MH17 trial: Russia rejecting Dutch court inquiries, trying to have ECHR hearing postponed

The 11th hearing in the case of the 2014 downing over Donbas of the Malaysia Airlines passenger jet, flight MH17 en route from Amsterdam to Kuala Lumpur, has kicked off at the Schiphol Court in the Netherlands. The court heard an attorney of one of the suspects, Lieutenant Colonel Oleg Pulatov with the GRU military intelligence, who agreed to partake in the trial, lawyers representing the families of the victims, as well as the prosecution side.

In November, Pulatov's attorneys insisted that the court pursue further attempts to interview Sergey Muchkaev, Commander of the Kursk-based 53rd Anti-Aircraft Missile Brigade, thus effectively delaying the trial because Russia has been systemically ignoring the relevant inquiries as regards Muchkaev. In December, Russia finally reacted and, of course, turned down the request for the court to interview the senior officer, so far as a witness.

So why did Russia reject the inquiry? When will prosecutors be able to read out the indictment? And what compensation do the victims’ families demand?

RUSSIA'S REFUSAL

Due to quarantine restrictions in the courthouse, everyone must maintain social distancing at 1.5 meters and wear face masks, of which court staff constantly remind attendees. No one with the mildest cold symptoms is allowed in the courthouse. Following the rules, the victims’ families gather in a special room with glass walls, located above Hall D, where the hearing takes place. Prosecutors, attorneys, and journalists are down in the courtroom. There is a large screen above Judge Helen Kerstens-Fockens' chair. Due to quarantine restrictions, she will follow the process via videoconference.

As all rise, the judges enter the courtroom, while Judge Kerstens-Fockens appears on the screen. Presiding Judge Hendrik Steenhuis has announced that none of the four defendants have appeared in court, as usual. He notes that the accused GRU Lt.Col. Oleg Pulatov was duly warned about the hearing date in December through his defense attorneys. As for two other Russians, former FSB operative and so-called ex-“DPR Defense Minister” Igor Girkin, GRU General Sergei Dubinsky (at the time of the MH17 downing he was ranked colonel and served as “DPR GRU chief,” their summonses were handed over to the Russian Justice Ministry. The court has received no response from the Russians in this regard.

For its part, Ukraine said it was impossible to summon Leonid Kharchenko, a Ukrainian national who fought on the “DPR”'s side because he is believed to be staying in the non-government-controlled territory in eastern Ukraine. The presiding judge later reported that the Russians snubbed the court’s request to interview Sergey Muchkaev, Commander of a Russian military unit from Kursk which is thought to have deployed the deadly Buk launcher in Ukraine before it shot down the passenger jet.

Russia has stated that, according to the European Convention on Mutual Assistance in Criminal Matters, the government has the right to refuse the request for such an interview if it could harm national interests. Russia refers to the fact that Muchkaev could be asked to provide information of a military nature, which could have led to its disclosure, thus harming Russia’s interests. This implies possible exposure of classified data. It is based on this assumption that Russia refused to allow the court to question Muchkaev. Thus, the investigating judge concluded it was impossible to interview Muchkaev's, so an additional investigation was therefore completed.

As mentioned earlier, in November it was Pulatov's defense that insisted that attempts to interrogate Muchkaev be continued. At the time, Dutch prosecutor Thijs Berger said he saw no point in insisting on interviewing Muchkaev as Russian authorities had consistently ignored previous requests and were adamant about providing any information about the 53rd Anti-Aircraft Missile Brigade.

WITNESS S45 AND COMPENSATION

During the court hearing on December 8, the Russian's defense undertook to voice another demand. Sabine ten Doesschate, a Dutch lawyer representing Pulatov, said there were no documents on Witness S45 in the case file and that prosecutors must provide all the information to the defense. Sabine ten Doesschate demanded that the court order that the prosecutors attach documents on S45 to the case file. The prosecution asked the court not to deanonymize the witness as it could affect his safety.

