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Документы JIT: Совещание полевого офиса 25.01.2018

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Field Office Meeting 20180125

Field Office meeting (Day 1) Driebergen, 25 January 2018
Dutch prosecutor's service: Maartje Nieuwenhuis (chair), Manon Ridderbeks, Anne van Dooren, Elfred Warner (minutes) Belgian Prosecutor's service: Lieve Pellens Belgian Police: Wouter Waumans Dutch Police: Gerrit Thiry Australian Federal Police: David Nelson, Alex Kazagrandi (interpreter) Ukrainian Prosecutor's service: Oleg Peresada
Morning session
Introduction Maartje opens the meeting and welcomes the participants. This meeting's goal is to update each other what we are working on in our investigation and what the plans are
for this year.
Oleg announces that Igor could not attend today because he is busy working on a POI in
our investigation.
Maartje explains the decision to go forward as planned with this meeting although Igor is not here; at a later moment in time we will see who will contact Igor about the actions needed to be taken up by him/the SBU.
Maartie refers to the minutes of two last meetings asking if there are any comments. David, Oleg  and Lieve state that they are fine with those minutes.
Results review committee (Maartje) Maartje presents the conclusions made by the review committee (appended) and explains why we asked a committee (three selected people) to review the evidence. The committee didn't look at the results of the forensic investigation and the radar inquiry but only considered the evidence we had on specific persons.
The review committee indicates a problem regarding the intent of co-conspirators. It is difficult to anticipate how a court would look at this, as there is no Dutch jurisprudence
in a similar case.
David: there is evidence on what the plan was because they asked for more arms.

Maartie: what level of intent do you need? We don't now what their trigger was to drive the installation into the open field. We also don't know what the trigger was to actually use the buk.
Anne: Another question is how relevant the fact is that the shooting down of MH17 could have been a mistake (and the real intention was to shoot a military airplane). The separatists didn't have the right to shoot an airplane, whether it was a military or civilian airplane, unless they were combatants in an international armed conflict. Oleg: Don't we have enough evidence to state that the separatists could have foreseen that it was a civilian aircraft? Manon: The committee stated that the Dutch Safety Board explicitly mentioned that not even military attachés were acquainted whether or not the airspace was closed for civilian planes, so how could the people on the ground know? Oleg: According to a Ukrainian military specialist a civilian aircraft flies with a constant speed on a constant altitude, while military aircrafts act the opposite.
Maartje: Dutch specialists state the same about civilian aircraft, but mention that although military aircraft can act the opposite, they can also fly with a constant speed on a constant altitude.
Manon: Above all it is important what the militants thought about it, telephone calls indicate that they thought that military aircraft flew close to civilian airplanes in order to
be safe. David: Does it matter if the crew was in the military or acted as contractors under command of the army for the possibility they can claim combatant privilege? Maartie doesn't think so. It can be different for separatists, for combatant privilege one has to function more or less in an official army structure.
Oleg mentions some relevant parts of a statement of a Buk expert on the way a Buk works. This should be in the file and answers some of the questions of the Review committee.
Maartie states that this statement actually is used in the weapon report but that there are still some questions left. Therefor the colleague who is writing the weapon report will have another look in the manual. We are also considering having more of the manual translated.
Oleg adds that not only a statement has been given, but also a video has been made (and shared) of the explanation (on how a BUK system works, including the radar and what you can and cannot see on it) that was given by 2 BUK-instructors. According to Oleg all questions raised by the committee most probably could be answered by looking at this video.
Gerrit mentions that he will look this up in the administration.


