ECLI:NL:RBDHA:2022:14039

(3)DCCP), only the judicial finding that a charge against an accused has been proven need be substantiated in the judgment with the evidence for the finding and its source. Pursuant to established case law, this is also the case when evidence is used to discuss meritorious lines of defence presented by counsel for defendant Pulatov. The court’s decisions on other matters – such as preliminary matters, questions regarding the reliability or unlawfulness of evidence and seizure decisions – must be substantiated, but need not be supported by evidence. In line with the above, when setting out its considerations and decisions in this judgment, the court has only referred to evidence as it relates to the offences charged. These references to evidence are in the form of footnotes relating to the relevant considerations. The court has also placed footnotes elsewhere in this judgment, some of which concern sources that may be characterised as evidence. However, there are also footnotes which refer to open sources that need not necessarily have been included in the case file, or to literature or case law. In addition, footnotes sometimes contain additional explanation of what the court has stated in the text. The court has therefore placed footnotes in several places in the judgment, without being strictly bound by law to do so, in order to make it easier for the reader to understand the judgment on the points in question. These footnotes are particularly useful to readers who are not a party to the proceedings and do not have access to the prosecution file, enabling them to better understand the court’s reasoning. Conversely, however, this means that considerations based on evidence contained in the case file are frequently included without a footnote referencing the evidence concerned; this is particularly true of the court’s considerations regarding the preliminary matters. The court considers that including footnotes referencing evidence or sources on all these points would make the judgment more difficult to read. The frequent use of footnotes would simply make the text overly long and effectively unreadable. Footnotes always state where the piece of evidence concerned can be found in the case file as briefly as possible. When a footnote refers to specific passages in a court document, the court gives the Primo number under which that document is included (as an annex) in the case file; the case file page number is also provided, or, in the absence thereof, the page number of the court document concerned. In the case of a reference that does not concern any specific passage, the court gives only the Primo number. When referring to a court document that does not have a Primo number, the court uses the name of the court document concerned. In the case of intercepted conversations, the reference gives the date and time of the conversation. This ensures that evidence is traceable and sufficiently identifiable. 1.4 Spelling of place names and personal names and use of times The court specifies that this judgment uses the spelling in Latin script that is as close as possible to the Ukrainian name when referring to personal names and place names. This choice follows on from the fact that the flight MH17 disaster took place over Ukrainian territory. Specifically with respect to the place names ‘Pervomaiske’ and ‘Pervomaiskyi’, the court notes that they often appear to be used interchangeably in the case file. As these two places are very close, in terms of both their pronunciation and their more or less contiguous location immediately south of Snizhne, and as the indictment refers to a place near Pervomaiskyi, the court treats this interchangeable use as irrelevant, except where otherwise indicated. Regarding the use of times, the court specifies that the stated times refer to the local time in effect at the location in question, except where expressly stated otherwise. In such cases, the time will usually be indicated by its deviation from Coordinated Universal Time (UTC). 2THE TRIAL The trial took place at the following hearings: 9 and 10 March 2020 (introductory) and 23 March 2020 (decisions by the court), 8, 9, 10, 22, 23, and 26 June 2020 (case management hearings) and 3 July 2020 (decisions by the court) 31 August 2020 (case management hearing on claims by the injured parties and the right of the relatives to address the court, decisions by the court), 28 September 2020 (case management hearing), 3, 4, 5, 12 and 13 November 2020 (case management hearing); 25 November 2020 (decision in the Pulatov case), 1 February 2021 (case management hearing) and 8 February 2021 (decisions by the court), 15 and 16 April 2021 (case management hearing, application for inspection of the MH17 reconstruction, case management hearing on claims by injured parties, decisions by the court) and 22 April 2021 (decisions by the court), 21 May 2021 (case management hearing: preparation of inspection) and 26 May 2021 (inspection of the MH17 reconstruction), 7, 8, 9, 10, 17, and 24 June 2021 and 8 July 2021 (hearing on the merits) 6, 7, 9, 10, 13, 14, 16, 21, 23, and 24 September 2021 (right of the relatives to address the court) 1 November 2021 (case management hearing), 2 November 2021 (decisions by the court, case management hearing) and 8 November 2021 (right of relatives to address the court) 8 December 2021 (claims by injured parties) and 20, 21 and 22 December 2021 (prosecution's final submissions and sentencing request), 7, 9, 11, 14, 16, 18, 21, 23, 24, 25, 28, and 30 March 2022 (oral submissions by counsel for defendant Pulatov) 16, 17 and 18 May 2022 (reply by the MH17 counsel for the relatives, reply by the prosecution), 8, 9, and 10 June 2022 (rejoinder by counsel for defendant Pulatov, final word by defendant Pulatov) 22 September 2022 (resumption and immediate adjournment of the trial) 17 November 2022 (conclusion of the trial and delivery of the judgment). The court is cognisant of the application by the prosecutors T. Berger, W. Ferdinandusse, M. Ridderbeks and B. van Roessel (hereinafter collectively referred to as the prosecution. Furthermore, the court is cognisant of the submissions of the MH17 counsel for the relatives in relation to the claims by the injured parties. 3THE INDICTMENT The text of the writ of summons is attached to this judgment as Appendix 1. Under the first count, it is alleged that the accused, together with one or more others, or alone, intentionally caused flight MH17 to crash, causing the death of the occupants of that aeroplane. With respect to this offence, in the indictment there is a principal charge, an alternative charge, a further alternative charge and a furthest alternative charge, relating to various types of perpetration. Under the second count, it is alleged that the accused, together with one or more others, or alone, intentionally and with or without premeditation, took the lives of the occupants of flight MH17 by firing a Buk missile at that aeroplane, causing the aeroplane to crash, and the occupants to die. With respect to this offence too, in the indictment there is a principal charge, an alternative charge, a further alternative charge and a furthest alternative charge, relating to various types of perpetration. 4PRELIMINARY MATTERS 4.1 Introduction In keeping with the sequence prescribed by law, the court will first go about responding to what are known as the procedural matters of Section 348 DCCP. These concern in turn the validity of the summons, the jurisdiction of the court, the right of the prosecutor to prosecute, and whether there are reasons to suspend the prosecution. The court is required to answer these questions ex officio in all cases, even if the defence does not raise them. As a procedural shortcoming (at any rate regarding the first three questions) could affect all the cases, in addressing these matters the court will also take into account the arguments made by counsel for defendant Pulatov when considering the cases of the other three accused. 4.2 Validity of the summons Pursuant to Section 261

(1)DCCP, the summons must state the offence charged, specifying at approximately what time and place it is alleged to have been perpetrated. The second paragraph adds that the summons must also state the circumstances in which the offence is alleged to have been perpetrated. The charge against the accused must be clear, intelligible, sufficiently factual and not internally contradictory, as to the offence, time, and place. The importance of this provision is to ensure that, based on the indictment, the accused is aware of the charges against which he or she must defend him or herself. The charges in the indictment must be understandable to the court as well. Although the question of whether or not a summons is valid is a procedural one, to be answered based on the text (the foundation) of the indictment itself, the court may consider the content of the case file in assessing the validity of the indictment. The court has more latitude to do this now, given that the court is addressing this question in the judgment and not on the occasion of a preliminary objection. The prosecution has listed two offences, cumulatively, in the indictment. Both offences are segmented in the indictment, namely into the principal, alternative, further alternative, and furthest alternative variants. The indictments are entirely identical for the four accused in whose cases the court will deliver judgment. In both the first and second count, the wording of the principal and alternative charges is virtually identical, the difference being that the principal charge explicitly aims for conviction based on functional perpetration or co-perpetration. As the prosecution explained, this was done in order to have the court, when considering whether the offences charged had been proven, first address whether functional perpetration or co-perpetration had been involved. The court notes that functional perpetration basically means that although an offence is physically committed by others, the functional perpetrator bears responsibility for it and for that reason may be considered criminally culpable. The prosecutor has rightly noted that functional perpetration of a criminal offence is not a separate form of participation. Functional perpetration is covered by the concept of perpetration in the sense of Section 47

(1)of the Dutch Criminal Code (DCC). Therefore, it need not be stated explicitly in the charge. Following on from this, the court considers that the principal and alternative charges - if proven - would yield exactly the same characterisation as regards both the definition of the offence and the form of participation. For these reasons, this format is different to a format whereby, for example, principally murder and alternatively manslaughter are charged or principally co-perpetration and alternatively perpetration. In the opinion of the court, it would therefore have been more accurate and clearer to charge the principal variant only, whereby the functional perpetration part could be cancelled if not proven. The additional explanation provided, however, does make sufficiently clear what the prosecution intended to charge, and why the indictment was set out in this manner. For the reasons stated above, the court therefore does not find the indictment to be partially void. Giving a purely legal opinion on the manner of indictment by voiding part of the indictment would add nothing. This holds true for the cases of all the accused. The court shall base its judicial finding of fact, however, on the premise that the principal charge comprises both functional and ordinary perpetration and co-perpetration, whereby the court considers that functional perpetration of a criminal offence should by its nature be characterised as an alternative variant. The fact of the matter is that, if the physical or other contribution of an accused is essential to perpetrating an offence, that contribution is the crux of the charge, and that should be reflected in the characterisation of the charge. The essence of functional perpetration, however, is that someone who did not personally contribute physically to an offence may in some cases still be held responsible for it. In other words, only if perpetration does not apply, can functional perpetration apply. The writ of summons is therefore valid. 4.3 Jurisdiction of the District Court of The Hague The court has jurisdiction to hear the MH17 criminal case. The jurisdiction of District Court of The Hague stems from the provisions of Article 2 of the Prosecution and Trial in the Netherlands of Offences in Connection with the Downing of Malaysia Airlines Flight MH17 Act. The criminal case was not heard in the courtroom designated by order in council at the courthouse in The Hague, but rather at the Schiphol Judicial Complex in Badhoevedorp, the Netherlands. This location outside The Hague court district was designated by the Minister of Justice and Security pursuant to the provisions of Article 21b