Lawyers for the relatives of the victims are taking the floor. They believe Pulatov's lawyers are trying to make the trial drag by filing endless motions. They emphasize that their clients still cannot get over the loss of their loved ones and require specialized medical treatment.

"These 298 people – they were someone’s relatives and loved ones, there are thousands of grief-stricken relatives, and this grief won’t go anywhere after this generation passes and will never be erased from the DNA of many families," said a lawyer for the families of MH17 victims.

She also recalled the emotional speeches the MH17 victims’ relatives had voiced in court, in which they called for justice. These include an address by Ria van der Steen, who lost her father and stepmother. During her speech, she quoted Alexander Solzhenitsyn: "They are lying, we know they are lying, and they know that we know that they are lying." She also reminded the court about Pete Ploeg whose brother, daughter-in-law, and nephew all died in the crash. His brother’s remains have not yet been identified. And throughout these seven years, the man has hoped for a miracle to be able to bid a worthy farewell…

She also recalled intercepted communications of the accused. In one of the calls, they referred to "Buk" as a “toy.”

"It's striking that they called a ‘toy’ the Buk, the weapon that killed 298 people. They understood perfectly well that this is not a toy," the lawyer stressed.

Currently, more than 300 relatives of MH17 victims are demanding compensation.

Claims for compensation from the relatives of the victims of MH17 should be considered under Ukrainian law. Relatives of the victims have raised the issue of compensation in criminal court as they don’t wish to separate the criminal trial and the compensation case, as well as because the Dutch criminal court enjoys foreign civil jurisdiction. That is, it requires no separate decision of the court because its jurisdiction over compensation claims filed by relatives stems from the criminal nature of the case.

According to the lawyer of the relatives of the victims Arlette Schijns, several decisions of Ukrainian courts have been processed, and the amount of compensation usually ranged from EUR 32,000 to EUR 110,000.

"The sums allocated by Ukrainian courts to the families of the victims ranged from EUR 32,000 to EUR 110,000. We didn’t find any cases that would be close to the MH17 tragedy. We decided to divide the compensation into three categories. They range from EUR 50,000 to EUR 40,000," she said.

Arlette Schijns also stressed that money could not return the victims to their families, heal wounds, and make those responsible for the tragedy feel the pain of loss.

So far, relatives of those killed in the MH17 downing have received compensation from Malaysia Airlines, the terms of which are sealed by a non-disclosure agreement.

Relatives have not received compensation under Dutch law, as they are only possible if the crime has been committed in the Netherlands.

INDICTMENT  AND ECHR

Dutch prosecutors will start reading out the indictment in the MH17 case on December 20, 2021.

 "The next stage is the indictment, which will be read out on December 20," said presiding judge Hendrik Steenhuis, wrapping up the hearing.

The court has provided three days to this end - from December 20 to December 22, 2021.

The court shall also announce its decision on yet another motion Pulatov's defense team as regards Witness S45.

Anton Kotte, a Dutchman who lost his eldest son, daughter-in-law, and six-year-old grandson, told Ukrinform he was looking forward to the next hearing. He also said that the relatives of the victims were very concerned about the postponement of hearings in the European Court of Human Rights (ECHR).

"Russia is doing everything possible to postpone the hearing in the European Court of Human Rights. I hope we will hear the decision of the Hague tribunal by January 26," he said.

It should be recalled that the hearing in the European Court of Human Rights was delayed due to the recall of an ad hoc judge appointed on behalf of the Russian Federation.

On November 8, an ad hoc judge appointed in accordance with Rule 29 §1 (a) of the Rules of Court of the Russian Federation informed the court that he had refused to take part in the hearing. The President of the Grand Chamber then started searching for another relevant ad hoc judge to take part in the hearing scheduled for November 24, 2021.

On November 12, it became clear that the search remained unsuccessful, so the postponement was inevitable. Thus, the European Court of Human Rights postponed the hearing in the case of Ukraine and the Netherlands v Russia from November 24, 2021, to January 26, 2022.

Iryna Drabok, The Hague

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