State ofplayinvestigation Primo (Gerrit) Gerrit presents an update of the investigation. The results of the investigation exclude the alternative scenarios. We are waiting for the NLR report, which is expected to be finalized within two weeks.
The forensic part of the investigation is accomplished. Recently the forensic investigators came across a 2015 KFI-report (about the launch site). The report was made for the OVV). Oleg is not familiar with it, he will check if it is or otherwise can be shared in the JIT. Maartje asks him to first contact Manon before it is shared.
Gerrit explains our approach to try to reach out to potential witnesses or people related to POI's that live in countries where we can work. For instance a relative of a POI in the
Gerrit tells about Russian influence in elections in several countries like Bosnia and Montenegro and parallels with the eastern Ukrainian conflict.
Maartje states that we are considering how deep we should get into these parallels, or subjects like the command structure and for instance the involvement of oligarchs, operating in the background.
It is a concern that the SBU doesn't make enough effort at hearing relevant witnesses and/or persons of interest on the already long time ago shared list.
The posting of information on our VK-page (like for instance the Buk-image we posted there) can effectively bring us new witnesses.
Gerrit further elaborates on the phone call he received from B, as a result of the witness approach via direct messaging. The conversation of B has lead us to Budik, who was being held as a prisoner of war by July 17, 2014. Anne: He is an excellent witness. He saw and heard a lot while being a prisoner of war. It was worthwhile to have an interview with him.
The report of the identification of Delphin is not yet ready. Oleg: we (SBU, not the Ru-speaking officers at the FiO) are monitoring potential witnesses as well as suspects and trying to get them on our side. Actually we are in contact with someone who was on the launch site and we are trying to get that person at our side. This is actually why Igor is not present today. We are aware of the whereabouts of this person via current telephone interceptions.
Oleg tells that still new information, relevant to MH17, is found in old conversations.
Maartje states that it can be a problem if we keep receiving new data. How long can we go on with keeping personnel in the FiO to analyze new intercepted data, how relevant is this, what can we expect from this. A lot of the people working in the field office have been doing this so for three and a half years. That is a long period. We really have to look for an end date. Not that NPN will leave Kiev all together, but we need to work to a lesser amount of people. This is a conversation that we have to have with the SBU.
Gerrit: Our ambition is to gather evidence. Gerrit shows the composition of the investigation team and tells that the help of the SBU is needed. The investigation depends on the help of the SBU to do the interviews in Ukraine.
David endorses that the SBU is needed for witness opportunities. Oleg explains the difficulties and the workload where of the SBU because of some threats.
Maartie stresses that we fully understand the pressure the SBU is under and that we are aware of the importance of the other investigations that they are undertaking, but that we simply cannot move on with our investigation without them.
Oleg states that according to their law an Ukrainian official must be present during witness interviews in Ukraine and that according to the JIT-agreement Ukrainian law must be respected. He further states that he has a solution for the problem with the witness interviews: he himself, like policemen are, is allowed to take interviews. So if witnesses need to be interviewed, instead of the SBU he would be able to conduct the interview. When asked he added that he would not only have to be present, but actually should be doing the interview himself.
Manon responds by saying that this is not the answer, since Oleg is busy enough doing his own job and besides that, conducting the interviews is one thing, but finding the witnesses and bring them in is another thing. Only the SBU is able to locate witnesses
and bring them in.
David is willing to have someone working on the witness approach but a SBU investigator is needed to join.
Gerrit announces that national police chief Akerboom, on behalf of the Dutch police, wants to invite the SBU boss Grytsak to discuss the point that SBU help is needed.
Oleg repeats what Igor has said before, that the best solution is to put Ukrainian officers here in Driebergen so they are out of reach for new work. After a discussion on this point, in which it is being stressed that the SBU is needed in Ukraine, because the work that needs to be done, needs to be done there and cannot be done by NPN and AFP alone,


it is agreed that the best way forward is to plan a meeting between the head of SBU Grytsak and Akerboom and possibly his Australian counterpart) in which to try to get about 3 SBU-officers, exclusively dedicated to the MH17-ivestigation.