(3)of the Judiciary Organisation Act. 4.4 Right of the prosecutor to prosecute 4.4.1 Preamble The question of whether the (Dutch) prosecutor is entitled to initiate criminal proceedings, in other words has a case to bring, falls into three parts. First, whether the court has jurisdiction. In other words, whether the Dutch Criminal Code confers jurisdiction to prosecute and try the offences with which the accused are charged in the Netherlands. If it does not, the Dutch prosecutor has no right to initiate criminal proceedings. Furthermore, the right to prosecute depends on whether there are reasons, such as immunities, why international law might nonetheless limit the operation of Dutch criminal law, and finally, the question of whether the prosecutor has forfeited his right to prosecute owing to procedural errors or omissions in the way the investigation and prosecution took place, as argued by counsel for defendant Pulatov. The court discusses these three questions below. 4.4.2 Does the Dutch Criminal Code confer jurisdiction? This question must be answered in the light of what the indictment alleges. The allegation is that flight MH17 crashed as a result of the firing of a Buk missile from a site near Pervomaiskyi in Ukraine. The allegation relates to one set of acts that cost the lives of 298 people of 17 different nationalities, including many Dutch nationals. The indictment splits this set of acts into two charges under the law. The first charge is - as indicated above - the intentional causing of an aircraft to crash resulting in the death of its 298 occupants (punishable under Section 168 DCC) and the second charge is the murder or manslaughter of 298 persons (punishable under Sections 289 and 287 DCC). Those offences are alleged to have been committed in Ukraine, which means that Ukraine, under the territoriality principle, would in any case have jurisdiction to prosecute. Yet the Netherlands has that right too. Indeed, like the prosecution, the court finds that the charge under Section 168 DCC concerns one conduct, namely causing an aircraft to crash. As Section 5 DCC provides that Dutch criminal law is applicable to anyone who commits a crime against a Dutch citizen outside the Netherlands, and the victims of the alleged conduct of causing MH17 to crash included Dutch citizens, the court holds that the prosecutor was entitled to prosecute that offence in the Netherlands under Section 5 DCC. In doing so, the court notes that the other requirements set, of ne bis in idem and the Dutch minimum sentence of at least eight years, are also met. Therefore, the Netherlands has so-called original jurisdiction with respect to the charge under Section 168 DCC. The situation is partly different as regards the murder or manslaughter of 298 people of various nationalities. That charge involves 298 counts of intentional killing one person. The killing of that one person is the core of the conduct charged. In the case of victims who were Dutch nationals, the Dutch prosecutor had the right to prosecute under Section 5 DCC and so the Netherlands has original jurisdiction. Regarding the victims who were non-Dutch nationals, unlike the prosecutor, the court is of the opinion that the basis for jurisdiction cannot be found in Section 5 DCC simply because the cause of death of all the victims was one act. These are 298 allegations of murder or manslaughter which, while having the same cause, are independent offences. The basis for the Dutch prosecutor's right to prosecute as regards that part of the second charge can, in the court's opinion, be found in the so-called derived jurisdiction of Section 8b

(1)DCC. This provides that Dutch criminal law applies to anyone the criminal prosecution of whom has been transferred to the Netherlands by a foreign State pursuant to a treaty affording the power of criminal prosecution to the Netherlands. Such a treaty was concluded between the Netherlands and Ukraine: the so-called Treaty of Tallinn. The criminal proceedings relating to flight MH17 were transferred from Ukraine to the Netherlands pursuant to the provisions of that treaty. The court, therefore, finds that derived jurisdiction was established over all the offences charged, on the basis of Section 5 and/or 8b

(1)DCC, including the murder or manslaughter of the occupants of the aeroplane who were non-Dutch nationals under the second charge. The court thus finds that, under the Dutch Criminal Code, the prosecutor has the right to proceed with prosecution. 4.4.3 Is there a limitation on jurisdiction under international law (immunity)? 4.4.3.1 Combatant immunity The court has already considered above that the Netherlands has jurisdiction with respect to the charges under Sections 5 and 8b

(1)DCC. Under Section 8d DCC, jurisdiction may nevertheless be limited by exceptions recognised in international law. As the case file indicates that the set of acts referred to in the indictment occurred in the context of a conflict, the question arises as to whether so-called combatant immunity may apply. This matter was not raised by the accused, and certainly not by defendant Pulatov. If combatant immunity does apply, however, it follows that the prosecutor does not have the right to prosecute. That might then apply to the cases of all the accused. For this reason, the court will address this issue in more detail. Combatant immunity is an immunity relevant to the accused's possible status as a combatant in an armed conflict. Whether a person has combatant status is governed by international humanitarian law, also known as the law of war. Under international humanitarian law, persons who have combatant status are authorised to participate in hostilities and thus to conduct combat operations (combatant privilege). If these acts are performed in accordance with international humanitarian law, those persons cannot be prosecuted under criminal law for those acts, acts which in peacetime might be considered a crime. This is combatant immunity. As indicated, combatant privilege is part of international humanitarian law. Therefore, combatant privilege - and the related combatant immunity - can only apply if international humanitarian law applies. International humanitarian law applies in the event of armed conflict. International humanitarian law differentiates between international armed conflicts (traditionally conflicts between nations) and non-international (also called internal) armed conflicts. The provisions regulating combatant privilege apply only to international armed conflict and not to non-international armed conflict. Therefore, the court must first determine whether an armed conflict existed at the time of the crash of flight MH17 and also whether it was international or non-international in nature. If the court finds that the conflict was non-international in nature, the accused are simply not entitled to this immunity. In this regard, the court notes that a non-international armed conflict must nevertheless be considered an international armed conflict if another country appears to be so heavily involved with the group with which a given country is fighting that the other country actually has overall control over that group. If the court finds that there was an international armed conflict, it must then ascertain whether the accused fall into the category of persons entitled to combatant privilege and, if so, whether they also meet the other conditions for it. The latter includes ascertaining whether the acts were carried out in accordance with international humanitarian law. The court recalls expressly that the question of possible combatant immunity must be answered in the light of the facts and circumstances pertaining to the indictment period. Therefore, what is considered below refers to that period in 2014, unless expressly stated otherwise. In order to make sense of those facts and circumstances, the court will first briefly outline the situation in that period in the area in which, according to the indictment, the offences charged occurred. 4.4.3.1.1 The situation in eastern Ukraine in July 2014 When flight MH17 crashed in eastern Ukraine on 17 July 2014, the situation in the region was far from calm. There had been conflict there since around April 2014, with fighting between the Ukrainian army on the one side and armed groups on the other. One of the main goals of those groups was to achieve some type of separation, or self-government within, the Ukrainian state, for Ukrainian territory or parts thereof. The court will refer to these groups as ‘separatists’, as this reflects their aims while avoiding any judgement regarding their origins or regarding the conflict itself. One such group consisted of several armed militia groups fighting under the name of the Donetsk People's Republic, the DPR. Ukraine was fighting against the separatists under the name Anti-Terrorism Operation (ATO). On 11 May 2014, the separatists in the Donetsk and Luhansk oblasts in eastern Ukraine actually declared independence, making the Donetsk People's Republic and the Luhansk People's Republic a reality for them. From that point onwards, the fighting between Ukraine and the separatists became more intense, with both sides using increasingly heavy weaponry. Partly as a result of international pressure, a ceasefire was declared unilaterally by Ukraine on 20 June 2014, ushering in a brief period of relative calm in eastern Ukraine. The Ukrainian military resumed the ATO when that ceasefire expired on 1 July

