Proces MH17
frequently asked Questions

                                   

Q&A

What rights do relatives of victims of the MH17 disaster have in the criminal trial?

Relatives of victims of the MH17 disaster have different rights during the criminal trial.
1. Right to information;


2. Right to an interpreter (free of charge) if the relative of the victim has insufficient / no command of the Dutch (and possibly English) language in this case;


3. Right to speak;


4. Right to legal counsel. In this case, the relatives are assisted by the Rechtsbijstandsteam (this is the Legal Aid Team). Lawyer Sander de Lang is part of the RBT. Assistance in the MH17 case is free of charge for the relatives;


5. Right to view the criminal file. However, due to the fact that the MH17 case is a large, international case that attracts a great deal of attention, the Public Prosecution Service must be extra careful when dealing with information from the criminal file. Therefore, as a relative of a victim, it is unfortunately not possible to receive the complete file. The Public Prosecution Service wants to prevent the reliability of witnesses from being influenced by messages from the media;


6. Right to compensation, see below: "what claims can relatives submit?”.

What does the right to speak mean?

During the trial of MH17, relatives of the victims will use their right to speak. The right to speak is a right for victims and relatives of victims to make a statement during the criminal trial. The main purpose of the right to speak is to offer the victim the opportunity to emotionally deal with the previous events. Judges, suspects, lawyers and potentially other attendees listen to the story of the victim. The right to speak only exists in trials handling serious crimes. 

This is the case when the crimes:
- have a minimum penalty of 8 years of prison
- are of a certain nature, such as sexual crimes, stalking and threat.

The victim may decide upon the details he wants to give in his statement. The statement can include a the description of the event, the consequences of the crime and the appropriate punishment for the perpetrator.
The victim has four options to convey his statement:


1. The victim speaks during the trial while having the statement on paper;


2. The victim speaks during the trail without having submitted a written statement;


3. The victim submits a written statement but does not read the statement out loud during the trial;


4. The victim has the statement read by someone else, for example the lawyer;
The statement will be added to the case as a procedural document, except if the victim has made use of option 2.

The following persons can use the right to speak:
- The victim himself;
- Survivors (to a maximum of 3 people);
- The legal representatives of a minor;
- A person authorized by the victim;
- The life companion + 1 other family member in case it is not physically possible for the victim to make the statement himself.

What is a written victim statement?

A written victim statement is a statement in which the victim makes use of his right to speak. In some cases, the victim deliberately chooses not to make his statement known orally to the court, because the victim does not want to be confronted with the perpetrator(s).
The court of the MH17 case still has to determine in which way the relatives of the victims can use their right to speak.

Which claims can relatives submit?

Relatives can submit a claim for compensation during the criminal trial.
It is required that the damage is directly related to the actions of the suspect. Because some relatives have already received a certain compensation as a result of the settlement with Malaysia Airlines, not all relatives can file a claim for compensation. This is only possible for the relatives who have not been already (fully) compensated. 
Would you like to know which claims can be submitted? Please contact attorney-at-law Sander de Lang, who assists a large group of relatives in the MH17 criminal case.

How long will the criminal proceedings take?

The handling of the MH17 case will take several years. The expectation is that the process will take up to two to four years.

What is the Rechtsbijstandsteam (RBT)?

After the Public Prosecution Service announced in mid-2019 the intention to prosecute four suspects for the MH17 disaster, the RBT was established to provide legal assistance to all relatives of the victims. The RBT consists of nine lawyers, including the initial team and two criminal lawyers who were added later on. Attorney-at-law Sander de Lang is a member of both the RBT and the MH17 core team and has been involved in the MH17 disaster since day 1.

Are relatives entitled to the criminal file?

Relatives of the MH17 victims have the right to information. This means that they are entitled to access to the file and to receive copies of documents.
The Public Prosecution Service believes it is important that the relatives are notified of the progress in the criminal proceedings before announcements are made to the press. However, due to the fact that the MH17 case is a large, international case that attracts a great deal of attention, the Public Prosecution Service must be extra careful when dealing with information from the criminal file. The lawyer of the relative can always make a request to see certain information, but there is no guarantee that all requested information will be released.

When will the sessions of the criminal trial take place?

The MH17 process will initiate on the 9th of March 2020. On the 9th of March, the first phase will start, compromising the pre-trial reviews. It is unclear how much time these reviews will take. For this reason it is not yet decided when the substantive process will start.
The court of The Hague has reserved the Justititeel Complex Schiphol for the handling of the MH17 case on the following dates: 

9th - 13th of March 2020
23rd – 27th of March 2020
8th of June – 3rd of July 2020
31st of August – 13th of November 2020
1st of February - 26th of March 2021

Who can attend the sessions of the criminal trial?

