Communicated on 7 January 2015
FOURTH SECTION
Application no. 44154/14
R.Š.
against Latvia
lodged on 9 June 2014
STATEMENT OF FACTS
1. The applicant, Mr R.Š., is represented before the Court by Ms L. Sokolova, a lawyer practising in Riga.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Aircraft accident
3. The company, “KD.C.”, owned and chaired by D.K., provided a private pilot training course.
4. On 16 August 2008, D.K. organised a flight from Riga to Tukums, using an aircraft that had not been included in the list of aircraft designated for the pilot training course.
5. Upon D.K.’s invitation, the applicant and other six persons, including students in the pilot training course, took part in the flight.
6. At around 10 a.m. the pilot, G.V., lost control of the aircraft and it crashed. As a result, the pilot died and the passengers sustained various injuries.
7. The applicant, in particular, suffered grievous, life-threatening injuries. He lost vision in his right eye and incurred other permanent damage to his health. He underwent treatment in Latvia and abroad. He remains unable to pursue his profession in aviation.
2. Report on the accident
8. Following the accident on 16 August 2008 officials from the Aviation Accident and Incident Investigation Office (Aviācijas nelaimes gadījumu un incidentu izmeklēšanas birojs) arrived at the scene. The Office commenced an inquiry into the event.
9. According to its final report of 27 June 2009 the owner of the aircraft, the company “KD.C.”, had not had the procedure for the handover of an aircraft to a pilot. The company had not verified the pilot’s qualifications. In the present case the pilot was not qualified to fly the aircraft given to him. The primary cause of the accident was his lack of sufficient skills.
10. The report addressed to the Civil Aviation Agency (Civilās aviācijas aģentūra) set out eight recommendations concerning flight safety. The second recommendation advised that aircraft owners be obliged to establish a procedure for the handover of an aircraft to a pilot, containing control mechanisms to prevent an aircraft from being piloted by a person lacking appropriate authorisation.
3. Criminal proceedings
(a) Investigation
11. On 16 August 2008 a criminal investigation was opened into the aircraft accident.
12. The investigation revealed that the pilot, G.V., had undertaken flying the aircraft even though he lacked the requisite skills, which had caused the accident in issue. On 14 January 2010 the proceedings with regard to G.V. were terminated due to his death.
13. On 24 May 2011 the prosecution indicted D.K. for negligence in the performance of his professional duties, under section 197 of the Criminal Law (Krimināllikums), and violation of the air traffic safety or operation regulations, under section 257 of the Law. The prosecution alleged that D.K. had handed over the aircraft to G.V. knowing that the latter lacked the requisite permit and skills for its operation.
(b) Trial
(i) First-instance proceedings
14. On 22 October 2012 the Tukums District Court (Tukuma rajona tiesa) found D.K. guilty on both counts.
15. It established that D.K. had not applied any measures in order to verify G.V.’s qualification. He had given the aircraft to the pilot knowing that the latter lacked appropriate authorisation and had permitted him to carry out the flight.
16. D.K. was given a suspended prison sentence of five years. He was also ordered to pay the applicant 20,000 Latvian lati (LVL) in compensation for non-pecuniary damage.
(ii) Appeal proceedings
17. On 15 May 2013 the Zemgale Regional Court (Zemgales apgabaltiesa) quashed the above-judgment and acquitted D.K.
18. With regard to section 197 of the Criminal Law (negligence in the performance of professional duties), it deemed that neither the indictment nor the first instance judgment had showed what professional duties in particular D.K. had neglected. Also, not being an aviation specialist, he could not have been regarded as the “special subject” for the purposes of section 197 (organisation’s responsible employee).
19. Concerning section 257 of the Law (violation of air traffic safety or operation regulations) the Regional Court concluded that it had not been established precisely what regulations D.K. had violated and by what conduct in particular. Besides, section 257 required that the prohibited conduct be committed by a transport employee, which D.K. was not, as he was the aircraft owner.
(iii) Cassation proceedings
20. On 9 December 2013 the Senate of the Supreme Court (Augstākās tiesas Senāts) endorsed the appeal court’s findings.
21. The Senate reasoned that the accusation against D.K. had not specified which professional duties in particular he had neglected or which air traffic safety or operation regulations in particular he had breached. Besides, the indictment had not specified which incriminated conduct related to section 197 of the Criminal Law and which to section 257 of the Law.
22. Also, the prosecution’s reliance on section 34 of the Law on Aviation (likums „Par aviāciju”) with regard to D.K. had been misguided (see paragraph 31 below). According to that provision a pilot lacking the appropriate qualification was prohibited from performing his function. Section 34 of the Law was binding upon the pilot and not upon D.K.
