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JIT: . 20.11.18

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EXIF

Photo ANP Robin van Lonkhuijzen
Introduction

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Fred Westerbeke - Chief Public Prosecutor of the National Public Prosecution and Coordinator Joint investigation Team
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Wilbert Paulissen - Head of Criminal Investigation National Police

On May 24, 2018 the JIT organised a press conference during which it presented and explained a new conclusion: The BUK TELAR that took down flight MH17 belonged to the 53rdAnti-Aircraft Missile Brigade of the Russian Federation. This conclusion is based on extensive research carried out by the JIT and further clarified through, amongst other things, an animation. The reactions and support from many countries and organisations in the days following the press conference show that the JIT investigation is still highly respected by both national and international parties.

The international team, which operates from Ukraine and the Netherlands, will continue to work towards its ultimate goal: to find the true cause of the MH17 crash and to bring the individual(s) responsible before the appropriate court of justice. The JIT has not yet completed its task and will carry on its investigation. Regarding this investigation, we can report that the appeal for witnesses during the press conference has led to new, useful tips which will be taken into consideration. 

This magazine does not present new results, since an ongoing investigation such as this one may be jeopardised by sharing its results at this stage. We will, however, give a summary of the recent research period and we will discuss matters pertaining to the investigation in several articles. For instance, members of the research team explain what makes this investigation so unique and why it is so special to them. We will also look ahead: If the Netherlands Public Prosecution Service decides to prosecute, the case will be tried publicly before a Dutch court. One of the articles gives an idea of what such a Dutch criminal hearing might be like. Another article presents your rights as surviving relatives or loved ones during a criminal trial.

We have attempted to compile an informative magazine. We do realize that not all of your questions will be answered yet. We trust to have shown you that we are still doing everything we can to provide those answers in the future. We remain confident in our task.

Fred Westerbeke and Wilbert Paulissen

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How much longer will it take
It is probably the most frequently asked question in recent months to the 'face' of the Public Prosecution Service in the investigation into the downing of flight MH17.
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Press conference 24 may - map with emblem 53e
Image from animation press conference 24 may 2018
I said it on 24 May, when we gave the last update and again made a call for witnesses: in any case shorter than it has already taken. And the moment will come when we say: we are going to make a decision now whether to proceed with prosecution or not."

This is how the interview starts which Chief Public Prosecutor of the National Public Prosecutors Office Fred Westerbeke gave to Opportuun Magazine of the Public Prosecution Service in October 2018. In the interview, Westerbeke mainly discusses this years developments in the Joint Investigation Team's investigation into the crash of MH17.

Westerbeke offers a glimpse behind the scenes of the investigation team and gives an overview of other events this year that were picked up by the media. In addition to the press conference on 24 May, attention was also drawn to the procedure in which the Netherlands and Australia announced that they would hold Russia, as State, responsible for the crash, and the press conference in which the Russian Ministry of Defence announced that the rocket allegedly had been delivered to Ukraine.

Westerbeke emphasizes that finding witnesses - and thereby obtaining witness evidence - is particularly complicated in this investigation due to the war situation. He also expresses his appreciation for the investigation team that still is as motived as always.

At this moment, the investigation team cannot comment on the results of the press meeting that took place on 24 May.

NB: This article is published in Opportuun November 2018 magazine of the Dutch National Public Prosecution Service. Attachment

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Family counsellors involved

"To be allowed to do this, is a privilege

Theo Vermeulen and Sylvia van Braak were driving their car when they heard the news on the radio at the end of the afternoon on Thursday 17 July 2014, saying that a plane that had left Schiphol Airport on its way to Kuala Lumpur, had crashed. "We actually immediately thought that we, as national coordinators of the family counsellors, would receive a message that an appeal was going to be made to us. So we went straight to work. "

Before Friday morning they had forty couples of family counsellors ready, and by Sunday morning, that number had grown to 120 family counsellors and coordinators. "It was in the middle of the summer and many police officers were on holiday, but there were so many who called from their holiday address ...", Theo says. "Some even rescheduled or cancelled their holidays," adds Sylvia.

First contact
The first thing the family counsellors had to do was to visit the relatives, to fill in forms necessary for the purpose of identification and to collect private items with which victims could later be identified. Not only in the Netherlands: this also happened in the countries from which the other victims originated. In total there were 298 victims from ten countries."Things like toothbrushes, but also photos from the departure hall at Schiphol. But if the colleagues were with the next of kin, they would of course hear the stories and the sadness," according to Theo.

"In other cases when a crime has been committed, then the family counsellors come with information from the investigation team. Now there were so many images and a lot of misinformation via the media", Sylvia says. Theo: "On screen people were carrying personal, recognisable items around. That was so difficult for the relatives, and it still is today. For all these issues, the family counsellors were also the first point of contact."

If desired, the family counsellors went along with the relatives to Eindhoven Airport when the bodies returned, they were there when personal belongings were returned to the relatives and, at the request of the court in The Hague, they helped collect the necessary signatures for the applications for the death certificates. But they were also the channel for verified information from, among others, the Joint Investigation Team. "The information that we provided had been duly checked," according to Theo.

Always available
Meanwhile, the family counsellors are back to their normal daily work in the various police units. That is also necessary, Theo and Sylvia say, because if the contact remains, the relatives are always reminded of the terrible moments of the crash when they see the police officers involved.

