Thread by @christogrozev

Today, in MH17's court trial, the prosecution will respond to the defense team's requests for voluminous additional investigations.

..at the start, prosecution takes exception to the defense team's accusation of bias and prejudice by prosecution, and says it will address these accusations on their substance today.

Prosecution cites convoluted and conflicting explanations by Pulatov and the Defense team as to why they haven't been able to prepare a timely defense. Pulatov says it's lack of trust "which can't be established remotely", while defense team says it's security concerns.

Also, prosecutor cites Pulatov's public postings on forums on the substance of the ongoing case, which contradicts the "safety of communication concerns". Court can assist secured communication with client if defense requests this.

Further, Pulatov apparently said he has problems to pay defense costs "due to covid crisis". Prosecution says he can ask for exemption of court fees, and some procedural costs can be borne by the court. He can also get a free court-appointed council if he can't pay.

"We are saying to Pulatov: if you can't afford your defense, tell us and we'd like to help. But you have to be clear. You can't come up with different stories simply to justify delay. There's not a get-out-of-jail card here, this is not Monopoly"

Prosecutor says defense's request to question protected witness M58 in court is unacceptable. Even a closed-session hearing doesn't reduce risk of him/her being traced, given the date and place will be known. An anonymized video recording is the only alternative.

In response to defense' requests for additional investigations, prosecution says "the added value test" means court must examine not only if such is necessary, but also if it can feasibly be done - if either of these answers is a no, it will have no added value.

Any request that depends on legal assistance from Russia means impossible delays - experience shows that sometimes it takes years for Russia to respond.

Requests must be specific, feasible, and substantiated - they must be justified as in the interest of proceedings or right to fair trial. For example, a request for questioning a witness must include the topics to be addressed, otherwise the court cannot decide if substantiated.

Prosecution: "Even defense counsel said they do not necessarily believe in the alternative scenarios, but that there is a theoretical possibility they may be true". But they should at least show *prima facie* plausibility, to request further investigation.

"If defense has a particular suspicion about a particular phone intercept, or metadata, or quality of translation, they are free to address it specifically, but asking for bulk re-investigation and delivery of bulk data is a fishing expedition"

"Defense made knowingly impossible requests.. They asked Dutch Safety Board experts to be summoned as experts... This is not allowed due to statutory prohibition on DSB members being questioned as witnesses - which is intended to protect their safety and independence"

Now prosecution takes each request from the defense individually. Starting with the request to re-investigate the air-to-air scenario. This scenario must have a bare-minimum chance of plausibility before such request is granted. There is none here.

Radar data, satellite images, intercepted conversations, fragment segments, scatter pattern, witnesses and so on and so on creates an incontrovertible picture of a BUK shoot-down. Pulatov has not contributed any evidence pointing to the contrary.

The law does not permit speculative investigation in which the defendant asks the investigation to check random alternative scenarios without the burden of at least arguing why it might be credible. It can't be done so he can decide later what his defense will be.

Pulatov requests a large number of "witnesses" of fighter-jet witnesses. First, the defense team mis-represented witness statements. 2 interrogated witnesses did not say they had seen fighter jets - but had just heard sounds like those of fighter jets.

One witness - S11 - did say he saw jets, but he says before that he saw a ground-to-air missile shoot down MH17. Another witness - S14, a DNR militant - said he believed a Ukrainian BUK shot down MH17, while hearing about also fighter jets.

Other witnesses interviewed by JIT and misquoted by defense all quoted third-party hearsay. Pulatov doesn't explain what more we can obtain from these witnesses.

Next request was to interrogate Haisenko (retired Lufthansa pilot) as an expert. But Haisenko was approached by JIT and he said he had no information. He -and Biertelman - do not have the capacity of witnesses.

Another request was to question an OSCE observer who described damage to the wreckage as "almost looking like gun-fire holes". He himself said he has no expertise, thus there cannot be a plausible reason to interview him further.

Witness Shiketalenko said he saw a fighter shoot two missiles to the opposite side of MH17 than where the damage was done. Witness S340 lied about the time of his brother's death in his testimony.

The request for further radar collection was justified by the hypothetical possibility more relevant data may be found, and witnesses to be questioned. But we spent years collecting all data and all witnesses (including all but one of newly requested ones) were questioned.

