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by John Helmer, Moscow

Lesions in the frontal lobe of a normal human being will cause deficits in the executive mental capacities; things like organizing data, planning action, archiving for memory, controlling anger, and the ability to make inferences about the intentions of others. Neurological trials have proved this beyond reasonable doubt.

The lead images present the frontal lobes and the faces of the three principal prosecutors in the Dutch trial of murder in the downing of Malaysia Airlines Flight MH17 six years ago. Their names are, from left to right, Thijs Berger, Ward Ferdinandusse, and Dedy Woei-A-Tsoi.

Analysis of every word they have spoken on the second day of the MH17 trial, March 10, reveals so many mistakes in Dutch criminal law and procedure that the medical condition of their frontal lobes is, to independent specialists, suspect. The resulting risk is for the defendants they are prosecuting – three Russians and a Ukrainian; and also the Russian state, which Berger accused of  “a disturbing pattern of active involvement on the part of Russian security services, specifically the GRU and the FSB in murders in other countries.”

The prosecutors did not speak off the cuff. They read scripts which their brains, and also those of their supervisors at the Public Prosecution Service and the Ministry of Justice, had drafted, reviewed, corrected, edited, and authorized in advance.  The pathological evidence presented, therefore, is of more than three individual frontal lobes, but also of the frontal lobe of the Dutch judicial system.

Only if that is tested according to the Dutch Criminal Code and the Dutch Code of Criminal Procedure can this trial commence lawfully for the four accused of intentionally murdering 298 passengers and crew on board MH17 when it was shot down on July 17, 2014. So everything the prosecutors have said has been extracted, weighed, and dissected. Here are the neurological and jurisprudential results of the examination.  

The Dutch Ministry of Justice has decided not to release the verbatim transcript of the trial. It has also attempted to stop archiving of its video livestream of the proceedings. The first day of the trial, March 9,  can be followed here. In the event the Dutch authorities attempt to erase the video record, as it has been erased already from the ministry’s website, the archive has been stored for international audiences beyond The Netherlands.

This is the video record of the second day, March 10.  Including the courtroom recesses, the tape runs for almost six and a half hours, with simultaneous translation into English.  The next court session has been adjourned until March 23.

Source: https://www.youtube.com/

Berger (lead images, left) identified himself last year as a prosecutor of the Dutch War Crimes Unit, a state entity. In Europe it has prosecuted war crimes alleged by the NATO alliance in its war on Serbia from March to June of 1999.  One of the three judges Berger was addressing, Heleen Kersten-Fockens, started her judicial career on the NATO side of the war crimes prosecutions in Yugoslavia.  A recent report to which Berger contributed, entitled Universal Jurisdiction Annual Review 2019, sponsored by a Taiwan promotion group and the Oak Foundation, funded by the Duty Free Shop owner Alan Parker, identifies a case which Berger pursued of war crimes in Afghanistan; those alleged crimes were not of the US and allied forces in Afghanistan, but of the local Afghans fighting against them.  

Ferdinandusse (lead images, centre) has made this career record: According to official reports, he was a detective in a unit the Dutch call “Team Internationale Misdrijven” (TIM – in English, “International Crimes Team”); he was chief of the TIM when it began nvestigation of the MH17 shootdown.   Since then there has been no separation between Ferdinandusse’s role as a police investigator and his role as a court prosecutor; he cannot be examined by the defence lawyers as a witness of the Dutch police operations in the Ukraine. On March 10, Ferdinandusse did not speak. Instead, he delivered (right) copies of his colleagues’ scripts – skeletons of argument these are called in a British court – to the bench of judges and the bench of defence lawyers.

Dedy Woei-A-Tsoi (lead images, right) is the third of the MH17 trial prosecutors. No official Justice Ministry biography can be found for her, and almost no record of her career in the Rotterdam courts over the past decade.  Rotterdam is the city where Fred Westerbeke, the leading Dutch official on the Joint Investigation Team, started his police career and where he is now the police chief.

In the best known of Woei-A-Tsoi’s cases – a six-year prosecution of a group of boys for stealing exam questions at a muslim school in Rotterdam – she was overruled by the appeals court on several counts: failure to prove criminal intention; mistakes in interpreting evidence and the Criminal Code; over-zealousness in pursuit of punishment.  

