Lexploria

Information Note on the Court’s case-law 199

August-September 2016

Mikhno v. Ukraine - 32514/12

Judgment 1.9.2016 [Section V]

Article 2

Article 2-1

Effective investigation

Independence and adequacy of investigation into military aircraft crash in which numerous spectators were killed at public air show: no violation

Article 6

Civil proceedings

Article 6-1

Impartial tribunal

Independent tribunal

Alleged lack of independence and impartiality of military courts: inadmissible

Facts – During a public aerobatics show organised by the Air Force of Ukraine at Sknyliv aerodrome in Lviv in 2002 a military aircraft crashed, killing 77 spectators, including the applicants’ relatives. The domestic investigation established that the primary c ause of the accident was a technical mistake by a military pilot, in execution of an aerobatics manoeuvre not featured in his mission order, coupled with the failure of the supporting crew to prevent his faulty conduct in time. The investigating authoritie s also concluded that there had been significant safety-related shortcomings in the organisation of the show deriving from both an insufficiently detailed general regulatory framework and a failure to implement all reasonably available measures to minimise the risk to spectators’ lives. Five military officers, including the show directors and the pilots who had ejected before the crash, were sentenced to various prison terms.

Disciplinary proceedings were brought against a number of other servicemen, inclu ding several high-ranking Air Force officers, with some being dismissed from service or demoted.

Law

Article 2: The respondent State’s responsibility for the accident was engaged on account of the negligent acts and omissions of its military pilots and th eir supporting crew and of the failures by other competent authorities and officers to put in place necessary procedures, precautions and measures with a view to making the air field safe for spectators and ensuring the crew were adequately prepared for th eir mission.

The Court examined first whether the respondent State had complied with its procedural obligation under Article 2 before going on to determine whether there was still a need to rule on a substantive breach.

(a) Procedural limb

(i) Independence of the investigation – In accordance with the domestic law, the prosecutors, investigators and all the judges in the case were military servicemen on the staff of the Armed Forces.

However, there was no subordination or any special relationsh ip between the defendants and the investigators, experts, prosecutors and judges involved in the proceedings. The conclusions reached by the prosecution as to the circumstances of the accident were substantively similar to the conclusions reached by numero us other entities concurrently investigating the accident. There had been no failure to detect or any attempt to conceal any fact or circumstance important for the establishment of the truth. The domestic investigation had thus been sufficiently independen t for the purposes of Article 2.

(ii) Adequacy of the investigation – There was no appearance of arbitrariness in the domestic decisions which would call for their substantive review in the Convention proceedings: regard being had to the nature of the off icers’ offences, their punishment was not so lenient as to fall outside the margin of appreciation enjoyed by the domestic judicial authorities.

The domestic decisions not to prosecute certain officers and to acquit the four high-ranking Air Force official s were based on a careful establishment and assessment of the relevant facts. In particular, the judicial authorities found that the immediate cause of the accident was the first pilot’s unforeseen decision to deviate from his mission order and that holdin g the most senior officers accountable for not having supervised his training and performance any closer would have constituted an overly broad interpretation of the military statutes and other relevant legal acts.

The investigation had sufficiently estab lished the facts that had caused the accident and had attributed both criminal and disciplinary liability to the officers directly and indirectly responsible for it. It had thus met the adequacy requirement for the purposes of Article 2 of the Convention.

(iii) Promptness, access to the file and other procedural aspects of the investigation – Regard being had to the factual complexity of the proceedings and the number of participants involved, which included several hundred injured parties, the investigati on had not fallen short of the promptness requirement for the purposes of Article 2.

In conclusion, the investigation had been sufficiently independent, adequate and prompt and the applicants had been given necessary access to the proceedings. The responde nt State had thus complied with its procedural obligation under Article 2.

(b) Substantive limb – The matter under consideration had been sufficiently addressed at the domestic level.

Conclusion : no violation (unanimously).

Article 6 ( independence and imp artiality of the military courts ): There was a tendency in international human-rights law to urge States to act with caution in using military courts and, in particular, to exclude from their jurisdiction determination of charges concerning serious human-r ights violations, such as extrajudicial executions, enforced disappearances and torture. However, the proceedings at issue in the present case could not be approached in the same manner as proceedings relating to serious intentional human-rights violations , which could not be covered by ordinary military functions. In particular, the present case concerned an accident, resulting in very serious but unintentional damage. The servicemen involved were accused of negligent performance of their duties, the scope of which was in dispute and had to be resolved by the courts. The criminal limb of the present proceedings was therefore very closely connected to the defendants’ military service. In those circumstances, the referral of the criminal charges and – regard being had to the domestic legal tradition – the related civil claims to a military court for their contemporaneous examination was not as such incompatible with the Convention.

Nevertheless, the Court had to look at the composition of the military courts c oncerned and examine the statutory and practical safeguards intended to enable them to act independently and impartially in resolving those claims.

In the present case, the military judges were military servicemen of officer rank (according to the domestic law, such judges were on the staff of the Armed Forces subordinate to the Ministry of Defence). However, nothing in their status suggested that they reported on their performance to any military official. In fact, the domestic law expressly prohibited mil itary judges from carrying out any duties other than the adjudication of cases. The eligibility criteria for the post of military judge (apart from being a military officer) and the procedures for their appointment, promotion, discipline and removal were a nalogous to those in place for their civilian counterparts. Nothing indicated that either the Ministry of Defence or any career military officers were involved in those procedures.

Moreover, in accordance with the domestic law, military courts were integra ted into the system of ordinary courts of general jurisdiction. They operated under the same rules of procedure as the ordinary courts in the determination of criminal cases. That procedure provided the applicants with the same opportunities to participate in the proceedings as they would have been afforded in civilian courts.

As regards court funding and court administration responsibilities, the Supreme Court, which incorporated the Military Panel, was independent. Primary responsibility for administering the inferior military courts was vested in the State Judicial Administration. Although the Ministry of Defence retained some authority in their administration and in taking care of certain benefits for the military court judges, such limited authority in itself did not suffice to cast doubt on the latter’s impartiality and independence.

In the absence of any other indications that there existed a special relationship between the defendants and the judges engaged in the adjudication of the applicants’ civil claims or any other substantiated arguments by the applicants concerning the judges’ objective lack of independence or subjective bias, there was no basis to conclude that the military judges in the present case had lacked structural independence or other wise acted in the interests of the Armed Forces or the Ministry of Defence when adjudicating the applicants’ civil claims.

Conclusion : inadmissible (manifestly ill-founded).

The Court also found, unanimously, violations relating to the excessive length of proceedings (Article 6) and the absence of an effective remedy in that respect (Article 13).

Article 41: EUR 3,600 to the first applicant for non-pecuniary damage, in respect of the excessive length of the proceedings (Articles 6 and 13); claims in respect of pecuniary damage dismissed.

(See also Svitlana Atamanyuk and Others v. Ukraine , 36314/06 , 1 September 2016)

Click here for the Case-Law Information Notes