Thread by @HRIMark

Today in #MH17 court the prosecution will attack Pulatov's witness statement & continue to argue against the defence requests for further investigation. We may find out more about the basis on which the Dutch government opened up their case against Russia.

Prosecutor: Your court will not investigate the possibility of self-defence. Doesn't apply to #MH17 as you can see from international community's response. Sending troops into another country is a criminal act.

Prosecutor: Any claim for self-defence by the BUK crew can also not apply to Pulatov.

Prosecutor: Nor reason to think intercepted conversations have been manipulated. Just because he doesn't recognise his voice in one conversation could just be because he was excited at the time.

Prosecutor: Any investigation of this disputed conversation should not be made.

Prosecutor: No response from Kharchenko. Girkin has said several times he doesn't want to cooperate with criminal trial. He has right to do this. Therefore defence request to question them should be denied.

Prosecutor: Will play video interview with Dubinsky. (This is @bonanzamedia2 interview)

Dubinsky: Saying did not communicate with any Russians over BUK. Says a Ukrainian BUK of the Mariupol Division was deployed in the area. Says Ukrainian jets were flying that day. Says investigation is biased but he is willing to answer questions on soil of Russian Federation.

Prosecutor: Dubinsky does not say where got information on Ukrainian BUK from. Does not deny role in transport. Says in general terms only that conversations manipulated. Not specific except 17:42 conversation (will now play whole)

Prosecutor: Dubinsky states this conversation (In which Dubinsky claims that he has a BUK-M) took place on 16th. If manipulation must have been complicated. But contents suggest that it was on the 17th (Eg 2 Sushkas downed, capture of Marinkovka). Possible Dubinsky lying.

Prosecutor: In any case no further investigation required.

Prosecutor: Important to interview Dubinsky. So Prosecutor does approve this request. No purpose to lie detector tests as they are insufficiently reliable. If request is approved may not be until February & March next year.

Prosecutor: Will listen to what Gurkin & Kharchenko think. Would like to hear what Girkin has to say about intercepted conversations being simply to deceive the enemy?

Prosecutor: Not relevant that Pulatov was not involved in BUK transport at some points on 16th and 17th.

Prosecutor: Understandable Pulatov wants to interview Dubnichenko who had 60 second conversation with possible crew member of BUK (number ending 6335). But he is possibly in Eastern Ukraine & very difficult to track down to interview.

Prosecutor: Defence wants to interview members of the 53rd Brigade. Not a valid request to interview as has to be sufficiently clear. Without identifying details unclear who should be interviewed. The Defence mentions names but unclear of these people have any link to BUK Telar.

Prosecutor: Regarding the 3*2 Russian BUK the Russians said no Russian BUK in Ukraine but no answer as to who the crew was or where it was.

Prosecutor: Insufficient information about who crew was so not possible to interview crew within acceptable period of time.

Prosecutor: Re S38 statement (not included in case file) - hasn't been included for security reasons.

Prosecutor: Regarding inter-state complaint before ECHR. Defence see question whether prosecution forfeited right to try case by surrendering information to Dutch Foreign Affairs Ministry.

Prosecutor: Any position of any other government body is irrelevant to public prosecution. Public prosecution is under Minister & accountable to Parliament. Minister can issue special instructions in accordance with international conventions. Not issued in this case.

Prosecutor: Different questions in front of ECHR. Not about culpability but infringements of rights. Parties in inter-state complaint not allowed to share documents with 3rd parties so both procedures can proceed in parallel.

Prosecutor: Information was provided by prosecution to Ministry of Foreign Affairs.

Prosecutor: Have received a hodge-podge of more requests from defence. The majority are related to "warplane scenario." This seems to be a possible defence not fleshed out. Some requests withdrawn. It is not plausible MH17 was shot down by warplane given other evidence.

Prosecutor: Pulatov has himself never provided any basis for a warplane scenario. He says in does not wish to speculate. So requests should be rejected as not plausible.

Prosecutor: If the court requires questions on warplane scenario to be answered for sake of completeness, prosecution recommends Kuberg.

Prosecutor: DSB investigators are barred from giving evidence in court cases.

