FIFTH SECTION
DECISION
Application no. 1227/06
Tetiana Kostyantynivna GAVRYLOVA and
Denys Oleksandrovych GAVRYLOV against Ukraine
and 10 other applications
(see appended table)
The European Court of Human Rights (Fifth Section), sitting on 19 December 2017 as a Chamber composed of:
Angelika Nußberger, President,
Ganna Yudkivska,
André Potocki,
Yonko Grozev,
Síofra O’Leary,
Mārtiņš Mits,
Lәtif Hüseynov, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above applications lodged on the various dates indicated in the appended table,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
1. A list of the applicants, who lodged the present applications between 23 December 2005 and 31 August 2006, is set out in the appendix.
2. The Ukrainian Government (“the Government”) were represented by their Agents, most recently, Mr I. Lishchyna.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Facts common for all applicants
4. On 27 July 2002 the Air Force of Ukraine staged a military aviation show at the Sknyliv aerodrome in Lviv. During the aerobatics performance, an SU-27 military aircraft crashed into a crowd of spectators and exploded. Both pilots had successfully ejected before the explosion. As a result of the crash, seventy-seven people were killed and over 290 people, including the applicants, sustained damage to their health (see details in paragraphs 17-50 below).
5. On the date of the accident criminal proceedings were instituted to establish the cause of the crash.
6. On various dates the applicants were admitted in these proceedings as injured parties and civil claimants. Following individualised assessments of the applicants’ injuries by forensic experts within the framework of those proceedings, they were divided in three categories: “minor injuries”, “injuries of intermediate seriousness” and “grave injuries” depending on their impact on the applicants’ health and well-being, the reversibility or irreversibility of their nature, the length of recovery and the intensity of the medical intervention required. The seriousness of both the physical and the emotional trauma were taken into account in the process of attribution to a category.
7. On 27 August 2004 the criminal proceedings against four officers of the rank of general (hereinafter “the organisers’ case”) were disjoined from the criminal proceedings against the pilots and the supporting ground crew (hereinafter “the performers’ case”).
8. On 23 June 2005 the Central Region Military Court of Appeal examined the performers’ case and found the two pilots of the crashed aircraft and three supporting crew members guilty of negligence. These officers were sentenced to various terms of imprisonment.
9. On the same date the court also ruled on the applicants’ civil claims, awarding them various amounts in respect of pecuniary damage (mostly medical expenses) and non-pecuniary damage in connection with physical injuries and emotional distress, to be paid by the Ministry of Defence (see details in the appended table below).
10. The applicants appealed, seeking, in particular, an increase in the compensation payments.
11. On 2 March 2006 the Military Panel of the Supreme Court of Ukraine rejected the applicants’ appeals and the judgment in the performers’ case became final.
12. Between June 2006 and March 2007 all the judgment awards due to the applicants were paid out.
13. Some applicants lodged further civil claims within the framework of the organisers’ case, which was still ongoing at the material time.
14. On 11 June 2008 the Central Region Military Court of Appeal examined the organisers’ case and acquitted the four officers charged in these proceedings.
15. On 22 October 2008 this decision was upheld on appeal by the Military Panel of the Supreme Court of Ukraine and all the civil claims lodged within the framework of the organisers’ case were left unexamined in view of the acquittal.
16. On various dates starting from 2002, in addition to the compensation awarded by the court, almost all of the applicants also obtained payments in State and municipal aid from the Sknyliv accident victim relief funds (see details in the appended table below). Every applicant also obtained further payments ranging from 2,620 hryvnias (UAH) (Ms Liliya Belinska; minor emotional injury) to UAH 41,000 (Mr Denis Gavrylov; grave injury) from charitable funds set up and managed by the authorities to attract private donations in aid to the Sknyliv accident victims. On various occasions some of the applicants were also provided with vacation vouchers and recreational treatment vouchers to facilitate their mental and physical recovery. For more details concerning the accident, the ensuing investigation and State and municipal aid to the victims see Mikhno v. Ukraine, no. 32514/12, §§ 12-58 and 67-71, 1 September 2016 and Svitlana Atamanyuk and Others v. Ukraine, nos. 36314/06 and 3 others, §§ 17-64 and 71-75, 1 September 2016).
2. Facts specific to individual applicants
(a) Application no. 1227/06 (Gavrylova and Gavrylov v. Ukraine)
17. The present application was lodged by two Ukrainian nationals who are resident in Lviv: Mrs Tetiana Kostyantynivna Gavrylova, born in 1949 and Mr Denis Oleksandrovych Gavrylov, born in 1987. Mrs Tetiana Gavrylova is the mother of Mr Denis Gavrylov. The applicants were represented by Mr T.R. Sendega, a lawyer practising in Lviv.
18. As a result of the Sknyliv air show accident, Mrs Tetiana Gavrylova sustained a blunt soft tissues leg injury with haemorrhage and multiple abrasions cumulatively classified by domestic forensic experts as injuries of “intermediate seriousness”.
19. Mr Denis Gavrylov had his popliteal artery and right leg muscles crushed. He also sustained multiple abrasions, contusions and other injuries cumulatively classified by domestic forensic experts as a “grave injury”. Following the accident, he underwent treatment in the hospital rehabilitation unit followed by lengthy inpatient and outpatient treatment.
20. By the time the present application was lodged in December 2005, Mr Gavrylov had been classified as suffering from “second (intermediate) degree” disability under domestic classification and was in receipt of a disability pension.
(b) Application no. 36032/06 (Chorna and Others v. Ukraine)
21. The present application was lodged by three Ukrainian nationals resident in Lviv: Mrs Natalya Yaroslavivna Chorna, born in 1971, Mr Anton Bogdanovych Chornyy born in 1977 and Mr Bogdan Antonovych Chornyy, born in 1999. The first two applicants are spouses and the third applicant is their son. They were represented by Mr D.A. Gudyma and Ms S.V. Khyliuk, lawyers practising in Lviv.
