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The grounds for the investigation are BDN (the German Federal Intelligence Service) files; in particular a report confirming that the cause of the crash was an explosion on board. The German prosecution has issued a formal notification of its action to the attorney Stefan Hambura, who represents several families of the Smolensk crash victims.
The investigation was initiated as a monitoring process (in German: Beobachtungsvorgang), a procedure that also exists in the Polish law. The last time the German authorities initiated this legal process, was in the case of the fugitive Edward Snowden, who claimed that Chancellor Angela Merkel’s phone was tapped.
The Beobachtungsvorgang allows the prosecution to follow any necessary procedures, such as questioning witnesses, requesting relevant documentation and appealing for legal aid to the authorities of other countries in order to verify suspicions of assassination.
Pursuant to articles 89a and 89b in German Criminal Code, Germany has the authority to investigate any event suspected of being a terrorist act (i.e. committed by secret services of another country), even if the victims are not German. This regulation provides the grounds for the German prosecution to investigate whether or not, the Smolensk crash was an act of terrorism.
The German legal action regarding Smolensk began after May 2, when attorney Stefan Hambura issued a request to Angela Merkel for a disclosure of the complete BND Smolensk Crash files. The attorney sent a copy of this request to a number of other German officials as well, including Harald Range, the Attorney General of Germany.
The existence of the BDN files regarding the Smolensk Crash came to light in the “Secret Files S,” a book by a German investigative journalist, Jürgen Roth. In his book, Roth writes about a report written by a BDN agent, who obtained information from two independent intelligence sources (Polish and Russian), who did not know about one another. The author writes that the assassination of the TU-154 presidential flight passengers was carried out jointly by Russian secret services and Polish authorities. Read excerpts from Roth's book here.
Soon after the request was issued to the Chancellor Merkel, Stefan Hambura received a phone call from a highly ranked prosecutor Zöller, from the German Prosecutor General Office. Mr. Hambura said - “He asked me, if I expected access to the files I requested from the Chancellor Merkel, and if I had any other requests. I said, I did not expect the BDN files (which can be given out only by the German Chancellery), but my request would be that the Smolensk Crash be investigated in accordance with the German criminal law.”
A few days ago Hambura met a Federal Minister of Justice, whom he handed a copy of Roth’s book, and mentioned that the newly elected president of Poland, Andrzej Duda, was a minister in late President Lech Kaczyński’s Presidential Office. “The reason I mentioned it, is because I hope that Germany would notice the change on the Polish political scene. This change can already be noticed in the Polish-German relation considering the latest message of good wishes to President Duda, sent by Chancellor Merkel".
The German investigative authorities’ actions contrast strongly with the actions of the Polish Military Prosecution Office, which, soon after Roth’s book publication, announced that it would apply for legal aid to Germany. [See: "The Dutch Lesson, A Tale of Two Crashes and Two Investigations"] When Wpolityce.pl inquired whether it had been done, Major Marcin Maksjan, the spokesman of the Chief Military Prosecution Office, responded: “The Warsaw District Military Prosecution Office has not yet issued a request to Germany regarding the latest book by the German journalist, Jürgen Roth.”
Source: wpolityce.pl and smolenskcrashnews.com