1. This led to fighting on two fronts: in the northeast and southeast of Ukraine. In the northeast, the Ukrainian army was able to advance successfully, and the separatists were driven southward in the first half of July
2. Fighting in the southeast was much heavier however. Fighting there was long and fierce from the start of July, and was still ongoing on 15, 16 and 17 July
3. This is the area where Pervomaiskyi is located, the site from which flight MH17 is alleged to have been shot down on 17 July
4. 4.4.3.1.2 Was there an armed conflict? The court must first assess whether the conflict between the Ukrainian army and the separatists may be characterised as an armed conflict. In the Tadić case, the International Criminal Tribunal for the former Yugoslavia (ICTY) provided a generally accepted definition of the two types of armed conflict mentioned above: ‘[…] an armed conflict exists whenever there is a resort to armed force between States [court: international armed conflict] or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State [court: non-international armed conflict].’ Since the accused all held positions inside the DPR and stand accused of committing the alleged actions in their capacity as holders of those positions as part of the conflict between the Donetsk People's Republic and the Ukrainian armed forces, the court will have to assess whether the conflict between the DPR - which was not a State - and the Ukrainian armed forces can be characterised as "protracted armed violence between governmental authorities and organised armed groups." Duration and intensity of the violence In order to make that determination, the court must, first of all, consider the question of whether there was ongoing armed violence of a certain intensity - in the sense of protracted armed violence - on the territory of Ukraine when flight MH17 crashed, and during the period prior to that. In order to answer that question, the court considers the following factors which are apparent from the case file. From April 2014 onwards, three battle fronts developed in eastern Ukraine, together covering a considerable area. Clashes between the Ukrainian armed forces (both air and ground forces) and the separatist groups, or members thereof, occurred almost daily, ranging from shooting incidents to aerial attacks. The parties to the conflict both used firearms, including hand-held weapons, mortars, anti-tank mines, anti-personnel mines, portable air defence systems, missile launchers, tanks, armoured vehicles and artillery systems, inter alia in combat. International organisations have estimated that, between mid-April and mid-July 2014, these hostilities resulted in some 1,000 casualties, including both civilian and military. Most of the civilian casualties reportedly were so-called collateral damage from fighting that took place in populated areas. Over 86,000 people, most of them women and children, were displaced and fled the region. According to international and non-international governmental and non-governmental organisations, numerous human rights violations also took place. The conflict in eastern Ukraine was a subject of repeated discussion in the UN Security Council. Based on these factors alone, the court finds that the violence in eastern Ukraine, which began in April 2014 and was ongoing when flight MH17 crashed on 17 July 2014, lasted for such a prolonged period and was so intense that it can be said to be protracted armed violence between Ukrainian armed forces on the one hand and separatist groups, including the DPR, on the other. Organisation of the DPR The next question facing the court is whether the DPR was sufficiently well organised at that time to be described as an ‘organised armed group’, as the above definition requires. In answering that question, the court considers the following factors. The DPR was proclaimed as early as 7 April 2014 by armed individuals who were occupying the regional administrative building in Donetsk. Separatists in the Donetsk and Luhansk oblasts then declared independence on 11 May 2014 following referendums that were not recognised by Ukraine, making the DPR and the LPR a reality as far as they were concerned. Both of these republics appointed leaders and governments, and adopted their own constitution. These constitutions set out the command structure and the assignment of duties within the organisation. They state, for example, that the Minister of Defence had direct responsibility for the armed forces at the operational level. Several militia groups, each with its own commander, operated under the banner of the Donetsk People's Republic. Interviews and intercepted telephone conversations indicate that most of these militia groups did indeed fall under the authority of the Minister of Defence, particularly as time went on, with the exception of the occasional militia group. Although it is not always clear how the different militia groups related to one another, and they did not always appear to share the exact same objectives, in the court’s opinion it is possible to state in general terms that all the militia groups were using weapons to fight for independence, or a greater degree of independence, from Ukraine. It is clear that, as soon as the DPR was founded, the organisation adopted the strategy of asserting its authority over a number of cities in eastern Ukraine - including Sloviansk, Kramatorsk and Donetsk - using armed force, and of setting up headquarters in those cities, such as in the building of the Ukrainian Security Service (SBU) in Sloviansk and, later, in Donetsk. What is more, it is clear from decisions delivered by the so-called Military Field Tribunal of the DPR that the organisation adopted martial law. On several occasions, the DPR also cooperated in establishing cease-fire agreements, which similarly indicates a certain degree of organisation and of involvement in armed violence. The court finds that, taking all these factors together, in the period prior to and during the crash of flight MH17, the DPR was organised in such a way that it can be said to have been an organised armed group. The fighting between the Ukrainian army and the Donetsk People's Republic can therefore be characterised as an armed conflict. 4.4.3.1.3 The nature of the armed conflict As the court has established that, prior to and at the time of the crash of flight MH17, there was intense fighting between Ukrainian armed forces on the one hand and organised armed groups including the DPR on the other hand, the criteria for characterising the situation as a non-international armed conflict have been met. Next, the court turns to the question of whether there is any reason to believe that the role of any other country in the conflict between the DPR and Ukraine was such that this armed conflict, which was non-international in geographical terms, can be characterised as a conflict that was in fact of an international nature (internationalised) during the period in question. This may be the case if a certain degree of involvement by another country can be established. In this case, that would refer to a significant degree of involvement by the Russian Federation. In this case – due to the position and/or role of the accused within the DPR – the issue is not whether the Russian Federation may have used violence directly against Ukraine separately from the armed conflict between the DPR and Ukraine (direct involvement by the Russian Federation), but rather whether the Russian Federation was involved in the DPR to such an extent that it can be characterised as having had overall control over the DPR. If the latter is the case, the non-international armed conflict between the DPR and the Ukrainian armed forces should actually be characterised as an international armed conflict and the question of combatant immunity may also arise. For that matter, in assessing whether the Russian authorities had overall control over the DPR, the court may also consider facts and circumstances that indicate direct involvement of the Russian Federation in hostilities, as will be discussed below. In assessing the question of overall control, the court considers the following factors. The background of members of the DPR Several of the leaders of the DPR at the time were Russian nationals, and a number of them also had a background in the Russian armed forces. For example, the accused Girkin, at the time Minister of Defence of the DPR, is a Russian national, served in the Russian intelligence agency (FSB) and took part in the wars in Chechnya, Transnistria and Bosnia. His deputy in the DPR and ‘head of intelligence’ in the DPR, the accused Dubinskiy, is also a Russian national, has a background in the Russian military intelligence agency (GRU) and took part in the wars in Afghanistan, North Ossetia and Chechnya. It is not always clear, however, in what capacity the leaders within the DPR were involved in the DPR. Although several of them indicate that they were retired (reservists) in the Russian Federation and came to Ukraine independently and voluntarily, it is not clear whether this is actually the case or whether they were sent there by the authorities of the Russian Federation. Based on intercepted conversations, at least some of them appear to have had a close connection with the Russian Federation. For example, there was communication between the leaders of the DPR and Surkov, who was then the closest adviser to the Russian President Vladimir Putin, regarding appointments to several ministerial posts within the DPR. In an intercepted conversation recorded on 16 May 2014, Borodai said that the government (of the DPR) was about to be announced, that Moscow had surprised him, and that he would be appointed Prime Minister, much to the disappointment of another individual who had arrived in eastern Ukraine from Moscow. Borodai was indeed appointed Prime Minister of the DPR shortly after this intercepted conversation took place. On 15 May 2014, a conversation was intercepted between Borodai and the Chairman of the Supreme Council of the DPR regarding the appointment of a named individual to the post of Minister of the Interior; during that conversation, it was said that the candidate in question “suits Moscow” and that the “Moscow Generals” agreed. In another conversation later that day in which the same Chairman of the Supreme Council took part, he also said that the list of government posts for “the hero city” should not be made longer and that one named individual would certainly not sit on the Security Council because he had not been approved by Moscow. Furthermore, the person who at that time was Minister of Culture of the DPR stated in a witness interview that the Deputy Prime Ministers of the DPR came from Moscow and had significant influence over the functioning of the DPR. Around the period to which the charges relate, several of the leaders of the DPR maintained ties with individuals from Russian intelligence agencies, the President’s office, and Kremlin advisers. Intercepted conversations regularly contain references to contacting “Moscow”. One example is a conversation between Dubinskiy and Bezler on 4 July 2014, in which Dubinskiy says that Girkin has been in touch with Moscow, and that Moscow does not want Sloviansk to be surrendered. The court also refers to a conversation that Girkin had on 10 July 2014 in which he told Dubinskiy that he was constantly on the telephone trying to get in touch with Moscow to report on the situation. Contact was maintained with various high-ranking individuals in the Russian Federation, sometimes using special communication channels (“the Glass”) and secure telephones supplied by the Russian Federation. For example, Borodai, the leader of the DPR, was in almost daily contact with Surkov between 20 June 2014 and August
5. In an interview on 16 June 2014, Borodai referred to Surkov as “our man in the Kremlin”. It is the opinion of the court that these references to “Moscow” and “the hero city” cannot be interpreted in any way other than as references to the seat of government, and are therefore understood to refer to the authorities of the Russian Federation. Support In their communications with senior figures within the Russian Federation, the leaders of the DPR regularly requested support such as the manpower, military equipment and requisite training. This support was indeed provided. Statements made by representatives and reports by organisations such as NATO, the UN Security Council, the US State Department, the OSCE, and Human Rights Watch all mention the supplies and arms provided to the separatists from the Russian Federation. There are also references to convoys of military weapons which were said to have been brought across the border. This is consistent with what can be heard in intercepted conversations. For example, in one conversation intercepted on 12 June 2014, Dubinskiy says that it has become clear that Russia will provide support, including heavy weapons; in another conversation on 20 June 2014, Kharchenko tells Dubinskiy that the second convoy that came across the border is not what they were expecting; and on 15 July 2014, Girkin mentions expecting a shipment – a big thing that will be very good for “us” and which will need to be received at the border. Although intercepted conversations do not always reveal whether the weapons and supplies mentioned came from private providers or from the Russian government, the Minister of Culture of the DPR stated that Borodai forwarded requests for weapons from the Council of Ministers of the DPR to the GRU. Following approval by the GRU, the weapons were brought into Ukraine via the “Black Zero” (by which the court understands: illegal border crossing). The court also notes that NATO repeatedly called on the Russian Federation to stop providing support and weapons to the Ukrainian separatists. Witness statements also mention funding for the DPR provided by the Russian Federation. For example, the person who at that time was Minister of Labour and Welfare of the DPR stated that the person who arranged the funding received it with the cooperation of the Russian President’s office and that the Russian Federation had been funding the DPR since at least the summer of
6. Support coming from the Russian Federation is also mentioned in intercepted conversations. For example, in a conversation on 13 July 2014, one fighter for the DPR complained about the situation with kit and salaries, to which the response was that “they” are going to Rostov today for a shipment. The intercepted conversations do not generally mention the source of funding within the Russian Federation directly, other than to state that this was often routed via Rostov. The court concludes that this is a reference to the Russian city of Rostov. Several witness statements mention military training programmes for DPR fighters which took place in the Russian Federation. This often involved training in Rostov (again, the Russian city). Intercepted conversations also include references to training programmes and a training camp. In one conversation that was intercepted on 2 July 2014, separatists talked about their urgent need for manpower and when the “men from the camp” will arrive, and on 3 July 2014, a fighter from the DPR said that the guys went “across the river” to train. Again, it is not always clear whether this training was provided privately or organised by or on behalf of the Russian authorities. However, one conversation by the person who at that time was Minister of Defence of the LPR, with which the DPR was cooperating, makes a clear reference to the role of the Russian GRU in this. In that conversation on 15 July 2014, the Minister was told about a training programme that was being provided for ten persons, to which the Minister replied that this should be done through the GRU. Some of the witness statements also reveal the involvement of Russian bodies in training programmes. For example, witness M58, who will be discussed later, stated that he was taken to the FSB and then to a camp in Rostov, Russia, where he received training. After that he was taken to the Donbas region. Coordination and instructions Of particular relevance to the question of whether there was overall control – regardless of the background of the members of the DPR and the Russian Federation’s support for the DPR – is whether the Russian Federation assumed a coordinating role and issued instructions to the DPR. It is the opinion of the court that the case file contains abundant evidence for this. As indicated previously, many intercepted conversations include reports to “Moscow” or people working for “Moscow” regarding the situation on the ground, such as setbacks and successes. A number of intercepted conversations also attest to planning on the part of the authorities of the Russian Federation. For example, in a conversation intercepted on 3 July 2014, Surkov informed Borodai that Antyufeev (court: who became Deputy Prime Minister for State Security of the DPR shortly thereafter) was on his way to Borodai and that “they” will be leaving for the south on Saturday so that they will be ready for combat. Later, on 11 July 2014, Surkov told Borodai that he had spoken to those in charge of “this whole military story” and that they had indicated that they were making preparations and they were going to accelerate everything. Additionally, on 10 July 2014, a leader of the DPR called to say that he had received an order in Moscow to form the first Cossack Regiment of Novorossiya. Intercepted conversations also mention Moscow’s role in specific operations. In a conversation regarding Sloviansk intercepted on 4 July 2014, a DPR commander says there has been communication with Moscow, but that Moscow does not want Sloviansk to be surrendered. The DPR’s Minister of Defence, the accused Girkin, stated in an interview given in July 2014 that this order was not followed because no concrete support was forthcoming. In a telephone conversation on 18 July 2014, two members of the DPR discussed the encirclement of a Ukrainian brigade. One of the two interlocutors stated that he had been in contact with Moscow and that Moscow had indicated that the lives of the soldiers should be spared. In a similar vein, a series of telephone calls between Borodai and a Russian number made on 21 July 2014 is noteworthy. Borodai wanted to speak to the boss, but the boss was not available. Increasingly insistently, Borodai asked if the boss could call him back because he needed advice and instructions on how to handle certain aspects of the MH17 disaster, such as the refrigerated trucks and the black box. Borodai would also like to receive talking points for a press conference. Borodai noted at that point that he assumed that “our neighbours” would want to say