MH17: The Continuing Charade

mh17-01(L) Reconstruction of MH17, (R) European Court of Human Rights

By James O’Neill*

The Sun Herald (Sydney) of 22 May 2016 reported that the Australian families of the MH17 disaster had “served” the European court of Human Rights (ECHR) with a claim seeking compensation of $10 million for each victim.

The report referred to the “proposed respondents” to the claim being the Russian Federation and its President Vladimir Putin.  The solicitor acting for the plaintiffs was quoted in a separate report (1) claiming, “we have facts, photographs, memorandums (sic), tonnes of stuff.”  He also claimed that the claim document ran to “over 3500 pages in length.”

These reports closely followed the publication of the New South Wales Coroner’s Court report into the deaths of six of the victims who were resident in New South Wales.  The Coroner’s findings closely followed those of the Report of the Dutch Safety Board of 13 October 2015, attributing the deaths of those aboard MH17 to a BUK missile detonating close to the aircraft, causing the plane to disintegrate and a consequent immediate loss of life to all aboard.

It was not part of the Coroner’s jurisdiction to attribute blame, that being the subject of a separate criminal investigation (JIT).  The results of that investigation are expected to be announced later this year.

The Dutch head of the JIT investigation, Mr Fred Westerbeke wrote to all the Dutch victim’s families in February 2016 giving them an update on the investigation.  A query to the Australian Federal Police as to whether the Australian families might receive a similar briefing was effectively ignored.

Something Mr Westerbeke did say that was of particular interest was that the United States had released their satellite data to the Dutch Security Services.  Whether that data could be used and if so in what format, was for security reasons an unresolved issue.

Those data are of considerable significance.  It is known that there were three US satellites overhead the Donbass region at the material time.  They had the undoubted capability of determining exactly what was fired at MH17, from precisely where, and by whom.  US Secretary of State John Kerry claimed as much in an interview with NBC shortly after the tragedy.

The American refusal to publically release the data leads to the very strong inference that it is being concealed for the reason that it does not support the “blame Russia” meme so favoured by the western media.

The incuriosity of the Australian media was again on display when they gave extensive coverage to the report of the alleged claim being filed in the ECHR.

There are a number of problems with this purported claim, accepted so uncritically be the Australian media.  There was a clue in the use of the phrase “proposed respondents”.  If proceedings had been filed in any court, then the respondents are not “proposed”.  They either are or they are not.

A check with the ECHR website on 26 May 2016 showed that there was no record of any such claim having been filed.  John Helmer, on his website (2) reports a similarly negative result when a query was made with the ECHR’s Registrar.

The problems with the alleged claim do not stop there.  As noted above, the plaintiff’s solicitor said that the claim ran to more than 3500 pages.  Rule 47 of the ECHR’s Rules state that the application must contain:

(e) a concise and legible statement of the facts;

(f) a concise and legible statement of the alleged violation(s) of the Convention; and

(g) a concise and legible statement confirming the applicant’s compliance with the admissibility criteria laid down in Article 35(1) of the Convention.

Whatever else they may be, a 3500-page claim does not remotely comply with any definition of “concise.”

The ECHR Rules further provide that any additional submissions do not exceed 20 pages (Rule 47 (2) (b)) in length.

The plaintiffs have failed to provide any relevant details from their 3500 page claim (or at all) that would enable an independent observer to assess what “facts, photographs and memoranda” they have that were not available to the Dutch Safety Board Inquiry.  Given the combined resources available to the Dutch led inquiry, it would be remarkable that a firm of solicitors would be able to state their claims so categorically when a major government report was not able to do so.

The plaintiff’s difficulties do not end with their lack of credibility.

The ECHR Rules further provide that any application made under Article 34 of the Convention is required to be made (Article 35(1)) within six months of the event giving rise to the application.

As the relevant event occurred on 17 July 2014, the six  months expired on 17 January 2015.  No explanation has been forthcoming nor any inquiry made by the incurious mainstream media as to how this potentially fatal flaw in the proceedings could be overcome.

That is not the end of the plaintiff’s woes.  Rule 10(b) governs Article 34 applications to the Court.  That rule requires the plaintiff to demonstrate that “the applicant has complied with the exhaustion of available domestic remedies.”

One of the plaintiffs named in the purported ECHR proceedings is Mr Tim Lauschet, a relative of one of the victims.  Mr Lauschet is also the plaintiff in proceeding 2015/210056 filed in the New South Wales Supreme Court.  Malaysian Airlines System Berhad is the respondent in those proceedings.

