Preliminary objection joined to merits (Article 34 - Victim);Remainder inadmissible (Article 35-3 - Manifestly ill-founded);No violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);No violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

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

The first applicant was born in 1940. She is the paternal grandmother of the second applicant, who was born in 1997. As of the time when the application was lodged, the first applicant was also the second applicant’s legal guardian. The applicants live in Lviv.

On 27 July 2002 the Air Force of Ukraine organised a military aviation show in the “Sknyliv” aerodrome in Lviv (“the Sknyliv air show”) to commemorate the sixtieth anniversary of the 14th Air Force Corps. The celebration agenda 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 second applicant, aged five at the time, accompanied by Sergiy Mikhno, her father and the first applicant’s son, and Tetiana Mikhno, her mother and the first applicant’s daughter-in-law.

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, seventyseven people died and over 290 sustained injuries.

Both Sergiy and Tetiana Mikhno, who were in the epicentre of the accident, died at the scene from numerous fractures and severe cerebral trauma.

At the moment of the crash the second applicant was in the cabin of an IL-76 airplane on static display, posing for a photograph and waving her hand to her parents. She witnessed her parents being crushed by the aircraft, but did not sustain any physical injuries herself. Subsequently, she underwent psychological rehabilitation programmes intended to help her recover from her emotional trauma.

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 CommanderinChief) 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 MajorGeneral 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 firstinstance 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 16-18 and 37-38 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 24 December 2002 and 12 February 2003 the first and second applicants lodged civil actions within the aforementioned criminal proceedings. They claimed 50,000 Ukrainian hryvnias (UAH) and UAH 200,000 respectively for non-pecuniary damage inflicted by the deaths of Sergiy and Tetiana Mikhno. Subsequently they increased their claims, seeking UAH 500,000 and UAH 2,000,000 in non-pecuniary damages respectively. No claim for damage on account of the second applicant’s presence at the scene of the accident was submitted.

On 23 June 2005, contemporaneously with the verdict in the “performers’ case”, the court awarded each applicant UAH 50,000 in nonpecuniary damage, to be paid by the Ministry of Defence. It also awarded UAH 40,000 each to the father, mother and sister of Tetiana Mikhno.

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

On 14 December 2006 the second applicant received the judgment award due to her.

In March 2008 the first applicant received UAH 46,134.68 of the judgment debt due to her.

According to the Government, the remaining UAH 3,865.32 were paid to the first applicant on 28 December 2012. They presented a copy of the decision of the Bailiffs’ Service dated 28 December 2012 terminating the enforcement proceedings, in view of the fact that the judgment had been duly enforced.

When submitting their observations on the case in response to those of the Government, the applicants additionally submitted copies of the judgments of the Lviv Sykhivskyy and Zaliznychnyy District Courts dated 19 April and 7 December 2006, awarding the second applicant monthly allowances of UAH 830 and UAH 400 in connection with the loss of the financial support of her mother and father respectively. These allowances were to be paid by the Ministry of Defence until the second applicant’s eighteenth birthday. The Ministry was also obliged to pay lump sums of UAH 19,920 and UAH 10,167 in back payments under the first and second judgments respectively. These judgments were not appealed against and became final.

Enforcement proceedings were initiated with respect to both judgments, however, according to the applicants, only the second of them was being enforced. They submitted that the debt under the first judgment amounted to the hryvnia equivalent of 7,786.27 euros (EUR) at the time of the exchange of observations between the parties.

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 and Mr I.M., her husband (the third member of the applicants’ household) received UAH 50,000 each from the State budget in connection with the deaths of their son and daughter-in-law, and about UAH 6,200 in funeral and other assistance.

The second applicant received a global amount of UAH 130,000 from State funds.

The applicants were also provided with holiday vouchers to go to Crimea in 2002 and exempted from payment of the second applicant’s kindergarten fees. A further cumulative amount of UAH 180,000 was made available to the applicants’ household from charitable funds collected by the State authorities for the Sknyliv air show accident victims.

The parents of Tetiana Mikhno received a total of UAH 68,000 in State aid and around UAH 55,000 in charitable donations.


Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)

Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Khanlar Hajiyev;Síofra O’Leary

The applicant was born in 1981. He is currently serving a prison sentence.

On the morning of 3 October 2008, the applicant was digging potatoes together with his wife and G. (Ms), a neighbour, near his house. The applicant and G. had consumed some vodka at breakfast.

The applicant’s eleven-month old daughter was in the house, together with his four-year old stepson, V., who was watching cartoons on a DVD player. The house was locked, and the key was in the applicant’s pocket.

At about 11.15 a.m., when the applicant was carrying a sack of potatoes to the cellar, his wife asked him to have a look at the children. He was gone for about twenty minutes. When he returned, he said that he had had some beer.

At about 12.30 p.m., when the work was finished, the applicant went to the house. He came out and told his wife that her son was dead. When she entered the living room, she saw V. lying on the floor with a cable around his neck. The television set was overturned on the floor nearby. The applicant expressed a presumption that V. had tried to reach the remote control on top of the television, had overturned the television and, as a result, had accidentally been strangled by the cables.

