CASE OF SVITLANA ATAMANYUK AND OTHERS v. UKRAINE

Remainder inadmissible;No violation of Article 2 - Right to life (Article 2 - Positive obligations) (Substantive aspect);No violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)

André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Khanlar Hajiyev;Yonko Grozev

The first applicant, born in 1953, is the sister of the second applicant, born in 1946, the aunt of the third applicant, born in 1984, and the daughter of the fourth applicant, born in 1920. The first, second and third applicants live in Lviv. The fourth applicant having died in January 2013, the first applicant expressed the wish to pursue the proceedings in her stead.

On 27 July 2002 the Air Force of Ukraine organised a military aviation show in the “Sknyliv” airdrome in Lviv (“the Sknyliv air show”) to commemorate the sixtieth anniversary of the 14th Air Force Corps. The agenda for the event included a static display of military aircraft and other equipment and a live aerobatics show by military pilots.

The event was attended by several thousand individuals, including the third applicant; Mrs Natalya Mykhayliv, the first applicant’s daughter; her spouse Mr Andriy Mykhayliv and their two daughters Natalya and Andriana, born in 1994 and 1998 respectively.

During the aerobatics performance, an SU-27 military aircraft piloted by Colonels V.T. and Y.Y. crashed into the static aircraft display site where there were numerous spectators, where it exploded. Both pilots had successfully ejected before the explosion. As a result of the crash, seventy-seven people died and nearly three hundred sustained injuries.

Four members of the Mykhayliv family died on the spot. The third applicant suffered a post-traumatic stress reaction.

According to the applicants, following the accident, the military authorities immediately started cleaning up the site, shovelling the bodies into a pile, washing off the blood and small organic remains, and burying body fragments under the sand to conceal the evidence of the disaster. They also attempted to prevent people from photographing and filming. Senior Air Force staff and civilian authorities occupying the VIP lounge fled in panic, causing a traffic jam and obstructing access to the site for police and medical professionals.

The Government contested this account. They noted, in particular, that the law-enforcement authorities had arrived promptly at the scene and had not recorded any instances of inappropriate conduct by the military personnel present there. According to them, the bodies of the victims were inspected by the police at the scene and then carefully transported to mortuaries for forensic examination and identification.

Following the accident, the first and third applicants went to the mortuary in search of their relatives’ remains. According to them, they were obliged to wait long hours in the heat before being allowed to enter the premises. Once inside, they had to search through numerous bodies and body fragments piled up on the floor to identify those of their relatives. Unrefrigerated remains, which were decomposing in the heat, emitted a terrible odour.

On 5 August 2002 a panel of forensic experts examined the bodies of Mr and Mrs Mykhayliv and their daughters, and concluded that they had sustained fatal cerebral trauma and numerous other injuries. In particular, Mr Mykhayliv had sustained a severe concussion; the head of Mrs Mykhayliv had been completely destroyed; the heads of the children had been partly destroyed, with fragments missing. The documents on file indicate that the experts’ conclusions were based on external examination of the bodies.

The applicants submitted that the bodies had been autopsied in spite of the first applicant’s objections.

On an unspecified date the applicants collected the bodies of Mr and Mrs Mykhayliv and their daughters and buried them in the Yanivske cemetery in Lviv. According to the applicants, one of the girls had a gold earring missing. They further submitted that the head of Mrs Mykhayliv had been extracted from the crashed aircraft engine and, in spite of their pleas, had not been returned to them along with some other unspecified body fragments.

The Government submitted that unidentified body fragments of the Sknyliv accident victims had been buried in a common grave in the Goloskivske cemetery in Lviv after all reasonably available possibilities of identifying them had been exhausted. They also provided several documents produced by the General Prosecutor’s Office in August and September 2002, apparently in response to the first applicant’s requests for further measures to be taken with a view to identifying body fragments, including a distorted female head, as possibly belonging to her deceased relatives. It appears from these documents that the chief investigator ordered some of the measures requested by the first applicant but rejected other requests as unfounded. It was also noted in the documents that, while the authorities had had a distorted female head in their possession, it could not have belonged to Mrs Mykhayliv, because, according to the expert findings, her head had been completely destroyed.

On various dates several concurrent investigations were opened to establish the circumstances of the accident, including investigation by a special Government Commission set up for this purpose, the Ministry of Defence, the Lviv City Council, the Prosecutor’s Office, and Sknyliv Tragedy, a non-governmental organisation founded by survivors of the accident and those who had lost relatives at the air show.

On 27 July 2002 the President of Ukraine set up a special Commission (the Government Commission for the investigation of the causes of the catastrophe of the military aircraft of the Air Force of Ukraine; “the Special Commission”) with a specific mandate to investigate the circumstances of the accident and coordinate assistance to its victims. The Commission was chaired by the President of the National Security and Defence Council. Other members of the Commission included senior officials from the Ministries of Emergencies, Transport, Finances, Health, Interior and Social Protection, officers of the Security Service of Ukraine, the General Headquarters of the Armed Forces, the State Aviation Transport Department, and the Lviv Regional State Administration. The Commission also engaged several experts from the “Sukhoy” construction bureau (the SU-27 aircraft manufacturer, Russia) and two test pilots from the Russian Federation as aviation experts.

Following the investigation, which included inspecting the accident site, interviewing individuals involved in the organisation of the air show and examining the relevant documents, as well as deciphering data from the flight data recorders, on an unspecified date in 2002 the Special Commission reported on the facts as follows.

In June 2002 Colonel-General V.S. (the Air Force Commander-in-Chief) authorised the aerobatics show at the request of Lieutenant-General S.O. (the 14th Corps Commander). The Air Force Headquarters appointed a mixed team of officers from different units, including Colonel V.T., from Kirovske, Crimea as the first pilot; Colonel Y.Y., of the Air Force Headquarters, stationed in Vinnytsia, as the second pilot; and Lieutenant-Colonel Y.Ya., stationed in Mirgorod, as the aerobatic performance director. Lieutenant-General A.T. and Major-General A.L., both stationed locally in Lviv with the 14th Corps Command, were also designated to join the mission, one as “air show flights director” and the other as “chief safety officer”.

On 24 July 2002 V.T., Y.Y. and Y.Ya. carried out their only training flight as a team. On the orders of the Air Force Headquarters, the flight took place at a military aerodrome in Ozerne, near Zhitomir. According to the Special Commission, that flight could not qualify as a rehearsal for the performance at the air show, as it included a different sequence of manoeuvres; its purpose was rather to improve and practise piloting techniques. The Commission also established that V.T. had requested an additional training flight in Ozerne and that his request had been turned down by the command, citing a shortage of fuel. Although the air show preparation programme included an on-site rehearsal flight on 26 July 2002, the 14th Corps Commander decided to cancel it for the same reason. The pilots were not formally apprised of the boundaries of the aerobatics zone or the placement of spectators.

Before the show, the pilots were provided with a different aircraft from the one in which they had carried out their training flight. There was a certain asynchronism in the performance of the right and left engines of this aircraft. Overall, however, it was in an acceptable technical condition and remained fully operational until it crashed. The aircraft had been supplied with extra fuel in order to enable the pilots to return to Ozerne without landing at the site of the air show. The fact that the pilots had trained in a different aircraft and with less fuel had a negative impact on their readiness for performing aerobatic displays. For unspecified reasons, the pilots decided to take off without the mandatory anti-gravitation suits (“g-suits”). On arrival at the Sknyliv aerodrome, the pilots immediately started the performance, without taking any time to familiarise themselves with the site, which was new to them. During the performance, the aircraft exited the designated aerobatics zone, the boundary of which was some 150 metres from the spectators’ area. Neither A.T. nor Y.Ya., directing the flight from the ground, warned them of that fact or directed them to return to the designated zone. Still outside of the zone, V.T. decided to perform a certain aerobatic display (called “the trunk”), which he had never practised before and which was not included in his mission order. He made a technical mistake in its performance and, as the second pilot did not intervene when appropriate, the pilots lost control of the aircraft and it started falling. Subsequent efforts by the crew to regain altitude were futile. Accordingly, the Special Commission concluded that the principal cause of the accident was a technical mistake on the part of the first pilot in performing a manoeuvre which he had not been commissioned to perform. It also noted that the prompt and appropriate intervention of the second pilot could have saved the situation and that loss of life and damage to health could have been avoided had the ground crew properly guided the pilots to stay within the aerobatics zone.

