19 June 2019
Decision to prosecute the suspects.
On 19 June 2019, the Dutch Public Prosecution Service (Openbaar Ministerie; OM) announced the prosecution of four suspects for downing Flight MH17. The public hearings started on 9 March 2020 at the District Court of The Hague, that holds the hearings in the secure location of the Schiphol Judicial Complex. The four suspects – three Russians and one Ukrainian – are prosecuted for two charges: 1) causing the crash of Flight MH17, resulting in the death of all persons on board (article 168 of the Dutch Criminal Code (DCC)) and 2) the murder of the 298 persons on board flight MH17 (article 289 DCC). This chapter explains the proceedings under Dutch criminal law, what the indictment entails, the stages of the proceedings, the rights of those involved, including the next of kin, the possible results and how these proceedings interact with other legal proceedings.
Criminal law is the body of law that addresses criminal behavior of persons. It does not concern the acts of states, whose responsibility can be addressed through human rights law (chapters 3 and 4) and public international law (chapter 5). When a person is suspected of having committed a criminal act, a state’s prosecution authorities (the Public Prosecutor) can decide to prosecute and initiate a trial before a criminal court against that person, and it does so on behalf of society. The Court will hear all evidence and conduct its own assessment of that evidence.
In accordance with Dutch criminal procedure law, the Court thereby examines whether the writ of summons (which includes the indictment) was valid, whether the Court is competent to hear the case, whether the Prosecutor is admissible, and whether there are reasons to suspend the prosecution. If these questions are addressed and the case can continue, the Court then examines whether it is proven that the suspect has committed the facts that are indicted, and if so, what crime(s) these facts are according to the law. If the Court has determined that the facts are proven and that they constitute crimes in accordance with the Dutch criminal code or other criminal laws, the Court will deliberate over the guilt of the suspect.
Each state has its own national criminal law. Usually, states prosecute crimes committed on their territory (territorial jurisdiction). However, states also have jurisdiction over crimes committed by their nationals (active personal jurisdiction) or against their nationals (passive personal jurisdiction). In the situation of MH17, the Netherlands therefore had jurisdiction over the crimes committed against the Dutch victims based on the passive personality principle. However, to ensure that there were no challenges against the jurisdiction and to emphasize that the cases are conducted on behalf of all of the victims, Ukraine has also formally transferred their territorial jurisdiction to the Netherlands. The Netherlands therefore has several jurisdictional grounds to prosecute those suspected of downing MH17.
In the Netherlands, there are three levels to hear cases: the District Court, the Court of Appeal and the Supreme Court. The case first has to be decided by the District Court and will only move to the Court of Appeal if the Prosecution or the defense appeals the District Court’s decision within 14 days after the judgment. The procedure at the Court of Appeal is similar to the procedure at the District Court. The Court of Appeal's decision can also be appealed at the Supreme Court within 14 days of the judgment of the Court of Appeal. The Supreme Court does not re-examine the facts, but only judges over legal questions. There is no trial by jury in the Netherlands.
The District Court’s bench that decides over the case formally consists of a chamber of three judges, one of which is the presiding judge. For the MH17 case, there are five judges present at the hearings. The reason is that if a judge falls ill or is legally challenged for their impartiality, there are already back-up judges that have followed all of the proceedings that have occurred. Therefore, those hearings do not have to be conducted anew should the replacement judges have to be used because they have been present at all hearings.
The judges consider the charges that are brought by the Prosecutor and determine what has happened. In Dutch criminal proceedings, judges have an active role and lead the discussion of the dossier. During trial, they examine all of the information that is gathered during the criminal investigation, ask questions to the suspects and their lawyers (if they are present), and may also examine witnesses.
In addition to the trial judges, there are also judges involved in the MH17 case that are called examining magistrates (rechter-commissaris). They are not present in the court room during the trial hearings but make decisions about procedural matters in between hearings. They are responsible for supervising the progress and lawfulness of the investigations that are led by the Prosecution. For example, they question witnesses and grant authority to the Prosecutor to use certain investigative measures. The trial judges often start a hearing by summarising what the examining magistrates have done and decided since the last hearing.