Maartje states that even if the answer is no, at least we know what can be counted on. Gerrit makes clear that he respects the problems which Ukraine are faced with.
Gerrit: for a long time we thought Orion was the call sign of Andriy Ivanovich but actually, after listening a phone call carefully, we found out this is might be not correct: Andriy Ivanovich (himself) asks 'Which Orion'. So Orion probably is a third person. And besides this phone call, we have not found any phone calls in which Al is being called
Results investigation Ukraine (Oleg) Maartje introduces this topic saying that it is difficult to get clear what the SBU is doing in the investigating at the moment. The information from Igor changes every now and then. Anne adds that Igor confirmed to her, during her last visit, that they were not working on the case, unless occasionally, when the JIT would come up with something very pressing.
Oleg explains that the SBU continues to work on the case; there was no order to stop working on it. Nevertheless, sometimes they get another task that takes full time and attention of Igor and his team. So there are times - like Anne has been told last time she visited Kiev - that no one is actually working on the case. The SBU simply doesn't have
the manpower.
Igor is working on a still classified MH-17 witness that might be very interesting. Once possible Oleg will share more information about this.
Maartie states that Fred Westerbeke made an agreement with his Ukrainian counterpart for a second Ukrainian prosecutor besides Oleg. In reaction to this Oleg tells that the situation has not changed yet, there is still no back up for him.
Oleg endorses the importance to address this because he needs someone who is fully dedicated to this investigation and can replace him. Especially when the prosecution starts and one should be here in the Netherlands and the other one staying in Ukraine.

Afternoon session
State ofplay witnesses in the Netherlands and Ukraine (Anne/Gerrit/Oleg) Anne presents an update about the witnesses that are interviewed and those they are
working on.
G3299 -> plan is to transfer this witness to SBU. Oleg gives an update of the time frame in the Bezyazykov case. The defense is delaying the case again and again. The case is delayed for months.
Anne: The witnesses we most recently identified among the witness statements we received from the German authorities, will be interviewed by us within two or three rec weeks. The German authorities share their interviews with The Netherlands, but they do not allow us to share there interviews with the JIT. One of these witnesses might be interesting for the state responsibility case of Ukraine and if so, Ukraine has to do a formal request to the Germans to receive that interview.
Maartje and Anne put forward the question about the breach of Russia's sovereignty through the approach of witnesses who most probably reside in the RF, without informing the RF authorities. As JIT we all must agree and endorse this point, although work might be done by the Netherlands alone.
Reactions at this point:
Lieve states that approaching/making contact with a witness is not a problem for Belgium, that's just an act of investigation ("onderzoeksdaad"). Even when the witness will be actually interviewed via video link this is acceptable, as long as the witness is cooperating. Belgium has worked in this manner with certain African countries.
Gerrit: it was B's own choice to contact us.
David says that for the AFP it is no problem to approach witnesses and have contact in order to judge whether an interview would be relevant and to make practical arrangements for an interview. To get a formal point of view from the AFP, I would have to go back to our legal department, but I doubt that there will be problems since we are talking about witnesses.
Oleg doesn't know since he has no experience on that matter. He doesn't see an issue with that but he has to discuss this point first.
Anne: and what about luring the witness?