Now, only Theo Vermeulen and Sylvia van Braak are the contacts for the relatives. But only for the people who have indicated that they are interested, not everybody wants to keep contact.

And one of the two is always available for the police team management or the Public Prosecution Service. Even on a short holiday, the secured laptop always comes along in case messages have to be sent quickly. Via email, people everywhere in the world, if at all possible, are actively informed when information is provided by the JIT or another government agency.

Of course the email address is also meant for questions that the next of kin may have. Theo and Sylvia then see to it that these questions are answered. For more than two years now, Sylvia and Theo have maintained these contacts, also with relatives of the victims from the other nine countries.

Privilege
Theo and Sylvia still think it is "a privilege to be allowed to do this", they say and the Amsterdam police unit makes sure that they get the time to do what they have to.

Theo and Sylvia are also involved in the possible next phase of the investigation, if it comes to a trial. "We have looked around at the intended court building", Sylvia says, referring to the Justice Complex Schiphol. This complex has since been designated as the location for if and when it comes to criminal prosecution.

Images from Schiphol Airport
The most special moment for Sylvia and Theo was when they looked at the images from Schiphol with the relatives. It took a long time before the images were available, and the relatives could see the last images of their loved ones. Theo: "We have heard the stories, seen the happy holidaymakers and experienced the emotional moments of the families. Recognitions, memories. "Sylvia: "Emotional and dignified. Practically all of the victims could be seen in the images."

Australia
In Australia (38 passengers on board flight MH17) there is a network of family liaison officers comparable to the one in the Netherlands. David Nelson, Detective Superintendent of the Australian Federal Police (AFP): For the next of kin a special website was set up by the Australian Federal Police where families can find information from the JIT or from other authorities. In the Netherlands there is a similar portal.

We are committed to the investigation. In our local offices in the Netherlands and the Ukraine we still have personnel working on the investigation. In addition, the Australian federal government has allocated in excess of 50 million dollars (over 31 million euros) in the budget over the next four years. The money is to support Australias ongoing involvement in the prosecution phase and importantly, to provide funding for relatives of Australian victims to take part in any future court proceedings in the Netherlands, according to Nelson.

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Incomparable investigation
The investigation into the crash of the MH17 is beyond all bounds and is incomparable with other investigations, according to the criminal investigation prosecutor of the National Public Prosecutors Office and the leader of the Joint Investigation Team (JIT).

Anyone who regularly follows the media is probably familiar with the term TGO when it comes to (police) investigations into very serious offences. TGO stands for Large Scale Investigation Team. In practice, this means that the head of the police investigation unit together with the criminal investigation prosecutor of a regional district public prosecutors office (Public Prosecution Service, hereafter: OM) decides on deploying the necessary amount of investigative capacity as quickly as possible. As a rule, this applies to 20 detectives, whether or not supplemented with specialists and led by one or two prosecutors. TGOs usually involve crimes against the life of one or more persons. In addition, investigative services and OM still conduct project-based investigations with which specialised teams sometimes work for years. This often involves investigations into serious, organised crime.

Beyond all bounds
The investigation into the crash of the MH17 is beyond all bounds and is incomparable with other investigations, according to the criminal investigation prosecutor of the National Public Prosecutors Office Evert Harderwijk and the leader of the JIT, Gerrit Thiry. "There are more investigations with many victims, there are more investigations of which the crime scene is abroad, there are more investigations where the crime scene is not directly accessible and there are more investigations that are legally complex and take a long time, but in our career of more than 30 years we have not previously participated in an investigation as large and as wide as this one", according to the investigation specialists.

In his capacity as criminal investigation prosecutor of the National Public Prosecutor's Office, Evert Harderwijk supervises the investigation where it concerns the contents of the investigation. A criminal investigation prosecutor is responsible for the quality of the prosecutors of his public prosecutor's office and together with the team leader of the criminal investigation department he is responsible for the quality of the investigators and the division of the investigative capacity. "I especially tried to enable the prosecutors and police officers in charge to do their work, to make sure that the investigation could be done in the right way." Harderwijk mentions the somewhat older but very important example of the return of the bodies of the victims. "That had to be done carefully and respectfully, and after their identification the bodies had to be returned to the next of kin as soon as possible. However, the possible remnants of any weapon had to be safeguarded, in the interest of the investigation and the discovery of the truth. We only had one chance that time and we had to grab it, with a view to possible legal proceedings."
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Many involved
"Hundreds of people were initially working on this investigation under the supervision of eight prosecutors. Depending on the necessity, people have joined in the course of time, but manpower has also left the investigation," Gerrit Thiry says. And, of course, expertise from other services has been required. "What about radar experts, missile specialists, weapon and explosion specialists, aviation specialists?"

Still a large scale operation
The team that was initially involved was reduced in the course of the investigation, but has recently been extended to some 50 people. That is still a very large team. "Other expertise is needed now than in the beginning of the investigation, so we call upon that expertise", says Gerrit Thiry. From the beginning, he has been in charge of the day-to-day management of the investigation team which has its offices at a fixed location in the middle of the country. The team also includes people from the other JIT countries. "We all work together", according to Thiry.