Somebody called the police. By the time they arrived, V. had been put in his bed and the television had been placed on a bed in a different room. The applicant and his wife were questioned as witnesses. They admitted that they had relocated the body and the television, and explained that they had done so because they had felt stressed.

An autopsy of the child was carried out and in the evening of the same day the expert who had conducted it called the investigator and informed him that the boy had been strangled by somebody, and had not died as a result of an accident.

The investigator, together with the police officer on duty, returned to the applicant’s house and inspected the scene once again. The applicant maintained his account that there had been an accident. The police officers took him to the police station, without formally deciding on his procedural status. The applicant did not object.

The police officer on duty had a conversation with the applicant and suggested that he “tell the truth”. As a result, at 10.30 p.m. the applicant wrote a statement of “voluntary surrender to the police”, in which he explained that he had strangled V. having got angry about the mess in the room. The statement contained a note that the applicant had been familiarised with the content of Article 63 of the Constitution (see paragraph 37 below).

On the same day, 3 October 2008, a criminal case was opened against the applicant on suspicion of murder of a child.

The applicant spent the night in the police station.

At about 1 a.m. on 4 October 2008, the applicant was formally arrested as a suspect. He wrote in the arrest report that he waived his right to legal defence and regretted what he had done.

On the same day the applicant wrote another statement of “voluntary surrender to the police” with the same content as the previous one.

On 5 October 2008 the applicant was granted legal aid and a lawyer was appointed for him. During his questioning as an accused and during the reconstruction of the crime, in the presence of his lawyer, the applicant maintained his confession.

On 6 October 2008 the applicant underwent a forensic medical examination, apparently in the context of the judicial decision on his pre-trial detention. No injuries were found on him and he did not raise any complaints before the expert.

In October 2008 (the exact date is not legible in the available copy) a forensic medical expert confirmed the findings of the autopsy report that V. had died as a result of strangulation.

On an unspecified date the applicant signed an agreement on his legal representation by Mr R.

On 20 October 2008 the applicant’s father, acting on the applicant’s behalf, signed a legal assistance agreement with Mr Gavrylchenko (the lawyer who also represented the applicant in the proceedings before this Court). On the same date Mr Gavrylchenko joined the proceedings as the applicant’s lawyer. It appears that Mr R. too continued to represent the applicant.

On 13 November 2008 the applicant refused the services of Mr R.

On 3 December 2008 the investigator ordered the applicant’s forensic psychiatric examination with a view to establishing whether he could be held liable for the criminal offence with which he was charged.

On 10 December 2008 experts completed the aforementioned examination. They concluded that the applicant, although showing an indication of “slight intellectual retardation on the verge of a slight mental disability” (легка інтелектуальна недостатність на межі легкої дебільності), was aware of his actions and could control them.

On 10 February 2009, during his questioning as an accused, the applicant retracted his confession and claimed his innocence. He submitted that he “had incriminated himself under the physical and psychological coercion of the police”.

On 11 February 2009 the investigator decided that the applicant’s allegation warranted a separate investigation. He therefore severed from the case file certain materials which could be of relevance (such as the applicant’s confession, the transcript of his various questioning sessions and the report of his forensic medical examination).

On 23 February 2009 an additional forensic medical expert evaluation, which had been carried out at the request of the applicant’s lawyer, was completed. The expert excluded the possibility that V. had been accidentally strangled by the television cables when the television set had fallen on him, as had been suggested by the applicant, and confirmed that that could not be the origin of his bruises either.

On 5 March 2009 the Chornobay Town Prosecutor’s Office refused to open a criminal case in respect of the applicant’s allegation that he had been coerced by the police, having found that there was no indication of a criminal offence.

On 30 March 2009 the applicant was indicted.

On 18 May 2009 the Cherkasy Regional Court of Appeal, sitting as a court of first instance, found the applicant guilty of murder of a child and sentenced him to twelve years’ imprisonment. It relied, in particular, on the applicant’s statement of “voluntary surrender to the police” of 3 October 2008 and the confessions he had made on 5 October 2008 and maintained thereafter until 10 February 2009. The court decided, however, not to take into account his statement of 4 October 2008 on the grounds that it could no longer be regarded as a “voluntary surrender to the police” and the applicant should have been questioned as a suspect and legally represented. Furthermore, the court relied on the material and expert evidence. The applicant’s allegation of police coercion was dismissed as unsubstantiated. The trial court took into account the fact that the applicant had decided to write a “voluntary surrender to the police” as a mitigating factor in fixing his sentence.

On 28 May 2009 a copy of the judgment was served on the applicant.

On 10 June 2009 the applicant appealed on points of law. He complained, in particular, of the lack of access to a lawyer during his initial questioning at the police station on 3 October 2008. He submitted that he had been coerced into confessing by “physical violence and psychological pressure”. The applicant also challenged the accuracy of the expert findings and disagreed with the assessment of the facts by the trial court. The first page of the applicant’s cassation appeal was stamped by the Cherkasy Pre-Trial Detention Centre (SIZO), in which he was detained at the time, confirming that the appeal was sent out on 10 June 2009.

