Zontek, Witold

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Can Putin Be Tried in Poland?Witold Zontek 2022-04-20T15:03:18On 1 March, the Polish Minister of Justice decided to initiate proceedings againstRussia for its military attack on Ukraine and possible war crimes and crimesagainst humanity. This may come as a surprise, especially after the prosecutor atthe International Criminal Court (ICC), Karim Khan, has already started to act inthis matter. But the initiation of proceedings in Poland would mainly be symbolicand would not conflict with international investigations. An EU Member Stateinvestigating specific individuals for their involvement in a war crime would be apowerful signal that their behavior should be condemned not only politically, butalso legally. At the same time, the scale and specificity of the crimes in questiongo beyond the possibilities of a single country and require extensive condemnationand the participation of observers and lawyers representing the broad internationalcommunity.What is the scope of Polish jurisdiction? The Polish Penal Code contains a chapter on Crimes against peace, humanity,and war crimes, which provides for the criminalization of virtually all forms of crimesknown to international law. The justification of one of the amendments to the PolishPenal Code related to the entry into force of the Rome Statute of the ICC: „[…]one ofthe essential principles expressed in the Statute is the principle of complementarity.It means that domestic criminal courts have priority in the exercise of jurisdictionover the crimes covered by the Statute. However, if a state is unwilling or unable toconduct criminal proceedings, the Court may assume jurisdiction. For this reason, itis important to include the proposed types of prohibited acts referring to the crimesagainst humanity and war crimes specified in the Statute in the Criminal Code. Thiswill allow for the extension of national jurisdiction over these acts. It should also beborne in mind that the definitions of crimes contained in the Statute are currently aninternational standard to which Polish legislation should be adapted.“Thus, the Polish administration of justice and law enforcement has its owncompetence to prosecute and punish war crimes. Naturally, the most evident field forapplying these provisions is when war crimes are committed on Polish territory. Butnot only then.In Chapter XIII, on the liability for crimes committed abroad, the Code provides for acomplex system of rules allowing the application of Polish substantive criminal lawto acts committed abroad. Provisions apply for example to a Polish citizen who hascommitted a crime abroad or an alien who has committed a prohibited act againstthe interests of the Republic of Poland abroad. In most cases this requires the dual-criminality principle to be met, meaning that Polish law can only be applied if thisact is also recognized as a crime by the law in force in the place where the act wascommitted.- 1 -However, other regulations are expanding the possibility to apply the Polish criminalcode to crimes committed abroad, even when at the place of their perpetration,no similar law is in force. This group of crimes includes crimes against the internalor external security of the Republic of Poland, as well as crimes provided for inthe Rome Statute of the International Criminal Court when no extradition orderhas been issued. Under the so-called “universal rule”, which means that a statemay investigate and subsequently adjudicate on crimes that are criminal under aninternational agreement, the Polish judiciary can cover acts as crimes of genocide orother types of acts contained in the ICC Statute.An opportunity to investigateThe substantive law provisions mentioned above do not automatically mean thateach case will come before a Polish court. They only provide a legal opportunity toconduct proceedings. The effective use of procedural instruments such as detention,pre-trial detention, and prosecution before Polish courts is an entirely differentmatter regulated by procedural rules. What does the initiation of Polish proceedingsin question mean then? They would undoubtedly be symbolic. Poland expressesmoral condemnation of what is happening in Ukraine. The legal perspective allowsfor formalized steps like collecting evidence in an orderly manner and allowing forits subsequent use in a criminal trial or forwarding it to the ICC. Interrogations ofrefugees, for instance, have already taken place to obtain information about therealities of the conflict. It seems unlikely that the political decision-makers of theKremlin, headed by Vladimir Putin, will be brought before the Polish justice system.However, such a fate may befall people from military or civilian circles (e.g. mediapropagandists, oligarchs) who support the Russian aggression and war crimes. Withenough information about these people, it is possible to charge them in absentiaand apply to Interpol for a red notice. Red notices are issued for fugitives wantedeither for prosecution or to serve a sentence. They are a request to law enforcementworldwide to locate and provisionally arrest a person. It is possible to issue an arrestwarrant for these persons, should they appear on the territory of Poland, and alsoto file a European Arrest Warrant, which makes it likely that these persons will bearrested and transferred to Poland once they are on EU territory. This might preventthese people from traveling to the EU and perhaps to other countries that react toInterpol’s note. It is clear that the Russian authorities will not cooperate in this typeof criminal prosecution with another country. But the mere fact that an EU MemberState is investigating a specific person for participation in a war crime would bea powerful signal that this behavior will not be treated as having only a politicaldimension, but the most tangible one.The scale of the investigationThe fly in the ointment here is the question of the scale of a possible investigation.As we know from media reports and reports of the Security Service of Ukraine,the personal data of many Russian soldiers and their commanders committing thecrime of participation in an aggressive war and war crimes have been determinedquite precisely. They go into thousands. If we add Putin’s propagandists from the- 2 -media, politicians, oligarchs, and other allies, the investigation becomes so extensiveand multi-threaded that it will overload Polish law enforcement agencies. The scaleand specificity of these crimes go beyond the possibilities of a single country. Theyrequire the participation of the international community.The universal principle is a catch that allows for the application of domestic criminallaw to be expended so that no crime that is important for the international communitygoes unpunished. But despite the principle that the ICC statute is complementary todomestic legislation, justice in the situation we are dealing with in Ukraine requiresaccountability before an international court. The problem of the scale of the crimeand the effectiveness of domestic proceedings means that often a decision mustbe made to conduct proceedings only against those perpetrators who are highestin the decision-making hierarchy and for whom it is relatively easy to find irrefutableevidence of their guilt. This is often in fundamental contradiction to the social senseof justice, especially for the directly harmed. They would probably prefer that thereal perpetrators of massacres, the ones bombing civilian facilities, be punished.Therefore, the question arises whether applying the universal principle is essentialfor bringing justice to the perpetrators of the most terrible criminal acts.A symbol of supportIn the proposed investigations symbolism comes to the fore, indeed, showingthe lack of indifference to what is happening by the international community.Therefore, the initiation of proceedings by the Polish prosecutor’s office should beassessed as the state’s compliance with its international obligations concerning theprosecution of crimes covered by international law. Evaluating the adequacy of theactivities undertaken and their final effectiveness is a completely different question.The symbolism of solidarity with the international community has its undoubtedadvantages. But carrying out the proceedings with the awareness that they will notachieve the intended results may ultimately weaken that message of support.- 3 -

Can Putin Be Tried in Poland?

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Can Putin Be Tried in Poland?

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