"The involvement with the case and the international interest in the investigation are still enormous. Sometimes it means that you have to inform and involve a lot of parties in the decision-making process", according to Harderwijk.

We will go on
As you know, the investigation is not yet finished. At the moment, for example, the results of the public call for new relevant information made in May 2018 are being investigated. But for the moment we cannot and do not want to say anything about the contents of those results. However, the investigators want to say that they will continue, just until it is sufficiently clear who is responsible for the events on 17 July 2014. "Only then and not before we will stop."

'This investigation grabs you by the throat'
Gerrit Thiry, team leader of the National Police, has given an interview in the internal police magazine Blauw  The article was published in April 2018.

Read the full article in the attachment

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Rights of victims and next of kin
The criminal investigation into the events on 17 July 2014 is still ongoing. The Public Prosecution Service has not yet decided whether, and if so when, it will proceed to the prosecution of one or more suspects. It is therefore not known when the possible criminal case will be heard by the court.

If the Public Prosecution Service decides to prosecute, you will be informed in detail about your rights. In that case, in cooperation with the National Police and Victim Support Netherlands, a special meeting will be organised during which information will be given about the way in which criminal proceedings are conducted in the Netherlands and the rights of the next of kin during such a procedure. During the criminal proceedings you will be periodically informed about what is happening in the courtroom, even if you are unable or unwilling to attend.

Despite the fact that we have not arrived there yet, we now provide you with a brief, general explanation of the rights of next of kin in a Dutch criminal trial.

Rights of next of kin in general
The rights of next of kin in Dutch criminal proceedings are described in the Code of Criminal Procedure. Who is considered a next of kin within the criminal proceedings is also set out in the Code of Criminal Procedure. In short, this concerns partners, (grand) parents, (grand) children, brothers and sisters or cousins.

Below you can read briefly and in general terms about the rights of surviving relatives, based on the current regulations.

A relative is entitled to information about the criminal case. The Public Prosecution Service, Victim Support Netherlands and the National Police work together to provide victims and next of kin with the correct information in a timely manner.
A relative is entitled to receive help from Victim Support Netherlands.
A relative is entitled to a meeting with the public prosecutor prior to the hearing.
If relative wishes to have important, relevant information added to the criminal file, he can request the public prosecutor to do so.
A relative is allowed to submit a written victim statement in which he can describe what the crime has done to him and how he looks at the case.
During the criminal case, a victim or relative is allowed to use his right to speak so he can speak about the consequences the crime has had on him and how he looks at the case. 
A relative may request to be informed of procedural documents that are of interest to him.
A relative can be assisted by a lawyer or a person of his choice. The lawyer is free of charge for victims or next of kin from the moment the prosecution is instituted and if the offence has been committed in the Netherlands (or aboard a Dutch aircraft or ship).
If his damage has not yet been reimbursed in another way, a relative may submit a request for compensation. This may concern the costs for the funeral and the damage caused by missing out on living expenses. Next of kin cannot claim compensation for non-material damage within the criminal proceedings.
Your rights as a next of kin in the MH17 criminal case
When formulating the rights of victims and next of kin, the legislator naturally did not take into account a case of this size. The Public Prosecution Service has not had to deal with so many next of kins in one case before. The impact that the downing of flight MH17 has to this day, the immense number of next of kins and the fact that they live all over the world, requires a tailor-made approach.

Partly your rights have been filled in from the first moment: you have received assistance from family (police) counsellors and case managers from Victim Care Netherlands. You are also periodically informed by the JIT about the progress of the investigation, although we realise that the need for information will always be greater than the extent to which the JIT can share information.

Part of the rights mentioned above can only be exercised in the run-up to and during the trial phase.

With a view to the position of all next of kins, we will look for a way in which these rights can be fulfilled, without disproportionately burdening the trial at the hearing. That is a challenging job, in which the Public Prosecution Service is working together with the National Police and Victim Support Netherlands.

The court will be in charge during the hearing. This means that the judges who conduct the hearing also determine the manner in which certain rights are exercised, such as the right to speak.

In conclusion
The investigation is still in full progress and whether this will lead to a criminal case has not yet been decided. However, preparations are already being made to make a hearing in court possible in order to avoid unnecessary delays. Once it is clear that there will be a criminal trial, the public prosecutor, the National Police and Victim Support Netherlands will organise a meeting during which you will be informed about your rights in this specific case.
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Judicial Complex Schiphol
In July 2017, the JIT countries jointly decided that suspects of the downing of flight MH17 can be prosecuted in the Netherlands according to Dutch criminal procedural law. 
The criminal trial, if it comes to that, will be heard by the Hague District Court. The hearing will then take place at the Judicial Complex Schiphol (JCS).

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What does a Dutch trial look like in general?
The investigation into the downing of flight MH17 is particularly complex and unique. The same applies to a possible hearing and the defence that will possibly be conducted by lawyers in this case. The presence or absence of defendants in the court room and the question whether or not defendants will be represented by lawyers are important factors in the course of a criminal trial. It is now hardly possible to give a realistic picture of what a criminal case will look exactly like. In this article we explain how a Dutch criminal case proceeds in general.

