FIFTH SECTION

Application no. 36285/06 Lyudmyla Fokiyivna ATAMANYUK against Ukraine and 3 other applications (see list appended)

STATEMENT OF FACTS

The applicants are relatives. Their names and personal details are listed in the Appendix.

A. The circumstances of the case

1. The airplane crash of 27 July 2002 and the death of the applicants ’ relatives

On 27 July 2002 the Air Force of Ukraine organised a military aviation show in the “Lviv” (“Sknyliv”) Airport in Lviv to commemorate an anniversary of the 14 th Air Force Unit. The celebration agenda included a static display of military airplanes and other equipment and a live aerobatics show by military pilots. Several thousand individuals attended the event, including Anna Oleksandrivna Loskutova (the applicant in application no. 36290/06) and the applicants ’ relatives: spouses Natalya Eduardivna and Andriy Petrovych Mykhayliv and their minor daughters Natalya Andriyivna Mykhayliv (born in 1994) and Andriana Andriyivna Mykhayliv (born in 1998).

During an aerobatics performance, an airplane piloted by Colonels V.T. and Y.Y. fell and crashed into the static airplane display site, occupied by numerous spectators. Both pilots successfully ejected themselves before the airplane hit the ground. As a result of the crash, 77 persons died, 292 were injured.

The four members of the Mykhayliv family were hit by the airplane and died immediately of multiple skull fractures and other grave injuries.

A.O. Loskutova was not physically injured, however, she suffered a neurotic post-traumatic stress reaction.

According to the applicants, following the accident, the military authorities immediately started cleaning the site, shovelling bodies and body fragments in one pile, without waiting for the arrival of the medics and law-enforcement authorities. Higher Air Force staff and civilian authorities, who were in the VIP lounge, started fleeing the site in panic, causing a traffic jam and interfering with access of the arriving police and medical professionals to the accident site.

On the same day remains of the four bodies of the Mykhayliv family members were delivered to the local mortuary and placed on the floor, where they were stored unrefrigerated. Two applicants, S.F. Atamanyuk and A.O. Loskutova (Natalya Eduardivna Mykhayliv ’ s mother and cousin respectively), were obliged to wait outside of the mortuary in the heat for a considerable unspecified period of time before they were allowed to enter.

Remains of the victims being piled up, the relatives of the victims sometimes had to sift through many bodies and body fragments to identify those of their relatives. In spite of S. F. Atamanyuk ’ s objections, autopsies were carried out of the bodies of the Mykhayliv family. Some fragments of their bodies were never given to the applicants, including Natalya Eduardivna Mykhayliv ’ s head, which had purportedly been extracted from the aircraft engine. For unspecified reasons, fragments of the four bodies were buried at two different ceme teries.

2. Investigation of the circumstances of the airplane cra sh of 27 July 2002

On 27 July 2002 the military prosecutors ’ office instituted criminal proceedings to investigate the circumstances of the airplane cra sh at the Sknyliv airport.

On various dates the applicants joined these proceedings as injured parties and civil claimants, seeking moral damages (see Appendix for details) for the deaths of the Mykhayliv family .

According to the applicants, on various occasions they were denied access to case-file documents and were not informed of the important developments in the case, including the date of the prepara tory hearing before the court.

On unspecified dates ten military officers were indicted of various acts and omissions leading to the Skny liv accident.

In August 2004 criminal proceedings against the four higher military officers, who had supervised the organisation of the show, were disjoined from the main set of proceedings. These officers included Major-General V.S. (the Air Force Commander-in-Chief at the material time); Lieutenant-General O.V. (his deputy); Major-General V.A. (the deputy chief of the Air Force military training at the material time) and Lieutenant-General S.O. (the Chief of the 14 th Air Force Unit at the material time). The applicants were not informed of this decision.

On 23 May 2005 the Central Region Military Court of Appeal pronounced a judgment with respect to the two pilots and four other defendants. According to the court ’ s findings, the principal cause of the airplane crash was an incorrect performance by V.T. (the first pilot) of an aerobatics trick called “trunk”, which was neither envisaged by his mission order, nor practiced by him before the show. It was further found that the trick had been performed outside the designated aerobatics zone, which led to the falling of the airplane on the ground occupied by numerous spectators. The first pilot ’ s mistakes could have been corrected or the grave consequences of the accident could have been mitigated, were it not for the negligence by the second pilot, Colonel Y.Y., and the land crew, including Major-General A.T. and Colonels Y. Ya. and A.L. In particular, the second pilot Y.Y. failed to correct the mistakes by the first pilot, despite having the technical ability to do so. Major-General A.T., a designated chief of flights during the show, and Colonel Y.Ya ., acting dispatcher, failed to warn the pilots when they had left the designated aerobatics zone or take any action guiding them back to a zone safe for the spectators. Finally, Colonel A.L., being the chief of the 14 th Air Force Unit ’ s flight security service, failed to put in place any specific prevention measures plan, aiming to ensure security of the spectators in the face of a pilot ’ s mistake or any other unexpected turn of events during the show.

