CASE OF SVITLANA ATAMANYUK AND OTHERS v. UKRAINE

FIFTH SECTION

CASE OF SVITLANA ATAMANYUK AND OTHERS
v. UKRAINE

(Applications nos. 36314/06, 36285/06, 36290/06 and 36311/06)

JUDGMENT

STRASBOURG

1 September 2016

FINAL

01/12/2016

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Svitlana Atamanyuk and others v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

Angelika Nußberger, President,
Ganna Yudkivska,
Khanlar Hajiyev,
Erik Møse,
André Potocki,
Yonko Grozev,
Carlo Ranzoni, judges,
and Milan Blaško, Deputy Section Registrar,

Having deliberated in private on 5 July 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in four applications (nos. 36314/06, 36285/06, 36290/06 and 36311/06) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by four Ukrainian nationals, Ms Svitlana Fokiyivna Atamanyuk, Ms Lyudmila Fokiyivna Atamanyuk, Mrs Anna Oleksandrivna Loskutova (aka Volodina) and Ms Ganna Vasylivna Atamanyuk (“the applicants”), on 1 September 2006.

2. The Ukrainian Government (“the Government”) were represented, most recently, by their acting Agent, Ms O. Davydchuk.

3. The applicants alleged, in particular, that the State authorities had failed to protect the lives of their relatives (the Mykhayliv family) and to conduct an effective investigation into their deaths; that they had been subjected to inhuman and degrading treatment; that the courts dealing with their claim for damages had not been independent and impartial, that the relevant proceedings had been inordinately lengthy and that they had had no effective remedy for the length complaint.

4. On 24 September 2012 the applications were communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

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

A. The crash of a military aircraft during an air show at the Sknyliv airdrome on 27 July 2002 and the death of the Mykhayliv family

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

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

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

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

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

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

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

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

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

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

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

B. Investigation of the circumstances of the Sknyliv air show accident

17. 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.

1. Investigation by the Special Government Commission

18. 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.

19. 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.

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

21. 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.

22. 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.

23. 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.”

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

25. 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.

2. Internal investigation by the Ministry of Defence

26. 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.

27. 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, Colonel‑General 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.

3. Investigation by Lviv City Council Special Temporary Commission

28. 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 ...”

29. 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.

30. 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 ...”

4. Investigation by the Sknyliv Tragedy Non-Governmental Organisation

31. 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.

32. 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.

33. 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.

34. 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.

35. 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.

36. 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.

5. Criminal proceedings against the military officers

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

38. 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.

39. 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.

40. 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.

41. 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 SU‑27 specifications.

42. 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.

43. 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.

44. 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 ...”

45. 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.

46. 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.

47. 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.

48. 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.

49. 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.”

50. 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.

51. 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.

52. 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.

53. 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.

54. 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.

55. 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.

56. 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.

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

58. 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.

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

60. 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.

61. 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.

62. 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 ...”

63. 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.

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

C. Compensation and financial aid to the applicants and other victims of the accident

1. Judicial proceedings

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

66. On 23 June 2005, when pronouncing the verdict in the “performers’ case”, the court ruled on the applicants’ civil claims and awarded the pecuniary damages claimed by the second and third applicants in full. It further awarded UAH 220,000[1] in non-pecuniary damages to the first applicant and UAH 60,000[2] under this head to each of the other applicants.

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

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

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

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

2. Extra-judicial compensation and other State aid programmes

71. On 27 July 2002 the Cabinet of Ministers of Ukraine allocated 10,000,000[3] Ukrainian hryvnias from the State reserve fund to the Lviv Regional State Administration towards liquidating the consequences of the accident (Decree no. 1085).

72. 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.

73. 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.

74. 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.

75. 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.

76. The first applicant received UAH 47,690[4] in various payments from the State under the above programmes. The first, second and fourth applicants also received UAH 40,270[5], UAH 6,000[6] and UAH 4,000[7] respectively from State-managed private charitable donations raised in aid to the victims.

77. The parents of Mr Mykhayliv were paid UAH 68,000[8] in State aid in connection with the deaths of their son and granddaughters. They received a further amount of UAH 60,000[9] from State-managed charitable donations. It appears from the evidence available that Mrs Mykhayliv’s in-laws did not lodge any civil claims within the criminal proceedings.

II. RELEVANT DOMESTIC LAW AND INTERNATIONAL MATERIALS

A. Domestic law relevant to air show safety and military duty in force on the day of the Sknyliv air show accident

1. Constitution of Ukraine

78. Article 3 of the Constitution of Ukraine of 1996 reads as follows:

Article 3

“The human being, his or her life and health, honour and dignity, inviolability and security are recognised in Ukraine as the highest social value.

Human rights and freedoms and their guarantees determine the essence and orientation of the activity of the State. The State is answerable to the individual for its activity. To affirm and ensure human rights and freedoms is the main duty of the State.”

2. Criminal Code of Ukraine (“the CCU”) of 2001

79. The relevant provisions of the Criminal Code of Ukraine as in effect at the material time read as follows:

Article 401. Definition of a military offence

“1. Military offences shall mean offences listed in this section and infringing the established lawful order of performance or execution of military service, committed by military servicemen ...”

Article 416. Breaches of regulations concerning flights or preparation for them

“Breaches of regulations concerning flights or preparation for them, as well as breaches of regulations concerning the use of flying devices which result in a catastrophe or other serious consequences, shall be punished by deprivation of liberty for a term of five to fifteen years.”

Article 424. Exceeding authority or official powers by a military official

“1. Exceeding authority or official powers by a military official, meaning willful actions that manifestly exceed the scope of the rights or authority vested in that person ... where those 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 has any serious consequences, shall be punishable by imprisonment for a term of five to ten years.”

Article 425. Negligent Attitude towards Military Service

“1. A negligent attitude on the part of a military officer to his (her) service duties, in the event it causes significant damage, shall be punished by a fine ...

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

3. Law of Ukraine “On the Armed Forces of Ukraine” no. 1934-XII of 6 December 1991 (“The Armed Forces Act”)

80. The relevant provision of the above Act, as worded at the material time, read as follows:

Section 3. Structure of the Armed Forces of Ukraine

“The Ministry of Defence of Ukraine is a central body of the executive power and military administration to which the Armed Forces of Ukraine are subordinate ...”

4. Law of Ukraine “On the Status of Internal Service in the Armed Forces of Ukraine” no. 548-XIV of 24 March 1999

81. The relevant provisions of the above Act, as formulated at the material time, read as follows:

“58. The Commander (in chief) shall be the single authority personally responsible before the State for the military ... readiness of the military unit ... entrusted to him; for military training, upbringing, military discipline, and the morale and psychological state of the staff; for internal order, condition and preservation of arms, supplies, military and other equipment ...

The office of the Commander (in chief) demands that its holder must act personally and must insist that his subordinates act in accordance with the Constitution of Ukraine, the laws of Ukraine, the statutes of the Armed Forces, and other regulatory acts.

59. The Commander (in chief) shall be obliged to:

Plan work and take measures with a view to improving military and mobilisation readiness, and demand their implementation ...

Be aware of the state of affairs in the military unit entrusted to his command ... the professional and mental qualities of his directly subordinate servicemen, military and other equipment present in the unit ...

Skilfully direct the military unit ... in everyday life and during the performance of military tasks.

Organise and directly guide military training, supervise its progress, and objectively assess the results achieved by his subordinates ...

Constantly improve the personal training level and skills of his subordinate commanders (in chief), as well as the methods of direction of the military unit ...

Establish in the military unit ... internal order such as will guarantee impeccable compliance with the laws of Ukraine and statues of the Armed Forces ...

Work to reinforce military discipline, prevent emergencies and crime among staff, work for timely detection and removal of grounds for such emergencies or crime, analyse the state of military discipline, and objectively report on it to the superior commander (in chief) ...

5. Regulation of the Cabinet of Ministers of Ukraine no. 2025 of 18 December 1998 “On the procedure for the preparation of sports structures and other specially designated sites for staging public sport and cultural-demonstrational events”

82. The above Regulation obliged all organisers of sports competitions, shows and other public events to take various measures with a view to securing public safety and to obtain safety clearance from the special commissions operating under the authority of the local State Administrations. It further obliged the local State Administrations to create such commissions, with a view, inter alia, to inspecting the sites designated for public events on the eve of those events. These commissions had various powers, including the power to prohibit the planned event from going ahead if they found that the requisite safety precautions had not been put in place.