Summons
No criminal case without a criminal investigation. If the Public Prosecution Service is of the opinion that the investigation has provided sufficient evidence to prosecute one or more defendants, the writ of summons of the defendant(s) will be drawn up.

The summons includes the crimes with which the accused person is charged (also called the indictment), and the date and time when that defendant must report to the court, as well as the address of the court. The criminal proceedings begin formally on this date and time.

If a defendant appears before the court on the correct date and time, this is proof that he was informed in time and therefore, the summons is valid. If the defendant does not appear, the court will check whether the defendant is or can be aware of the hearing.

By default or after trial
If the defendant is not present at the hearing, but the defendant is or can be aware of the hearing, the court can enter a default. This means that the hearing against the defendant may start, even if that defendant is not present. We then refer to a trial by default.

Because much value is attached to the presence of a defendant at the hearing, the court can decide not to proceed with the actual trial, but to continue later, to make sure that the defendant has been given the opportunity to be present at his criminal case.

If the defendant is present or does not appear but is duly represented by a lawyer, we refer to a defended action.

Hearing in court and adjournment of the proceedings
During the hearing, the court discusses the case file. This does not mean that the court will read the entire file, but that the most important findings of the investigation will be discussed in public. The lawyer of the defendant can ask questions about the investigation and the way in which the evidence was collected and will certainly do so in a case like this. Other defences may also be brought forward, for example on the admissibility of the Public Prosecution Service. These questions and defences may lead to the court deciding to conduct further investigations. These further investigations may, for example, consist of additional examinations of witnesses, questioning of experts or ordering additional investigation activities.

If this happens, the hearing of the case will be temporarily suspended. We call this an 'adjournment' of the case, something that occurs in almost every (medium) large criminal case. The court can then refer the case to the examining magistrate (the investigating judge), who then organises and conducts the examinations. Such examinations generally do not take place during the public hearing, but in the (private) office of the examining magistrate. The lawyer and the public prosecutor can attend these sessions and will also be able to ask questions to the witnesses or experts themselves. Aggrieved parties or next of kin cannot attend these examinations. This part of the criminal proceedings thus takes place behind closed doors. The findings of the examining magistrate and the statements of the witnesses and experts will be included in the file afterwards. This will make them part of the case file and the court will be able to discuss them at a subsequent public hearing. Then the public can also take note of what the witnesses and experts have testified.

Sometimes the court decides that they wish to examine the witness or the expert themselves, in which case such an examination does take place during the public hearing.
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Position of the victims and the relatives
During the hearing, the court will also consider the consequences that the criminal offence has had for the victims or - as in this case - the relatives. If victims or relatives have prepared a written victim statement, it forms part of the file and such a statement will also be discussed at the hearing. If victims or relatives want to use their right to speak, this is taken into account in the planning. And if victims or next of kin ask for compensation, the so-called 'aggrieved partys claim for compensation' will be discussed at the hearing and the defendant - if present - will be asked to respond.

Closing speech and pleadings
If the file has been sufficiently presented and all witnesses and experts have been heard, the Public Prosecution Service will give its view on the case and the evidence. The public prosecutor does this by way of his closing speech, in which he presents the means of evidence, draws conclusions about the evidence and announces the punishment or measure demanded by the Public Prosecution Service.

After the Public Prosecution Service, it is the lawyer's turn to give his view on the file and the evidence contained therein. He does so by way of making a plea.

The public prosecutor may then respond to the defence counsel's plea after which the defence counsel can respond once more to the public prosecutor. Finally, it is the defendants turn to say something.

Judgement
After the defendants reaction, the court closes the hearing and determines the date on which the judgement will be rendered. The law stipulates that the court must give judgement within two weeks after the investigation has been closed at the hearing. Sometimes a court needs more time to draw up the judgement. For that reason, in major cases, the investigation is often not closed after the hearing, but an extra session is planned to still close the hearing on that later date. Two weeks after that postponed closure, the judgement will be pronounced.

Appeal
If the public prosecutor and/or the defendant disagree with the judgement, they can (both) lodge an appeal. In case of an appeal, the Court of Appeal will re-examine the case. This hearing also takes place in public and principally takes place in a similar way as the previous hearing at the first instance court. The judgment of the Court of Appeal is called a ruling.

Cassation
If the Public Prosecution Service and/or the defendant disagree with the ruling, they can lodge an appeal in cassation with the Supreme Court. The Supreme Court does not give an opinion on the criminal offence, but 'only' assesses whether the Court of Appeal correctly applied law and jurisprudence and whether the decisions in the judgment are sufficiently motivated and understandable.

If the Supreme Court is of the opinion that the judgement does not meet all legal requirements, it may refer the case to another Court of Appeal, which will then have to hear the case again.

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Open source research
"Bellingcat's information is seriously being looked at and included in the investigation. In the interest of the investigation and because of restrictions in relation to privacy, the Joint Investigation Team (JIT) can not elaborate on information about individuals."

Almost everyone is familiar with the publications of the research collective Bellingcat. Based on 'open sources', i.e. research in open sources, they get important information on the table. Also valuable information about the downing of flight MH17.