something about this matter. It is the court’s opinion that the fact that Borodai talked about “our neighbours” and asked about “the boss”, even though he himself was the highest-ranking person within the DPR, confirms that the boss he was referring to was a representative of the authorities of the Russian Federation. Direct participation of the Russian Federation Reports and communications from various organisations mention shelling and artillery fire on Ukrainian territory, which is said to have been carried out from the Russian Federation. From the first half of July 2014 onwards, Russian soldiers would regularly move across the border and cross-border attacks would take place. One investigation by the International Partnership for Human Rights indicates that there was artillery fire on a Ukrainian encampment close to the border with the Russian Federation in early July 2014, and in an official notice issued on 16 November 2016 the Netherlands Military Intelligence and Security Service also states that, between 11 July 2014 and 17 July 2014, rocket artillery units located in Ukrainian territory close to the Russian border fired on unknown targets in Ukraine. According to the report, the vehicle tracks and traces of firing found showed that artillery installations entered Ukraine from Russian territory. Witnesses have also provided statements regarding Russian equipment manned by Russian military personnel, which crossed the border, fired shells and then returned. Intercepted conversations also confirm that such strikes took place. For example, in a conversation between two members of the DPR intercepted on 12 July 2014, the interlocutors mention that Russia had finally begun to open fire on the Ukrainian armed forces. In another conversation intercepted on 16 July 2014, two members of the DPR - namely the accused Dubinskiy and Pulatov - discuss the problems they were having because they were under fire. Pulatov indicated that Russia could let loose, to which Dubinskiy replied that he has indicated positions on the map that will be sent to Moscow. In a conversation on 17 July 2014, accused Dubinskiy said that Russia intended to fire on their positions from its side. These conversations are just a few examples of a number of similar intercepted conversations in the case file. All of this indicates not only some form of parallel direct involvement but also, and more importantly, coordinated military activities by the DPR and the Russian Federation. To date, the Russian authorities have denied any involvement in the conflict in eastern Ukraine during the period in question. However, with respect to the foregoing, the court finds that the case file certainly shows that funding, men, training, weapons and goods were all provided to the DPR by the Russian Federation. In addition, as of mid-May 2014 at the latest, the Russian Federation had a decisive influence on appointments to several senior positions within the DPR, including those of Prime Minister and Minister of Defence. This gave the Russian authorities considerable influence over the leadership of the DPR. The fact that the Russian Federation did indeed exercise influence is apparent from the fact that the Russian authorities were involved, at times directly, in coordinating and carrying out military activities even prior to the crash of flight MH
7. In view of the above, the court concludes that the Russian Federation exercised overall control over the DPR from mid-May 2014, at least until the crash of flight MH
8. This means that the armed conflict, which was non-international in geographic terms, was internationalised and was therefore an international armed conflict. The court therefore finds that on 17 July 2014, an international armed conflict between Ukraine and the DPR was taking place on Ukrainian territory, and that the DPR was under the overall control of the Russian Federation. 4.4.3.1.4 Combatant status Now that the conflict between Ukraine and the DPR must be viewed as an international armed conflict, the provisions of international humanitarian law governing combatant status apply. The court therefore turns to the question of whether members of the DPR can claim such status. Member of the armed forces of the DPR - Definition of combatant under Article 43, AP I Pursuant to the provisions of Article 43 of the first Additional Protocol to the Geneva Conventions, members of the DPR can only be considered combatants – and therefore only have had the ‘right’ to take part in hostilities – if they were members of the armed forces of one of the combatant states, in this case the Russian Federation. In this respect, the armed forces of the Russian Federation can be viewed as being all the organised armed forces, groups and units under a command that is responsible to the Russian Federation for the conduct of subordinates. Furthermore, these armed forces must be subject to an internal system of military discipline which enforces, among other things, compliance with the rules of international law. Combatant privilege can only be claimed successfully if these criteria are met. Firstly, the court notes that the DPR was not part of the official armed forces of the Russian Federation but rather – as outlined above – was subject to overall control by the Russian Federation. However, the characterisation of overall control is not, in itself, sufficient to conclude that it was under a command that was responsible to the Russian Federation for the conduct of its subordinates. For that, the Russian Federation would also have to accept that the DPR was part of the Russian Federation and take responsibility for the conduct and actions of the fighters under the DPR’s command. The court concludes that this is not the case, because the Russian Federation has denied, and continues to deny to this day, having any control over or involvement in the DPR during that period, and the accused have also publicly denied being part of the armed forces of the Russian Federation at that time. Therefore, DPR fighters cannot be seen as part of the armed forces of the Russian Federation. Since the DPR cannot be viewed as part of the armed forces of the Russian Federation, the members of the DPR also cannot be considered part of those armed forces. For that reason alone, then, they were not entitled to participate in hostilities and are therefore not entitled to immunity from prosecution. The court is therefore not concerned with any of the other requirements for the possible invocation of immunity, such as whether the accused complied properly with the provisions of international humanitarian law. For the sake of completeness, the court notes that the literature argues that the criteria of Article 4(A) of the Third Geneva Convention (GC III) should also be considered when assessing whether accused are entitled to combatant privilege. The court finds that this is incorrect. That article is not concerned with combatants and their privileges and immunities, but rather with the status of prisoners of war. 4.4.3.2 Conclusion The court concludes that there is nothing that points to the existence of any international law limitation on the jurisdictional provisions. The prosecutor, therefore, has the right to prosecute. Since the condition set by the prosecution in its conditional application with respect to combatant immunity has not been met, that application requires no further discussion. 4.4.4 Did the prosecutor forfeit the right to prosecute? 4.4.4.1 Preamble If procedural rules were not followed during the preliminary investigation (if procedural errors or omissions were made) and these can no longer be remedied, the court may attach consequences. A procedural defect refers to the failure to comply with written and unwritten rules of criminal procedure, including statutory and treaty provisions, such as the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). Those rules exist to make effective fact finding and trial possible, while being mindful and respectful of the rights and interests of all parties involved in the criminal proceedings. These are therefore fundamental rules that go to the heart of due process. It follows from the law and the case law of the Netherlands Supreme Court that the procedural errors or omissions in question are necessarily ones made during the pre-trial investigation, including violations of standards during detection of the crime. These procedural defects must also have had a decisive influence on the course of the investigation into and/or prosecution of the accused for the offence for which he is being prosecuted. As the rules violated may be of differing nature and impact, there will be differences in the legal consequences to be attached to the violation. In increasing degrees of gravity, the following consequences may be attached to a procedural defect: its mere observation, the reduction of a sentence, the exclusion of evidence or the barring of the prosecutor from prosecution. When a procedural defect is raised by the defence, the court must first assess whether the facts and circumstances underlying the defence’s argument have been demonstrated and constitute a procedural defect. Additionally, if a procedural defect has arisen, the court will have to make a substantiated decision as to whether and, if so, what legal consequence should be attached to the procedural defect identified. This in turn depends on the seriousness of the procedural defect, the interests of the accused that were violated as a consequence, whether a fair trial was jeopardised by the violation or whether it ‘merely’ constituted a breach of a rule or principle of criminal procedure that does not directly result in an unfair trial, and whether irregularities occurred that substantially affect the reliability and accuracy of investigation results. When considering exclusion of evidence, the court may also consider whether that legal consequence outweighs the foreseeable negative effects of the consequence and whether it does not cause unacceptable prejudice to compelling interests such as establishing the truth, punishing the perpetrator of a serious criminal offence and respecting the rights of victims and their relatives, not least in view of the positive obligations to impose effective punishment arising from the ECHR. In general, the greater the seriousness of the procedural defect and its consequences, the graver the legal consequence the court can attach to it. It follows from Netherlands Supreme Court case law that the gravest sanction for a procedural defect, the barring of the prosecutor, can only come into play in very exceptional cases. The procedural defect will have to involve the officers tasked with the investigation or prosecution having seriously violated principles of due process, which violation, intentionally or with gross disregard for the interests of the accused, has prejudiced his right to a fair hearing of his case. It must also be an irreparable violation of the right of the accused to a fair trial that has not been or cannot be compensated for in a manner that meets the requirements of a proper and effective defence, leading to the court to conclude that “the proceedings as a whole were not fair”. Prosecuting is in such a case plainly unreasonable. The less far-reaching sanctions of exclusion of evidence, reduction of sentence or mere observation must always be considered by the court first, before the most far-reaching sanction of barring from prosecution can enter the picture. Defendant Pulatov’s counsel identified a large number of issues which, in the view of counsel, each in isolation, but certainly taken together, constitute such serious violations of statutory and treaty principles and principles of due process (and so are procedural defects), such that the defendant did not enjoy a fair trial. In the opinion of the defence, the prosecutor has forfeited his right to prosecute and the only proper consequence is that he be barred. The many issues raised by Pulatov’s counsel are enumerated in Parts I and II of the defence’s pleading notes and the submissions subsequently made in rejoinder. The arguments made involve not only a great deal of stratification, but also of conditional interconnection. Moreover, those arguments frequently refer forwards and backwards to arguments made in other places and at other times and in support of earlier and different positions. The court has therefore concisely summarised those arguments in its discussion of them. The court distils from Netherlands Supreme Court case law that the key criterion it must apply when assessing the possible presence of procedural defects to which barring from prosecution may be attached is that of the “overall fairness of the trial” as formulated by the European Court of Human Rights (ECtHR). That overall fairness consists of two pillars that reinforce and complement each other. The first is that the court to whom the case (the indictment) is submitted for assessment examines the case and then, applying the relevant rules, openly, independently and impartially and without bias, arrives at a substantiated judgment in the interest of the accused and the other parties involved. The second pillar is that the accused, or his or her counsel on his or her behalf, has been able sufficiently to counter the evidence and the charges with whatsoever he wishes to raise against them and, to that end, has been able to conduct or commission the counter-investigations he or she desires. He must have had sufficient time and opportunity to do so. Thus, in order for there to be overall fairness to the accused, he or she must have been able to exercise the right to defend him or herself in an optimum fashion and also have the confidence that the court which is assessing his case will, following a thorough examination, arrive at a balanced and objective judgment. What constitutes overall fairness depends in part on the circumstances of the case. Overall fairness, in the opinion of the court, is not only determined by the interests of the accused; it also involves taking into account the legitimate interests of other persons involved in the criminal proceedings, inter alia victims, relatives and witnesses and, in addition, the public interest in the investigation and punishment of the specific crime in question. How those interests should be weighed may also change as the criminal proceedings progress. Furthermore, existing imperfections may still be remedied over the course of the proceedings. Whether overall fairness was achieved is, in principle, something which can best be assessed in retrospect. After all, at that time it will be known whether the court properly weighed all the interests involved and assessed their weight in relation to each other in a proportionate fashion. The assessment can then include the entire trial, as well as, not insignificantly, the final decisions made by the court and how the court’s choices and decisions were substantiated. When the issue of the prosecutor’s right to prosecute comes into question owing alleged procedural defects, there are two points in time when the court must assess whether overall fairness has been observed, first at the early stage in the proceedings when preliminary objections are raised, and second prior to delivering its judgment. The court necessarily is thinking ahead at these two points in time. This also means that, to some extent, the court will also have to assess its own conduct during the trial. After all, it is not only the choices made by the prosecution and the investigative services during the preliminary investigation that determine whether or not one can speak of overall fairness, but also whether and how the court approves, rejects or remedies those choices, the reasoning it uses in doing so and the way in which it accommodates the interests of all parties involved at trial. The position of the Netherlands Supreme Court is that potential procedural defects that do not directly affect the right to a fair trial do not, in any case, meet the threshold for the potential legal consequence of barring from prosecution. Where appropriate, the court will consider whether any other, less grave, legal consequence needs to be attached to a procedural defect identified in this case. Irrespective of that, the court will still consider whether any accumulation of procedural defects that individually do not meet the threshold for barring from prosecution may collectively lead to the conclusion that the accused did not receive, or was no longer receiving, a fair trial. 4.4.4.2 Stance of the prosecution in the proceedings Under the heading ‘Stance of the prosecution in the proceedings’, the accused Pulatov’s defence counsel submits two main arguments that should lead to the barring of the prosecutor from the prosecution. These concern the violation of the presumption of innocence (in particular) in media statements and the ‘summons without prior notice’ of defendant Pulatov with all the resultant consequences for the trial. Violation of the presumption of innocence through disclosures Counsel of defendant Pulatov argued that almost no-one could still believe in the innocence of the defendant or his three co-accused because the Joint Investigation Team (JIT) and the Public Prosecution Service, as well as other authorities, had, repeatedly and in categorical terms, publicly given their opinion on the crimes allegedly committed regarding flight MH17 and on who the alleged culprits were. Counsel stated that at one point defendant Pulatov and his three co-accused were named as the perpetrators of these crimes and their pictures were displayed in front of the entire world’s press. In doing so, the defence has repeatedly indicated, in more or less explicit terms, that this loss of the presumption of innocence must also apply to the judges in this case. The court considers it a given that the JIT and the Public Prosecution Service expressed themselves in quite categorical terms at several press events prior to the trial about what they believe happened to flight MH
9. Up until the press conference on 19 June 2019, this consisted of public statements about which weapon was used, originating from where, fired from where and by which party in the conflict. At the press conference on 19 June 2019, these statements were coupled with the names and images of the four accused in these criminal proceedings, with the clearly repeated announcement that, as suspects, these individuals would be prosecuted for the crimes. When doing so, reference was also made to the presumption of innocence. The statements at all these press events were made by senior representatives of the Public Prosecution Service and the JIT. The court agrees with counsel for defendant Pulatov that the presumption of innocence requirement in Article 6