The original pleadings sought various declarations that would facilitate a claim for damages under the relevant provisions of the Civil Aviation (Carriers Liability) Act 1959.  That limits liability to a maximum of special drawing rights equivalent to approximately A$215,000.  There is a two year time limit for the making of such claims, so that right expires on 17 July 2016, only a few weeks away.

The purported proceedings in the ECHR makes no attempt to reconcile their $10 million claim with the liability of international air carriers which is considerably less by an order of magnitude.  Neither did the media bother to ask.

The Judge politely pointed out a number of deficiencies in Mr Lauschet’s pleadings (2015) NSWSC 1365) and adjourned the matter with various timetable orders to enable the plaintiff to remedy the many deficiencies in the pleadings.

The matter has been back before the Court a further four times since that hearing, with the only apparent progress being that the plaintiff has now filed a statement of claim. (3)  It is now scheduled for a further Directions Hearing on 30 May 2016.

The conclusion for present purposes must be that Mr Lauschet has not achieved “the exhaustion of available domestic remedies.”  Whether any of the other Australian plaintiffs in the purported ECHR proceeding have even started, let alone exhausted, their domestic legal remedies is unknown.  But in Mr Lauschet’s case (and possibly all of the others) he therefore faces another fatal flaw.

There is one other element in this case that the mainstream media is either unaware of or has chosen to ignore.  In 2012 the then Gillard government made amendments to the Social Security Act 1991 to enable payments of up to $75,000 to victims of terrorism.

Eligibility for those payments (the acronym for which is AVTOP) were backdated to 11 September 2001.  A necessary pre-condition for the payment is a declaration by the Prime Minister of the day that the event concerned was a “terrorist act.”

To date there have been nine such declarations, the latest being the 13 November 2015 attacks in Paris, France.  The shooting down of MH17 should qualify under most definitions as a “terrorist act.”

The relevant Prime Ministers since 17 July 2014, Tony Abbott and Malcolm Turnbull, have not made such a declaration, which would then entitle victim’s families to claim compensation under the Act.

Requests to the Prime Minister’s office for information as to whether such a declaration was going to be made, and if not, why not, were ignored.  A Freedom of Information Act request has therefore been made and is currently pending.

There may be a number of reasons why such a declaration has not been made.  The overwhelming weight of evidence is that only the military units of the Ukrainian armed forces had the means, motive and opportunity to shoot down MH17 (4).

As a recently joined member of Ukrainian President Poroshenko’s “advisory council” former Prime Minister Tony Abbott would be in a difficult position if the shoot down was declared to be a terrorist act and the JIT investigation put the blame where it rightly belongs, on the Ukrainian government.  It is not surprising that the announcement at the recent ASEAN-Russia meeting that Malaysia and Russia were cooperating in an investigation of the MH17 tragedy caused concern in US and Ukrainian circles. (5)

Although the current Australian Prime Minister Turnbull has been more circumspect than his predecessor in making ill-conceived allegations against Russia and its President, he will not wish to expose himself to a finding by the JIT that does not fit the propaganda meme so assiduously pursued by the western media.

There are a number of losers in this charade, not least the victims of the atrocity and their families who deserve better than to be exploited by both politicians and dubious claims in the ECHR.  The public, who might reasonably expect to be better served by their media, are also the losers.

*Barrister at Law 

References

  1. John Helmer Australian Court, Lawyers in New MH17 Fabrication. russia-insider.com
  2. Dances with Bears http://www.johnhelmer.net
  3. Personal communication with solicitors for the respondent.
  4. See for example, Appendix T of the Report of the Dutch Safety Board October 2015.
  5. fort-russ.com 25 May 2016.
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Comments

  1. New video from German journalist Billy Six with Slava and Christina about the early horrors of MH-17.

  2. The SOCIAL SECURITY ACT 1991 is based on the “less eligibility” principle that was adopted by Great Britain under Elizabeth 1st. It has nothing to do with government liability:

    SOCIAL SECURITY ACT 1991 long title
    An Act to provide for the payment of certain pensions, benefits and allowances, and for related purposes

    SOCIAL SECURITY ACT 1991 Section1061PAH
    AVTOP is not compensation or damages
    For the purposes of any law of the Commonwealth, a payment of AVTOP is not to be treated as being a payment of compensation or damages.

    Otherwise a well-informed article.

