dutch court MH17 cartoon
© Punch Limited/Dances with Bears
The Dutch lawyers leading the defence against the charge of premeditated murder in the destruction of Malaysia Airlines Flight MH17 on July 17, 2014, have no experience of litigation in cases involving aircraft crashes, war crimes, military crimes, or homicide - except for cases when they have defended Dutch police accused of shooting people on the streets of Rotterdam.

The first of the defence lawyers, Sabine ten Doesschate, has never conducted a defence in a murder trial; in her short career so far, she has specialized in white collar fraud. Her leader, Boudewijn van Eijck, has a career record of defending Rotterdam police in collaboration with Rotterdam police commanders and prosecutors; at the time they included Fred Westerbeke, lead prosecutor of the MH17 investigation, and Dedy Woei-A-Tsoi, one of the three prosecutors now in court.

Asked if his relationships with them create a conflict for him to defend in this trial, van Eijck refuses to answer. "Our focus is the MH17 case," he said through a spokesman on Friday, "not the professional careers of the lawyers."

Ten Doeschate and van Eijck have announced they have engaged a Dutch public relations company called Headline Communications and a spokesman named Martin van Putten. The company has no operating record in The Netherlands. Responding to questions emailed over two weeks about the two lawyers, their expertise to mount a professional defence, and their conflicts of interest, Van Putten at first lied; then insisted "we do not comment in the media until after the next [court] session on June 8th." When asked by telephone to clarify the lawyers' silence and misleading statements he has made on their behalf, he cut the telephone line.

The third lawyer on the team, Yelena Kutyina, is a Moscow lawyer with trial experience defending media personalities in assault and injury compensation claims and appearing herself as a judge in television courtroom shows. Asked to describe her experience in criminal trials, Kutyina refuses to answer.

"So far as I can tell," commented veteran war crimes defence lawyer Christopher Black, a Canadian, "so far as I can tell, they are not acting like a real defence."

Four men have been formally charged by the Dutch prosecutors of murder in the downing of MH17 — Igor Girkin, Sergei Dubinsky, Oleg Pulatov, and Leonid Kharchenko.

Girkin (also known as Strelkov) was a former colonel of the Federal Security Service (FSB); Dubinsky and Pulatov were serving officers of the military intelligence agency GRU. Kharchenko has been reported by the Dutch as having "no military background. He received his orders directly from Dubinsky and in July 2014 he was commander of a combat unit in the Donetsk region. At that time, there was an armed conflict in that area between pro-Russian fighters and the Ukrainian armed forces." The Dutch criminal charge and allegation against the four is that, on the orders of higher military command and the Kremlin in Moscow, they "cooperated to obtain and deploy the BUK TELAR [transporter erector launcher and radar] at the firing location with the aim of shooting down an aircraft." The BUK missile, according to the prosecutors, was transported from Russia into eastern Ukraine, and then launched to destroy MH17, killing all 298 people on board.

accused MH17 trial

Left to right: Igor Girkin (Strelkov); Sergei Dubinsky; Oleg Pulatov; and Leonid Kharchenko.
Speaking for the Dutch prosecutors last June, Westerbeke announced: "Although they did not press the button themselves, it is alleged they worked closely together to get the BUK TELAR to the firing location with the aim of shooting down an aircraft. They are therefore suspected to be held jointly responsible for shooting down flight MH17."

"It is possible the suspects wanted to shoot down a military aircraft instead of a passenger aircraft. Even if that is the case, we still hold them accountable for downing MH17. What the suspects actually knew, wanted and ultimately did must be determined by the court in criminal proceedings. We realise this brief summary of the accusations does not yet provide answers to many questions, for example about the available evidence. I emphasise that today we only disclose the accusations against these suspects. It is up to the District Court of The Hague to pass judgement on these accusations. The suspects have the opportunity to explain their side of the story at the court hearing." For more details, read this.

By agreement with the Russian Ministry of Justice and state prosecutors, Pulatov agreed last December to accept the indictment papers and participate in the trial by engaging lawyers; he will not appear in person. Through his Moscow lawyer he has announced: "Pulatov declares that he is not guilty, did not take any part. He claims that he had nothing to do with the crash." "We are hoping that the Dutch court will be independent and objective when hearing this case", the lawyer, Yelena Kutyina, added.