On 24 June 2009 the applicant’s lawyer also submitted an appeal on points of law with similar arguments. The stamp of the trial court on the first page of the appeal shows that it was received on 25 June 2009.

According to the Government, neither the applicant nor his lawyer applied to the Supreme Court to participate in the cassation hearing. However, the case file contains a copy of such a request signed by both the applicant and his lawyer and dated 24 June 2009. It has not, however, been stamped by the Supreme Court and there is no other acknowledgment of its receipt.

On 15 September 2009, in a hearing with the participation of the prosecutor, but in the absence of the applicant or his lawyer, the Supreme Court upheld the judgment of the first-instance court. It considered that the applicant’s right to legal defence had not been violated, as his confession of 4 October 2008 had been excluded from the evidence.


Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)

André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Mārtiņš Mits;Síofra O’Leary

The applicant was born in 1952 and lives in Cologne. He works as a criminal defence lawyer.

In 2009 the applicant defended a client in criminal proceedings. After the proceedings had concluded, and when the client had already been imprisoned, the client’s fiancée transferred the applicant’s legal fees (1,500 euros (EUR)) from her private bank account to the applicant’s professional account. The subject of the bank transfer read: “Prof Dr Sommer fees (client’s last name)”.

In 2010 and 2011 the Bochum public prosecution office conducted investigations into several individuals suspected of having committed fraud on a commercial basis as members of a gang. One of the suspects was the aforementioned applicant’s former client, who again retained the applicant as his defence lawyer. During these investigations, the bank accounts of several people, including the applicant’s client and the client’s fiancée, were inspected. The inspection revealed that the client’s fiancée had received money (EUR 7,400) which was suspected to have stemmed from illegal activities, and had transferred EUR 1,500 for legal fees to the applicant’s bank account.

On the basis of the bank transfer of fees from the fiancée to the applicant in relation to the first set of criminal proceedings, the Bochum public prosecution office also contacted the applicant’s bank. On 1 March 2011 the public prosecutor asked for a list of all transactions concerning the applicant’s bank account from 1 January 2009 until that day. He asked the bank not to reveal the request to the applicant. He based his request for information on Articles 161a, 51 and 70 of the Code of Criminal Procedure (hereinafter “the CCP”), in conjunction with Article 95 of that Code (see paragraphs 2325 below).

On 1 April 2011 the public prosecutor requested further information and asked the following questions:

“(a) Which other bank accounts, investment accounts or safe deposit boxes at your bank belong to the person in question?

(b) What rights of disposal (Verfügungsberechtigungen) does the person in question have?

(c) Who else has a right of disposal?

(d) Do other accounts exist of which the person in question is the beneficiary?

(e) If so, what are the current balances on these accounts?

(f) If bank accounts have been closed by the person in question, please submit information about the date of closure and the balance at the time of closure, and where the money was transferred after closure.

(g) Which addresses of the person in question are known to you?

(h) Are you aware of any money transfers to or other transactions with foreign countries? If so, please specify the bank, account and amount of each transfer or transaction.

(i) Please submit a list of all transactions for all existing or closed accounts from 1 January 2009 onwards.

(j) Are there any credit cards connected to any of the accounts?”

The bank complied with both requests for information and submitted the information to the public prosecution office. In both instances, the public prosecutor did not order the bank to submit the information, but pointed to the obligations of witnesses set out in the CCP and the possible consequences of noncompliance (see paragraph 23 below).

The information received was analysed by the police and the public prosecutor, and a list of fifty-three transactions deemed to be relevant was included in the investigation file as evidence. Therefore, everyone who had access to the case file, such as the lawyers of the coaccused, also had access to the applicant’s banking information, including the names of his clients who had transferred fees.

On 31 January 2012, after several unsuccessful requests, the applicant, as the lawyer of the accused, was granted access to the investigation file. From the case file he learned, for the first time, of the investigative measures concerning his own bank account.

On 24 April 2012 the applicant asked the Chief Public Prosecutor to hand over to him all data received from the bank and destroy all related data at the public prosecution office. In his request the applicant emphasised his role as a criminal defence lawyer, which was known to the acting public prosecutor, and the consequences for his clients, whose names were accessible through the banking information. He further argued that the investigative measures lacked a legal basis.

On 2 May 2012 the Bochum Chief Public Prosecutor refused the applicant’s request. He stated that there was a suspicion that the money transferred from the client’s fiancée stemmed from illegal activities. Consequently, it was legitimate for the public prosecutor to investigate whether further money transfers had taken place between the applicant and his client or the client’s fiancée. Therefore, since the investigative measures were legitimate, the information received had to be kept in the investigation file. The Chief Public Prosecutor further pointed out that there was no legal basis for returning the data or taking the documents out of the investigation file. The Chief Public Prosecutor cited Article 161 of the CCP (see paragraph 22 below) as a legal basis for the information requests, since the bank in question was a bank under public law and therefore considered to be an authority.

Subsequently, the file was transferred to the Bochum Regional Court (“the Regional Court”), because the criminal proceedings against the applicant’s client had started. The applicant therefore asked the Regional Court to return the data.