As a result, the court found V. T., Y.Y., A. T. and Y. Ya . guilty of breach of flight rules within the meaning of Article 416 of the Criminal Code of Ukraine (“CCU”) and sentenced them to fourteen, eight, six and five years ’ imprisonment respectively. It further found A.L. guilty of having a negligent attitude towards military service within the meaning of Article 425 of the CCU and sentenced him to four years ’ imprisonment suspended on probation.

The sixth defendant, Colonel O.D., who coordinated V.T. ’ s and Y.Y. ’ s training flights, issued the mission order and procured the airplane for the show, was found to have performed his duties in good faith and acquitted.

The court further ruled on the applicants ’ civil claims, allowing them in part (see Appendix for details).

The applicants appealed in cassation against this judgment, alleging that the trial court had failed to examine the facts comprehensively and thus condemn all the wrongful actions and omissions by the authorities. They also maintained that Colonel O.D. should not have been acquitted, that all the defendants should be imprisoned for life and that higher monetary compensation for the deaths of their relatives was warranted.

On 2 March 2006 the Military Panel of the Supreme Court of Ukraine took the final decision rejecting the applicants ’ appeals.

It is not clear if and when the judgment awards were paid to the applicants.

On unspecified dates the applicants also joined the proceedings against the remaining four defendants.

On another unspecified date the above four defendants were committed to stand trial on charges of having a negligent attitude towards military service, breach of regulations concerning flights and/or excess of power.

On 11 June 2008 the Central Region Military Court of Appeal, acting as a first-instance court, acquitted all four defendants of the above charges. It noted that there were some shortcomings in the general organisation of the festivities (i.e., the designated aerobatics zone was quite small; the pilots conducted only one preparatory flight and it was at their home base, rather than above the Sknyliv airdrome; the grounds accommodating spectators were at the boundary of the designated aerobatics zone; etc.). The court further noted that, notwithstanding certain shortcomings in the general organisation of the show, since it had already been established by a final court judgment that the principal cause of the accident was the first pilot ’ s reckless conduct and technical mistakes, there was no direct causal link between the actions or omissions of the above defendants and the grave consequences, which followed.

The Prosecutors ’ Office and numerous injured parties, including the applicants, appealed in cassation against this verdict. They alleged, in particular, that the defendants ’ ‘ laissez-faire ’ attitude towards preparation of the festivities resulted in insufficient preparation of the pilots and the land crew for the performance; poor planning of the performance itself; lack of coordination between the officers engaged; and lack of public protection measures in the event of a potential pilot ’ s mistake or another unexpected turn of events.

On 22 October 2008 the Military Panel of the Supreme Court of Ukraine upheld the acquittals. The applicants ’ civil claims lodged within the framework of these proceedings were left without consideration.

B. Relevant domestic law

1. Criminal Code of Ukraine (“CCU”) of 2001

The relevant provisions of the Criminal Code of Ukraine read as follows:

Article 416. Breach of Regulations concerning Flights or Preparation to Them

“Breach of regulations concerning flights or preparation to them, as well as breach of regulations concerning exploitation of flying devices that resulted in a catastrophe or other grave consequences shall be punished by deprivation of liberty for the term from five to fifteen years.”

Article 424. Excess of authority or official powers by a military official

“1. Excess of authority or official powers by a military official, that is wilful actions that manifestly exceed the scope of rights or authority vested in this person ... where these acts cause any significant damage, shall be punishable by restraint of liberty for a term of two to five years, or imprisonment for the same term ...

...

3. Any such act ... envisaged by paragraphs 1 or 2 of this Article, if it caused any grave consequences, shall be punishable by imprisonment for a term of five to ten years.”

Article 425. Negligent Attitude towards Military Service

“1. Negligent attitude of a military officer to his (her) service duties, in the event it caused significant damage shall be punished by a fine ...

2. The same act, in the event it caused grave consequences, shall be punished by deprivation of liberty for the term from three to seven years.”

2. Law of Ukraine “On the Prosecutors ’ Office” no . 1789-XII of 5 November 1991

The provisions of the above act, insofar as relevant and as formulated at the material time, read as follows:

Article 46-1. Staff of the military prosecutors ’ office

“Military officers and investigators shall be appointed from among the citizens of Ukraine , who are officers in active military service or on reserve and have a university degree in law.

Military servicemen of the military prosecutors ’ offices shall in their activity be guided by the Law of Ukraine “On the Prosecutors ’ Office” and shall carry their service according to the Law of Ukraine “On Military Duty and Military Service” and other legislative acts of Ukraine, which establish legal and social safeguards, retirement, medical and other types of procurement, envisaged by law for persons of officers ’ rank in the Armed Forces of Ukraine.”

3. Law of Ukraine “On the Judiciary of Ukraine ” no . 3018-III of 7 February 2002 repealed as of 7 July 2010

The relevant provisions of the above act, as formulated at the material time, read as follows:

Article 63. Peculiarities of the status of the military judges

1. Judges of the military courts shall be military servicemen and shall be on staff of the Armed Forces of Ukraine.

2. Military ranks to the judges of the military courts shall be assigned by the President of Ukraine upon application of the President of the Supreme Court of Ukraine, unless otherwise established by law ...