The Prosecution (OM) directs the criminal investigation into alleged criminal offenses – which it performs with the police and other investigative authorities – and is responsible that the investigation is conducted in accordance with the law. The Prosecution decides whether there are sufficient grounds to prosecute an individual, determines that a person becomes a suspect and brings a case to the District Court. In the pre-trial period, the Prosecution issues the summons to appear and indictment, in which they state what the suspect is accused of, when and where the alleged facts would have been committed, when and where the trial will be, and what his or her rights are. During the preliminary investigation, which takes place before the investigation during the hearing (the trial) takes place, the Prosecution decides who and what to investigate and requests permission to the examining magistrate when it needs to use special investigative measures. The Prosecution has the responsibility to not only investigate and present incriminatory evidence but also exonerating evidence.
During trial, the Court decides on what additional investigations it finds necessary. The Prosecution presents the case and the contents of the dossier, which are based on the conducted investigations, and argues whether or not the evidence proves the indicted crimes. If they believe that the evidence is insufficient to prove guilt, the Prosecution has to request the Court for an acquittal. Otherwise, they will request the Court to find the suspect guilty and advise the Court on a sentence.
In Dutch criminal proceedings, the suspect is not obliged to be present, unless their presence is order by the Court. They can either remain entirely absent and have their trial conducted “in absentia” (bij verstek), be present during the trial, or be absent while still sending an attorney to conduct the defense on their behalf. If the suspect chooses not to be present himself but to be represented by an attorney, the trial proceeds as an adversarial procedure (or trial “in contradiction,” procedure op tegenspraak). The attorney has all the rights that the suspect would have had if he were present. If the suspect chooses to be present himself, it is not obligatory to have an attorney, but it is advised to do so, in order to help ensure that the suspect receives a fair trial and defend the suspect’s interests.
In Dutch criminal proceedings, it is common that witnesses and expert witnesses are heard during the criminal investigation phase prior to the trial hearings. The Prosecution and the defense are present when the examining magistrate question the witness and can submit their own questions. The witness statements are included in the case file (dossier). The trial judges may also choose to hear a witness during trial, either someone that has already been heard in the preliminary investigation or someone new, but this has not been very common in Dutch practice. In 2021, however, the European Court of Human Rights ruled in the Keskin-case that the defense has a right to question relevant and important prosecutorial witnesses on which the case relies during court hearing. This may entail that in future cases, possibly also during the MH17 trial or a possible appeal, there will be more witness statements during hearings. The defense counsel for Pulatov has already invoked the Keskin case to argue for their right to interrogate.
To ensure the public nature of the trial and facilitate that everyone with an interest in the proceedings can follow the trial, also given that many of the next of kin do not live in the Netherlands, the public can follow all hearings via a livestream that is also recorded and can be viewed at a later time. The livestream is also provided with English interpretation, and can be accessed via: https://www.courtmh17.com/livestream/uitzending.html.
While the Prosecution then continues its investigation, the suspect(s) can find a defense attorney, who can then also start preparing the defense.
On 9 March 2020, the first hearing for the MH17 trial started. Even though the Court tries to have the hearings in each of the four cases joined as much as possible, there is formally a separate case against each suspect. This allows for a separate timeline per case should there be a reason to do so, rather than that all cases have to be suspended awaiting the progress in other cases.
On 9 March 2020, the trial started by the Court calling out the names of the defendants, verified their identity and explained their rights during trial. This includes that they have the right not to incriminate themselves, and therefore do not have to answer any questions. Since in the MH17 trial, the defendants are not present, the Court verified whether they were summoned correctly and thus whether they should be aware of the trial and that it is their own choice to be absent. The Prosecutor then read out the indictment with the charges against the defendants and the names of the victims.
During the months that followed, the trial discussed what information is and should additionally be included into the dossier: the case file. Both the Prosecutor and the defense attorneys that were present – those of Pulatov – were allowed to argue what other information should be added to the dossier, and thus what additional investigations would be necessary to be conducted. To guide these additional investigations, the Court instated an examining magistrate.
On 25 November 2020, the Court took an interlocutory decision on procedural aspects; particularly on what investigations it would still allow and what requests it rejected. In the months that followed, the Prosecution and the examining magistrate continued to conduct the investigations.
On 13 April and 16 June 2021, the next of kin submitted the claims for damages that will be joined to the criminal proceedings (see chapter 2). Formally, the next of kin can submit these claims until the Prosecution presents its case during the merits phase in the so called "requisitoir."