On 19 July 2012 the Regional Court refused the applicant’s application. The court found that the investigation was lawful, that the bank had provided the information voluntarily, that the documents could therefore only be returned to the bank and not to the applicant, and that the prohibition of seizure under Article 97 of the CCP (see paragraph 28 below) was not applicable, since the information had not been in the applicant’s possession. Nonetheless, in order to safeguard the clientlawyer privilege, it also decided to separate the documents in question from the general court file and only grant access to them if reasons proving sufficient interest were provided.

The applicant appealed against the decision. He challenged in particular the findings that the bank had acted voluntarily and that there had been sufficient suspicion for such an extensive analysis of his banking transactions. He further reiterated that, owing to his position as a lawyer, there were several safeguards in place concerning the seizure of documents (see paragraphs 26-29 below), and these should not have been circumvented because his and his clients’ personal information was stored at and by the bank, and not at his office.

On 13 September 2012 the Hamm Court of Appeal confirmed the decision of the Regional Court. It found that the decision was proportionate and that the safeguards were not applicable, in particular since the bank could not be considered a person assisting the applicant or a person involved in the professional activities of the applicant under Article 53a of the CCP (see paragraph 27 below).

On 19 September 2013 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint, without providing reasons (case no. 2 BvR 2268/12).


Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

Jon Fridrik Kjølbro;Julia Laffranque;Stéphanie Mourou-Vikström

The applicant was born in 1973 and lives in Mersin.

The applicant is a teacher in primary school and at the material time she was a member and secretary of the local branch of the trade union of Education and Science Workers (Eğitim ve Bilim Emekçileri Sendikası).

On 28 November 2008 the applicant participated in a demonstration organised by the above mentioned trade union on the theme “No to violence against women”.

On 29 June 2009 the District Directorate of National Education imposed a disciplinary sanction in the form of a reprimand on the applicant for her participation in the aforementioned demonstration under Article 125 of the Law no. 657 on Civil Servants.

On 10 July 2009 the applicant objected to this decision and requested its annulment.

On 29 July 2009 the Disciplinary Board of the Yenişehir district governor dismissed the applicant’s objection considering that the contested decision was in accordance with law and there were no grounds for its annulment.


Remainder inadmissible;No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property;Peaceful enjoyment of possessions)

Julia Laffranque;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković

The applicant was born in 1946 and lives in Zagreb.

In 1965 the Sisak Ironworks (Željezara Sisak), a socially-owned company, granted a specially protected tenancy to its employee S.K. and his family of a flat in Sisak. During 1991 and 1992 Serbian paramilitary forces gained control of about one third of the territory of Croatia and proclaimed the so-called “Serbian Autonomous Region of Krajina” (Srpska autonomna oblast Krajina, hereinafter “Krajina”). The town of Sisak was close to the border of Krajina. There were targeted killings of Serbian civilians by members of the Croatian police and army in the Sisak area during a prolonged period in 1991 and 1992 (see Jelić v. Croatia, no. 57856/11, § 78, 12 June 2014). Owing to this situation, S.K. and his wife Z.K., both being of Serbian national origin, left the town of Sisak and went to live with their relatives in Rijeka. They left their belongings, such as furniture and household appliances, in the flat in Sisak.

In May 1991 the socially-owned company Sisak Ironworks was transformed into a joint-stock company and became Sisak Ironworks Holding (Željezara Sisak Holding). It remained State-owned and State-controlled. It owned several companies, one of them being Sisak Ironworks Flat company (Željezara Sisak “Stan”) which since May 1991 managed all the flats having been previously owned by the former Sisak Ironworks company. Another company was Sisak Ironworks Fortis, which was privatised in July 1995. From 1997 the State ceased to have any share in the ownership of Sisak Ironworks Holding.

On 3 June 1991 Parliament enacted the Specially Protected Tenancies (Sale to Occupier) Act (Zakon o prodaji stanova na kojima postoji stanarsko pravo, hereinafter “the Sale to Occupier Act”) with regulations on the sale of socially-owned flats previously let under a specially protected tenancy. In general, the Act entitled the holder of a specially protected tenancy of a socially-owned flat to purchase it under favourable conditions.

The applicant and his family lived in the town of Petrinja in their house. Petrinja was occupied by Serbian paramilitary forces in September 1991. The applicant and his family moved to Sisak as displaced persons. The applicant found employment with Sisak Ironworks Fortis.

In 1992 the applicant and his family moved into the flat where S.K. and Z.K. had a specially protected tenancy. According to the applicant the flat was allocated to him and his family by his employer. According to the Government, during the proceedings before the domestic courts the applicant did not produce any document which showed the flat as having been allocated to him. S.K. and the applicant communicated on several occasions by telephone and S.K. agreed that the applicant and his family, as displaced persons, could temporarily occupy the flat.

On 13 July 1992 the Sisak Ironworks Flat company brought a civil action in the Sisak Municipal Court against S.K. and Z.K., seeking the termination of their specially protected tenancy of the flat at issue. The applicant gave oral evidence as a witness in those proceedings. He stated that he did not know where S.K. was. S.K. and Z.K., having been adjudged to be persons whose whereabouts were unknown, had a special guardian ad litem appointed to represent them in the proceedings. On 20 October 1992 the Sisak Municipal Court terminated S.K. and Z.K.’s specially protected tenancy on the grounds that they had abandoned the flat in question. That judgment was upheld by the Sisak County Court on 24 March 1992 and thus became final.