22. According to the applicants, they were so close to the site of the SU‑27 aircraft crash that their clothes were stained with the blood and body parts of people injured and dying around them. In order to reach safety, they had to make their way past numerous mutilated corpses and disfigured screaming people along the aerodrome runway.
23. Mrs Natalya Chorna sustained an ankle injury with a ligament rupture, contusion and haematoma. Subsequently she was also diagnosed as suffering from post-traumatic stress disorder, which transformed into asthenic-depressive neurosis. Her injuries were classified as injuries of “intermediate seriousness” by domestic forensic experts.
24. Mr Anton Chornyy was diagnosed as suffering from post-traumatic stress disorder. His psychological trauma was classified by domestic forensic experts as a “minor injury”.
25. Mr Bogdan Chornyy, a three-year old minor at the date of the accident, sustained a contused cerebral wound, concussion and a haematoma. He also developed post-traumatic stress disorder, which included symptoms such as fear of crowds and sleep disturbance. He also suffered from various forms of physiological dysfunction, including a stutter and disruption of his speech development. Mr Bogdan Chornyy’s injuries were classified by the domestic forensic experts as ones of “intermediate seriousness”. On several occasions in the years that followed, Mr Bogdan Chornyy was placed on inpatient treatment programmes in psycho‑neurological institutions.
26. According to the applicants, at the date of the exchange of observations in 2013, they were still suffering from the after-effects of the accident. They provided numerous medical documents as evidence that they had continued to be under on-going medical supervision in connection with the psychological trauma sustained at the accident site.
(c) Application no. 35857/06 (Yudin v. Ukraine)
27. The present application was lodged by Mr Boris Borisovich Yudin, a Ukrainian national born in 1946 and resident in Lviv. The applicant was represented by Ms Y.V. Kulbiy-Kukhar, a lawyer practising in Lviv.
28. As a result of the Sknyliv air show accident, Boris Yudin sustained a heavy cerebral contusion with subarachnoid haemorrhage and a fracture of the clavicular bone. For six days after the accident he was in a coma. Upon regaining consciousness, he suffered from partial amnesia, temporary speech loss, hallucinations and was unable to walk. Following intensive inpatient neurological treatment, Boris Yudin regained some cerebral functions. However, he never attained full recovery and by 2006 he had been classified as suffering from disability of “the first degree” in need of outside assistance for meeting basic daily needs. According to classification by domestic forensic experts, Boris Yudin’s trauma was classified as a “grave injury”.
(d) Application no. 36727/06 (Reshetilova and Others v. Ukraine)
29. The present application was lodged by two Ukrainian nationals ‒ Mrs Iryna Grygorivna Reshetilova, born in 1950, and Mr Viktor Mykhaylovych Yegorov, born in 1957, and a US national ‒ Mr Nikita Sergejevich Bastrakov, born in 1998. The first two applicants are the grandparents of the third applicant. All three applicants are resident in Lviv. They were represented by Mr A.P. Syvyk, a lawyer practising in Lviv.
30. According to the applicants, on the date of the accident, moments before the SU-27 hit the ground, Mr Bastrakov − a four-year-old minor at that time − was watching it with his mouth open, while Mrs Reshetilova said to him in amusement: “Wow, look how low can this airplane fly!” The next moment, Mr Yegorov, having suddenly realised that the aircraft was falling, pushed his grandson to the ground and covered him with his body, urging his wife to likewise lie on the ground. Moments later, the applicants were hit by the heat wave from the aircraft’s turbines, which burnt their clothes and skin. The soles of Mr Yegorov’s shoes were also completely burned. When the applicants finally got onto their feet, they were covered with other people’s blood and with soot from the aircraft, which had exploded some distance from them.
31. As a result of the accident, Mrs Reshetilova suffered multiple burns to her face, limbs and eyes. The heat wave from the aircraft’s turbines also entered her respiratory system and burned her larynx, trachea, bronchi and lungs. In addition, Mrs Reshetilova suffered an acute neurological reaction to stress. Domestic forensic experts classified her injuries as “minor”. According to the applicant, this classification was incorrect, as she had never fully recovered from her injuries. She provided extensive medical documentation as evidence to prove that the after-effects of her injuries included chronic obstructive bronchitis, pulmonary emphysema, encephalopathy, and various other medical complications. By 2006 Mrs Reshetilova had been classified as suffering from general disability of the “third (mildest) degree” according to the domestic classification system.
32. Mr Viktor Yegorov sustained contusion of the chest area, fractures of the fifth and seventh vertebra and multiple abrasions cumulatively classified by domestic forensic experts as “injuries of intermediate seriousness”. He also developed complications, including frequent headaches, back pain and a number of other neurological symptoms.
33. Mr Nikita Bastrakov sustained a hand wound, face abrasions and post-traumatic stress disorder manifested most markedly, through phobias, asthenic symptoms and bed-wetting. His injuries were classified by domestic forensic experts as being of “intermediate seriousness”.
(e) Application no. 37227/06 (Kurylka v. Ukraine)
34. The present application was lodged by Mrs Galyna Ivanivna Kurylka, a Ukrainian national born in 1958 and resident in Lviv. The applicant was represented by Mr D. A. Gudyma and Mrs S. V. Khyliuk, lawyers practising in Lviv.
35. As a result of the accident, the applicant suffered contusion of her foot and developed post-traumatic stress disorder classified by domestic forensic experts as a “minor injury”. According to the applicant, this classification was incorrect, as her mental state had in fact deteriorated to a point that she was forced to quit her employment as a kindergarten mentor. After a series of inpatient and outpatient treatment programmes, in 2006 Mrs Kurylka was classified as suffering from “second-degree” (moderately serious) disability and unfit for work, excluding the performance of domestic tasks. At the time of the exchange of observations in 2013, Mrs Kurylka was unemployed on a disability pension and was under permanent outpatient psychiatric supervision. In addition, several times per year she participated in courses of inpatient rehabilitative treatment in psycho-neurological institutions.