Gerrit Thiry, team leader of the Netherlands National Police: "Of course, the JIT itself also conducts research in open sources. The police have extensive experience in this field, and we have also found a lot of information ourselves. But a big difference with the gathering of evidence by Bellingcat, or others that are involved in these matters, is that the JIT cannot rely solely on open source material. Our investigation must provide proof that can serve as conclusive evidence in a criminal court. We cannot afford any inaccuracies in this respect. That is why we also pay a great deal of attention to the validation of our findings, with or without experts certified by the examining magistrate. And the JIT must naturally comply with the rules of criminal procedure and international legal assistance.

Validation
Bellingcat regularly forwards its research results to the JIT. "We always take this information seriously and make our own assessments. Sometimes it is a starting point for new JIT investigations, sometimes the information is already known to the JIT, but we have not yet made it public. We always check whether the results match information from our own criminal investigation, or whether information in the JIT investigation points in a different direction. And if the information was not yet known, we always investigate whether the JIT itself can also establish the results of Bellingcat. For example by following up on the research method followed, by engaging forensic experts (such as the NFI or KNMI) and by making combinations with other techniques of criminal investigation. It is important to remember that not everything that appears on the internet is true. You will always have to verify and validate the published information."

TV program Opsporing Verzocht
"It is not new that citizens contribute to an investigation. The well-known Dutch TV program Opsporing Verzocht (detection required) is a good example of this. But because of the rise of social media, there are many more people who can contribute to an investigation. So much is shared on social media", according to Thiry.
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Gerrit Thiry also has a warning: "People have to realise the possible consequences of publishing their findings publicly. For example, it may mean that potential evidence disappears or worse that people may be at risk if public attention is paid to their role in an event. On the other hand, it may also be that a publication gets things moving. Witnesses may contact the investigation team, people may come forward with new relevant information. A good example of the latter is the photo of the BUK installation that we had published online. We had the coordinates within no time. Shortly afterwards, photos were sent from that exact location. That is precisely why we do it. "

Open source
Open source research (Open Source) is mainly research on the internet. It is information that is freely available through social networks, for example, but also from online published aerial photographs and government documents. Partly due to the work of Bellingcat, the possibilities of open source research have become much better known.

Open source research is also taken seriously in criminal cases. For example, the International Criminal Court (ICC) recently issued an arrest warrant for the Libyan commander Al-Werfalli, which was partly based on open-source research.

Documentary Bellingcat
Submarine, a Dutch production company, has made a documentary about the working method of the research collective Bellingcat. A few shorts quotes from the JIT, represented by Wilbert Paulissen, have been included in this documentary, which will be shown at the IDFA (International Documentary Film Festival Amsterdam).

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International support for JIT-investigation
Photo ANP/Robin Utrecht

On 24 May 2018, the JIT announced that it had come to the conclusion that the BUK-TELAR that was used to down flight MH17 originates from the 53rd Anti-Aircraft Missile Brigade from Kursk in the Russian Federation.

Immediately after this announcement, France and the United Kingdom, among others, called on the Russian Federation to fully cooperate with the investigation. After that, even more countries and organisations expressed their support. Below a concise overview of the reports.
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On 25 May 2018, the Ministers of Foreign Affairs of the Netherlands and Australia formally held Russia responsible for its share in the downing of flight MH17.

At the end of May 2018, NATO Secretary General J. Stoltenberg called on Russia to assume responsibility for the crash.

On 15 July 2018, the Foreign Ministers of the G7 countries issued a joint statement calling on Russia to immediately consult with the Netherlands and Australia and to clarify possible violations of international law.

On 26 September 2018, at the United Nations General Assembly in New York, the Foreign Ministers of all JIT countries expressed their unconditional support for the independent criminal investigation.

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Attachment: Opportuun
Photo Fred Westerbeke (ANP Robin van Lonkhuijzen)

This article is published in Opportuun November 2018 magazine of the Dutch National Public Prosecution Service.

How much longer will it take?
It is probably the most frequently asked question in recent months to the 'face' of the Public Prosecution Service in the investigation into the downing of flight MH17.

I said it on 24 May, when we gave the last update and again made a call for witnesses: in any case shorter than it has taken already. And the moment will come when we say: we are going to make a decision now whether to proceed with prosecution or not."

Fred Westerbeke had just become Chief Public Prosecutor of the National Public Prosecution Service when flight MH17 crashed in 2014. I remember where I was when it happened, but did not realise at that moment that it would be an investigation for us. If you hear about a plane that crashes, you usually think of an accident first.

The crash: accident or crime?
On 17 July 2014, flight MH17 travelled from Amsterdam to Kuala Lumpur in Malaysia. There were 298 people on board. Once in Ukrainian airspace the plane was hit by a missile, as demonstrated by later investigations. The plane came down in pieces. Plane parts, luggage and victims were found scattered over a large area.

In fact, there were quite a few signs that it was not an accident, according to Fred Westerbeke. And with that, the National Public Prosecutors Office (hereafter: LP) was the designated prosecutor's office to lead the investigation, with support from many staff members from other public prosecutors offices. And it's a special investigation. "If you look at the size, the deployment of the police and the Public Prosecution Service, there are other large investigations that can take so long. But if you look at the impact on a large number of surviving relatives, the complexity, the gigantic pressure from the media, the many forms of cooperation and alignment and the international dimension, then of course it is a very special investigation", according to Westerbeke.