6. Regulation of the Cabinet of Ministers of Ukraine no. 401 of 29 March 2002 “On approval of the instruction concerning the use of the air space of Ukraine”

83. Paragraph 22 of the above Regulation, as worded at the material time, read as follows:

“22. Demonstration flights above the populated localities shall be carried out upon authorisation by the body of the local self-governance [and] Ukaviatrans [and] Ukraviarukh [State agencies]. Applications concerning this issue shall be lodged with Ukaviatrans by the chairpersons of the enterprises, institutions, organisations [or] commanders only upon receipt of authorisation from the body of local self‑governance ...”

7. Special military aviation guidelines

84. The military aviation guidelines containing technical rules for military aviation pilots and other staff engaged in military flying operations and the direction and preparation of their flights are listed in paragraph 44 above.

B. Domestic acts and regulations concerning air show safety enacted after the Sknyliv air show accident

1. Legislation concerning the status of local and municipal authorities

85. On 3 February 2004 amendments were introduced to section 26 of the Law of Ukraine “On Local Self-Governance” (no. 280/97-ВР of 21 May 1997) and section 25 of the Law of Ukraine “On Local State Administrations” (no. 586-XIV of 9 April 1999), clarifying these authorities’ scope of duty to coordinate and oversee any potentially dangerous activities involving the use of arms or military and similar equipment, with a view to preventing any risks to civilian population.

2. Regulation of the Cabinet of Ministers of Ukraine no. 378 of 26 March 2003 “On the approval of the procedure for preparation and staging of potentially dangerous events in the presence of the civilian population involving the participation of the Armed Forces of Ukraine and the use of arms and military equipment”

86. The above Regulation, which was replaced by a new version in 2014, established the procedure for the organisation of military parades and other events involving demonstration of military equipment. The Regulation contained, in particular, various requirements for monitoring of the proper operational condition of the equipment and machinery to be demonstrated, and required the officers who were to operate the equipment to undergo special training and examination as well as to rehearse their performance at least five times before the demonstration in front of the public. It was also expressly prohibited to execute aerobatic performances over the heads of spectators.

3. Order by the Ministry of Transport of Ukraine no. 728 of 14 October 2002 “On additional measures with regard to liquidation of shortcomings in the organisation of work with a view to ensuring transport safety”

87. The above Act instructed State officials responsible for transport safety to take a number of measures with a view to monitoring and improving operational safety in aviation, rail, and water transport systems. The preamble of the document referred to the Sknyliv air show accident as follows:

“Investigation of the causes of a disaster involving the military aircraft SU-27, which occurred on 27 July of this year during an air show, detected substantial shortcomings in ensuring flight safety ... as well as in the management of such events ...

Serious consequences and loss of human life were the result of substantial shortcomings in the organisation, preparation and staging of the air show, as well as in the delimiting of the aerobatics zone, performance planning, placement of spectators and equipment without regard being had to a possibility of unforeseen situations and threats to human life.

The Commission also referred to other shortcomings related to the organisation of the air show and the catastrophe in Sknyliv: lack ... of documents containing normative guidelines on the organisation and staging of such events; disengagement of certain official persons from supervision of the organisation of the event and exceeding of authority by other officials; absence of an expert assessment monitoring the safety precautions for spectators and the public ...

With a view to liquidation of the identified shortcomings in the organisation of the work concerning ensuring transport safety and improvement of the regulatory framework concerning transport safety I order:

1. the directors of the State departments of transport

1.1. within a one-month period, to ensure the examination of the materials by the commission on the investigation of the causes of the catastrophe ... of 27 July 2002 ... at every subordinate enterprise: this examination to be carried out by employees whose mission is connected to the issues of safety and liquidation of the consequences of emergencies and natural disasters;

1.2. By 15 November 2002, to develop safety guidelines related to the organisation of exhibitions, training courses, demonstrations of equipment, parades ... and so on in the relevant subsectors ...”

4. Instruction concerning organisation and performance of demonstration flights approved by the Order of the Ministry of Transport of Ukraine no. 269 of 8 April 2003

88. The above instruction established basic rules and guidelines concerning distribution of duties between officers and authorities engaged in the organisation and staging of demonstration flights and emergency prevention and response planning; provided a list of documents to be submitted to the aviation authorities with a view to obtaining authorisations for performances, as well as listing basic requirements concerning qualifications and training for pilots and ground crew members, parameters for aircraft and airfields, and also zoning requirements.

89. The Instruction required, among other things, that the pilots complete special training courses and tests, including on knowledge of the site of their performance, and that pilots make at least five training flights, at least one to be above the performance site. It also established a rule that the aerobatics zone be clearly signposted for the pilots to orient themselves from the air, and that its boundaries should be at least 200 metres away from the spectators’ zone.

90. The Instruction listed the documents to be submitted in the application package to the municipal authority, Ukraviatrans and Ukraviarukh to obtain permission for the demonstration flight, which included, among other things, a certificate attesting to the aircraft’s correct technical condition, an exhaustive description of the planned aerobatic performance, an emergency prevention and response plan, the aerobatics and spectators’ zone layout, and other documents.

5. Documents concerning compensation and State aid to victims of the Sknyliv air show accident

91. The documents produced by the Government of Ukraine with a view to providing assistance to the victims of the Sknyliv air show accident are listed in paragraphs 71-74 above.

C. Domestic law relevant to the independence of the prosecutor’s office, judiciary and functioning of the military courts

1. The Constitution of Ukraine

92. The relevant provisions of the Constitution of Ukraine read as follows:

Article 126

“The independence and immunity of judges are guaranteed by the Constitution and the laws of Ukraine.

Influencing judges in any manner is prohibited ...”

Article 129

“In the administration of justice, judges are independent and subject only to the law ...”

93. Further relevant provisions of the Constitution concerning the appointment and dismissal of judges and the competence of the High Council of Justice can be found in the Court’s judgment in the case of Oleksandr Volkov v. Ukraine (no. 21722/11, §§ 59-60, ECHR 2013).

2. Criminal Procedure Code of Ukraine (CPC) of 1960, repealed upon entry into force of the new Code adopted on 13 April 2012

94. According to Article 3 of the CPC, which was in force at the material time, its rules were applicable to all proceedings on the territory of Ukraine which concerned determination of criminal charges, irrespective of where the purported criminal acts had been committed.

95. According to Article 28 of the CPC, a person who had sustained damage as a result of a criminal act had the right to lodge a civil claim against the defendants or persons responsible for their actions, which could be considered within the relevant criminal proceedings. This claim was to be examined by the court contemporaneously with the examination of the criminal case.

96. According to Article 36 of the CPC, crimes imputed to serving military who had the military rank of colonel and above were to be attributed at first instance to the relevant regional military courts of appeal or to the Navy Court of Appeal.

97. According to Article 50 of the CPC, individuals who brought forward civil claims within criminal proceedings (regardless of whether the proceedings were examined by a military or an ordinary court) enjoyed, inter alia, the following rights: to submit evidence; to lodge requests; to take part in trial proceedings; to request measures with a view to securing their civil claims; to familiarise themselves with the material in the case file after the completion of the pre-trial investigation; to request that members of the court or representatives of the parties stand down; to complain about actions by the inquiring officer, investigator, prosecutor or the court; to appeal against court judgments or decisions in so far as they concerned their civil claims; and so on.

3. Law of Ukraine “On the Prosecutor’s Office” no. 1789-XII of 5 November 1991 (“The Prosecutor’s Office Act”)

98. Section 46-1 of the above Act, as formulated at the relevant time, read as follows:

Section 46-1. Staff of the military prosecutor’s office

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

4. Law of Ukraine “On the Status of Judges” no. 2862-XII of 15 December 1992 repealed by law no. 2453-VI of 7 July 2010 (“The Status of Judges Act”)

99. According to section 11 of the above Act, which was in force at the material time, the independence of judges (of ordinary and military courts) was guaranteed by the manner of their appointment, termination and suspension of their office; by the special procedure of awarding military ranks to the military judges; by the special procedure of administration of justice; by the secrecy of the decision-making process; by prohibition of interference with the administration of justice; by the establishment of legal responsibility for contempt of court; by judges’ right to resign; by judges’ inviolability; by the provision of the technical and informational conditions necessary for the operation of the courts; by the material support and social welfare programmes provided for the judges; by the special financing measures for courts; and by the system of judicial self-governance.

100. Section 44 of the above Act set out that judges of the military courts who needed to improve their living conditions were eligible to be provided with an appropriate flat or house by the Ministry of Defence within six months of the date of their appointment.

5. Law of Ukraine “On the Judicial System of Ukraine” no. 3018-III of 7 February 2002 repealed by law no. 2453-VI of 7 July 2010 (“The Judicial System Act”)

101. The relevant provisions of the above Act, as worded at the material time, read as follows:

Section 16. Irremovability of the judges

“1. Professional judges of the courts of general jurisdiction shall hold their posts permanently, except for judges appointed to the post for the first time.”

