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by John Helmer, Moscow

The presiding judge in the trial of murder in the downing of Malaysia Airlines Flight MH17 on July 17, 2014, dropped a bombshell at the end of his 45-minute ruling presented in court in The Netherlands yesterday.   

The Dutch prosecutors are now attempting to cover it up. A press spokesman, Monique Buunk, was asked for a copy of the judge’s ruling. She declined and refused to explain. A summary of the ruling issued by the prosecution press office on Monday afternoon said only: “the court also put a number of questions to the prosecution and counsel for the relatives.” The court has now adjourned until June 8.

Reading from a prepared paper, Judge Hendrik Steenhuis (lead image) ordered the Dutch prosecutors and the Dutch-led Joint Investigation Team, which has provided the evidence for the murder charges, to report to the court whether US satellite data, allegedly showing the firing of a BUK missile to bring down the aircraft, have been provided to the investigation. The judge’s order also requires the prosecutors to explain whether the American satellite evidence can now be released to the court and to the lawyers representing Oleg Pulatov, one of the four men accused in the firing of the missile.

On January 22, 2016, according to Steenhuis , Dutch members of parliament were briefed by a Dutch satellite expert at a parliamentary discussion of the MH17 case that “the US has satellite images of the missile being fired”, and that these images were “shared with Dutch intelligence.” According to Steenhuis, the MP also announced “the US has no objection to declassification”. “Is this correct?” Steenhuis issued an order to the prosecutors for reply. “Is this satellite data to be released?”

The order for disclosure of the US satellite evidence opens in court for the first time the possibility that the Dutch prosecution may not be able to produce the satellite images because the US has not released them;  because a Dutch military intelligence report of September 21, 2016,  says it had received from the US no satellite imagery of a BUK missile launch at MH17; and because the US claim to have the satellite data is a fabrication. 

The hearing on Monday was restricted by the judge to a series of rulings and decisions he drafted to respond to the issues of evidence, secrecy, and access to the prosecution’s case file which  were raised last week, on March 9 and 10,  by the prosecutors, the defence legal team, and lawyers for the families of the 298 people killed in the incident.

For analysis of the March 9 proceeding, click to read here. For the March 10 presentation of the case by the prosecutors charging the Russian Government with manipulating the evidence record and threatening to kill witnesses, read this. For the opening argument by the defence lawyers, who accused the prosecution of sabotaging their preparations and  concealing evidence, click.

There are three prosecutors; they are led by Dedy Woei-A-Tsoi (lead image, right).  

From left to right:  the trial prosecutors Thijs Berger, Ward Ferdinandusse, and Dedy Woei-A-Tsoi.

Monday’s proceeding was broadcast by livestream with English translation here. This allowed only one-time viewing. The broadcast has been  archived for rebroadcast here.

Hours later, the court press service issued a summary of the Steenhuis judgement. This summary is so vague as to misrepresent the judge’s directions and understate the pressure he has now put on the prosecutors.  For example, instead of identifying the specific orders to the prosecutors for evidence the US has been asked to provide,  the press summary refers to “request for mutual assistance” and “a number of questions”.   

Source: https://www.courtmh17.com/

To cope with the corona virus risk, the court had ordered the public and press out of the courtroom; the press centre nearby was closed; there was no briefing of press by government officials. The lawyers for the defence and for the victims and their families did not appear, but listened elsewhere to the livestream broadcast. Only one of the prosecutors, Dedy Woei-A-Tsoi, sat on her bench; three judges, none of the alternate judges, and only one clerk sat on theirs. 

The MH17 trial courtroom at Schiphol, near Amsterdam, at the opening of the March 23 proceeding. Top photo, the raised platform on which prosecutor Woei-A-Tsoi sat (left) and the three judges and clerk (centre and right). The judges are Dagmar Koster,  Hendrik Steenhuis, and Heleen Kerstens-Fockens; for their career backgrounds, read this. Bottom photo: the well of the court with empty rows for the defence (foreground) and the victims’ lawyers (behind): Source: https://www.youtube.com/

Steenhuis began his ruling by announcing his intention to delay until June the court’s decisions on the defence  lawyers’ objections to the prosecutors’ investigations, and applications by the defence for additional and fresh investigation. He said he accepted that the defence has had “too little time to examine the record” (Min 4:56). he also said he would accept for argument in June the “possible partial or entire refusal of the Prosecution Service to disclose documents that are not part of the prosecution file” (Min 5:28). Steenhuis wasn’t clear whether he wants to decide that issue himself; delegate it to the examining magistrate with whom the prosecutors have been working to date; or both. The name of the examining magistrate has not been revealed.

The case file currently comprises 36,000 pages; multi-media videotapes, photographs, tapes of intercepted telephone calls, witness interview records, and other materials. The defence lawyers and independent researchers have challenged the veracity of much of the material originating from the Ukrainian Security Service (SBU). Leaked records from the Joint Investigation Team (JIT) reveal in parallel the skepticism of Australian and Dutch police towards the SBU sources; for details, read this.

 “To some extent,” Steenhuis ruled, “the prosecution and the defendant need to have equal opportunities to raise their view of the investigation and the resulting findings” (Min 7:16). The prosecutors had enjoyed a “vast edge” (Min 7:28) over the defence in this process, Steenhuis said. “The equality of arms principle requires creating a realistic time and opportunity for the defence to prepare” (Min 7:33).

The equality of arms principle in Dutch law and trial procedure is roughly equivalent to the Anglo-American doctrine of due process. The Dutch practice can be reviewed here. Steenhuis said the defence “rightly” believed it has been treated unequally so far. He granted time without a deadline for the defence lawyers to review the case file. Also, he refused to grant the prosecutors’ applications to speed up the process, limit access to the evidence and to fresh expert investigations of what has been fabricated or tampered with by the SBU.