The Special Commission also noted serious shortcomings in the organisation of the air show, including poor coordination between various officers and authorities involved in its preparation; unsatisfactory crew training, and lack of appropriate emergency and spectator-safety planning, which contributed to the disaster. The Commission noted, in particular, as follows:

“The serious consequences of the aviation catastrophe ... were the result of irresponsibility, negligence, lack of discipline, official neglect and breach of applicable regulations ... on the part of many leading officers of the Armed Forces, in particular, the generals and officers of the Air Force Headquarters.

The tragedy was also the result of the absence of a system of effective supervision of the execution of orders ... by the respective air force officials – from its Commander-in-Chief to the members of the crew of the SU-27. As a result, the generals and officers involved in the preparation and staging of [the air show] were not apprised of the real state of affairs concerning the necessary measures to be carried out, while the immediate participants in the aerobatic performance proved to be ill-prepared for it.”

The Special Commission criticised, in particular, V.S. (the Air Force Commander-in-Chief) and his colleagues from the Air Force Headquarters responsible for the military training – Lieutenant-General O.V. and Major-General V.A. – for not having developed appropriate specific normative guidelines for the aerobatic performances. In the Commission’s view, these were much needed given the lack of general regulations on the relevant matters. The Special Commission also criticised V.S. and his colleagues for not having ensured a proper distribution of tasks between their subordinates engaged in the show and their direct supervision on behalf of the Air Force Headquarters. In the Special Commission’s opinion, such supervision was particularly important in view of the involvement in the show of officers from different military units that were not subordinate to each other and not accustomed to performing any tasks together. It also noted that Lieutenant-General S.O. (the 14th Corps Commander) and his subordinates, in particular Major-General A.T. and Colonel A.L. (the 14th Corps chief flight safety officer), had failed to put in place any meaningful land-and-air safety precautions plan. In addition, the Special Commission regretted S.O.’s decision to cancel the on-site rehearsal flight and concluded that the officers designated to direct the flight as ground crew (A.T. and Y.Ya.) had had no relevant experience or clearance for such a mission.

The Special Commission also reported on numerous procedural breaches on the part of the local administration and municipal authorities in authorising the air show. In particular, K., deputy mayor of Lviv with responsibility for humanitarian issues, had exceeded his authority in authorising it instead of the mayor himself. The mayor, having learned of the military authorities’ initiative to organise the air show, took little action to coordinate the relevant preparatory activities. The show was authorised without the involvement of the competent officers and services legally responsible for carrying out assessments of the relevant safety risks and for taking the necessary prevention and response measures. The local authorities also failed to set up a necessary air show coordination committee and to organise a safety inspection of the aerodrome site before the show.

In September 2002 the Ministry of Defence produced a Report on the internal investigation, largely reiterating the findings of the Special Commission. In particular, it concurred that the immediate cause of the accident was the first pilot’s unforeseen misconduct, whose grave consequences could have been avoided or mitigated, were it not for the second pilot’s and the ground crew’s failure to intervene in good time. It also recognised that the organisation of the air show had been marked by significant shortcomings, including an unsatisfactory land and air safety precautions plan; refusal to arrange at least one training flight for the crew over the Sknyliv aerodrome; and poor supervision by the Air Force Headquarters and the 14th Corps Command of the preparatory activities. In addition, it was noted that the necessary regulatory framework was missing, and the organisers had drawn guidelines from the regulations on ordinary military training, which were not adapted for staging air shows for civilian spectators.

Referring to the conclusions of the investigation, on 6 September 2002 the Minister of Defence issued order no. 305 (On the unsatisfactory organisation of the demonstration flight and the SU-27 aircraft disaster at the Sknyliv aerodrome), whereby a number of officers engaged in the organisation of the show were subjected to disciplinary sanctions. In particular, Lieutenant-General S.O. (the 14th Corps Commander) was demoted; Lieutenant-General O.V., (Deputy Air Force Commander-in-Chief on military training) was dismissed from the military “for unsatisfactory performance of service duties in respect of the preparation for and supervision of the air show at the Sknyliv aerodrome, and for personal irresponsibility”; Major-General V.A. was dismissed from the military “for a negligent attitude to the performance of service duties and low personal executive discipline”; and four other high-ranking Air Force officers received warnings and were subjected to other sanctions. In addition, ColonelGeneral V.S., the Air Force Commander-in-Chief, was also dismissed from the military service on disciplinary grounds, and the new Air Force Commander-in-Chief was instructed to impose disciplinary sanctions on “other officers guilty of breaches of duty during the preparation and staging of the air show”. The issue of disciplinary responsibility for the pilots of the crashed aircraft and the ground crew which had operated their flight, was reserved pending a criminal investigation of the accident.

On 22 October 2002 the Lviv City Council Special Temporary Investigation Commission delivered its report. It stated that numerous authorities shared, to various extents, common responsibility for the poor organisation of the show. It noted, in particular, that:

“2.2. ... in the course of the preparation and staging of the demonstration flights ... the military establishments, the specialised central State aviation facilities and departments, the municipal authorities and their particular officers failed to comply with a number of provisions of the current law, governing the procedure of preparation and staging the events of such a scale, which failures, to various extents, resulted in the catastrophe and such a major loss of human life ...”

The Commission concluded that the local authorities had played an ancillary role in the organisation of the air show. However, they had acted negligently in authorising it in breach of formal procedures and without soliciting all relevant information from the military authorities. They had also failed to develop an appropriate emergency prevention and response plan for the air show. According to the Commission, the municipal authority had been completely disengaged from any safety-related decision-making and its overall performance had been marked by “...a certain confusion and lack of clear understanding by the higher officers of the scope of their responsibilities.” In view of this, the Commission recommended that the City Council evaluate the performance of the Mayor and other municipal officers and clarify its policy concerning the distribution of functions between them. It also invited the Mayor to impose disciplinary sanctions on his staff members who were at fault for breach of duty.

The Commission next concluded that the negligence of the city authority had not been a direct cause of the accident, and attributed the primary responsibility for it to the military authorities, having provided the following overall political assessment of the accident:

“[the accident is] ... a consequence of the generally irresponsible policy of the National Government, which has neglected reformation of the Army and the Navy, leading to a loss unprecedented for a civilised country... of military efficiency and patriotic spirit, criminally negligent performance of their official duties by the military command at all levels, loss of pride in the military service and marginalisation of the material and technical procurement of the armed forces and military servicemen ...

“... [the accident] ... demonstrated the inadequacy of the current legal framework, the inadequacy of the State control system in respect of flight safety; irresponsible and negligent performance by officers at all levels of their duties under the law in force; the need to establish civilian control over the activities of the army; and the need to modernise and effectively reform the armed forces of Ukraine ...”

On 1 October 2003 the Sknyliv Tragedy Lviv-based NGO founded by the relatives of the accident victims and its survivors published its own investigation report based on interviews and other information collected from public and private sources. In addition, the report featured an assessment of V.T.’s piloting techniques by S., a civil aviation pilot, who had lost family members at the Sknyliv air show.

Similarly to the reports produced by the governmental authorities, the authors of this report concluded that the immediate cause of the crash was error by the first pilot in performing a manoeuvre, which had been neither envisaged by his mission order nor practised by him before the show, while the second pilot and ground crew did not take the opportunity to intervene in respect of the first pilot’s conduct. In addition to that, in the opinion of the authors of the report, the Air Force Commander-in-Chief and the 14th Corps Commander, who had been watching the performance from the VIP lounge, had also failed to act to prevent the accident, as they had had direct radio connection with the ground crew and could have intervened at any moment.

Notwithstanding the aforementioned findings, in the opinion of the authours of the report, the accident had largely resulted from a structural problem. The responsibility for it had to be borne by numerous entities, including the Ministry of Defence, the Air Force Headquarters, the authorities of the 14th Air Force Corps, the Lviv city and regional authorities, and the civil aviation authorities (the Ukraviatrans State Aviation Transport Department and the Ukraerorukh State Company), which had given permission for the aerobatic performance without checking its terms of reference.