On 23 December 1993 S.K. and Z.K. lodged an application for the reopening of civil proceedings which had been completed with final effect. A copy of that application was served on the Sisak Ironworks Flat company. The application was granted on 12 April 1994 and the proceedings were reopened. The applicant participated in the reopened proceedings as an intervener on the side of the plaintiff.

On the same day, Sisak Ironworks Holding and the Fortis company concluded an agreement to sell the flat at issue to the applicant, under the Sale to Occupier Act. A copy of the contract was submitted to the State Attorney’s Office for approval, which was given on 12 April 1994.

On 22 May 1996 the Sisak County Court dismissed the action by the Sisak Ironworks Flat company to terminate the specially protected tenancy held by S.K. and Z.K. That judgment was upheld by the Sisak County Court on 30 June 1997 and thus became final.

After the Croatian authorities had gained control over Petrinja in 1995, the applicant and his family sought reconstruction assistance for their house in Petrinja to be repaired, under the Reconstruction Act (see paragraph 28 below).

On 12 December 1996 the Office for Reconstruction and Development of Sisak-Moslavina County accepted the applicant’s request and granted him and his family the sum of 29,900 Croatian kunas (HRK) to repair their house in Petrinja.

The applicant and his family confirmed to the administrative authorities that they had returned to Petrinja on 16 January 1998. They had their registered residence in Petrinja between 5 February 1993 and 28 December 1999.

In 2003 S.K. and Z.K. brought a civil action in the Sisak Municipal Court (Općinski sud u Sisku) against the parties to the 1994 contract of sale, seeking the annulment of that contract. During the proceedings S.K. died. The claim was dismissed by the Sisak Municipal Court on the grounds that the contract of sale had been concluded in accordance with the law, since at that time the applicant had had a specially protected tenancy of the flat in question.

The Municipal Court’s judgment was reversed on 22 November 2007 by the Sisak County Court (Županijski sud u Sisku). It established that Z.K. had not lost her specially protected tenancy since it had been restored to her and therefore the contract of sale had been concluded in breach of the mandatory rules of the Sale to Occupier Act. It also held that the applicant had known the circumstances in which the former holders of the specially protected tenancy had left the flat at issue as well as that they had lodged a request for the re-opening of the proceedings in which their specially protected tenancy had been terminated. Therefore, the impugned contract of sale was contrary to morals and constitutional principles and therefore null and void under section 103(1) of the Obligations Act. The judgment was upheld by the Supreme Court (Vrhovni sud Republike Hrvatske) on 20 January 2010.

On 26 March 2008 the applicant lodged a constitutional complaint. He relied on Article 3 and Articles 14 § 1 and 29 § 1 of the Constitution (see paragraph 22 below). In essence he complained about the annulment of his title to the flat by the Sisak County Court. In particular, in his constitutional complaint he wrote, inter alia:

“The complainant’s right to inviolability of ownership guaranteed by Article 3 of the Croatian Constitution was violated by the decisions of the Sisak County Court and the Sisak Municipal Court because the unconstitutional decision of the Sisak County Court interferes with the complainant’s ownership ...”

The Constitutional Court declared the applicant’s constitutional complaint inadmissible on 9 June 2011 holding that the case did not raise any constitutional issues.

The applicant is still living in the flat at issue.


Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention)

The applicant was born in 1976 and lives in Krasnoyarsk.

The applicant was prosecuted for drug dealing and running a criminal syndicate, together with seven codefendants. He was first arrested on 12 October 2005 for selling heroin but released two days later on the undertaking to appear.

On 11 November 2005 the applicant was remanded in custody. Subsequently, the criminal case against the applicant was joined with a number of other investigations into drug dealing. On 8 June 2006 the charges against the applicant were reformulated. He was charged with creating and operating a criminal syndicate, twelve counts of drug dealing, three counts of attempted drug dealing and money laundering.

The facts concerning the applicant’s pre-trial detention are summarised in the table below.

On 25 August and 26 November 2008 and on other dates the Krasnoyarsk Regional Court granted further extensions of the authorised detention period.

According to the information submitted by the Government, on 29 April 2010 the Zheleznogorskiy District Court convicted the applicant who remained detained until that date.


No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)

Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Georges Ravarani;Ksenija Turković

The applicant was born in 1977 and lives in Osijek.

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

On 6 November 2000, in inheritance proceedings following the applicant’s grandmother’s death, the applicant’s relative, M.J., and the applicant’s father were declared the beneficiaries in respect of a house, which was not registered in the land register, by a decision of the Zabok Municipal Court (Općinski sud u Zaboku).

On 18 October 2007 M.J. brought a civil action against the applicant in the Zabok Municipal Court (Općinski sud u Zaboku) asking that court to recognise his ownership of a share of half of an inherited piece of property and to order the applicant to allow him to register his ownership in the land register. He set the value of the dispute (vrijednost predmeta spora) at 110,000 Croatian kunas (HRK).