(2)ECHR extends not only to the court, but also to other public authorities, including the Public Prosecution Service and the JIT. However, the court is of the opinion that it remains a matter of debate whether the statements made during the press conferences by senior representatives of the Public Prosecution Service and the JIT constitute a violation of the presumption of innocence under Article 6

(2)ECHR. After all, even if this were the case, it does not mean that the right to a fair trial enshrined in Article 6

(1)ECHR has also been violated. That would require that the court hearing the case (and all other judges who could potentially hear this criminal case) had been so influenced by these statements that they could no longer make an unbiased decision on the matter. Quite apart from the fact that this bar is set very high by the ECtHR for a panel composed exclusively of appellate judges, and that, at least in the vision of the court, no such influence has ever been assumed by the ECtHR for appellate judges, this court was aware from the outset in broad terms of what had already been stated in the media prior to trial. This was also explicitly stated by the court in its introduction on the first day of court. Over the course of the trial, counsel for defendant Pulatov repeatedly pointed out and issued warnings about all the media coverage, such that for this reason alone it may be assumed that the court was continuously aware of it. The court distanced itself from this media attention. There is therefore no objectively justifiable fear of bias on the part of the court, let alone concrete facts presented by counsel for defendant Pulatov to demonstrate such bias. Moreover, it could only be assessed in retrospect, by another court, whether this court may have been biased, taking into account the course of events at trial, how the evidence was interpreted, the court’s reasoning, and the outcome of these criminal proceedings. Therefore, any violation by the Public Prosecution Service and the JIT of Article 6

(2)ECHR does not meet the threshold to bar the prosecution for violating Article 6

(1)ECHR. The foregoing also applies to statements made in the press or elsewhere by other senior public officials. The court agrees with counsel for defendant Pulatov that members of the Dutch House of Representatives and the Prime Minister of the Netherlands, among others, have expressed themselves in fairly categorical and unsubtle terms about the causes of MH17’s fate. However, those statements – insofar as they pertained to this criminal case or the accused – cannot be attributed to the prosecution and, like the statements made by the prosecution and the JIT, did not contribute to or influence the court’s decisions over the course of the trial or on the outcome of this case. In a similar vein, the court further notes on this point that the contention of counsel for defendant Pulatov that counsel for the relatives adopted the JIT scenario without any critical note and thus had little regard for the presumption of innocence, can hardly be blamed on counsel for the relatives. Indeed, this refers to the commentary provided by counsel for the relatives on the claims for compensation filed by the relatives, which are only eligible for adjudication if the charges are proven. The relatives cannot be expected to conduct their own investigation into the offences to which their claims are linked. So it is only logical that they should assume that that which has been charged will be proven. Needless to say, even this position taken by counsel for the relatives gave the court no premature thoughts regarding the outcome of the case. Communicating the full names and other personal details of the accused, combined with displaying their photographs, at a press conference broadcast globally goes beyond the type of dissemination of information that is usual for criminal cases. Irrespective of the influence this may have had on the general public and the impact that this may have had on the personal lives of the accused, these are not factors that influenced the court, nor when taken in conjunction with the aforementioned statements by the Public Prosecution Service and the JIT about the alleged circumstances surrounding the crash of flight MH17. In addition to the arguments already mentioned above, another relevant factor is that the court knows the identity of the persons to be prosecuted prior to any trial. This is in fact always the case before the start of the hearing, at which time the court is informed even further about the identity and personal details of, and personal information about, the accused than the public was at the press conference. After all, the court receives the prosecution file containing such personal information. Thus, the court is even more extensively and broadly informed about the accused than the general public. The professional judges are in no way prejudiced in their judgments by these disclosures. Therefore, the fact that in the present case this information was openly shared with the public via a press conference did not influence the court in any way, let alone lead the court to adopt a position a priori on what allegedly happened to flight MH17 and on the involvement or even the guilt or innocence of these particular accused. There is no indication from the manner in which the court arranged, conducted or completed the trial that the court had already adopted a particular position on the case. However, notwithstanding the foregoing, in the view of the court, the manner chosen by the prosecution and the JIT to communicate on the fate of flight MH17 and announce the suspects in these criminal proceedings does give pause for thought. Although this method of communication and these announcements did not affect the court’s objectivity, in the court’s view they did contribute to shaping public opinion on this criminal case. This is partly due to the close interrelationship in this case between the statements about what allegedly happened to flight MH17 and the wording of the charges against the accused. In that sense, stating the personal details of the accused at the press conferences and showing their photographs might quite easily be considered to be a potential infringement of the right to privacy protected under Article 8 ECHR. Such an infringement is, however, permissible if it is provided for by law and is necessary in a democratic society. However, the prosecution’s explanation is not one that immediately appears to satisfy the requirement of necessity, nor the proportionality and subsidiarity to be respected in that regard. Informing the general public and relatives of the intention to prosecute is considered by the ECtHR to be an important and justifiable purpose in itself. The court certainly recognises this interest in a case on the scale of and with social impact of the MH17 case. In the view of the court, however, it is not readily apparent that this provision of information could not have been achieved other than through what appear to be carefully selected press events broadcast worldwide, and during which, not only were categorical and definitive statements made by senior investigating and prosecuting authorities about what had happened to flight MH17, but personal details and photographs of the accused were also revealed. The right of the relatives, in particular, to be apprised of the outcome of the investigation, the reasons why and the circumstances under which the alleged crimes were committed, as well as the identity of the suspected perpetrators, is undeniable. However, throughout the preliminary investigation phase, the Public Prosecution Service was in a position to communicate directly with the relatives and to keep them informed of progress, without recourse to the media. The court is at a loss to explain why, when it came to announcing the initiation of prosecution, that was no longer possible or preferable, but instead it was necessary to inform them all at once. Moreover, it is unclear why informing the general public required the names and other details of the accused, let alone their photographs, to be released. After all, the only message that needed to be released to the general public at that stage was that suspects were going to be prosecuted. This could have been done with less information, such as the number of suspects and possibly their nationalities. The additional details were of no added value when it came to informing the general public, even though the caveat that they were suspects not perpetrators was stated explicitly and repeatedly, contrary to the account of counsel for defendant Pulatov, as mentioned above. The additional information concerning the suspects was of added value for the relatives, but they could have been informed of it in other ways. At the same time, however, the court also notes that three of the four accused raised no objection to this course of action, let alone indicated which of their specific interests had allegedly been harmed. The court further notes that, more or less simultaneously with the announcement that the suspects in question were to be prosecuted, international alerts were issued for them and so they were placed on wanted lists together with the usual photographs and personal details, as was to be expected in this case. A simple internet search immediately yields the names and photographs of the four current accused. Given the huge public interest and the active attitude of the media in this case, any search by those means would have quickly revealed the identity of the accused and their details. In the opinion of the court, therefore, the eventual violation of the privacy of the accused as a direct consequence of the proactive and ample provision of information by the JIT and the Public Prosecution Service at the aforementioned press conference alone, was limited. Moreover, as that infringement was of no consequence for the fairness of the trial within the meaning of Article 6

