The public prosecutors in the trial against the four MH17 suspects refuse to grant the relatives access to the full criminal file. The Public Prosecution Service fears that evidence could leak to the media through the relatives, potentially leading to a form of ‘trial by media’.
Some of the relatives disagree and want to be able to review everything. According to their lawyers, 'knowing everything' is beneficial for the grieving process. Critics argue that the very fact that the prosecutors are (still) unwilling to share parts of the evidence creates the impression that the Public Prosecution Service apparently has something to hide. Additionally, the Public Prosecution Service makes a fundamental distinction between ‘public disclosure’ and ‘allowing relatives to view’ the evidence, as clarified during a press conference.
Victims and relatives have a legal right to documents from the case file if a trial is conducted. Such a file includes, among other things, official reports, witness statements, and forensic research reports. The Code of Criminal Procedure states that victims are entitled to ‘a copy of case documents that are relevant to them.’ The relatives claim the entire file is ‘relevant to them.’
However, last autumn the Public Prosecution Service informed MH17 relatives that they would only be able to read a summary. The Public Prosecution Service states that relatives will receive a 160-page summary while the entire 36,000-page file remains confidential. This means that more than 99% of the investigative findings will remain secret for the relatives.
Normally, victims and relatives receive the necessary documents well before the start of a trial. According to the Public Prosecution Service, this is apparently not desirable in the MH17 trial. The law provides for the possibility to withhold case documents if this could harm the investigation and prosecution. According to the relatives’ lawyers, this is not the case.
Furthermore, on Tuesday, the second day of the hearings, it became clear that the lawyers had access to a not-yet-public official report outlining ‘the main lines of the case,’ but not to various related relevant ancillary files. Moreover, the lawyers apparently had to promise not to share that information with their clients/relatives.
Piet Ploeg, chairman of the MH17 Disaster Foundation, which represents most of the relatives, disagrees with the decision of the Public Prosecution Service. They want as much access to the case files as possible and preferably as soon as possible. Relatives want to exercise their right to speak. And to prepare, you need to know what evidence there is and exactly what witnesses have stated. Only a 160-page summary seems insufficient. You don’t know what is in the other 36,000 pages, he said. The Public Prosecution Service believes that those 160 pages are sufficient to prepare.