PARTIALLY DISSENTING OPINION OF JUDGE YUDKIVSKA

Whilst I voted with the majority for finding a violation of Article 6 of the Convention, I am far from considering this issue to be the central one in the present case.

The school administration organised a cultural outing to the cinema, which ended with four pupils never coming back and sixteen, including the applicant ' s daughter, becoming invalids. In the twelve years since the tragedy the compensation granted by the domestic judicial authorities has not been received. Thus, the core problem of the case, in my view, involves the State ' s positive obligation under Article 2 of the Convention.

Firstly, it concerns the duty to safeguard the lives of those under its jurisdiction.

The Court has already stated, albeit in a different context of a major international event, that a State “must take the appropriate security measures and deploy every effort to ensure that order is maintained. Hence, it is incumbent upon it to prevent disturbances which could lead to violent incidents” [2] . Similar reasoning could be applicable in the present case, as the tragedy appears to have been a consequence of improper planning of the event. Educational authorities organized a mass event – an excursion to the cinema – for a large number of teenagers. The second group of teenagers was let into the auditorium before the previous showing ended, they wanted to choose better places while the first group wanted to finish watching a movie, and that is how a scuffle ensued and a peaceful cultural event degenerated into violence. The role of the school authorities - organisers of the event - who were responsible for the children and had the duty to prevent the riot or at least to react immediately to its first signs, went uninvestigated, as well as appropriate regulatory framework and its effective functioning. The conviction of the cinema ' s director for negligence does not cast full light upon the planning and conduct of the mass event, which resulted in a loss of lives.

Apparently, this dangerous accumulation could have been prevented. It is true that in general panic is hardly foreseeable or predictable, being a mass psychological phenomenon, and that all mass events entail certain risk (consider the recent “Love Parade disaster” in Duisburg in July 2010 or the “ Bagdad bridge stampede” in 2005). But in the present case we are talking about teenagers who were very excited to see the famous blockbuster in a poorly equipped and secured cinema with fewer seats than expected (as was shown in the domestic proceedings) and whose behaviour was quite predictable. In these circumstances the tragedy was foreseeable and avoidable; and I regret that the majority refused to examine if there had been failure on the part of the authorities to safeguard the right to life of the applicant ' s daughter in consequence of lack of adequate planning of the event.

Secondly, according to the Court ' s case-law, even where the infringement of the right to life or to personal integrity is not caused intentionally, the States are nevertheless required to set up an effective independent judicial system so that the cause of death can be determined and those responsible made accountable . “Effective” means, inter alia , that it must be conducted with reasonable expedition. In the context of medical negligence, the Court repeatedly stated that “the requirements of Article 2 of the Convention will not be satisfied if the protection afforded by domestic law exists only in theory. It must also operate effectively in practice, which requires a prompt examination of the case without unnecessary delay” [3] .

Applying this principle, the Court found a violation of Article 2 in Oyal v. Turkey on the ground that administrative court proceedings that lasted for about nine years did not meet the requirements of promptness and reasonable expedition. In another case involving medical negligence, Dvořáček and Dvořáčková v. Slovakia (no. 30754/04 , 28 July 2009) , a failure to respect the requirement of promptness and reasonable expedition in dealing with the case also led to a finding of a violation of Article 2 of the Convention. Likewise, in G.N. and Others v. Italy (no. 43134/05 , 1 December 2009), the Court held that proceedings on compensation claims brought by persons infected following blood transfusions that had lasted from three and a half years to over ten years failed to meet the requirements of Article 2 of the Convention.

In the present case the criminal proce edings lasted for more than six years, the proceedings with respect to damages lasted for about nine years, and the final judgment in the applicant ' s and other victims ' favour was never enforced.

Needless to say, given that the applicant ' s daughter required urgent and, most probably, expensive medical treatment, the tragic circumstances of the present case called for its prompt examination and grant of appropriate redress. It is true that, as stated in paragraph 51, the applicant received some ex gratia payments from the local authorities; however the framework for these spontaneous payments remained unclear and, in any event, they have no bearing on the Article 2 requirement of an effective judicial system.

Moreover, the determination of all circumstances of the disaster and the measure of the responsibility of those involved appears to be essential to enable the relevant authorities to adopt strategies in order to prevent such tragic events in future. (see, mutatis mutandis , Šilih v. Slovenia [GC], no. 71463/01, § 196, 9 April 2009). The prompt examination of the case was thus of crucial importance fr om the standpoint of Article 2.

Thus, I remain convinced that in the circumstances of the present case it is not simply the excessive length of the proceedings which was in issue, but the question of whether the State can be said to have complied with its positive obligations under Article 2 of the Convention. In view of the foregoing considerations I am unable to agree with the majority that the complaint under Article 2 is manifestly ill-founded. In line with above-mentioned case-law, I find that this complaint is well-founded, and this provision was violated. If this approach had been approved, no separate issue would have arisen under Article 6.

[1] The minimum salary is regularly set forth by the relevant Budget Act. Since 1 April 2008, when it was at the amount of UAH 525 (about EUR 73.05), the minimum salary has been gradually increased to the current amount of UAH 884 (about EUR 83.18). By the end of 2010, it will be at the amount of UAH 922 (about EUR 86.76 under the current currency exchange rate).

[2] Giuliani and Gaggio v. Italy , no. 23458/02 , § 231, 25 August 2009 [currently pending before the Grand Chamber].

[3] See Oyal v. Turkey , no. 4864/05, § 74, 23 March 2010 with further references.