(1)ECHR and the consequences for the accused’s privacy were not solely a result of this procedural error, the procedural error cannot lead to the prosecutor being barred from prosecution. The court will, however, return to this matter when addressing sentencing. Neither is the court’s opinion regarding whether the prosecutor has the right to prosecute altered by the interview in the leading Dutch newspaper NRC Handelsblad with the leader of the team of prosecutors investigating the flight MH17 disaster, which appeared a few days after the prosecution made its final submissions and sentencing request to the court. Although that interview also contains very categorical and sometimes even unnuanced statements by the team leader, which were made outside court while criminal proceedings were ongoing, in essence they are no more than a repetition of what the prosecution had said in court shortly beforehand in its final submissions and sentencing request, which could be followed and watched in its entirety on the livestream. In the opinion of the court, the repetition of those statements at that moment in a newspaper interview will have had little effect on public opinion that had not already been achieved by the prosecution’s final submissions and sentencing request in court. In the opinion of the court, however, the situation regarding the application launched on the internet by the prosecution on 18 May 2022 is different. This application, entitled The MH17 Criminal Files, “is intended to offer the next of kin and the wider public detailed and accessible information from the case file.” The website reads “In this publication you can read, hear and see what evidence there is, among other, in the case file.” The court has already expressed its surprise in the courtroom at the launching of this application, because of the timing and the way in which it was placed online. In relation to the preliminary matters, the court adds the following. The way in which the application was laid out and designed meant that it was not a spontaneous instrument, but one that took a great deal of time, effort and preparation. As such, its launch was a planned action by the prosecution, and the timing of its launch must have been carefully chosen. For these reasons alone, sharing the contents of the prosecution file that was still under review by the court (and therefore also the ‘property’ of the court, and no longer of the prosecution) with a wide audience, in this planned manner and in part using documents from the case file, is contrary to the principles of due process. No one other than the court to which the case has been assigned can or may decide on the dissemination or sharing of the case file in any way. The prosecution should be aware of this, which is why the only possible conclusion is that the prosecution deliberately acted in contravention of this principle. This is all the more true given that, less than two hours before this application was placed online, the court had lifted a restriction on the provision of information to the relatives, who are a party to these proceedings no less, that had been in place until that point. After the restriction was lifted, however, the explicit condition still applied that the documents were only to be used for the criminal procedural purposes for which they were intended. In that light, therefore, the application itself, and above all the timing of its launch and the inclusion of substantive documents, must be seen as being in blatant disregard of an express decision of the court. Moreover, the application lacks any qualification or any reference to the detailed arguments and positions presented by counsel for defendant Pulatov, inter alia regarding the probative value of and degree to which certain documents in the application might be usable by the court. The application has nothing to do with the prosecution’s duty to inform the public in general, and victims and relatives in particular. After all, that duty had already been comprehensively fulfilled at the appropriate time: the hearings for the prosecution’s final submissions and sentencing request. Therefore, the court cannot but view this application as an unsubtle attempt by the prosecution – what is more, outside the court – to convince the world that the prosecution’s case was right. The court is therefore of the opinion that the prosecution cannot reasonably claim that the publication of this application could serve any interest protected by enforcement under criminal law, let alone that this decision was the result of a fair and reasonable balancing of interests. It was unnecessary and gravely detracts from the magisterial performance that can and must be expected of the prosecution. Nor did the prosecution choose to publicly account at the trial for why this application was launched. In a very brief email message to the defence counsel of defendant Pulatov, who rightly requested clarification and explanation, the prosecution merely indicated that it saw no reason to go back on its decision to launch the application. The court is therefore of the opinion that the launching of this application violates the principles of due process. Although the court is extremely displeased by this action on the part of the prosecution, which persists to this day as the application continues to be maintained, the court did not allow this to affect its unbiased and unprejudiced approach to and assessment of the prosecution file and the charges, nor did it trammel counsel for defendant Pulatov’s ability to present a defence in these criminal proceedings. For this reason alone, this procedural defect does not meet the threshold of an infringement of the accused’s and his co-accused’s right to a fair trial that can no longer be remedied, and therefore it cannot lead to the prosecutor being barred from prosecution. The court will, however, return to this matter when addressing sentencing. At this point in the judgment, it is sufficient to conclude that the disclosures made by the prosecution and others provide no basis for barring the prosecutor from prosecution. “Summons without prior notice” In summary, counsel for defendant Pulatov asserted that Pulatov did not receive a fair trial because he was summoned without notice by the Public Prosecution Service, without first having been informed of any allegation against him. The defence refers to this as “summons without prior notice”, while the prosecution refers to the timing of the summons. However, both mean the same thing: issuing a writ of summons without giving advance notification of the existence of an allegation. It is not in dispute that each of the accused in these criminal proceedings was the subject of an official document setting out allegations that long predated the time at which they could have first learned that they had been identified as suspects, namely by following the aforementioned press conference of 19 June 2019 or by reading communications from the prosecution on the matter, immediately before the start and after the end of that press conference, using the social media accounts and/or telephone numbers attributed to them. In those communications, the specific allegations against the accused were relayed or the first time, the fact that a summons would be served on them was announced and they were invited to respond to the allegations. Formally, however, the accused were not summoned until later in 2019, when the writ of summons was sent to their respective national authorities, with a request that it be served on them and a request to interview them regarding the charges contained therein. That is formally the moment at which they became aware of the allegations against them. Counsel for defendant Pulatov has submitted that this rather unusual method of issuing a summons did not allow the defendant to be questioned at the preliminary investigation stage, at which time his position on these matters could still have influenced the decision on whether or not to serve the summons. Furthermore, as a consequence, the defendant was unable to have counter-investigation conducted by the investigating judge in camera, contrary to customary practice. Moreover, as a consequence, to the detriment of the defendant, a different framework for assessing requests for investigation was applied than would have been the case if the investigation had been conducted by the investigating judge, and, as a consequence, he was denied access to the file for longer than necessary. As the defendant was thereby deliberately excluded and remained excluded for a long period of time, the principle of equality of arms was violated, and defendant Pulatov was not given a fair trial. At the very least, the principles of due process were violated to such an extent that this should result in the prosecution being barred. The court first states – as counsel for defendant Pulatov has also submitted – that ‘summons without prior notice’ is a power that the prosecution may use based its prosecutorial discretion, and that this method of summoning is not ‘prohibited’ or liable to sanction under the DCCP. The decision whether and how to prosecute is a discretionary matter, which lends itself only to a very limited degree to any substantive judicial review. With respect to the specific allegations made, it is clear that the prosecution did not act in contravention of any of its own guidelines or policies; after all, issuing a writ of summons is the rule in the event of offences under Section 168 DCC and Sections 287 and 289 DCC. Moreover, no commitments were made by the prosecution prior to the summons regarding investigations to be conducted first by the defence. Therefore, contrary to the examples cited by counsel for defendant Pulatov, the principle of legitimate expectations was not violated. This does not alter the fact that the method of summoning in the context of the entire investigation and prosecution could, under some circumstances, constitute a procedural defect, to which legal consequences could be attached by the court pursuant to Section 359a DCCP. It was argued by counsel for defendant Pulatov that the prosecution deliberately issued writs of summons “without prior notice” entirely for the purpose of restricting the defendant/the accused in his/their ability to proffer a defence, and that for that reason the prosecutor should be barred from prosecution. The court will discuss in greater detail below the consequences of the “summons without prior notice” for the options available to the defence, and the motives of the prosecution in opting for this form of summons, but, with reference to the considerations outlined above, the court first of all states that the court does not regard this form of summoning, as such, to be a procedural defect. It is true that summoning the accused in this manner prior to the public hearing of the case did not allow him to have investigation of his own done in the relative privacy of the office of the investigating judge. Counsel for defendant Pulatov correctly submitted that arriving at a more balanced and complete investigation was specifically a goal the lawmakers intended to achieve by introducing the Position of the Investigating Judge (Further Measures) Act. The lawmakers specifically intended to ensure greater involvement by a judge in the preliminary investigation for the purpose of establishing checks and balances, given the often conflicting interests of parties to the proceedings. However, the introduction of this law did not deprive the court hearing the case of the opportunity to conduct or commission additional investigative work, thus guaranteeing checks and balances. That is also true in this case. Counsel for defendant Pulatov was given the opportunity by the court, and took full advantage of that opportunity, to submit requests for investigation to the court with a view to responding to the results of the criminal investigation by presenting whatever it deemed necessary. The court gave counsel for defendant Pulatov every opportunity to do so and set ample deadlines for filing these requests for investigation. Contrary to the assertions of counsel for defendant Pulatov, the court applied no other criteria in assessing the requests for investigation submitted than would have been the case if this investigation work had taken place under the direction of the investigating judge pursuant to Section 182 DCCP. In fact, even prior to the commencement of the trial, and following consultation with counsel for defendant Pulatov and the prosecution, the court explicitly determined that the defence would not have to make requests for further investigation until the June 2020 series of court hearings, which requests the court would then assess based on the necessity criterion, but in such a way that the outcome would not be substantially different from if the ‘interest of conducting a proper defence’ assessment criterion were applied. In so doing, the court explicitly referred to the principle of equality of arms, which is an integral part of the right to a fair trial. In June 2020, counsel for defendant Pulatov filed the first part of the defence’s requests for investigation. Owing to the outbreak of COVID-19 and the consequent sudden restrictions on communicating with their client, the court allowed defence counsel to file further requests for investigation at a later date. In its interlocutory decision dated 3 July 2020, the court ruled on part of the requests for investigation submitted, having applied the stated criterion, but also deferred a decision on a large part of them because, in brief, it deemed it important in order to be able to assess them that it have knowledge of defendant Pulatov’s position and insight into the remaining requests for investigation to be submitted and the justification underpinning them. At that time, defendant Pulatov had not yet commented on his stance in this trial. Depending on whether or not consultation with defendant Pulatov was required, those remaining requests could be filed in September or November 2020, respectively, according to the decision of the court. Due to the need identified by counsel for defendant Pulatov to modify and supplement its wishes and requests with regards to investigations in the light of discussions with and input from defendant Pulatov, in September 2020, the court granted the defence even more time than previously promised, and the remaining requests for investigation were not submitted until the hearing in November