In a more recent murder case in Rotterdam, Woei-A-Tsoi revealed that she started briefing the press so quickly that “from a criminal [law] point of view, we still knew nothing at all.” After her failure in the schoolboy case, she used the local media last September to promote herself and her methods.  In this report by Niels Dekker in Achter de Schermen (“Behind the Scenes”), Woei-A-Tsoi’s professional colleagues described her as angry and vindictive. “Among her colleagues”, the journalist reported, she was “dismissed as a ‘crimebuster’ who would be out only to keep criminals in prison for as long as possible.”

After that, in 2018, Woei-A-Tsoi was removed from the Rotterdam beat to a unit of the national prosecutor’s office dealing with organized crime. She regretted the transfer to prosecuting white-collar criminals instead of murderers, she said. “It has something unsatisfactory, because you have been unable to hold anyone to account in front of the world. No one has been able to ask a suspect in a public courtroom: why?” 

Left image: Prosecutors Berger, Ferdinandusse and Woei-A-Tsoi. Berger speaks from a raised tribune on the prosecutors’ platform, which they share with the judges. Right image: the table of lawyers for the defence, Boudewijn van Eijck  and Sabine ten Doesschate, is below this platform. When the defence lawyers address the court, they speak ad lib from the table top, or from a tribune which lacks the computer screen operated by the prosecutors.   Source: https://www.youtube.com/

Berger began his presentation by acknowledging that the March 10 hearing was a preliminary one, and that he was making, not a presentation of the indictment, but an application to the court to rule on whether the indictment was complete enough to start the trial. The day before, Hendrik Steenhuis, the presiding judge, had ruled this issue has not been decided, and must be postponed for ruling until June.

Follow the Dutch Criminal Procedure Code in parallel with Berger’s presentation because, except for citing two sections in relation to secret witnesses and expert witnesses, he ignored the Code himself.

This was the stake, as Berger, the judges and the defence lawyers knew it.

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

Unless Berger could show that the evidence on which the indictment was based had not been tampered with or fabricated, and the prosecution had proof of the chain of custody of the evidence from the point of discovery to court filing, the court on its own initiative, or the court on the application of the defence,  must rule that the prosecution had failed to present a lawful case to answer, dismissing the charges.  

Short of that, the judges have the option to order the prosecutors back to their preliminary investigation and adjournment of trial.  That would mean the opening of the case file kept secret so far to fresh, independent experts equipped to test the pictures, video, and intercepted telephone records. Keeping such files secret is allowable, according to Section 30(3) of Criminal Procedure Code (CPC): “the public prosecutor may withhold certain case documents from the suspect, if required in the interest of the investigation.”  The secrecy must be lifted for the defence if the prosecution claims its investigation is complete.

The task before Berger, and thus the test of the lawfulness of everything he said, were whether he could demonstrate to the court that there was chain of custody of his evidence. The CPC mentions custody 89 times, but always in connection with custody of suspects; chain of custody of evidence is not mentioned.

Berger admitted there were investigations of evidence which have not been conducted yet by the prosecutors but which have been identified in the press coverage: “We will consider the options for …interviewing a limited number of witnesses [not interviewed before]; conducting expert investigation into the alleged manipulation of visual materials and telecom data…For various reasons we cannot yet adopt a final position about what is needed for consideration of the merits of the case” (Min 07:28).

Later, Berger admitted, “as far as the Prosecution Service is concerned, the case file is almost ready” – Min 42:36 – “for the court to consider the merits of the case”. Almost ready doesn’t mean ready. But the issue of whether the case file is complete, Berger argued, “must be assessed in terms of the substance of the charges. The question is not whether the case contains every piece of information about any possible involvement in the downing of MH17 but simply whether it is sufficiently comprehensive for the court to reach a judgement in the cases against these four defendants” (Min 44:51).

This is about as far from the requirement of proof beyond reasonable doubt – the Dutch criminal law requirement in murder cases – as it is possible to be.  The Dutch law cited as the legal basis for the arrest warrants, indictment,  and trial in court are Articles 168 and 289 of the Dutch Criminal Code. Here they are. Note that these two articles require evidence of intention and premeditation to destroy and to kill. The conventional Dutch court standard for this evidence is proof beyond reasonable doubt.