Section 19. Specialisation of the general jurisdiction courts

“1. In accordance with the Constitution of Ukraine, the courts of general jurisdiction shall include ordinary and specialised courts of specific judicial jurisdictions. Military courts shall belong to ordinary (загальні) courts and administer justice in the Armed Forces of Ukraine and in other armed formations established pursuant to law ...”

Section 21. Types and composition of the local courts

“1. Local ordinary (загальні) courts shall be the district, city district, town and town district courts, as well as military garrison courts ...”

Section 25. Types and composition of the appellate courts

“1. The courts of general jurisdiction in Ukraine shall include ordinary (загальні) and specialised appellate courts.

2. Ordinary appellate courts shall be regional appellate courts ... regional military appellate courts, or the appellate Navy Court of Ukraine ...”

Section 48. Composition of the Supreme Court of Ukraine

“1. ... The Supreme Court of Ukraine shall be composed of the justices of the Supreme Court of Ukraine elected to their posts permanently ...

2. The Supreme Court of Ukraine shall include the Chamber of civil cases; the Chamber of criminal cases; the Chamber of commercial cases; the Chamber of administrative cases ... [and] the Military judicial panel ...”

Section 63. Peculiarities of the status of the military judges

“1. Judges of the military courts shall be military servicemen and shall be members of the Armed Forces of Ukraine.

2. Judges of the military courts shall be assigned military ranks 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.”

Section 122. Material and technical support of the courts

“1. Material and technical support of the local courts shall be vested in the State Judicial Administration ... As regards the support of the military courts, the State Judicial Administration shall cooperate with relevant establishments of the Ministry of Defence of Ukraine. Officials of the military courts shall use all types of military equipment in the same way as officials of the military units and establishments of the Ministry of Defence of Ukraine ...”

Section 133. Ensuring security and public order in the courts

“...3. Security of the premises of the military courts shall be ensured by the military units of the garrison on the territory of which the respective military court is located.”

102. In accordance with section 50 of the above Act, the President of the Supreme Court submitted to the President of Ukraine a proposal with respect to the number of posts for military judges and military ranks that should correspond to such posts, as well as proposals to attribute ranks to particular judges.

103. According to section 60 of the above Act, candidates for the posts of a judge of a military court had to be military servicemen of officer rank in addition to the general eligibility criteria established for other judicial candidates. All judges whose initial term of office was up were by default eligible to be recommended for a permanent post.

104. According to the provisions governing selection, appraisal, promotion, and disciplining of judges (in particular, sections 61, 73-76 and 97 of the Act), the relevant procedures for military and civilian judges were the same; no involvement of the army or Ministry of Defence officials in these procedures with respect to the military judges was foreseen.

105. Section 119 of the above Act envisaged the creation of a State Judicial Administration as the agency to manage the finances of the courts, provide them with technical and logistical support, and manage other matters concerning their everyday operation.

106. According to section 120 of the above Act, all courts were to be funded from the State budget of Ukraine. The Supreme Court managed its funding autonomously, while financial management in respect of the funds allocated to other ordinary courts (including military courts) was vested in the State Judicial Administration. It also fell on the State Judicial Administration to develop budgetary proposals for review by the Council of Judges of Ukraine and further submission to the competent budgetary authorities. A separate line in the State Budget of Ukraine was to be dedicated to the military courts.

6. Law of Ukraine “On the Judiciary and Status of Judges” no. 2453‑VI of 7 July 2010

107. Transitional provisions of the above Act provided for the liquidation of the military courts with effect from 15 September 2010. They further gave judges of the military courts the options of either resigning from military service and pursuing judicial careers in civilian courts or resigning from their judicial posts and pursuing military careers in the Armed Forces.

D. International materials relevant to the administration of justice by military tribunals

1. The Draft Principles Governing the Administration of Justice Through Military Tribunals: Report submitted by the Special Rapporteur to the United Nations Commission on Human Rights Sub-Commission on the Promotion and Protection of Human Rights (U.N. Doc. E/CN.4/2006/58 at 4 (2006))

108. Relevant parts of the Draft Principles read as follows:

Principle No. 1. Establishment of military tribunals by the constitution or the law

“Military tribunals, when they exist, may be established only by the constitution or the law, respecting the principle of the separation of powers. They must be an integral part of the general judicial system ...”

Principle No. 8. Functional authority of military courts

“The jurisdiction of military courts should be limited to offences of a strictly military nature committed by military personnel. Military courts may try persons treated as military personnel for infractions strictly related to their military status ...”

Principle No. 9. Trial of persons accused of serious human rights violations

“In all circumstances, the jurisdiction of military courts should be set aside in favour of the jurisdiction of the ordinary courts to conduct inquiries into serious human rights violations such as extrajudicial executions, enforced disappearances and torture, and to prosecute and try persons accused of such crimes ...”

Principle No. 13. Right to a competent, independent and impartial tribunal

“... The persons selected to perform the functions of judges in military courts must display integrity and competence and show proof of the necessary legal training and qualifications. Military judges should have a status guaranteeing their independence and impartiality, in particular vis-à-vis the military hierarchy ...”

2. Resolution adopted by the United Nations Human Rights Council on the Integrity of the judicial system on 23 March 2012 (A/HRC/RES/19/31)

109. Relevant parts of the Resolution read as follows:

“The Human Rights Council...

1. Takes note of the relevant sections of the ... report submitted by the Special Rapporteur ... on the issue of the administration of justice through military tribunals [E/CN.4/2006/58]; ...

8. Calls upon States that have military courts or special tribunals for trying criminal offenders to ensure that such bodies are an integral part of the general judicial system and that such courts apply due process procedures that are recognized according to international law as guarantees of a fair trial ...”

3. Note by the United Nations Secretary-General transmitting the report of the Special Rapporteur on the independence of judges and lawyers (A/68/285) of 7 August 2013

110. On 7 August 2013 the United Nations Secretary-General transmitted to the United Nations General Assembly the report of the Special Rapporteur on the independence of judges and lawyers, Gabriela Knaul, for consideration at its 68th session. The relevant paragraphs of the report read as follows:

“20. Over time, there has been an increasing tendency to curb the jurisdiction of military tribunals. The traditional model of military justice, according to which the person who gives the orders sits in judgement, has progressively undergone important changes, with the result that military tribunals have increasingly been incorporated, as a specialized branch, into the general justice system. Several countries have abolished the operation of military tribunals in peace time altogether and transferred the responsibility for adjudicating alleged wrongdoings by military personnel to the ordinary courts and/or disciplinary bodies. ...

26. The position of military tribunals within the structures of the State and their relationship with the “ordinary” judiciary vary from one country to another. In many countries, military tribunals form part of the judiciary, of which they sometimes constitute a specialized branch. In other countries, military tribunals fall outside the scope of ordinary jurisdiction, and are attached to the executive branch, often to the ministry of defence. In several countries, the ordinary judiciary retains the authority to review decisions delivered by military tribunals. To this effect, some countries establish a special military division within the supreme court or supplement regular judges with military personnel.

27. State practice is also heterogeneous with regard to the composition of military tribunals. In several countries, military tribunals are composed solely of active or retired members of the armed forces who have the appropriate training or law related qualifications. In some cases, military judges are not required to have undergone any legal training. In other countries, military tribunals are made up of professional judges, who are either military or civilian judges and have military experience and knowledge of the operations of armed forces.

28. National legislation usually states that military judges should possess the same legal education and training required of civilian judges. In countries where military tribunals are administered by the ordinary justice system, civilian judges may be assisted by military personnel...

Recommendations:

91. The Special Rapporteur wishes to make the following recommendations with the aim of assisting States in ensuring that, where military justice systems exist, military tribunals administer justice in a manner that is fully compliant with international human rights law and standards. ...

93. The independence of military tribunals must be legally guaranteed at the highest possible level. ... the independence of military tribunals and their inclusion within the general administration of justice system of the State must be guaranteed in the constitution or a fundamental law when the State has no written constitution. ...

95. In order to safeguard the independence of military judges, their status, including their security of tenure, adequate remuneration, conditions of service, pensions and the age of retirement, should be determined by law. In particular, military judges should have guaranteed tenure until a mandatory retirement age or the expiry of their term of office, where such exist. Also, they should be dismissed only on serious grounds of misconduct or incompetence, in accordance with fair procedures ensuring objectivity, transparency and impartiality set out in the constitution or the law. ...

97. Domestic law should identify objective criteria for the selection of military judges... States should consider establishing an independent authority charged with the selection of military judges. ...

98. As a specialized jurisdiction aimed at serving the particular disciplinary needs of the military, the ratione materiae jurisdiction of military tribunals should be limited to criminal offences of a strictly military nature, in other words to offences that by their own nature relate exclusively to legally protected interests of military order, such as desertion, insubordination or abandonment of post or command.