The handling of the MH17 case will take place in the Justitieel Complex Schiphol in Badhoevedorp (NL). The session will take place in session room D. Room D is designated for parties who have a fixed role in the process, such as the lawyers of the relatives (the “Rechtsbijstandsteam”; RBT) and the Public Prosecution Service. In the rooms directly next to room D, interested parties and journalists can follow the process via a live stream. In order to attend the trial as an interested party, you must register online via the court's website for security reasons. Without registration it is not possible to attend the session.

What is the legal basis for the MH17 criminal trial?

The countries that are part of the JIT (Joint Investigation Team) have established a treaty together that determines under what circumstances and at which location the trial will take place. This treaty was adopted by the States General of the Netherlands and subsequently the Act on Persecution and Trial of Suspects MH17 came into force. On the basis of this law, the court has jurisdiction to try the suspects.
The most important subjects in the treaty are:
The Netherlands has the jurisdiction to prosecute the suspects on behalf of the JIT countries;
Judgment takes place via a video conference;
Extradition of suspects;
The implementation of the penalties.

What are the differences compared to a Dutch criminal trial?

Dutch criminal procedure law will form the basis during the trial. However, due to the special nature of this case, a number of adjustments have been made to the Act on Persecution and Trial of Suspects MH17. The differences are as follows:
Only the court in The Hague has jurisdiction to handle the MH17 case. Under Dutch criminal procedure law, the jurisdiction of the judge / court is determined on the basis of the region where the offense took place or where the suspect resides.
Under Dutch criminal procedure it is not possible for another country to request the Netherlands to prosecute one of its residents (taking over prosecution) if this resident has his domicile or residence outside the Netherlands. In the Act on Prosecution and Trial of Suspects MH17, the Dutch court is nevertheless authorized to deal with this case.
The law has made it possible to try the suspect via a video conference. This is not possible under normal criminal procedure; the trial then takes place within the courtroom.
Due to the international nature of the trial, the chairperson of the criminal trial may determine that English is the spoken language during the trial.
Articles 53 and 54 of the Transfer of Criminal Judgments Act are declared inapplicable during the trial.

What is the JIT?

The JIT is responsible for the investigation of a case with an international dimension. For the MH17 case, a special MH17-JIT has been set up. Authorities from the Netherlands, Australia, Malaysia, Belgium and Ukraine work together in the JIT. In order to investigate the matter as effectively as possible, the JIT has drafted rules for all participating countries. The MH17-JIT has investigated the cause of the crash and it has tracked down the suspects.

Which judges will handle the case?

The case MH17 will be handled by three judges and one reserve judge. For court cases that are expected to take a lot of time, a reserve judge is more likely to be employed. When it is no longer possible for one of the three main judges to handle the case, the reserve judge can step in.

The chairman of the case is mr. H. Steenhuis. The other two main judges are mr. D.A.C. Kosters and mr. C.I.H. Kerstens-Fockens. The reserve judge is mr. D.R. Glass.

What is a pre-trial review?

For major, complex court cases (i.e. the MH17 case), a pre-trial review will be held prior to the substantive process. This gives involving parties, i.e. the judge, the public prosecutor and the attorney-at-law the opportunity to discuss how the conduct of the procedure will take place. To give an example: during this review one may discuss whether hearing witnesses at the request of the suspect is desirable. The pre-trial review is part of the prosecution and it is up to the judges what the further process will look like.

Who are the key players in the MH17 criminal trial?

The key players in the MH17 process are the judges, the Public Prosecution Service, the Rechtsbijstandsteam, also known as RBT (that is the team of lawyers representing the relatives), the four suspects and the lawyers of the suspect(s).

What are the suspects prosecuted for?

Mid 2019, the Public Prosecution Service has decided to prosecute the four suspects in the matter of the MH17 disaster. The suspects are prosecuted for the following crimes:
1. Crashing an aircraft (Sections 168 and 47 of the Dutch Criminal Code).
2. Murder/manslaughter (Sections 289, 47 and 48 of the Dutch Criminal Code).

How were the suspects summoned?

The public prosecutor has via a writ of summons ordered the four suspects to appear on the 9th of March 2020, the 8th of June 2020 and the 1st of February 2020.

Where will the criminal trial take place?

The case of MH17 will be handled by judges connected to the court of The Hague. Considering the scope of the case and the enormous international interest by among others the media, the MH17 process will not take place at The Hague, but at the Justitieel Complex Schiphol (JCS). Another reason for this location is that the complex is better secured.

                               

For more information about all ongoing procedures.

please contact Sander de Lang (+31 (0) 33-4613028, S.de lang@sapadvocaten.nl )

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