In particular, the authors of the report considered that the pilots’ mission had been poorly developed and had not been properly communicated to all parties involved. The mission order approved on 12 July 2002 by Lieutenant-General O.V. of the Air Force Headquarters was at variance with the aircraft specifications. A subsequent explanatory document to the mission order approved by Colonel O.K., the first pilot’s direct supervisor, was inconsistent with these specifications and with the aforementioned mission order. None of these documents specified such important parameters of the mission as engine performance mode, attack angles and acceleration coefficient to be observed during particular manoeuvres. Marginal flight parameters, such as minimum speed and height and maximal attack angle, which had been developed by the 14th Air Force Corps officers, were unsuitable for the performance of most of the manoeuvres which formed part of the event programme.

The authors of the report also criticised the 14th Corps Command for designating too small an aerobatics zone, (2,500x1,600 metres, when 3,514 x2,000 metres would have been required). They noted that it was technically impossible for the pilots to perform their programme within the boundaries of this zone and not to find themselves above the spectators’ heads.

Finally, the report also attributed part of the responsibility for the accident to the local municipal and regional authorities, which had disengaged themselves from any safety-related and emergency-prevention planning as well as to the civil aviation authorities (the Ukraviatrans and Ukraviarukh State agencies) for giving authorisations for the air space to be used in breach of the relevant procedural rules.

On 27 July 2002 the Western Region Military Prosecutor’s Office instituted criminal proceedings to investigate the circumstances of the accident.

On 28 July 2002 the case was transferred for investigation to the General Prosecutor’s Office and assigned to the Deputy Chairman of the Investigation Division of the Chief Department for Military Prosecutors’ Offices. The team of some twenty investigators and other officers from the military prosecutor’s office dedicated to the case was supplemented by nineteen civilian investigative officers from the Lviv Regional Prosecutor’s Office, department of the interior and the State Security Service. The composition of the team was modified on several occasions, each time consisting of both military and civilian officers.

On 4 February 2003 the prosecution commissioned an aviation expert assessment, which was carried out by a group of four Air Force officers in active service, a retired Air Force flight safety specialist and a civilian aviation expert.

On 15 April 2003 the group produced its report, in which it concurred with the earlier findings made by the Special Commission and other entities concerning the principal causes of the accident. As regards the quality of the organisation of the show, the experts found that the pilots’ mission as such had not been incompatible with the SU-27 specifications, and that the size and location of the aerobatics zone had been acceptable. At the same time, in the experts’ view, the organisational flaws had included, among others, a failure on the part of the superior officers to draw up comprehensive documents and guidelines in order for the crew to understand the scope of their mission, and to supervise more closely the execution of orders.

On 30 May 2003 the civilian expert engaged in the above assessment issued a separate opinion in which he stated, inter alia, that in his view the aerobatics zone had been too small; its location had been inherently dangerous and the pilots’ mission order had been incompatible with the SU27 specifications.

On 2 June 2003 the prosecutor’s office solicited an opinion from two other experts, both retired USSR Air Force officers, who at the material time had been on the staff of the Air Force scientific centre for combat application, to clarify the matters in dispute and other questions.

On 11 June 2003 the investigation obtained a conclusion by these two experts, in which they reported of numerous shortcomings in the air show organisation. In addition to the shortcomings pointed in the earlier Special Commission’s report, they concluded that the aerobatics zone was too small; the boundaries of the zone were not clearly marked on site so as to be visible from the aircraft, which factor impaired the pilots’ ability to orient themselves; the location of the aerobatics zone was potentially dangerous in case of any unforeseen situation; the airfield’s preparation for the show was carried out without any account being taken of the possibility of pilot error or any other emergency; the crew did not receive a single mission order defining its mission according to all applicable standards; various documents defining its flight parameters were not comprehensive and not fully consistent with each other; the officers of the flight safety service failed to reveal the above shortcomings; the pilots were allowed to take off without g-suits and their preparedness being checked by any competent authority; the position of “air show flights director” assigned to Major-General A.T., which did not feature in any military training documents, appeared to be redundant; it paralleled that of the ordinary aerodrome flights director, with a lack of clarity as to the distribution of authority between the two officers; neither Major-General A.T. nor Colonel Y.Ya., who directed the flight, had the proper clearance, experience, and qualifications; and there was no assessment of the quality of the first pilot’s piloting technique during the training flight in Ozerne on 24 July 2002. In practice, the pilots’ training was coordinated and supervised only by Colonel O.D., stationed at the Ozerne aerodrome, who had neither the authority nor the qualifications to assess their preparedness. The experts also noted that, regard being had to the army hierarchy, it was for the Air Force Commander-in-Chief to issue an appropriate formal order clearly designating the officers responsible for the mission and determining their personal responsibilities, as well as to bear responsibility for their proper training, since the programme envisaged the involvement of crew members and the use of equipment from various military units.

According to the experts, these and other shortcomings constituted breaches of numerous provisions contained in the relevant regulatory framework, including special military aviation guidelines, in particular: Guidelines for execution of flights for the Ukrainian Air Force, enacted by order no. 249 of the Deputy Minister of Defence on 25 December 1998 (Настанова по виконанню польотів в авіації Збройних Сил України, НВП-99); Air Force Navigation Service Guidelines of the Armed Forces of Ukraine, enacted by order no. 54 of the Air Force Commander of Ukraine on 9 November 1992 (Настанова по штурманській службі авіації Збройних Сил України, НШС-93); General Rules on Flights in Ukrainian Air Space, enacted by order no. 62 of the Air Force Commander of Ukraine on 10 December 1992 (Основні правила польотів у повітряному просторі України, ОПП-93); Regulation on Prevention of Aviation Incidents in the Ukrainian Air Force, enacted by order no. 210 of the Air Force Commander on 29 October 1999 (Положення про запобігання авіаційних подій у Військово-Повітряних Силах України, ПЗАП-2000), and several others. Similarly to the findings contained in other reports, the experts concluded, in particular, as follows:

“... One of the reasons for the emergence of the ... incident ... was the existence of significant shortcomings in the ... preparation and staging of the ... air show and lack of clear distribution of duties between the officers ... which, in turn, led to lack of coordination between ... the persons engaged in the preparation, as well as to the absence of effective control over their activity.”

If the foregoing normative acts had been unconditionally complied with, the breaches in the organisation of the demonstration flight could have been detected and remedied, and the grave consequences avoided ...”

The investigation ended on 10 August 2004. Ten officers, including both pilots and their ground support crew; the Air Force Commander-in-Chief (O.S.); O.V. and V.A. of the Air Force Headquarters; the Commander of the 14th Corps (S.O.); the 14th corps chief safety officer (A.L.) and the commander of the Air Force unit based in Ozerne (O.D.) were committed for trial.

On an unspecified date in 2004 S.O., previously demoted from his post as 14th Corps Commander, was appointed first deputy Air Force Commander-in-Chief.

On 27 August 2004 the Deputy Prosecutor General disjoined the criminal proceedings against V.S., O.V., V.A. and S.O. and referred their case (hereafter referred to as “the organisers’ case”) for additional investigation. He found, in particular, that it was necessary to clarify whether there was a causal link between the omissions imputed to those officers and the aircraft crash.

For that purpose, on 24 September 2004 two civilian experts were commissioned to carry out an additional assessment. The four defendants challenged that appointment, alleging that the experts concerned were not competent to evaluate their performance. S.O. proposed six other candidates in their stead. The prosecutor’s office dismissed the challenge to the civilian experts, but agreed to include three of the candidates proposed by S.O. in the group, having found that they were sufficiently independent. It rejected the other three candidates, citing possible conflict of interest in view of their current or former employment with the Air Force Headquarters. Subsequently, two more retired military officers were included in the group, which finally consisted of two civilian experts and five retired military officers. Four of the military officers (including the three candidates proposed by S.O.) were serving at the material time in the faculty of the National Military Academy and the fifth expert was deputy director for flight safety at a military aircraft repair company belonging to the Ministry of Defence.

On 8 February 2005 the five military experts produced a report in which they concluded that all four defendants had duly fulfilled their responsibilities in respect of the organisation of the air show and that none of them had breached any service duty or other applicable provisions. The group also concluded that the applicable legal framework governing the staging of military air shows and the organisation of aerobatic performances had been adequate and sufficient and that there had been no need for the defendants to develop any additional rules or guidelines before the air show. In the group’s view, the misconduct by the first pilot was the sole cause of the accident. Their conclusion, insofar as relevant, read as follows:

“The only reason for the crash of the SU-27 aircraft was the execution by the pilot of an unplanned piloting manoeuvre, in the course of which he committed grave errors in piloting technique, which caused the falling of the aircraft and the catastrophic consequences.”

