The MH17 trial: a rare chance for “the most inquisitorial” system

In the previous post, I suggested that a criminal trial in the Netherlands, and by analogy in other inquisitorial systems, could be regarded as a critical discussion of key documents in the pre-trial dossier, with both the defense and, ideally, the judge interrogating witnesses to test the validity of the prosecution’s arguments.

The importance of the dossier – and, therefore, the pre-trial stage – can’t be overstated. According to Brants and Field (2016),

Although the trial court has an actively investigative function, the central role of the dossier means that there is only one version of the truth on paper to guide its investigation. This agenda-setting function of the dossier, assumed to contain all incriminating and exculpating evidence, places the emphasis very much on pre trial procedure and pre-empts the necessity of producing all of the evidence and every witness in court.

In theory, the defense has a role to play during this crucial, pre-trial stage:

… their role is to ‘look over the prosecutor’s shoulder’ during the investigation and compilation of the dossier and to point to any indications of innocence that may have remained unexplored, at which point the prosecutor should explore them. Should he consider this unnecessary or simply not do it, the defence may request that either an investigating judge or the trial court order further investigations to be conducted; whether they do so depends on whether they deem it necessary for truth-finding purposes.

This train has left the station: the dossier is complete and no Russian lawyers had any say in its preparation, as far as I know. At any rate, the indictments only came at the end of the investigation so it would have been too late for the defense to interfere even if the accused had chosen to take part in the process.

Once the trial begins, the primary role of the defence is to cast doubt on the prosecution case, among other things, by prompting the judge to ask the relevant questions.

I’m disappointed that Russian theories of the accident, however bizarre, won’t be advanced and debunked in the courtroom. Nothing compares to a well-argued, unemotional takedown of an untenable theory at a public venue.

But these are minor points relative to the elephant in the room: as things stand now, the accused are unlikely to take part in the trial in any way, either in person or through their lawyers. The law in the Netherlands allows for defendants to stay away from the hearings while sending in their lawyers. In Lala v. the Netherlands (1994), the ECHR ruled:

The fact that the defendant, in spite of having been properly summoned, does not appear, cannot – even in absence of an excuse – justify depriving him of his right under article 6(3) of the Convention to be defended by counsel.

This maxim has been since incorporated into the Dutch law. In addition, a law passed in 2018 specifically for this case permits the accused to take part in the hearings via a video link. Will the defendants avail themselves of these opportunities? Let’s say it’s highly unlikely for a number of reasons – it’s just not going to happen if you ask me. No one will show up – neither the defendants nor their lawyers – turning the hearings into a “non-contradictory” trial. It’s probably the best strategy if one seeks to devalue the prosecution’s evidence.

The best response would be to hold a high-quality debate over the dossier in the courtroom, but how can that be achieved? I would appoint a devil’s advocate to play for the defense but it’s obviously not going to happen. The only way out is for the judges to do the job of the defense team. Why not, after all? If, as the Dutch psychologist P. J. van Koppen claimed in 2007,

[t]he Dutch system is the most inquisitorial among inquisitorial systems and provides a good baseline to understand how such a system works…

…then why not give it a chance to realize its inquisitorial potential to the full. Let the judges examine the dossier on their own, playing defense and prosecution by turns, and see if their skepticism can rise up to the level of good defense lawyers and genuine scientists.

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