According to a statement read in court on March 9 by the presiding judge, Hendrik Steenhuis, Girkin, Dubinsky and Kharchenko have not been served according to Dutch law. "The court has no doubt that [Girkin, Dubinsky and Kharchenko] are all aware of these criminal proceedings" (Min 1:54:48), Steenhuis ruled, adding that "in these circumstances...it may be assumed that they have waived their right to be present" (Min 1:55:44) "The court will allow the due process to prevail and... in the case against Girkin, Dubinsky and Kharchenko we will proceed" (Min 1:56:05). For more details, and the court record in full, read this.

Boudewijn van Eijck  Sabine ten Doesschate Yelena Kutyina

Left: Boudewijn van Eijck (left) and Sabine ten Doesschate (right) at their Rotterdam office for interview by Advocatenblad ("Lawyer's Magazine"), published on February 3, 2020. Right: Yelena Kutyina.
Source

Three lawyers have been engaged to defend Pulatov. Two, ten Doesschate and van Eijck, are from the Dutch law firm Sjocrona van Stigt (SVS); ten Doesschate, 39, is a junior partner since 2019; van Eijck, 57, is one of the firm's founding partners. Kutyina, a Moscow-based lawyer, is the third member of the defence team; she is present in court but cannot speak. Kutyina is from the Moscow law firm Kovler and Partners, a specialist in criminal cases and a regular representative of the Russian Ministry of Interior and the Prosecutor-General.

According to van Eijck, the initiative to hire him and his firm came from Kutyina. He knows, he said, that a Russian foundation is involved. "Pulatov's defense is funded by a Russian foundation. How this foundation gets the money", Van Eijck told a Dutch newspaper, he claims he "does not know".

But van Eijck also claimed in an interview with Advocatenblad ("Lawyer's Magazine"), a legal publication, that he had done due diligence before deciding to accept the Russian defence mandate. "As with every potential client, we have made an exploration. The first thing that mattered to us was whether people died in the accident who were known to lawyers or employees of our office to such an extent that our assistance would not be appropriate. It was not so."

At the opening of the trial on March 9, Steenhuis told the court "the accused Pulatov" (Min. 3:20) is innocent until proven guilty. "It goes without saying that a defendant is innocent until proven guilty by law" (Min 23:56).

In February, in their interview with Advocatenblad, ten Doesschate and van Eijck publicly opened their case for Pulatov without saying they believe him to be innocent. Instead, they said that Dutch law grants the accused the right to a defence in court. "It is crucial in a constitutional state", ten Doesschate told Advocatenblad in the only detailed press interview she and van Eijck have given, "that every suspect receives legal assistance. Everyone is entitled to a fair trial. This is not self-evident for everyone, but it is extremely important for us as criminal lawyers. It is also important in such a charged case that suspects receive an independent and objective lawyer. Which highlights their side of things."

Van Eijck qualified his relationship to Pulatov further. "It is important to know what our client's legal position is and whether we can access him. Unfortunately, we cannot make any statements about whether this contact is now available." Asked by Advocatenblad about the evidence against Pulatov, van Eijck mentioned Dutch government publications and the NATO propaganda unit Bellingcat. "[The public takes] note of the findings of the Dutch Safety Board, the Joint Investigation Team, Bellingcat and many others. In the age of online media and Twitter, it is hard to imagine that there would be no trial by media." He did not refer to the published evidence from Russia and from independent Dutch and international sources.

To date ten Doeschate and van Eijck have not declared their client to be innocent. They opened their case on March 10. Follow their presentations here, commencing at Min. 4:18:30. Together, they spoke for less than 20 minutes.

They did not respond to the lengthy presentation of the charges and evidence by the prosecutors. Instead, they told the court "it is too early for us", arguing there had been insufficient time for them to read the case file or examine the evidence. They asked the court for more time and for additional investigation of the evidence. In their only reference to Pulatov by name, van Eijck claimed in response to prosecution allegations of Russian state manipulation of the media and hacking of Dutch prosecution files, "our client Mr Pulatov has nothing to do whatsoever with that [Russian state conduct] " (Min 4:30:20).
Van Eijck ten Doesschate Martin van Putten
© Ruptly/YouTube
Left: Van Eijck and ten Doesschate in court on March 10. Right: Martin van Putten, official spokesman for van Eijck and ten Doesschate.
Min 4:28:16 / Source

Ten Doesschate has published several backgrounders on her legal career. According to her firm's résumé, she "mainly handles fraud, money laundering and economic criminal law cases, including environmental criminal law cases. She has also frequently represented medical institutions that were subjected to criminal investigations...Furthermore, Sabine has great experience in assisting investigating officers who are under criminal investigation." In Rotterdam that last sentence refers to ten Doesschate's engagement on behalf of the city's police and prosecutors.

