FIFTH SECTION
DECISION
Application no. 32545/12
Ganna Viktorivna MAKAROVA and Oleksandr Ivanovych MAKAROV against Ukraine
and 16 other applications
(see list appended)
The European Court of Human Rights (Fifrth Section), sitting on 29 August 2017 as a Committee composed of:
Nona Tsotsoria, President,
Síofra O’Leary,
Lәtif Hüseynov, judges,
and Anne-Marie Dougin, Acting Deputy Section Registrar,
Having regard to the above applications lodged on 30 August 2006,
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 is set out in the appendix. They were represented by Mr D.A. Gudyma and Ms S.V. Khyliuk, lawyers practising in Lviv.
2. The Ukrainian Government (“the Government”) were represented by their Agents, most recently Mr I. Lishchyna.
A. The circumstances of the case
3. 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 persons, including the applicants’ relatives, were killed.
4. On the same date criminal proceedings were instituted to establish the cause of the crash.
5. On various dates the applicants were admitted in these proceedings as injured parties and civil claimants.
6. 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 land crew (hereinafter “the performers’ case”).
7. 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.
8. On the same date the court also ruled on the civil claims lodged by the applicants, awarding them various amounts in compensation to be paid by the Ministry of Defence (see details in the appended table below).
9. The applicants appealed, seeking, in particular, an increase in the compensation payments.
10. On 2 March 2006 the Military Panel of the Supreme Court of Ukraine rejected the applicants’ and their relatives’ appeals.
11. Between June 2006 and February 2007 all the judgment awards due to the applicants were paid.
12. A number of applicants lodged further civil claims within the framework of the “organisers’ case”, still on-going at the material time.
13. On 11 June 2008 the Central Region Military Court of Appeal examined “the organisers’ case” and acquitted the four officers charged in this set of proceedings.
14. On 22 October 2008 this decision was upheld 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.
15. On various dates most of the applicants also obtained various payments in State and municipal aid from the funds designated to support the Sknyliv accident victims. They also obtained further payments from charitable funds managed by the authorities (for more details concerning the accident, the ensuing investigation and State aid to the victims see Mikhno v. Ukraine, no. 32514/12, §§ 6-8, 12-58 and 67-71, 1 September 2016 and Svitlana Atamanyuk and Others v. Ukraine, nos. 36314/06 and 3 others, §§ 6-64 and 71-75, 1 September 2016).
16. In many cases, compensatory payments were also made to other relatives of the applicants, not themselves applicants in the present case.
B. Relevant domestic law and International materials
17. The relevant provisions of domestic law are cited in the Court’s judgment in the case of Mikhno (cited above, §§ 76-105).
COMPLAINTS
18. The applicants complained under Article 2 of the Convention that the State authorities had failed to take reasonable measures to protect their relatives’ lives during the air show; that they had been directly responsible for the deaths of their relatives; and that the investigation into the accident had been ineffective.
19. They 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 and unfair. In particular, the judicial military authorities had been neither independent, nor impartial.
20. The applicants next complained under Article 13 of the Convention about lack of any means to speed up the consideration of their compensation claims.
21. Finally, the applicants also invoked Articles 3 and 14 of the Convention and Article 1 of Protocol no. 1 to the facts of the present case. They also complained under these provisions that the State authorities had refused to conclude a friendly settlement agreement with them; that the compensation awarded to them had been calculated arbitrarily and had been much lower than that paid by Ukraine for the deaths of the Russian and Israeli nationals in an airplane crash of 4 October 2001 pursuant to the friendly settlement agreements concluded in that case between the Governments of Russia, Ukraine, and Israel.
THE LAW
A. Joinder of the applications
22. The applications should be joined pursuant to Rule 42 § 1 of the Rules of Court given their similar factual and legal background.
B. Alleged violations of Article 2 of the Convention
23. The applicants complained that the State authorities had failed to put in place necessary legislative, administrative and practical safeguards to protect the lives of their relatives during the air show; that they had been directly responsible for the airplane crash resulting in their relatives’ deaths and that the investigation of the circumstances of the crash had not been either 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. 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.”