“Sufficiently comprehensive for the court to reach a judgement” is not sufficient and necessary for the prosecution to prove the evidence and the crimes beyond reasonable doubt. Berger had given the game away.

Exactly what his game was, and where his evidence came from, Berger then revealed: “findings by other parties such as the research collective Bellingcat were always carefully verified through our investigation” (Min 22:09). Note that Bellingcat was not identified as a NATO-funded entity. Note also that no investigation by groups which have exposed Bellingcat for faking and fraud were assessed by Berger and his investigators, let alone “carefully verified”. His statement was an endorsement of evidence for which, in Bellingcat’s case, there is a chain of custody leading to the intelligence service of one side in the Ukrainian conflict – the Security Service of Ukraine in Kiev (SBU).

The legal standard of the Dutch Criminal Procedure Code (CPC) rules out accepting evidence from the SBU unless the court decides it is “legal evidence”, according to Sections 338-344. These rules require the SBU to provide non-secret documents in open court; witnesses, including expert witnesses,  to testify, also in open court; and evidence that witnesses interviewed by the SBU were not threatened, rewarded, or subject to “promises to a Witness who is also a Suspect” (CPC, Chapter 4B). Already,  this is provably impossible. Joint Investigation Team (JIT)  files which have been published and reported here reveal the Dutch and Ukrainian prosecutors had agreed between themselves that no witness could be interviewed without the SBU, and that the only witnesses who would agree to testify were those “on our side”.

Left: General Vasyl Hrytsak. In July 2014 he was SBU First Deputy Head and chief of operations in eastern Ukraine; from June 2015 until the presidential election of May 2019, he was Head of the SBU. Centre: Eliot Higgins, principal of the NATO and UK government-financed propaganda unit Bellingcat. Right: Oleg Peresada, former Ukrainian prosecutor whose admissions about Ukrainian methods for obtaining witness evidence were reported here. On October 20, 2016, Peresada was awarded a special state medal “for labour and valour” for his “significant personal contribution to the strengthening of the defence capacity of the Ukrainian state, courage, dedication and high professionalism shown during combat operations and in the performance of official duties.” At the award ceremony the then-Prosecutor-General of Ukraine, Yury Lutsenko,  told Peresada: “I want to thank you on behalf of the state and on my own behalf for the work that you are doing on all investigative actions in a very important case for Ukraine and the whole world – the investigation of the MH17 disaster.” Source: https://gordonua.com

New reports from Kiev a month ago have added to the impossibility for the Dutch prosecutors to demonstrate in court what they had earlier agreed in secret to be impossible. This was the announcement that “all six prosecutors who formed part of the MH17 investigation in Ukraine have been transferred or dismissed, including the two who were part of the Joint Investigation Team (JIT) investigating the plane crash… The dismissals are expected to be a blow for further investigation into the downing of the Malaysia Airlines flight.” The sackings not only call into question the veracity of their MH17 investigation; it also means they cannot be called to testify in the Dutch court. Their dismissal in Kiev contaminates with the Dutch standard of reasonable doubt the documentary and witness evidence to which their names are attached in the JIT files and the prosecutors’ indictment.

As Berger recited his allegations of what his evidence shows for the culpability of the accused – procedurally irrelevant for the preliminary application he was making – there was another section of the Dutch Criminal Procedure Code (CPC) he didn’t mention. This is Section 344. It’s a hurdle the secret JIT files now show the prosecutors cannot overcome.

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

Berger was making a legal submission to the court; he had a duty to provide the legal foundations and references supporting it from statute, code, and case law, if he could find them.   His duty was also to tell the court that the findings of fact in the case file were “supported to a significant extent by other evidence”. If, for example, the case file included photographs and video recordings of a BUK missile being trucked into position to shoot down MH17, but Dutch military intelligence reported, also in the case file, that US satellite, NATO electronic and other signals monitoring, contradicted this, then Berger had a duty of full disclosure to Judge Steenhuis.

What Berger said instead was: “It is up to your court to determine whether the validation of this photo and other relevant findings from the investigation are complete or not” (Min 27:23). Withholding “significant other evidence” made that impossible for the court. Berger then lied:  “If additional investigation will make no relevant difference in terms of evidence, there is no reason to undertake it” (Min 27:35). He went on to compound this deceit by arguing from evidence which remains to be tested in court – and can only be tested after the court judges decide the evidence is admissible and the trial can start.