3. A military judge shall not be engaged in performance of the duties of the military service other than adjudication of cases.

Article 122. Material and technical procurement of the courts

“1. Material and technical procurement of the local courts shall be vested in the State judicial administration ... As regards the procurement for the military courts, the State judicial administration shall act in coordination with relevant establishments of the Ministry of Defence of Ukraine . Personnel of the military courts shall use all types of military equipment on par with personnel of the military units and establishments of the Ministry of Defence of Ukraine ... .”

COMPLAINTS

The applicants complain under Article 2 of the Convention that the State authorities failed to protect the lives of their close relatives and were directly responsible for their deaths.

They next complain under Article 3 of the Convention that the manner, in which their relatives ’ remains were handled and the body identification and transfer procedures were organised, amounted to the applicants ’ inhuman and degrading treatment.

The applicants also complain under Articles 2 and 6 of the Convention that criminal proceedings concerning the Sknyliv accident were lengthy and the investigation was ineffective. In particular, the investigative and judicial military authorities were not impartial, as they were not independent from the Ministry of Defence and the military authorities; the applicants were not always provided with necessary information; their procedural demands and civil claims were examined incorrectly and the compensation awarded for the deaths of their relatives was insufficient. Furthermore, the officers convicted were subjected to unfairly lenient punishments, while the higher military staff and local civilian authorities involved in organising the show were exonerated from any responsibility for the shortcomings in organising the festivities.

The applicants also complain under Article 13 of the Convention about lack of effective remedies allowing them to accelerate the resolution of their claims.

The applicants also refer to Articles 4, 5, 7, 8, 14, 15 and 17 of the Convention with respect to the facts of the present case.

QUESTIONS TO THE PARTIES

1. Has the applicants ’ relatives ’ right to life, ensured by Article 2 of the Convention, been violated in the present case?

(a) Regard being had to the State ’ s positive obligation under Article 2 of the Convention to regulate hazardous activities so as to minimise risk to life (see Öneryıldız v. Turkey [GC], no. 48939/99, §§ 89-92, ECHR 2004 ‑ XII), did the authorities take all measures that could be reasonably expected from them in planning and organising the aerobatics show to ensure the applicants ’ relatives safety?

(b) Given the proceedings brought against the pilots and other military officers and award of compensation to the applicants, has the State discharged its duty to identify and punish those responsible for the accident and to provide the applicants with appropriate redress?

In this connection, the Parties are also requested to inform the Court:

- whether, in addition to the criminal trial of ten military officers, any other proceedings (e.g. administrative, disciplinary, civil) were brought against any military or other public officials and/or entities and, if so, whether they resulted in imposition of any sanctions and

- whether any payments other than those awarded to the applicants within the framework of the aforementioned criminal proceedings and/or non-pecuniary redress (e.g. counselling, social assistance, etc.) have been provided to the applicants.

(c) Having regard to the procedural protection of the right to life (see paragraph 104 of Salman v. Turkey [GC], no. 21986/93, ECHR 2000-VII), was the investigation in the present case by the domestic authorities such as to meet the requirements of Article 2 of the Convention?

The Parties are invited, in particular, to comment on the role of the military prosecutors ’ office in the investigation and on whether the above authority and the military courts possessed requisite independence from the military authorities, including defendants in the proceedings.

2. Have the applicants been subjected to inhuman or degrading treatment in breach of Article 3 of the Convention, in particular, on account of the manner in which the remains of their deceased relatives were treated and in connection with how the procedure for identification of the remains and their transfer to the applicants was organised?

3. Did the applicants have a fair hearing in the determination of their civil claims in accordance with Article 6 § 1 of the Convention?

In particular, were the military tribunals which dealt with their cases, independent and impartial, as required by Article 6 § 1 of the Convention?

4. Was the length of the criminal proceedings, in which the applicants acted as injured parties and civil claimants, in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?

The Parties are requested, in particular, to communicate the dates, on which the applicants received their judgment awards.

5. Did the applicants have at their disposal an effective domestic remedy for their complaint concerning lengthy consideration of their claims for compensation under Article 6, as required by Article 13 of the Convention?

Appendix

Application number

Applicant ’ s name

Relation to Natalya E. Mykhayliv

Pecuniary/non-pecuniary damages claimed (UAH)

Pecuniary/non-pecuniary damages awarded (UAH)

36285/06

Atamanyuk,

Lyudmyla Fokiyivna, born in 1946

aunt

2,000/6,000,000

2,000/60,000

36290/06

Loskutova ,

Anna Oleksandrivna, born in 1984

cousin

1,000/3,000,000

1,000/60,000

36311/06

Atamanyuk,

Ganna Vasylivna,

born in 1920

grandmother

0/6,000,000

0/60,000

36314/06

Atamanyuk

Svitlana Fokiyivna, born in 1953

mother

1/36,000,000

0/220,000