ECLI:NL:RBDHA:2022:14037

Rechtbank Den Haag · 17-11-2022 · zaaknummer 09/748004-19 English

Inhoudsindicatie

In the MH17 criminal case, the court acquits one defendant and sentences three accused to life imprisonment. The judgment addresses at some length whether the prosecutor had the right to prosecute. In so doing, it addresses the matter of jurisdiction given that the crime scene is located outside the Netherlands and that the victims are of various nationalities. It also considered combatant immunity in an international armed conflict with respect to jurisdiction. Furthermore, the court discusses the fact that the summons was served without notice “rauwelijks dagvaarden” and the consequences thereof. It also addresses the fact that the Joint Investigation Team (JIT) and the Public Prosecution Service made statements about the cause of the MH17 crash and displayed the personal data and photographs of suspects at press conferences. The court also discusses the consequences of interviews, and the publication on the internet of parts of the case file in a digital application, by the Public Prosecution Service. The court assesses the "overall fairness of the trial", i.e. the right to a fair trial enshrined in Article 6 of the ECHR and finds that there were certain procedural defects in the proceedings, but that these are insufficient for the prosecution to be barred. The judgment also contains comprehensive considerations on the use of statements of anonymous and threatened witnesses as evidence, on tampering with images and intercepted material, on expert evidence and on the use of evidence from questionable sources. Based on the evidence, the court finds that flight MH17 was downed by a Buk missile fired from a Buk TELAR from separatist-held territory. The intent and premeditation to kill the occupants are inherent in the nature of this act. The possibility that the target was mistaken does not exonerate those responsible. The ranking army commander is responsible, as a functional perpetrator, for the downing of flight MH17 and the death of the 298 passengers. Owing to their direct involvement in making it possible for the weapon to be used, the court finds two of the accused to be conventional co-perpetrators. The fourth accused is acquitted as he had no direct role of his own in the criminal acts and is therefore not a co-perpetrator. This accused did, however, accept the use of the weapon and therefore also the consequences of its deployment, but because he had no power over its deployment (beschikkingsmacht), he cannot be regarded to be a functional perpetrator. In the absence of any relevant acts, the court did not find him guilty of incitement or complicity either. In hearing the 306 claims for compensation, the applicable procedural law is Dutch civil law and the applicable substantive law is Ukrainian civil law. The merits of the claims are therefore assessed under the latter and, as a result, it is possible to compensate moral damage, including emotional damage, resulting from acts perpetrated in 2014. The court does not find awarding the fixed sums claimed for moral damage in these in absentia proceedings to be either unlawful or unjustified. The court awards over 16 million euros in damages.

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