by Eric van de Beek
Lawyers Boudewijn van Eijck and Sabine ten Doesschate
The trial against the suspects of the downing of MH17 strongly relies on information submitted by Ukraine, the lawyers of defendant Oleg Pulatov stressed in their opening statements. Findings that substantiated the main Buk scenario were often left unchecked, whereas findings that did not fit the scenario were systematically validated, especially when presented by Russia.
Three Russians and one Ukrainian are standing trial for their alleged involvement in the downing of the Malaysian flight MH17 on July 17 2014 in eastern Ukraine, not for having pulled the trigger, but for being "leading players who took delivery of a Buk-TELAR from the Russian Federation and deployed it as part of their own military operation, with the aim of shooting down an aircraft". Russian national Oleg 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. Pulatov's Dutch lawyers Boudewijn van Eijck and Sabine ten Doesschate have accused the Dutch Public Prosecution Service (PPS) 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.
Crash site unsupervised
On June 22 Van Eijck and Ten Doesschate (referred to hereafter as 'the defense')
started off their pleadings by noticing that the investigation
carried out by the Dutch Public Prosecution Service (PPS) had encountered many obstacles, which had an undeniable impact on the result of the investigation. In this connection the defense pointed
to the fact that the crash site was unsupervised for months, so that it cannot be excluded that evidence was lost, tampered with or even planted. They also pointed out that initially it was
impossible to conduct other types of investigation, that only 30 per cent of the crashed passenger plane was recovered and that due to circumstances the wreckage could not be collected in a
forensically sound fashion.
Malaysian Boeing MH17
The defense furthermore noted:
that the PPS was not able to order telephone intercepts itself and was fully dependent on the Ukrainian secret service SBU;
that the PPS was unable to carry out so called network measurements to determine the location of telephones of the accused shortly after the disaster;
that it was difficult to find witnesses and to interview them at an early point in time;
that soil samples from the alleged firing location could not be taken shortly after the disaster;
that the precise course of the Buk missile launch process could not be reconstructed;
that the motive for the launch had not been established;
and that so-called 'arena tests' to elucidate damage patterns are rarely conducted and that therefore no sound conclusions can be drawn from such tests.
In addition the defense noticed that there is no experience in The Netherlands with criminal cases in which surface or air missiles were used, or experience with assessing damage patterns generated by such missiles at an altitude of 10 kilometers in a passenger aircraft. Also no witnesses were interviewed who saw exactly what happened at an altitude of 10 kilometers.
In view of all limiting factors mentioned above the defense questioned if sound positions can be based on the investigations performed by the Joint Investigation Team (JIT), the Dutch Safety
Board (DSB) and others.
The defense furthermore said they have an impression that as far as the PPS is concerned the Buk scenario must be maintained at all costs. Findings that substantiated the main scenario were often left unchecked, whereas findings that did not fit this scenario were systematically questioned and had to pass a thorough verification. Moreover, the results of such checks were not communicated to the original source, and so no rebuttal took place. For example, a report by Russian Buk-manufacturer Almaz-Antey was submitted to the Dutch Forensic Institute NFI for validation. The assessment of NFI was never referred back to Almaz-Antey.
The defense also pointed out that the results of the on-going investigation into "the crew of the Buk-TELAR and those responsible in the chain of command in the Russian Federation" would be relevant or possibly essential when it comes to assessing the forms of participation with which their client Pulatov is charged. "If the chain of command and the responsibilities connected to this are completely unknown, then how can it be ascertained that someone, regarded by the PPS as a subordinate, carried any responsibility and if so, what responsibility exactly?" the defense asked rhetorically.
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In addition the defense noted that the Joint Investigation Team (JIT), which is conducting the criminal investigation, turned to the media on several occasions to disseminate its interim findings - and that by doing so JIT made no secret of the main scenario that it had identified shortly after the disaster. "It is undeniable that the objective truth-finding in the criminal case has been seriously disadvantaged by all these publications," the defense said. The video and audio that JIT and PPS has been presenting to the world from August 2014 on, to substantiate the main scenario, made it hard to imagine for anyone that something completely different may have happened.
Relying on Ukraine
Furthermore the defense noted that the PPS strongly relied on Ukraine in securing reference material, among which telecom data, intercepted telephone calls, video files, soil samples, radar
images, military flight data and the selection of witnesses. The defense noticed that as soon as October 2014, at a time when the wreckage was not even secured, Ukraine presented two types of
missiles that could have hit MH17: a Buk of the 9M38 series and a Buk of the 9M38M1 series. When the inspectors of JIT arrived in Ukraine only these two missiles were demonstrated to them. "It's
telling one of these ended up in the indictment," the defense says. "It's not clear why at such an early stage of the investigation the Ukrainian authorities started working from the Buk scenario
and why only the missiles of the aforementioned models were investigated."
Ukrainian Sukhoi Su-25 fighter jet often spotted in eastern Ukraine
Whereas Ukraine was quick to deliver information to substantiate its claim that MH17 was taken down by the rebels with a Buk, it was very slow in providing JIT with information that could point to alternative scenarios, such as a 'warplane scenario', in which a Ukrainian fighter jet shot down MH17 or was shot at by the rebels while MH17 passed by. The Ukrainian authorities submitted logbooks and flight plans regarding military flights conducted on July 17, 2014 to JIT as late as January 15, 2016. "Why only a year and a half after the crash?" the defense asked. "Was it that complicated to quickly submit this information? It seems not, because, according to the information finally provided, on July 17, 2014 no military flights were performed in the airspace of Luhansk Oblast and Donetsk Oblast."
The only intercepted phone calls the defense says to have found in the case file are those between the rebels. No intercepted calls are available between members of the armed forces of Ukraine. This must have put JIT in disadvantage regarding the investigation of alternative scenarios, the defense argued. It further noted that it's unclear if JIT has requested the Ukrainian SBU to submit such calls.
