July 24, 2014

European Parliament

Committee on Petitions
The Secretariat
Rue Wiertz
B-1047 Brussels

Petition.
Marta Kochanowska and Malgorzata Wassermann
Concerning the 10th April 2010, Polish Air Force Tupolev Tu-154M aircraft crash
in Smolensk (Russia).

We ask the European Parliament and specifically the Petitions Committee to deliberate, consider and decide on all available legal provisions and all appropriate steps to take in relation to the subject matter of this petition; to put pressure on Russia for the return of all evidence including the wreckage and black boxes to Poland; and to draw attention of the EU institutions and the EP to aspects of a particular matter directly affecting the petitioner concerning the 10 April 2010 Polish Air Force plane crash in Smolensk, that killed all 96 EU passengers on board including President Lech Kaczynski and his wife, the Chief of the Polish General Staff, senior Polish military officers and the entire general army command, Poland's deputy foreign minister, members of the Polish Parliament, the president of the National Bank of Poland, Polish Human Rights Ombudsman, senior members of the Polish clergy, other distinguished representatives of the Polish elite and relatives of victims of the Katyn Forest massacre.

The lead petitioners and some of the other signatories are close relatives of the people who died in the crash. The petition is supported by journalists, independent experts and engineers, representatives of numerous foundations and associations and by over 400,000 signatures collected by the Katyn 2010 Family Federation and Solidarni 2010 Association supporting the need for a transparent and impartial international investigation.

The unprecedented nature and circumstances leading to this petition with its political implications should not be reason to dismiss its merits but rather an opportunity for the EU institutions to undertake the challenge, deliberate, consider and decide on available legal provisions and appropriate steps or routes to take in relation to the subject matter of this petition, which presents a real test for the European Union to demonstrate its ability and duty on behalf of EU citizens to  intervene in a matter that has a wide impact on human rights and aviation safety of EU Member States. It is not without significance that in the context of the subject matter of this petition, many negative phenomena and behaviors that took place following the Smolensk crash can be observed also in relation to the Malaysian airlines flight that has been shot down over the territory of Ukraine, whose wreckage was left in the hands of Russian separatists led by officers of the Russian special services. Due to the similarity of these two tragic events and circumstances that have affected hundreds of EU citizens, relatives of the victims, along with violations of human right and standards, the Petitions Committee in its competence to adopt a decision on the admissibility of a petition and due to the unprecedented nature of this case should deliberate over all available legal provisions and all appropriate steps in order to draw attention of the EP and EU institutions to this particular matter directly concerning the petitioner (art.227 TFEU).

In presenting the petition, we would also like to bring forward to your attention:

• Petition No 447/95 by Mr Jim SWIRE (British), on behalf of UK Families Flight 103, on the destruction of the flight PAN-AM 13 above Lockerbie in 1988 - declared admissible.

• An opinion (SJ-0152/12) by the Legal Services of the European Parliament dated 24 February 2012 has declared admissible Petition 0301-11 concerning "the need for a transparent investigation into the Polish Air Force Tupolev Tu-154M aircraft crash in Smolensk on the 10 April 2010" (it must be noted that in addition to this legal opinion, Petition 0301-11 has been additionally declared admissible by the Petition Committee coordinators on 17 June 2011). Furthermore, according to this Legal Opinion, the fact that art.227 TFEU refers to the "field of activity" of the EU does not necessarily mean the same as the competence exercised by the Union.

We further believe that a possible legal justification and further action can be identified within the following few but non-exhaustive provisions:

- article 5(4) Regulation No 996/2010 (of the European Parliament and of the Council of 20 October 2010 on the investigation and prevention of accidents and incidents in civil aviation and repealing directive 94/56/EC), provides strong precedence for European Union and European Aviation Safety Agency (EASA) with the legal framework for the conduct of civil aviation accident and incident investigations in the EU by assisting Poland in ensuring that a transparent, impartial and independent investigation is conducted while at the same time discharging its treaty obligations arising in particular from:
- article 258 of the Treaty on the Functioning of the European Union;
- article 6(3) of the Treaty on European Union; - articles 1 and 2 of the ECHR, which have been breached by the Polish authorities by failing to ensure adequate and effective investigation into the death of its citizens.  Art. 1 and 2, when read together, require a proper and adequate official investigation into deaths resulting from the actions of state agents and also in situations arising from the negligence of agents that leads to a death.