In the proceedings before the first-instance court, on 5 November 2007 the applicant contested the value of the dispute and suggested that it be set at HRK 300,000.

At the hearing held on 23 January 2008 the applicant, inter alia, withdrew her objection to the value of the dispute as indicated by the claimant, and stated that she agreed with it.

In its judgment of 25 April 2008 the Zabok Municipal Court accepted M.J.’s claim.

The applicant lodged an appeal with the Zlatar County Court (Županijski sud u Zlataru) and on 16 September 2009 the second-instance court dismissed her appeal as ill-founded, upholding the first-instance judgment.

On 24 November 2009 the applicant lodged an appeal on points of law with the Supreme Court (Vrhovni sud Republike Hrvatske), challenging the lower courts’ judgments.

On 27 May 2010 the Supreme Court declared the applicant’s appeal on points of law inadmissible ratione valoris. It interpreted M.J.’s civil action as being composed of two separate claims arising from different factual and legal bases - the first one for recognition of ownership, and the second for obtaining an order securing the registration of his ownership in the land register (hereinafter “the issuance of a clausula intabulandi”). The Supreme Court thus halved the value of the dispute and held that the value of each claim did not reach the necessary ratione valoris threshold of HRK 100,001 (approximately 13,300 euros (EUR)) for an appeal on points of law to be admissible. The relevant part of this decision reads as follows:

“The claimant in his civil action indicated the value of the dispute as HRK 110,000.

Pursuant to section 37(2) of the CPA [(Civil Procedure Act)], if the claims in the civil action arise from a variety of grounds, or different claimants put forward individual claims or individual claims are raised against several defendants, the value of the dispute must be established in accordance with the value of each individual claim.

In the instant case the claimant made two non-monetary claims, one concerning property rights - for recognition of ownership -, and a claim under the law on obligations - for the issuance of a clausula intabulandi , namely for obtaining an order securing registration of his ownership in the land register. Therefore, the value of the dispute has to be established in relation to the value of the dispute of each claim. Consequently, the value of the dispute of each claim ... has to be established by dividing the indicated unique value of the dispute by [these] two [claims].

Given that the claimant indicated the [unique] value of the dispute as HRK 110,000, and that this amount should be divided by [the number of the claims], the value of the dispute of each claim does not exceed the amount of 100,000. It follows that an appeal on points of law by the defendant is inadmissible.”

The applicant then lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), arguing that M.J.’s action had two aspects which could not be separated, and that the Supreme Court’s decision finding that the case concerned two separate claims had therefore been arbitrary and had violated her right to a fair hearing, in particular her right of access to the Supreme Court, as guaranteed under Article 29 of the Constitution.

On 17 February 2011 the Constitutional Court dismissed the applicant’s constitutional complaint. It held that the applicant in her constitutional complaint “did not demonstrate that the Supreme Court had failed to respect the provisions of the Constitution concerning human rights and fundamental freedoms, namely that it had applied relevant law in an arbitrary manner” and that therefore “the present case did not raise a constitutional issue.” Its decision was served on the applicant’s representative on 3 March 2011.


Dmitry Dedov;Elisabeth Steiner;Erik Møse;Julia Laffranque;Paulo Pinto De Albuquerque;Ksenija Turković

The applicants, Mr Dušan Lončar, Ms Miholjka Lončar and Mr Miloš Lončar, are Croatian nationals, who were born in 1951 and 1972 respectively. They all live in Vojnić and were represented before the Court by Ms S. Čanković, a lawyer practising in Zagreb.

The first applicant died on 1 June 2013.

The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.

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

During 1991 and 1992 Serbian paramilitary forces gained control over about a third of the territory of Croatia and proclaimed the “Serbian Autonomous Region of Krajina” (Srpska autonomna oblast Krajina, hereinafter “Krajina”). At the beginning of August 1995 the Croatian authorities announced their intention to take military action with the aim of regaining control over “Krajina”. The operation was codenamed “Storm” and took place from 4 to 7 August 1995. Before the military action, the vast majority of the population of “Krajina” had fled Croatia. They went firstly to Bosnia and Herzegovina, and later on many of them went to live in Serbia. Some returned to Croatia after the war. The number of people who fled is estimated at between 100,000 and 150,000.

In January 2005 the authorities learned that a close relative of the applicants, N.L., had been killed during the operation “Storm” or immediately afterwards, in August 1995, on the territory of “Krajina”. The police opened an inquiry into the circumstances of his death.

In January 2006 the police interviewed the first and second applicants, who had no direct knowledge about the circumstances in which N.L. had died.

M.L., also interviewed in January 2006, said that in August 1995 she had been in a convoy comprising people, tractors and “military armoured vehicles”. N.L. had also been in that convoy. He had been dressed in a Serbian army uniform and had been wearing an army mask. The convoy had been attacked but she had not seen how N.L. had died. R.T., interviewed at the same time, confirmed M.L.’s statement.

On 10 July 2006 the applicants lodged a criminal complaint with the State Attorney’s Office against unknown perpetrators in connection with the killing of N.L.