...

106. The jurisdiction of ordinary courts should prevail over that of military courts to conduct inquiries into alleged offences involving serious human rights violations and to prosecute and try persons accused of such crimes, in all circumstances, including when the alleged acts were committed by military personnel.

107. Military tribunals and the proceedings before them should, in all circumstances, respect and apply the principles of international law relating to a fair trial. Any restrictions to fair trial requirements and due process guarantees must be provided for by the law, justified by objective reasons, be proportional and never undermine the overall right to a fair trial...”

THE LAW

I. JOINDER OF THE APPLICATIONS

111. The Court considers that, pursuant to Rule 42 § 1 of the Rules of Court, the applications should be joined, given their common factual and legal background.

II. AS TO THE LOCUS STANDI OF THE FIRST APPLICANT IN RESPECT OF THE APPLICATION BROUGHT BY THE FOURTH APPLICANT

112. The fourth applicant having died in January 2013, while the case was pending before the Court, the first applicant informed the Court of her wish to pursue the application in her stead (see paragraph 5 above). It has not been disputed that the first applicant (the fourth applicant’s daughter) is entitled to pursue the application on her behalf, and the Court sees no reason to hold otherwise (see, among other authorities, Prynda v. Ukraine, no. 10904/05, § 44, 31 July 2012).

III. ALLEGED VIOLATIONS OF ARTICLE 2 OF THE CONVENTION

113. The applicants complained that the State authorities had failed to put in place the necessary legislative, administrative and practical safeguards to protect the lives of the Mykhayliv family members during the air show; that they had been directly responsible for the crash which had caused their deaths, and had failed to conduct an effective and independent investigation of the relevant circumstances. The applicants referred to Article 2 § 1 of the Convention, which reads as follows:

“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.”

A. Admissibility

1. Submissions by the parties

(a) The Government

114. The Government alleged that the applicants had lost victim status in respect of their complaint under the substantive limb of Article 2 of the Convention, and that this complaint should therefore be rejected as incompatible ratione personae with the provisions of the Convention.

115. In particular, they observed that the breach of the applicants’ relatives’ right to life had been acknowledged at the domestic level and the applicants had obtained compensation for that breach. In addition to that, the domestic authorities had conducted a prompt and effective investigation, which resulted in a very thorough establishment of all the circumstances of the accident and in the punishment of those responsible.

116. The Government further submitted that the applicants’ procedural complaint, insofar as it related to the independence of the investigation, had been manifestly ill-founded. Notably, the investigation had been carried out under the supervision of the General Prosecutor’s Office by a team of the investigators belonging to various entities. It resulted in the indictment of ten military servicemen, including five officers of General rank. Even following acquittals of some of the defendants by the court, the prosecution chose to appeal and to maintain the charges until the end of the proceedings. It was therefore not possible to discern either an objective or a subjective appearance of lack of independence or impartiality on the part of the investigative authorities.

(b) The applicants

117. The applicants disagreed. They submitted that the compensatory redress provided to them was inadequate and was prohibitively delayed.

118. In addition to that, the relevant investigation had not been adequate, as numerous military and civilian officials had unfairly escaped criminal responsibility for their negligence in organising the show, while the punishment of those found guilty had been insufficient. Moreover, the military investigators and the military court judges involved in the proceedings were servicemen of the Armed Forces. By the very nature of their status, they could not be sufficiently independent from the army and from the Ministry of Defence.

2. The Court’s assessment

119. The Court reiterates that under the subsidiarity principle it falls first to the national authorities to redress any alleged violation of the Convention. In this regard, the question whether an applicant can claim to be a victim of the violation alleged is relevant at all stages of the proceedings under the Convention (see, for instance, Nikolova and Velichkova v. Bulgaria, no. 7888/03, § 49, 20 December 2007). The Court has earlier found that a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for the breach of the Convention (see ibid.).

120. The amount and timely payment of compensation for anguish suffered is important in assessing the adequacy of redress for a bereaved family member (see, in particular, Öneryıldız v. Turkey [GC], no. 48939/99, § 152, ECHR 2004‑XII; and Nikolova and Velichkova, cited above, § 52). The question whether the applicant received reparation for the damage caused – a matter comparable to just satisfaction as provided for under Article 41 of the Convention – is important in that sense (see, for instance, Firstov v. Russia, no. 42119/04, § 31, 20 February 2014; Sizarev v. Ukraine, no. 17116/04, § 93, 17 January 2013; and Zgonnik v. Ukraine, no. 5976/08 (dec.), 18 December 2012).

121. In so far as the applicants in the present case complain that the amount of compensation paid to them in connection with the deaths of their relatives was unreasonably low and the delay in its payment was prohibitive, the Court notes that following the examination in court of the “performers’ case” and conviction of five Air Force officers for negligence, the first applicant was awarded UAH 220,000 and other applicants were awarded UAH 60,000 each in compensation for non-pecuniary damage. These sums levied against the Ministry of Defence were paid to them within no more than nine months after the relevant judgment became final, and less than four years after the accident.

122. The above sums paid by the State to the applicants in connection with the deaths of their relatives appear not to have been manifestly disproportionate to the sums awarded by the Court in recent cases to deceased persons’ relatives in cases which concerned substantive and procedural violations of the right to life (see, among others, Gorovenky and Bugara v. Ukraine, nos. 36146/05 and 42418/05, § 55, 12 January 2012; Mosendz, cited above, § 129; and Arskaya v. Ukraine, no. 45076/05, § 95, 5 December 2013). The Court also considers that, regard being had to all the circumstances of the case, the delay in payment was not so protracted as to raise a separate issue under the Convention.

123. The Court also notes that, in addition to the aforementioned amounts obtained via judicial proceedings, the first applicant also received UAH 47,690 in extrajudicial payments from the State budget in connection with the loss of her daughter and other relatives. The Court has not been informed as to the timeframe within which these payments were disbursed to her. Nevertheless, it appears from the documents on file that the relevant decisions concerning financial aid to the accident victims were taken promptly by the State authorities, and the relevant funds were made available without delay (see paragraphs 71-75 above). Some additional payments were also made available to Mrs Mykhayliv’s in-laws from the State budget and to other applicants through State-managed charitable funds (see paragraphs 76-77 above).

124. In these circumstances, the Court considers that the State authorities have taken sufficient measures to ensure compensatory redress for the deaths of the Mykhayliv family members.

125. At the same time, having carefully examined the submissions by the parties, the Court notes that the question of the applicants’ status as “victims” is closely linked to the question of the overall effectiveness of the investigation in the present case (see, for instance, Nikolova and Velichkova, cited above, § 47, and Esmukhambetov and Others, cited above, §§ 107-08), including independence as a constitutive element of such effectiveness (Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05, § 225, 14 April 2015). It would therefore be appropriate to join the Government’s objection concerning the applicant’s victim status to the merits and to address it, as well as the parties’ submissions concerning independence of the investigation, in the examination of the substance of the relevant complaint under Article 2 of the Convention.

126. Otherwise, the applicants’ complaints under Article 2 of the Convention are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, and are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

1. Submissions by the parties

127. The applicants submitted that the air show was unlawful and very poorly organised. In particular, they submitted that the air show was put on without an adequate legal framework for regulating such a hazardous activity as aerobatic performances; that the topography of the Sknyliv aerodrome was such that it was virtually impossible to arrange an aerobatic performance at a safe distance from the spectators; that a number of military and local civil authorities had acted with extreme negligence and lack of professionalism in organising the show; and that the Air Force Commander-in-Chief and the 14th Corps Commander, who had both been present on site, failed to seize an opportunity to intervene with the pilots’ and ground crew’s faulty actions during the tragic performance. In the applicants’ view, the situation called for everyone involved in organising the show to be brought to justice, including the high-ranking military officers and local civilian officials who had recklessly authorised the show without ascertaining whether adequate security measures had been put in place. In the meantime, the case of the “organisers” was unfairly disjoined from that of the “performers”, without the applicants being properly notified. In the applicants’ view, this was done with a view to reducing a structural problem to an isolated accident resulting from an incidental human factor (pilot error and negligent performance by a handful of individuals) and eventually securing acquittals of the high-ranking officials, who exerted pressure on the prosecution, witnesses and the courts. The applicants also named other military officials and civil officials from the local municipal authorities, who, in their view, had unfairly escaped criminal prosecution. The first applicant also suggested that the entire situation was illustrative of a conspiracy of the Government against the people.