Note: art. 5(4) of Regulation No 996/2010 is an exception to the rule concerning accidents and incidents in civil aviation. In accordance with article 5(4) safety investigation authorities may decide to investigate incidents other than civil aviation accidents. Furthermore, according to art. 8 (1)A, an advisor from the European Aviation Safety Agency may be appointed to any investigation conducted in a third country.

We further put to you, that it is our belief that to-date, the Polish authorities have failed to prepare, organise and secure the safety of the flight in accordance with appropriate security measures and regulations; failed to conduct a transparent, impartial and thorough investigation; failed to protect the citizens that perished in the flight and their families by i.e. not establishing clear lines of communication nor the adequate legal and diplomatic support for those most closely affected by the crash; failed to guarantee the human rights of the victims and their relatives; failed to take measures to ensure that the burial of the victims has been undertaken in accordance with Polish law and custom; failed to put in place clear legal basis for the investigation enabling it to have access to evidence, recourse or any further subsequent appeal; failed to take measures to preserve the evidence required for an investigation.

The inadequacies of the investigation are repeatedly demonstrated through continued breaches of human rights, international treaties, processes and standards. To cite a few:

- Victim Identification Procedures and Repatriation

These were not carried out according to the internationally recognized Interpol standards, or any other, not only affecting the credibility of the investigation but also leaving the grieving families with a lot of doubt, greatly distressed and some still seeking exhumation of their loved ones. After an exhumation conducted in 2012, after a subsequent reburial and now after over 4 years, the location of the body of Anna Walentynowicz is still unknown. So far, 9 exhumations of Smolensk victims have been carried out, with 6 bodies buried in the wrong graves and one body still missing. Now, family members of all the victims cannot be certain as to the location of their relatives. The military prosecutor's office has not ruled out the possibility of further exhumations in the near future. So far, the exhumations have been undertaken under the prosecutions own initiative and judgment, systematically refusing such requests to relatives (also refusing permission for the participation in the autopsy of Anna Walentynowicz of independent, world-renowned expert Dr. Michael Baden's). A fact to remember and keep in mind is that the coffins of the victims have been sealed in Russia and never allowed to be opened, once in Poland.

- Legal basis

There is no bilateral instrument and no apparent written agreement between the Polish and Russian authorities at all based on which procedures the investigation is being undertaken that adopts Annex 13 of the Chicago Convention nor any other agreement that sets out other applicable framework for the investigation. No international agreement in this case was ever ratified in accordance with the requirements of the Polish Constitution. The Russian Governmental Committee delegated the technical investigation to the Interstate Aviation Committee, the body with unclear legal basis background, without any written consent from Polish authorities. Despite claims by the Polish and Russian governments that Annex 13 of the Chicago Convention is the applicable instrument, both sides appear to be consistently breaching and deviating from the provisions of the Annex. If in fact Polish and Russian authorities appear themselves to have adopted civil aviation legislation procedures means that the petitioners, families of the victims and other signatories to this petition should have the right of recourse to the full spectrum of legislation the spirit of which is similar to that of the Chicago Convention. The Polish government failed to secure any active role in the investigation and access to the evidence by failing to agree suitable legal basis as well as recourse process (no possibility of appeal).

- Plane wreckage and other evidence

Immediately after the disaster, the Russian side failed to secure the scene in a manner consistent with acceptable standards, which has led to the disappearance of many important pieces of evidence (pieces of the wreckage were taken from the crash scene by third parties). The preservation of plane wreckage has not been undertaken which is clearly in breach of Chicago Convention requirements and there is also registered evidence (photos, videos) that point to deliberate wreckage destruction (knocking out windows) by the Russian secret service officers at the crash site. Similar activities (cutting and destruction of evidence) also took place in the case of the shot down Malaysian flight MH17 over Ukraine, which confirms the specific modus operandi of the Russian services. The Polish investigation has been conducted without any proper access to either original evidence or the wreckage. All original evidence is to this day in the hands of the Russian authorities with Polish authorities unable to successfully request their return. The investigation of Polish authorities is not based on independent assessment or access to the evidence.  Lack of verifiable information has meant that the Polish authorities release misleading and contradictory information.

