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Miller Commission’s legal expert calls for reopening of the Smolensk crash investigation!

SCND August 23, 2015

Miller Commission’s legal expert calls for  reopening of the Smolensk crash investigation!

As the political climate in Poland changes and the governing coalition loses popular support, members of the Miller Commission look for various exit strategies from their untenable position that rubber stamped the Russian conclusions on the causes of the Smolensk crash. The Polish Government led by Civic Platform has been consistently rejecting persistent calls to reopen the Smolensk crash investigation in light of the new material evidence presented by the Parliamentary Committee for the Investigation of the Smolensk Crash and the academic community associated with the three annual Smolensk conferences. But finally when faced with high prospects of losing power in the October 25 2015 parliamentary elections, the government functionaries seek to make their findings on Smolensk disaster bullet proof for the upcoming administration. In order to assure their influence over the inevitable new investigation into the Smolensk crash, they decided to make their case for the Russian version of events to the international community of air crash investigators.

Accordingly, Dr. Maciej Lasek and Piotr Lipiec undertook a mission to convince their colleagues from the International Society of Air Safety Investigators (ISASI) to their version of events in anticipation of an obvious decision by the new Polish government to reach out to these international experts for their expertise in the Smolensk case in the near future. The two members of the Miller’s Commission are the featured speakers at the 2015 ISASI International Conference about their investigation of the Smolensk crash.

While technical aspects of the Smolensk case are handled by Dr. Lasek, the legal aspects are led by Prof. Marek Zylicz, who is responsible for pushing the Smolensk investigation into legal limbo. Zylicz also understands that the cover-up times are coming to an end. Thus, he decided to lead the change. Although no new evidence has been produced in the Smolensk investigation in the past several weeks, he nevertheless finally realized that such evidence has been produced, thus the Smolensk investigation shall be reopened.

“As a member of the former Miller Commission I do not doubt that the Commission’s investigation and its conclusions are credible. Nevertheless, I think it is necessary to reopen the KBWLLP (Committee for Investigation of National Aviation Accidents) inquiry into the Smolensk crash with the involvement of EU experts to verify the KBWLLP findings,” Żylicz told gazetaprawna.pl.

“In current circumstances, when half of Polish citizens question the Miller Commission Report’s findings, and many of them believe the assassination theory; when the Commission is subject to fraud accusations; when the existence of new evidence emerges; when the opposition demands the investigation to reopen; this crash must not remain unexplained. However, contrary to the opposition’s wishes, members of the Miller Commission must remain in control of the investigation, if our appeal for help from the EU partners is to be based on solid grounds,” argues Prof. Zylicz. Thus, he tries to assure that those who in public perception were grossly negligent and committed fraud in the Smolensk investigation shall continue in their positions as judges in their own case.

“The decision to reopen the investigation needs to be based on materials from the prosecution, as well as the Parliamentary Group. Therefore, due to a delay in the prosecution’s proceedings, and the lack of agreement with the EU partners, the decision will not be made during the existing term of office, but it will be possible to initiate the preliminary proceedings. Additionally, the KBWLLP members’ term of office is different than the government term of office,” Zylicz points out, thereby arguing against the establishment of any new commission.

“The legal experts on aviation law prepared their professional opinion regarding the reopening of the Smolensk crash investigation back in 2012, and updated it this year. In the face of confusion and contradictory views present in media and among the Polish public today, I feel that publishing this opinion is my duty,” wrote Żylicz. It is symbolic that he refers to the year 2012 because between 2012 and 2015 a major body of new material evidence has emerged and this legal opinion of his should be made public years ago.

Recalling important facts

Prof. Zylicz once again put forward his spin on legal malpractice committed by the Miller Commission in the Smolensk investigation. Arguing that the common international law imposes no rules with regards to military aviation, he opted for the adoption of the civil aviation legal regime to the Smolensk crash investigation. Based on this argument, Zylicz invoked Article 26 of 1944 Chicago Convention on International Civil Aviation that aircraft accidents should be investigated by those states, within which airspace the accident takes place, and pointed out that Annex 13 of the Chicago Convention stipulates norms and regulations that guarantee the country of aircraft registration involvement in the investigation.

By agreeing to the Chicago Convention legal framework, Zylicz set aside a bilateral 1993 agreement between the Polish and Russian Ministers of Defense, which provides that “an aircraft accident taking place within the airspace of the other contracting state shall be investigated by appropriate authorities of both states.” This agreement provided the Polish side with equal status vis a vis Russia in the Smolensk investigation. But based on the Russian recommendation, Zylicz decided not to proceed according to the bilateral agreement clearly better for Poland but instead announced that the investigation is to be conducted according to the Chicago Convention. He later defended himself arguing that other than agreeing to a joint access to unclassified documentation, there are no specifications and rules of proceedings in the bilateral agreement, and although negotiation of such rules would have been appropriate for the Smolensk crash, both sides agreed to proceed according to Annex 13 of the Chicago Convention instead. As a result of this logic, the Smolensk investigation was conducted outside any framework of law, in a legal limbo without any enforcement remedies or appeal mechanism for the Polish side. Zylicz still fails to recognize that Annex 13 as a source of customary procedural norms of investigating international air crashes should have been adopted under the legal framework of 1993 bilateral Polish-Russian agreement.

