By: Emma Bakkum, Senior Research Associate, PILPG-NL
Yesterday, Monday 9 March, the long-awaited MH17 trial started with its first day of hearings (regiezitting) before the court of first instance of The Hague, in the secured location of the Schipol Judicial Complex. Attracting a large international interest, the trial against three Russians and one Ukrainian suspected of being involved in the downing of MH17 saw the first of several days of “inventory”. These hearings are mostly procedural and the substantial case will be discussed at a later stage of the process. This post will provide a summary of the first day of the MH17 trial.
Most of you reading this are aware that the trial concerns the downing of flight MH17 above Ukraine on 17 July 2014, as a result of which the 298 passengers on board died (of which 196 were Dutch). The Joint Investigative Team (JIT), after five-and-a-half years of investigating, identified four suspects: Igor Girkin, Sergej Doebinski, Oleg Pulatov, Leonid Chartsjenko (read more about them and their role in downing flight MH17 here). The four accused are charged with 1) causing the crash of an airplane and 2) murder. Yesterday, as expected, the accused were not present at trial and only Oleg Pulatov was represented by defense counsel.
The Judiciary
Presiding judge Mr. H. Steenhuizen opened the trial at 10:00 am. After recognizing the enormous impact of the tragic crash of MH17 on victim’s families, the judge discussed some practical and logistical issues that come with this complicated case. For instance, the hearings of the coming days (whether all days are going to be used is yet unclear but unlikely) will take place from 10:00-17:00 on scheduled days (9-13 March and 23-27 March) and a livestream is available in both Dutch and English, here.
Seemingly aware of the public audience and large foreign interest in the case, the presiding judge took an extended time to explain the role and rights of the accused, victims and families of victims within Dutch law and therefore this trial. For instance, he discussed the rights of surviving relatives to submit a statement to the court. As of now, 49 surviving relatives have indicated a wish to make use of the right to speak. 82 surviving relatives have indicated a wish to submit a written statement and another 84 have indicated to submit a claim for damages. These numbers can change while the proceedings continue.
The court made two noteworthy decisions during the first day of hearings. The first decision relates to the defense for Oleg Pulatov. It became clear during the hearing yesterday that the parties to the proceedings exchanged written communications with each other before the start of the trial, in particular about potential preliminary defenses and requests for further investigation from the side of the defense. Preliminary defenses concern defenses that do not relate to the substance of the case but could lead to termination of the proceedings, and are usually dealt with before proceedings continue with the substantial part of the trial. In the written communications, the Pulatov’s defense stated that it could not indicate yet whether it submits preliminary defenses or requests for further investigation. This is due to the volume of the criminal dossier of over 30.0000 pages as well as the fact that the dossier is in Dutch and the defense was therefore unable to discuss it with their client. The court decided to postpone the opportunity for the defense to submit preliminary defenses and requests for further investigation to the hearings scheduled to start on 8 June 2020. It will then apply a broader standard in deciding on the request for further investigation (“interest” instead of “necessity”).
The second point concerns the (lack of) presence of the three suspects not represented by counsel. For the case to continue without the suspects present in court, it needs to be proven that the indictments were valid and that the suspects were summoned to attend the hearings in compliance with the rules and regulations. The court concluded that this is in fact the case. The indictments were delivered to the accused in accordance with the law, in the correct languages, and in a timely manner (through international cooperation requests with Russia and Ukraine as well as communication (attempts) through email, phone calls, skype, whatsapp, facebook, and VK). The court therefore, as well as because of responses from some of the accused to the indictment via media outlets, concluded that it had no doubt that the accused are aware of the criminal proceedings initiated against them. As this is the case, the accused can be expected to make certain efforts to attend the proceedings (for instance, they could inform the authorities that they changed their address so that the indictment can be properly delivered). The three accused have however neglected to do so and therefore rescind their right to be present during trial.
To summarize, the court decided that the indictments against the three suspects, Igor Girkin, Sergej Doebinski, and Leonid Chartsjenko are valid and that the trial can continue in absentia. Oleg Pulatov is represented by counsel, two lawyers from the Netherlands and one Russian lawyer, who will submit preliminary defenses and requests for further investigation during the hearings scheduled in June 2020.
The Prosecution
After the court’s opening remarks and findings, the Prosecution gave its opening statements. The prosecution announced the indictment with charges of 1) causing the crash of an airplane and 2) murder. Out of respect for the 298 victims, the prosecution spoke out each of their names. Silence followed.
The opening statement of the Prosecution continued with certain interesting legal issues. The prosecution underlined how the MH17 case is different from other airplane downings because 1) it was not shot down by a military defending its own territory (this BUK should never have been in Ukraine) and 2) those responsible for the downing of MH17 have not taken any responsibility whatsoever. The prosecution thanked witnesses who provided testimony and all of those who contributed to the investigation and underlined the importance of the MH17 trial for truth-finding, even when the accused will not be present at trial.
Among other things, the prosecution further noted that the “error scenario”, meaning that the accused did not realize they were aiming at a passenger airplane (thinking it was a Ukrainian army plane) had been taken into account by the prosecution. The prosecution also touched upon combatant immunity under international humanitarian law (IHL). It argued that the accused cannot claim combatant immunity for actions committed in July 2014, because of the fact the accused themselves so flagrantly violated IHL, summing up some examples. The armed groups therefore cannot claim the protection of IHL, and communal criminal law applies.
The prosecution finally noted that it does not expect to indict other persons on a short notice. The four accused in this case, however, played major roles in transportation of the Buk and the downing of flight MH17. Although several other people have played a role in transporting the Buk-installation to Ukraine, not all individuals could be identified. For example, there is insufficient evidence at the moment to indict Vladimir Tsemach or Igor Bezler. The investigation continues.
Defense for Oleg Pulatov
The defense team for Pulatov first stated that Pulatov carries no responsibility for the downing of flight MH17 and “had nothing to do with it”. The defense team multiple times underlined that while the prosecution has had its time for investigation, the defense has yet to get fully acquainted with the complete case documents (of over 30.000 pages). The defense therefore needs reasonable time to prepare and submit preliminary defences and investigation requests (already indicating that June is will be very soon).
The defense for Pulatov focused mainly on the investigation, questioning the thoroughness of the JIT investigation. Mr. Van Eijck stated that there several questions continue to be unanswered, of which he focused on the closure of the airspace above eastern Ukraine in July 2014. Van Eijck pointed out that the JIT never investigated persons (air traffic controllers) involved in decisions about the closing of the airspace above Ukraine, and whether these persons could potentially be prosecuted in the Netherlands (as well as what role Ukrainian JIT members might have in this). He further noted that several questions in parliament and to the minister have never been answered. The defense lawyers considered that the JIT should have investigated the issues relating to the Ukrainian airspace further, summing up a list of unanswered questions.
The first day of the MH17 trial concluded with a brief intervention by the surviving families’ lawyers. One of the lawyers explained their work, making reference to other lawsuits they have started on behalf of victims’ family. In these proceedings, their role consists of monitoring the MH17 process from the perspective of the surviving families.
Today at 10:00 the trial continues with the status of the investigation.