- The investigation

The Russian and Polish investigations are mutually exclusive, contradictory and inconsistent. The Polish and Russian governmental reports are unavoidably political, consequently biased in nature and possess an inherent conflict of interest (suffice to say, parties responsible for preparing and organizing the flight, were the actual authors of the final Polish governmental report, whilst the Russian Interstate Aviation Committee responsible for certifying airports in Russia has been the author of the Russian investigative report). Many findings of both Russian and Polish governmental reports have been proven to be false and unfounded, subsequently giving a misleading picture and set of circumstances into the death of 96 Polish EU citizens. It is worth mentioning that, the Polish committee investigating the circumstances of the Smolensk crash was created and operated pursuant to provisions that are contradictory to aviation law. With the Polish Miller's committee being illegal, its final report has no legal basis.

These failures we fear will mean that the causes of the crash will never be explained thus it will not be possible to take steps to prevent such crashes taking place in the future nor will it be possible to offer any comfort to the families of the victims whose pain and suffering is on-going. The families of the victims continue to be subjected to unjustifiable trauma and torment that breaches their human rights. We believe that the petition presents a real test for the European Union to demonstrate its unprecedented character by intervening in a matter that has a wide impact on how human rights, EU safety and aviation safety of EU Member States are observes as a whole (keeping in mind the upcoming World Cup in Russia in 2018).

We thus ask:

- The Petitions Committee to consider and deliberate all available legal provisions and all appropriate steps in order to draw attention of the EU institutions to this particular matter that directly concerns the petitioner (art.227 TFEU);

- The Petitions Committee to draw up and put forward to the Parliament o motion for debate, an opinion, a resolution, an own-initiative report, expressing concerns relating to all civil aspects and inadequacies of the investigation concerning the Smolensk plane crash, including aspects of the investigation and initial flight preparation and organization;

- to transmit the petition to the Committees of Foreign Affairs, Security and Defence Policy, Transport and Tourism, Civil Liberties, Justice and Home Affairs, Legal Affairs of the European Parliament asking to deliver an draft resolution concerning breaches of human rights, issue a Council recommendation or an opinion on the aspects of the question falling within their merit, or conduct a fact-finding visit to the country or region concerned and issue appropriate Committee reports containing observations and recommendations;

- the European Parliament to review all human rights aspects of this case, to take necessary measures to ensure a transparent and impartial investigation due to many uncertainties and questions surrounding the causes of the disaster in Smolensk, to ensure a review of all evidence, and demand the return and the preservation of evidence held by the Russian authorities;

- to submit this matter as of utmost importance to the attention of the Plenary;

- that the European Parliament, European Commission, the Council and the European Council take steps to ensure that a transparent, impartial and thorough investigation is conducted into the 10 April 2010 Polish Air Force plane crash in Smolensk;

- the Commission, on the one hand to provide a statement on the Smolensk crash keeping with the importance of the question, to conduct a preliminary investigation and provide information regarding compliance with relevant Community legislation, and, on the other, to request the Member States concerned to carry out a thorough inquiry into the disaster, with possible international and European Aviation Safety Agency (EASA) engagement and international pressure;

- to bring forward the subject matter of this petition to the personal attention of the High Representative of the Union for Foreign Affairs and Security Policy, the European Commissioner for Transport, the European Commissioner for Justice, Fundamental Rights and Citizenship, the European Commissioner for International Cooperation, Humanitarian Aid and Crisis Response;

- to forward the file to the Committees on Petitions of the Parliaments of the Member States who lost citizens in the accident such as the UK;

- for the Petitions Committee of the European Parliament to seek cooperation with national Polish authorities to resolve the issues raised in this petition answering the plight of the signatories;

- to draw the attention of the Council of Ministers to this serious question, asking that an international technical inquiry be carried out calling on most experienced European experts;

and

- to take any other action considered appropriate to try to resolve the issue concerned.

Marta Kochanowska

Malgorzata Wasserman

- Petitioners