Prosecutor: Re Telecoms. Limitations of evidence in time of war is known. Unclear what defence wants to achieve with telecoms-related requests. They have to be specific. No point in interviewing SBU officers.

HRI comment: The full intercepted conversation involving Dubinsky played today is in line with the HRI theory of a false flag attack involving a "Trojan Horse BUK" operated by far-right elements.

Defence: Complains about unnecessarily emotive language used by the prosecution which has led to Sabine ten Doesschate being approached by one of the relatives in the toilets which has led to her non-appearance.

Prosecution: Dubinsky video statement should be added to case file.

Prosecutor: M58 is a key witness and prosecution want to see the images of his interview to decide if they should be added to the case file.

Judge: Wishes to give consideration to matter regarding Sabine ten Doesschate. Prosecution says it it is highly regrettable.

Prosecutor: Wants no surprises in court case. Must be clear to all parties what evidence will be presented. Days should be set aside for further investigation requests and procedural requests.

Prosecution: Almost all investigation requests should be rejected. Really isn't much left to investigate (!). Very expensive to investigate. No point in trying to interview people who can't be found, let alone who have died. (Childish comment by prosecutor).

Prosecutor: 15th July convoy - "significant similarities" to BUK convoy & almost exactly the same route.

Judge: Asks if defence has found an expert to go and see the reconstruction of MH17. Defence says hoping to make some progress.

Counsel for relatives: Says regarding Sabine ten Doesschate people should learn from Prime Minister who treats people with respect even when disagrees.

Counsel for relatives: Civil case rules apply to joined proceedings. Court can issue orders & court should issue an interlocutory order that items can be disclosed from Malaysian Airlines Settlement Agreement in order to substantiate claim.

Counsel for relatives: Asked for overview of witnesses and overview of conversations between suspects. Relatives are at an information-disadvantage. To be an active part of proceedings need much more than the small number of documents have been given access to.

Counsel for relatives: If given suspect files with everything that belongs to them would very much applaud that.

Counsel for relatives: Don't have much information on what happened in minutes before the downing. Little knowledge of hierarchy regarding the circumstances and role of suspects.

Counsel for relatives: The documents received have fragmented information. Would like overview of conversations among suspects. Maybe not helpful but simply don't know.

Counsel for relatives: Need knowledge of case file to submit claims which are supposed to be presented by next hearing block (February 2021).

Counsel for relatives: Don't have access to even 10% of the case file. Need more to substantiate claims.

Counsel for relatives: Very difficult to say why need documents if don't know what documents contain.

Counsel for relatives: We are insufficiently informed and which to inform relatives especially about what transpired just before crash.

Counsel for relatives: Information is safe with counsel for relatives. Reasons to deprive counsel for relatives of information are expiring.

Prosecutor: Claims the things counsel for relatives has requested have been provided. Are you looking for other things?

Counsel for relatives: We have been provided with very little. So far what we have received is insufficient. Asks judge what he has.

HRI comment: There is a significant problem in that the counsel for the #MH17 relatives believe they have insufficient evidence on which to base a claim against the suspects, whilst the prosecution are saying everything relevant has been provided.

Hearing resumed with Sabine ten Doesschate back in attendance.

Defence: Responding to yesterday's prosecution presentation. Defence agrees with prosecution that critical view on case file helps improve the quality of the case file.

Defence: Prosecution made many references to time taking for defence to prepare case. But the word "corona" did not appear once. Imagine how much work is involved in translating all the expert reports (120?) into Russian?

Defence: Prosecution is suggesting court should use principle of necessity in deciding on requests for further investigation not requirements of defence.

Defence: Client was not even informed he was a suspect or asked for a statement before it was presented to the press that he was to be prosecuted.

Defence: A couple of hours, after being presented as a suspect in front of the world, he was sent a message via VK by the JIT.

Defence: Has already stated that it was obvious from the case file that the decision to prosecute Pulatov was a hasty one.

Defence: Prosecution attempt to stop the defence questioning witnesses is based on an incorrect reading of case law as the Supreme Court's judgement on this referred to an appeal case where very different circumstances applied.

Defence: Prosecution is wrong to say that requests for investigation were filed at a late stage. In fact they were filed early given the circumstances.

