Photo ANP Robin van Lonkhuijzen
Introduction

Fred Westerbeke - Chief Public Prosecutor of the National Public Prosecution and Coordinator Joint investigation Team

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

Photo Family counsellors (Harro Meijnen)
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."

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.

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.

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. "

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 Prosecutor’s Office (hereafter: LP) was the designated prosecutor's office to lead the investigation, with support from many staff members from other public prosecutor’s 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 prosecutor’s 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 victim’s 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."