128. The Government disagreed. They referred to their arguments concerning the adequacy of the domestic investigation and sufficiency of the redress provided to the applicants at the domestic level (see paragraphs 114 – 116 above). According to them, the domestic regulatory framework had been adequate, and this had allowed the establishment of all relevant facts and proper attribution of responsibility for the accident.

2. The Court’s assessment

(a) Substantive aspect of Article 2 of the Convention

129. The Court reiterates that the first sentence of Article 2 § 1 enjoins the State not only to refrain from unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see, among other authorities, L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports of Judgments and Decisions 1998-III). For a positive obligation to protect life to arise, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual and that, if so, they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk (see, amongst other authorities, Finogenov and Others v. Russia, nos. 18299/03 and 27311/03, § 209, ECHR 2011 (extracts); Banel v. Lithuania, no. 14326/11, § 65, 18 June 2013; and Prilutskiy v. Ukraine, no. 40429/08, § 33, 26 February 2015). This positive obligation entails above all a duty on the State to put in place a legislative and administrative framework for the regulation of dangerous activities, which must provide, in particular, for appropriate procedures, taking into account the technical aspects of the activity in question (see, among other authorities, Öneryıldız v. Turkey, cited above, § 90).

130. As follows from the case-file materials, the primary cause of the Sknyliv air show accident, which took the lives of the applicants’ relatives, was a technical mistake by V.T., a military pilot, in execution of an aerobatics manoeuver not featured in his mission order and not practiced by him before the air show, coupled with the failure of the supporting crew to interfere with his faulty conduct in due time (see paragraphs 22 and 57 above). The respondent State bears responsibility for the above deaths and this matter is not in dispute between the parties.

131. The Court next observes that, in the applicants’ view, the State’s responsibility was engaged in a much broader sense, in particular, on account of a failure to put in place an adequate general legal and regulatory framework for organising air shows and for inadequate planning and preparation of the air show in question.

132. In this relation, it is to be noted that in the aftermath of the accident a number of new regulatory acts were passed domestically with a view to improving relevant safety standards (see paragraphs 85-90 above). However, it is not the Court’s task to compare the quality of the relevant legal framework before and after the accident in abstracto. It observes in this respect that where the State is required to take positive measures the choice of means is in principle a matter that falls within the Contracting State’s margin of appreciation. There are different avenues to ensure Convention rights, and even if the State has failed to apply one particular measure, it may still fulfil its positive duty by other means (see, for instance, Budayeva and Others, cited above, §§ 134-35). For instance, absence of the general legislative guidelines could be compensated by the development of a show-specific procedure by an authority directly engaged in planning or supervision of the show.

133. In the meantime, as unequivocally follows from the results of all the concurrent domestic investigations (notably, the Special Government Commission, the Ministry of Defence, the commission set up by the municipality and the NGO created by the accident victims), the Sknyliv air show was generally organised with significant safety-related shortcomings deriving from both: insufficiently detailed general regulatory framework (see paragraphs 24, 26 and 87 above) and the failures by the military and civilian authorities alike to make full use of the existing framework for implementing all measures reasonably available for minimizing the risk for the spectators’ lives (see paragraphs 23-26, 28-30, 32-36, 40, 43-44 and 87 above). As follows from the case-file, these factors cumulatively resulted in an inadequate preparation of the airfield for safe accommodation of the spectators and insufficient readiness of the crew for their performance. Given the level of detail in the factual findings and the unanimity in major conclusions between all the domestic entities which had concurrently investigated the relevant facts, the Court, bound by its subsidiary role, is not called upon to review their substantive findings as to the principal or contributing causes of the accident.

134. It therefore finds that the State responsibility for the Sknyliv air show accident is engaged on account of the negligent acts and inactions by its military pilots and their supporting crew, as well as on account of the failures by other competent authorities and officers to put in place necessary procedures, precautions and measures with a view to preparing the air field for safe accommodation of the spectators and ensuring adequate readiness of the performing crew for their mission.

135. The Court next recalls that, according to the Government, the matter has been adequately addressed at the domestic level by way of identifying and punishing all those responsible for the above breaches. In light of these submissions, the Court will first analyse how the respondent State has complied with its procedural obligation under Article 2 and then determine whether there is still a call to rule on a substantive breach.

(b) Procedural aspect of Article 2 of the Convention

(i) General principles

136. The Court reiterates from its well-established jurisprudence that where a life-threatening injury or a death occurs, Article 2 requires that an effective judicial system is set up to ensure enforcement of the legislative framework geared to protect the right to life by providing appropriate redress (see, for instance, Anna Todorova v. Bulgaria, no. 23302/03, § 72, 24 May 2011, and Antonov v. Ukraine, no. 28096/04, § 44, 3 November 2011). Such a system may, and under certain circumstances must, include recourse to the criminal law (see, among other authorities, Antonov, cited above, § 45). In the particular context of the loss of life or serious injury incurred in connection with dangerous activities, the Court has considered that an official criminal investigation is indispensable given that public authorities are often the only entities to have sufficient relevant knowledge to identify and establish the complex phenomena that might have caused an incident (see, in particular, Öneryıldız, cited above, § 93 and Brincat and Others v. Malta, nos. 60908/11, 62110/11, 62129/11, 62312/11 and 62338/11, §§ 121-122, 24 July 2014).

137. Compliance of an official investigation with the procedural requirement of Article 2 is assessed on the basis of several essential parameters: the adequacy of the investigative measures, the promptness of the investigation, the involvement of the deceased person’s family, and the independence of the investigation (see, as a recent authority, Mustafa and Fecire Tunç, cited above, § 225). In order to be “effective,” an investigation must firstly be adequate (see Ramsahai and Others v. the Netherlands [GC], no. 52391/99, § 324, ECHR 2007‑II). That is, it must be capable of leading to the establishment of the facts and, where appropriate, the identification and punishment of those responsible (see Mustafa and Fecire Tunç, cited above, §§ 172-174).

138. These requirements also extend to the trial stage (see Abdullah Yılmaz v. Turkey, no. 21899/02, § 58, 17 June 2008, and Mosendz, cited above, § 94). It cannot be inferred that Article 2 may entail the right to have third parties prosecuted or sentenced for a criminal offence or an absolute obligation for all prosecutions to result in conviction, or indeed in a particular sentence (Giuliani and Gaggio v. Italy [GC], no. 23458/02, § 306, ECHR 2011 (extracts)). If the infringement of the right to life or to physical integrity is not caused intentionally, the positive obligation imposed by Article 2 to set up an effective judicial system does not necessarily require the provision of a criminal-law remedy in every case. The Court has already held that in the specific sphere of medical negligence, or in respect of the possible responsibility of State officials for the deaths occurring as a result of their negligence, the obligation may for instance also be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any liability of the doctors or other officers concerned to be established and any appropriate civil redress, such as an order for damages and for the publication of the decision, to be obtained. Disciplinary measures may also be envisaged (see Branko Tomašić and Others v. Croatia, no. 46598/06, § 64, 15 January 2009 with further references). At the same time, the national courts should not under any circumstances be prepared to allow life-endangering offences to go unpunished (see Öneryıldız, cited above, § 95; Budayeva and Others, cited above, § 145; and Giuliani and Gaggio, cited above, § 306).

139. Article 2 of the Convention implies, among other requirements, that the investigation must be sufficiently independent (see, as a recent authority, Mustafa Tunç and Fecire Tunç, cited above, § 217). It does not require that persons and bodies responsible for an investigation enjoy absolute independence, but rather that they are sufficiently independent of the persons and structures whose responsibility is likely to be engaged (see ibid. and Ramsahai and Others v. the Netherlands [GC], no. 52391/99, §§ 343 and 344, ECHR 2007‑II). The adequacy of the degree of independence is assessed in the light of all the circumstances, which are necessarily specific to each case. Where the statutory or institutional independence of the investigation is open to question, such a situation, although not decisive, will call for a stricter scrutiny on the part of the Court as to whether the investigation has been carried out in an independent manner. The correct approach in such cases consists in examining whether and to what extent the disputed circumstance has compromised the investigation’s effectiveness and its ability to shed light on the circumstances of the death and to punish those responsible (see Mustafa Tunç and Fecire Tunç, cited above, §§ 223 and 224).

(ii) Independence of the investigation in the present case

140. Insofar as the applicants in the present case complain that the domestic investigation lacked requisite independence, the Court observes that the prosecutors and investigators from the military prosecutors’ office, who constituted the core of the investigative team, as well as all the judges engaged in the case, were military servicemen. According to the law applicable at the material time, they were on the staff of the Armed Forces, which was subordinate to the Ministry of Defence (see paragraphs 80, 98 and 101 (citing Section 63 of the Judicial System Act above). The Court also notes that, while most high-ranking defendants were dismissed from military service shortly after the accident, the former 14th Corps Commander (Lieutenant-General S.O.), who was demoted in his post by way of a disciplinary punishment following the air show accident, was promoted shortly afterwards and at the time of his trial occupied the very important post of Deputy Air Force Commander. It appears that at least for some period of the proceedings he was suspended from performing his duties (see paragraph 60 above), however, the duration of this suspension is not clear.