Wouter tells that in Belgium they even did it with suspects, but those were suspects that were residing in countries that we had no treaties with. To lure a witness is no problem at all.
David: considers this to be a covert operation. Should be possible with witnesses, as long as no criminal offences are being committed, but again I would like to have some time to contact AFP legal department.
Oleg sees no problem if this is done by The Netherlands. It's like a regular intelligence operation but he also wants to discuss this point back home.
Maartie states that we have to discuss this with Malaysia as well. Gerrit would like to let Malaysia know what the outcome of the discussion with each individual country is. That might make it easier for Malaysia to decide.
Maartje states that it is important that we have consensus on these issues with all JIT- partners, so that we will also show consensus to the world in case an operation like this would happen and become known.
Maartie asks for the opinions on engaging and interviewing suspects in RF, without the authorities being informed and involved?
Oleg thinks that it is a problem according to Ukrainian law, we have to notify him of his position as a suspect and he has the right to be assisted by a lawyer. In Ukraine you cannot waive that right. The lawyer has to be present.
Maartie: and what if it is not the JIT that acts but only the Dutch (from Driebergen)? Oleg If this takes place under responsibility of the Dutch prosecutor and we are just present I don't see a legal problem under Ukrainian law.
Maartje: Do you think that you can justify this and explain it back home?
Lieve tells that in Belgium they have a fairly lenient supreme court, but this wouldn't pass the test because it violates the rights of suspects. Lieve explains that it would not be a problem if they would make the suspect travel to another country. David thinks that it wouldn't be admissible according to Australian law. Covert action happens in Australia. David has to discuss this back home (AFP intern).
Oleg We don't have to do anything with luring of the suspect if it's done by the Netherlands. When it's the JIT it's another question.
Maartje finalizes this discussion saying for this moment enough is said. After consultation back home it will be brought up again.
Internationalization ofa future prosecution (Maartje) Maartje presents ideas and possibilities for the internationalization of a future prosecution. An international press centre is important for internationalization of the communication. It makes clear that it's not only the Dutch prosecutor, but that is spoken on behalf of the JIT. Another plus is that messages can be composed by native
Maartie postulates the idea of an advisory board of high officials that can advise on important steps, such as issuing arrests warrants.
Lieve warns to be careful that it's not going to be a political board. That might give the impression of not being independent.
David proposes that the advisory board is just part a larger prosecution team with members of all of the JIT-members, rather than giving it a distinct title.
Oleg posits the problem that on his side high persons are not experienced in investigations. Do these people give practical advise? Do they need to read the file,
know the case?
Maartie amplifies that showing international support is the motive for creating this advisory board. This board should be formed by people with judicial background from JIT-countries and possibly also from other grieving nations.
Lieve thinks you don't need an advisory board if you have good international communication. She suggests that Eurojust can be used to host meetings as Eurojust has done before in this case.
Maartje argues that besides international communications harmony is needed: What if Dutch prosecutors conclude to manslaughter and others say manslaughter is not enough and reject the Dutch point of view openly. But also contra's can be seen: How do you go further if one country doesn't agree?
Maartie introduces the idea of a JIT working force: presence of all JIT countries in the court room. This should be a team of experienced prosecutors, who all know what goes on in a court room. Maartje explains that we are thinking about the idea of having colleagues in the court room to follow the trial and to report to the prosecution team at the end of each day on how things went. Should other questions have been asked, what has been said that is relevant, what should be investigated further? The reports will be collected and assessed by the prosecutor.


David says he thinks forming a Jit working group is a good idea. In stead of an Advisory board he would suggest a kind of JIT Support group. Using the term 'advisory' could lead to questions like: aren't the Dutch prosecutors capable of making their own decisions?
Expertise :
Special expertise is needed for the prosecution team. Two examples: weapon, military strategy. Maartje explains that depending on the topic, international experts will be consulted as well and maybe even added to the team 'behind the scenes'. This idea is being approved by everyone.
Accompany NoK:
Depending on the presence of foreign next of kin, the presence of victim aid people of the respective countries to accompany there own NoK is needed as well. Everyone
Maartje concludes that it is important that we spoke about this topic, think about it and
keep in contact about this.
International communication (Marjolein K) Marjolein Klaassen presents a communication Strategy of the JIT.
Oleg thinks that in Ukraine it's complicated to have prosecutors-general speak about the case . If we give them the opportunity to speak on behalf of the JIT they might take too much space or not stick to lines. Since there are no communication officers (each PG has it's own assistant that helps him on this point) Oleg himself is the easiest and best way to be the point of contact in Ukraine for communication.
David states that the AFP has a communication team. This is a team of people, none of them is specially dedicated to the MH17-case. David will ask to assign one of them on our case and for that will get in contact with the AFP communication team.
Marjolein underlines that 'news' doesn't always need to be that actual.
Lieve says that up till now no questions have reached the Federaal Parket. Only since yesterday a (general) communication officer is appointed for the Federaal Parket. If necessary he can be asked to support in MH17-communication. Marjolein can contact him.
Marjolein emphasizes that the goal is to show that we still stick together as JIT.
Feedback visit London Anne and Gerrit give a feedback of there visit to London last week. Gerrit and Anne visited the UK to talk about the UK-experiences in the Litvinenko case. The case officer and the SIO of the Litvinenko investigation explained various counter- strategies that they encountered from the RF.