Fred Westerbeke emphasises the complexity. Not only with regard to the forensic and technical side, but especially regarding the different international aspects. To begin with, the many victims from many different countries. And of course the fact that the plane crashed in a war zone which, to this day, we are not allowed to enter. In other words, a criminal investigation without having access to the crime scene."

Already on the day after the crash, a investigation team was set up. In the beginning everything was focused on bringing the victims over to the Netherlands, identifying them, giving the relatives the opportunity to say goodbye, and assisting those relatives with all the formal actions that were needed for a funeral or cremation. We received help from various regional prosecutors and police units, who are more experienced with assisting victims."

Assisting and informing the next of kin has been given a permanent and important place within the team. Still a lot of information is shared via the special website that was created by the Netherlands Victim Care (Slachtofferhulp Nederland). Because of our experience, this procedure has been used as an example for the 'government'. At this moment we are looking at how to set up the website when it comes to the prosecution of the perpetrators.

Different investigations
During that first phase, everything was focused on recovering and identifying the victims, but at the same time a criminal investigation had been started behind the scenes. Because if there was a crime, people had to be held accountable for that as well, Westerbeke said already in 2014. It soon became an investigation in the form of a so-called JIT: a Joint Investigation Team. The Netherlands was asked to take the lead. Besides the Netherlands, the JIT consists of Belgium, Australia, Malaysia and Ukraine.

We certainly wanted to make that step forward. An investigation by a special committee of the United Nations would also be an option, but then you get stuck with confidentiality at some point because such committees are usually not allowed to share their findings with the Justice Department. The same could be the case in the Netherlands with the investigation of the Dutch Safety Board (OVV). You have to make agreements about that."

In October 2015, the OVV presented its conclusions. That was actually the first time the relatives were told in detail what had happened. Westerbeke was impressed by that presentation as well. "The reconstruction of the aircraft in the background was stifling and overwhelming, the attention was enormous. The aircraft is still located at Gilze Rijen air base. Obviously, attachment has been levied on it."

Information to the relatives
Prior to the public presentation, the relatives were the first to be informed about the investigation results by the OVV. They were also the first who were allowed to see the airplane in the closed-off environment of the hangar. This had a huge impact on them. You cannot just confront them with such an image. Not even on television."

The investigation team makes every effort to inform the relatives before anyone else and to inform them as completely as possible, in other words to inform them in advance, Westerbeke wants to emphasise. Especially in the first year, in retrospect, we have let too much time pass before we informed the relatives about what we were doing", he now says. "People need information, even if only about the procedure that you are working on. We were, of course, very careful not to publicly announce any information or conclusions too soon in an investigation like this. Normally we are not used to telling what we are doing in large-scale criminal investigations."

Both at the presentation in 2016 and during the press conference this year special attention was given to the relatives, in the form of a presentation in advance, or the setting up of a livestream (2018).

World news
On 28 September 2016, Fred Westerbeke, together with the head of the National Criminal Investigation Service of the National Police, Wilbert Paulissen, was able to announce the first results of the criminal investigation into the crash. We have found a lot of evidence that flight MH17 was shot from the air with a Buk missile, from a field near a Ukrainian city, and that the device was then quickly taken to the territory of the Russian Federation. But to establish who are responsible for this in a criminal sense takes longer, we announced. "Many journalists, and some relatives, think we are not going fast enough and the reaction from the Russians was very negative. I said it then, I still say it: we want to present this case to a court. That is our goal. And until we make that decision, we have to be careful and sufficiently certain of our case," the Chief Public Prosecutor said.

In addition, the investigation team consists of people from the five JIT countries, with different criminal procedure rules, methods and forms of cooperation between the police and the Public Prosecution Service. "The Australian Prosecution Service is not involved in the investigation at all. The police formally work very differently there. I met the - new - Malaysian Attorney General, together with one of the case officers. We flew to Malaysia and back in two days to give him a comprehensive update on the investigation. If you want to work well together internationally in a team, you need to get to know each other, meet face to face. Then there can be mutual trust. And once you have met, you do not need to see each other every week." Of course there is also contact with the various Embassies and Ministries of Justice and Security and Foreign Affairs.

World news again
The commotion caused by a new press conference, such as on 24 May 2018, was a surprise. "It was world news again. This is what we wanted, because we made another call for witnesses. That was actually the main goal. This call was supported by new investigation findings. We can now safely say that the missile was fired by a Buk-Telar that came from a brigade of the Russian army."

Certain missile parts were presented at the press conference to support that message. On some of those you can see letters and numbers that people have put on them. Those may be recognised by witnesses, and then we may be a step closer to the people who are responsible for the missile attack."

Here Westerbeke wants to say something about the Dutch prosecution team that conducts the investigation, and sometimes had to find new ways to get results. For instance the search for witnesses - and thereby obtaining witness evidence - is particularly complicated in this investigation. The direct approach of witnesses, for example by means of interviews with local residents or people passing by, was not possible in this case because of the war situation. Finding witnesses who are willing to make a statement is therefore a hell of a job. In addition, each witness calls for an individual consideration of the importance and reliability of the statement versus the safety of that witness. That means that there is plenty of work for the prosecutors who work on special witness programmes.