In van Eijck's official career biography, he says: "for many years, he has also been defending police officers in shooting and other violent incidents." Van Eijck also claims to have been "part of an international legal team, defending foreign companies with interests in the Netherlands." These claims are advertised on the SVS website.

The two lawyers were emailed with a request to clarify their career records and to say whether there are conflicts of interest in their relationship with Rotterdam police and prosecutors, including Fred Westerbeke, the lead prosecutor in the MH17 case until last December, when he was appointed chief of the Rotterdam police; and with Dedy Woei-A-Tsoi, who is one of the prosecutors in the court proceeding.

These are the emailed questions:
"1. Ms ten Doesschate has published career résumés which reveal no case of homicide, war crime, military or police crimes, or aviation accident, negligence and liability. Is that correct? Silence in response will be reported as confirmation.

2. Mr van Eijck has published career résumés which reveal no case of mass murder, war crime, military crime, or aviation accident, negligence and liability. Is this correct? Silence in response will be reported as confirmation.

3. Mr van Eijck reports that 'for many years he has defended police officers in shooting and arrest incidents.' For what years and in what jurisdictions have Mr van Eijck's engagements involved the Rotterdam police or Rotterdam prosecutors, when Fred Westerbeke and Dedy Woei-A-Tsoi were serving in those organisations? Silence in response will be reported as confirmation that Mr van Eijck has represented police when Mr Westerbeke and Ms Woei-A-Tsoi shared a common institutional and jurisdictional interest.

4. Mr van Eijck reports that "on several occasions, he was part of an international legal team, defending foreign companies with interests in the Netherlands." Is it correct that these companies included US or other international companies with business interests in the fields of military weapons and aerospace systems, intelligence, dual-use technologies, and cyber-security, excluding Russian companies? Silence in response will be reported as confirmation."
Ten Doesschate and van Eijck had already refused to acknowledge or answer emailed questions directly, so these were copied to the press representative named on the SVS website: "For further enquiries you are referred to Martin van Putten from Headline Communications, +31 (0)6 55836936 / headline.mvanputten@gmail.com."

No company of that name operates in The Netherlands. A website which van Putten publishes identifies only one employee, himself, and one telephone number without a corresponding physical address. Van Putten, who says he worked as a journalist for Dutch state radio and Telegraaf, lists his clients as including the Dutch ministries of Defence, Social Affairs, and Finance; and two units of the Ministry of Security and Justice, the Police Academy and the Netherlands Forensic Institute.

Van Putten was contacted at the listed telephone number, his personal mobile. Asked about his company, he said he had registered it "as a legal entity". Its office telephone number, he confirmed, was his mobile. He also confirmed that he and the two lawyers had read the emailed questions but would not respond to them. He then cut the telephone line.

What of the potential for conflicts of interest ten Doesschate and van Eijck may have in relation to the Rotterdam police and prosecutors, to Westerbeke and Woei-A-Tsoi, and to those international companies van Eijck has represented whose business involved military and intelligence operations against Russia? In addition, van Putten was asked whether he had acted for or reported in the Dutch press on Mikhail Khodorkovsky or his Yukos group of companies during their lengthy litigation against the Russian Government in the Dutch courts.

On behalf of the two lawyers, van Putten emailed: "Apparently my former email didn't reach you as I respond almost immediately to all press requests. As former journalist I realise the annoyance of not getting an answer in time. Thanks for your interest in the case and in the lawyers. However, we do not comment in the media untill after the next session on June 8th. Furthermore our focus is the MH17 case, not the professional careers of the lawyers."

The first sentence was false. Van Putten was asked to provide a copy of the "former email"; he refused. In a follow-up to their dismissal of the conflict questions, he, ten Doesschate and van Eijck were asked again "to substantiate matters of fact which they published about themselves, indeed advertisements of themselves, which they published long before their engagement in the MH17 case. If you and they cannot and do not substantiate, you and they call into question, and in the public record, their fitness to defend in the MH17 trial." The lawyers stonewalled.
helmer email van patten MH17
In Moscow Kovler and Partners is the law firm behind Kutyina's role on the MH17 defence team. About her, acccording to van Eijck, "we form a defense team together. Kutyina is not allowed to act here on behalf of the suspect, but she does provide relevant information for our defence. Just as we provide information to cooperating foreign colleagues in international affairs." What that last phrase means - which foreign colleagues, what international affairs - van Eijck won't say.

