised his own country’s lawyers last week with the filing of a Dutch Government claim against Russia at the European Court of Human Rights for the shooting-down of Malaysia Airlines Flight MH17. “The Dutch government decided”, declared the official announcement,    “to bring Russia before the European Court of Human Rights (ECtHR) for its role in the downing of Flight MH17.”

“By submitting an inter-State application,” Rutte’s statement explained, “the government is sharing all available and relevant information about the downing of Flight MH17 with the ECtHR. The contents of the inter-State application will also be incorporated into The Netherlands’ intervention in the individual applications submitted by the victims’ next of kin against Russia to the ECHR. By taking this course of action the government is offering maximum support to these individual cases.”

In fact, according to international lawyers, the Dutch move contributes nothing to the individual cases now pending from MH17 victims’ families because the court has suspended all of them since December 2018.

The lawyers also point out the contradiction between alleging in the criminal trial in The Hague District Court now under way  that the Russian government and military were not behind the actions of the four men accused of the shoot-down;  and Rutte’s allegation of Russian state guilt to the European court. “This isn’t just parallel litigation, which the ECHR has already refused to allow,” commented a London legal expert. “It’s a vote of no confidence in the Dutch prosecutors to secure convictions in the murder case they are trying to make.”

Rutte’s move has been dismissed in The Netherlands by Dutch lawyers, and also by victims’ families, as cynical electioneering. The prime minister, they believe, is attempting to hold on to power before the general election due next March despite having lost the majority of party votes in both houses of the Dutch parliament.

“For our prime minister Rutte,” commented Dutch lawyer Alfred Vierling, “this entire circus is the crucial test case for his higher political ambitions. He has promised to the victims’ families that the proverbial last stone will be turned over.  Maybe, but I expect that we shall all be crushed under a pile of lies first.”

“The new Dutch move,” responds Canadian war crimes specialist, attorney Christopher Black, “is an attempt to mask the fact that the trial before the Dutch courts is a biassed, one-sided affair, based on unsupported claims of the Kiev regime and the suppression of the evidence provided by Russia and eye-witnesses that support the case that the Kiev regime and its allies are responsible for the shoot-down. Instead of bringing justice to the victims, this is another attempt by NATO to deny them the real justice they are due.”

Rutte and his foreign minister, Stephanus Blok, made their move on July 10 with press releases and tweets;   there has been no release of the legal papers. The ECHR has yet to record their lawsuit.

The court in Strasbourg, France, is a lawyers’ goldmine. At the court registry and on its official website, the ECHR reports that at the start of this year there were 9,360 applications involving the Ukraine; more than 6,500 of them are cases involving Crimea and the war in eastern Ukraine. Mostly these are individual lawsuits. Here is the court’s 13-page summary of Ukrainian cases pending and decisions made to date.

Source: https://www.echr.coe

As the tabulations show, most of the applications never reach a hearing or judgement; they are struck out by the court as inadmissible. The reasons for this are spelled out in the court rules, which can be read here.  

One of the biggest hurdles for applications is the rule that the European court will not adjudicate a case until and unless the applicant has tried his claim in his domestic or national court first. The court has told lawyers their cases “must be pleaded in the first instance before the national court, so that a potential application to the ECHR can be prepared from the outset. Moreover, where a case involves violations of fundamental rights, lawyers should seek to have those violations established by the national court”. That can be a long process, the ECHR also warns. “The exhaustion of all available domestic appeal procedures is essential. Failure to appeal a case to all national courts up to and including the State’s court of last resort may result in an application being declared inadmissible by the ECHR.” 

In cases involving Kiev or Moscow, lawyers usually argue that the national court systems are politicised, prejudiced, corrupt. The same criticisms have been levelled at the ECHR itself  whose judges are political appointees. Their judgements have also been contested as over-reaching their powers by the English courts.  

Before last Friday’s announcement by Rutte, the court said it was considering five inter-State applications; that is, cases brought by the government in Kiev against Russia. On December 17,  2018, the court announced  it would delay all cases involving the war in eastern Ukraine. “A key issue to be determined in these applications is whether Ukraine or Russia has jurisdiction in relation to the matters complained of, in accordance with Article 1 of the European Convention on Human Rights (Obligation to respect human rights). As matters now stand, the Court expects to rule on this issue in the related inter-State case of Ukraine v. Russia (re Eastern Ukraine) (application no. 8019/16), in which the Government of Ukraine raises various complaints against the Government of the Russian Federation. To save as much time as possible, the Court has decided that any related individual applications which are not declared inadmissible or struck out at the outset will be communicated to the appropriate respondent Government or Governments for observations in parallel with the inter-State case. After receiving the Governments’ and applicants’ observations in reply, the Court intends to record an adjournment for each case, pending a judgment in the inter-State case”.

Source: https://drive.google.com/file

On Friday, when Rutte made his new attack on Russia, he knew that all the MH17 applications have been stalled since December 2018. The “adjournment” is likely to last several years.