(f) Application no. 32581/12 (Koshulap v. Ukraine)
36. The present application was lodged by Ms Khrystyna Viktorivna Koshulap (married name Dzyunka), a Ukrainian national born in 1989 and resident in Lviv. She was represented by Mr D.A. Gudyma and Ms S.V. Khyliuk, lawyers practising in Lviv.
37. As a result of the Sknyliv air show accident, Ms Koshulap, a thirteen-year-old minor at that time, sustained a complicated hand injury with damage to the extensor tendons classified by domestic forensic experts as an “injury of intermediate seriousness”. She underwent a series of reconstructive operations followed by inpatient and outpatient treatment programmes. It is not clear from the case file whether the applicant has fully recovered.
(g) Application no. 32821/12 (Garasymiv v. Ukraine)
38. The present application was lodged by two Ukrainian nationals resident in Lviv: Mr Anatoliy Romanovych Garasymiv, born in 1964, and Mr Volodymyr Anatoliyovych Garasymiv, born in 1991. Mr Anatoliy Garasymiv is the father of Mr Volodymyr Garasymiv. The applicants were represented by Mr D.A. Gudyma and Ms S.V. Khyliuk, lawyers practising in Lviv.
39. As a result of the Sknyliv air show accident, Mr Anatoliy Garasymiv sustained cerebral concussion, multiple facial and head burns, as well abrasions to the fingers and knees, cumulatively classified by domestic experts as “minor injuries”. According to him, this classification was incorrect, as he had never regained his health and continued to suffer from the after-effects of the accident at the date of the exchange of observations in 2013. As a result of his physical injuries and stress, Mr Anatoliy Garasymiv started suffering, in particular, from frequent headaches, hypertonic disease, and other complications. Within a few months of the accident he was forced to abandon his career as a military wind instrument player and was eventually dismissed from the military forces on health grounds. By 2006, Mr Anatoliy Garasymiv was classified as suffering from disability entailing 40% loss of capacity to work.
40. Mr Volodymyr Garasymiv, an eleven-year-old minor at the date of the accident, developed post-traumatic stress disorder classified by domestic experts as “minor injury”.
(h) Application no. 32982/12 (Belinska v. Ukraine)
41. The present application was lodged by Ms Liliya Bogdanivna Belinska (married name Salo), a Ukrainian national born in 1985 and resident in Lviv. She was represented by Mr D.A. Gudyma and Ms S.V. Khyliuk, lawyers practising in Lviv.
42. As a result of the Sknyliv air show accident, Ms Liliya Belinska, a seventeen-year-old minor on the date of the accident, developed post‑traumatic stress disorder, which was treated on an outpatient basis. Her trauma was classified by domestic forensic experts as a “minor injury”.
(i) Application no. 33094/12 (Stupets v. Ukraine)
43. The present application was lodged by Ms Liubov Grygorivna Stupets, a Ukrainian national born in 1961 and resident in Lviv. She was represented by Mr D.A. Gudyma and Ms S.V. Khyliuk, lawyers practising in Lviv.
44. Ms Liubov Stupets sustained rupture of the acromio-clavicular ligament, her injury having been classified by domestic experts as one of “intermediate seriousness”. According to the medical documents presented by Ms Stupets, treatment of this trauma required several surgical interventions and extensive inpatient rehabilitation treatment. The applicant had to abandon her career in sports and as a school physical education teacher. In November 2002 she was classified as suffering from disability of the “third degree”. By 2006 her state of health was still deteriorating: she developed post-traumatic arthritis, pain syndrome, and a number of neurological and other conditions. At the date of the exchange of observations in 2013, the applicant was receiving a disability pension.
(j) Application no. 33103/12 (Sivanych v. Ukraine)
45. The present application was lodged by Ms Nataliya Yaroslavivna Sivanych (married name Buntseva), a Ukrainian national born in 1985 and residing in Lviv. She was represented by Mr D.A. Gudyma and Ms S.V. Khyliuk, lawyers practising in Lviv.
46. As a result of the Sknyliv air show accident, Ms Nataliya Sivanych sustained cerebral concussion, numerous wounds and fractures of several foot bones, which required inpatient treatment followed by an outpatient rehabilitation programme. The applicant’s injuries were cumulatively classified by domestic forensic experts as ones of “intermediate seriousness.”
(k) Application no. 33145/12 (Shevchuk v. Ukraine)
47. The present application was lodged by two Ukrainian nationals residing in Lviv: Mr Anatoliy Mykolayovych Shevchuk, born in1967 and Mr Andriy Anatoliyovych Shevchuk, born in 1991. Mr Anatoliy Shevchuk is Mr Andriy Shevchuk’s father. The applicants were represented by Mr D.A. Gudyma and Ms S.V. Khyliuk, lawyers practising in Lviv.
48. According to the applicants, as the fallen aircraft exploded, parts of it flew their way. Both of them would have probably been killed, had it not been for Mr Anatoliy Shevchuk’s quick reaction: he managed to push his son to the ground and cover him with his body just before the moment they would have otherwise been hit by these flying parts. When the applicants got up, they saw numerous mutilated bodies of dead, burnt and wounded people around them. Whilst attempting to provide first aid to accident survivors, Mr Anatoliy Shevchuk lost view of his son, who wandered off in the midst of the mutilated bodies and screaming people. After having looked for his son for about an hour, Mr Anatoliy Shevchuk found him uninjured physically, but in a state of deep mental shock, unable to speak or make productive contact with others. Mr Andriy Shevchuk was immediately placed in a psycho-neurological hospital for inpatient treatment.