Defence: The pace of proceedings has to slow down. There are too many demands on the defence and this will impair the quality of proceedings. There should be no deadline on the investigations of the investigating judge.

Defence: Suggests a meeting with the investigating judge at which the pace of proceedings can be discussed.

Defence: Prosecution thinks forensic investigation is complete & resisting all investigations for further investigation. Slipping away from principle of immediacy (Ie all evidence presented at trial).

Defence: Defence must be able to challenge experts. ECHR Article 6 section 3(d) applies to expert reports. So defence is allowed to directly question experts.

Defence: Investigating judge has not provided detail on expertise of the NFI experts & this is not on internet as prosecution claim.

Defence: Prosecution pre-empt what expert witnesses "would say." This is the preserve of the experts themselves.

Defence: Prosecution say expert witnesses answers can be easily predicted. Obviously the prosecution sets the imitations in the terms of reference for the experts - the defence wants to know how this effected their work.

Defence: Regarding NFI enquiry forms. Defence would like these added to the file to see what additional information they may contain.

Defence: Wants to know specifically how the NFI conclusions should be appraised. In NFI manual (Probability Methods used by NFI) it is said there are regular errors in reasoning that people make when looking at probabilities.

Defence: Defence wants to know if there are good reasons why no forensic research on other weapons other than BUK.

Defence: Prosecution claims anyone can see bow-tied elements so no need for expert evidence. But experts are needed.

Defence: Prosecution has indulged in incorrect paraphrasing of defence arguments so the court should always check what the prosecution says the defence says with what actually said.

Defence: Prosecution didn't respond to defence requests regarding which fragments were studied & which not. This is typical pre-trial work so the prosecution should respond.

Defence: Re supply route of BUK-Telar. The BUK is allegedly the murder weapon. Therefore contrary to what prosecution says the exact timings and locations are necessary.

Defence: Prosecution says JIT's question re Australian journalist is incorrect. Defence believes it is not up to the prosecutor to iron out inconsistences based on assumptions.

Defence: Re White Volvo image. Defence wishes to see high resolution images - prosecution says they can be seen by clicking in document but defence can't see them. Defence wants to see more than small selection of imagery in Torez.

Defence: Prosecution says not important if social media postings are by eyewitnesses or based on hearsay. But it is relevant (if court thinks social media can be used in evidence) whether there are a lot of postings by different eyewitnesses or by people repeating one witness.

Defence: Case file is still not properly indexed. Therefore repeat request for subject by subject index.

Defence: Regarding dashcam video & ESA images. There are incompatibilities so investigators must be interviewed.

Defence: Prosecution keeps saying no need for further investigation as only a small part of whole. This is no reason in law and half-baked reason to deny further investigation.

Defence: Regarding inter-state complaint. Questions set out not replied to.

Defence: Mr Hysenko interviewed in February 2015 & explains why doesn't think prosecution scenario likely & sets out another scenario. Defence thinks this should be part of the file. Hysenko refers to expert Biedermann.

Defence: Suggests Almaz Antey expert & Biedermann should examine reconstruction.

Defence: Few identifying details of witnesses have been provided to defence. If specifying witnesses, defence needs to do as best as possible. Only if it can't be ascertained who witness is can the public prosecutor not execute the request for the witness to be interviewed.

Defence: Assume JIT has details of telephone records to determine which mobile belongs to who. But simple investigative measures could be used to identify witnesses.

Defence: Owner of field should be possible to identify. An attempt should be made to try and identify witnesses even if it includes a request to Russia for mutual assistance.

Defence - a letter is on file from Westerbeke thanking Russia for earlier cooperation.

Defence: Wants further official report on Strela and what further investigation can be done.

Defence: Before incorporating Dubinsky video into case file it has to be ascertained who produced the video and when (as with other videos)

Defence: Prosecution want to see video of M58 to see if the video is worth showing in court. But if provided to them then they could then show it in court. Prosecution already used audio-visual materials to make an impact. But the necessity hasn't been shown.

M58 has made unreliable statements. He needs to be re-questioned. Video of M58 might influence other witnesses. So request of prosecution for his video should be refused.

Defence: Prosecution previously argued additional information shouldn't be made available re M58 on security grounds - now it wants additional information itself purely for its potential impact value in the court.

