By Eric van de Beek
The Dutch Public Prosecutor unintentionally presented evidence a Ukrainian fighter jet downed flight MH17. Subsequently the Dutch court granted an investigation into a 'warplane scenario'.
Something spectacular happened during the June 26 session of the MH17 trial, in which three Russians and one Ukrainian are
standing trial for their alleged involvement in the downing of Malaysian flight MH17 on July 17 2014 in eastern Ukraine. The prosecution presented an intercept of a
conversation between two suspects, Igor Girkin and Sergei Dubinsky, in which the latter reports to the former that a Ukrainian fighter jet had just downed MH17 and subsequently the rebels
had hit the jet with a ground-to-air Buk missile. "Sushka fucking hit the Boeing," Dubinsky is heard saying. "And ours fucking hit the Sushka with a Buk."
The prosecution presented this intercept as evidence the rebels were in possession of a Buk air defence system and that they had used it on the day MH17 was downed. But somehow they seemed to have overlooked the consequence of presenting this intercept as evidence, because, if Dubinsky was telling the truth, and a Ukrainian Sukhoi fighter jet (a 'Sushka') had indeed shot down MH17, then how on earth could he and the other suspects be held responsible for this tragedy?
According to the prosecution the phone call between Dubinsky and Girkin was preceded by two conversations about the same incident. A few minutes after the crash of the Boeing, another suspect, Leonid Kharchenko, reports to Dubinsky: "We've already brought down one Sushka." Three hours later, a fourth suspect, Oleg Pulatov, tells Dubinsky: "The Buk brought down a Sushka after the Sushka shot down the Boeing."
Again, if the prosecution presents these conversations as evidence, then why is it Kharchenko and Pulatov are standing trial?
Lawyers Boudewijn van Eijck and Sabine ten Doesschate
Pulatov is the only defendant of the four who has lawyers representing him in court. The other defendants have chosen not to take part in the trial. The Dutch lawyers representing Pulatov are Boudewijn van Eijck and Sabine ten Doesschate. They accuse the prosecution of tunnel vision in having focused from the start almost exclusively on the theory that the plane was shot down by a Russian Buk missile fired from territory controlled by the rebels. The lawyers have declared they do not rule out the possibility MH17 was shot down by a Buk missile fired by Ukrainian forces. They also think a Ukrainian warplane may have been in the vicinity of MH17. If there was indeed a fighter jet, at least two things could have happened. Either this Ukrainian jet shot down MH17, or the rebels brought down MH17 with a Buk that was meant to hit a Ukrainian jet that was flying by. The lawyers find these alternative scenarios have not yet been thoroughly investigated. They therefore submitted a long list of requests for further investigations, witness interviews and expert opinions.
On June 26 the prosecution responded by saying that the defence had formulated many requests for investigations related to alternative scenarios that had already been extensively investigated and little or no requests for research into incriminating evidence against their client. "Pulatov seldom provides sufficiently clear and concrete substantiation as to why there is reason to believe that the research he has requested will provide relevant information," one of the prosecutors said. Also, he cheekily invited Pulatov to confess he served in the Russian armed forces at the time MH17 was brought down, because then he could claim combatant immunity. In principle such immunity is granted only to members of regular armed forces of a state participating in an international military conflict, and not to members of militias.
Ukrainian Sukhoi Su-27's
Human shield scenario
On July 3 the court decided on the requests of the defence for further investigations.
Presiding judge Hendrik Steenhuis made clear that requested investigations were granted only if they were directly related to the indictment. He therefore put requests for further investigations
into alternative scenarios on hold. He argued that he did not see the need for the defence to investigate these alternative scenarios to prove their client has nothing to do with the charges
brought against him or that the pillars of the Buk scenario of the prosecution cannot hold. "The accused has not yet made any concrete statements about allegations against him," Steenhuis
furthermore noted. "And that means the court cannot yet determine how granting the investigation requests relating to alternative interpretation can contribute to the ability of the accused to
conduct a proper defence. It's not clear which parts of the allegations against him he contests or which alternative scenario the accused espouses."