141. At the same time, the Court notes that it has not been argued that there existed subordination or any special relationship between the defendants concerned and either the investigators, prosecutors or the judges involved in the proceedings. It further notes that the conclusions reached by the prosecution as to the circumstances of the accident were substantively similar to the conclusions reached by numerous other entities concurrently investigating the accident, including the specially set up Government Commission, whose independence is not in dispute, and the Sknyliv Tragedy NGO. The applicants have neither shown nor argued that the investigating or prosecuting authorities had failed to detect or attempted to conceal any fact or circumstance important for the establishment of the truth concerning the accident. It is also notable that the prosecuting authorities consistently insisted on pressing charges against the military officers indicted throughout the entire course of the proceedings, including by bringing an appeal following the acquittals of some defendants. In these circumstances, the Court does not have a basis on which to conclude that the manner in which the investigative and prosecutorial authorities acted was insufficiently independent.

142. As regards the alleged lack of independence of the judges engaged in adjudication of the criminal case against the military officers, the Court notes that the applicants essentially dwelled on the fact that the judges were military servicemen and that they had acquitted the four high-ranking officers charged within the framework of the “organisers’ case”. The Court considers that these arguments alone cannot cast doubt on the independence of the judges for the purposes of Article 2 (see Mustafa Tunç and Fecire Tunç, cited above, §§ 249 and 253). All the more so, the four officers eventually acquitted had earlier been subjected to disciplinary liability by the Ministry of Defence for their negligence in organising the show and three of them had long since been dismissed from the Air Force on that ground. In these circumstances, the Court has no basis on which to conclude that the respective judges acquitted those officers under the pressure of the Ministry.

143. In light of the above, the Court concludes that the domestic investigation was sufficiently independent for the purposes of Article 2.

144. Bearing in mind, however, the differences in the requisite guarantees of independence of judges protected by Article 2 and Article 6 of the Convention (see Mustafa Tunç and Fecire Tunç, cited above, §§ 220‑222) and regard being had to the applicants’ complaints concerning the lack of structural independence of the military courts, the Court will also consider this issue under Article 6 of the Convention (see paragraphs 168‑182 below).

(iii) Adequacy of the investigation in the present case

145. In deciding whether the investigation was “adequate,” the Court notes at the outset that the applicants complain, essentially, that the punishment imposed on the military officers convicted of negligent wrongdoings and omissions resulting in the air show accident had been too lenient and that not all of the authorities and officers guilty of negligent conduct had been criminally prosecuted and convicted.

146. It is notable that the applicants do not challenge as such the completeness or accuracy of the essential factual findings. In fact, as the Court has already noted in paragraph 133 above, numerous concurrent investigations, including the one completed by the Sknyliv Tragedy NGO, reached similar conclusions concerning the most important factual circumstances relevant to the accident.

147. As regards distribution of liability in law to the various officers and authorities concerned, the Court recalls that the domestic investigation resulted in the conviction of five military officers. In particular, V.T., the first pilot, who was found to have breached his mission order, had been convicted and sentenced to fourteen years’ imprisonment. At the time of the exchange of observations between the parties he was still serving his prison sentence. The second pilot, the air show flights director, and the aerobatic performance director found responsible for failing to interfere with the first pilot’s faulty conduct, were also sentenced to various prison terms (see paragraph 57 above). Finally, the 14th Corps chief safety officer was convicted and sentenced to a term of suspended imprisonment for failing to put in place a meaningful emergency prevention plan (see ibid.).

148. Based on the materials before it, the Court finds no appearance of arbitrariness in the domestic decisions regarding the above officers which would call for their substantive review in the Convention proceedings. Regard being had to the nature of these officers’ offences, the Court also considers that their punishments were not so lenient as to fall outside the margin of appreciation enjoyed by the domestic judicial authorities in that respect.

149. Insofar as the applicants complain that the local civilian authorities and higher military servicemen responsible for poor organisation of the show were spared criminal liability, the Court reiterates from its jurisprudence that where the authorities, fully realising the likely consequences and disregarding the powers vested in them, failed to take measures that were necessary and sufficient to avert the risks inherent in a dangerous activity, the fact that those responsible for endangering life were not charged with a criminal offence or prosecuted may amount to a violation of Article 2 (see Budayeva and Others, cited above, § 140; and Kolyadenko and Others, cited above, § 190). At the same time, the Court reiterates that Article 2 does not entail as such the right to have third parties prosecuted or sentenced for a criminal offence or an absolute obligation for all prosecutions to result in conviction (Giuliani and Gaggio, cited above, § 306).

150. It follows from the case-file materials that the domestic decisions not to prosecute certain officers, as well as acquittals of the four high-ranking Air Force officials were based on a careful establishment and assessment of the relevant facts. Notably, it was established that the latters’ actions and omissions were not in direct causal link with the accident. The courts concluded that the officers concerned had performed within the scope of their authority and their actions did not constitute criminal offence of negligent attitude toward military service as provided for in Article 425 § 2 or any other provision of the Criminal Code (see excerpts from the court judgment in paragraph 62 above). The judicial authorities emphasised that the immediate cause of the accident was the first pilot’s unforeseen decision to deviate from his mission order and that holding the most senior officers accountable for not having supervised his training and performance any closer would constitute an overbroad interpretation of the military statutes and other relevant legal acts. In these circumstances, the very fact that the domestic authorities dispensed with imposing criminal liability on those officers following adversary proceedings cannot of and by itself serve as the basis for a finding that the investigation had not been adequate.

151. The Court further notes that in addition to the criminal conviction of the five servicemen mentioned above, a number of other servicemen, including several high-ranking Air Force officers, were subjected to disciplinary liability (see paragraph 27 above). Consequently three of them, including the then Air Force Commander-in-Chief and two members of the Air Force Headquarters, were dismissed from military service, while the Commander of the 14th Corps was demoted. This latter officer was also suspended from performing his duties during the active phase of the criminal proceedings against him (see paragraph 60 above). Insofar as responsibility of the local civilian authorities was concerned, it is notable that they did not host the show and that their role in its organisation was ancillary. The procedural breaches imputed to them, regard being had to their nature, did not and could not as such have resulted in causing the accident.

152. Regard being had that the investigation resulted in sufficient establishment of the facts that had brought about the fatal accident and in attributing liability to the officers directly and indirectly responsible for it, including criminal and disciplinary liability, the Court concludes that the investigation in the present case met the adequacy requirement for the purposes of Article 2 of the Convention.

(iv) Promptness, access to the file and other procedural aspects of the investigation

153. The Court further considers that the investigation was sufficiently prompt. Notably, the criminal investigation and the investigation by the specially set up interdisciplinary Government’s Commission were opened on the very day of the accident. The Special Commission issued its report within several months of the accident (see paragraph 19). The criminal investigation resulted in the final conviction of the two pilots, the ground crew officers and the 14th Corps chief safety officer on 2 March 2006, after the case was considered by the courts of two levels of jurisdiction. The trial of the four high-ranking Air Force officers ended on 22 October 2008, after their case had also been examined by the courts of two instances. Regard being had to the factual complexity of the proceedings and the number of the participants involved, including several hundred injured parties, the Court considers that the investigation has not fell short of the promptness requirement for the purposes of Article 2.

154. The Court also notes that the applicants were admitted in the criminal proceedings as injured parties and civil claimants, which enabled them to access various case-file materials and lodge procedural requests personally or through their legal counsel. Nothing in the applicants’ submissions indicates that they were deprived of a possibility to participate in the proceedings in a meaningful way or that there were procedural breaches, which would raise an issue under the Convention.

(v.) Overall conclusion concerning the procedural aspect of Article 2

155. Overall, the Court concludes that the investigation in the present case was sufficiently independent, adequate and prompt and that the applicants were given necessary access to the proceedings. It follows that the respondent State complied with its procedural obligation under Article 2 in the present case.

156. Accordingly, there has been no breach of Article 2 of the Convention in its procedural limb.

(c) Overall conclusion concerning the substantive aspect of Article 2

157. In light of its findings in paragraph 156 above, the Court concludes that the Government’s objection as to the loss of victim status in respect of the applicants’ complaint under substantive limb of Article 2 must be allowed as the matter under consideration has been sufficiently addressed at the domestic level.