Defence: Did utmost to provide requests for further investigation as quickly as possible to allow prosecution time to prepare. But not allowed same amount of time ourselves. Some information from prosecution only received this morning.

Defence: Prosecution said we said our client said things which he didn't say but we didn't say that.

Defence: Prosecution says defence requested interviews with people who are dead. Actually the file talks about people who may have been dead. The defence wants them interviewed if it turns out they are not dead.

Defence: The prosecution tries to make us seem stupid & that we want dead people to be interviewed & the likes of the Bellingcats of this world lap it up.

Defence: Prosecution makes very flimsy excuses not to re-interview witnesses. If you look at the case law the prosecution quotes it actually relates to an earlier case where the defence tried to call an investigating judge as a witness.

Defence: If prosecution had done proper fact-finding then defence would not need to do so now. What is prosecution trying to achieve.

Defence: One could argue prosecution has been searching for facts compatible with the main scenario rather than actually finding the facts.

Defence: Prosecution claims JIT done everything possible to find witnesses & when they found anything relevant put their statements in the file. But who was interviewed? When not put in file?

Defence: This is very troubling. For example, random witnesses said they saw fighter jets. Prosecution said the investigating judge should not investigate these statements. If this is the JIT method then important facts will simply not have been investigated.

Defence: So it is a very good thing defence has submitted investigation requests which could lead to the truth.

Defence: The JIT apparently investigated 2400 images of BUKs - the defence wants them added to the file.

Defence: Want to investigate if Russian & Ukrainian BUKS looked the same but were different BUKS which would open up alternative scenarios.

Defence: Regarding witnesses in proximity to client. We require a better version of the picture. No logic that our client would say he was closer to the launch site than actually was.

Defence: Prosecution claims not to understand request for further radar data as request is for Ukrainian rather than Russian. But the reasons for this are that that Russia provided radar data but we think Ukraine must have more radar data.

Defence: Not talking about registrations of radar tracking devices (not primary or secondary radar of aircraft movement).

Defence: Prosecution claims falsely claiming military officers are reporting officers (rapporteurs) is just a clerical error, but it goes much deeper than that as numerous examples throughout file.

Defence: Prosecution pokes fun at defence over Swedish tweet. If Tweet not taken out of context as prosecution did then not ridiculous. Defence was told the investigators worked for a Swedish police organisation which means not entirely independent & impartial.

Defence: Haven't been able to see why Almaz Antey investigator has not been appointed. Does Prosecution know? Do they have access to investigative judge communications?

Prosecutor: New requests for investigation are being made. Can't respond now. Need to allow prosecutor to make a written submission on this. Case file actually contains witness statements on fighter jets & there are more which weren't included.

Prosecutor: Not sure what expertise Biedermann has. Could be appointed as skilled person and taken to reconstruction.

Prosecutor: Re relatives counsel requests. In March large number of documents provided to relatives. Prosecution doesn't see how additional documents can help relatives. Wants to sit down with counsel for relatives to see if anything can be done but doesn't think so currently.

Prosecutor: Not possible to lift confidentiality on settlement agreement the contents of which the judge is not aware.

Relatives Counsel: Needs an order to be released from confidentiality.
In context of filing claims the current information is insufficient.

HRI comment: Today in #MH17 - defence solicitor driven from court after OM incitement, OM attempt to exclude defence from questioning witnesses & experts against ECHR & relatives counsel says not enough information to sustain a civil action, (let alone criminal conviction).

HRI comment: Clear, as defence say, the @JITMH17 investigation was focused on finding facts to back the "main scenario" rather than to discover the truth. Only way of getting to the truth is through defence requests for further investigation.

Judge: In case of Pulatov, not time to issue all rulings so scheduling another day on 25th November.
Regarding other three defendants.
Video shown in court today will be added to case file.

Judge: Court will deliberate on requests made. Decision will be made in case of Pulatov on 25th November. May have impact on other three cases.
Court adjourned.

HRI comment: what will happen next? The @JITMH17 investigation has been exposed as a farce. Massive additional investigation is required. This will involve genuinely investigating alternative scenarios & the tables may turn on the Ukrainian security services.

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