Crash of the Polish Air Force One, 2014 Status Report
By Maria Szonert Binienda, J.D.
SCNDMSB2014SR

I. Legal Maneuverings

In response to the Smolensk tragedy, President of Russia Dmitry Medvedev formed a State Commission⁸ to investigate the causes of the crash and appointed Prime Minister of the Russian Federation Vladimir Putin as the Investigator-in-Charge. For the first three days, from April 10 to April 13, the Polish and Russian sides had debated whether the investigation was to be conducted pursuant to the 1993 Polish-Russian agreement that regulates military aviation in the airspace of both contracting states.⁹ This bi-lateral agreement assured the Polish side a balance role in the investigation process but was challenged by Russia. During this crucial three-day period, the crash site was supervised by the Head of the Flight Safety Agency of the Russian Armed Forces.¹⁰

On April 13, 2010, by Order of Vladimir Putin as the Head of the State Commission, general supervision of the technical investigation was delegated to the Chairperson of the Interstate Aviation Committee (“IAC”). By the same order, a decision was made to conduct the investigation of the crash in compliance with Annex 13 to the Convention on International Civil Aviation.¹¹ Accordingly, on April 13, 2010, a decision was made to treat the Polish Air Force One as a civilian aircraft and hand over the investigation to the IAC, a Russian affiliate of the International Civil Aviation Organization (“ICAO”). The Polish public was informed that the investigation was conducted under the Convention on International Civil Aviation,¹² also known as the Chicago Convention.

It was not until the release of the Russian Report on January 12, 2011¹³ that the Polish pubic learned about the problem with the investigation. Only then it was revealed that the investigation was conducted not under the Chicago Convention but merely under Annex 13 to this convention. Only then the public learned that the Chicago Convention does not apply to a state aircraft and therefore does not apply to the Polish Air Force One.¹⁴ As a result of this legal manipulation confusing a state aircraft with civil aircraft, the investigation of the Smolensk Crash was pushed into a legal limbo, depriving the Polish side of any enforcement, oversight and appeal mechanisms.

Although the investigation of the crash was forced outside the framework of any international law, a written declaration made by the IAC in the Russian Report to the effect that the investigation was conducted in accordance with procedures of Annex 13 to the Chicago Convention gave this investigation the appearance of professionalism and transparency. Unfortunately, the investigation was conducted in gross violation of standards and procedures of Annex 13 and basic international norms of any aircraft accident investigation. Overwhelming evidence exists that both, the provisions of Annex 13 and basic norms of aircraft accident investigation, were blatantly violated in every respect in the course of this investigation.

For all practical purposes, the most important investigation in the history of Poland was taken away entirely from the Polish hands. Professor Marek Zylicz, a legal advisor to the Polish State Aviation Commission known as the Miller Commission, revealed that provisions of Annex 13 and all basic standards of investigating the airplane crash were violated in all fundamental respects during the Russian investigation of the Smolensk Crash. Although Article 5.18 of Annex 13 provides that the State of Registry and State of Operator shall be entitled to appoint an accredited representative to participate in the investigation, and Art. 5.19 further states that the State of Registry and State of Operator shall appoint one or more advisers to assist its accredited representative, the Polish accredited representative and his advisors were effectively barred from participating in the investigation.¹⁵ Russia also violated Article 5.24 of Annex 13, which specifically assures the accredited representative and his advisors the right to participate in all aspects of the investigation.¹⁶ According to Prof. Zylicz, Russia also violated Art. 5.25 by denying the Polish experts any access to the investigation site, investigative activities, documents, reports and information.¹⁷ Also, the Russian side violated Article 3.2 of Annex 13,¹⁸ which provides that the state of occurrence, i.e. Russia, shall take all reasonable measures to protect the evidence and to maintain safe custody of the aircraft and its contents.

Four years after the crash, the black boxes, the wreckage of the plane, and electronic devices of the victims of the crash still remain in Russia despite numerous appeals for their return.¹⁹ By not returning the Polish property, Russia violates Article 3.4 of Annex 13, which provides that “the State of Occurrence shall release custody of the aircraft, its contents or any parts thereof as soon as they are no longer required in the investigation, to any person or persons duly designated by the State of Registry or the State of the Operator, as applicable.” To this day, this key evidence remains in Russia and some parts of the key evidence remain withheld from the investigation. For example, satellite pictures as well as the video recording from the Severny Airport at the time of the crash remain withheld from the Polish side.

________________

Footnotes:

⁸ Order No 225 of the President of the Russian Federation dated April 10, 2010.

⁹ Agreement between Ministry of Defense of the Republic of Poland and Ministry of Defense of the Russian Federation on terms of bilateral cooperation on military aircraft operations of the Republic of Poland and Russian Federation in the airspace of both parties, dated December 14, 1993. http://bit.ly/1ldxdC9 (retrieved March 10, 2014).

¹⁰ Interstate Aviation Committee Air Accident Investigation Commission Final Report Tu-154M tail number 101, Republic of Poland; http://bit.ly/1ldxkxk (retrieved March 10, 2014).

¹¹ Ibid., p. 7.

¹² Convention on International Civil Aviation dated December 7, 1944, http://bit.ly/1ldxtkr (retrieved March 10, 2014). The decision to proceed according to Annex 13 of the Chicago Convention was accepted by Poland.

¹³ Final Report Tu-154M, tail number 101, Republic of Poland, Interstate Aviation Committee, Aircraft Accident Investigation Report, http://bit.ly/1mBdSxt (retrieved March 17, 2014). Interstate Aviation Committee consisted of representative of former Soviet Republics.

¹⁴ Art. 3 of the Chicago Convention states: a) This Convention shall be applicable only to civil aircraft, and shall not be applicable to state aircraft. b) Aircraft used in military, customs and police services shall be deemed to be state aircraft.

¹⁵ Annex 13 to the Convention on International Civil Aviation, International Standards and Practices, Aircraft Accident and Incident Investigation, http://bit.ly/1ldxFAj (retrieved March 10, 2014).

¹⁶ This right includes the right to: a) visit the scene of the accident; b) examine the wreckage; c) obtain witness information and suggest areas of questioning; d) have full access to all relevant evidence as soon as possible; e) receive copies of all pertinent documents; f) participate in read-outs of recorded media; g) participate in off-scene investigative activities such as component examinations, technical briefings, tests and simulations; h) participate in investigation meetings, deliberations related to analysis, findings, causes and safety recommendations; i) make submissions in the investigation.

¹⁷ Marek Żylicz, „Katastrofa Smoleńska w świetle międzynarodowego prawa lotniczego,” Państwo i Prawo, No. 4/2011; http://bit.ly/1ldxPYu (retrieved on March 10, 2014).

¹⁸ Ibid. p. 3-1

¹⁹ The following electronic devises were not returned to the Polish side: 1. Satellite telephone from the airplane; 2.Cell phone of the President of Poland, 3.Cell phone of Air Force Commander General Blasik; 4. Cell phone of Army Commander General Bronisław Kwiatkowski; 5. Cell phone of Minister Zbigniew Wassermann; 6. three Motorolla Radio telephones; 7. Ten smart phones Black Berry; 8. 60 cell phones; 9.Twenty photograph cameras with memory cards; 10. Video camera with memory card and tape; 11. Industrial camera and two computers; 12. Top secret NATO documents.