On 11 May 2005 the two civilian experts also produced a report, which largely replicated the findings and the language of the report issued by their military counterparts.

In the meantime, on an unspecified date, the case in respect of the pilots, the ground crew and two other officers of the lower rank (hereafter the “performers’ case”) was transferred to the court for trial.

During the trial, the defendants pleaded innocent of any wrongdoing. In particular, Major-General A.T. noted that there had been no normative document defining the responsibilities of an “air show flights director”. Having been appointed to this position created by order of the 14th Corps Commander, he had developed his own reference document listing his duties for the Commander’s approval and had done his best in performing them. In his opinion, the appointment could not have made him responsible for direct supervision of the pilots’ training at a different airfield and ensuring their readiness, as neither of them had belonged to the 14th Corps or been placed under his command. He considered that regard being had to their position in the military hierarchy, the pilots had to report directly to the Air Force Commander-in-Chief.

Colonel A.L. of the 14th Corps flight safety service likewise asserted that he had properly performed his service duties and had prepared sufficient documentation concerning flight safety during the air show. He had submitted the relevant documents for review by 14th Corps Command as well as by the relevant sectors in the Air Force Headquarters, and had not received any negative feedback. Colonel A.L. further admitted that he had never personally instructed the pilots on the safety measures and had never checked on their readiness for the flight. In his view, such responsibilities fell outside his authority and had to be carried out by the pilots’ direct superiors, who did not belong to the 14th Corps.

Lieutenant-Colonel Y.Ya., the aerobatic performance director, asserted that, having been informed of the size and boundaries of the aerobatics zone on 24 July 2002, he had warned Major-General A.T. and the pilots of his doubts concerning its safety. However, having been told that the relevant parameters had been approved by the higher command and it was too late to change anything, he had executed the orders of his superiors and directed the flight as best he could.

Colonel V.T. (the first pilot) alleged, in particular, that during the flight the aircraft had become uncontrollable due to forces beyond his control. He denied an accusation that he had deviated from his mission order, and submitted that in his view the way to perform the disputed manoeuvre was a matter for the pilot’s discretion, particularly as his mission order had no specific instructions to this end. Moreover, prior to the flight, he had discussed the disputed manoeuvre with Colonel Y.Y. (the second pilot), who he had considered to be the crew captain, as he was higher in the military hierarchy, and the latter had no objections to his choice. Colonel V.T. also noted that the documents defining his mission had not defined the boundaries of the aerobatics zone. He had been taken by surprise when he saw on arrival on site that the spectators were to the left of the runway, as according to his orders, his manoeuvres were also to be carried out to the left. In any event, he considered himself obliged to carry out his orders without arguing.

Colonel Y.Y. (the second pilot) submitted that he had considered the first pilot to be the crew captain and that he himself was obliged to refrain from interfering with his actions. He concurred with the first pilot that the way to execute the disputed manoeuvre, which was not specified in the mission order, was a matter for the pilot’s discretion.

On 23 June 2005 the Central Region Military Court of Appeal, sitting in a panel consisting of three military judges and acting as a first-instance court, found both pilots, the air show flights director and the aerobatic performance director guilty of breaches of flight regulations within the meaning of Article 416 of the Criminal Code of Ukraine (“the CCU”) and sentenced them to fourteen, eight, six and five years’ imprisonment respectively. It further found the chief of the 14th Corps flight safety service guilty of having a negligent attitude towards military service within the meaning of Article 425 paragraph 2 of the CCU, and sentenced him to four years’ imprisonment, suspended, with probation. By way of reasoning, the court referred extensively to the relevant findings of the Special Commission and the aviation experts’ assessment of 11 June 2003 (see paragraphs 20-22 and 43-44 above) in so far as they related to the actions of the above officers, as well as described the overall shortcomings in organising the show.

The sixth defendant, Colonel O.D., who had coordinated V.T.’s and Y.Y.’s training programme in Ozerne and supplied the aircraft for the show, was found to have performed his duties in good faith and acquitted.

On 2 March 2006 the Military Panel of the Supreme Court of Ukraine upheld this judgment on appeal and it became final.

In the meantime, on an unspecified date the General Prosecutor’s Office decided to continue with the “organisers’ case”, having disagreed with the expert conclusions of 8 February and 11 May 2005, and on 25 January 2006 suspended S.O.’s authority as the Deputy Air Force Commander.

On 11 January 2008 the defendants in this case were committed for trial on charges of having a negligent attitude towards military service within the meaning of Article 425 paragraph 2 of the CCU. O.V. and V.A. were additionally charged with breaches of flight regulations within the meaning of Article 416 of the CCU. Finally, V.S. and S.O. were additionally charged with exceeding their authority within the meaning of Article 424 paragraph 3 of the CCU by inappropriately using State funds for a celebration of a bogus memorial date and staging aerobatic performances in the absence of an appropriate regulatory framework.

On 11 June 2008 the Central Region Military Court of Appeal, sitting in a panel of three military judges and acting as a first-instance court, acquitted all four defendants of the above charges, largely relying on the expert conclusions of 8 February and 11 May 2005. It found that the provisions of Article 416 of the CCU did not apply to O.V. and V.A., as they had not operated the flight and had not been directly involved in its preparation. Other charges were dismissed as unsubstantiated. In particular, all the defendants were found to have carried out their service duties properly. The court noted that they had taken numerous measures to ensure proper organisation of the show and had produced a large volume of documents correctly delegating tasks to different officers. They had also reasonably trusted the pilots, the supporting crew and other officers to carry out the tasks assigned to them. No legal act could be interpreted as conferring on the defendants a different range of duties or imposing an obligation to act in a different manner. The relevant allegations of the prosecution, as well as the conclusions of the Special Commission and the expert findings dated 11 June 2003 in respect of the defendants were incorrect, being based partly on an overly broad interpretation of the applicable legal provisions and partly on references to provisions that were wrongly applied in the context. The court did not refer to the internal investigation of the Ministry of Defence in its judgment. The relevant excerpts of the court judgment read as follows:

“... the members of the [Special Commission] concluded that the immediate cause of the catastrophe ... derived from mistakes in the piloting technique ... outside the designated aerobatics zone ... The same conclusion was adopted by the court, which examined the criminal case concerning [V.T.] and others. All other circumstances connected to the organisation of the show in the court’s view did not in any way affect the wrongdoings by [the first pilot] and, moreover, they could not have been foreseen or taken into account by the organisers of the show ...

... As far as the size of the aerobatics zone was concerned, which, according to the experts, was insufficient for the performance of the mission ... this breach was not the cause of the catastrophic situation, since the SU-27 aircraft was practically never within its boundaries ...

Reports on the crew’s readiness for the flight were produced properly, and it was following their receipt that [V.S.] as well as [S.O.] gave permission for the flight to go ahead;

The decision to hold the show was taken by the 14th Air Force Corps Commander [S.O.]: this decision was coordinated by him with the Air Force Commander-in-Chief [V.S.], and they acted within the scope of their authority. With a view to preparation of the festivities and organisation of the flight by SU-27, the 14th Corps Command jointly with the Air Force Headquarters took a number of relevant measures: orders were issued; show plans were drafted; agendas were put in place; and air and static display schemes were developed ... The 14th Corps Commander performed his duties with respect to the preparation of the show in accordance with the applicable law, having properly distributed duties among his subordinates ... Issues concerning preparation of the show and supervision over the performance of the delegated tasks were discussed at meetings organised by [S.O.] ...

The court’s conclusions ... are also not affected by the cancellation of the [on-site] ... rehearsal flight ... In the court’s view, this fact did not affect the cause of the disaster, which was deviation by [V.T.] from his mission ...”

