Fact-finding at the MH17 trial: the dossier

Legally speaking, the MH17 trial should focus on the defendants’ guilt or innocence as well – if guilt is established – on the fitting sanctions on the offenders and compensation for the victims. In order to convict, however, the court will have to establish beyond reasonable doubt that the plane was shot by the separatists and/or their Russian helpers. Then the defendants will have to be found responsible for that act, else they can’t be guilty of murder. It’s also possible but by no means required or guaranteed that the defendants’ links with senior figures in the Russian government will be exposed.

The trial is scheduled to start on March 9, 2020, at the Hague district court. The international team of investigators from the Netherlands, Australia, Malaysia and Ukraine (JIT) has put together a dossier that will be passed on to the judges, the prosecutor and the defense and will probably serve as the backbone to the hearings. According to Introduction to Dutch Law (2016):

The bulk of the information that forms the basis for the final decision of the court is already available in written form when the trial begins. This information is contained in the case dossier with which the judge and the prosecutor are familiar before the trial. In addition, a copy of the entire dossier is made available to the accused and defence counsel…

One major difference from the Anglo-American system is that all the information gathered for the trial – the fruit of the preliminary investigation – is available to both parties and the judges from the start. Called a dossier, this hodgepodge of police reports, interrogation records, phone intercepts, “scientific examinations” and motley bits and pieces does not rise, by itself, to the common-law standard of evidence. This dubious compendium sets the general direction for the trial, which can be seen as an extended commentary on the dossier.

At best, the defense can hope to show that the dossier fails to support the prosecution’s contentions; at the very best, the dossier might – once properly interpreted – point at the defendant’s innocence and the investigators’ ineptitude. However, it’s normally beyond the defense’s capabilities to provide a well-founded alternative theory of the crime.

Prof. Chrisje Brants of Northumbria University and University of Utrecht wrote in 2013:

What happens at trial is predominantly determined by the trial “dossier” compiled by the prosecution. During its compilation, the defense may point the prosecutor towards avenues of investigation favorable to the defendant and the prosecutor has a duty to investigate them, but once the case comes to court, the defense role is purely reactive – an attempt to cast doubt on the prosecution’s case, among other things, by prompting the judge to ask the relevant questions. The trial judge has an actively investigative function, although the central role of the dossier means that there is already one version of the truth on paper that guides the investigation by the court.

There’s a similar take on the centrality of the dossier to the trial in Introduction to Dutch Law:

The interaction between the judge, the prosecutor and the accused and his counsel focuses in particular on the evaluation of the written statements already in the case dossier.

Stijn Franken took a similar view in Finding the truth in Dutch courtrooms (2008):

…truth finding in courtroom becomes essentially a matter of verifying the work that has been done by the police in the preliminary stage. This verification process is primarily based on the paperwork completed in the investigation stage. As already mentioned, judges decide in most cases on the basis of this dossier, with few questions being posed to the defendant and no witnesses being heard at the trial.

All this – especially the last sentence – doesn’t bode well for the quality of evidence to emerge from the typical trial. All uncontested “evidence” from the case file must remain open to doubt. But this particular trial doesn’t have to conform to these characterizations. The judges might decide to play the devil’s advocate – or the defense counsel – and engage in rigorous fact-finding through witness questioning.

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