The Russian Foreign Ministry also knew.   “This step will only lead to further politicisation and complicate the search for the truth,” spokesman Maria Zakharova condemned Rutte’s move on Friday. “From the very beginning, The Hague took the path of placing all the blame on Russia for the crash of flight MH17. As the events of the past six years since the tragedy have shown, the Netherlands acted not in accordance with UN Security Council Resolution 2166 but exclusively within the framework of anti-Russian logic, to which both the technical and criminal investigations were subordinated. All evidence, testimony and expert assessments that ran counter to the pre-selected scenario of what happened in July 2014 in the sky over eastern Ukraine were rejected.”

The ECHR registry identifies three main cases on behalf of victims of the MH17 shoot-down.  They are all at the stage of “communication”; that’s far short of actual litigation and hearing. It means the paperwork has been sent to Russia and the Ukraine for their reply, and until the December 2018 stop, there had been none. Read the ECHR case files, starting at page 11 of the summary.

The lawyers involved are Elmar Giemulla of Berlin and Jerry Skinner, an American working with Australian and Dutch lawyers; they are aviation accident specialists. Giemulla commenced his case against the Kiev regime for negligence in failing to close the airspace above the war in the Donbass ahead of the MH17’s flight on July 17, 2014. The case is captioned  Elena Ioppa against Ukraine;  case number 73776/14. The ECHR tried stalling this lawsuit from the beginning; read the details here. Giemulla has abandoned practical conduct of the case against Ukraine; he refuses to answer questions or explain himself. All of his clients have now signed on to Skinner’s big-money lawsuit against Russia.

Source: http://johnhelmer.net/

The Skinner group have advertised and promoted themselves with media attacks on President Vladimir Putin; they were recently condemned in the Australian courts for malpractice in their handling of MH17 case clients.  At the ECHR Skinner’s application is Number 25714/16; the list of victim parties can be read here.   

A Dutch law firm called Beer Advocaten of Amsterdam is also running a case blaming Russia with the same allegations as Skinner’s. This is case number 56328/18. Dutch lawyers refuse to answer questions, but they do issue press releases. According to Beer’s announcement on January 20 of this year, the Russian Government had replied to the ECHR, arguing the Beer claim was inadmissible.

Left, Beer corporate press release; right, lawyer Christa Wijnakker, a Beer accident liability lawyer currently handling the MH17 case after the initiating attorney left the firm. “'Helping people in a defining period in their lives is important for me in this job”, Wijnakker reports on the firm’s website.

“Russia holds the view,” Beer reported,   “that (i) there is no proof that Russia was involved in the crash of flight MH17, (ii) Russia was not responsible for the investigation into the crash and (iii) for these reasons the ECHR cannot take our complaint against Russia under consideration. The defence is made up largely of accusations against government-affiliated investigators, such as the Dutch Safety Board and the JIT (Joint Investigation Team). Russia claims that the investigators based their findings on incorrect data forged by unknown parties. Private investigators (like Bellingcat) are the subject of similar accusations. In Russia’s opinion the findings of all these investigations are unreliable.”

For the Dutch record that MH17 evidence has been fabricated and falsified by the Ukraine Security Service (SBU), read this.

Next month, on August 31, new lawyers for the victims’ families are due to open their case for compensation in the criminal trial at Schiphol.  Comparing the Dutch prosecution allegations in that case so far with the claims by the Skinner-Beer combination before the Strasbourg court, it is unclear to lawyers and diplomats what Rutte meant in his announcement on July 10 that the Dutch Government intends its new application to the ECHR to “shar[e] all available and relevant information about the downing of Flight MH17 with the ECtHR.”

The US, Dutch and NATO intelligence evidence has already been identified in the Schiphol  court, and in leaks of the prosecution case file, as failing to substantiate Rutte’s fresh claim of “Russia’s…role in the downing of Flight MH17.”

On June 10 Dutch prosecutors testified that the four defendants, three Russian military officers and a Ukrainian subordinate, were not entitled to legal immunity for their actions as combatants  on the battlefield. This, they argued, was because the conflict in eastern Ukraine was not an international one; that the four weren’t under Russian military command or control; and that they were individually culpable in the alleged crime because there was no military discipline in the area they controlled at the time. Rutte’s new case appears to argue the opposite, and that the Russian Army, its units and weapons, and the civilian command in Moscow participated directly, and caused the destruction of Mh17.

“For the moment,” says Vierling (right) in Amsterdam, “I don’t know what exactly the victims’ families have submitted to the ECHR; violation of human rights by Russia, I presume. Well, Russia as a state has not been and cannot have been addressed by the MH-17 criminal case. Nor do I know of any other Dutch procedure against the Russian state that is possible, for states are immune from the verdicts of national tribunals and courts.” 

“The Dutch government just announced its intention to ask the ECHR to add its own submission against the Russian state to the submissions by the victims’ families. But for now the status of their submissions is that they have neither been accepted nor dismissed by the court.  Even if they will be accepted, then the addition of the Dutch inter-State complaint [against Russia] won’t take priority over that of the victims’ families. As stated officially by our prime-minister, he is serving up additional evidence to include whatever the secret services can make up to corroborate the submissions.”

“Indeed, we are far away from the principles of law, according to which there should not be more than one legal proceeding at the same time, let alone double jeopardy; that’s to say condemnation in a second court for the same case.”

Leave a Reply