158. Accordingly, the Court finds no violation of Article 2 of the Convention in its substantive limb.

IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

159. The applicants next complained that the manner in which their relatives’ remains were handled and the body identification and transfer procedures were organised had caused them suffering amounting to inhuman and degrading treatment. They referred to Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

160. The Government submitted that these complaints were inadmissible in view of the non-exhaustion of domestic remedies, as the applicants had never aired them before any domestic judicial or other competent authority, including the Ministry of Defence and the Ministry of Health. As an alternative, assuming there were no effective remedies to exhaust, these complaints had been lodged out of six months of the events complained of. In any event they were manifestly ill-founded. The applicants provided no evidence whatsoever in support of their factual account of events. According to the information available to the Government, the authorities did everything in their power to ensure respectful and proper handling and identification of the remains of the accident victims and there was nothing in their conduct to cause the applicants suffering beyond that, which was unavoidable in their situation.

161. The applicants disagreed. Reiterating their factual account (see paragraphs 10 and 12-15 above), they submitted that their complaints concerning the improper handling of their relatives’ remains were closely related to the complaints concerning the breach of their right to life. The applicants had participated in criminal proceedings concerning the investigation of the circumstances of their relatives’ deaths. It would have been onerous to impose on them in their situation an obligation to institute any further proceedings. In any event, they did not believe that there was any effective hope for them to obtain redress in this situation of ill-treatment, which was continuous, as fragments of their relatives’ bodies, including the head of Mrs Mykhayliv, had never been located or restored to them.

162. The Court notes, firstly, that, insofar as the applicants complain about the organisation of the identification procedure and handling of their relatives’ bodies, any organizational lapses in these procedures, which might have resulted from objective logistical difficulties connected to the extraordinary nature of the events and the number of casualties, may not by themselves attract applicability of Article 3, absent any evidence that the authorities engaged in misconduct, which caused the applicants suffering of a dimension and character distinct from the emotional distress inevitably caused to any family member of a deceased person in a comparable situation (see Sabanchiyeva and Others v. Russia, no. 38450/05, §§ 112-113, ECHR 2013 (extracts)). As the applicants did not notify the competent domestic authorities of any respective concerns, the Court, without the benefit of the comments from these authorities, has no basis on which to establish that any such misconduct might have taken place (see, in particular, Vinokurov v. Ukraine and Russia (dec.) no. 2937/04, 16/10/2007 and Andrey Yakovenko v. Ukraine, no. 63727/11, § 85, 13 March 2014).

163. Insofar as the applicants complained that the authorities had not taken all reasonable actions with a view to locating the missing fragments of their relatives’ bodies, the Court notes that, based on the available materials, the first applicant corresponded with the investigative authorities with a view to soliciting various additional actions within the framework of the relevant criminal proceedings (see paragraph 16 above). Some of her requests were rejected, others allowed. The most recent relevant documents on file date back to September 2002. The Court considers that rejections of the applicants’ requests for further actions with a view to identifying body remains constituted instantaneous acts. In these circumstances the Court considers that, assuming there were no further domestic remedies for the applicants to make use of in their view, they had to bring the relevant complaint to the Court no later than six months from the date when the authorities rejected the first applicant’s last request for further action. However, the present complaint was lodged with the Court in 2006 only. Without prejudice to other possible grounds for inadmissibility, it has therefore been lodged outside the six-month time-limit.

164. In view of the considerations listed in paragraphs 162 and 163 above, the Court considers that this part of the application must be rejected as manifestly ill-founded on the whole, in accordance with Article 35 §§ 1, 3 (a) and 4 of the Convention.

V. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION

165. The applicants further complained that the criminal proceedings concerning their claims for damages lodged within the framework of the criminal proceedings against the military officers had been unfair. In particular, the military courts had not been sufficiently independent of the Ministry of Defence and the military authorities, and had acted in the interests of those entities. In addition, the proceedings had also been inordinately lengthy.

166. The applicants referred to Article 6 § 1 of the Convention in respect of the above complaints, the relevant part of which reads as follows:

“1. In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law...”

167. The Court notes that the Government did not dispute applicability of Article 6 under its civil limb to the criminal proceedings at issue. It next recalls that the applicants lodged civil claims within the framework of the criminal investigation and exercised their right for redress of the damage caused by the deaths of their relatives. As these criminal proceedings were decisive for their “civil rights,” these proceedings came within the field of application of Article 6 § 1 of the Convention (see Perez v. France [GC], no. 47287/99, §§ 62-66 and 74-75, ECHR 2004‑I and, as a recent authority, Alexandrescu and Others v. Romania, nos. 56842/08 and 7 others, § 22, 24 November 2015).

A. Independence and impartiality of the courts

168. The Government submitted that the military courts were sufficiently independent and impartial, and that there had been no violation of the applicants’ rights in this respect. According to them, the national law contained sufficient guarantees of the independence of the military courts. In particular, military court judges, like civilian judges, were first appointed to their posts by the President of Ukraine for a five-year term and, following its successful completion, elected by the Parliament of Ukraine permanently. Promotion, disciplining and removal from office of the military court judges were governed by the same law as that applicable to civilian judges. The funding of the military courts was managed by the State Judicial Administration in cooperation with the Ministry of Defence from a separate line of the State budget expressly dedicated to the funding of the military courts, while the Supreme Court, which acted as a court of appeal in the present case, was fully independent of the executive in the management of its own budget. The applicants also did not present any evidence of subjective bias on the part of any of the judges.

169. The applicants disagreed. They submitted that the military court judges, being military servicemen, could not have been independent and impartial and that they had acted with a view to protecting the interests of the Armed Forces and the Ministry of Defence. In particular, they had exonerated the high-ranking military officers from criminal liability for their omissions in the organisation of the air show. The applicants also alleged that Inspector O. of the State Audit Service, who had inspected the lawfulness of the use of State funds for the organisation of the air show and had testified in court as a witness, had initially reported on various irregularities and subsequently changed his opinion under pressure from the high-ranking military authorities.

170. The Court would state at the outset that the right to a fair trial, of which the right to a hearing before an independent tribunal is an essential component, holds a prominent place in a democratic society (see, in particular, Miroshnik v. Ukraine, no. 75804/01, § 61, 27 November 2008). In order to establish whether a tribunal can be considered “independent”, regard must be had, inter alia, to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressures, and to the question whether the body presents an appearance of independence. In this latter respect, what is at stake is the confidence which such tribunals in a democratic society must inspire in the public and, above all, in the parties to the proceedings. In deciding whether there is a legitimate reason to fear that a particular court lacked independence or impartiality, the standpoint of the party to the proceedings is important without being decisive. What is decisive is whether the party’s doubts can be held to be objectively justified (see, mutatis mutandis, Incal v. Turkey, judgment of 9 June 1998, Reports 1998-IV, pp. 1572-73, § 71; Cooper v. the United Kingdom [GC], no. 48843/99, § 104, ECHR 2003-XII; and Miroshnik, cited above, § 61).

171. Turning to the present case, the Court reiterates that the proceedings at issue concerned the determination of the applicants’ civil claims against the Ministry of Defence. These claims were examined by the Central Region Military Court of Appeal at first instance and reviewed by the Military Panel of the Supreme Court contemporaneously with the determination of the criminal charges against military officers indicted of negligent acts resulting in the loss of the lives of the applicants’ relatives.

172. In the case of Miroshnik v. Ukraine, cited above, the Court has previously found that the domestic military courts lacked independence in determination of a civil claim lodged against the Ministry of Defence in proceedings, which concerned the allegedly unlawful dismissal of a military serviceman. The Court based the relevant findings, in particular, on the domestic statutory provisions, according to which the military court judges were military servicemen on the staff of the Armed Forces subordinate to the Ministry of Defence. In addition to that, applicable law at the material time allocated to the Ministry of Defence a number of tasks relating to court administration and provision of the judges with housing (see Miroshnik, cited above, §§ 63-64).

173. With the new Judicial System Act having been adopted before the beginning of the proceedings at issue in the present case, these findings are of limited value in examining the applicants’ complaint. In particular, although according to the new law the military judges remained military servicemen, the Ministry of Defence lost practically all of its previous court administration functions to the newly created State Judicial Administration and the Supreme Court’s administrative staff. In addition, unlike in the Miroshnik judgment, which concerned a purely civil dispute, the present applicants’ claims were lodged in a very different context. In particular, they were closely connected to the determination of criminal charges related to breaches of service duty imputed to several military officers.