49. On 28 July 2002 Mr Anatoliy Shevchuk went back to work and attempted to resume his normal duties. However, after suddenly developing a stutter, he applied for psychiatric assistance.
50. Subsequently, both applicants underwent several sessions of inpatient psychiatric treatment followed by outpatient treatment and regular supervision. They were diagnosed with post-traumatic stress disorder classified by domestic experts as an “injury of intermediate seriousness”.
B. Relevant domestic law
51. Article 49 of the Constitution of Ukraine (1996) provides, in particular, as follows:
“ Everyone has the right to health protection, medical care and medical insurance.
Health protection is ensured through state funding of the relevant socio-economic, medical and sanitary health improvement and prophylactic programmes.
The State creates conditions for effective medical service accessible to all citizens. State and communal health protection facilities provide medical care free of charge; the existing network of such institutions shall not be reduced. The State promotes the development of medical facilities of all forms of ownership. ...”
52. Other relevant provisions of domestic law are cited in the Court’s judgment in the case of Mikhno (cited above, §§ 76-105).
COMPLAINTS
53. The applicants complained under Article 2 of the Convention that the State authorities had failed to take reasonable measures to protect their lives during the air show and that they had been directly responsible for the imminent risk to which their lives had been subjected and the damage they had sustained to their health.
54. All applicants except those filing applications nos. 1227/06 and 36032/06 additionally complained under the same provision that the investigation into the accident had been ineffective.
55. All applicants also complained under Article 6 § 1 of the Convention that the criminal proceedings, in which they had participated as injured parties and civil claimants, had been inordinately lengthy.
56. All applicants also complained under the same provision that the proceedings had been unfair. They raised various procedural complaints, noting, in particular, that the military courts which examined their claims had been neither independent of the Ministry of Defence nor impartial, which factor resulted in incorrect determination of the compensation payable to them for their injuries.
57. The applicants also complained under Article 13 of the Convention about the lack of any means to accelerate the consideration of their compensation claims.
58. Finally, the applicants filing applications nos. 36032/06, 37227/06, 32581/12, 32821/12, 32982/12, 33094/12, 33103/12 and 33145/12 additionally invoked Articles 3 and 14 of the Convention and Article 1 of Protocol No. 1 with regard to the facts of the present case. These applicants complained, in particular, that their injuries had caused them immense sufferings, which were further exacerbated by the fact that the State authorities had refused to conclude a friendly settlement agreement with them. The compensation awarded to them in courts had been calculated arbitrarily and had been much lower than that paid by Ukraine for the deaths of Russian and Israeli nationals in an aeroplane crash of 4 October 2001 pursuant to a friendly settlement agreement concluded in that case between the Governments of Russia, Ukraine, and Israel.
THE LAW
A. Joinder of the applications
59. In view of their similar factual and legal background, the applications should be joined pursuant to Rule 42 § 1 of the Rules of Court.
B. Alleged violations of Article 2 of the Convention
60. The applicants complained that the State authorities had failed to put in place the requisite legislative, administrative and practical safeguards to protect their lives during the Sknyliv air show and that they had been directly responsible for the aeroplane crash and for their injuries. In addition, all the applicants except those filing applications nos. 1227/06 and 36032/06 complained that the investigation into the circumstances of the crash had not been adequate, prompt or independent. The applicants referred to Article 2 of the Convention which, insofar as relevant, reads as follows:
“1. Everyone’s right to life shall be protected by law. ....”
1. Submissions by the parties
61. Referring to the Court’s judgment in the case of Makaratzis v. Greece ([GC], no. 50385/99, §§ 52-55, ECHR 2004‑XI), the Government took the view that the accident at the Sknyliv air show had exposed the applicants’ lives to danger serious enough to attract applicability of Article 2 of the Convention.
62. At the same time, however, they were of the view that the applicants had lost victim status in respect of their complaints insofar as they concerned the alleged failure of the State to protect their lives from danger during the air show. In this connection the Government noted, in particular, that the domestic authorities had conducted a prompt and effective investigation, which had resulted in the establishment of the circumstances of the accident and the punishment of those responsible. In addition, the applicants had been paid compensation for their physical and psychological trauma. In view of the above, the Government invited the Court to reject the applicants’ complaints under the substantive limb of Article 2 of the Convention in connection with the fact that the situation had been resolved at the domestic level and the applicants had lost victim status.
63. They also argued that, insofar as the applicants complained under the procedural limb of Article 2 that the investigation had been ineffective, this complaint should, in turn, be rejected as manifestly ill-founded.
64. The applicants disagreed, alleging, in particular, that the relief obtained by them domestically had been neither adequate nor prompt and that the prosecutorial and judicial authorities handling the case were closely connected to the Ministry of Defence.
2. The Court’s assessment
(a) Applicability of Article 2
65. The Court notes that Article 2 of the Convention protects right to life. In the present case, the applicants sustained health damage as a result of the airplane crash at the Sknyliv air show - their complaints do not relate to the loss of life. The respondent Government have taken the view that Article 2 was nevertheless applicable in the cases at issue (see paragraph 61 above).
66. The Court notes that it has found Article 2 applicable in a number of other cases where the complaints were raised by individuals, who happened to be fortuitous survivors of life-threatening incidents (see, for instance, Krivova v. Ukraine, no. 25732/05, § 45, 9 November 2010; Budayeva and Others v. Russia, nos. 15339/02, 21166/02, 20058/02, 11673/02 and 15343/02, § 146, ECHR 2008 (extracts); Kolyadenko and Others v. Russia, nos. 17423/05, 20534/05, 20678/05, 23263/05, 24283/05 and 35673/05, §§ 151-155, 28 February 2012) or Tagayeva and Others v. Russia, nos. 26562/07 and 6 others, §§ 482, 493 and Appendix, ECHR 2017 (extracts)).