1. Submissions by the parties
24. The Government submitted 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 criminal investigation of the circumstances of the accident had been prompt and effective. In view of the above, the Government argued that the applicants’ complaint under the substantive limb of Article 2 of the Convention should be rejected as incompatible ratione personae with the provisions of the Convention on account of the fact that the applicants had lost victim status within the meaning of Article 34 of the Convention. Their complaint under the procedural limb should, in turn, be rejected as manifestly ill-founded.
25. The applicants disagreed referring to the complaints outlined in paragraphs 18 and 23 above.
2. The Court’s assessment
(a) Substantive limb of Article 2 of the Convention
26. The Court notes that arguments similar to those cited in paragraphs 24-25 above were presented by the parties in the aforementioned cases of Mikhno (cited above, §§ 110-115 and 122-123) and Svitlana Atamanyuk and Others (cited above, §§ 114-118 and 127-128). In those cases the Court allowed the Government’s objection as to the loss of victim status, having decided that the matter had been properly addressed at the domestic level. Notably, the Court established that the breach of the applicants’ relatives right to life had been acknowledged and redressed at the domestic level, as the State authorities had conducted an official investigation of the circumstances of the accident, which complied with the effectiveness requirement for the purposes of the Convention. In addition, the applicants had been provided with fair and prompt compensatory redress (see Mikhno, cited above, §§ 116-120, 130 and 151-154 and Svitlana Atamanyuk and Others, cited above, §§ 119-125, 135 and 155-158).
27. The Court considers that the findings in the aforementioned Mikhno and Svitlana Atamanyuk and Others judgments concerning the effectiveness of the investigation and the adequacy of the compensation received are equally pertinent in the present case. It further observes that compensatory redress disbursed by the State authorities to the families of the diseased applicants’ relatives was made available promptly and its global amount was comparable to the just satisfaction as provided for under Article 41 of the Convention.
28. It follows that the applicants’ complaints under the substantive limb of Article 2 of the Convention concerning the deaths of their relatives are incompatible ratione personae with the provisions of the Convention as the applicants lost their status as victims within the meaning of Article 34 of the Convention.
29. These complaints must therefore be rejected as inadmissible in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
(b) Procedural limb of Article 2 of the Convention
30. In light of the findings in the aforementioned Mikhno and Svitlana Atamanyuk and Others judgments (see Mikhno, cited above, §§ 151-152 and Svitlana Atamanyuk and Others, cited above, §§ 155-156) and of the particular circumstances of the present case, the Court considers that the applicants’ complaints do not raise an issue under the Convention and should be rejected as manifestly ill-founded within the meaning of Article 35 §§ 3 (a) and 4 of the Convention.
C. Alleged violations of Articles 6 and 13 of the Convention
31. 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 of the military authorities, and had acted in the interests of those entities. In addition, the proceedings had also been inordinately lengthy and the applicants had had no effective remedies allowing them to accelerate the resolution of their civil claims.
32. The applicants referred, in respect of the above complaints, to Articles 6 § 1 and 13 of the Convention, which, insofar as relevant, read 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...”
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
33. The Government contested the applicants’ submissions. In their view, the military courts had been sufficiently independent and impartial, and the length of the proceedings in issue, including the enforcement of judgments stage, was reasonable. They further argued that in view of these considerations, there was no issue under Article 13 of the Convention.
34. The applicants disagreed.
2. The Court’s assessment
35. 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 acted in those proceedings as civil claimants (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 of the Convention regarding alleged unfairness of the proceedings
36. Insofar as the applicants argue that the proceedings were unfair, 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.
37. This aspect of the applicants’ complaint 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 regarding the length of the proceedings
38. Insofar as the applicants complain 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 not necessary 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.
39. The Court notes in this respect that the criminal proceedings in question were initiated on 27 July 2002 (see paragraph 4 above). The judgment in the “performers’ case”, whereby the applicants’ civil claims were partly allowed, became final on 2 March 2006 (see paragraph 10 above) and the awards were paid to the applicants between June 2006 and February 2007 (see paragraph 11 above). Insofar as some applicants lodged additional civil claims within the framework of the “organisers’ case” disjoined from the initial criminal case, these proceedings lasted until 22 October 2008 (see paragraph 14 above).