A former Dutch high-level diplomat personally investigated Ukraine's claims of what radar data was available, and concluded that they are correct. We checked all military radars. We can't imagine how a new re-re-check will find new data.

All radar experts - both Russian and Dutch - analyzed the Russian-provided data in the same way. We can't find a reason why we should interrogate Almaz Antey experts given they gave a detailed and non-conflicting analysis of the existing Russian data.

Both Almaz Antey, DSB experts and Eurocontrol experts analyzed in the same way the "suspicious plots", as Pulatov calls them - and concluded they are wreckage of the plane or the missile, and not from a different plane.

(Prosecution cites that defense misquoted various experts to imply they may interpret the radar data as potentially showing a second plane - none of them apparently said that).

Only D21, a defense witness, said that theoretically there could have been a fighter jet flying below MH17. We do not mind this witness being interrogated in court.

Further, Pulatov asks for a repeat forensic analysis if a BUK explosion method, saying a BUK missile targeting a civilian plane should have exploded on direct-hit, and not in a proximity-detonation. But the damage pattern shows exactly what happened - a proximity detonation.

Because the BUK is capable of both on-hit and proximity detonation, it is not important what *should* have happened, but what *did* happen. Various experts checked the damage pattern, including fragments in bodies, and they all concluded an outside explosion.

It's very unlikely that a missile that according to Pulatov should have hit the plane, bounced back and exploded in the air, thus there is no plausible reason to explore this further.

Next request was for questioning of JIT reporting officer Bilov, who - according to Pulatov - made a mistake in his report about the available R33/R37missiles in Ukrainian army. But that's irrelevant because these missiles do not have the pattern of fragments that were found.

Further, the defense showed a MIG 25 picture as evidence that Ukraine did have active MIG 25 fighter jets in use by the Ukraine army. However, this image is from this museum piece which has been in a Ukrainian museum since 2011

Pulatov also wants to interview Belgian military academy experts who expressed a reservation about the petalling hole pattern. But this is not true - they expressed reservation about the reasons for the petalling - but they did not doubt the existence- which was seen in the test

Also, we cannot understand how the petalling can in any way be tied to an air-to-air scenario, so we ask that this request be rejected as well.

(hearing will continue after a 20 minute break).

(resumed)
Pulatov requested that the US director of National intelligence be questioned in court to ask him what satellite data the US did have. The defense team knows this is impossible, and it's simply a bargaining chip. We did the utmost to obtain the maximum data from the US

...but despite our disappointment, we should be aware that no country - not the US, not RU- will allow inspection of metadata that will expose their early-warning military capabilities. This information is totally incompatible with public-information data that can be subpoenaed.

The memorandum from the US which discloses the maximum data US can share without damaging their capabilities, will have limited evidentiary value - and this cannot hurt, but only help Pulatov in court.

Pulatov also asks for the cockpit voice recorder to double check if there was really not a sound of gunfire before the crash, and to verify if no one interfered with the device. This in fact is a second-opinion request. But it cannot be granted unless there's grounded suspicion.

There CVR was inspected by all requisite international bodies under aviation accident legislation. There was nothing unusual during the flight until the explosion, that is why only the last 2 minutes of the cockpit recording was added to the file. Russia endorsed this conclusion.

Legislation requires that only strictly relevant portions of the cockpit recordings can me added to a public file, as otherwise this would impede freedom of communication of pilots. Despite this, we don't mind defense listening to the 2 minutes.

Defense's suggestion that there may be a chain-of-custody problem with the blackbox is ironic - given that all evidence shows that Pulatov himself was in put in charge of retrieving and removing the recorder from the crash site - and would thus be most knowledgeable on the topic.

Now prosecution addresses the (bold) claim by defense that the BUK missile has 55 km range, vs the 36 km range posited by prosecution. 36km is the Russian manufacturor's information. Defense quoted a Ukrainian officer who said that a different BUK model "I think" can reach 55 km.

Prosecution cannot take the longest number that someone ever mentioned, we must base our conclusion on the most consensual data, and it is 36 km. A personal opinion of a non-expert cannot override this.