Steenhuis said he accepts there is now “contestation” over the intercepted telephone calls, which the prosecution allege to be proof of intent to murder on the part of the accused. Postponing to the June session the testing of admissibility of this evidence, and considering additional evidence ignored by the prosecution, the judge added that the defence must be ready then to “substantiate why pursuing investigation is important for any matters in the criminal case” (Min 10:47).

In a significant passing note, Steenhuis added that “questions concerning the jurisdiction of the court; whether the prosecution may prosecute; and questions about the evidence [and] the  punishability of the offence” (Min 11:05) are properly before the court to decide, although not yet. The judge is acknowledging that the jurisdiction of the Dutch to pursue the Russian state for the MH17 crime, committed in the Ukrainian civil war, based on evidence from the regime in Kiev, is questionable.

Steenhuis also sent the prosecutors a warning about expanding their allegations against the Russian government as they attempted in court on March 10 and in media reporting.  “The investigation at the [June] hearing and the deliberations by the court about the questions shall be based on the charges” (Min 11:13), the judge said.  This is a rebuke by the judge to both Berger and Woei-A-Tsoi for their argument to the court last week that the MH17 shootdown was part of “a disturbing pattern of active involvement on the part of Russian security services, specifically the GRU and the FSB in murders in other countries.” For more.

The judge went on to criticize the prosecutors for “excessive restriction” of evidence in the case file, preventing the lawyers for the victims exercising the rights they are assigned in Dutch criminal law. Steenhuis then ordered the prosecution to open the case file and the underlying evidence to these lawyers in a form secure against “premature publication of details of the investigation [because] that could have an impact on the statements of potential future witnesses” (Min 25:12).

Among the documents already published from the internal files of the Joint Investigation Team (JIT) and the prosecution’s case files, the most important are two same-day reports of Major-General Onno Eickelsheim, head of Dutch military intelligence. Eichelsheim told the government investigators that “partner information”, meaning US satellite and NATO signals intelligence, did not substantiate the firing of a BUK missile at MH17, which is the crux of the case against the defendants. Read the Eichelsheim reports here.

Steenhuis then ordered the prosecution to prove to the court that the US satellite data exist at all. “There is a number of questions to be put to the Public Prosecutor regarding the completion of file” (Min 30:52). One of them,  according to the judge,  arose from a “roundtable discussion of standing parliamentary committees on the 22nd of January 2016” (Min 31:53). There “it states that the United States has access to classified satellite images allegedly showing the missile being fired, and these have been shared with Dutch intelligence services.” (Min 32:05). “This has been made in a statement by Mr Langbroek who is a satellite expert. Further, it is stated in the [parliamentary committee] documents that the United States has no objection to declassifying this information.”

“The question is whether this is correct and if so, whether the Public Prosecution is considering adding this information to the record through the MIVD or by declassification” (Min 32:27). MIVD (Militaire Inlichtingen- en Veiligheidsdienst) is the acronym for Dutch military intelligence, General Eichelsheim’s agency. The judge is here ordering the prosecution to bring Eichelsheim to court to testify as a witness, or his reports, or the US satellite images themselves.

The judge was referring to this record of testimony by experts to a round table of members of the Dutch House of Representatives.  The date was January 22, 2016. Participating were MPs from the standing committees for Foreign Affairs, Defense, Infrastructure and the Environment, Security and Justice, and the Interior. The topic was “Policy Response for research reports on MH17.” One of the experts to testify was Marco Langbroek, a satellite expert (satellietdeskundige).  

Source: https://www.tweedekamer.nl/

Langbroek told the MPs that not only the US but also Germany and France had the satellite capabilities to detect missile launches in Ukraine. “The satellites are followed by an independent network of observers, of which I am one”, Langbroek said. With infra-red detection, “at least three of these [US satellites] had sight of Ukraine at the time of this happening and may have observed this potential [missile launch].” Another seven satellites for monitoring signals from a missile launch “would in principle have targeted the region of Ukraine.” Radar and photographic satellites were also available. “One of these satellites, USA-161, had a view of Ukraine at the time of the disaster.”

According to Langbroek, “in this context, it is much more important, especially in light of the letter of January 21 [2016], that the Americans have offered to declassify some of the material. A year ago [2015], Ms. Victoria Nuland, who is a kind of Secretary of State within the United States government, said that these data had already been shared with the intelligence services of the Netherlands. She also said she thinks the Dutch are likely to ask for declassification. Then she said: ‘I think we will be able to help in that regard’; in other words, she thinks this is possible. That is an important point. Certainly if the information is used for prosecution of people, it is important that the material is declassified, that it is all verifiable. That is an important point. I hope it will also happen, because the letter from the Minister states that everything goes through the intelligence services.”

Read more on the allegations by US Secretary John Kerry on July 20 and August 14, 2014, and his subsequent withholding of the satellite evidence.

By directing the court, the prosecution, and the defence lawyers to Langbroek’s testimony to the parliamentary committees, the three-judge panel is requiring Woei-A-Tsoi and her colleagues to address Langbroek’s point: “if the information is used for prosecution of people, it is important that the material is declassified, that it is all verifiable.”

With the court order on Monday, Judge Steenhuis will  compel, not only the prosecutors, but the Dutch Government at the highest level,  to decide what evidence they can present in court to substantiate that US officials have told the truth about the satellite evidence, or else have lied from the beginning. If the US and Dutch Governments refuse to substantiate, the court will fall back on Eichelsheim’s reports already in the case file. The prosecution’s case will collapse.  

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