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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 Miller's committee being illegal, its final report has no legal basis.
The Committee for Investigation of National Aviation Accidents (KBWLLP) – a Polish civil-military committee, a unit subordinate to and supervised by ministers, operating under the Regulation of the Minister of National Defence of 26 May 2004 on the organisation and functioning of the Committee for Investigation of National Aviation Accidents. The Committee is established by decision of the Minister of National Defence after every occurred aviation accident or a serious incident within public/national aviation, encompassing military, customs, and police services aircrafts. The works of KBWLLP, similarly to the State Committee for Investigation of Aviation Accidents (PKBWL), focussing on the aviation accidents in civil aviation, intends to determine the circumstances and causes of an aviation incident and to issue recommendations and conclusions so that similar accidents may be prevented in the future. KBWLLP does not decide on fault and responsibility; the prosecution includes the final report drafted by the committee as part of material evidence in each case. The operations and works of KBWLLP during analysis of an accident or a serious aviation incident are classified.
During the investigation Tu-154M crash in Smoleńsk, on 15-28 April 2010, the Committee for Investigation of National Aviation Accidents (KBWLLP) was directed by reserve lieutenant pilot Edmund Klich, acting as the head of the State Committee for Investigation of Aviation Accidents (PKBWL); accredited (pursuant to Appendix No. 13 to Convention on international civil aviation signed at Chicago on 7 December 1944) to the Russian Interstate Aviation Committee (MAK) in charge of the investigation in Russia. However, Edmund Klich resigned from managing the KBWLLP, justifying his decision by the fact that he was not able to combine the duties of the accredited at the Russian committee and the duties of the head of the Polish committee. Since 28 April 2010, the Committee for Investigation of National Aviation Accidents (KBWLLP) was directed by the Minister of Interior and Administration, Jerzy Miller, and since also know and referred to as the 'Miller Committee'.
Pursuant to the Regulation of the Minister of National Defence of 27 April 2010 amending the regulation on the organisation and functioning of the Committee for Investigation of National Aviation Accidents, the head of the Committee analysing the crash of the Polish Tu-154 in Smoleńsk reports directly to the President of the Council of Ministers (i.e. The Prime Minister). The regulation contains provisions that are not present in legal statute act, thus introducing new competences in favour of the prime minister. The report protocol, along with the entire set of the materials collected by the Committee, is submitted for approval to the President of the Council of Ministers, who in turn informs the Minister of National Defence about it. The President of the Council of Ministers issues a decision to resume the analysis and to introduce any changes to the verdict.
Any decisions on providing information, during the investigation, on the course and the results of the analyses conducted by the Committee are made by the President of the Council of Ministers (The Prime Minister).
The regulation of the Minister of National Defence of 27 April 2010 amending the resolution on the operation and functioning of the Committee for Investigation of National Aviation Accidents was subject to analysis by experts from the Parliamentary Research Bureau (Biuro Analiz Sejmowych) in 2010.
On 18 January 2011, the Committee investigating the crash in Smoleńsk, showed a presentation during a press conference, during which the stenographic records of the conversations between the Russian traffic controllers on 10 April 2010 were revealed; emphasis was put on the fact that the tower personnel made a lot of mistakes, provided incorrect information on the descend path and divergent weather forecasts.
On 27 June 2011, the final report issued by the Committee investigating the crash in Smoleńsk was submitted to the prime minister Donald Tusk, it was accepted on 25 July 2011, and on 29 July 2011 it was presented to the public during the press conference held in the Chancellery of the Prime Minister and published at the website of the Committee in the Polish, English and Russian languages, including appendices. Moreover, the final report was published on websites of the Chancellery of the President of the Council of Ministers, Ministry of the Interior and Administration and the Ministry of National Defence.
On 5 September 2011, KBWLPP published the so-called “Report on the analysis of the aviation accident No. 192/2010/11”, comprised of over 1000 pages of documents, including appendices, prepared for the Ministry of National Defence; only Appendix No. 7 containing information on the injuries of the crash victims remained secret.
All the documents drafted by the Committee were sent to the military prosecution, who is responsible for carrying out a criminal investigation into the crash. The prosecution includes the final report into its evidence.
- Establishment of the Polish Committee in the case of the Smolensk crash.
On 10 April 2010, the basis for the establishment of such a committee could only be the Article 140 of Aviation Law in connection with paragraph 6, item 2 of the regulation issued by the Ministry of Defence of 2004 on the organisation and functioning of the Committee for Investigation of National Aviation Accidents, that is an executive act in the wording of the aviation law at the time. The aforementioned article stipulates that “analysing accidents and serious aviation incidents in national aviation is conducted by the Committee for Investigation of National Aviation Accidents established by the Minister of National Defence.
Paragraph 6 of the said resolution stipulates that as a rule, the Committee for Investigation of National Aviation Accidents investigates only accidents that have taken place within the territory of the country.
If the crash takes place in a foreign country, there are certain situations stated, when such a committee may be established. First, these are cases when the country, where the crash took place, failed to undertake an investigation (this is not the case, as the Russian MAK committee was operating in Russia). Second, when that country will provide Poland with power and authorisation to investigate such an accident. This was also not the case. Third, if an international agreement or a provision of international law so provides. The only provision of international law that so provided, a possible legal recourse for investigating the crash was the arrangement of 14 December 1993 between the Minister of Defence of the Russian Federation and the Ministry of Defence of the Republic of Poland. Article 11 should have been the basis for this arrangement. The problem is that the said arrangement has never been applied by Poland. Another basis to appoint a common Polish-Russian investigative team after the Smolensk plane crash could have been Article 589b of the Code of Criminal Procedure, according to Attorney Marcin Madej, a former prosecutor from the Garrison Military Prosecutor's Office in Warsaw says that there was a legal basis to start such a co-operation between the Polish and Russian services after the Smolensk plane crash.