On 7 June 2021, the hearings in the merits phase started. The procedural phase and the merits phase are discussed in more detail in the next section. From September 2021 onwards, the next of kin may address the Court to share the impact that the downing of MH17 has had on them and what sentence they would find appropriate if the suspects are found guilty. Moreover, the Court will address the next of kin’s claims for compensation. On 2 November 2021, the victims' counsel will address the Court to legally argue why these compensation claims should be accepted by the Court.
After the submissions of the next of kin and their counsel, the Prosecution will present their legal argumentation, followed by a request for a sentence if they conclude that the Court should determine the suspects guilty. This is called the requisitoir and is expected in November 2021. The defense is then expected to present their argumentation in Spring 2022, called the pleidooi. The Prosecution then gets a chance to respond in their repliek. And the defense may then respond to this in their dupliek.
If present, the suspects get the final word (or otherwise their attorneys) and then the Court closes the hearings and announces when the judgment will be given. The judgment is expected to occur late 2022 earliest.
If the defense or the Prosecution decide to appeal the decision, the appeal proceedings (first at the Court of Appeal and possibly also Supreme Court) could take an additional few years.
While the previous section focused on the timeline of the proceedings, this section addresses in more detail what occurs in a legal sense in each stage of the proceedings. After the decision to prosecute, the Prosecution summons the defendants to appear before the District Court. The Dutch criminal proceedings then proceed in two stages: the procedural stage and the merits stage. Even though there is overlap between the stages and they cannot be strictly separated, there is a difference in focus during the two phases. During the procedural hearings, the District Court determines whether the procedural aspects were followed in accordance with the Dutch Criminal Procedure Code and discusses with the Prosecution and defense to what extent the case file is complete and what additional investigations should be done. In the merits stage, the trial focuses on the substantive charges where the Court considers the circumstances of the case and the evidence against the accused.
Dutch law provides that the Court can also order an accused to be present in his trial. In this situation, however, this would not be possible to be enforced, since the accused are not on Dutch territory. Moreover, since Russia or Ukraine do not allow extraditions of their nationals, they also cannot request these states to arrest and extradite the suspects to appear in the Dutch Court. However, since the trial is public via livestream, they have the option to follow the proceedings online. Moreover, Pulatov is able to instruct his defense attorneys throughout the proceedings.
During the procedural stage, the defense may submit preliminary objections such as against the admissibility of the Prosecution or whether the Court has jurisdiction, and request additional investigations to complete the case file. The Pulatov defense team has made a large number of requests for additional investigations throughout the procedural stage, pertaining both to examining the Prosecution's main scenario that MH17 would be downed by a Russian BUK from the field near Pervomayski and the so called "alternative scenarios," such as that MH17 would have been shot by a Ukrainian plane or by a Ukrainian BUK.
“The principle of equality of arms requires that the defence be afforded the opportunity to perform its remit properly, i.e. that it be afforded the time and opportunity required to study the case file and to consult privately with its client. In addition, it must be given the opportunity to present exculpatory evidence, but also to challenge the incriminating evidence in the case file and, if there is cause, subject it to closer investigation. It is with respect to this latter task relating to incriminating and exculpatory evidence that the defence may submit requests for investigation. It is in order to meet the abovementioned requirement that a trial be completed within a reasonable time that requests for investigation should be made as early as possible.”
On that basis, the Court has allowed some additional investigations, such as related to hearing witnesses and experts on the operation of a BUK missile. It has however rejected most of the additional investigation requests. For example, the Court rejected the requests for further investigations into the alternative scenarios with the reasoning that if the Prosecution does not convincingly demonstrate the main scenario, the suspects need to be acquitted. The Court reasoned that it is therefore more important for the defense to be able to examine whether the evidence related to the main scenario is sufficiently proven than focus on proving that an alternative scenario would have occurred. It thereby emphasized the specific roles of the Prosecution and defense in the Dutch system.
The procedural hearings formally concluded on 25 November 2020 with an interlocutory decision by the Court, which related particularly on which additional investigations were and were not accepted. However, throughout the next hearings, procedural aspects have continued to be discussed and will be during much of the merits stage.