    • James O'Neill says:

      According to an official release from the office of then Prime Minister Tony Abbott on 14 October 2013, the victims of past terrorist acts would be entitled to an AVTOP payment worth up to $75,000. The “AVTOP provides a formal mechanism for delivering monetary assistance.”
      Although the Social Security Act explicitly states that it is not to be treated as being a payment of compensation or damages, it is difficult to perceive it as other than compensation to the families of victims.
      With respect, reality trumps terminology. As the parliamentary release says, “The AVTOP is a one-off, lump sum payment intended to provide financial assistance to those affected by a ‘declared overseas terrorist act'”
      The key trigger is a Prime Ministerial declaration that the event was an ‘overseas terrorist act’ and that is what is lacking in the case of MH17 nearly two years after the event. It is reasonable to ask why, and my FOI request to the PM’s office is intended to find out why.

  3. Well, then, who ended up owning the corporation with the patent rights to the technology developed by the Chinese passengers of the MH370?

    • Pray tell.
      Bit of research provides the answer. Try the usual lot.

      • “Among the 239 people on board flight MH370, which disappeared on 8 March, 2014 were 14 nationalities represented in the 227 passengers and 12 crew travelling from Kuala Lumpur to Beijing. The majority – 153 people – were Chinese.”

        • And your point is?
          Of the 153, how many held the technology and interests relevant to their successors taking over their corporate technology.

  4. Izaates bar Monobazues says:

    Just stumbled on this great gumshoe site and want to inject into dialogue one critically important document, read it an weep:

    http://johnhelmer.net/?p=15751

    • John Helmer’a analysis is essential reading.
      Bet the msm and our electoral candidates do not read it and consider the implications.
      Cannot have the electorate asking questions can we?
      Who cares who wins the origin footy match?

  5. As a newcomer to this site, I make comment that may already have been covered. When the report that MH17 had been brought down, observers on the ground, stated that rotted corpses were falling from the sky. My intuition tells me that these corpses could have been the passengers of flight MH 370
    which disappeared some weeks before. A DNA sample taken from these remains compared to DNA of known relatives of flight MH 370 should be done. If there is relationship between these comparisons, we know what happened to flight MH 370.
    However the authorities have probably made sure that these remains have been burnt and hidden.

    • James O'Neill says:

      Aussie Mal. I am afraid that the “rotting corpses” story was disinformation. Why someone should spread that and other nonsensical rumours is itself an interesting question.

      The link with MH370 is of a different character. The type of satellites over Donbass are covering all of earth’s surface. You may have noted that the crashes of the recent Egypt Air disaster and the earlier German Wings very quickly had the Americans releasing their satellite data. Something they have conspicuously failed to do with MH17 and MH370.

      I intend to write a piece on MH370 sooner rather than later. In the meantime you might like to google uninterruptible auto pilot control and contemplate how that was used to direct the airliner, that just happened to have some key technical Chinese people aboard.

      • I suggest Mal that you take the hint from James………..might need a little research for you.
        “rotting bodies’! really?

        • BTW Mal, look up; who ended up owning the corporation with the patent rights to the technology developed by the Chinese passengers.

  6. James O'Neill says:

    By way of update, I advise that after John Helmer and I separately published articles on the claim said to have been filed in the ECHR, the Court advised that a claim had been filed on 9 May 2016. The claim is listed as Ayley & Others v Russia No 25714/16. (Ayley is the wife of a NZ victim).
    No details of the claim have been released by the court and the documents are not available online.
    The reason for this is that the filing of a claim does not mean that it will necessarily proceed. It must first be examined by the court to determine its admissibility.
    As I noted in the original article, there are two huge stumbling blocks to admissibility: it is out of time by a considerable margin; and domestic remedies have not been exhausted.
    There is no indication from the court as to when the decision will be made, but if precedent is a guide it may be a long time.

  7. Slightly off topic. The island of Puerto Rico, with 3.5 million people, has a debt of 2 billion coming due on July 1st, 2016. The Hispanic caucus in the US Congress is fighting over this. The House Minority leader, Nancy Pelosi, wants a particular bill to be passed but one member, who represents a district in Illinois, Rep Gutierez, said:

    “People didn’t send me here to Congress to roll over and play dead.”

    What a great line. What a concept!

  8. “False Flags,” by Larry Chin, first published in December, 2014 by GR; republished May 29, 2016 at at globalresearch.ca.

    Here is an excerpt:

    A US-NATO coup, engineered by the CIA, toppled the government of Ukraine, planting a pro-US neo-Nazi criminal apparatus on Russia’s doorstep. The CIA and its worldwide network of propagandists pinned the blame on Putin and Russia for aggression, and for obstructing “democracy”.