67. In the present case, some applicants have provided detailed accounts of their personal experience during the air show, from which it appears that the danger to their lives was serious, as they were in the immediate proximity of the site of the crash (see, in particular, paragraphs 22, 30 and 48 above). At the same time, the accounts of some others are so concise that it is not possible to ascertain their personal location at the critical moment. However, the Court considers that for the purposes of the present case it is not necessary to examine in detail each applicant’s individual circumstances.
68. Leaving aside questions relating to the applicability of Article 2 which might arise in relation to each individual case (see also Khramkovy and Others v. Ukraine (dec.) [Committee], no. 32604/12, § 53, 29 August 2017), the Court considers that in any event, for the reasons described below, the redress provided to the applicants at the domestic level has been sufficient to address any complaints, which may have arisen under the above provision.
(b) Objection concerning loss of victim status in respect of the complaints raised under the substantive limb of Article 2
69. The Court reiterates that a decision or measure favourable to an 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, for instance, Nikolova and Velichkova v. Bulgaria, no. 7888/03, § 49, 20 December 2007).
70. The Court has previously established that in circumstances such as those in the instant case two measures are necessary to remedy a breach of Article 2 of the Convention at the national level. Firstly, the State authorities must have conducted a thorough and effective investigation capable of leading to the identification and punishment of those responsible. Secondly, an award of compensation to the applicant is required where appropriate (see, among other authorities, Nikolova and Velichkova, cited above, §§ 49, 50, 52 and 56; Budayeva and Others v. Russia, cited above, § 191; and Mosendz v. Ukraine, no. 52013/08, § 121, 17 January 2013).
71. Turning to the facts of the present cases, the Court notes that in its aforementioned judgments in the cases of Mikhno and Svitlana Atamanyuk and Others it has arrived at the conclusion that the domestic investigation of the circumstances of the Sknyliv air show accident was effective for the purposes of Article 2 of the Convention. More specifically, it was sufficiently independent and prompt and resulted in the meticulous establishment of the relevant circumstances, as well as in the identification and punishment of those responsible (see Mikhno, cited above, §§ 151-152 and Svitlana Atamanyuk and Others, cited above, §§ 155-156). The Court finds that the allegations raised by the applicants in the present cases as to the ineffectiveness of the same investigation are very similar to those already dismissed in the aforementioned Mikhno and Svitlana Atamanyuk and Others judgments. The Court therefore finds no grounds to depart from its previous findings.
72. It remains to be determined whether the compensatory and other redress offered to each individual applicant in the present case was sufficient to conclude that the matter has been resolved, as argued by the Government.
73. The approach which the Court has followed in determining the “reasonableness” of compensation paid by a State for a breach of the Convention has been that of equity, which requires that the amount awarded be assessed in the light of all the circumstances of each individual case. Those considerations include the domestic legal system and legal traditions in the respondent State, the standard of living and the general level of incomes in the State concerned, and the fact that a remedy in the national system is closer and more accessible than one sought through an application to the Court (see Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 206 and 268, CEDH 2006‑V; Dubjaková v. Slovakia (dec.), no. 67299/01, 19 October 2004; Firstov, Firstov v. Russia, no. 42119/04, § 31, 20 February 2014; and Simanovičs v. Latvia, no. 55047/12, (dec.), 18 November 2014).
74. Article 2, which is aimed at the protection of the right to life, ranks as one of the most fundamental provisions in the Convention (see, as a recent authority, Lambert and Others v. France [GC], no. 46043/14, § 117, 5 June 2015). In general, there can be no sum large enough to constitute an equivalent to the sorrow, pain and distress suffered by a person whose life has been subjected to a mortal risk or who has lost a family member in tragic circumstances (see, mutatis mutandis, Oyal v. Turkey, no. 4864/05, § 106, 23 March 2010).
75. In determining whether domestic redress could nevertheless be considered “equitable”, the Court has assessed, in particular, whether the applicant received reparation for the damage caused comparable to just satisfaction as provided for under Article 41 of the Convention (see, for example, Firstov, cited above, § 31). At the same time, the Court has also held on a number of occasions that a wider margin of appreciation should be left to the domestic courts when assessing the level of compensation (see Cocchiarella v. Italy [GC], no. 64886/01, § 80, ECHR 2006‑V, and Firstov, cited above, § 36). Even compensation which is lower than the amount the Court would itself award could be considered reasonable, provided that the relevant decision of the domestic courts was consistent with the legal tradition and standard of living in the country concerned and was speedy, reasoned and executed quickly (see Scordino, cited above, §§ 189 and 206; Sizarev v. Ukraine, no. 17116/04, §§ 93-94, 17 January 2013; and Zgonnik v. Ukraine, no. 5976/08 (dec.), 18 December 2012).
76. The Court notes that the compensatory payments awarded to the applicants in the present cases were generally lower − and, in most cases, considerably so − than the awards to other Sknyliv accident victims whose cases have already been decided and in whose respect the domestic redress has been found equitable (see Mikhno, cited above, §§ 60, 65, 72-73 and 118; Svitlana Atamanyuk and Others, cited above, §§ 121-124; Mindrova v. Ukraine (dec.), no. 32454/06, § 25, 31 January 2017; Makarovy and Others v. Ukraine (dec.) [Committee], no. 32545/12, § 27 and Appendix, 29 August 2017; and Khramkovy and Others, cited above, §§ 18-19, 22, 26‑28, 31-32 and 49, 29 August 2017). However, the factual circumstances in the cases at issue are also materially different from those examined in the aforementioned cases. Each of the previous cases (except that of Mr Khamyk, see Khramkovy and Others, cited above, §§ 21-22) concerned, wholly or in part, the death of a relative, whereas the complaints in the cases at issue have been lodged by individuals who did not lose any close family member in the accident and were fortunate to survive themselves. The Court observes that it has not previously been called on to determine a just satisfaction award under Article 41 of the Convention in any case against Ukraine brought by a fortuitous survivor of an accident, the domestic investigation of whose circumstances had been deemed effective.