The Prosecutor’s Office and numerous injured parties appealed against this verdict before the Military Panel of the Supreme Court. In its appeal, the prosecution asserted, in particular, that the preparation for the show was based exclusively on the military training documents, which took no account of the specifics of an aerobatic performance involving civilian spectators. Lacking a body of relevant legislation and regulations, the Air Force Command had been obliged to develop specific documents adapting the military training rules for this purpose before planning the show. As an aerobatics performance could not be equated to an ordinary military training flight, a special training programme had to be set up, and the crew had to have special clearance. However, the reports by the Special Commission, the Ministry of Defence and the aviation experts indicated that not only did the defendants fail to act in developing relevant rules and regulations, but they also failed to supervise compliance with the existing general rules. The court’s findings were at odds with the findings by these authorities, and no justification was provided for them. Moreover, they were inconsistent with the court’s own position adopted in the judgment of 23 June 2005, where it heavily relied on the conclusions of the Special Commission and the aviation expert assessment in examining various aspects of the case and had referred to the relevant findings concerning poor organisation of the show in its reasoning.

On 22 October 2008 the Military Panel of the Supreme Court of Ukraine rejected the appeals and upheld the acquittals.

On 25 April 2003 the applicants lodged civil actions within the aforementioned criminal proceedings against the military officers, claiming damages for the deaths of the Mykhayliv family from the Ministry of Defence. The first applicant claimed 36,000,000 Ukrainian hryvnias (UAH) in compensation for non-pecuniary damage for the deaths of her daughter, granddaughters and son-in-law; the second applicant claimed UAH 2,000 in compensation for pecuniary damage and UAH 6,000,000 for non-pecuniary damage for the deaths of her niece and her family; the third applicant claimed UAH 1,000 for pecuniary damage and UAH 3,000,000 for nonpecuniary damage for the deaths of her cousin and her family; and the fourth applicant claimed UAH 6,000,000 in compensation for nonpecuniary damage for the deaths of her granddaughter and her family.

On 23 June 2005, when pronouncing the verdict in the “performers’ case”, the court ruled on the applicants’ civil claims and awarded the pecuniary damages claimed by the second and third applicants in full. It further awarded UAH 220,000 in non-pecuniary damages to the first applicant and UAH 60,000 under this head to each of the other applicants.

On 2 March 2006 the Military Panel of the Supreme Court rejected the applicants’ appeals, in which they claimed higher compensation.

On 21 and 31 August, 18 October and 29 November 2006 the first, fourth, third and second applicants, respectively, obtained the judgment awards due to them.

On various dates the applicants also brought further civil actions against the Ministry of Defence in the “organisers’ case”.

On 22 October 2008 the Supreme Court left these claims unexamined, regard being had to the acquittals of the defendants.

On 27 July 2002 the Cabinet of Ministers of Ukraine allocated 10,000,000 Ukrainian hryvnias from the State reserve fund to the Lviv Regional State Administration towards liquidating the consequences of the accident (Decree no. 1085).

On 29 July 2002 the Regional Administration created a commission to deal with distribution of the above funds, and determined the categories of expenses to be covered (Decree no. 718). According to the Administration’s decision, UAH 5,485,000 was to be distributed to the families of the deceased. The sums were to be disbursed to spouses, children, parents and dependents of the deceased victims, in amounts ranging from UAH 20,000 to UAH 40,000 depending on the family circumstances. The decree further allocated a total of UAH 2,075,000 to the surviving victims; UAH 500,000 to help the families with arranging funerals and providing gravestones; UAH 180,000 towards medical and rehabilitation costs; UAH 553,000 towards prosthetic care and relevant rehabilitation expenses, and the remaining funds to other categories of expenses. According to the Government, the relevant funds were disbursed to the addressees before the end of 2002.

On 3 September 2002 the Parliament of Ukraine decided to transfer one day’s salary of each Member of Parliament, with their consent, to the benefit of the Sknyliv accident victims.

On 27 November 2002 the Lviv City Council’s Executive Committee decided how to distribute the UAH 849,475 received by the municipality in charitable donations (Decree no. 522). According to this decision, UAH 202,475 of these funds were to be distributed to the families of the deceased; UAH 405,000 to those with serious irreversible health damage; UAH 121,492 to those with serious injuries and who were receiving in-patient treatment; UAH 80,520 to those with injuries of medium seriousness and who were receiving in-patient treatment, and UAH 39,970 to those receiving outpatient treatment.

On various other occasions the authorities took additional decisions allocating financial and other assistance to various categories of the victims (such as decrees no. 730 of 15 August 2003, no. 1078 of 5 December 2003, and no. 221 of 5 March 2004 by Lviv City Council, Decree no. 328 of 19 July 2012 by the Lviv Mayor, and others). Pursuant to these decisions, further funds were allocated for medical check-ups and rehabilitation procedures, to cover the costs of holidays in recreational facilities for children, and for lump-sum payments to victims of the accident.

The first applicant received UAH 47,690 in various payments from the State under the above programmes. The first, second and fourth applicants also received UAH 40,270, UAH 6,000 and UAH 4,000 respectively from State-managed private charitable donations raised in aid to the victims.

The parents of Mr Mykhayliv were paid UAH 68,000 in State aid in connection with the deaths of their son and granddaughters. They received a further amount of UAH 60,000 from State-managed charitable donations. It appears from the evidence available that Mrs Mykhayliv’s in-laws did not lodge any civil claims within the criminal proceedings.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment)

The list of applicants and the relevant details of the applications are set out in the appended table.

The applicants complained of the inadequate conditions of their detention. In application no. 4215/17 the applicant also raised a complaint under Article 13 of the Convention.


Preliminary objections joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible (Article 35-3-a - Manifestly ill-founded);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation;Positive obligations);Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for home;Respect for private life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

André Potocki;Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Khanlar Hajiyev;Yonko Grozev

The applicant was born in 1940 and lives in Donetsk.

In the end of November 2001 the applicant was visited by two unfamiliar men, V.S. and A.N., who offered to buy half of the flat she lived in for 700 United States dollars (USD). It was a one-bedroom flat, measuring 43.3 square meters, recently privatised and acquired in equal shares by the applicant and her adult son, Y. The applicant refused to sell her half of the flat. According to her, the price offered was extraordinarily below the market value. In any event, she had no reason to sell the flat, which had been her long-established home for several decades. In response, V.S. and A.N. warned the applicant that she would regret her decision, because Y., (who was married and lived elsewhere), had offered the other half of the flat as a gift to V.S. If the applicant refused to sell her half for the price, which was offered to her, or to exchange it for a smaller flat on the outskirts of the city, V.S. would move into the flat and create intolerable living conditions for her.

Subsequently the applicant learned that on 18 December 2001 Y. had signed a notarised gift deed in which he transferred his title to half of the flat (which was not as divided into allocated parts of the whole) to V.S.

From November 2002 A.N., V.S. and their acquaintances started regularly visiting the applicant’s flat, demanding that she sell. According to the applicant, on numerous occasions they broke the locks, insulted and harassed her and caused damage to her property. Subsequently a part and then the entire of V.S.’s share in the flat was formally acquired by A.N. as a gift, whose value amounted to 5,602 Ukrainian hryvnias (UAH) according to the gift certificates. However, irrespective of this transfer, A.N. and V.S. continued to act in concordance in demanding the applicant move out and sell her share.

For instance, on 23 November 2002 A.N. and V.S. broke the locks on the entrance door when the applicant was away, entered the flat and, upon the applicant’s arrival, reiterated their demands that she sell her share. As the applicant protested against their presence in the flat and their overall conduct, a conflict emerged, in the course of which A.N. hit the applicant in the chest inflicting a bruise and causing soft tissue swelling.

On 26 November 2002 A.N., V.S. and several strangers broke into the applicant’s flat again. As they were irritated by the barking of the applicant’s dog, V.S. started kicking her and chased her out. Subsequently the applicant found her dog’s dead body in a garbage container.

Also on an unspecified date in November 2002 V.S. arrived in the flat after 11 p.m. (when the applicant was already asleep) and opened the balcony door, holding it open for some four hours notwithstanding the freezing temperature outside. In response to the applicant’s subsequent reprimands, he explained that he wished for her to catch a cold as she had been disagreeable.

On 15 December 2002, when the applicant’s daughter was visiting the applicant, V.S. arrived in the flat again. A conflict emerged, in the course of which V.S. hit the applicant on the head and stomach, inflicting concussion and blunt trauma of the abdominal wall. He also hit the applicant’s daughter on the head and other parts of the body, inflicting cerebral concussion and bruising of legs and arms. As a result of the conflict, the applicant and her daughter had to seek medical assistance for their injuries and the applicant received inpatient hospital treatment.