He argues that pursuant to Annex 13 of the Chicago Convention, experts of the country of aircraft’s origin are guaranteed involvement in a crash investigation, and full access to any evidence. But he also admits that those stipulations were not observed by the Russian side, in particular the MAK commission which conducted the investigation single handedly. Prof. Zylicz admits that Polish officials were not granted full access to evidence, crash site and MAK’s proceedings. MAK did not consult Polish experts and did not include the Polish experts’ comments and reservations in its final report. Prof. Zylicz also admits that the 2011 Russian Report, not in agreement with many findings of the Polish side, was nevertheless accepted by the Polish government.

On the basis of the 1993 bilateral agreement and Polish aviation law, the Miller Commission was assigned by KBWLLP to lead a separate, Polish investigation independent of the Russian investigation under Annex 13 of the Chicago Convention, The commission was led by Jerzy Miller, Minister of Interior Affairs, who was in charge of overseeing the Bureau for Protection of Government Officials (BOR) at the time of the Smolensk crash. Members of the Miller Commission consisted of civil servants. Within a short period of time, the commission carried out its investigation and published its report in July 2011. According to Zyliczy the Miller Report corrected MAK’s inaccuracies and pointed out circumstances and inadequacies omitted by MAK. The brutal reality is however that the Polish report was prepared with no proper access to evidence, without cooperation from Russia, and under tremendous political pressure from the Tusk Government in Warsaw. Thus, the Miller Report simply repeated the Russian conclusions.

The Miller Commission’s report was questioned by the opposition’s parliamentary committee led by Antoni Macierewicz (“Parliamentary Committee). Relying on extensive works of a team of international experts, the Parliamentary Committee established beyond a reasonable doubt that several explosions at a low altitude brought down the Polish Air Force One in Smolensk, Russia on April 10, 2010.

In response, the Tusk government formed a special task force to convince the Polish public to the Russian version of events, and charged Dr. Lasek with leading this propaganda team. A vicious campaign of discrediting all those who came forward with new evidence that contradicts the official Russian scenario has been conducted in all government controlled media in Poland for several years. This strategy led to deep divisions in the Polish society. The government efforts to discredit those who came forward with evidence contradicting official findings has intimidated the entire academic, engineering, and aviation communities in Poland. Aggression, discrimination, unexplained suicides and threats against those who do not fall in line with the official version of the pilot error caused significant political tensions and led to the rise of the opposition movement concerned with blatant obstruction of justice in the investigation into the Smolensk crash. A tremendous body of new evidence and knowledge produced by the Parliamentary Committee and several academic international conferences has been consistently disregarded by the Miller Commission and effectively silenced out by the pro-government media for years.

Suddenly, several weeks before 2015 parliamentary elections in which the governing Civic Platform is expected to lose, Zylicz reminded the public that on the day of the release of Miller Commission’s report, Prime Minister Donald Tusk and Jerzy Miller agreed that the investigation could be reopened should any further evidence emerge.

Reopening of the investigation is the only viable option

Anticipating that the governing Civil Platform is about to lose elections, in August 2015 Zylicz finally comes forward calling for the reopening of the Smolensk investigation and argues that the only right and lawful way forward is the one recommended by his prominent team of experts. “There are no other lawful procedures that would be appropriate in this case,” he proclaims, “because without agreement of the interested parties there is no legal basis to call for an international investigation.”

He then proceeds with his analysis: “One of the ways to bring the Smolensk case to international attention was to involve the ICAO (International Civil Aviation Organization). However, the lack of positive response from ICAO, whose jurisdiction does not extend to state aircraft, eliminated that option. Calling for international investigation on the grounds that MAK’s wrongdoings are the result of MAK’s misinterpretation of the Chicago Convention and its Annexes could be an option, but due to a long and complicated ICAO arbitrary procedure with a further potential necessity of an appeal to the International Court of Justice, it would be an arduous and ineffective path to take. In the 60 years of ICAO’s existence, the procedures were applied 5 times and each time it took years for the proceedings to end, with not one outcome being conclusive. Seeking support from NATO or EU would not be a viable option either, due to Russia’s close relationship with both. This, however, does not eliminate the possibility of Poland using the expertise of the specialists from the EU or any other country, if possible.”
He also rebuts claims that Russians (including President Miedviediev) did suggest the establishment of an international commission. He explains that Russia was referring in fact to MAK (the Interstate Aviation Commission), pretending it is an international institution of the Commonwealth of Independent States (CIS), while in fact is managed and controlled by Russia. Miedwiediew initially considered only the prosecutors of the two countries to be involved in the investigation. The agreement to proceed according to Annex 13 followed later.

Zylicz also points out that it is incorrect to assume that the Prosecutor can establish the causes of the Smolensk crash. Establishing the causes of the crash is not the actual goal of either the prosecution or the criminal court. According to Zylicz, the prosecution’s role is limited to obtaining evidence that can be later presented to the aviation commission, i.e. Miller Commission. He confirms that the Polish prosecution has obtained some additional materials from Russia and from its own Polish experts.