Pulatov further asks for the Almaz Antey expert team (Novikov & Malishevsky) to be questioned. Novikov's CV however shows he is a financial-background manager and has no technical training. We propose we request experts from Almaz Antey to provide written answers before deciding.

Further, Defense misstated that the JIT case file says the alternative launch site Zaroschenske was not under militant's control. But in fact the case file says the exact opposite.

Further, defense requests an investigation of Ukraine's actions in not closing air space as a possible mitigating circumstance for Pulatov. The hypothetical in-actions of authorities is not part of a criminal trial and typically cannot be introduced into a criminal case... but...

..here Pulatov implies a "human-shield" scenario by Ukraine and asks interrogation of the NOTAM administrators in Ukraine - to demonstrate that the non-closure was a military tactic by Ukraine. This could be used to argue the BUK Telar targeted a different military plane.

However, Dutch law does not allow investigation of prima facie improbable scenarios, and this one - even by the words of the defense team - is improbable. Thus we ask for rejection of the requests for the investigation of closure of airspace.

Last, Pulatov asks for a thorough re-investigation of the chain-of-custody of remains at the crash site, by questioning potentially hundreds of witnesses that took part in the collection over a 160 sq. km area. He should point to what he suspects was inauthentic or planted.

Pulatov also request additional investigation into the telecoms data from Ukraine. It is exactly because the data came from a party to the conflict that we undertook extensive verification, above and beyond any legal requirement. All of this is in the case file.

If Pulatov would review the case file cursatorily, he would find a lot of data that would provide answers to the posed questions, and if there are still questions remaining the prosecution would be available to answer.

Based on the raw data in the file, Pulatov can conduct a counter-investigation and if he finds any inconsistency, we would be more than happy to hear and investigate further.

Pulatov appears to think that since he is indicted, he has become an equal party to the prosecution and police in steering the investigation. That's a misunderstanding. He can pose questions, and can review the telephone data that relates to his calls on 17.07.2014. But...

..he can't request total new lines of investigations. He can't ask us to investigate ownership and locations of phones that we believe he used, without first telling us what he knows of those phones and his own location.

Further, the Defense's insistence on investigating possible corruption among Ukrainian prosecutors was based on an outrageous untruth that our key counterpart in Ukraine was fired for corruption. This untrue accusation based on no sources should never have been made publicly.

Before breaking for a 45 minute lunch, defense lawyers say they will respond today to the prosecution position, but will not be able today to provide any substantiation as required by the prosecution.

Now prosecution resumes with addressing Defense's accusation that the case file translations into English were imperfect. Prosecutor says that the example given by Defense was in fact a direct quote from @Bellingcat's @EliotHiggins, a witness who is a native speaker :) :) :)

Prosecution: English is an acceptable knowledge for an investigation held in Dutch courts. Translating everything in an international investigation into English is not only inefficient but will lead to more imprecision. Defense also says they are fluent in English.

Prosecutors reject defense's requirement for paper copies of the full case file, as the digital case file has sufficient indexing and search capabilities.

Pulatov again requested translation of 10s of thousands of pages into Russian. There is no entitlement for translation of all - but only of the essential for his understanding of the indictment - documents. The JIT has translated much more than in a usual criminal case.

Furthermore, Defense has not even been able to find out if the client has already read even the already translated documents. Therefore the prosecutors ask for a rejection of additional translations.

Once again, the prosecution explains the impossibility of a different than a BUK scenario, as both the shape and the precise chemical composition of shrapnel found in bodies are identical to fragments obtained in the field test explosion

Additionally, only one type of missile could contain bow-tie shaped fragments, and that's exactly the type pieces of the fuselage of which were also found.

Additionally, a piece unmistakable attributable to a missile of the type 9M38M1 (green half-tube in left image) was found firmly lodged into the side of the airplane .

The found piece was compared both visually but also metallurgically to intact BUK missiles that confirmed a perfect match.

The JIT commissioned the National Forensic Institute to consider the possible non-BUK provenance of these non-airplane pieces in the body of the pilot and in the plane hull from any other random sources of steel. The conclusion was that it was highly improbable.

Prosecution now will again revisit its certainty on the launch site. Calls from Dubinsky to Pulatov are quoted again in which Dubinsky asks Pulatov is a BUK procurement is "our only hope" and Pulatov says yes. Dubinsky instructs Pulatov to bring the BUK.

