The patience of Smolensk victims’ families runs out.

A complaint against the Military Prosecutors filed with the Supreme Court.

SCND April 15, 2015

Eight families of the Smolensk crash victims have had enough of the violation of their rights and the way the Smolensk crash investigation is conducted by the military prosecutors. The families want the highest judicial authority in Poland to review the Polish government investigation.

A complaint has been filed with the Polish Supreme Court regarding “A violation of the right to have the case examined without undue delay in preliminary proceedings.”

The families claim that the investigation is unduly delayed. They demand the Military Chamber of the Supreme Court to order the prosecutors:

1. To re-issue a request to Russia for either permanent or temporary return of the Tu-154 CVR, flight parameters and the wreckage. Also to re-issue a request, so far ignored or acted upon with delay, to Russia for legal cooperation pursuant to international treaties. These requests have not been fulfilled due to Polish prosecutors’ failure to raise concerns over Russia’s obstruction and not complying with international norms and regulations.

As stated in the complaint, “Russia delaying or declining to cooperate in accordance with binding international treaties should provoke an adequate reaction from Polish authorities. They should take action to enforce the fulfilment of the essential requests previously submitted. These actions should involve monitoring the country the requests have been issued to, arguing the need for the requests to be fulfilled, re-issuing the unfulfilled requests with further supporting arguments, or issuing requests concerning other respects of the case.”

2. To provide access to any attachments and exhibits included as appendices to expert opinions received during the investigation. The families are not informed about any experts’ analyses commissioned by the prosecution or their impact on the investigation (which breaches e.g. the right to request exclusion of the expert from the investigation, as warranted by the Code). They often hear about experts’ opinions from the press. What is more, if any access to the expert opinion is granted, access to source documents on which the expertise is based is refused. E.g. the prosecutors have been refusing for years now to grant access to source materials of ATM opinion about the Tu-154M flight parameters. The source materials are vital in verification of the expert opinion and referring to it in the procedure, which every victim has a basic right to in the preparatory proceedings.

3. To release the complete documentation of the investigation. Access to full documentation is not only restricted, but also limited to the area of the prosecution office library. It makes it impossible to issue any requests if the process involves looking through e.g. 2000 pages of expertise with permission to make notes only, and no option to copy or take the documentation away.

4. To transfer the unclassified documentation kept in the confidential documentation section, to the unclassified documentation of the investigation. Why do the prosecutors keep unclassified materials with confidential documentation? Not only does it raise concerns, but it also breaches the victims’ rights to the open and transparent process and delays the investigation further, since the access to the evidence is restricted. The results of such access restrictions may well be a mountain of requests at the end of the investigation, which will cause even further delay to its final outcomes.

5. To appeal to IES (Instytut Ekspertyz Sądowych – Institute of Court Expertise in Kraków) to finally set the deadline for providing outcomes of the genetic analysis, carried out to confirm if the victims have been correctly identified. Despite the 5 years having passed since the tragedy, this essential knowledge has still been lacking. It is appalling, considering the existing cases of confusing the bodies.

6. To acknowledge many procedural motions filed by the families, so far consistently ignored. An example of this inaction is a lack of any acknowledgement from the prosecution of a request, made a few months back, to interview two experts from CLKP (Centralne Laboratorium Kryminalistyczne Policji – Polish Criminal Police Central Lab), who tested the samples from the Smolensk crash for the presence of explosives at the crash scene. So far, reactions from the prosecution to the opinions of independent researchers, who questioned the expertise, have been quick and experts were commissioned to supplement the existing expertise further. However, the two experts, during an academic lecture, openly admitted that methods they followed in their analysis could have not possibly led to the confirmation of the presence of explosives. As a result, a request was made to interview them, to which there had been no reaction from the prosecutors, who remain silent. Another incomprehensible example is a request made by Andrzej Melak to exhume the body of his brother Stefan and carry out an autopsy. The request has been ignored for over 4 years, despite being based on a justified argument that according to Russian medical records Stefan Melak was 20cm taller than he really was, as well as other examples of incorrect description of his body, according to his brother Andrzej Melak. For the past 5 years Mr Melak has not been certain if the grave he visits is really his brother’s.

The above summary of the complaint’s content is not an unfounded moan from the families, but clear evidence that their rights have been grossly violated. Such problems affect the entire investigation, the fact ignored by the military prosecutors. Yet, if not for the victims’ families, who watch the prosecution’s proceedings carefully, we would be much further from the truth of what really happened on April 10, 2010.

The complaint will also demonstrate if the Supreme Court is in the position to support the main Polish investigation into the Smolensk crash.

Source: Wpolityce.pl
Trnaslation: JD
Photo: niezalezna.pl