JIT-FiO meeting 26 January 2018 (Day 2)
Participants Dutch prosecutor's service: Maartje Nieuwenhuis (chair), Manon Ridderbeks, Anne van Dooren, Marvin Aaron (minutes) Belgian Prosecutor's service: Lieve Pellens Belgian Police: Wouter Waumans Dutch Police: Gerrit Thiry Australian Federal Police: David Nelson, Alex Kazagrandi (interpreter) Ukrainian Prosecutor's service: Oleg Peresada
1. Radar Data Analysis Patrick Warnier (NPN) provides an update of the analysis of the radar data received from the RF. The analysis consists of 2 separate analyses of the Utes-t Rostov radar, because of the fact that the RF provided us with two data sets.
Each data set has been analyzed by a separate expert. The first data set contained primary and secondary radar data accompanied by a software tool for visualization. The expert's conclusion is that 1) there was no evidence of data manipulation, 2) that there were no other objects in the vicinity of MH17, and 3) that supersonic missiles like the BUK would likely have not been detected by the radar due to its processing and display filters. Furthermore, an irremovable setting in the accompanying software would have made it impossible to see a missile in the radar data even if it had been detected. This circumstance led the team to request the RF to send the radar data in ASTERIX-format (an exchange format that is commonly used to interpret radar data). The RF responded by sending the requested radar data, but it seemed they had problems converting the data to the ASTERIX-format. However, the expert was able to extract and analyze the ASTERIX-data. His conclusions are that: 1) there is no evidence of data manipulation, but the data can easily be manipulated without him being able to notice it, 2) the file contains data in ASTERIX and other data, 3) there are no other radar detections in the vicinity of MH17. Reasons for the absence of radar detections could be that possible flying objects were too small for detection, the detection of a flying object was filtered out by radar settings or the detection was manually removed from the data.
Alex (AFP) asks if other planes were detected. Patrick confirms that all known planes have been detected by the radar. Anne (OM) asks if one of the reports mentions the areas that are not covered by the radar. Manon (OM) responds that the first report covers this aspect. Maartje (OM) asks Patrick whether there are any remaining unsolved questions. Patrick responds that this is not the case, besides the three radar plots after impact of MH17. According to Patrick, someone should explain that these plots could either be parts of the aircraft or the missile, to avoid questions or complot theories in a later stage.
The participants discuss what should be the next step. Normally these findings would not be released to the public, but it in this case the matter has generated a lot of attention (of the next of kin and politicians). Gerrit (NPN) suggests that we can use the radar findings in our advantage by using the media. Another question is whether the findings should be (partly) visualized. In any case, the findings will first be presented to the next of kin and then possibly in a letter to the Dutch Parliament.
2. Direct Messaging Manon refers to the last meeting in May '17 in which this subject got a lot of attention. The original plan was changed due to the fact that the SBU had safety-concerns about sending messages through VK/OK and sending messages to persons we know are in the RF. This resulted in a reduction of the amount of messages (66 messages to 55 persons) ns) that the team had planned on sending initially. Alot of effort has been put into this, and the outcome has been positive: 10% of the approached persons responded. Another effect is that the team now has the know-how to undertake such a project. This makes it worthwhile considering doing this again, but more often and in a smarter way. And this leads us to the question whether messaging through VK/OK should be included in the future and whether we should send messages to persons we know are in the RF. The decision cannot be taken without lhor (SBU), but it seems appropriate to consider the options beforehand.
Oleg (PGO) explains that the danger lies in the fact that VK/OK was created by the RF intelligence agencies. The risks could be that we will end up with dead witnesses or witnesses who have been instructed to provide a testimony that leads us down the wrong path. Oleg agrees that a possible solution is sending messages to a group of persons instead of individuals. If that doesn't yield good results, we can always consider sending personal messages. Approaching high-profile persons (because they appear, for example, in the media regularly) is probably less risky than approaching low-profile persons who can disappear silently.
The participants agree that new rounds of direct messaging (including approaching persons through VK/OK and/or persons we know are in the RF) is worth considering. The first step should be the use of relevant fora like f.e. the 53rd brigade or retired military. We will have to sort out what for a we can use. Wouter and Lieve (Belgium) mention that they may be able to provide staff to assist. NPN will get into contact with Wouter/Lieve to work out the details when the time comes.