77. In assessing fairness of the approach taken by the domestic judicial authorities in order to determine the amount of individual non-pecuniary damage awards, the Court observes that the applicants were divided into three categories depending on the gravity of the injuries sustained as a result of the accident: minor injuries, injuries of intermediate seriousness, and grave injuries. In addition to the physical injuries, the gravity of the psychological distress suffered by each individual applicant was also taken into account in determining the relevant category (see paragraph 6 above). The initial determination of the gravity of the applicants’ injuries was made by forensic experts in the course of individualised assessments. Final determination of the non-pecuniary damage awards was made by the courts in contentious proceedings, during which the applicants had an opportunity to present their individual claims, documents and explanations as well as to lodge appeals. Applicants belonging to the same category received comparable − but not always identical − awards in respect of non-pecuniary damage. This fact, in the Court’s view, demonstrates that the method chosen by the judicial authorities allowed room for the individual assessment of particular circumstances depending on the material presented (see details in the appended table). In addition to claiming compensation for non‑pecuniary damage, the applicants were also able to claim back medical and other expenses by filing pecuniary damage claims, which were awarded by the courts insofar as they were found to be substantiated (see details in the appended table).
78. While some applicants in the present cases argue that the degree of actual health damage suffered by them was underestimated, the Court is mindful of its subsidiary role in addressing these arguments. Taking into account the aforementioned procedural safeguards in domestic proceedings leading to the determination of the awards, the Court considers that it is not itself in a position to re-examine the factual conclusions reached by the competent domestic authorities as to the seriousness of damage suffered by individual applicants.
79. In view of all the foregoing, the Court concludes that the approach taken by the domestic judicial authorities in determining the individual awards was not arbitrary (see also, mutatis mutandis, Tagayeva and Others, cited above, Appendix).
80. The Court furthermore considers it of relevance that the applicants in the present cases received their court awards with sufficient promptness: between June 2006 and March 2007 (see paragraph 12 above), that is to say, within some four and a half years from the date of the accident. In addition, the applicants received various other payments in State and municipal aid specifically allocated to the Sknyliv accident victims, some funds having been allocated from the State budget within days of the accident (see paragraph 16 above; the appended table; Mikhno, cited above, §§ 67‑71).
81. The Court also notes that, in addition to providing the applicants with compensatory redress via the court proceedings and other State-aid programmes, the authorities took a number of other steps aimed at supporting the applicants’ recovery. Special charitable funds were set up and administered by them with the intention of attracting private donations (see paragraph 16 above and Mikhno, cited above, § 70); various additional services, such as free recreational treatment vouchers and vacation vouchers were also provided in some cases (see paragraph 16 above).
82. Most importantly, all applicants were provided with medical assistance for their injuries, largely at the State’s expense. The Ukrainian Constitution generally guarantees free access to medical care in State-owned facilities (see paragraph 51 above) and there are no documents indicating that the applicants were, in fact, obliged to cover the cost of the essential medical services provided to them. On the contrary, in the aftermath of the accident, substantial additional funds were allocated to the local medical facilities from the State and municipal budgets to reinforce their ability to cope with influx of injured persons (see Mikhno, cited above, §§ 68 and 71). Additionally, those of the applicants who chose to undergo some treatment programmes or purchased medical supplies not covered by the State budget obtained compensation from the Ministry of Defence via the pecuniary damage claims lodged within the framework of the performers’ case (see appended table for details).
83. The Court is mindful that, notwithstanding the efforts made by the State authorities to support the applicants’ treatment, full recovery has not always been attained. It appears from the case file that some injuries had very grave consequences of a lasting and even irreversible nature. It cannot be ruled out that, with the passage of time, some traumas may have triggered emergence of other health problems which could not be diagnosed during the initial expert assessments or taken into account in determining the level of compensation in the aforementioned court proceedings. However, for the purposes of Article 2, it has neither been shown, nor suggested that any of the applicants developed a potentially life-threatening disease or condition as a result of the accident (compare, for instance, with G.N. and Others v. Italy, no. 43134/05, 1 December 2009; Oyal v. Turkey, cited above; and De Santis and Olanda v. Italy ((dec.), no. 35887/11, 9 July 2013). The applicants’ relevant submissions are fragmentary, selective and lacking information concerning the availability of further causes of action in the domestic legal system to ventilate their complaints concerning lasting aftereffects of the accident. The Court can therefore not address them in the present proceedings.
84. Regard being had to the non-pecuniary damage awards paid to the applicants in the light of other pertinent elements – in particular the following: the fact that the method of calculating these awards was not arbitrary; that substantiated medical expenses and other pecuniary damage claims were also granted; that all the payments were made with sufficient promptness; that the investigation into the circumstances of the accident was effective; and that, in addition to providing direct monetary redress, the State authorities took a number of other steps to facilitate the applicants’ recovery − the Court considers that the Government’s objection as regards loss of victim status under the substantive limb of Article 2 must be upheld.