Quite the opposite, the governmental administration stated that a better legal recourse was selected in the form of Appendix No. 13 to the Chicago Convention.
Article 11 of the 1993 arrangement, had it been applied, stipulated that a common analysis would be conducted by relevant authorities. However, the head of the Technical Committee of MAK, Mr Alexei Morozov, on the day the corrections to the MAK report were made, signalled by the Miller's committee, called a press conference and announced that no common report and no corrections would be made. While Poland did send the accredited Edmund Klich to the Russian Interstate Aviation Committee (MAK) investigation, no Russian counterpart was appointed as accredited to the investigation conducted by the Poland's Millers' committee. The aforementioned proves that the said arrangement has never been implemented.
Therefore, the Miller's committee is illegal, so its report has no legal significance. A motion was submitted to the Minister of Defence to annul the decision on establishing the committee that drafted the Miller's report, which in turn will invalidate the final report of the Committee as a consequence.
- Pursuant to the Regulation of the Minister of National Defence of 27 April 2010, the head of the Committee analysing the crash of the Polish Tu-154 in Smoleńsk reports directly to the President of the Council of Ministers.
The Polish committee investigating the circumstances of the Smolensk crash operated pursuant to the provisions that are contradictory to the aviation law – according to conclusions of the expert opinion issued by the ParliamentaryResearch Bureau (Biuro Analiz Sejmowych) in 2010.
That is, the regulation of the head of the Ministry of National Defence that expands the competences of the prime minister, concerning e.g. appointing the committee members.
The regulation of the Minister of National Defence on the operation of the Committee for Investigation of Aviation Accidents contradicts the legal act on aviation law. This is the conclusion of the expert opinion issued by the Bureau of Research.
The committee that was to clarify the causes and circumstances of the crash was established at the end of April. Jerzy Miller, head of the Ministry of the Interior and Administration, was appointed as the head of the committee. However, just before the committee was appointed, the Minister of National Defence, Bogdan Klich, amended the resolution on investigating aviation accidents, adding a provision stipulating that the prime minister receives the right to agree on the appointment of the Head and Members of the Committee concerning the crash of Tu-154M.
The regulation grants the Prime Minister Donald Tusk the right to accept the committee's report and to make decisions as to providing information on the course and results of the investigation.
According to the Parliamentary Research Bureau, that provision of the updated regulation of the Minister of National Defence contradicts the provision of Article 140 item 1 of Aviation Law.
According to a specialist in constitutional law, Professor Marek Chmaj with UMCS in Lublin, it is a “gross infringement of the constitution”. A regulation cannot amend the provisions of an act. According to the professor, it may put the prime minister at risk of facing the State Tribunal.
- Annex 13 to the Chicago Convention as the basis for cooperation between Russian and Polish authorities.
The subject of establishing rules of cooperation is a mysterious and controversial one. Three days after the crash, the government publicly informed that the investigative proceeding would be held in accordance with Annex 13 of the Chicago Convention (despite the fact that the Chicago Convention applies to civil flights only) ultimately leaving the investigation in Russian hands entirely. This resulted in detention of the wreckage, black boxes, and dependance on Russian authorities to any evidence concerned.
Until now it remains a mystery where is the document establishing procedures of investigation and who signed it. The PM claimed until recently that such document doesn't exist at all.
Maciej Lasek, the Chair of a new, Smolensk committee, established by the Polish Prime Minister, admitted that accepting the Chicago convention as a frame work for investigating the Smolensk crash was groundless. ‘It was a military airplane, the flight itself was of a military character, the airport was military as well’ – told Lasek in an interview for Rzeczpospolita.
Lasek admitted also that he knew from the beginning that there weren't any chances for an international arbitration in regard to the Smolensk’s case. However, it was Donald Tusk himself who reassured in the past that such arbitration (with involvement of the ICAO) would be possible.
‘I remember reassurances from governmental authorities that in case the end Polish and Russian reports would differ; we would be applying for arbitration to the ICAO (International Civil Aviation Organisation). All this ended up in vein’ – said Maciej Lasek in his interview, confirming that it was known from the beginning that the ICAO would have not investigated the case.
It was Donald Tusk's government which groundlessly adopted the Chicago convention as a legal ground for investigating the crash.
‘The Prime Minister actions were illegal. At the time there was a binding agreement between Poland and Russia from 1993, which had established forms of conducting a common investigation, and no one had any competences to agree to anything else’ – said Professor Tadeusz Jasudowicz from the Mikolaj Kopernik University in Torun.
Note: The Convention on International Civil Aviation, also known as the Chicago Convention, established the International Civil Aviation Organization (ICAO), a specialized agency of the United Nations charged with coordinating and regulating international air travel. The Convention establishes rules of airspace, aircraft registration and safety, and details the rights of the signatories in relation to air travel. The Convention also exempts air fuels from tax.
After both the governmental Russian MAK and Polish Miller reports have been made public. The International Civil Aviation Organization (ICAO) ruled it had no competence in dealing with state/military flights, leaving no way of appeal to the Russian and Polish governmental reports.
The Prime Minister's Secret - An administrative court ruled that Prime Minister Tusk had to reveal on what grounds/agreement was the Smolensk’s crash investigative proceedings based and initiated. http://smolenskcrash.eu/news-21-the-prime-minister39s-secret.html
Wikipedia, niezalezna.pl, onet.pl, wpolityce.pl, http://freepl.info/