MH17: HOW TO MEASURE PREJUDICE

HOW TO MEASURE PREJUDICE – DUTCH JUDGE HENDRIK STEENHUIS DEMONSTRATES IN THE MH17 SHOW TRIAL

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by John Helmer, Moscow
  @bears_with

In the first two hours of the first day of the Dutch trial of allegations of murder in the shooting-down of Malaysia Airlines Flight MH17, Hendrik Steenhuis, the presiding judge, revealed that the judgement for  Dutch court jurisdiction for the case to proceed is inevitable. He did that three months before he has scheduled a hearing on the question. Steenhuis also revealed that a judgement of guilt against the three Russian and one Ukrainian defendants is not less inevitable. 

Judgements in a trial scheduled to run for at least twelve months, issued before lunch was served to the judges on their first day, are the makings of a show trial.

The presiding judge proved to be a cautious man in one respect. He read everything, including his name, from a paper script on his desk. “My name,” he read, “is Steenhuis, I am a judge of the District Court of The Hague.”

The proceedings of The Hague District Court at the Schiphol office building have been filmed and broadcast by the court. Watch the archived videotape of the first day’s proceedings of March 9 here. The video record of the second day, March 10’s proceedings can be viewed here.  The court has now adjourned until March 23.  Steenhuis’s credentials for serving as a judge are not recorded in his court curriculum vitae. He was a state tax collection functionary before becoming a judge.  

He introduced “next to me” the two other judges who comprise the panel which will adjudicate in the trial. The names he read out are Dagmar Koster and Heleen Kerstens-Fockens.

Left to right: Dagmar Koster; Hendrik Steenhuis; Heleen Kerstens-Fockens at the opening of the MH17 trial on March 9. 

Koster was a prosecution investigator for a Dutch state agency involved in cases of human trafficking, then a judge. Kerstens-Fockens worked as an intern for the NATO side in the prosecution of Serbians after the Yugoslav war; she began her professional career as a legal advisor to the Danish Red Cross. 

Two alternate or reserve judges were also identified by Steenhuis. They are Daan Glass, a former state prosecutor;  and Edith Poppe-Gielesen. She started as an official of the Dutch aviation administration. The official biographic records of these five judges appointed by the Dutch Government reveal not one who has experience of private practice in defence  of any kind, civil or criminal. All five were appointed judges after state training; their official biographies provide no details of what the training was or the institutions awarding their legal credentials.  

Left to right: Steenhuis reading the names of his fellow judges from pages on his desk; Daan Glass; Edith Poppe-Gielesen.

Despite the presiding judge’s acknowledgement that media and international “interest in this case is huge” (Min 9:27), no transcript is available of the day’s proceedings to read, although a transcript has been made. 

In his opening Steenhuis claimed it was forbidden to make video recordings for re-broadcast. The lack of a document or film archive means the Dutch are restricting the press to presence at a designated courtroom in the Schiphol building and to listen there, making notes as the proceedings unfold. The Dutch Government is also deciding who may attend from the press, and who may not. The court’s livestream link acknowledges it is live; no recovery is possible, officially.  

Source: https://www.courtmh17.com/

“Is the case ready to be dealt with on the merits,” Steenhuis read from his script (Min 16:08), “or is further investigation necessary? These are questions that today are on the agenda.” In the five hours which  followed,  Steenhuis did not address these questions, but he did rule on them. 

The official court summary omits most of the rulings the judge issued on the day. 

Steenhuis acknowledged the case file prepared by the prosecutors was incomplete at the time they announced their indictments last June; for details, read this. According to the Steenhuis script for March 9, the case file – that is the prosecution indictment — has now expanded to 36,000 pages long. He omitted to say that this is the complete and final version. He acknowledged that the Russian and Dutch lawyers representing Oleg Pulatov – first identified by Steenhuis in his third minute as  “the accused Pulatov” (Min 3:20) – have received a copy; they have reserved the right to challenge, Steenhuis announced, whether the evidence it contains is admissible, and whether additional investigation is required. 

“It goes without saying that a defendant is innocent until proven guilty by law” (Min 23:56), Steenhuis said this once; he went without saying it again. In his reading, the rights of the victims – the 298 passengers and crew on the flight —  and their next of kin were given more than triple the number of script  minutes than the rights of the accused. The term “presumption of innocence” was not mentioned in Steenhuis’s recital of the Dutch criminal procedure rules which follow indictment by prosecutors (Min  23:04). The defendant’s rights, according to the judge, start with “due process, a fair trial” (Min 23:36). He went on to spell out, at greater length, the rights of victims and next of kin to include the right to “explicitly address the accused who is standing trial whereas [sic] the court has not yet reached an opinion as to whether a criminal offence has been committed or whether the accused is punishable.” (Min 1:03:05). 

“Everyone should respect the general standards of decency”, Steenhuis declared (Min 1:04:05). He did not mention the standard of custody of evidence included in the indictment, nor the standard of proof for the judges to adjudicate. “The general standards of decency” have not been defined in the Dutch Criminal Code.  For the Dutch jurisprudence governing this trial, click to read. 

Also missing from Steenhuis’s script is the idea that for the defendant to enjoy the presumption of innocence, it is up to the prosecutors to prove their case, not for the defence to prove its innocence. Steenhuis implied the reverse. “It is important that counsel can shed light on the defendant’s standpoint” (Min 25:49). He then qualified this: “In this case we are focusing on the result of the criminal investigation.” The indictment “will be discussed [sic] at this hearing, and that [indictment] constitutes the framework for hearing and for adjudicating this criminal case” (1:06:18). This is a peculiarity of Dutch law; it is impossible in the Anglo-American, Australian or Canadian courts. 