3. Update new legislation in Ukraine Oleg gives a summary of the developments concerning the amendments of the Ukrainian Criminal Procedural Code (CPC). These amendments were made in December 2017 and will take effect in March 2018. Aside from the negative consequences they have on the work of law enforcement agencies, they could also have effect on the transfer of proceedings of the MH17-case to the Netherlands.
The amendments have implications for the length of time of investigative activities and they prescribe that suspects have to be notified. Suspects can appeal the notification of suspicion after two months. Oleg had concerns that such a notification would provide an opportunity for MH17-suspects to avoid prosecution in the Netherlands. Oleg and Maartje raised this point, which led to letters from the Dutch Minister of Justice to his Ukrainian counterpart and a meeting in Kyiv which resulted in a possible solution.
The conclusion is that the old CPC will continue to apply to the MH17-case that was registered in 2014. A transfer of proceedings will count as a final decision which is not open to appeal in Ukraine. When it comes to the constitutional obligation to apply the most favorable legislation in relation to suspects, the position is that Ukraine has obligations under the treaty it has concluded with the Netherlands.
However, it is uncertain whether the Ukrainian Parliament will go along. Maartje emphasizes that the CPC amendments have mainly been a concern because they may hinder a transfer of proceedings. A transfer of proceedings is only necessary to be able to prosecute on behalf of victims who did not have the Dutch nationality. So when the amendments will not be changed as discussed in the meeting, this must be a joint
Anne asks whether the fact that the ATO is not being seen as a terrorism case anymore has any effect on the MH17-case. Oleg responds that it has no effect on the case (however, judges may have a different interpretation). DNR/LNR will now be seen as territories temporary occupied by the RF instead of terrorist organizations (because of criteria in the law).
4. Other topics
Encrypted Telecom: Last time AFP said it would see whether it could find other possibilities to decrypt. In the Netherlands no possibility has been found. David confirms that they are still working on finding possibilities.
Report uniforms (RF SF, arrested persons, summer uniforms 53rd): this report is still being worked on in the FiO. It would be helpful if the FiO could compare their information with other information that Ukraine has.
Declassification list: Oleg should be given this list by the Field Office to check and see what is still outstanding.
FO-meeting: NLR-report will be clarified by one of the experts (half a day), the other day and a half will cover other forensic reports. As regards the missile that we have for a 3rd arena test, the question what to do with it will be put on the agenda of the JIT leader meeting so that a final decision can be made.
Air Crash Investigation Documentary on MH17: The Foundation will send a letter with regard to this documentary. Manon was invited to attend a preview session with a delegation of the next of kin and the DSB. There will be some changes to the documentary because of some comments that were made during the session (these comments related to inaccurate depictions of victims). As a result, it looks like there will be two versions (the amended version will be broadcast in the Netherlands and Belgium, the unamended one will be broadcast elsewhere). This is not desirable. Manon will forward the letter of the Foundation to the others, so that everyone can consider taking the appropriate steps to address this.

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