Your Honor,
I am asking for an acquittal of all charges
Before I present detailed argumentation, which justifies my conclusion, I am asking for permission to start with the most general, basic and in my opinion obvious arguments.
Your Honor,
in civilized criminal law, at least since enlightenment we have „nullum crimen sine lege” rule.
I would like to reflect on this principle for a moment and deduce how important this rule is for the case. A crime is a human act which has been clearly described and prohibited by law.
I would like to recall another basic principle- the rule of law. It means that a private individual may do anything not expressly permitted by law and there is no obligation to guess what the legislator still wanted to prohibit, but he couldn’t do it precisely. We must keep these two principles in mind during the analysis of the case of our accused.
At this point it is still necessary to remind basic functions of the state and its organs. The state has a duty to create good law and the state has the right to enforce it.
But the state and its organs, especially the prosecutor’s office- can’t set traps for citizen, it is forbidden to bend the law to the detriment of a citizen, legal prohibitions must not be interpreted broadly- as the “nullum crimen sine lege” rule said.
And most importantly, we need to remember about principle of the presumption of innocence.
Now we get to the point.
Citizens of the Netherlands- Mr Onne Frederikus Gerardus is accused of committing crimes regulated by “Act on counteracting drug addiction” and offence regulated by article 263 § 2 and Mr Job van den Berg who is accused of committing crimes regulated by “Act on counteracting drug addiction”.
Criminal activities of the accused consisted of fact that as a president of the board and member of the board of the Clean & Solve company based in Szczecin- contrary to the provisions of the Act at 14. VIII 2015 they brought from china to Poland 1 ton of GBL substance (it is hydromassage gamma acid ester-GHB) without permission. Furthermore at 13 I 2016 in Szczecin and Gdynia they brought 1 ton of this substance for another time and at 01 II 2016 they attempt to become the owners of 1,6 tonnes of this substance, after bringing this substance to the territory of the Poland- but they didn’t realize the intention, because of substance retention by the customs service.
Another complaint says, that both mans since 1 VII 2015 to 15 II 2016 placed on the market at least 4.524,25 liters (about 5,1 tonnes) GBL substance, by selling this substance to 47 countries.
Since 1 VII 2015 to 15 II 2016 they placed on the market about 156 kg of GBL substance by intra-community delivery and export to several continents.
At 14 X 2015 they they sold to the DJ Point Europe company 0, 395 kg- GBL
At 9. XI 2015 they they sold to the Viktoneka company based in Łódź 11,3 kg – GBL
At 9 III 2016 they attempt to send by courier from Poland to the Dominican Republic 1, 130 kg GBL
The indictment says, that the accused brought the GBL substance to Poland without the permission. With time, they only attempt to bring, because the Customs Service was stopping shipments with the substance; the indictment indicates that accused sold to entities from several countries of the world illegal GBL substance, and they attempt to sell it to more countries, but Customs Service stopped it, and they bought several batches of this substance from the RS GRUP Rafał Ostrowski company.
Onna Lelia was accused of attempting to place on the market GBL by sending from Lithuania, through Polish territory, several GBL batches to Germany, Great Britain and Spain, but Polish Customs Service has stopped these shipments. Additionally Mr Onne Lelie was accused of illegal possession of firearms.
Your Honor,
all these accusations are not only unfair, but absurd.
They put the accused really as a hero of Franz Kafka book “The Trial”- Josef K.
Prosecutors Office, by this indictment causes the accused extraordinary harm and I do not hesitate to say it with all responsibility – it ridicules the Polish State!
Your Honor,
I would like to recall the basic facts.
The accused are not some suspicious types, they are entrepreneurs, who have been conducting legal business for a long time. GBL is a commercially available substance so far for industrial and economic purposes. It can be legally bought on the internet, and is advertised. The problem is that currently, for trading this substance- for some time now- permission is required. Until recently, this permission was not required. It could be possible that with the solvent and solvent component GBL, date rape drug can be produced. Maybe. Within the meaning of the prosecutor’s office- it is drug dealing. Did the prosecution took the trouble to determine how many Date rape drugs could be produced from those quantities of GBL that the accused had?
It would be enough to put to sleep and rape the entire population of China and India put together, and I am talking about putting to sleep and raping them many times. This suspicion is absurd. It should be added that it has not been determined that the recipients produced Date rape drugs!
They were called drug dealers! This sentence is used also by Police
GBL has mainly industrial purpose and as I said this substance is still on the market. Someone discovered, several years ago, that Date rape drugs can be produced using GBL. You can probably do that. Drugs can be made from a large number of food or household products available on the market. For example at the turn of the 1960s and ’70s Polish hippies, because lack of access to other drugs, they inhale “TRI” – glass cleaner, and this intoxicated them and gave them hallucinations.
You can also inhale synthetic glue to intoxicate you. Glue sniffers are a special category of drug addicted.
Prisoners get intoxicated by “chai”- they brew a whole packet of tea in a glass of boiling water at once, or they melt a whole tube of toothpaste in a glass of water- do we have to suspect bad intentions right away? That would be obsessive thinking.
Your Honor,
We should recall in what circumstances GBL was considered as a intoxicating substance and added to the list of such substances. It was added, as gamma-hydrobutyric acid ester (GHB). On the list was only Gamma-hydrobutyric acid (GHB), and the amended regulations also required isomers, esters, ethers and salts of psychotropic substances to be included on this list.
This amendment has expanded the list of previously banned substances, enumerated, to practically unlimited sizes.
Otherwise, there is doubt as to GBL is a GHB ester or a lactone at all. If it was true GBL would not be a substance from the list of “banned substances” at all and the indictment would be pointless. This is the reason why we submitted the last evidence request.