Subsequently V.S. and A.N. started installing in the flat from two to six strangers without the applicant’s consent. These tenants, mostly young males, behaved in a discourteous way. In particular, they organised loud parties; frivolously used, damaged and stole the applicant’s belongings; created insanitary conditions; carelessly used electricity, gas and appliances, frequently left the entrance door open, and ignored requests to contribute towards the maintenance charges on the flat.

On numerous occasions the applicant attempted to drive the tenants away or to call them to order. Her efforts resulted in conflicts, in the course of which she was harassed and intimidated. Her attempts to replace the locks on the entrance doors to prevent unauthorised entry into the flat resulted in them being broken and in the tenants, who frequently changed, moving in again, in spite of her discontent. As she was unable to withstand such living conditions and was afraid for her life and limb, the applicant effectively moved out, contending herself with odd living arrangements. However, she paid short visits to the flat regularly, to supervise the situation.

In the beginning of June 2003 V.S. drove his car onto the footpath, where the applicant was standing waiting for a bus, scaring and nearly hitting her.

On 11 July 2003 at about 9.20 a.m. V.S. again arrived in the flat, when the applicant was in it, and demanded that she surrender her share. A conflict emerged, in the course of which V.S. punched the applicant in the stomach, causing her physical pain.

On three further occasions (30 July 2004, 5 August and 1 December 2005) the applicant was severely beaten by V.S., twice accompanied by his acquaintance A.L. The applicant suffered physical pain and bruising. On 30 July 2005, in addition to that, she also sustained a second concussion, which necessitated inpatient treatment.

On various dates the applicant learned that A.N. and V.S. had also acquired ownership of shares in numerous other flats in Donetsk and that they had behaved similarly with the co-owners of these flats, inducing them to sell their shares on unfavourable terms.

On 16 October 2003 the Voroshylivsky district prosecutor instituted civil proceedings on the applicant’s behalf, seeking rescission of the gift deed between Y. and V.S. and the eviction of the latter on the grounds that the gift deed had been executed without the applicant’s consent.

On 12 November 2003 the Voroshylivsky District Court of Donetsk (hereafter “the Voroshylivsky Court”) allowed this claim, having found, in particular, that Article 113 of the Civil Code of Ukraine of 1963 did not authorise the transfer of title to a part of shared property, which had not been divided into allocated parts and that it also obliged co-owners of a shared property to seek the consent of their counterparts before carrying out transactions in it.

On 5 February 2004 the Donetsk Regional Court of Appeal (hereinafter “the Regional Court”) quashed this judgment following an appeal by the applicants’ opponent and dismissed the prosecutor’s claim, having found that, unlike in the case of selling part of a shared property, giving it as a gift to a third party did not require the co-owners’ consent.

On 10 August 2004 the Supreme Court of Ukraine dismissed the applicant’s and the prosecutor’s requests for leave to appeal in cassation against the Regional Court’s judgment. The judgment became final.

On 5 October 2004 the applicant instituted civil proceedings seeking the dispossession of V.S. (joined by A.N., when he acquired part of V.S.’s share and replaced by him, when he acquired the entire share), of his share in the flat, regard being had to his unlawful conduct towards her, the impossibility of joint use of the flat, and his refusal to pay his share of the maintenance costs. She further sought a judicial rescission of their right to occupy the flat and compensation for the costs she had borne on the flat with their shares. The defendants lodged a counterclaim, alleging, in particular, that the applicant had been interfering with their personal life and belongings, provoking conflicts, harassing them and creating intolerable living conditions, which made it impossible for them to fulfil their desire to settle in the flat. They sought damages from the applicant for this conduct and demanded that the flat be divided into allocated parts.

On 21 June 2005 the District Court allowed the applicant’s claim in part and dismissed her opponents’ counterclaim. In particular, referring to Article 365 of the new Civil Code of Ukraine of 2003, it ordered the dispossession of A.N. (by then the owner of half the flat) of his share against payment by the applicant of compensation in the amount of UAH 5,602. The court noted, in particular, that there was extensive evidence that the defendants had allowed numerous strangers to live in the flat; that the applicant had been harassed; and that the flat’s appliances and the applicant’s belongings had been misused and damaged. It further concluded that, regard being had to the flat’s size and layout, it was not possible for the co-owners to use it jointly in a harmonious manner or to have it reasonably divided into two independent halves for each of them to use separately. At the same time, A.N.’s dispossession in return for fair compensation would not put him at a substantial disadvantage, since he had another registered residence and predominantly used the disputed flat for subletting to other persons. The court next found that, since A.N. had received the flat as a gift, fair compensation would be the payment of the indicative price (UAH 5,602) declared by the parties as that share’s value in the latest gift deeds. Finally, the court found that A.N. and V.S. had no longer any right to occupy the flat and ordered partial reimbursement of the maintenance costs incurred by the applicant on the flat.

On 20 October 2005 the Regional Court, having reviewed the case on appeal by the applicant’s opponents, upheld the judgment with respect to the reimbursement of the costs borne on the flat by the applicant and the revocation of V.S.’s right to occupy it, as he no longer owned any share in the flat. It then quashed the ruling to dispossess A.N., having noted that, according to the expert assessment, the market value of the disputed flat had been appraised at UAH 147,756, which meant that value of half the flat had been UAH 73,878. The court further stated that the applicant’s claim for dispossession of A.N. and revocation of his right of occupancy had not been based on any legal provision. The relevant part of the judgment read as follows:

“Neither the provisions of the Housing Code of Ukraine nor those of the Civil Code of Ukraine of 2003, which the applicant cites as the basis for her claims, nor the Property Law of Ukraine, envisage dispossession of the owner of his or her property and his or her eviction from a flat owned by him or her on the grounds cited by the applicant.”

The applicant appealed in cassation. She noted, in particular, that A.N. and V.S. had acquired shares in a number of Donetsk flats and had deliberately created intolerable living conditions for their co-owners in order to obtain the flats in their entirety on terms grossly unfavourable to the other co-owners. She further alleged that, having no other residence and being a victim of constant harassment, she had abandoned the flat and had been requesting refuge from various acquaintances.

On 2 December 2005 the district prosecutor also lodged a cassation appeal on the applicant’s behalf, in which he corroborated her submissions that the defendants had been harassing her, had been using the flat in bad faith and had forced the applicant, a senior lady, to leave the dwelling she had occupied for many years. He also alleged that the sum proposed by the applicant in compensation for the defendants’ share in the flat had been fair, as it had been equal to the flat’s value indicated in the gift deeds on the basis of which A.N. had received the disputed share.

On 11 January 2006 the Supreme Court of Ukraine rejected the applicant’s request for leave to appeal.

On 22 January 2006 it likewise rejected the prosecutor’s request for leave to appeal and the Regional Court’s judgment became final.

On numerous occasions between 2002 and 2007 the applicant complained to the Voroshylivsky district police in Donetsk (“the district police”) about various instances of verbal and physical harassment, damage to and taking of her property and attempts by V.S. and A.N. to extort her share in the flat.

On various dates police officers arrived in the applicant’s flat in response to her calls for help. They examined the situation, questioned the applicant and her opponents, and subsequently refused to institute criminal proceedings (in particular, 22 January, 7 February and 24 December 2002; 22 and 24 January, 22 February, 5 and 22 March, 15 July, 30 August, 18 September, 12, 16 and 24 October, 4, 15 and 19 November and 5 December 2003; 1 June, 3 and 9 August and 15 November 2004, 20 January, 23 July, 6 August, 19 November, 13 and 28 December 2005; and 4 and 31 March and 16 and 27 July 2006). In their refusals, the police noted that the prosecution of A.N., V.S. and their acquaintances was unwarranted since the relevant facts disclosed the existence of a chronic domestic conflict between lawful occupants of a flat, who attempted to engage the police in resolving their private disagreements. The hostilities took place inside the household and did not breach the public peace. Both parties had accused each other of provoking conflict and it was not evident, which party had in fact assaulted the other and which had acted out of selfdefence. In any event, during these conflicts the applicant had sustained no serious damage to her health and had not presented any evidence that her belongings had in fact been taken or damaged by the accused individuals. It was not possible to exclude that she had falsified the disappearance of her belongings in order to compromise the unwanted tenants. The police further recommended that the applicant resolve the dispute concerning the use of the flat in civil proceedings and assured her that “pre-emptive conversations” had been had with the purported offenders to foster respectful conduct on their part. On several occasions the police had issued official warnings to them, advising them of the impermissibility of antisocial behaviour.