85. It follows that the relevant complaints raised by the applicants in the present cases are manifestly ill-founded.
86. These complaints must therefore be rejected as inadmissible in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
(c) Complaints raised under the procedural limb of Article 2 (all applicants except those filing applications nos. 1227/06 and 36032/06)
87. In the light of its findings in the aforementioned judgments in Mikhno and Svitlana Atamanyuk and Others (see Mikhno, cited above, §§ 151-152 and Svitlana Atamanyuk and Others, cited above, §§ 155-156), the Court considers that the applicants’ complaints under the procedural limb of Article 2 do not raise an issue under the Convention and should be rejected as manifestly ill-founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
C. Alleged violations of Articles 6 and 13 of the Convention
88. The applicants also complained that the proceedings concerning their claims for damages lodged within the framework of the criminal proceedings against the military officers had been in breach of Article 6 § 1 of the Convention. They complained that these proceedings had been inordinately lengthy and unfair, in particular because the military courts, which had been neither independent nor impartial, had not correctly assessed the damage suffered by them. In respect of the above complaints the applicants referred to Article 6 § 1 of the Convention, which, insofar as relevant, reads as follows:
Article 6
“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...”
89. The applicants also complained that they had had no effective remedies allowing them to accelerate the resolution of their civil claims. They invoked Article 13 of the Convention, which reads:
Article 13
“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.”
1. Submissions by the parties
90. The Government contested the applicants’ submissions. In their view the length of the proceedings at issue, including the enforcement of judgments stage, had been reasonable and the military courts had been sufficiently independent and impartial. They also argued that, in view of these conclusions, there was no issue under Article 13 of the Convention.
91. The applicants disagreed.
2. The Court’s assessment
92. The Court considers that Article 6 of the Convention under its civil limb is applicable to the proceedings at issue in respect of the periods during which the applicants were acting as civil claimants in those proceedings (see Mikhno, cited above, §§ 157 and 174, with further references and Svitlana Atamanyuk and Others, cited above, §§ 167 and 185).
(a) Concerning the complaint under Article 6 regarding the length of the proceedings
93. Insofar as the applicants complained that the proceedings were inordinately lengthy, the Court notes that the applicants lodged their civil claims and received the judgment awards in the performers’ case on different dates. It also notes that, based on the information in the case file, a number of applicants, but not all of them, lodged further civil claims within the framework of the organisers’ case, which was disjoined from the initial set of the criminal proceedings. Accordingly, the periods to be taken into account for the determination of the length of the proceedings in each applicant’s case are different. However, the Court finds it unnecessary to make individual calculations because it considers that the overall length of the criminal proceedings within the framework of which the applicants’ civil claims were lodged was in any event not such as to raise an issue under Article 6 § 1 of the Convention.
94. The Court notes in this respect that the criminal proceedings in question were initiated on 27 July 2002 (see paragraph 5 above). The judgment in the performers’ case, whereby the applicants’ civil claims were partly allowed, became final on 2 March 2006 (see paragraph 11 above) and the awards were paid to the applicants between June 2006 and March 2007 (see paragraph 12 above). Insofar as some applicants lodged additional civil claims within the framework of the organisers’ case once it was disjoined from the initial criminal case, these proceedings lasted until 22 October 2008, with all claims having been rejected (see paragraph 15 above).
95. The total period of the criminal proceedings, including the enforcement of judgment stage for the performers’ case, was six years and three months at two levels of jurisdiction, with the periods relevant for the determination of the civil claims lodged by individual applicants being shorter.
96. In the Court’s view, taking into account the criteria established in its jurisprudence (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII) and the nature and complexity of the particular proceedings at issue in the present case, the aforementioned period was not such as to engage the liability of the respondent Government under the Convention (see also Svitlana Atamanyuk and Others, cited above, §§ 186-187).
97. The complaint concerning the length of the proceedings with a view to determination of the applicants’ civil claims raised by the applicants under Article 6 of the Convention is accordingly manifestly ill-founded.
98. It should therefore be rejected as inadmissible in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
(b) Concerning the complaint under Article 6 of the Convention regarding alleged unfairness of the proceedings
99. Insofar as the applicants argued that the proceedings were unfair because the military courts lacked independence and impartiality, the Court notes that it has already examined and dismissed similar arguments as manifestly ill-founded in its judgments in the aforementioned cases of Mikhno (see paragraphs 160-171) and Svitlana Atamanyuk and Others (see paragraphs 170-182). It does not see any reason to depart from its previous findings in the present case.
100. This aspect of the applicants’ complaint should therefore be rejected as manifestly ill-founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
(c) Concerning the alleged breach of Article 13 of the Convention
101. The Court has found in paragraph 99 above that the applicants’ complaints concerning the length of the proceedings did not raise an arguable claim under Article 6 of the Convention. The guarantees of Article 13 of the Convention therefore do not apply to the applicants’ complaint about the impossibility of accelerating these proceedings (see, in particular, Vergelskyy v. Ukraine, no. 19312/06, § 124, 12 March 2009 and Svitlana Atamanyuk and Others, cited above, § 191).
102. It follows that the applicants’ complaints under Article 13 of the Convention should be rejected as inadmissible in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
D. Observance of Article 38 of the Convention in respect of application no. 36032/06
103. On 21 April 2015, after the exchange of observations between the parties in respect of application no. 36032/06, the Court additionally requested from the respondent Government copies of five documents from the domestic criminal case file, namely the reports by the Ministry of Defence and by the Special Government Commission and three reports by experts produced as part of the criminal investigation of the Sknyliv air show accident.
104. Confronted with repeated requests for extensions of the time-limit for submitting two of the five requested documents, on 19 November 2015 the Court asked the parties to comment on the observance by the respondent Government of Article 38 of the Convention, which reads:
“The Court shall examine the case together with the representatives of the parties and, if need be, undertake an investigation, for the effective conduct of which the High Contracting Parties concerned shall furnish all necessary facilities.”