The lawyers have indicated that they still haven't had the chance to meet with their client due to travel restrictions between The Netherlands and Russia because of the corona virus. They have described their role in the trial as 'David against Goliath'. The process file contains over 40.000 pages and they complain it misses a proper index among other things. They've had only a few months to study the file, whereas the prosecution has spent six years compiling it.
Among the investigations granted by the Dutch court was most notably the so-called 'human shield scenario', as described in an article published earlier by Bonanza Media, in which a Buk missile was fired at a Ukrainian fighter jet that was using MH17 as a shield. The court granted this request because this scenario was not yet investigated and it doesn't conflict with the Russian Buk scenario of the prosecution. Experts who will be heard about this are former Ukrainian Buk TELAR commander Tarankov and a representative from Buk- manufacturer Almaz-Antey - as well as an anonymous witness by the codename of G9081.
These two experts and a witness will also be interviewed about the 'improbability' of an 'error scenario' in which the crew of a Buk-TELAR would mistake a passenger plane for a military airplane, and about the question if the damage to the plane would look different if it was hit by a Buk warhead on purpose.
The court furthermore allowed the defence lawyers to send an expert of their own to examine the reconstruction of the Boeing that is stored at Dutch airbase Gilze-Rijen. According to the prosecutor the damage points to the use of a Buk missile from the 9M38M1 series, but the lawyers doubt this, since several persons have declared that it looks as if the plane was hit by a different kind of weapon.
US satellite images
Judge Steenhuis called on the prosecution to once again request access to US satellite images that reportedly show a missile launch at the time MH17 was shot down. The final request to obtain that footage was made in 2016. Quite remarkably he did not call on the prosecution to ask Ukraine to deliver military radar data, as requested by the defence. On June 22 the lawyers had shown an interview in the courtroom with a former Ukrainian wing commander who debunked the claim of the Ukrainian ministry of defence that military primary radar stations were not operational on July 17 2014.
The court granted the request of the defence to appoint an expert of Buk manufacturer Almaz-Antey to respond to reports of The Netherlands Aerospace Center NLR and the Belgian Royal Military Academy RMA regarding the calculation of the Buk launch site. Also the aforementioned Tarankov will be heard about the maximum range of a 9M38M1 Buk missile, which is said by the prosecution to have downed MH17.
Furthermore members from the recovery mission will be interviewed who secured three shards and the casing of a missile engine associated with the Buk missile that supposedly took down MH17. These objects were secured only in April 2015, after a witness had directed them to the location where he had seen them a few weeks before. The defence therefore thinks they may have been planted. Or they could be from a Ukrainian Buk that was launched before April 17 2015.
The request of the defence to technically examine the cockpit voice recorder (CVR) was rejected. The court argued that the Dutch Safety Board (DSB) had already determined that the internal memory module of the CVR was intact and that there were no indications that the CVR had been tampered with. The court added that the prosecution had indicated that the defence would be given the opportunity to listen to the full copy of the CVR audio file if required in the presence of its own expert. The court is of the opinion that this sufficiently satisfies the defence's wish to investigate the CVR.
Another request rejected by the court, was the request of the defence to interview a delegate from the Russian ministry of defence about the Russian missile administration. Parts of this administration were supplied by Russia. They indicate that the alleged fatal Buk missile was delivered to the Ukrainian Army in 1987. Judge Steenhuis rejected the request of the defence by saying that "the court does not see how interviewing this witness can contribute to answering the question of where a specific missile mentioned in those records was located in the year 2014".
The court adjourned the case until August 31, when the council for the relatives will be given
the floor to answer further questions of the court about possible requests for damages. Then the prosecution and defence can respond to this and will decide which requests will be submitted, how
and when. The progress of the defence will also be discussed, including additional investigation requests they may have. The court assumes that at any rate the defence by November 2 will have
been able to consult with their client.
The complete text of the court's interlocutory decisions on requests and applications made by the defence, the Public Prosecution Service and the counsel for MH17 relatives is available here.