On 30 January 2003 the prosecutor’s office quashed a decision not to institute criminal proceedings in connection with the injuries caused to the applicant on 15 December 2002. On several occasions the applicant enquired about the status of these proceedings and received no reply. In 2006 the applicant was informed that the investigation had been suspended.

On 19 October 2005 the head of the district police instructed his officers to place the applicant’s flat on the police register for frequent visits with a view to preventing any offences and infringements of applicable law. He noted, in particular, that the investigations had confirmed the applicant’s allegations concerning A.N.’s and V.S.’s disruptive conduct. In particular, it had been established that they had been allowing numerous tenants to live in the co-owned flat, who had brought it into a decrepit and insanitary state. The persons who had been occupying the flat had also taken the applicant’s personal belongings without her authorisation and had used her furniture, equipment and appliances in a careless manner, as a result of which these objects were deteriorating. Moreover, these persons had interfered with the applicant’s ability to access the flat by changing the locks and thus effectively precluding her from living there. He also acknowledged that numerous pre-emptive conversations and warnings given by the police had not brought about any improvements.

On several other occasions (in particular, 28 February 2006, 4 September 2006, 19 February 2007 and 6 March 2007) the Ministry of the Interior in Donetsk acknowledged, in response to the applicant’s further complaints, that her allegations concerning A.N.’s and his associates’ interference with her home had some basis. They further assured the applicant that her address had been placed on the police register for frequent visits.

On 18 July 2006 the applicant lodged a private criminal complaint against V.S., A.N. and A.L. with the Voroshylivsky Court. Relying on Articles 125 and 126 of the Criminal Code of Ukraine, she alleged that the defendants had systematically beaten and verbally harassed her. In this respect the applicant referred to the incidents of 23 November and 15 December 2002, 30 July 2004 and 5 August 2005 (see paragraphs 10, 13 and 18 above). She also submitted that, in her view, these incidents had to be approached not as isolated instances of ill-treatment, but as episodes of systematic and premeditated criminal conduct by an organised criminal association functioning with a view to extorting flats from Donetsk residents. She submitted that the same individuals had engaged in similar conduct visà-vis a number of other co-owners of properties in the city. Accordingly, she requested the District Court’s assistance in transmitting her complaints to the public law-enforcement authorities with a view to instituting criminal proceedings concerning extortion and coercion.

On various dates five other residents of Donetsk joined the proceedings, alleging that the same defendants had acquired shares in their flats and had been pressurising and terrorising them with a view to extorting the remaining shares.

On 19 December 2006 Judge M. of the Voroshylivsky Court decided that the applicant’s and other complainants’ allegations disclosed an appearance that serious crimes, warranting institution of public criminal proceedings, had been committed. Accordingly, the judge instituted criminal proceedings on suspicion of fraud, extortion, coercion, circumvention of the law and several other crimes, and transferred the case to the Donetsk regional prosecutor for investigation.

On 24 January 2007 the prosecutor’s office appealed against this decision, alleging that applicable law did not authorise judges to institute public criminal proceedings in the above circumstances.

On 27 March 2007 the Regional Court upheld the prosecutor’s office’s appeal and returned the case to the Voroshylivsky Court to be examined by another judge with respect to the complaints which could be addressed in private prosecution proceedings.

Subsequently (23 August 2007) Judge P. of the Voroshylivsky Court returned the applicant’s and other complainants’ submissions without examination. She found that the injured parties had failed to comply with the rules on territorial jurisdiction and with other unspecified procedural requirements.

On 26 July 2007 the regional police instituted criminal proceedings in respect of a complaint about extortion lodged by a certain A.C., who had allegedly been forced to abandon her flat on account of the intolerable living conditions created by the co-owners of her flat.

On 15 August 2007 the police joined the applicant’s complaints concerning extortion to the aforementioned criminal proceedings.

On the same date A.N., V.S. and A.L. were arrested and placed in custody.

On various further dates complaints by eleven other individuals relating to the same persons’ misconduct were joined to the proceedings.

On 29 December 2007 deputy head of the regional prosecutor’s office signed the bill of indictment in respect of A.N., V.S. and A.L. charging them, in particular, under Article 189 § 4 of the Criminal Code, with extorting property in an organised group and transferring the case to the Kyivskiy District Court of Donetsk (hereafter “the Kyivskiy Court”) for trial.

On various dates in 2008 the defendants were released from custody pending trial.

On 24 May 2011 the Kyivskiy Court acquitted all the defendants of the charges under Article 189 of the Criminal Code. It noted, in particular, as follows:

“... The court comes to a conclusion that the basis of the present criminal proceedings is the existence of a private-law dispute between the defendants and the injured parties concerning the use of shared property, which the injured parties demand to resolve by way of criminal proceedings in view of their extremely antagonistic relationship with the defendants.”

On 27 February 2012 the Regional Court quashed this verdict on appeal by the prosecution and the injured parties and remitted the case for retrial.

On 17 April 2012 the defendants were rearrested and placed in custody.

On 12 October 2012 the Kyivskiy Court found that all the defendants were guilty of extortion under Article 189 § 4 and sentenced them to eleven, ten and eight years’ imprisonment respectively. It also ordered the confiscation of all their personal property. The court found, in particular, that the case-file contained sufficient evidence that the episodes of the applicant’s harassment (listed in paragraphs 10, 12-13 and 1618 above) had indeed taken place. It also awarded the applicant UAH 35,273.47 in pecuniary and UAH 30,000 in non-pecuniary damage to be paid jointly and separately by the defendants.

On 6 March 2013, following an appeal by the defendants, the Regional Court upheld this verdict on appeal concerning all points, except one episode unrelated to the applicant’s case.

On 18 September 2014 the Higher Specialised Civil and Criminal Court rejected the cassation appeals lodged by A.N. and V.S.


V.V.G. v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Dmitry Dedov;Elisabeth Steiner;Erik Møse;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković

The applicant is a Macedonian national, who was born in 1966 and lives in Skopje. The President authorised, of her own motion, the non-disclosure of the applicant’s identity (Rule 47 § 3 of the Rules of Court).

The Macedonian Government (“the Government”) were represented by their Agent, Mr K. Bogdanov.

The facts of the case, as submitted by the parties, may be summarised as follows.

On 27 August 2002 the applicant was admitted in a private hospital M.B. in Skopje (“the hospital”) for an induced labour. On that day, she gave birth to her son with the assistance of doctor S.T.C. According to a discharge notice dated 1 September 2002 issued by company S.M. (a company which ran the hospital), the applicant had been diagnosed as having suffered, as a result of the childbirth, from ruptura perinei gradus I (perineal tear). The applicant received a general anaesthetic so that doctor S.T.C. could repair the tear.

On 6 December 2002 the applicant was examined in the hospital and diagnosed as suffering from ruptura perinei gradus II. She underwent surgery recorded as perineoplastica. On 7 December 2002 she was discharged from the hospital. The discharge notice was signed by doctors S.T.C. and B.

Between 6 and 10 February 2003 the applicant was a patient in a gynaecological hospital in Skopje, where she had further surgery: colpoperineoplastica cum levatororraphia carried out by doctor N. On admission she was diagnosed as suffering from ruptura perinea cicatricialis gradus II.

Between March and December 2003 the applicant was examined in several hospitals in Skopje. Some noted that she was suffering from a prolapsed or descending uterus.

On 21 January 2003 the applicant and her new-born son lodged a criminal complaint with the public prosecutor, accusing doctor S.T.C. of a serious offence against health and medical malpractice (see paragraphs 20 and 21 below). They alleged that doctor S.T.C. had failed to carry out an episiotomy and prevent rapid delivery, which had led to rupture of skin and muscles. Furthermore, doctor S.T.C. had failed to repair the damaged tissues, despite the fact that a general anaesthetic had been administered to the applicant for that purpose. Doctor S.T.C. had left the wound to heal spontaneously, increasing the risk of sepsis. Because of those errors the complainants had sustained serious bodily injuries: notably the applicant had descending organs with an attendant risk of prolapse. She had further been required to undergo plastic surgery, as a result of which she had been suffering from depression. The newborn child had acquired a large bulge on his head, and this had had negative consequences over his breastfeeding reflexes.