"The impact that the investigation has had and still has on the prosecutors, senior legal officers and support staff ... these colleagues are under tremendous pressure and deliver a great performance. And they continue to stay motivated, just like the police team." The prosecutors office management also tried to ensure that they could do their work "in relative peace".. But the constant (media) pressure also does something with them. I have a lot of respect for that."

Developments in 2018
The meeting on the 24th of May was not the only one where the crash of MH17 drew full publicity. A day later, the Dutch government announced (together with Australia) that it will hold the Russian State liable for the downing of the airplane and the enormous suffering and damage that this has caused. This represents a special procedure under international law that is separate from the criminal investigation and any possible prosecution.

Suddenly in September there was this press conference of the Russian Ministry of Defence in which they announced that the missile found on the crash site, which was shown in the Netherlands in May, had been delivered to Ukraine. The JIT announced that it would study the information, but also that they maintained their previous conclusions.

At the United Nations General Assembly in late September, Prime Minister Rutte once again called attention to the investigation and called on Russia for mutual consultation. MH17 is "an open wound", according to the prime minister who asked all countries to cooperate in getting justice for the victims and their loved ones.

In October it was announced that a Russian intelligence service may have attempted to invade systems of agencies involved in the MH17 investigation in Malaysia.

And then of course there was the fourth commemoration of the crash in July, at the special memorial site in Vijfhuizen where a monument and a line of trees have been created. Fred Westerbeke was there together with one of the four case officers, just like he had also visited previous meetings with the relatives. Many relatives recognised me. I know many stories that they have told me themselves. I am touched by that, of course. Especially the reading of all the names of the victims by the next of kin is very emotional." In his office at home he has a postcard from a victims mother. "She is confident that we do everything we can to resolve the matter, no matter how long it takes."

This brings Westerbeke back to the initial question: how much longer will this investigation take? We are in the last phase and we work towards possible prosecution. In the meantime, the location of a possible trial is known: this will be the Judicial Complex Schiphol (JCS), as a subsidiary of the Hague District Court.

"But who will be prosecuted and for which crime, I cannot say yet", according to Westerbeke. And how long it will take before the decision is made to do so is not yet known. But something can happen tomorrow and matters could be accelerated." According to his firm conviction there comes a time when the file is sufficiently solid and then we will be ready."

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https://english.mh17magazine.nl/binaries/large/content/gallery/magazines-mh17magazine-en/mh17magazine-en/photos/2018-03/gerrit-thiry.jpg
Attachment: 'This MH17 investigation grabs you by the throat' - Blauw
Attachment
This article is published in Blauw April 2018  the internal magazine of the Dutch National Police

'This MH17 investigation grabs you by the throat'
During his forty-year career, chief inspector Gerrit Thiry (60) worked all over the world and headed various notorious investigations, including murders. But nothing compares to the complexity and pressure of the investigation he's been working on for over three years now: the downing of flight MH17.

Text Erik van der Veen photography Harro Meijen

Photo: chief inspector Gerrit Thiry ( photographer Harro Meijnen)
We make ourselves extremely vulnerable by letting others take a look behind the scenes and asking for feedback

On 20 July 2014 - three days after the attack - Gerrit Thiry was asked to become coordinating team leader of the MH17 investigation. 'I enthusiastically said yes straight away, without thinking about what I was letting myself in for. On the other hand, it is of course a privilege. This investigation grabs you by the throat and doesn't let go'. At the same time, an investigation of this magnitude takes its toll after three years. 'I've had to make huge sacrifices socially. I haven't had a weekend off and I've lost a lot of weight. But I'm really glad that I can do this; the goal is to obtain an independent court ruling. Together with the Public Prosecution Service we're doing everything we can to achieve that. The best thing would be for someone to be in the dock, but a judgment can also be pronounced in default of appearance. I'm sure that's what will happen. And then we'll have to make sure that it takes place before I retire'. What does such a major investigation entail? Thiry gives eight pointers.

Use the playing field model for an information reservoir
The head of the national criminal investigation, Wilbert Paulissen, is the person I report to. I'm in charge of the day-to-day management of the investigation team, together with three public prosecutors. At first there was a huge amount of information. It was partly for this reason that we chose the playing field model. That involves identifying the ideal team composition with the right specialists to achieve the goal in a complex or large-scale investigation as efficiently and effectively as possible. We also divided the investigation into a number of subprojects and put representatives in the field of Information, Expertise, Analysis and Tactics around the table so that we could change gear more quickly. That worked very well. I regularly consult with Wilbert and the head of the Dutch National Police Information Unit (DLIO) to discuss results achieved so far. We formulate new ambitions and determine how we can find the right people for them'.

Involve as many specialists as possible
'The unique aspect of this investigation is that so many specialists are involved. The units lend us all possible cooperation. Twenty Russian and Ukrainian-speaking colleagues came forward. A number of them are still helping us to unlock the tap conversations and messages on social media. To me, that's a good example of the added value of a single police force. A tip for colleagues: if there's ever an attack, make sure you quickly bring together expertise in the field of information, analysis and tactics.'