105. On 15 December 2015 the Government submitted copies of the two remaining documents. In their written comments concerning observance of Article 38 of the Convention submitted on the same date, the Government noted that they deeply regretted the delay, which had been caused by a logistical problem. In particular, they stated that − having received the Court’s request sent on 21 April 2015 − the Government’s Agent had identified that, following dispersal of the military court which had examined the case, the relevant file had been archived at the Kyiv City Court of Appeal. By 26 June 2015 the registry of that court had provided the Government’s Agent with three of the five documents requested, which had been immediately sent to the Court. The registry of the Kyiv City Court of Appeal was unable to locate the other two documents, and the Government’s Agent had therefore contacted the Ministry of Defence and a number of other competent authorities requesting them to search for these documents in their archives. When notified by the respective authorities that they had no copies of the impugned documents at their disposal, the Government’s Agent had commissioned its representative to the Court of Appeal to assist its registry in re-examining the three hundred volumes of the criminal case file, which should have contained the documents at issue. As a result of this effort, the two missing documents were located and copies of them submitted to the Court on 15 December 2015.
106. In their comments of 10 February 2016, the applicants submitted that a delay of seven months in furnishing the documents to the Court was unjustified under the circumstances of the present case and amounted to a breach of Article 38 of the Convention.
107. The Court reiterates that it is of the utmost importance for the effective operation of the system of individual application instituted by Article 34 of the Convention that States should furnish all necessary facilities to make possible a proper and effective examination of applications (see Tanrıkulu v. Turkey [GC], no. 23763/94, § 70, ECHR 1999-IV, and Velikova v. Bulgaria, no. 41488/98, § 77, ECHR 2000‑VI). This obligation requires the Contracting States to furnish everything that is required to the Court, whether it is conducting a fact‑finding investigation or performing its general duties as regards the examination of applications. The failure by a Government to submit the necessary documents and information may reflect negatively on the level of compliance by a respondent State with its obligations under Article 38 of the Convention (see, as a recent authority, Gaysanova v. Russia, no. 62235/09, § 144, 12 May 2016). The Court also notes that any material requested by it must be produced promptly and, in any event, before the deadline set by it, as any substantial or unexplained delay may lead the Court to find the respondent State’s explanations unconvincing (see Janowiec and Others v. Russia [GC], nos. 55508/07 and 29520/09, § 203, ECHR 2013, with further references, and Husayn (Abu Zubaydah) v. Poland, no. 7511/13, § 356, 24 July 2014).
108. Turning to the present case, the Court notes that by 15 December 2015 the respondent Government had supplied the five additional documents from the domestic case file requested by the Court in April 2015. While there was a regrettable delay in locating those documents, taking into account the Government’s explanations and the fact that the Court was eventually supplied with all the material it had asked for (compare and contrast with Enukidze and Girgvliani v. Georgia, no. 25091/07, §§ 297-302, 26 April 2011), the Court finds that the Government have not failed to comply with Article 38 of the Convention.
E. Other alleged violations of the Convention
109. As regards the remainder of the complaints filed by the applicants under various provisions of the Convention, having considered them 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 (compare also with Mindrova, cited above, §§ 26 and 29-31). They must therefore be dismissed as inadmissible in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Decides to join the applications;
Declares the applications inadmissible;
Decides that the Government have not failed to comply with Article 38 of the Convention in respect of application no. 36032/06.
Done in English and notified in writing on 25 January 2018.
Claudia WesterdiekAngelika Nußberger
RegistrarPresident
APPENDIX
No.
Application no. and date of lodging
Applicant
Pecuniary damage[1] (UAH)
Non-pecuniary damage[2] (UAH)
State aid
(UAH)[3]
1.
1227/06
23.12.2005
Tetyana Kostyantynivna GAVRYLOVA
Injury of intermediate seriousness
Denys Oleksandrovych GAVRYLOV
Grave injury
No claim
No claim
30,000 joint award
14,000
33,000
2.
35857/06
18.08.2006
Boris Borisovich
YUDIN
Grave injury
260
10,000
32,000
3.
36032/06
17.08.2006
Nataliya Yaroslavivna CHORNA
Injury of intermediate seriousness
Anton Bogdanovych CHORNYY
Minor injury
Bogdan Antonovych CHORNYY
Injury of intermediate seriousness
3,115
240
4,650
5,000
3,000
5,000
2,000
1,000
1,000
4.
36727/06
31.08.2006
Iryna Grygorivna RESHETILOVA
Minor injuries
Viktor Mykhaylovych YEGOROV
Injury of intermediate seriousness
Nikita Sergiyovych BASTRAKOV
2,300
1,300
No claim
5,000
7,000
10,000
2,000
1,500
2,000
5.
37227/06
30.08.2006
Galyna Ivanivna KURYLKA
Minor injury
803
3,000
1,000
6.
32581/12
30.08.2006
Khrystyna Viktorivna KOSHULAP
Injury of intermediate seriousness
2,664
10,000
13,000
7.
32821/12
30.08.2006
Anatoliy Romanovych GARASYMIV
Minor injury
Volodymyr Anatolyovych
GARASYMIV
Minor injury
880
No claim
5,000
5,000
13,000
13,000
8.
32982/12
30.08.2006
Liliya Bogdanivna BELINSKA
Minor injury
375
5,000
0
9.
33094/12
30.08.2006
Lyubov Grygorivna STUPETS
Injury of intermediate seriousness
No claim
10,000
14,000
10.
33103/12
30.08.2006
Nataliya Yaroslavivna SIVANYCH
Injury of intermediate seriousness
200
10,000
13,000
11.
33145/12
30.08.2006
Anatoliy Mykolayovych SHEVCHUK
Injury of intermediate seriousness
Andriy Anatoliyovych SHEVCHUK
Injury of intermediate seriousness
No claim
No claim
6,000
10,000
13,000
1000
[1]. Awards mostly covering various privately incurred medical expenses; made by the judgment of 23 June 2005 (final on 2 March 2006; paid between June 2006 and March 2007).
[2]. Award by the judgment of 23 June 2005 (final on 2 March 2006; paid between June 2006 and March 2007).
[3]. Cumulative rounded award received in 2002-2004 from various State and municipal funds
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