1. The court ruled on these and on the previously postponed requests on 25 November 2020, explaining that, in assessing the requests, the primary consideration had been their relevance, rather than the time the requests were filed as was customary under case law at that time. That method of assessment, which is more favourable to the defence, is in line with the criterion employed by the ECtHR in its ruling some months later in the so-called Keskin case. In respect of this point, too, the defendant’s interest was not prejudiced in any way. As indicated above, a long period of time was allowed for case management in this court case, during which counsel for defendant Pulatov exercised their rights extensively and were given, and took, ample opportunity to present the defence’s view on many points. Therefore, not being involved in the preliminary investigation was at worst less practical, but, in view of the extended and indeed further prolonged pre-trial phase held by the court, during which counsel for defendant Pulatov was able to present all their requests for investigation to the court in full, as would have been the case with the investigating judge, it can hardly be considered a procedural defect that negatively affected the defence rights of the defendant. The court also extended the opportunity to raise preliminary objections until the first day of the series of hearings held in June
2. Ultimately, however, counsel for defendant Pulatov did not avail itself of this opportunity, rather it indicated at the hearing that day that it had decided not to raise any preliminary objection regarding combatant immunity at that time, but might raise that defence at a later date. In doing so, defence counsel explicitly forfeited the opportunity to raise preliminary objections The court notes that many lines of defence of a potentially preliminary nature were ultimately raised during oral argument, to which the court responds in this judgment in the context of the preliminary matters. In that respect, too, therefore, counsel for defendant Pulatov was not prejudiced in any way. Furthermore, the court fails to see how defendant Pulatov could have been disadvantaged by having to submit his requests for investigation in open court rather than in the privacy of the office of the investigating judge. The number of requests for investigation, the generous use of the opportunities to file them through to rejoinder and the manner of explaining those requests do not attest to any perceived limitation in that regard bearing on counsel for defendant Pulatov. Moreover, explaining the requests for investigation at the hearing also allowed the defence to bring its positions to the attention of the public. In addition, from the very first court day, the defence was free to request an open referral of future requests for investigation to the investigating judge for assessment, or to request that the trial be held in closed session, at least for that phase of the proceedings given the interests that the defence argued needed to be protected. Furthermore, counsel for defendant Pulatov could have commented on the use of the livestream at that stage of the court case. However, defence counsel failed to take any of these actions. Counsel for defendant Pulatov also complained that he had not been invited for questioning until after his summons. This is in fact true of all the accused. The court notes that the prosecution did not submit a request for mutual legal assistance to the Russian Federation to question the accused prior to the summons. It was argued that, in light of previous statements by and responses to requests for mutual legal assistance by the Russian authorities, the likelihood of the timely execution of a request for questioning was extremely low from the outset. That argument fails to convince the court that it was therefore not worthwhile for the prosecution to make the necessary efforts to secure a proper interview. This applies all the more because just such a request, made after the summons with regard to defendant Pulatov, was executed without any problems. This meant that the accused did not have the opportunity to give their perspective on the charges against them, or on the material the prosecution had gathered in support of those charges, prior to their summons. As a consequence, the accused were unable to dissuade the prosecutor from issuing a summons. This may threaten the right not to become further entangled in criminal proceedings. At the same time, the court also notes that, except for defendant Pulatov, the accused did not comment on this point, thereby failing to specify an interest of theirs that was allegedly affected. On 13 November 2020, defendant Pulatov complained for the first time that he had been summoned “without prior notice” and without an invitation for questioning, but at that time the argument was made only in the context of the assessment criterion to be applied to requests for investigation, and not with the conclusion that the “summons without prior notice” meant that he was unable to prevent criminal proceedings being brought against him. It was only when presenting its oral submissions later in the trial that that the defence attached that inference to the failure to question him earlier. Counsel for defendant Pulatov is of course at liberty to make that argument, but it is surprising in light of the assertion that, as a consequence, the defendant was wrongly exposed to a public criminal trial where very grave charges were levied against him. After all, prevention is better than cure. The argument presented by counsel for defendant Pulatov, that complaining was futile because, after the presiding judge had set the date, and after the “summons without prior notice”, the possibility of a writ of summons not being issued was purely theoretical, is incorrect. After all, the alleged interest of a proper defence in conducting preliminary investigation could have been invoked by defence counsel in a request to the prosecutor to withdraw the summons. Merely stating that this possibility was futile without attempting it is, in the opinion of the court, insufficient to show that the defendant’s own position, that serious harm was suffered as a result of the prosecution’s action, is valid. Moreover, the fact that the presiding judge had already set a date for the start of the trial, at the request of the prosecutor, in no way diminishes that possibility. Indeed, given its dual nature as a summons and an indictment, a writ of summons also states the date of the first hearing. In other words, before a writ of summons can be issued, that date must have been set. Therefore, for that very reason, a request for the withdrawal of a writ of summons can only be made once a date has been set. Furthermore, the court notes that defendant Pulatov was given the opportunity to be questioned before the court proceedings began. However, at that interview, which took place under the direction of the competent authorities of the Russian Federation, in the presence of his Russian counsel, and on the advice of his Dutch lawyers, who were already assisting him at that time, defendant Pulatov stated emphatically that he was invoking his right to remain silent. Defendant Pulatov did, however, indicate that he wished to testify before a Dutch court. The way in which this could be achieved without defendant Pulatov running the risk of being taken into pre-trial detention (an interest which cannot in fact be respected in law) was discussed at length, on several occasions, in court. Nevertheless, defendant Pulatov in fact never took advantage of the opportunity to be questioned by a Dutch judge. Finally, as already touched upon above, counsel for defendant Pulatov could also have raised a preliminary objection on this point, which, if it had succeeded, might well have resulted in no further public hearing of the criminal case against counsel’s client. It must therefore be noted that defendant Pulatov did not avail himself of the opportunities offered to him. This was his own choice, and cannot be attributed to the prosecution. Just like the other accused, defendant Pulatov himself deliberately chose not to appear at trial and to rebut the charges against him as he saw fit in court, nor did he avail himself of the opportunity presented to him to be interviewed by the investigating judge. The court concludes that the defendant did not avail himself of several opportunities early on in the trial to convey his account of events thoroughly, with the opportunity to have his testimony considered as to whether the trial against him should proceed. Moreover, the court can but note that, after defendant Pulatov gave his account in the manner of his choosing, and after further investigation was conducted on that basis, the prosecutor still demanded a sentence of life imprisonment, such that it is not plausible that, even if he had been invited for questioning prior to the summons and he had already given his account at that time, this would have prompted the prosecutor to refrain from summons and prosecution. Taken together, all this leads the court to conclude that, under these circumstances, there can be no question of a procedural defect within the meaning of 359a DCCP, as a result of which his defence was prejudiced or he could no longer receive a fair trial. Finally, the court discusses the argument submitted by counsel for defendant Pulatov that, as a result of the “summons without prior notice”, the defendant was denied access to procedural documents for longer than necessary. The court notes that the prosecution did refer to this point in reply, but did not respond to it. Arguably, reading between the lines of the positions of the prosecution that the failure to provide documents from the prosecution file in a timely manner was not so much a consequence of, but rather a reason for the “summons without prior notice”. Be that as it may, it is noted that, after counsel for defendant Pulatov announced that they would be acting in this case, said counsel received the prosecution file at the same speed as the court. In other words, according to the letter of the law, there is no question of any impediment to inspection of case documents as referred to in Section 30 DCCP. After all, said documents were provided to counsel for defendant Pulatov upon request, once it was clear to defendant Pulatov that there were charges against him, and there was no objection made with respect to withholding of case documents. Those documents formed the basis for the trial and the input of the defence at trial. As already indicated, counsel for defendant Pulatov was given ample time and opportunity therefor. The court found no resultant disadvantage. Taking all of the above into account, the court concludes that there is no evidence that the prosecution could not or should not have arrived at the decision to issue a “summons without prior notice” after weighing up all interests in a reasonable fashion. After all, any disadvantages to the accused associated with the “summons without prior notice” could have been challenged by the defendant himself before the start of the trial or were remedied in the course of the court proceedings by the manner in which the court directed. Accordingly, there are no procedural defects, or such defects were remedied during the court proceedings, or remedying them was frustrated by choices made by defendant Pulatov and/or counsel for defendant Pulatov. Under these circumstances, the court concludes that there can be no question of attaching any consequence to any defects, or that the mere observation of them suffices. There is therefore no ground in the “summons without prior notice” for barring the prosecution. 4.4.4.3 Investigation and case file Biased approach to the investigation and prosecution file Counsel for defendant Pulatov argues that the Public Prosecution Service did not maintain a consistently objective and critical view during the investigation into the circumstances of and those responsible for the MH17 disaster. It claims that this has resulted in the investigation and the prosecution file being biased in their approach and content (confirmation bias and tunnel vision) because they were conducted, compiled, and/or structured in a biased and leading manner. It further claims that certain matters were not, or could not, be investigated. A trial that uses, and is based on, the results of such an investigation would not meet the standards and minimum safeguards of a fair trial. According to counsel for defendant Pulatov, these procedural defects should lead to the prosecution being barred. First of all, the court notes that it is only natural that a disaster on the scale of, and with the impact of, flight MH17 would immediately receive considerable attention and interest from the general public, the media and politicians, in part due to its location and the situation there. As long as there is no clarity about what happened, why it happened, and who is or can be held responsible for it, that interest will persist. This proves true to this day. The context and nature of the disaster have also inevitably led to the involvement of multiple domestic and foreign agencies, investigative or otherwise. For example, in the event of an incident involving an aircraft, it is standard practice for the DSB to become involved; indeed, it is the DSB’s statutory duty to investigate such incidents. Lawmakers have recognised that a Dutch Safety Board (DSB) investigation may coincide with a criminal investigation. The fact of the matter is that criminal aspects may play a role in the cause of an air disaster, resulting in an investigation pursuant to Section 132a DCCP. Lawmakers have set statutory provisions that are to be applied in the event of such a concurrence, and there are rules in place to ensure enhanced coordination between the two organisations when they are investigating the same incident. Essentially, these provisions stipulate that the investigation carried out by the DSB must take place separately from the investigation of the Public Prosecution Service, and that, in principle, the results of the DSB investigation may not be used for purposes relating to criminal law or procedure, subject to a few exceptions. The court found no evidence that those provisions were not followed. The Public Prosecution Service conducted independent investigations, and, insofar as the (publicly available) results of the DSB investigation have been entered in the case file, the court will not consider them as evidence, or will consider them only where this is expressly permitted under the DSB Act. The court is familiar with the restrictions imposed by the DSB Act on the use of such information in a criminal case. The court itself also referred to this matter at trial, and the content of those documents was not addressed when the substance of the case file was presented in court. Insofar as inclusion of this material in the file could be considered a procedural defect, it has therefore been remedied. This observation will not have any legal consequences. The defence’s assertion that the Public Prosecution Service erred in terms of procedure because it was guided by statements made by the SBU immediately following the crash of flight MH17 lacks factual basis. While it is true that possible causes for the flight MH17 disaster were mooted by or via the SBU, the mere fact that this occurred and/or that they were inconsistent in their conclusions cannot in any way be held against the prosecution. The prosecution conducted its own investigation, from which it drew its own conclusions, which were submitted to the court for assessment. The Public Prosecution Service provided reasons whenever it used material with potential probative value that had been provided by or via the SBU. In so doing, the prosecution explicitly considered the questionable reputation that the SBU had in 2014 according to sources, which prompted it to exercise caution and to conduct verification and validation studies. Counsel for defendant Pulatov has asserted that, given the SBU's reputation as an investigatory body which does not take human rights and conflicts of interest seriously, even cooperating with the SBU and including material from it in the file constitute a procedural defect resulting in unfair proceedings for the accused and therefore should lead to the prosecution being barred. However, that mere assertion can in no way justify such a finding and the consequence attached to it. Even if this broadly-worded position were correct, it would be a wholly inadequate basis on which to contest the reliability of specific items of evidence in general terms. After all, even information from questionable sources can be accurate and reliable, although it requires extra caution and investigation. Nor does the mere presence of material from such a source in the file render the investigation as a whole unfit as basis for a fair trial, as argued by Pulatov’s defence. After all, it is not an established fact that the witnesses in question were unable to give a statement freely, but at best a ‘real possibility’, to use the words of the defence. Moreover, in this sizeable file, composed of a large variety of potential items of evidence, there are, at most, a few items the reliability of which, if used in evidence, would have to be established and substantiated. Therefore, if the court makes use of evidence introduced via the SBU, it will do so with due caution, in accordance with the applicable provisions. If and to the extent that the prosecution has used (preliminary) findings from other sources, such as the DSB investigation, information from journalists and citizen journalists, and/or suggestions made by other(s) regarding the cause of the MH17 disaster, the court has found that they have, at most, used them as a lead for a possible line of enquiry. That is not, in itself, prohibited or contrary to any principle of due process, but when it occurs it can, at best, only result in evidence in the criminal case if that evidence meets the requirements of the law and has been lawfully obtained by means of its own criminal investigation. This is an aspect addressed by the court when discussing the evidence that it has used. It cannot, however, result in any procedural defects to which consequences are attached. The court sees the assertions of confirmation bias and tunnel vision made by counsel for defendant Pulatov in the same light. The court understands that the assertions relate to the prosecution, but apparently also to the court. The substantiation of those assertions is - largely - the same as that provided for those defence arguments discussed previously with respect to Article 6