Count on a long-term investigation
On the basis of photographs, videos and tap conversations, weve been able to establish that the BUK system that was used to down MH17 originated from and returned to Russia. Now we're focusing on the individual criminal liability of those involved. I think we'll be working on this case for at least another five years. It's sometimes difficult for the team to maintain its focus on this one investigation all the time. Detectives are used to more dynamism. We work together in the JIT (Joint Investigation Team, ed.), an investigation team with colleagues from Belgium, Ukraine, Malaysia and Australia. We form a single front. It now consists of 55 people and a number of colleagues work in the field office in Kiev. They listen to telecom messages and analyse them.'

Be resourceful
The legislation of the country in which an event occurs takes precedence. In Ukraine, for example, a Ukrainian police officer must always be present when witnesses are questioned. If a witness prefers not to go along with this, we devise a different way. We may take that person to the Netherlands, for instance. We do everything as safely and transparently as possible. An often-heard statement in the team is: we already have 298 victims to mourn, so let's not put any witnesses in danger. This investigation doesn't compare with any other. Normally, you can always get to a crime scene. But we've never been to Eastern Ukraine because it's still a war zone and the Netherlands doesn't recognise the republic proclaimed there. Another special aspect of the investigation: we've performed three tests with a BUK rocket in Finland. In a prepared test environment, forensic experts from the JIT countries detonated a warhead and a complete missile in order to measure certain angles and speeds of the explosion. It is, of course, an unusual and costly operation to detonate missiles, but it worked. We've also done two tests in Ukraine to be able to scientifically prove where the BUK was shot from. The main purpose of these tests was to calculate the trajectory of the missile and to compare the damage image with the traces found on the crash site.

Validate all information
'We've made some 80 international requests for mutual legal assistance. There's nothing to complain about when it comes to cooperation in this area. Russia has always given us answers, even though they weren't always exactly what we wanted and not always in the right format. We have to assess the value of everything we're given - testimonials, photographs, audio, etc. - on the basis of an independent source.'

The whole world is watching, and that creates another dimension.'

Stay transparent
The Netherlands has just one chance to get this investigation right. We're in the global media spotlight and can't afford to put any wrong information forward. Given the reactions to the international press conference of the JIT (on 28 September 2016, ed.), I think there's a fair amount of appreciation. There was a lot of pressure in the early days. Everyone was full of questions, and we didn't have all the answers. Things has now calmed down. I am myself responsible for most of the pressure I face these days. The whole world is watching, so that gives another dimension. All media statements are coordinated at the highest level. And the Security Council has adopted resolutions specifically on this investigation. That says it all. But there's no political steering. The relationship between the PPS and the investigation team is very good indeed. We're still making progress every week, so there's plenty to talk about. We'd prefer to let everyone know what we know ourselves, but ultimately the PPS presents the findings of the investigation in court. But we do inform the next of kin where possible.

Use the help of members of the public
We need a lot of information from members of the public. A great deal of information that you might need later as evidence is seen and shared via social media. I advise all colleagues to capture blogs, tweets, photos and the like with a screenshot immediately after an incident. Sometimes information is changed or deleted later and then you can't retrieve it. We don't give anyone instructions, but ask people to be careful with what they publish. The independent investigation collective Bellingcat in particular has made a lot of social media accessible, although of course we don't include this information in our investigation without carefully assessing it. If they've found photos or links, we secure them after an investigation. A few months ago we published a new photo of the BUK system. We had the coordinates in no time. Shortly afterwards, members of the pubic emailed photos from that particular spot. Of course, we ourselves also monitor social media. We investigate alternative scenarios. If we can immediately disprove a scenario, we document it and explain why we aren't investing in it'.

Maintain calm in the investigation
'I don't maintain contact with the next of kin myself. This was a conscious choice of mine to keep a certain distance and to avoid saying something that could cause problems. I prefer to stay out of the limelight and avoid too much distraction. Fortunately, we are very calm and confident about the investigation. It's progressing slowly, but there are reasons for that. We're dealing with an enormous amount of information, a language barrier, and an inaccessible area. Of course we also have a lot of peripheral issues to deal with. By responding immediately, we try to avoid unrest. That does generate a lot of extra work. You have to constantly look ahead and anticipate. What you really want to avoid is for your own organisation or the next of kin to be taken by surprise by new information. We keep a very close eye on that. And we always consider whether to inform the next of kin. We don't want to upset people without good cause.'

Include opportunities for reflection
There are undoubtedly things we could have done better. We make ourselves extremely vulnerable by letting others take a look behind the scenes and asking for feedback. We had twelve colleagues provide opposition, but that didn't work well because of the magnitude of the investigation. That is why we opted for critical peer readers. The Public Prosecution Service has organised a number of reflection rooms with external officers and police experts. External parties check whether we have our big data in order and we have the Police Quality Agency regularly check that we are recording all the findings properly. I want to avoid my successor not being able to find things if I ever leave before prosecution has started. That's a matter of honour to me. Apart from ensuring that the prosecution can be started up, I think it's very important that the next of kin find out exactly what happened and who was responsible for it'.

Respond to this article?

Mailto: erik.van.der.veen.1@politie.nl

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Colophon
MH17 Magazine, 03
Publication date
Tuesday 20 November 2018
Editor in chief
JIT MH17
Production
JIT-OM-Politie Afdeling Communicatie
Senior editor
Marjolein Klaassen
Email
mh17magazine@politie.nl
Website
http://www.jitmh17.com
Copyright
CC0 1.0 Universal


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