Over the past three days the defence had the floor and presented investigation requests they were unable to state during an earlier block of hearings. As an introduction, counsel showed a video in which their client stated that he was not involved in the crash of Flight MH17 and did not see how it happened. That statement served as the foundation for the defence to determine the new requests for further investigation. 

Investigation requests from the defence

The defence has divided the new requests into three questions arising from the scenario assumed by the Public Prosecution Service (PPS). The scenario is that Flight MH17 is believed to have been taken down by a Buk missile, launched from a field at Pervomaiskyi in Ukraine, by or with assistance from separatists. In all requests, the defence is of the opinion that additional investigation is required to find out more about the reliability and value of the evidence put forward by the PPS and about evidence that was not put forward by the PPS but could nevertheless be important.

Main points of the requests

First question: was Flight MH17 taken down by a Buk missile?

The defence wishes to examine the authors of reports regarding this first question. Those reports are about fragments, particles and substances found on pieces of wreckage and inside the bodies of victims and about the damage to the aircraft. The defence wishes to know, for example, which information and investigation material the authors had, how they conducted the investigation, whether they had expertise, and what they were assigned to investigate.

In addition, the defence requested a chart of all wreckage found at the crash site and of the wreckage used to investigate the circumstances of the crash of Flight MH17.

Second question: was the Buk missile fired from a field near Pervomaiskyi?

In addition, the defence wishes to examine many witnesses they believe could be important in answering the question about the launch site. They wish to have (additional) questions put to all (possible) eyewitnesses of the supply and removal route presented by the PPS, of the asserted launch site, of the actual launch and of the discovery of missile parts. The same holds true for witnesses who might be able to say something about the photo and video footage of the alleged Buk missile. The defence would also like to examine witnesses able to describe how various intercepted conversations and the words used there should be interpreted. The defence is also requesting the transmission mast data corresponding with the phone numbers of persons who according to the case file were in the proximity of the alleged Buk missile and had seen something of it or recorded images of it.

As to the launch site, the defence would moreover like the authors of reports and official records to be questioned. They would like to examine investigators about satellite footage and soil samples, such as specialists from the European Space Agency (ESA) on satellite footage. Authors of the KNMI reports who investigated satellite and other footage should be examined as well. The Netherlands Forensic Institute (NFI) examined a video believed to have been made of the Buk missile. Those images have been compared with footage believed to depict the same Buk missile in Russia. The defence would like to question those investigators and the military advisors they consulted as well.

The other requests concern matters such as ascertaining the identity of persons and the addition of photos, satellite footage, official records, a report and other data, for example a document indicating that all authors of official records were duly authorized to this end. 

Third question: did the defendant participate in a criminally liable manner? 

Regarding the question as to whether their client was involved in the crash of Flight MH17, counsel have requested that witnesses be examined, and that additional investigation be conducted regarding a phone number their client is believed to have used. The defence would, for example, like to ask questions about duties performed, whether assignments were issued, and what the allocation of roles was. If Flight MH17 is assumed to have been taken down with a Buk missile, the defence believes that additional information is needed regarding why the Buk missile was supplied, fired and then removed again, and which instructions were given on the matter. 

Interstate complaint

The defence has asked the PPS to answer questions they have following the complaint submitted to the European Court of Human Rights (ECtHR) by the Dutch government against the Russian Federation. They believe that answers to those questions are important in relation to the right of the PPS to institute criminal proceedings.

Subsequent schedule

On Thursday 12 November 2020 the hearing will resume. On that date and possibly the following day as well, the PPS will respond to the investigation requests from the defence. This will be followed by an opportunity for brief responses from each side. On 25 November 2020 the court shall decide which requests will, and which will not be granted.