The accused were legally trading GBL, they legally imported her from China, The Customs Service allowed this substance to enter the Polish customs territory without reservation, the customs warehouse accepted the substance without reservation. The turnover was taxed – the accused paid tax on turnover of GBL.
Could they suspect that this turnover was illegal? They had confidence in the organs of the Polish State- to the Customs Service, to the Tax Office. In the pleading of 24 January 2019, the Prosecutor wrote a curious thing:
“accused never for several years of its activity in Poland not even once verified the legality of their activities in the Polish market surveillance office, where they operated. The accused were not interested in it at all.”
This is a curious and untrue statement. When the first doubts appeared as to the legality of trading GBL the accused turned to a professional lawyer-mec. Sienkiewicz, who was asked to check the applicable regulations. Mec. Sienkiewicz on their behalf, checked the regulations and sought information in offices. They were informed that GBL trading is legal. So what could the accused, foreigners who do not speak Polish, do? They acted in good faith and have taken due diligence. Why were they not to believe the lawyer whose services they used?
The quoted sentence, despite its misstatement, reveals a philosophy of the prosecutor’s office, this indictment is based on this philosophy. According to the prosecutor, a citizen should, on his own initiative, ask the authorities to check whether he is acting legally!
In “Police” written by Sławomir Mrożek citizens ask the police to search them at home, because after the search it is easier for them and somehow they feel more loyal. I never thought, that this situation may become a dream of the prosecutor’s office. And I am thinking- did the prosecutor have no doubts when writing this sentence, which I repeated today?
While The Customs Service admitted GBL into the Polish customs territory without reservation, the tax office collected turnover taxes, so what was the reason to suspect, that GBL trading is prohibited? When the first doubts appeared, the accused began to check the legal status by a professional lawyer. They had no reason not to believe the lawyer’s analysis. We need to ask where did these doubts come from?
When a policeman (mr. Kuszko) appeared in the company and he started using non-procedural form- asking about contractors, who bought from the accused GBL, but he also didn’t claim that GBL trading is not allowed. At that time, the legal status was unclear and the opinions of state offices were widely contradictory that even a lawyer decided that GBL trading was allowed.
We may wonder if mec. Sienkiewicz did her job properly, if her opinion that GBL trading is allowed is true, but it was an analysis passed on to the accused and they had no reason not to believe it. Can they be blame for it?
Your Honor,
allegation brought to Mr Lelie, that he attempted to place GBL on the market, by sending it from Lithuania, through the territory of Poland to Germany, Great Britain and Spain, but the Polish Customs Service stopped these shipments, is as absurd as the previous one. Mr. Lelie did not personally attempt to transit GBL batches, because he used shipping companies. This means that the sender of the shipment does not agree the shipping route with the shipping company.
When we are sending a letter to the United States, do we agree with the post office on which territory this letter will travel? Are we interested in this? These parcels could very well be sent by sea or by air. The act is not about such this transit!
And now, Your Honor, I would like to refer to last charge against Mr Lelie, charge of illegal possession of a gun.
He bought this weapon legally in the store – which he proved. He was informed that no such permit was needed. If permission was needed, the shop could not sell such weapons. This revolver is produced as an alarm legally transported to the Polish customs territory, legally sold.
Now police experts still insist that this revolver is a firearm requiring permission. Apart from the fact that experts should interpret the regulations. Policemen can only talk about the technical parameters of the weapon. Experts consider this weapon to be firearm, not alarm, because in their opinion bullets (plastic balls with a diameter of several millimeters) can hurt a target at a distance of 1 meter. This is due to the wrong reasoning of the word “hurt”, “hurting” (the act uses two terms – why?) We have provided the court with valid verdicts from various prosecutors’ offices, which consider such weapons to be alarming and do not require permission. Either way, the accused bought this weapon in a legally operating store selling weapons and military items and again, he had no reason to suspect that, contrary to the assurances of the seller, the possession of this weapon requires such permission.
Such revolvers are adapted to smaller side-ignition bang cartridges or to longer ones.
The purpose of these cartridges is identical. They are supposed to cause a bang, and a side effect is throwing from the barrel the plastic or rubber ball with a diameter of several millimeters. This ball can’t hurt anyone!
The expert claims that a copy of the weapon found at the accused was forged, originally it was for smaller (shorter) cartridges, but now it is for longer cartridges.
This modification did not change the purpose of the revolver, it is still an alarm revolver. The accused categorically claims that he did not modify this revolver.
Ms. Markowska, as a witness, confirmed that she had sold a brand new revolver, unmodified. But the fact that at the time of sale the revolver was adapted for “long” ammunition also shows that in the set with the revolver the accused immediately bought the ammunition “long”.
It is impossible to buy ammunition that does not match the revolver, the seller could not sell it to him. If someone bought a revolver for short cartridges, along with long ammunition, it would point the attention of the seller. It makes no sense to buy a revolver for short cartridges and long ammunition, with the intention of making a modification, he could immediately buy a revolver for long cartridges.
regardless of whether the revolver is for long cartridges or for short – it remains an alarm, bang revolver- it is still not a firearm!
I do not know if and how the dispute will end, whether revolvers such as those found at the accused require or do not require permission- the accused bought and owned this revolver in the belief that no permit is required.
By the way, the dispute between state authorities about the nature of these weapons began when more than 80,000 such revolvers were sold- as the witness Markowska claims.
Your Honor,
once again I am asking for the acquittal of the accused of all charges of the indictment
- they are not to blame for imprecise provisions of Polish law
- they are not to blame for the fact that these authorities of the Polish state interpret these imprecise provisions differently
- the accused acted in good faith and in trust in the organs of the Polish state.