“With respect to the BUK system, we explored various alternative scenarios. One is that the BUK scenario was fired from an area under Ukrainian control, and also the idea that it was fired in an area controlled by DPR [Donetsk People’s Republic] fighters” (Min 28:55). Only the “last of these scenarios was found to hold up. The Public Prosecution Service is satisfied that any alternatives to this may be ruled out” (Min 29:10).

Berger is assuming not only what the prosecution is obliged to prove beyond reasonable doubt, when or if the trial begins; but also that the prosecutor’s case file holds the evidence that the four accused – Igor Girkin, Oleg Pulatov, Sergei Dubinsky, and Leonid Kharchenko — intended to fire the missile at MH17 and kill everyone on board. This is a legal nonsense. In Anglo-American law, that means a pleading which is contradictory in its own terms or is contradicted by the relevant precedents.  Uniquely in this case, we know the JIT files contained evidence of SBU faking, and evidence of Dutch and NATO military intelligence that the BUK had not been transported from Russia or fired.

Berger’s legal ploy was to fall back on witnesses whose identities must be kept secret. He told the court they were living in the eastern Ukraine where “the DPR [Donetsk People’s Republic] has for some considerable time been conducting a reign of terror in the area under its control where nobody is safe” (Min 32:47).  That there is substantial evidence that witnesses living in the areas controlled by the Kiev government forces were living under a “reign of terror” was ignored. The Dutch prosecution was telling the court it was on one side of a civil war. By implication and omission, Berger was confirming what Oleg Peresada, a Ukrainian representative on the JIT, admitted in secret to the Dutch at their January 2018 session: getting witnesses to testify for the prosecution was a matter of getting them “on our side”.

Berger’s evidence to substantiate the witness threat included the Skripal case allegations of the UK Government  – “several Russian nationals have been charged with murder or attempted murder in the United Kingdom, Germany, Turkey and Bulgaria” (Min 36:26). “The result is a disturbing pattern of active involvement on the part of Russian security services, specifically the GRU and the FSB in murders in other countries” (Min 37:21).

Prosecutor Berger looks directly at Judge Steenhuis as he makes his allegation of Russian state involvement in murders in UK, Germany, Turkey and Bulgaria.  Steenhuis looks down ,  making notes with a pen in his right hand. Watch the sequence, Mins 35-38.

Read that again, for this is a tipping point in the MH17 case:  “The result is a disturbing pattern of active involvement on the part of Russian security services, specifically the GRU and the FSB in murders in other countries.” Remember this sentence was read from a script which had been vetted by Berger’s superiors in the prosecution service, the Justice Ministry, the counterpart Dutch intelligence services, including the chief of Dutch military intelligence, Major-General Onno Eickelsheim, whose reports Berger knew to be in the case file. Read the Eickelsheim reports here.

Even if Steenhuis, presiding at the time, didn’t remember Eickelsheim’s reports excluding Russian culpability in deploying and firing a BUK missile at MH17, the judge was bound by his own rulings of the day before, and by Dutch law,  to stop Berger at that instant. For Berger was presenting unsubstantiated claims about the crimes of another state. Even if they had already been proven, they could not, and did not, have relevance to the case against the four accused. Against them there was the presumption of innocence; their alleged crime had to be proved by the prosecutors beyond reasonable doubt.

Just as British courts do not allow the past criminal record of a defendant to be part of a prosecution case for a new offence, it was unlawful for Berger to have attempted —  and prejudiced for Steenhuis not to have stopped —  the allegation of “disturbing pattern of involvement…in murders”. That allegation, vague, unproved, immaterial in the MH17 case, turned the proceeding into political propaganda. By hearing it, and then allowing it, the court has prejudiced everything which follows.

In the Anglo-American courts, the defence lawyer would have risen to his (her) feet, objected emphatically, and called on the judge to conference out of the hearing of the jury. The defence lawyer would then have cited the case law requiring the judge to instruct the jury to disregard what Berger had said. Failing that, the defence might call for a mistrial, and make certain the record was available for the appeals court to read exactly what the presiding judge said were his reasons for proceeding.