The defense also criticized the way JIT conducted the investigation of soil samples from the alleged launch site. These were collected almost a year after the crash, in June 2015. The defense said they do not understand why these samples weren't collected at an earlier stage. "Are we really expected to believe that no ingenious detection method could be imagined to take samples from a deserted farmland?" Journalists started visiting the alleged launch location as soon as a few days after the disaster. In addition the defense noted that the collected samples from the alleged launch location were not investigated. JIT refrained from examining the samples after Ukraine had declared that from its own experience even after a few months, all traces of a Buk launch are lost.
The defense ascertained that the SBU has been the main supplier of witnesses and that some of them had been arrested by the SBU in investigations into other crimes
in Ukraine and have subsequently been heard as witnesses regarding the shooting of MH17. In this respect the defense commented: "Witnesses who have been arrested for other crimes and who have
been identified as suspects in those cases are not the most reliable witnesses."
Exhaust of Buk missile (venturi tube) and casing of missile engine as exibited by JIT
Furthermore the defense noticed that in the case of certain alleged Buk missile components secured in April 2015, i.e. "three shards and a tube", the file does not state how long they were at the crash site and how they got there. The defense therefore asked what investigation was carried out on site in Ukraine to rule out the possibility that these materials had been planted or originated, for example, from a Buk missile fired by Ukraine prior to 17 April 2015. The materials, among which the casing of a Buk missile engine (the 'tube'), were secured after a witness had directed the members of the recovery mission to the location where he had first seen the components a few weeks before.
Prior to post mortem examinations in The Netherlands on the remains of the victims, autopsies were performed on 27 bodies in a mortuary in Ukraine, the defense noted. No reports of these autopsies can be found in the case file, nor an explanation why Ukraine had performed these autopsies and which persons were involved.
The defense stressed that Ukraine very much benefited from the fact that the PPS had embraced the Buk scenario and that "virtually everything" Ukraine put forward to substantiate this scenario was considered useful by JIT and the PPS. Findings not supportive to the main scenario are "not always further investigated or are explained away". In contrast to this the information that was put forward by the Russian Federation was "always checked to the bottom and generally referred to as misleading information". The defense said to find such double standard unacceptable. Information from Ukraine must be as thoroughly investigated as Russian findings. "The mission and working method of a security service like the Ukrainian SBU is not primarily truth finding but the national interest," the defense stressed. "History teaches us that security services are not the most reliable partners when it comes to providing evidence."
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The defense reminded the court of the fact that the Russian Federation participated in the international team that investigated the cause of the crash in 2014 and 2015. This team was led by the Dutch Safety Board (DSB). In October 2015 former chairman of DSB Tjibbe Joustra stated in an interview on Dutch TV that the investigators of DSB "cooperated in a nice and professional manner with their Russian colleagues". The defense therefore says they don't understand why Russia was not accepted as a member of JIT. In June 2015 Russia had requested to be admitted, because it had noticed many times information and suggestions it had submitted was wrongly interpreted.
According to the defense, choices made in the on-going criminal investigation, have made it
"painfully clear" that the PPS follows the position that the Dutch government has adopted in recent years, namely "soft on Ukraine and hard on the Russian Federation".
The defense furthermore argued that the decision making process of JIT is based on an agreement that hampers truth finding. Given the tenor of the agreement it is entirely plausible that Ukraine was in a position to influence the investigation carried out by JIT, the defense thinks. The team members had agreed to adopt consensus as their decision rule, with the Dutch, who are leading JIT, having a final say. The defense argues that, since JIT is highly dependent on Ukraine for the gathering of evidence, the Dutch will not lightly overrule Ukrainian vetoes. From the case file the defense was not able to determine which obstacles in the decision-making process the JIT team members had run into and how they had overcome these obstacles.
In addition the defense suggested truth finding has never been the objective of JIT member Ukraine. In this connection the lawyers quoted a former Ukrainian prosecutor. "I wanted to prove the
Russian government is to blame for the disaster," this prosecutor declared earlier this year. "How about that?" the defense dryly commented. "This certainly does not indicate a magisterial
perception of duties."
Representatives of JIT members The Netherlands, Belgium, Australia, Ukraine and
After having made the above statements the defense set out its requests for further investigations, relating in particular to the aforementioned 'warplane scenario'. The defense thinks such scenario cannot be excluded, or has at least not been sufficiently investigated, or has been rejected too lightly. In this connection the defense noted that JIT had not fact-checked the logbooks and flight plans of the Ukrainian air force, among other things.
"The file contains several clues leading to the suspicion that the Ukrainian air force was using
civil aircraft as a human shield while bombing military targets in eastern Ukraine," the defense added. "However JIT has not taken any action on this, as far
as we know. No questions have been asked to witnesses about this suspicion, nor has it been investigated whether the airspace was not completely closed off because of civil aircrafts being used
as a human shield."
Furthermore the defense said it wanted to determine exactly how a Buk-TELAR installation and a Buk missile work. What's the most likely damage pattern if a passenger aircraft is actually hit by a Buk missile? What would be the most plausible impact point? Would a Buk missile hit a passenger plane in a different way than a military jet? What could make a Buk-TELAR crew mistake a passenger plane for a military airplane? Would the damage to a passenger plane look different if it was hit on purpose by a Buk warhead? And finally whether in the light of all of this it is still plausible that a Buk missile struck MH17?
Other requests for further investigation focused on US satellite images, the cockpit voice recorder, the launch site, the circumstances related to the airspace on and around 17th July 2014, telecom data and the recovery of victims and wreckage. On July 3 the court decided on the requests of the defense. For further reading: MH17 court considers warplane scenario