FIFTH SECTION
DECISION
Application no. 32454/06
Tetyana Oleksiyivna MINDROVA
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 31 January 2017 as a Chamber composed of:
Angelika Nußberger, President,
Ganna Yudkivska,
André Potocki,
Yonko Grozev,
Síofra O’Leary,
Mārtiņš Mits,
Lәtif Hüseynov, judges,
and Milan Blaško, Deputy Section Registrar,
Having regard to the above application lodged on 5 August 2006,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mrs Tetyana Oleksiyivna Mindrova, is a Ukrainian national who was born in 1956 and lives in Lviv. She was represented before the Court by Mr V.M. Skakun, a lawyer practising in Kyiv.
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 Oleg Zheykov, the applicant’s nephew born in 1991 was killed in the Sknyliv air show accident (for more details concerning the accident, 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).
4. On 8 August 2003 the applicant lodged a civil claim against the Ministry of Defence seeking 75,000 hryvnias (UAH) in damages on account of her nephew’s death. This claim was joined to the criminal proceedings instituted against military officers accused of negligent conduct resulting in the accident.
5. On 6 December 2004 the applicant increased the amount of her initial claim to UAH 1,066,000. According to her, this figure represented the equivalent of the amount allocated by the Government of Ukraine per death of each Israeli and Russian national under the recently ratified interstate friendly settlement agreements concerning the crash of a TU-154M airliner on 4 October 2001. That airliner had exploded over the Black Sea while en route from Tel-Aviv, Israel, to Novosibirsk in the Russian Federation. The exact causes of that accident had not been established; however, according to the leading version of the investigation, the airliner had been accidentally shot down by a Ukrainian missile launched during military training manoeuvres.
6. During the trial, the applicant submitted that she had been Oleg Zheykov’s primary caretaker since his infancy, as his parents had not taken care of him. Although she had had no formal guardianship over Oleg, they had a very close relationship. Losing him for her was the same as losing her own son.
7. On 23 June 2005 the Central Region Military Court of Appeal found five military officers guilty of negligent conduct resulting in the accident and sentenced them to various terms of imprisonment.
8. On the same date it awarded the applicant UAH 95,000 by way of compensation for non-pecuniary damage in connection with her nephew’s death. O.Z. (Oleg Zheykov’s father) was awarded UAH 5,000 under the same head.
9. The applicant appealed in cassation against this judgment, complaining that the compensation awarded for non-pecuniary damage was grossly inadequate. She also submitted that it was discriminatory to ascribe a value to her nephew’s life that was lower than the lives of the Russian and Israeli nationals who had died in the aforementioned TU-154M airliner crash, for which the military authorities had borne a similar degree of responsibility.
10. On 2 March 2006 the Military Panel of the Supreme Court of Ukraine rejected the applicant’s appeal and upheld the trial court’s judgment.
11. During 2008 four senior military officers (the criminal proceedings in respect of whom had earlier been disjoined) were tried and acquitted by courts at two judicial instances. The applicant did not lodge any civil claims in these proceedings.
B. Relevant domestic law and international agreements
1. Constitution of Ukraine of 1996
12. Article 3 of the Constitution of Ukraine of 1996 reads as follows:
“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. Agreement between the Government of Ukraine and the Government of the State of Israel on Settlement of the Claims arising from the Air Catastrophe that took place on 4 October 2001
13. The relevant provisions of the aforementioned agreement, ratified by the Verkhovna Rada of Ukraine on 25 December 2003, read as follows:
“The Government (Cabinet of Ministers) of Ukraine ... and the Government of the State of Israel ...
Taking note that Israel has formally supported before Ukraine the claims of its citizens, victims of the Air Catastrophe ...
Taking note that Ukraine has not recognized any legal obligations or responsibility in connection with the Air Catastrophe ...
Have agreed on the following:
Article I
With a view to full and complete settlement and resolution of any and all disputes ... Ukraine shall pay ex gratia to Israel a lump sum of USD 7,590,933.34 ... for the benefit of Israeli heirs, successors and dependents ... of the victims of the Air Catastrophe ...
Article III
... after the payment of the amount of settlement ... the State of Israel, its bodies, citizens, legal entities ... shall drop and forever relieve Ukraine ... from any and all claims ...
Article VII
This Agreement does not constitute any acknowledgment on the part of Ukraine. This Agreement does not constitute a juridical precedent and shall be used only with a view to fulfil its provisions ...”
3. Agreement between the Government of Ukraine and the Government of the Russian Federation on Settlement of Claims arising from the Air Catastrophe that took place on 4 October 2001
14. This agreement, ratified by the Verkhovna Rada of Ukraine on 4 June 2004, envisaged the transfer to the Russian Government of USD 7,809,066.66 on terms similar to those stipulated in the analogous agreement with the Government of Israel.
COMPLAINTS
15. The applicant complained that her nephew had been killed as a result of negligent actions on the part of State agents and that the breach of his right to life had not been appropriately compensated. She referred to Article 2 of the Convention in this respect.
16. She also complained under Articles 6 and 14 of the Convention that the compensation awarded to her for the death of her nephew was ten times less than the compensation paid by the Government of Ukraine to the Governments of Israel and the Russian Federation per victim of the TU‑154M crash.
THE LAW
17. The applicant complained under Article 2 of the Convention that her nephew had been killed as a result of negligent actions on the part of State agents and that the compensation paid to her in connection with his death was insufficient. The Convention provision in question, insofar as relevant, reads as follows:
“1. Everyone’s right to life shall be protected by law. ...”