Dubinsky later tells Pulatov to go to Pervomaisk and guard the BUK which will be brought by Harchenko. Harchenko informs Pulatov of his movement progress in a later call. Then Harchenko calls Dubinsky to tell him they just shot a SU fighter.

Conversation with Pulatov played in court

And this conversation right after the shoot-down, which has never been made public until now. Girkin hears the revised explanation that the BUK shot down a SU, but a SU shot down MH17, and he says "I don't know if I can believe that..."

Prosecutors repeat a metaphor they've used before: based on all we have, to ask us to investigate an alternative scenario would be the same as investigating a knife-murder scenario for a victim who died from bullet wounds.

(not sure what Russia's real strategy here is... They have already received this impressive pile of evidence as part of Pulatov's copy of the case file... what is the denial plan here?)

Prosecution makes closing arguments, saying defense of a suspect murder cannot be given the same investigative rights as the prosecution. Asking for "indexes so he can do his investigation more easily" is not part of his rights.

"On an internet forum, Pulatov said the JIT made a blunder. Why doesn't he tell us in court what blunder that is so we can correct it? Also, if he was a member of the armed forces in July 2014, let him invoke immunity?" (end of pleadings)

Judge gives the defense an hour to prepare their response, after which defense will have approximately an hour to plead.

In the meantime, the rep of the victims' families explains that they wish that they declare their claims for compensation only after the pleadings on the substance (starting this fall), and not before.

Defense is restating its request for all additional lines of investigation and witness questioning.

"the reason we want to re-question witnesses of the air-to-air scenario is mainly to assess their credibility". (read my take on that line of defense here: bellingcat.com/news/uk-and-eu…)

"The scenarios we want further investigated were considered as real by the JIT, if they merited investigation in the first place." << the JIT's efforts at comprehensiveness are coming back to bite them... (Although in my view this circular logic is likely to annoy the court... )

Defense stretches the prosecutors' bullet-ridden victim metaphor, and argues "if the wounds look like knife wounds, or if only a part of the body has been found a knife murder should be investigated."

"Our requests should only be rejected if the scenarios are impossible...such as if we want to investigate the shoot-down of MH17 by a toy gun".

Defense says they are "amazed that prosecution says the investigation is complete... like, why are the satellite images not available? Maybe a missile is seen downing MH17 and that would answer the bulk of questions at once" << prosecution explicitly pre-replied to this today.

"Ukraine should have a lot more functioning radars than were presented. It is strange that the other radars were broken or out of range".

Defense maintain their request to investigate the explosion-on-impact scenario, namely that the impact-fuse has not been investigated - despite the consensus (incl Russia) that it was a proximity-fuse triggered explosion.

Defense lawyer insist that JIT should invoke the legal assistance treaty between NL and the US and try to force the US to hand over raw intelligence data to an open court hearing. (This is actually quite offensive)

The Defense quotes this section of the mutual assistance treaty to imply that NL can just force the US to disclose state secrets "if necessary in an open hearing"... In addition to this being against any common sense...

It's also explicitly impossibly per the treaty itself - the requested party has complete sovereignty to decide under what conditions it may provide data - national security always trumps mutual legal assistance treaties - in any country.

Defense insists on knowing who made the selection of the phone calls that were used to establish the main scenario... While that is very interesting from an academic perspective, not sure how that can bring exoneration, given what we DO hear on the calls.

Defense lawyer says he was explicit in his request for re-investigation of intercept metadata, because "one person was in two places at the same time". This is idiotic, the prosecution already explained that one phone can hop between two different cell towers. Annoying.

Defense: "We have a David and Goliath situation here [between prosecution and defendant's investigative rights and access]. This is not good for our system of justice... Maybe in this particular case we can be given more rights than in other cases?" << I am quoting here.

Prosecution makes no distinction between what Pulatov is requesting and what his defense is requesting. This is disturbing - we are two lawyers who stand up for his rights. We are not Pulatov, we read Dutch, he can't, we are different subjects (this is a novel legal idea..or?)

Literally in there. This is a quite incompetent defense team, in my opinion.

Judge adjourns hearings until next Friday 13:30, when the court will give its decision on whether - and which- requests from the defense will be honored.
(end of thread)