Judge Steenhuis had another, technical, procedural, Dutch ground for stopping Berger. The defence lawyers for Pulatov have already filed a court challenge to the lawfulness, according to the CPC, for the prosecutors’ reliance on secret witness testimony. Berger revealed this at Min 42:07. He said this appeal is currently under review by another bench of judges of The Hague District Court; it hasn’t been decided yet.

Steenhuis, whose hand  was writing with his ballpoint but whose lips were sealed as Berger spoke, knew that a parallel proceeding like this, in which the evidence is under legal review in another court, is procedurally improper, and a violation of the defendant’s due process rights. “There is a bar to prosecution,” Steenhuis knew from the CPC Section 359(a)(1)(c) “ if as a result of the procedural error or omission there cannot be said to be a trial of the case which meets the principles of due process.” Pulatov was being denied due process by Berger.  The CPC required Steenhuis to “take into account the interest served by the violated rule, the gravity of the procedural error or omission and the harm or prejudice caused as a result of said error or omission.”

Berger had saved the SBU’s witness testimony and Bellingcat’s photographs; the judge’s silence was telling. Woei-A-Tsoi then rose to argue that the court should accept the fabricated telephone interception tapes. Referring back to Berger, she said: “we’ve just explained our comprehensive approach to validating the intercepted telephone calls that Ukraine provided” (Min 1:45:50). Lunch had intervened; memories were short; scripts were jumbled. In point of fact, Berger hadn’t done that at all. His “holistic” approach, as he called it, was limited to SBU witnesses and photographs.

“As far as the Public Prosecution service is concerned,” Woei-A-Tsoi declared, “the authenticity and content of the intercepted calls have been investigated as fully as possible using different methods…We do not rule out further investigation. But we only consider it would be meaningful if it were based on serious and concrete, specific and new information about the intercepted telephone conversations. As to the question of whether new information of intercepted telephone conversations does or does not warrant further investigation, it is necessary to look very critically at the source of that new information. Specific accusations of manipulation are, for example,  contained in a report by the Malaysian investigator A[kash] Rosen which was published online” (Min 1:47:28).

For analysis of the Rosen report of SBU telephone tape tampering, as well as a German report by Norman Ritter of the same thing, read this. Read the full 143-page Rosen report here.       

Woei-A-Tsoi was making an attack on the credibility of one expert witness. By itself this attack was an acknowledgement by the prosecution that reasonable doubt exists about the veracity of one of the foundations of the Dutch case against Pulatov and the others. But the detail of the attack was highly unusual – nothing like it had been heard in court until that moment. The ferocity of the attack wasn’t exceptional. Woei-A-Tsoi had been condemned for that when she was serving as a Rotterdam prosecutor and before she was transferred out of the homicide squad.

There is no provision in the CPC for a bench of judges to reach judgement on a preliminary application to substantiate Woei-A-Tsoi’s line of argument.

Left: Woei-A-Tsoi arguing the Rosen evidence of telephone call tampering is irrrelevant because he lacked access to the “original material”.   Right: Akash Rosen, OGIT investigator in Kuala Lumpur.

“The investigation team analysed this report and added it to the case file. There are a number of things that are quite remarkable. Rosen investigated videos which were posted on Youtube. They were posted there by the SBU. In these videos we see fragments of intercepted calls, and the investigation by Mr Rosen is not an investigation of the calls themselves. It leads to the very unsurprising conclusion that the conversations in the Youtube videos have been edited. That conclusion is undoubtedly true but it says nothing about the complete intercepted conversations that are contained in the case file and that have been thorough investigated” (Min 1:47:28).

Woei-A-Tsoi claimed Rosen had investigated “the authenticity of several conversation fragments” (Min 1:47:52). This was misrepresentation – authenticity was not tested by Rosen. Instead, he says he investigated “tampering” by means of cutting, splicing and duplicating same-voice segments to change their meaning. Because Rosen did not have access to the “original material”, as Woei-A-Tsoi called the interceptions
(Min 1:47:36), she concluded “we cannot reconcile these assertions” (Min 1:47:46).