(1)ECHR. For this reason alone, these assertions fail to hold water. These assertions also fail to appreciate the responsibility the court has with respect to how it reaches decisions in the cases before it and how it justifies those decisions. Therefore, on this point too, the court finds no procedural defect that gives rise to any legal consequence. Limitations of the investigation and systematic opposition to requests by the defence Citing “limitations of investigation at the scene and counter-investigations” and “systematic resistance to requests made by the defence”, counsel for defendant Pulatov has asserted that there was a failure to investigate many matters that should have been investigated, due to the passage of time and the situation at the scene, or due to deliberate choices made by the prosecution, or as a result of court decisions following a negative reaction from the prosecution on the matters in question. With respect to those matters that could not be investigated due to, inter alia, the circumstances on the ground or the passage of time, the court maintains that this can hardly be regarded as a procedural defect. One, in this case, the JIT and the prosecution, cannot do the impossible and cannot be blamed for not doing it either, particularly since a procedural defect presupposes an active and deliberate act or omission. Moreover, matters which have not been investigated cannot yield evidence that the accused perpetrated the charged offences. For that reason, therefore, this does not constitute a procedural defect, let alone grounds for barring the prosecution. If matters that could have been investigated were not investigated, the court is of the opinion that this is only of importance if those are matters that have a bearing on the questions that must be answered by the court. In those cases where requests for investigation of the matters have been submitted to the court, the court has already made a reasoned decision on them. In making its reasoned decision and assessing the requests for relevance, the court considered the accused’s interest in due process. Given that the court has made its decision, at this point in the proceedings it is not relevant what the prosecution’s position was on those requests for investigation. Indeed, where necessary, the court gave equal consideration to the position of the prosecution and of the defence in arriving at its reasoned decision. The prosecution’s position on matters submitted to the court for consideration can, therefore, hardly be regarded as a procedural defect. For the same reason, the same is true of the court’s decision not to honour requests for investigation. That being said, the requests for investigation that were denied may leave room for the conclusion that there is insufficient or insufficiently compelling evidence in support of the charges, or parts thereof. However, this cannot be construed as a procedural defect either, rather it will be reflected in the assessment of evidence. Composition of the prosecution file With regard to the composition of the prosecution file, counsel for defendant Pulatov continues to doubt whether the file is complete; in other words, whether all relevant documents have been included in the prosecution file. This matter was raised on several occasions during the court proceedings, and consequently the court addressed it several times. This means that, strictly speaking, this is not a matter pertaining to the investigation that precedes the trial. However, because failure to include relevant documents in the prosecution file - the contents of which are known to the prosecution - may constitute an infringement of the principle of equality of arms, it is possible that this amounts to a procedural defect that has, or had, a decisive influence on the fair course of the subsequent prosecution of the accused for the offence in question. Therefore, in the opinion of the court, the alleged failure to include all relevant documents in the prosecution file falls within the scope of Section 359a DCCP. Regarding the composition of the prosecution file, the court stated in court that the prosecution file should include all documents that could reasonably be of importance to any decision to be made by the court. Once it had become apparent to the court that the prosecution had interpreted the applicable criterion too narrowly, for which there is no basis in the law, it brought this to the attention of the prosecution and requested a reassessment. This resulted in further documents being designated by the prosecution as “potentially relevant”, and these were therefore provided - subject to restrictions - to the court and added (or not added, as appropriate) to the prosecution file by the court. In that reassessment, however, the prosecution also identified a number of documents that it did not itself consider relevant, but, by briefly describing the content thereof, allowed the court to decide whether it considered them relevant to any decision to be made by the court so that they could then be added to the case file. A week later, the prosecution again provided several documents to the court with the comment that, in light of a new and broad reassessment by the prosecution, the court might find them “potentially relevant” to any decision to be made. From the course of events described above, the court concludes that, even after it had been explicitly asked to do so by the court, the prosecution failed to conclude itself that certain documents were relevant and therefore needed to be added to the prosecution file, as it should have, but rather disputed the relevance of the documents, or, at most, deemed them to be “potentially relevant” and then left the decision to the court. This does not really attest to the application of the correct criterion for determining the relevance of documents for inclusion in the prosecution file. The court therefore understands the suspicions still harboured by defence counsel on this point. At the same time, the court also considers that the question of what is relevant requires more by way of answer than merely stating that the investigation file may contain exculpatory information, and that the assessment of relevance depends partly on the position taken by the defendant on aspects of the charges against him. Where no such position has been taken or has not been adequately elaborated, and no further questions can be put, the relevance of a particular document is more difficult to assess. Indeed, relevance may depend in part by, for example, on a possible line of defence that may be presented or a request for investigation to be submitted. Fo