40. The total period of the criminal proceedings, including the enforcement of judgment stage for the “performers’ case”, was six years and three months for two levels of jurisdiction, with the periods relevant for the determination of the civil claims lodged by individual applicants being shorter.
41. In the Court’s view, regard being had to 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 attract the liability of the respondent Government under the Convention (see also Svitlana Atamanyuk and Others, cited above, §§ 186-187).
42. 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 therefore manifestly ill-founded.
43. It should therefore be rejected as inadmissible in accordance with the requirements of Article 35 §§ 3 (a) and 4 of the Convention.
(c) Concerning the alleged breach of Article 13 of the Convention
44. In view of the Court’s finding in the preceding paragraph that the applicants’ complaints concerning the length of the proceedings do not raise an arguable claim under Article 6 of the Convention, the guarantees of Article 13 of the Convention 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).
45. It follows that the applicants’ complaints under Article 13 of the Convention should be rejected as inadmissible in accordance with the requirements of Article 35 §§ 3 (a) and 4 of the Convention.
D. Other complaints
46. The Court examined the applicants’ remaining complaints under Articles 3 and 14 of the Convention and Article 1 of Protocol No. 1 to the Convention (see paragraph 21 above). Having regard to all the material in its possession, and in so far as these complaints fall within the Court’s jurisdiction, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention (see also Mindrova, cited above, § 26).
47. It follows that these complaints must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Decides to join the applications;
Declares the applications inadmissible.
Done in English and notified in writing on 21 September 2017.
Anne-Marie DouginNona Tsotsoria
Acting Deputy RegistrarPresident
APPENDIX
No.
Application no.
Applicant
Date of birth
Place of residence
Immediate victim
Relationship to the applicants
Global compensation to the applicants (including court award and out-of-court payments from State funds (rounded in hryvnias)[1]
32545/12
Ganna Viktorivna
MAKAROVA
11/02/1946
Slovyansk
Oleksandr Ivanovych MAKAROV
25/01/1974
Slovyansk
Volodymyr Ivanovych
MAKAROV
son
brother
150,000
32586/12
Vasyl Mykolayovych KORENCHUK
25/11/1957
Zhovkva
Olena Vasylivna YUFYM
17/07/1980
Zhovkva
Taras Vasyliovych
KORENCHUK
son
brother
125,000
32588/12
Lyudmyla Mykhaylivna KONCHAKOVSKA
02/06/1974
Gorodok
Bronislava Yosypivna KONCHAKOVSKA
26/09/1938
Pidruddya
Sergiy Volodymyrovych KONCHAKOVSKYY
14/08/1959
Ovruch
Lyubov Volodymyrivna KRYSHCHENKO
25/02/1958
Ovruch
Volodymyr Stepanovych
KONCHAKOVSKIY
father-in-law
husband
father
father
Volodymyr Volodymyrovych
KONCHAKOVSKIY
husband
son
brother
brother
360,000
32597/12
Anastasiya Oleksandrivna KOLOMIYETS
17/03/1926
Lviv
Volodymyr Fedorovych KOLOMIYETS
05/08/1948
Lviv
Olena Volodymyrivna YATSKIY
18/04/1972
Lviv
Viktor Volodymyrovych
KOLOMIYETS
grandson
son
brother
140,000
32628/12
Volodymyr Oleksiyovych IVANOV
24/03/1951
Lviv
Nina Oleksandrivna IVANOVA
