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DUI 1 Letter of 5 July 2017 from the Minister of Security and Justice and the Minister of Foreign Affairs to the House of Representatives of the States General concerning the decision on the MH17 prosecution mechanism I am writing on behalf of the Minister of Foreign Affairs and in my own capacity as Minister of Security and Justice to inform the House of the decision that has been taken in relation to the mechanism for the prosecution and trial of those suspected of the downing of Malaysia Airways flight MH17. After consultations, Australia, Belgium, Malaysia, Ukraine and the Netherlands – the countries whose law enforcement authorities are collaborating in the Joint Investigation Team (JIT) – have opted for a national prosecution and trial conducted in and by the Netherlands. The process will be rooted in close and ongoing international cooperation and support. The Dutch Public Prosecution Service will make the relevant decisions regarding prosecution (e.g. on matters like the summoning of suspects) at the appropriate time. The countries concerned are convinced that such a mechanism is in keeping with UN Security Council resolution 2166, which demands that those responsible for this incident be held to account, thereby doing justice to the interests of the 298 victims and their next of kin. Preparations for the prosecution mechanism After the Russian Federation’s veto in the UN Security Council on 29 July 2015, the Netherlands entered into further consultations with the JIT countries. Those countries’ heads of government decided to flesh out the legal and other implications of two possible prosecution and trial mechanisms: first, a national prosecution and trial in one of the countries involved in the criminal investigation, and second, an international prosecution and trial conducted by a tribunal established by multilateral treaty. In a letter to the House of 24 October 2016 (Parliamentary paper 33 997, no. 87) the government indicated that a decision on the most effective criminal prosecution and trial mechanism would be made as soon as the criminal investigation allowed. The Public Prosecution Service recently informed the government that the JIT’s criminal investigation required that such a decision be made. The investigation is entering a stage where the Public Prosecution Service needs clarity regarding the legal framework in which prosecution will take place. DUI 1 Before a decision could be made, it was first necessary to obtain clarity regarding the scope for concluding a treaty with Ukraine on criminal law cooperation aimed at conducting the prosecution and trial in the Netherlands, and regarding political and financial support for the prosecution and trial from the JIT countries. That clarity has been now been provided. Now that it has been decided that the prosecution and trial will be conducted in the Netherlands, work can get underway on making all the necessary preparations. A national prosecution rooted in international cooperation The decision that the prosecution of those responsible for the downing of flight MH17 will be conducted in the Netherlands was taken jointly by the JIT countries. The choice was between a newly established tribunal and a national prosecution conducted in and by the Netherlands. The Dutch government asked the JIT countries to make their preference known, and the JIT countries then followed their respective national procedures in order to arrive at a position on the preferred mechanism. On the basis of the JIT countries’ preferences, the Public Prosecution Service’s advice and an assessment of the relevant aspects of the two options, the Dutch government also expressed a preference for a national prosecution conducted in and by the Netherlands, rooted in close, sustained international cooperation and support. In this way the preferred mechanism was decided on jointly. Bilateral treaty with Ukraine To facilitate the Dutch national prosecution and trial the Netherlands and Ukraine have identified a number of topics on which arrangements will be laid down in a bilateral treaty, as outlined above. The arrangements cover several areas: Ukraine’s transfer of criminal proceedings in regard to the downing of flight MH17 to the Netherlands, the scope for examining any possible suspects via video link, and the transfer of enforcement powers with respect to any prison sentence that may be imposed. The transfer of criminal proceedings from Ukraine – the country where the downing of flight MH17 took place – to the Netherlands will make clear beyond doubt that the prosecution and trial in the Netherlands can encompass all the victims, regardless of their nationality. This is an important condition for Australia and Malaysia. The Netherlands and Ukraine have now reached agreement on the substance of the treaty. The treaty is expected to be formally signed later this month. After signature the treaty will be DUI 1 presented to the House for consideration, together with the necessary legislation for approval and implementation. Political and financial support The JIT countries have expressed their political and financial support, and this will be formalised with the signature of Memorandums of Understanding (MOUs). All the JIT countries have expressed their full confidence in the Dutch justice system. They have also expressed their commitment to continuing their effective cooperation as the process moves into the prosecution phase, and have agreed to jointly approach the other grieving nations and relevant international organisations for political and/or financial support. International elements The downing of flight MH17 killed 298 people from 17 countries across five continents. The incident constitutes a threat to international civil aviation safety and for this reason ensuring that the truth is established and justice is done is a matter for the entire international community, a point emphasised in UN Security Council resolution 2166. To underline the importance of international engagement, the authorities involved examined the scope, within the existing legal framework, for incorporating international elements into the prosecution and trial in the Netherlands. Examples include establishing an international team to serve as an advisory committee to the Dutch Public Prosecution Service and providing extensive scope for the next of kin in other countries to follow the trial in its entirety. All the JIT countries have indicated their willingness to cooperate actively with the further development of these proposals. The judicial authorities of the JIT countries will thus continue to collaborate in the prosecution phase. Careful assessment In determining the Netherlands’ preferred mechanism, the government naturally requested the advice of the Public Prosecution Service. In addition, it carefully examined and assessed the relevant aspects of both prosecution options. The Public Prosecution Service recommended conducting the prosecution and trial in the Netherlands, while paying heed wherever possible to the international character of the case. As described above, there are significant differences between the two options, which were relevant in the decision-making process. The Dutch justice system has an outstanding international reputation. The trial will take place within the tried and tested framework of Dutch criminal justice proceedings, on the basis of DUI 1 tried and tested substantive and procedural criminal law. The position of the victims’ next of kin is safeguarded in this arrangement – they will have the right to be heard, for example, and the opportunity to join the criminal proceedings – and the next of kin of the Dutch victims will be able to follow the trial up close, in the Netherlands. What is more, the Netherlands maintains a joint legal framework with many countries for legal assistance and extradition arrangements, based on multilateral and bilateral treaties. It goes without saying that the Netherlands’ efforts are geared towards ensuring that identified suspects are arrested and, if necessary, extradited to the Netherlands. Obviously, it remains to be seen whether this can be achieved. As regards any Ukrainian or Russian suspects who remain in their own country, it should be noted that extradition will most likely not be possible, as the constitutions of both Ukraine and Russia prohibit the extradition of their nationals. It is possible (in theory) that a suspect may voluntarily surrender to the Netherlands in order to stand trial here. Obviously, the various parties concerned carefully assessed the various pros and cons associated with establishing an international tribunal. If an international tribunal had been established, it might have been possible that a contracting state’s constitutional prohibition on the extradition of its own nationals may not have applied in respect of other contracting states of that tribunal. In view of Ukraine’s own such prohibition, the bilateral treaty with Ukraine provides for any Ukrainian suspects to be examined by video link with the Netherlands. A further aspect of establishing an international tribunal for the prosecution and trial of those suspected of downing flight MH17 is that it might have underscored the international community’s collective interest in establishing the truth and ensuring justice. The countries concerned hope to do justice to this collective interest by opting for a national prosecution conducted in and by the Netherlands that is nonetheless rooted in international cooperation. Unlike in the case of a national
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