On 11 April 2008 the body of N.L. was exhumed. It was dressed in a military uniform with a military identity card.

On 21 May 2008 the Sisak County State Attorney’s Office dismissed the applicants’ criminal complaint on the grounds that N.L. had been killed in combat between a unit of the paramilitary Serbian forces and the Fifth Corpus of the Army of Bosnia and Herzegovina. This decision was served on the applicants’ representative on 28 May 2008.


Violation of Article 3 of Protocol No. 1 - Right to free elections-{general}

The applicant was born in 1955 and lives in Kaposvár.

The applicant suffers from a so-called psycho-social disability. On 3 October 2006 the Court found a violation of Article 5 § 1 concerning his psychiatric detention (see Gajcsi v. Hungary, no. 34503/03).

On 12 January 2000 the Fonyód District Court placed the applicant under partial guardianship. As an automatic consequence flowing from Article 70(5) of the Constitution, as in force at the relevant time, his name was deleted from the electoral register.

On 8 July 2008 the Kaposvár District Court reviewed the applicant’s situation and restored his legal capacity in all areas but health care matters. This change, however, did not restore his electoral rights.

The applicant could not vote in the general elections held in Hungary on 11 April 2010, due to the restriction on his legal capacity which resulted in the deprivation of his electoral rights.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Article 5-1-f - Expulsion);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention;Speediness of review);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

André Potocki;Angelika Nußberger;Ganna Yudkivska;Khanlar Hajiyev;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev

The applicants were born in 1978, 1980 and 2007 respectively.

They fled Armenia on account of fears of persecution related to the first applicant’s activity as a journalist and his political activism.

After arriving in France on 4 October 2009 they filed applications for asylum, which were rejected by the French Office for the Protection of Refugees and Stateless Persons (Office français de protection des réfugiés et apatrides – OFPRA), on 21 December 2009, then by the National Asylum Court (Cour nationale du droit d’asile – CNDA), on 28 February 2011. Their subsequent requests for re-examination were also rejected.

On 3 May 2011 the prefect of Loiret issued orders rejecting the applicants’ requests for leave to remain and obliging them to leave French territory. On 18 October 2011 the Orleans Administrative Court, on an appeal from the applicants, refused to overturn those orders.

The first applicant was arrested by the police in connection with a theft on the evening of 16 February 2012 and was taken into police custody that same day. The second and third applicants were arrested the next day at the reception centre for asylum seekers (Centre d’accueil des demandeurs d’asile – CADA) at Chaingy, where the family had been living. The applicants were taken that same day to the administrative detention centre (Centre de rétention administrative – CRA) of Toulouse-Cornebarrieu. The detention orders in respect of the first two applicants read as follows:

“Whereas the immediate enforcement of the [order to leave France] is not possible on account of the organisation of [their] departure for [their] country of origin.

Whereas [the applicants] [have] not presented sufficient guarantees that [they] will not abscond, not having a valid passport, [having] neither a fixed abode nor sufficient resources, not [having] complied with the previous removal directions issued to [them] and [having] formally opposed, when interviewed, [their] return to [their] country of origin.”

The first two applicants challenged their detention orders and in parallel lodged an urgent application for a stay of execution. They claimed that they had a fixed addressed at the reception centre (CADA), that a friend was prepared to accommodate them and that, in any event, their detention would be incompatible with the best interests of their child. In this connection they indicated that their child, who was too young to be left on his own, was obliged to accompany them in all their administrative formalities and therefore to come into contact with armed police officers in uniform.

On 21 February 2012 the President of the Toulouse Administrative Court dismissed the urgent application without a hearing, finding as follows:

“Under the [domestic statutory] provisions, the legality of decisions ordering administrative detention in connection with removal measures can be challenged fully through a specific procedure, which itself has the nature of an urgent procedure, separately from the remit of the urgent applications judge ...; it follows therefrom that the applicants’ request for that judge to order ... the stay of execution of the detention orders made for the purpose of enforcing the removal directions, a stay which would in fact have an equivalent effect to that of the annulment of the same decision on the merits, is inadmissible.”

On the same day, the Toulouse Administrative Court dismissed the application lodged by the first two applicants for the annulment of the administrative detention order, on the following grounds:

“It is not in dispute that [the applicants] cannot present any valid identity or travel document; although [they claim] that [they] have a fixed address in an asylum-seekers’ reception centre, it can be seen from the evidence in the file that this centre asked [them] to vacate the premises, where [they have] unduly remained since June 2011; nor [have] the [applicants] adduced evidence of lawful income; lastly, since the notification of the judgment of the Orléans Administrative Court of 18 October 2011 dismissing [their] application against the order of the prefect of Loiret of 2 May 2011, [the applicants] [have] avoided the said removal measure; under those circumstances, the choice of the administrative authority to place [them] in administrative detention instead of ordering a measure of restricted residence ... is not vitiated by a manifest error of judgment.”

Responding more specifically to the argument raised by the applicants concerning the child’s best interests, the Administrative Court found it to be inapplicable, as the decisions appealed against pertained only to the parents’ personal situation.

