Friday morning, Prosecution (OM) continues their reply to defense requests for additional investigations to complete the dossier before moving to the merits phase in spring 2021. OM starts with argument that a BUK shoots down a plane and that intent only sees to what and not why.
https://twitter.com/CourtMH17/status/1327173607018147840
OM: The "why" question is relevant for next of kin and OM wants to find out as well, but is not a criterion to assess whether additional investigations are "necessary" to complete dossier. Solely wanting to know something is not a successful criterion and needs to be motivated.
OM: invoking the criminal law justification ground of "self-defense" will not be successful in this case (also not self defense against self defense) and so investigation requests relating to this scenario are irrelevant. OM will argue that almost all requests should be dismissed
On interrogating co-defendants: OM understands this is useful for Pulatov and they want it too, but they are unresponsive. They have right to not testify and not self-incriminate. Dubinski however has commented on the accusations. This is now played and submitted to the dossier.
OM on what Dubinski has stated: "taps were manipulated" was a general statement. He says he was informed on a BUK but not had contact with RUS defense or 53rd. But he does not deny he was involved with transport of the BUK. He admitted his involvement with the BUK before. #MH17
OM: since Dubinski says willing to testify, under certain conditions, agree with defense to try to do this given large stake involved in the interest for defense and changed attitude of Dubinski. OM does not believe lie detector is reliable. We don't need to wait for it though.
So OM agrees with trying to have Dubinski testify as witness in Pulatov case (this is not as defendant although statements can be used in his own case). Unsure Dubinski will testify + how long it will take so #MH17 trial should continue and consider testimony if and when it comes
OM: it is important to only approve witness requests that are executable; since NL has not recognized the de facto leadership of the occupied territories, we can't submit requests for mutual legal assistance to trace and interrogate witnesses. #MH17
OM on hearing members of 53rd (RUS armed forces): without identifying specific persons it's insufficiently specific and thus invalid; those that are named are insufficiently clearly involved as BUK crew. We both want this information and we have submitted similar questions to RUS
OM adds that the failure by RUS to cooperate and respond to these questions that both the OM and defense want, has frustrated the investigation. If they would have cooperated and clarified the role of 53rd, this would have spared a lot of other investigations.
OM now continues with defense requests on interstate application NL v. RUS at European Court of Human Rights. Defense has clarified they wonder whether OM is inadmissible by sharing evidence and is still open to change its position. OM says they are open to change position. #MH17
OM says "we go where evidence leads us" as is our role in a criminal trial and inquisitorial system, gives short expose of role of prosecution in Dutch system. Gvt/parliament have not interfered in whichever way with OM or used their "bijzondere aanwijzing" prerogative. #MH17
OM rightly explains State responsibility proceedings consider different, separate legal questions. Crimes are committed by persons that should be held to account, also when committed in larger context where also states violate laws, and neither case has to wait for another. #MH17
Min of Justice decided in 2017 that information Prosecution has may be shared with Foreign Affairs to prepare proceedings against RUS for violating their int'l legal obligations: different laws than responsibilities of individuals. Explanation here: utrechtjournal.org/articles/10.53… #MH17
OM: The warplane alternative scenario is too speculative and not specific enough, and does not align with the large amount of evidence that #MH17 was shot down by a BUK. The warplane scenario thus does not meet the legal criteria of plausibility and relevance, OM submits.
Emotions around #MH17 already entered courtroom increasingly, now led to incident where Ten Doesschate (defense attorney) was just addressed in restroom by a next of kin in manner she needs to recover from. Defense submits this is consequence of way in which OM portrays defense.
Victims counsel now on #MH17 settlement agreement Malaysia Airlines in relation to civil compensation claim: whether court order can overcome confidentiality clause. But also that settlements are negotiated under foreign law and differences to regard them within Dutch system.
Moreover they want disclosure of more dossier documents to victims because necessary to construct the compensation request under the civil claim procedure. And that time is becoming a factor. OM says they have all that they need. Victims ask Court what they actually intended.
Court resumes: Ten Doesschate says she understands next of kin have emotions and that nothing much was said, but that she was just not prepared at that moment to interact with the relative and needs weekend, therefore needed a little break. Issue closed. #weareallhumans #MH17
Now defense replies to the replies of OM on the requests by defense for additional investigations #MH17. Defense: OM doesn't mention Corona at all. And reiterates language barriers, that meeting with client in Sept was necessary and otherwise professional misconduct on their end.
Defense now argues immediacy principle is violated if defense cannot interrogate expert witnesses involved in producing the reports. Immediacy principle means that evidence should be discussed in court directly (immediately). NL has a relatively loose understanding of immediacy.
In Dutch crim proceedings, there's relatively high dependance on written sources such as reports, affidavits (e.g. police report of witness). Since the document then is evidence, it is not understood as hear-say. But therefore usually fewer live witnesses to interrogate in trial.
Defense argues that the speed of the trial is too high and negatively affects the quality of the proceedings, given the circumstances of complexity of case and corona. There is a need for more investigations as requested to adhere to right to fair trial, defense submits. #MH17
Defense reiterates need for indices to help navigate the large #MH17 dossier since they missed certain documents which they say proves their point. They don't want to be surprised in merits phase by references to docs that are in the dossier but that they hadn't been able to find
Defense argues that RUS in the past has also been cooperative and instead of dismissing a request for mutual legal assistance on basis that they won't cooperate, RUS needs to be requested. They have also been as specific as possible in identifying who they want as witnesses.
Defense schools prosecution on their Freudian slip of tongue to refer to co-perpetrators rather than co-accused. Claims this indicates bias and demonstrates need for additional investigations into alternative scenarios incl the presence of a warplane. Also relevant for sentencing
Court: this is about 4 #MH17 cases even though we mostly discuss Pulatov case since they have a defence. In absentia cases continue on 1 Feb 2021. Video testimonies are added to dossier and will be translated. Court will deliberate and try to rule on 25-Nov, might need more time.
Concl: this is a battle over scope of the trial and time. Weighing crim procedure law principles. Arguing whether investigations are necessary & relevant and whether requests are unreasonably late. Court rules 25Nov on further investigations on alternative & main scenarios #MH17.
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