On 28 May 2003 the public prosecutor requested that an investigating judge of Skopje Court of First Instance (“the trial court”) take certain measures regarding the applicant’s criminal complaint. On 1 September 2003 the investigating judge requested that the Forensic Institute (Институт за судска медицина и криминалистика) draw up an expert report on whether standard childbirth procedures had been applied in the applicant’s case; whether wounds after delivery had been correctly treated, and whether the plastic surgery had been necessary. She further interviewed the applicant, doctors S.T.C. and B.

On 18 May 2004 the Forensic Institute drew up a report which stated (1) it was at the discretion of the doctor, depending on the circumstances of each case, whether to carry out an episiotomy; (2) a general anaesthetic had been administered and the rupture caused after delivery had been repaired, and (3) the medical evidence suggested that a fresh rupture of a second degree had occurred, which had required further surgery. The latter had not been of a corrective nature. At the request of the public prosecutor, on 23 May 2005 the Forensic Institute drew up, on the basis of available medical evidence, an additional expert report according to which (1) there was no evidence that failure to carry out an episiotomy had caused prolapsed organs or that the baby had sustained any head injuries; (2) the subsequent medical treatment of the applicant had produced inconsistent evidence in this respect. In any event, any genital prolapse had occurred later; and (3) genital descent or partial prolapse could cause minor health problems.

During the investigation, the applicant contacted the public prosecutor on several occasions to provide additional evidence and relevant literature in support of her complaint.

On 7 July 2006 the public prosecutor lodged an indictment with the trial court charging doctor S.T.C. with serious offences against health and medical malpractice punishable under Articles 207 § 3 and 217 § 3 of the Criminal Code (see paragraphs 20 and 21 below). The trial court held several hearings, at which it heard oral evidence from the applicant, the accused, and doctors B. and N. (see paragraphs 5 and 6 above), as well as the expert who had signed the expert reports of the Forensic Institute. It also requested a third expert opinion, which the Forensic Institute drew up on 8 January 2008. That report stated that it had been at the defendant’s discretion whether to carry out an episiotomy. Furthermore, the available evidence indicated that doctor S.T.C. had promptly and adequately repaired the rupture after the delivery.

On 28 March 2008 the trial court acquitted doctor S.T.C., finding no evidence of professional misconduct at the time the applicant gave birth to her son on 27 August 2002 or immediately afterwards. In view of that conclusion, the court considered it irrelevant to establish whether the applicant’s health had seriously deteriorated, notably whether she had genital prolapse. In the absence of any evidence of misconduct on the part of doctor S.T.C., there was no need to establish any causal link between any of the applicant’s health problems and the conduct of the accused.

On 14 May 2008 the public prosecutor appealed. At a public hearing held on 3 September 2008 Skopje Court of Appeal overturned the trial court’s judgment and dismissed the indictment against doctor S.T.C. (се одбива обвинението) finding that the absolute time-bar of six years (calculated from the date of commission of the alleged crime) had expired.

On an unspecified date, insolvency proceedings were opened against the company S.M. In the course of those proceedings, on 23 January 2003 the applicant and her son sought recognition of their compensation claim regarding the alleged medical malpractice of doctor S.T.C. On 14 May 2003 an insolvency trustee (стечаен управник) disputed the claim and advised the claimants to pursue it by means of a separate civil action.

On 3 June 2003 the applicant and her son instituted separate civil proceedings before the Skopje Court of First Instance in which they claimed, under section 55 of the Medical Protection Act and section 157 of the Obligations Act (see paragraphs 24 and 25 below), compensation from the hospital and the company S.M. in respect of the alleged damage sustained during the birth on 27 August 2002. On 14 October 2005 the applicant’s son withdrew from the case. During the hearing before the civil court, the applicant argued, inter alia, that the defendants should be held objectively responsible for the damage sustained and that the criminal proceedings against doctor S.T.C. had no bearing on the outcome of the civil proceedings. Those proceedings (criminal) could only be relevant for the defendants’ right to claim reimbursement of the compensation awarded for doctor S.T.C.’s negligence (see paragraph 26 below).

On 11 December 2006 the Skopje Court of First Instance, sitting as a civil court, relying on sections 11(3) and 201(2) of the Civil Proceedings Act 2005 (see paragraphs 27 and 28 below) stayed the proceedings pending the outcome of the criminal proceedings against doctor S.T.C. On 15 March 2007 the applicant appealed against this judgment, reiterating that the defendants’ objective responsibility for the damage sustained had not depended on the courts’ finding of criminal liability on the part of doctor S.T.C. Furthermore, she alleged that section 11(3) of the Civil Proceedings Act had been inapplicable to her case, given the fact that the civil and criminal proceedings concerned different defendants. On 12 November 2009 Skopje Court of Appeal confirmed the lower court’s judgment, reiterating that the finding of criminal liability on the part of doctor S.T.C. was a preliminary issue (претходно прашање) relevant for the outcome of the civil case.

The applicant did not seek resumption of the compensation proceedings, since, according to her, that would offer no prospect of success. In this connection she submitted copies of documents regarding organisational, capital and other changes in the company S.M. that happened over the years.

Under Article 107 § 5 of the Criminal Code, prosecution of offences subject to a prison sentence of more than a year becomes statute-barred three years after the offence was committed. Article 108 § 6 of the Criminal Code provides for an absolute time-bar on prosecutions which is twice the time-bar specified under law.

Article 207 §§ 1 and 2 of the Criminal Code concern medical malpractice (несовесно лекување болни) and provide for a fine or a maximum prison sentence of three years in case of medical negligence. In case of unintentional medical negligence, the law provides for a fine or a prison sentence of a maximum of one year (sub-paragraph 3).

Article 217 § 3 of the Code concerns serious offences against health (тешки дела против здравјето на луѓето) and provides for a prison sentence of between three months and three years in case of serious bodily harm or grave deterioration of the health due to medical negligence (in relation to Article 207 § 3).

Section 101 provided that the (criminal) court was responsible for deciding on a civil-party claim. If the court found the accused guilty as charged, the victim could be awarded full or partial compensation (section 101(2)).

In case of an acquittal or dismissal of the prosecution, if the proceedings were stayed or the indictment was rejected, the court was to advise the victim to pursue his or her civil-party claim by way of civil proceedings (section 101(3)).

Section 55 provided for compensation for damage sustained due to errors or medical malpractice in accordance with tort rules.

Section 157 provides that an employer is responsible for damage caused by an employee in the performance of his or her duties or in relation to them. A victim can claim compensation directly from the employee if the damage was caused intentionally. The employer can seek reimbursement of the compensation awarded to the victim from the employee if he or she caused the damage intentionally or negligently.

Section 189 provides for the right to claim just satisfaction in respect of physical or mental pain; disfigurement; damage to reputation, honour, rights and freedoms; and fear.

Under section 11(3) of the Civil Proceedings Act, civil courts are bound by judgments given by criminal courts finding an accused guilty, in respect of the commission of the offence and the convict’s criminal liability.

Under section 201(2), a civil court may stay proceedings if the decision depended on whether an offence subject to State prosecution had been committed, who the perpetrator was, and if he or she was found guilty.

If the proceedings are stayed for the reasons specified in section 201(1) and (2) of this Act, the proceedings will resume after final conclusion of the proceedings whose the outcome was relevant for the civil proceedings, or if the court finds no reasons to await their termination (section 203(3)).

The Government submitted copies of final court judgments in which courts had awarded damages for non-pecuniary loss sustained due to medical negligence in birth or abortion cases brought against public hospitals. In those cases, the courts awarded damages notwithstanding that no criminal proceedings had been brought against the doctors responsible (4П-684/06; П.бр.417/07; П-333/09; XXXIIIП1-4418/10 and XIXП1-5127/12). They also submitted a copy of a judgment in which a public hospital was ordered to pay non-pecuniary damages because of medical error committed by a doctor who had been found guilty of “serious crimes against health” and sentenced to a suspended prison sentence (VII П.бр.205/08).

Lastly, they provided a copy of a final judgment in which the courts accepted a compensation claim concerning defamatory statements the defendant (a journalist) had made in a weekly newspaper. The compensation claim was brought after criminal proceedings instituted by the claimant against the defendant had been stayed because of the absolute limitation period. In the judgment, the courts found that the termination of the criminal proceedings had not been binding on the civil courts in respect of the claimant’s action for damages (П1.бр.5466/10).