Beyond declaring her client's innocence and her scepticism that he will receive a fair trial, Kutyina has told the Russian press little. She explained that Russian law prohibited the extradition of citizens for trial abroad. "If citizens of one state are brought to criminal responsibility on the territory of another state, then naturally the second applies to the first with a request for their extradition. According to the law of the Russian Federation, Russia does not extradite its citizens, but in accordance with international law, it offers to conduct a trial against its citizens on its territory," she said. "The Netherlands refused — there is nothing unusual in this."

Anatoly Kovler Russian lawyer MH17

Anatoly Kovler, head of Russian law firm Kovler and Partners
Russian press reporting on Kutyina has not identified her in a murder trial. In 2001, she defended press celebrity Sergei Dorenko who struck a pedestrian with his motorcycle, and then beat him up for protesting. Kutyina lost the defence; Dorenko was convicted, sentenced to prison, and fined. Kutyina's law firm is headed by Anatoly Kovler (right), a well-known jurist and civil rights advocate on Kremlin advisory committees. Between 1999 and 2012 Kovler was the first Russian judge to sit on the bench of the European Court of Human Rights.

On the list of its clientele, the website of the Kovler law firm says it represents "the interests of employees of the central apparatus of the Ministry of Internal Affairs of the Russian Federation and the Prosecutor 's Office of the Russian Federation in various instances."

Kutyina was asked to clarify her past experience in criminal trials. She was also asked to say if public contributions are accepted to the foundation for defence of Pulatov. She did not reply.

Christopher Black was a Canadian lawyer for the defence in the Yugoslav war trials beginning in 1993, and the Rwanda genocide trials commencing in 1994. Observing the MH17 trial so far, he comments on the defence: "If these lawyers were hired by the Russian government they made a big mistake. [The lawyers] are passive compared to what we did. They should have sent a Russian lawyer who has trial experience and willing to push them... [they should be saying] this is a biased NATO court with a political agenda."

The Dutch Justice Ministry announced as much on April 1. That day, the Dutch Minister of Justice and Security, Ferdinand Grapperhaus, declared his personal and his ministry's support for the conviction of the Russians now standing trial. Grapperhaus made his announcement during a ceremony honouring chief prosecutor Westerbeke with a medal.
Fred WesterbekeJustice Minister Grapperhaus

Left: Fred Westerbeke, now chief of police at Rotterdam, receiving the insignia and medal of Commander of the Order of Orange-Nassau from Justice Minister Grapperhaus (right).
Source

Before his appointment as minister, Grapperhaus made his fortune as an Amsterdam partner for the Anglo-American law firm, Allen & Overy.

In the text of the speech released by the Justice Ministry, Grapperhaus told Westerbeke:
"Not everyone has had pleasant experiences with you. Especially in Russia and in the Donetsk region there are some people around who can drink your blood. In your quest for the truth about the MH17 disaster, you have not been intimidated or stopped by anyone or anything. You have apparently gone straight for your goal: the truth about the facts and with that, justice for the 298 victims and their relatives. [Russian] disinformation campaigns, attacks on the integrity of the investigation, attempts to create confusion, wild accusations — everything seemed to ricochet off you."

"Once you know something for sure, then you really know for sure. Then your case is airtight, and all objections to it fail. It must make [Russians] despair to chase you. I wouldn't count on affection in those circles. But I wouldn't be surprised if even there [Moscow] your name was spoken in awe. But none of that interests you, so I will stop talking about it. Truth and justice, that's what it's been about for the past 5.5 years. Nothing but that... The image I sketched above is the image that exists broadly about you: a completely honest and authentic craftsman who has delivered great achievements in extremely difficult circumstances. This has resulted in His Majesty awarding you the following award: Commander of the Order of Orange-Nassau."
International lawyers interpret this as a Dutch Government attempt to promote conviction of the Russian state in the MH17 trial, and apply pressure on the judges to reach that conclusion in their verdict. Commented a Dutch court source, this is not improper political interference. "The prosecutor is working on behalf of the government in putting together the file for the MH17 trial."

Black again:
"In our trial at the ICTR [International Criminal Tribunal for Rwanda] we pushed the judges to order the prosecution to produce what [evidence] they claimed they had... [the prosecutors] didn't care and nothing was done. We think it was all window-dressing for the press to make the judges appear neutral when they were part of the prosecution. But it will be interesting to see how this turns out."