But why is Dutch criminal law applicable to the shoot-down of MH17? Why does the Dutch court have jurisdiction over actions Steenhuis acknowledged as having taken place outside The Netherlands, in a civil war being fought by Ukrainians, involving an attack on an aircraft allegedly by three Russians and a Ukrainian? 

Steenhuis said he accepted the defendant’s right to challenge this (Min 1:12:07). More, he added: there had been correspondence before the March 9 hearing in which the defence lawyers said they “cannot yet take a position on the question as to whether or not it will file such preliminary objections… The main reason is that the defence only received the file only a short time ago” (min 1:13:12). The preliminary objections Steenhuis noted as having been filed were to the Dutch court’s jurisdiction and to the admissibility and completeness of the prosecutors’ evidence.    

 “Strictly speaking”, Steenhuis admitted, he could not commence the trial until these jurisdictional and other objections had been adjudicated. He also confirmed that the defence counsel had requested that a hearing and adjudication of these objections should be delayed until June 8, 2020 (Min 1:14:33).   In practice, this meant the three-judge panel had to rule first before the prosecution could start its presentation of the case; for this, the prosecution presentation should wait until after June 8.  

What happened next was that Steenhuis decided to start the presentation of the prosecution case against Pulatov immediately (1:18:23). 

THE DEFENCE OF OLEG PULATOV

The defence attorneys for Oleg Pulatov – left, Yelena Kutyina, the Russian attorney for the defence; centre, Sabine ten Doesschate; right, Boudewijn van Eijck.  For the charges against Pulatov, a former officer of Russian military intelligence, and his three co-defendants, read this. 

Pulatov and his Russian lawyer have accepted the Dutch writ of summons to the court on the allegations; this was agreed wirth the Russian Prosecutor-General, the Ministry of Justice, and a district court in Pulatov’s home town of Ulyanovsk. Pulatov will not, however, surrender himself to the Dutch police and be held to appear at the trial. What of the three others accused – Igor Girkin, Sergei Dubinsky, and Leonid Kharchenko? 

Steenhuis read out his script details of the due process accorded to them. In Girkin’s case, the process started with the Dutch prosecutors’ request to the Russian Prosecutor-General to serve the writ of summons on Girkin at his address of registration in Moscow; the request was made on  October 28, 2019. That request then went to the Russian Ministry of Justice. In January,  the Justice Ministry said the writ could not be served on Girkin because he had not appeared in his local court. Efforts to serve Girkin by a local policeman at the front door of his address failed; no one answered the door bell (min 1:30:11). Neighbours, including an elderly lady, told the police they had not seen a man at the address.

Steenhuis ruled that service of the summons had failed; attempts to contact Girkin by the Dutch using Skype, email and VKontakte  also failed. The judge reported that Girkin had told the Dutch and Russian press that he did not recognize the jurisdiction of the Dutch court. Notwithstanding, and without a formal decision on the Dutch court’s jurisdiction to proceed, Steenhuis ruled that “the court has no doubt that [Girkin, Dubinsky and Kharchenko] are all aware of these criminal proceedings” (1:54:48). In consequence, “in these circumstances.. it may be assumed that they have waived their right to be present” (1:55:44). 

Note this isn’t a ruling that the three have been lawfully served. It is far from a ruling that the court has legal jurisdiction to pursue them at all. Nonetheless, according to Steenhuis, “the court will allow the due process to prevail and… in the case against Girkin, Dubinsky and Kharchenko we will proceed” (1:56:05). 

Steenhuis omitted to cite a Dutch statute, Dutch criminal procedure, or Dutch case law precedent to allow this ruling.

THE PROSECUTION IS SEATED AT THE RIGHT OF THE JUDGE, ABOVE THE DEFENCE

Left: the prosecutor’s bench to the left and at the same level as the judges’ bench.  The three defence attorneys can be seen seated below the podium, in the centre.  Right, the lead prosecutor, Dedy Woei-a-Tsoi, commencing  her presentation of the case without a ruling by Steenhuis that the court has jurisdiction to hear it. Tsoi has included in her presentation an attack on alleged Russian espionage and disinformation in the press. Referring to published leaks of documents of Dutch intelligence and other parts of the indictment file, Tsoi told the court the documents were genuine. But she said, the leaks have been “part of a cynical misinformation campaign that has gone on for more than five years now… Only The Netherlands, Belgium, Australia and Malaysia had access to all the published documents. So far none of the four states have been able to identify the leaks. We must take into account published information … has come from the possibility of a successful GRU hacking 

in one of the four countries.’’ Steenhuis did not challenge the admissibility or relevance of these allegations. Read the leaked documents and what they mean for the prosecution’s case here   and here. 

The Steenhuis ruling to allow the prosecution to begin its case is also a legal nonsense, for Steenhuis himself had already ruled that whether or not he and his bench had jurisdiction to allow the case to start was an issue to be postponed for the lawyers to argue on June 8, 2020.

“Of course”, Steenhuis wound up, “the suspects are free to be present at a later point” ( min 1:56:26). This is a judgement by the judge that there will be a “later point” in the trial. It is a judgement before there is argument on whether the case can proceed. In the lawyers’ trade, that’s called prejudice.

by Editor - Wednesday, March 11th, 2020

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