18. The Government submitted that the applicant had lost victim status in respect of the above complaint, since the State agents responsible for her nephew’s death had been identified, convicted and sentenced to terms of imprisonment and the applicant herself had received equitable compensatory redress. Her complaints were therefore incompatible ratione personae with the provisions of the Convention.
19. The applicant disagreed. She noted that she was Oleg Zheykov’s closest relative. In the light of the gravity of her loss, the compensation due to her in connection with his death should be increased. In the applicant’s view, the circumstances of the Sknyliv air show accident had been comparable to the circumstances of the TU-154M crash on 4 October 2001. In particular, both accidents had been the fault of the Ukrainian military authorities and had produced a similar number of casualties. The considerable difference in the amount of the award for her nephew’s life and the per capita awards for the lives of the foreign nationals who had died in the TU-154M accident constituted discrimination on the basis of nationality and demonstrated that Ukrainian citizens were not valued by their State. According to the applicant’s calculations, the UAH 95,000 awarded to her in compensation for her nephew’s death was equivalent to EUR 16,880.50, whereas the compensation paid by Ukraine per victim of the TU-154M accident under the friendly settlement agreements was equivalent to EUR 163,585.80 at the material time. She was therefore entitled to claim the difference of EUR 146,705.30 as further compensation for her nephew’s death.
20. 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, for instance, Nikolova and Velichkova v. Bulgaria, no. 7888/03, § 49, 20 December 2007).
21. Given that the applicant’s complaint in the present case concerns only the alleged inadequacy of compensatory payment, the Court will concentrate exclusively on this aspect of redress.
22. The Court notes at the outset that the amount of compensation for anguish suffered in connection with the loss of a family member is an important factor in assessing the adequacy of redress for a breach of the right to life (see, in particular, Öneryıldız v. Turkey [GC], no. 48939/99, § 152, ECHR 2004‑XII; and Nikolova and Velichkova, cited above, § 52). In fact, there is no standard by which pain and suffering, psychological distress and anguish can be measured in terms of money (see, for example, Firstov v. Russia, no. 42119/04, § 35, 20 February 2014). 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). 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).
23. The approach which the Court has followed in determining the “reasonableness” of redress 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, cited above, § 31; and Simanovičs v. Latvia, no. 55047/12, (dec.), 18 November 2014).
24. The question of whether the applicant received reparation for the damage caused – comparable to just satisfaction as provided for under Article 41 of the Convention – is also important in that sense (see, for example, Firstov, cited above, § 31). At the same time, the Court has 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 may nevertheless be considered reasonable, provided that the relevant decision of the domestic courts is consistent with the legal tradition and standard of living in the country concerned and is 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).
25. In the present case, according to the applicant’s calculations, the compensatory award received by her was equivalent to EUR 16,880. The Court notes that this amount is comparable to the amounts awarded by it in other cases against Ukraine which concerned failure of the State authorities to protect the right to life (see Gorovenky and Bugara v. Ukraine, nos. 36146/05 and 42418/05, § 55, 12 January 2012; Mosendz v. Ukraine, no. 52013/08, § 129, 17 January 2013; Arskaya v. Ukraine, no. 45076/05, § 95, 5 December 2013; and Lovyginy v. Ukraine, no. 22323/08, § 120, 23 June 2016). The Court also notes that the amount awarded to the applicant (UAH 95,000) was considerably higher than the sum awarded to Oleg Zheykov’s father (UAH 5,000); thus, the applicant’s arguments concerning her actual close family relationship with her nephew were reflected in the courts’ approach. The amount awarded was also higher than the sum initially claimed by the applicant (UAH 75,000) before the friendly settlements concerning the TU-154M crash were ratified.
26. In so far as the applicant emphasises that the amount of compensation awarded to her was considerably smaller than the amounts paid to the relatives of the victims of the TU-154M crash, the Court notes that regardless of whether or not the circumstances of the two accidents were factually similar, they are materially different from the legal point of view. The applicant’s award was determined by the domestic courts at the same time as the establishment of the criminal responsibility of the State agents for the accident under the provisions of domestic law. By contrast, the sums paid to the families of the victims of the TU-154M crash were negotiated through diplomatic channels with a view to settling the claims ex gratia – that is to say, without establishing the legal responsibility of Ukraine for the accident and with a view to precluding any subsequent claims and proceedings in this respect. Such situation was exceptional and the sums in question cannot be viewed as constituting equitable compensation or as reflecting domestic legal tradition.
27. The Court also observes that the award was made during the proceedings which finished on 2 March 2006 – that is, three years and approximately seven months after the date of the accident. There is no mention in the case file of any delays in enforcement of the award. The period of three years and seven months, during which the case was considered at two judicial instances, does not raise an issue as to the speediness of the procedure, especially, given the complexity of the case and the fact that several hundred injured parties had been involved in the proceedings.
28. In view of the foregoing, the applicant should be considered as having lost her victim status in relation to her complaint under Article 2 of the Convention. That complaint must therefore be declared inadmissible, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
29. The applicant also invoked Articles 6 and 14 of the Convention in complaining about the insufficiency of the level of compensation for the death of her nephew and the significant difference between this amount and the amounts paid to the relatives of the victims of the TU-154M crash.
30. Having considered those 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 invoked by the applicant.
31. It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 2 March 2017.
Milan BlaškoAngelika Nußberger
Deputy RegistrarPresident
Full & Egal Universal Law Academy