14/06/1950
Lviv
Roman Volodymyrovych
IVANOV
son
son
170,000
32894/12
Olga Ivanivna DUDCHENKO
01/02/1961
Lviv
Sergiy Petrovych
DUDCHENKO
husband
Maryana Sergiyivna
DUDCHENKO
daughter
125,000
32969/12
Viktor Volodymyrovych BUDASOV
14/04/1968
Lviv
Vitaliy Viktorovych BUDASOV
11/08/1992
Lviv
Anastasiya Mykhaylivna DOLYNNA
11/02/1949
Lviv
Roman Stepanovych DOLYNNYY
04/08/1972
Lviv
Galyna Stepanivna
BUDASOVA
wife
mother
daughter
sister
180,000
32995/12
Tetyana Anatoliyivna TYMOSHENKO
05/05/1962
Lviv
Yevgeniya Sergiyivna
YAKYMENKO
daugther
140,000
32998/12
Dmytro Vyacheslavovych VESELOV
02/11/1977
Lviv
Vyacheslav Oleksandrovych VESELOV
05/09/1950
Lviv
Tetyana Volodymyrivna VESELOVA
06/11/1954
Lviv
Nina Vyacheslavivna
VESELOVA
sister
daughter
daugther
135,000
33047/12
Andriy Yuriyovych GITAYLO
25/12/1977
Lviv
Ivan Vasylyovych TYMAN
14/07/1967
Lviv
Ganna Vasylivna TYMAN
25/01/1944
Vyshnya
Valentyna Mykolayivna GITAYLO
02/02/1957
Lviv
Yuriy Ivanovych GITAYLO
18/11/1952
Lviv
Nataliya Yuriyivna
TYMAN
sister
wife
daugther-in-law
daughter
daugther
Oleg Ivanovych
TYMAN
nephew
son
grandson
grandson
grandson
330,000
33140/12
Ivan Blazheyovych DUSHENKO
17/05/1959
Gorodok
Iryna Yaroslavivna SOLTYS
08/02/1984
Gorodok
Yaroslav Ivanovych SHYNAL
17/05/1959
Gorodok
Olena Yosypivna DUSHENKO
17/05/1959
Gorodok
Galyna Yaroslavivna GLADKA
04/05/1986
Gorodok
Ganna Vasylivna
SHYNAL
daughter
mother
wife
daughter
mother
Yaroslav Yaroslavovych
SHYNAL
grandson
brother
son
grandson
brother
435,000
33150/12
Mariya Vasylivna IVANYUK
20/08/1944
Korolivka
Oleksandra Mykhaylivna SHUMEIDA (SERBYN)
18/03/1970
Stryy
Volodymyr Markiyanovych
SERBYN
son-in-law
husband
Rostyslav Volodymyrovych
SERBYN
grandson
son
Yuriy Volodymyrovych
SERBYN
grandson
son
325,000
33168/12
Galyna Mykhaylivna PRYTULYAK
09/02/1955
Lviv
Oleksandr Alimovych PRYTULYAK
15/06/1981
Lviv
Sergiy Alimovych
PRYTULYAK
son
brother
150,000
33176/12
Yaryna Pavlivna PAVLOVYCH
18/11/1983
Lviv
Nataliya Semenivna PAVLOVYCH
24/05/1963
Lviv
Pavlo Volodymyrovych
PAVLOVYCH
father
husband
Ruslan Pavlovych
PAVLOVYCH
brother
son
205,000
33183/12
Ganna Andriyivna CHYZHO
15/05/1957
Shchyrets
Mariya Ivanivna ONYSHCHAK
15/10/1955
Semenivka
Volodymyr Mykolayovych CHYZHO
15/06/1951
Shchyrets
Oleg Bogdanovych
ONYSHCHAK
son-in-law
son
son-in-law
Yuriy Bogdanovych
ONYSHCHAK
brother
Iryna Volodymyrivna
ONYSHCHAK
daughter
daughter-in-law
daughter
Yaryna Olegivna
ONYSHCHAK
granddaughter
granddaughter
granddaughter
545,000
33194/12
Ananiy Mykhaylovych OMELCHUK
13/11/1932
Lviv
Nadiya Grygorivna OMELCHUK
09/02/1934
Lviv
Viktor Ananiyovych
OMELCHUK
son
son
Andriy Viktorovych
OMELCHUK
grandson
grandson
125,000
33208/12
Oksana Volodymyrivna MOTUZYUK
17/08/1977
Lviv
Volodymyr Ivanovych MOTUZYUK
16/02/1952
Lviv
Nataliya Yosyfivna MOTUZYUK
10/10/1954
Lviv
Bogdan Volodymyrovych
MOTUZYUK
brother
son
son
Iryna Yevgenivna
MOTUZYUK
sister-in-law
daugther-in-law
daugther-in-law
190,000
[1]. In majority of cases further payments were received by other, non-applicant, relatives of the same deceased persons. These payments are not included in the table. Likewise, payments from charitable funds managed by the authorities to assist the Sknyliv accident victims are not included in the table.
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