Russia violates international law by holding on to the wreckage of Polish Tu154M

Published: February 6, 2017

The Tusk Government of the Civil Platform lied that it sought the return of the Tupolev plane right from the day of the crash of the Polish Air Force One in Smolensk. A memo from the Ministry of Foreign Affairs prepared in 2013 shows that Poland demanded the “immediate return” of the wreckage of the plane and black boxes just in May 2012, that is over two years after the crash.

The request for the return of the wreckage of the Polish airplane was made during a meeting between Donald Tusk and Chairwoman of the Council of the Russian Federation on May 22, 2012, and later at a meeting between the Polish and Russian Foreign Ministers in December that same year in Moscow, reads the memo

The memo dated January 31, 2013, sets out the legal aspects of the return of the Tupolev wreckage by Russia. The memo was written for then Foreign Minister Radoslaw Sikorski. The Polish Foreign Ministry (“MSZ”) declined to comment on the matter.

MSZ Chief Witold Waszczykowski said at a press conference that in the near future MSZ plans to file a complaint about the Russian investigation of the Smolensk catastrophe with the International Court of Justice in The Hague. It's a matter of days or weeks - he added.

The memo discovered by PAP stated that following the crash of the Polish Tu-154M plane in Russia in 2010, Poland and Russia agreed that investigations into the matter will be conducted according to the procedure specified in Annex 13 to the Convention on International Civil Aviation, signed at Chicago on December 7, 1944.

During the period when investigations into the causes of the crash were being carried out on the basis of Annex 13, it means up until January 2011, the Polish government did not take action to secure the return of the plane wreckage, the memo reads.
According to the memo, on December 6, 2010, during talks in Warsaw, then Russian President Dmitry Medvedev announced to then Polish Prime Minister Donald Tusk that the wreckage would be returned to Poland before the first anniversary of the Smolensk disaster, i.e. by 10 April 2011.
In the 2013 memo it was noted that during the same visit at a press conference with then President Bronislaw Komorowski, Medvedev spoke in favor of leaving the decision concerning the return of the wreckage to the discretion of the authorities conducting the appropriate proceedings in this case.

According to this document, Tusk raised the issue of the return of the wreckage during an interview with the head of the Council of the Russian Federation Valentina Matviyenko on May 22, 2012. In response - says the memo - Matviyenko pointed out that the investigation into the crash should be completed by Russia within the next few months.

However, according to the memo "in this context, the commitment of the Russian president to return the wreckage to Poland by the first anniversary of the disaster seems to have little legal significance." because "the statement was not public and there is a possibility of its revocation or reinterpretation by the Russian side, especially in the context of other public statements made by the Russian President Medvedev during the same visit.

Moreover, as it was pointed out in the memo, Poland only raised this issue on May 22, 2012, after 18 months had elapsed from the promised return deadline of April 10, 2011. One and a half year had passed since the promised deadline of returning the wreckage by the time the Tusk government finally raised the issue. The memo also indicated that there were no "documents showing that Poland raised the issue in a consistent manner directly referring to the commitment of the Russian President in relations with Russia.”

The authors of the memo emphasized that Russia had justified the need to retain the Tu-154M wreckage in Russia on the basis that, "it is conducting criminal proceedings in cooperation with the Polish side and the requirements of national law".
In a memo from 2013 there is also a discussion about the return of the wreckage on the grounds that it is the property of Poland. As noted, the wreckage can be used as evidence in criminal proceedings in the framework of cooperation between Polish and Russian prosecutors, on the basis of the agreements on mutual legal assistance in criminal matters.

Moreover, as noted, the recovery of the wreckage can be approached from the perspective of the international legal obligation to respect the property of a foreign state used for governmental purposes.

In this context, it should be emphasized that keeping the wreckage of Tu-154M aircraft in Russia beyond any reasonable period of time justified for the investigation, and hence contrary to the principle of good faith, is a violation by Russia of the special international legal status of the property of the Polish State, the memo reads.

As it was pointed out, "the initial implied consent to retaining the Polish wreckage of Tu-154M aircraft in Russia has been withdrawn." It was reiterated that the " demand for the immediate return of the wreckage was raised during the meeting of the Polish Prime Minister with the Chairwoman of the Council of the Russian Federation in Warsaw on May 22, 2012, and at the meeting of the Polish and Russian Ministers of Foreign Affairs in Moscow on December 17, 2012."

Poland can thus demand the return of the Tu-154M wreckage on the basis that it is Poland’s property used for government purposes, and it can argue that a reasonable period for its use by the Russian Federation, that is the period arising from the obligation to act in good faith, has expired, emphasized the 2013 memo.

There is no rational justification for Russia to retain the possession of the Polish Tu-154M aircraft wreckage. The justification on the basis of Russian national law concerning restrictions on the transfer of evidence before the completion of criminal proceedings is not applicable, since in accordance with international law, a State may not invoke the provisions of its domestic law to justify the non-compliance with international law obligations.

The Russian Federation has no right to unilaterally, indefinitely, retain the property of the Polish state used for governmental purposes without Poland’s consent. Up to a certain point Russia enjoyed the implied consent of the Polish authorities, but without a doubt we can say that such consent has been withdrawn, read the 2013 memo.

In concluding, the document stressed that Russia “is violating international law by the failure to return the wreckage of Tu-154M aircraft, which is the property of the Polish state, despite the repeated requests of Poland in this regard."

According to the memo, Russia cannot rely on either the provisions of the European Convention on Mutual Assistance in Criminal Matters, or the Agreement between the Poland and Russian on legal assistance and legal relations in civil and criminal matters or on national regulations to justify non-compliance with its international obligations.

Given the impossibility of achieving the return of the wreckage through legal cooperation with the investigating Russian authorities, it is recommended that a diplomatic note be sent to Russia setting out existing violations of international law and calling for a cessation of continuing violations.

Finally, "such note should emphasize Poland’s clear lack of consent to the retention on the Russian Territory of the Tu-154M wreckage - the property of the Polish State used for governmental purposes. A formal request for its return must be made,” the memo concludes.

Source: wpolityce.pl
Translation: KK
Photo: University of East London