But the prosecutor didn’t mean reconcile; she meant reject. “This report does not provide any compelling reason to question the authenticity of the intercepted conversations included in the investigation [Min 1:48:52]… the report’s findings therefore have no relevance to the question regarding the authenticity of the underlying intercepted telephone conversations and in Rosen’s report we see no reason to apply for further investigation” (Min 1:49:45).

Woei-A-Tsoi had planted a red herring —  a diversionary manoeuvre (afleidingsmanoeuvre in Dutch). “Authenticity” of voice was not at issue in the evidence; meaning, intention,and tampering to change meaning – that remains the issue on which adjudication must follow beyond reasonable doubt. Woei-A-Tsoi’s red-herring ruse is evidence the prosecutors are unable to reach the standard required. 

After Woei-A-Tsoi’s performance in court, the German reporter Billy Six questioned the  Deputy Chief Public Prosecutor Digna van Boetzelaer and spokesman Brechtje van de Moosdijk at the court’s press centre. He asked whether the audio tape excerpts from the SBU, presented by the JIT on September 28, last year, as evidence for the charges announced against the four accused, remain in the prosecution’s case file. Follow Six’s questioning of van Boetzelaer here.

Billy Six at the microphone provided by a prosecution aide at the Schiphol press centre on March 10 (Min 0:59). He asked his question in English.

Six’s question – he was obliged to repeat it three times over – was aimed at getting van Boetzelaer and van de Moosdijk  to acknowledge that the audio tapes presented by the prosecutors six months ago had been excerpted and edited, and that despite that, they amounted to “original material”, as Woei-A-Tsoi had insisted in court for including them in the case file or indictment. If not, further investigation is something Steenhuis must order.  Six was challenging the prosecution for its double standard.

“Do you acknowledge,” Six asked (Min 1:54) “those kind of phone calls as part of your evidence file against those four suspects now, or not?” “Do you want ask something about Rosen?” Van Boetzelaer responded. Six hadn’t mentioned the Rosen report, but van Boetzelaer understood he was requiring her to explain why edited extracts of the SBU tapes had been “original material” when the JIT presented them last year, but not now when Woei-A-Tsoi attacked the Rosen report. Van Boetzelaer was silent. Van de Moosdijk continued: “Today we cannot specify all the details of the evidence that’s there. So we highlight some things because they are important right now. ..It will become available later when the substance of the case is heard” (Min 2:37).

But Judge Steenhuis and the other judges on the bench have not yet heard argument from the defence on why the video and audio evidence presented by the prosecution cannot be admitted, and why the trial cannot proceed with the indictment as spelled out by Berger and Woei-A-Tsoi. Nor has the District Court ruled on the inadmissibility of the SBU’s secret witnesses. Van Boetzelaer and van de Moosdijk were announcing a fait accompli, months before the court has decided.

Left to right: Deputy Chief Public Prosecutor Digna van Boetzelaer and prosecution service spokesman Brechtje van de Moosdijk at the court’s press conference of March 10, 2020.  Source: https://www.youtube.com/
Min 7:33.

Six’s questioning also aimed to test the chain of custody from the SBU to the JIT,  and to the indictment in court now. Did van Boetzelaer claim the chain of custody was lawful, according to the Dutch code, and thus admissible in court against Pulatov and the other defendants?

In June of 2019, during a press conference in which the Dutch and Australians accused the four defendants of murder, Willem Paulissen, the head of the Dutch National Criminal Investigation police, ruefully admitted the SBU origin of the telephone interception tapes.

Source: http://johnhelmer.net/

The grin on his face hinted at the problem of chain of custody and admissibility of evidence from the SBU. The subsequent leaks of the minutes of JIT meetings confirm this was a problem the senior police and prosecutors admitted to themselves in secret.

It is plain that Woei-A-Tsoi was arguing the prosecution’s case over crucial evidence whose admissibility is in dispute. Since there is an acknowledged dispute over whether crucial evidence against the defendant has been manufactured or tampered with, the prosecutor’s legal duty is to present the “original material” for forensic analysis by experts for the defence, on court order.  That is what Woei-A-Tsoi should have submitted to the court on March 10. She didn’t; she won’t.

The press service of the prosecution provided this summary of the day’s proceedings. According to this Dutch record, the prosecutors want to limit further investigation to “possible manipulation of images by the Russian Federation.” Note that the Dutch prosecutors ignored the defendant’s name but not his Russian nationality.

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