    The MH-17 jetliner is downed by Ukrainian operatives, with the support of the CIA, Mi-6, etc. etc. This false flag operation was blamed on Russia— “Putin’s Missile”. The US and NATO are still trying to pin these murders on Putin.

    The war against the Islamic State—a massive CIA false flag operation—seeks to topple the Assad government as well as to militarily counter Russia. The ongoing Anglo-American conquest of regional oil and gas supplies, and energy transport routes is also aimed at checkmating Russia and China across the region.
    The US and NATO have attacked the Russian federation with sanctions. The US and Saudi Arabia have collapsed oil prices, to further destroy the Russian economy.

    Full-scale military escalations are being planned. The US Congress is pushing new legislation tantamount to an open declaration of war against Russia.

  9. Con Dassos says:

    How in their right mind would believe anything written in the SMH regarding a geopolitical event….you might as well read the New York Times or subscribe to the NSA or CIA!

    They are the puppet masters & have been for decades.

    • Con, are you serious?
      Would a ‘prestige’ paper like the Fairfax People Falsely advertise and/or represent to the public, in commerce or trade; the SMH as being “INDEPENDENT ALWAYS” on the front page of the SMH.
      Surely not?
      That might constitute a possible breach of the Fair Trading Act [NSW] or The Trade Practices Act [Cwlth] which the SMH Editor would be aware of.
      Nah! No way! We can trust the SMH to stand by the representation. Surely?

      • Con Dassos says:

        Hi Ned
        Just loved 😆 the wit in your comment, absolutely beautiful. SMH is just a mouthpiece for U.S. intelligence, as we all know, we ALL know.
        What they print is an absolute construct of greatest deceit and naivety a newspaper can do. What an absolute joke!

        • Con,
          Sorry (!) my comment was a bit of black humour. (Love black humour, one would die with out it)
          Nevertheless the smh has to explain it ”self’ and their prostituded presstitutes, being aiding and abettors of about 2m killed in the Middle East and destruction of most of the 7 countries reported by General Wesley Clarke to Amy Goodman in March 2007.
          Add the resulting Muslim invasion of Europe.
          If the smh ( and the ABC with the Murdock mob) was a used car dealer, expect the vehicle’s odometer to be wound back to zero.
          The msm is a controlled treasonous, lying anti-democratic social cancer defrauding its subscribers.

          • Con Dassos says:

            That’s right Ned, the problem is that they really see this as their role….a sort of “white man’s burden” in the 21st century.

            What have they done Ned!, what HAVE they done!!
            ( Didn’t Putin say this in the United Nations in addressing US hegemony)

          • Their controllingb role is to implement the corporate fascist (UN agenda 21) new world order.
            [ref: Dr. Day NWO exposed 20th March 1969] [search at gumshoenews.com]
            Look up how the msm since the 70’s has been taken over by about 6 entities controlling over 90% of ALL western mass media as per the fascist controlling lying agenda.
            Murdock is one of the six!!!!

  10. “As a recently joined member of Ukrainian President Poroshenko’s “advisory council” former Prime Minister Tony Abbott” …… Abbott? What possible interest does Abbott have grovelling to a Zionist nasty like Poroshenko? Oh well, Gillard got her payoff from Haim Saban’s Brookings Institute, so its no great stretch to imagine treason running through both sides of our fake Left/Right paradigm.

    • So what are you going to do about it, Paul? Just suffer a bunch of traitors?

      • Paul, to assist in your making a complaint to police, if you think someone is guilty of treason, I note that Oz law is not easy to enforce re treason, but The Criminal Law Consolidated Act 1935 of South Australia says:
        Section 251.
        1. A public officer who improperly (c) uses information that the public officer has gained by virtue of his public office… with the intention of (d) securing benefit for himself, is guilty of an offense. Maximum penalty 7 years.

        Sounds like a reasonable law to me. Law is reasonable.

  11. Pardon my error. It should have MA 370 for previous comment.

  12. MH17 tragedy . Then 804 days later Egypt Airways fight 804 ?

  13. The Australian Government needs to apologise to Russia and Putin for it’s aggressive stance towards them, right from the outset, when non one had any idea what had brought MH17 down!
    Don’t think for 1 minute that the Warmongering USA, with the help of complicit media, if it had definite proof of Russian involvement, would not have produced it to the public, by now!

  14. BUK missile did tests and found that the spray pattern on the MH17 was that of their older missile, which is not what the Russian were using, but it is what the Ukrainian armed forces had

  15. James are there any MH17 Coroner’s reports in states other than NSW?

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