174. The Court notes that the practice of using courts staffed wholly or in part by the military to try members of the armed forces is deeply entrenched in the legal systems of many member States (see, for instance, Morris v. the United Kingdom, no. 38784/97, § 59, ECHR 2002‑I). According to its current jurisprudence, unlike in cases relating to the trials of civilians (see, for instance, Öcalan v. Turkey [GC], no. 46221/99, § 113, ECHR 2005‑IV, and Maszni v. Romania, no. 59892/00, §§ 53-60, 21 September 2006), there is nothing in the provisions of Article 6 of the Convention which would in principle exclude the determination by military courts of criminal charges against service personnel (see, for instance, Cooper, cited above, § 110, and Mureşan v. Romania (dec.), no. 37702/06 § 19, 16 December 2014).

175. There is 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 rights violations, such as extrajudicial executions, enforced disappearances and torture (see paragraphs 108-110 above). However, the proceedings at issue in the present case cannot, in the Court’s view, be approached in the same manner as the aforementioned intentional serious human rights violations, which cannot 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 to be resolved by the courts. The criminal limb of the present proceedings was therefore very closely connected to the defendants’ military service. In these circumstances, the Court considers that 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, is not as such incompatible with the Convention. Nevertheless, the Court must look at the composition of the respective military courts and examine the statutory and practical safeguards enabling them to act independently and impartially in resolving these claims (see, mutatis mutandis, Yavuz v. Turkey (dec.), no. 29870/96, 25 May 2000, and Tanışma v. Turkey, no. 32219/05, §§ 81‑84, 17 November 2015).

176. The Court reiterates that in its previous cases relating to the determination of the independence of military servicemen engaged in administering justice it has had regard to a number of elements determining their status and the manner of operation of the military courts. These elements included the quality of the procedure under which the military courts operated, in particular as regards confidentiality of deliberations and availability of review by an ordinary court, availability of appropriate training for officers involved in the adjudication of cases; the manner of their appointment, promotion and discipline (in particular, whether those officers remained subject to army appraisal reports and whether those reports could evaluate the quality of their judicial decision-making), and other elements (see, for instance, Maszni, cited above, § 55; Bucur and Toma v. Romania, no. 40238/02, § 140, 8 January 2013; and Mureşan, cited above, §§ 20-22).

177. Turning to the circumstances of the present case, the Court reiterates that the applicants’ principal argument concerning lack of independence of the military courts related to the fact that the military judges were military servicemen of the officer rank (see applicable provisions of the domestic law in paragraphs 80 and 101 above). According to the applicable law, these judges were on the staff of the Armed Forces subordinate to the Ministry of Defence. However, in examining the practicalities of their status, the Court observes that nothing in it suggests that they reported on their performance to any military official. In fact, the applicable law expressly prohibited military judges from carrying out any duties other than adjudication of cases. Eligibility criteria for a post of a military judge (apart from being a military officer) and procedures concerning their appointment, promotion, disciplining and removal were analagous to those in place for their civilian counterparts. Nothing in the relevant legal framework or the applicants’ submissions indicates that either the Ministry of Defence or any career military officers were involved in these procedures.

178. The Court further notes that, according to the applicable law, military courts were integrated into the system of ordinary courts of general jurisdiction. They operated under the same rules of procedure as the ordinary courts in determination of criminal cases. This procedure provided for the applicants the same opportunities to participate in the proceedings, as would have been afforded to them in civilian courts (see paragraphs 95 and 97 above).

179. As regards court funding and court administration responsibilities, the Supreme Court, which incorporated the Military Panel, was independent in these matters. Primary responsibility for administering inferior military courts was vested in the State Judicial Administration. Although the Ministry of Defence retained some authority in this matter as well as in taking care of certain benefits for the military court judges (see paragraphs 98 and 99 above), the Court considers that, absent any substantiated arguments to the contrary, such limited authority in itself does not suffice to cast doubt on the impartiality and independence of the judges of the military courts (see, mutatis mutandis, Baranova v. Russia, (dec.), no. 72757/01 of 9 November 2004).

180. Insofar as the applicants allege bias of the courts referring to the acquittal of several high-ranking officers, they do not suggest that there has been any special relationship between the judges involved and the officers mentioned. The Court further observes that in finding those officers not responsible for any wrongdoings, the courts deviated from the position taken earlier by the Minister of Defence, who had found them culpable of disciplinary offences in this respect. As a result, three of the defendants, including the then Air Force Commander-in-Chief, had been dismissed from military service several years before the trial and no longer occupied those positions of responsibility. In the absence of any other more substantiated arguments by the applicants concerning bias on the part of the judges, the Court considers that there is no basis for it to conclude that the military judges in the present case lacked structural independence or otherwise acted in the interests of the Armed Forces or the Ministry of Defence when adjudicating the applicants’ civil claims.

181. Finally, in so far as the applicants allege that O., a financial inspector, had been pressurised by the army officials to modify his conclusions as to the management of the Air Force financial accounts and to give false testimony in court, the Court does not see how this allegation, which is in no way substantiated, relates to the independence or impartiality of the military courts in deciding on the applicants’ civil claims connected to the death of their relatives.

182. In view of all the above, the Court considers that the applicants’ complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

B. Length of the proceedings

183. The Government suggested that the length of the proceedings at issue in the present case was reasonable.

184. The applicants disagreed, and suggested that the proceedings had been overly lengthy. The second and third applicants submitted that the periods to be taken into account ran from the date of the initiation of the proceedings (27 July 2002) until the final judgment of the Supreme Court in the “organisers’ case” (22 October 2008). In their view this period was unreasonably protracted, in particular on account of the artificial disjoining of the “organisers’ case” from the “performers’ case”.

185. The Court notes that the applicants lodged their civil claims on 25 April 2003. The judgment in the “performers’ case”, whereby these claims were partly allowed, having become final on 2 March 2006, the awards were paid to the applicants between 21 August and 29 November 2006. However, as the proceedings against some of the defendants in the criminal case were disjoined (the “organisers’ case”) and ended only on 22 October 2008, the Court considers that this period must likewise be taken into account, having regard to the fact that the applicants continued to maintain further civil claims of negligence imputed to these defendants. As the proceedings ended with acquittals, the applicants’ further claims were left unexamined. Thus, the total period to be taken into account for the calculation of the length of the proceedings concerning the determination of the applicants’ civil claims lasted from 25 April 2003 to 22 October 2008, and was therefore five and a half years.

186. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities, and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). In the Court’s view, regard being had to the above criteria and the nature of the proceedings at issue in the present case, the aforementioned period was not such as to attract liability of the respondent Government under the Convention.

187. The complaint concerning the length of the proceedings with a view to determination of the applicants’ civil claims is therefore manifestly ill‑founded and must be dismissed as inadmissible in accordance with Article 35 § 3 (a) and 4 of the Convention.

VI. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

188. The applicants further complained that they had had no effective remedies allowing them to accelerate the resolution of their claims. They referred to Article 13 of the Convention in this respect, which reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

189. The Government submitted that this complaint was manifestly ill-founded.

190. The applicants disagreed.

191. The Court reiterates that it has found that the applicants have not made out an arguable claim under Article 6 of the Convention in respect of the length of the proceedings. The guarantees of Article 13 do not, therefore, apply to these complaints (see Vergelskyy v. Ukraine, no. 19312/06, § 124), 12 March 2009).

192. This part of the application is therefore inadmissible and must be rejected in accordance with the requirements of Article 35 §§ 3 (a) and 4 of the Convention.

VII. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

193. In addition, the applicants cited Articles 4, 5, 7, 8, 14, 15 and 17 of the Convention with respect to the facts of the present case.

194. Having considered these complaints in the light of all the material in its possession, the Court finds that, in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention provisions relied on by the applicants.

195. It follows that this part of the application must be declared inadmissible as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

FOR THESE REASONS, THE COUR, UNANIMOUSLY,

1. Decides to join the applications;

2. Holds that the first applicant has standing to continue the present proceedings in the fourth applicant’s stead;

3. Decides to join to the merits the Government’s objection in respect of the applicants’ complaints under Article 2 of the Convention concerning their victim status;

4. Declares the complaints concerning the failure of the respondent Government to protect the lives of Mr and Mrs Mykhayliv and their daughters and to conduct an effective investigation within the meaning of Article 2 of the Convention admissible and the remainder of the application inadmissible;

5. Holds that there has been no violation of Article 2 of the Convention.

Done in English, and notified in writing on 1 September 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Milan BlaškoAngelika Nußberger
              Deputy RegistrarPresident

[1]. Around EUR 33,000 in August 2006.

[2]. Around EUR 9,000 in the fall of 2006.

[3]. Around EUR 1,900,450 at the material time.

[4]. Around EUR 12,000 in December 2002.

[5]. Around EUR 7,300 in December 2002.

[6]. Around EUR 1,080 in December 2002.

[7]. Around EUR 720 in December 2002.

[8]. Around EUR 10,000 in December 2002.

[9]. Around EUR 9,400 in December 2002.

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