The prefect asked the Liberties and Detention Judge of the Toulouse tribunal de grande instance to extend the detention, after which the first two applicants tried to obtain the third applicant’s voluntary intervention in the proceedings. On 22 February 2012 that judge authorised the extension of the applicants’ detention for a period of twenty days, after finding inadmissible the request for voluntary intervention on behalf of the child, and having dismissed the argument that the conditions of detention were incompatible with the presence of a minor child, on the following grounds:

“It is not for the judicial authority to interfere in the running of an administrative detention centre”.

That decision was upheld on 24 February 2012 by the President of the Toulouse Court of Appeal, who found in particular as follows:

“... the administrative detention centre of Cornebarrieu, where the child is held, has been authorised to receive families and contains all the necessary facilities to ensure the comfort of a family with children.

Thus the whole family is together and they have, in an autonomous area and separated from the rest of the detainees, rooms for them alone and for their exclusive use.

In addition, there is a playground on the site, like those to be found in town squares.

Lastly, a doctor and a nurse are available every day in the Toulouse administrative detention centre and Mr and Mrs A.B. have not shown that they met with a refusal when they asked to present their child – a request of which the existence has not been established.

The Convention provisions, especially Article 8, do not therefore appear to have been breached.”

On 24 February 2012 the applicants submitted to the Court, under Rule 39 of the Rules of Court, a request for the suspension of the detention orders concerning them. On 29 February 2012 the Court decided not to indicate the requested interim measure.

On 5 March 2012 the applicants were released, after expressing their wish to return to Armenia, and after seeking voluntary return assistance for that purpose. However, they did not leave France, on account of the third applicant’s state of health. On 13 July 2012 the first applicant was granted leave to remain as the parent of a sick child.

In two judgments of 15 November 2012, the Bordeaux Administrative Court of Appeal annulled the administrative detention orders of 17 February 2012 in respect of the first two applicants. Its judgments contained the same wording for each spouse:

“4. Article L. 561-2 of the Entry and Residence of Aliens and Right of Asylum Code provides, by way of exception to the cases where a foreign national may be placed in detention, the possibility of ordering a measure of restricted residence (assignation à résidence) if the alien can present guarantees to allay the risk of non-compliance with his or her obligation to leave France. Under provision 3o of part II of Article L. 511-1 of the same Code, such risk must in particular be regarded as established, save in specific circumstances, in cases where the alien has already evaded the execution of a removal measure. The finding by the administrative authority of facts falling within provision 3o of part II of Article L. 511-1, while it is such as to create a presumption of a risk that the alien might fail to comply with his or her obligation to leave France, does not dispense that authority, before any decision to place him or her in detention, parents of minor children and who do not have sufficient guarantees of compliance, such aliens being provided for by Article L. 562-1 of the said Code, and in accordance with the aims of Article 17 of Directive 2008/115/EC, recourse to placement in detention can only constitute an exceptional measure in cases where the alien does not have a stable place of abode at the time when the prefectoral authority takes the necessary measures to prepare for the removal.

For the purposes of transposition of the above-mentioned Directive, Article L. 562-1 of the Entry and Residence of Aliens and Right of Asylum Code, as inserted by Law no. 2011672 of 16 June 2011, provides: ‘In the cases provided for in Article L. 5511, where the alien is the parent of a minor child residing in France and has effectively contributed to the raising and education of that child in the conditions prescribed in Article 371-2 of the Civil Code since the birth of the child or at least for the past two years, and where the conditions for a restricted residence measure under Article L. 561-2 of the present Code are not fulfilled, the administrative authority can decide on a measure of curfew with electronic tagging, with the agreement of the alien concerned.

The measure of curfew with electronic tagging is decided by the administrative authority for a period of five days. The measure may be extended by the Liberties and Detention Judge under the same conditions as the extension of the administrative detention provided for in chapter II of title V of the present book.’

It can be seen from the evidence in the file that on the date of the decision appealed against, Mr [A.B.], accompanied by his wife and four-year-old son [A.B.], had been accommodated for several years in the hostel of the asylum-seekers’ reception centre in Chaingy, and that the child had been going to school. Mrs [A.A.B.] was apprehended on 16 February 2012 in that hostel, where the family had remained unlawfully, even though they had been requested to leave the premises by the centre’s administration, following the rejection of their requests for a review of their asylum situation by a decision of 28 July 2011 of the French Office for the Protection of Refugees and Stateless persons. In deciding on their placement in detention the prefect of Loiret merely stated that Mr [A.B.] did not present sufficient guarantees against the risk of non-compliance, as he did not have a valid passport, had no stable place of abode or sufficient income, and had not complied with the previous directions for his removal. It does not appear from the decision appealed against that the prefect had considered, having regard to the presence of a child, whether a less coercive measure than detention was possible for the necessarily short duration of the removal procedure. In those conditions, his decision was vitiated by an error of law and had for that reason to be declared null and void.

It transpires from the foregoing that, without there being any need to examine the other arguments in the application, Mr [A.B.] is justified in submitting that the judge appointed by the President of the Toulouse Administrative Court, in the judgment appealed against, had been wrong to reject his request for the annulment of the decision of 17 February 2012 placing him in administrative detention.”