Following the procedural stage, the Court proceeded with the merits or substantive stage, which contains substantive hearings to evaluate the indictment. In the merits phase, the Court examines whether it is proven that each suspect has committed the facts that are indicted, and if so, what crime(s) these facts are according to the law. If the Court has determined that the facts are proven and that they constitute crimes in accordance with the criminal code, the Court deliberates over the guilt of each suspect. The Court thereby needs to examine whether there are grounds to exclude a suspect’s guilt, either because the act was justified or that the suspect cannot be blamed for it. The final stage of the deliberation is to decide on the punishment.
The hearings on the merits started on 7 June 2021. In the first days, the Court discussed the contents of the dossier (case file) so that all involved know what the dossier includes. The dossier is created by the investigatory authorities, led by the Prosecution, and is therefore not a conclusion by the judges. This comes only during the Court judgment.
The purpose of presenting the dossier contents is usually primarily so that the Court can ensure that the suspect understands what he stands accused of and question the suspect on the information contained in the dossier. Typically, this therefore revolves around a conversation between the judges and the suspect. In absence of the suspects, this initial part of the merits phase instead became a presentation of the contents of the dossier to primarily adhere to the principle of publicity: to ensure that the public and all process parties know what the dossier consists of.
The Court discussed the contents of the dossier on the basis of three main questions:
After the discussion of the contents of the dossier by the Court, the Prosecution and the defense presented a number of additional items of evidence to emphasize that it is important that they are taken into consideration by the Court.
Following this discussion of the contents of the dossier, the next of kin have the opportunity to address the Court to explain how the downing of MH17 has impacted their lives and what kind of punishment they think should follow if the suspects are found guilty. The next of kin can either submit a written statement or speak to the Court directly. During the hearing block starting in September 2021, the Court also discusses the compensation claims of the next of kin. The parties can then argue their point of view related to the compensation claims. Chapter 2 specifically discusses the compensation procedure and the claims that have been submitted.
The merits stage will then proceed to legal argumentations. The Prosecution will plead its legal argumentation in the requisitoir. In the requisitoir, the Prosecution will connect the facts and the evidence to criminal provisions that are provided in the criminal code. It will then argue for each suspect that they should be found guilty of (all or some of) the indicted charges and recommend punishment, or instead be acquitted if they believe that the evidence insufficiently proves guilt. The requisitoir is followed by the defense’s pleadings (pleidooi), after which both the Prosecution and the defense get the opportunity to respond to each other’s argumentation (repliek and dupliek). Only then will the Court deliberate and issue a judgment.
If the defendants are found guilty, the Court can impose a punishment that consists of a prison sentence and/or a fine. In the sentence, the Court will try to find a just punishment related to the exact role and responsibility the perpetrator had in relation to the committed crimes as well as their personal circumstances.
In addition to the punishment for the committed crimes, the Court can order the convicted person to pay compensation to the state on behalf of the victims or next of kin. This is further discussed in chapter 2.
The criminal proceedings interact with the civil law compensation claims that the next of kin have submitted against the defendants because these claims are joined, or merged, with the criminal trial in a so-called adhesion procedure. This is further discussed in chapter 2.
In addition to the criminal proceedings and the compensation claims, there are also legal proceedings in other courts. In principle, there is little interaction between proceedings at various courts. Moreover, while the criminal and civil proceedings are directed at individual responsibility, proceedings at the European Court of Human Rights (ECtHR) and possible future proceedings at the International Court of Justice (ICJ) are directed at the responsibility of a state: Russia.
Nevertheless, the conviction of the suspects by the Dutch criminal court may have consequences for the proceedings before the ECtHR and the ICJ. A conviction could increase the likelihood of success in other proceedings concerning MH17. For instance, the reasoning of the District Court in The Hague could be used as evidence by the states involved in the proceedings before the ECtHR and ICJ to determine the responsibility of Russia or Ukraine. Moreover, the evidence gathered during the criminal investigation by the JIT could be shared with and used by other courts, including those who determine the liability of Russia in lawsuits against the Russian state. For example, the Dutch government has shared the evidence that the JIT has collected with the ECtHR. This evidence may therefore be used by that court as well.
Finally, as chapter 7 will discuss in more detail, compensation received in other legal proceedings may interact with the amount of compensation that can be awarded by the Dutch District Court of The Hague if it concludes that the damage that is claimed is already (partially) remedied.