Next, he criticizes all other options. He points out that many people in Poland call for experts’ debates, designed for the public to make their opinions as to which of the opposite theories could be true. Teams of academic experts were also formed and those experts participated in a number of scientific conferences in order to establish the truth and produced extensive conference proceedings. However, Zylicz rebuffs this effort saying that no conference with academic experts has ever established any truth in the areas requiring appropriate examination methods and expert qualifications.

Proposals for further action

Zylicz believes that the reopening of the Smolensk crash investigation is justified because it is in agreement with aviation laws and previous statements by Prime Minister Tusk and Jerzy Miller. He believes that this action is necessary in order to examine the prosecution’s materials and materials gathered by the Parliamentary Committee. All these materials should be collected and examined by KBWLLP, to be then compared in terms of the contrasting theories and arguments. According to Zylicz, the reopening of the investigation is justified only with regards to the circumstances surrounding the very last moments of the flight, without the need to examine other parts of the investigation. Considering great tension between the two teams, he wants to introduce special procedures for interrogations of the opposition experts regarding their findings, assuming of course that members of the Miller Commission will serve as arbiters in this process.

Recognizing the concern of the Parliamentary Committee that several instances of destroying key evidence by the Polish side have been identified, Zylicz comments that the problem is how to persuade the Parliamentary Committee not just to present the evidence, but to leave the evidence in the possession of the Miller Commission.

Finally, Zylicz comes to his most revolutionary statement. For five years the Polish government has claimed that no international experts are needed in the investigation of the Smolensk disaster. The Tusk government even prevented world famous pathologist Dr. Michael Baden from taking part in the autopsy of two exhumed victims. Dr. Baden was brought to Poland by the families of those victims in order to identify the cause of death of their loved ones. Despite great efforts of the families and their supporters, Dr. Baden was not allowed to enter the autopsy room and stayed in a room next door instead. A legal representative for the families was running back and forth between the autopsy room and Dr. Baden to inform him of the procedure. Ultimately, no analysis as to the cause of death of those individuals was conducted, only the analysis of the identity of the victim was allowed.

And yet, five years after the crash, Zylicz suddenly announces that the Miller Commission is allowed to use help of external experts. He also says that Poland has the right to request the assistance of experts from EU member states in accordance with EU regulation 996/2010. Such assistance, he claims, would be particularly essential to decide upon the controversial questions that divide the Miller Commission and Parliamentary Committee experts. This statement has been seen in Poland as a major breakthrough in the attitude of the Government team from the Miller Commission. This move, is closely coordinated, however, with the appearance of key people from the Miller Commission at the ISAIS, the body of experts from which the incoming government is likely to draw experts for further investigation into the Smolensk disaster. Members of the Miller Commission hope that their plea for professional solidarity against the outcasts, as the Parliamentary Committee experts are being portrayed, is to win them broad support and help them sway the international experts their way towards the pilot error and against the political assassination in the upcoming review of their investigation.

Reopening of the investigation is hampered by the lack of access to the wreckage and black boxes held by Russia. If the EU experts conclude that establishing the cause of this crash is impossible without the wreckage and black boxes, Poland would gain another argument against Russia in the effort to reclaim her important properties.

Reluctance to reopen the investigation

Zylicz identifies a number of arguments against the reopening of the investigation. Some believe that doubts and reluctance to accept the Miller Commission’s findings regarding the cause of the crash could be resolved through other alternative solutions. In his opinion, however, all other solutions are not realistic (such as international commission, the prosecution, media or academic debate).

Another cause for reluctance to reopen the investigation according to Zylicz is a conviction by some policy makers that there is a lack of new and essential evidence. However, if the Parliamentary Committee claims to be in the possession of material evidence that discredits the official findings, and further, they publish those materials, making the majority of the public believe they are right, then it is necessary to examine those materials in accordance with law.

The idea that anybody could come forward with further evidence and case the reopening of the case is another drawback. However, the Smolensk crash deserves exceptional treatment, points out Zylicz.
The need of propagating new laws and executive actions, application for access to the prosecution’s and court’s files, or the use of EU help, remain an obstacle to taking a further action. Nevertheless, the Smolensk crash definitely deserves such effort in his opinion.

Finally, there is the most important argument that the reopening of the Smolensk investigation would discredit the outcome of the original investigation as well as members of the Miller Commission. Zylicz claims that such an allegation is unfounded because even if the Miller Commission discovers that parts of its own report need correction, it would be a norm, not a cause of embarrassment for the commission.
He also cites the most common opinion, which questions the sole rationale of reopening this particular investigation: after all, not everyone will trust the new outcomes if they turn out to be different from those they trusted earlier. However, we must not let it become a justification to give up on the truth, Zylicz concludes.

Written by Maria Szonert Binienda

Source: prawo.gazetaprawna.pl, wpolityce.pl, niezalezna.pl, TV Republika.
Translation of Prof. Zylicz statements: JD
Photo: Youtube.pl, wpolityce.pl

 

 


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