Today, the District Court of The Hague ruled on whether the examining magistrate had acted correctly in granting the status of threatened witness to two witnesses in the MH17 criminal case. The examining magistrate had decided to do so further to an application by the public prosecutor. One of the accused subsequently appealed the examining magistrate’s decisions.
The court has now ruled that the grounds on which the status of threatened witness was granted were correct. The court found that the examining magistrate had sufficiently substantiated that there had been threats, as a result of which the witnesses wished to give their statements on the condition of anonymity only. In coming to the decisions, the examining magistrate had considered the case file, reports on the security situation in Eastern Ukraine and the personal circumstances of the witnesses.
In the case of one of the witnesses, the examining magistrate’s decision had not been reached in the correct manner. Several examining magistrates are involved in the MH17 criminal case. The examining magistrate that had made the decision regarding the status of this witness was different to the examining magistrate who had heard the defendant’s lawyers’ arguments regarding the application concerning the witness’s status. The court has ruled that the same examining magistrate should have heard the views of the parties and decided on the application. However, it did not attach consequences to this. The court found that the examining magistrate who had made the decision had been apprised of the arguments that the lawyers had presented to the other examining magistrate and had taken them into account when making the decision.
As a result of the decision taken by the court today, the identity of these two witnesses will continue to be concealed. This is the second decision on appeal on threatened witnesses in the MH17 criminal case. The court previously ruled that the examining magistrate acted correctly in granting threatened-witness status to twelve other witnesses.
The decision on the appeal was taken by judges other than the trial judges. This is a legal requirement. It is the trial judges, who are hearing the MH17 criminal case itself, who will ultimately judge the significance of the statements made by the threatened witnesses for the criminal case.
ECLI:NL:RBDHA:2021:10237