23. Furthermore, Part II of Annex 6 to the Convention on International Civil Aviation, Seventh Edition, laying down the responsibility of an aircraft owner, was not applicable as it had entered into force on 18 November 2010. The indictment had not alleged its violation but instead referred to 3.1.1 of Annex 2 to the Convention which prohibited negligent or reckless operation of an aircraft endangering the life or property of others. However, in the Senate’s view that provision was general. It did not contain any concrete action with regard to the flight preparation on the part of D.K.
24. At the time of the accident there were no statutes providing a procedure for the handover of an aircraft to a pilot, designation of a person responsible for verifying pilots’ training, or checking flight planning and implementation. Only subsequent to the accident in issue, recommendations were issued to the Civil Aviation Agency on the preparation of statutes relevant to the flight safety. As of 24 April 2013 section 91 of the Law on Aviation provided that an aircraft owner or operator was not allowed to hand over an aircraft to a person lacking appropriate qualification and insurance coverage.
25. In that light, the Senate upheld the appeal court’s finding that it had not been showed that D.K. had committed the requisite actus reus.
4. Insurance
26. On 16 September 2009 the insurer of the company “KD.C.” informed the applicant that the aircraft accident fell out of the terms of insurance because the pilot had not been included in the insurance list of pilots, the number of passengers had been exceeded, and the pilot had not had a permit to operate the aircraft in issue.
5. Bankruptcy of the aircraft’s owner
27. On 8 November 2010 the Riga District Court (Rīgas rajona tiesa) declared the insolvency procedure of the company “KD.C.” as of 31 December 2008.
28. On 6 May 2011 its bankruptcy procedure was initiated.
B. Relevant domestic law
1. Criminal Law
29. Section 197 criminalises negligence by an organisation’s employee in the performance of his or her professional duties where substantial harm has been caused to the organisation or to the lawful rights and interests of another person.
30. Section 257 criminalises, inter alia, violation by a transport employee of air traffic safety or operation regulations.
2. Law on Aviation
31. Section 34 of the Law on Aviation at the material time read in the relevant part as follows:
“An aviation specialist is prohibited from performing his or her functions if he or she:
1) is unable to present a licence with an appropriate qualification mark, allowing performance of such functions, or if the specialist’s compliance with appropriate qualification has not been verified within the time-limit prescribed;
...”
32. On 21 March 2013, with effect as of 24 April 2013, the Law on Aviation was supplemented with section 91 worded in the following manner:
“An aircraft owner and operator is prohibited from handing over an aircraft to carry out flights to a person who does not have a licence of a civil aircraft flight crew member with an appropriate qualification mark and who is not insured in accordance with section 111 of this law.”
33. The annotation of amendments to the Law on Aviation, adopted on the above-date, including the new section 91, reads as follows:
“[The amendments] have been prepared ... in order to eliminate non-compliances established during the safety supervision audit by the International Civil Aviation Organization (ICAO) and during the audit by the European Organisation for the Safety of Air Navigation (EUROCONTROL) and in order to fulfil certain European Union legislation requirements.
...
[The amendments] foresee to:
...
6) supplement the Law on Aviation with statutory provisions providing responsibility of an aircraft owner and operator, and the person responsible where training or test flights are carried out;
...”
C. International instruments
34. Annex 2 to the Convention on International Civil Aviation reads as follows:
3.1.1 Negligent or reckless operation of aircraft
“An aircraft shall not be operated in a negligent or reckless manner so as to endanger life or property of others.
...”
35. Part II of Annex 6 to the Convention on International Civil Aviation reads as follows:
3.9.3 Flight crew member training programmes
“3.9.3.1 An operator shall establish and maintain a training programme that is designed to ensure that a person who receives training acquires and maintains the competency to perform assigned duties, including skills related to human performance. Ground and flight training programmes shall be established, either through internal programmes or through a training services provider, and shall include or make reference to a syllabus for those training programmes in the company operations manual. The training programme shall include training to competency for all equipment installed.
...
3.9.4 Qualifications
3.9.4.1 Flight crew member licensing
3.9.4.1.1 An operator shall:
a) ensure that each flight crew member assigned to duty holds a valid licence issued by the State of Registry, or if issued by another Contracting State, rendered valid by the State of Registry;
b) ensure that flight crew members are properly rated; and
c) be satisfied that flight crew members are competent to carry out assigned duties.
...”
COMPLAINTS
36. Referring to Articles 6 § 1 and 8 § 1 of the Convention the applicant complains that he has been unable to receive compensation for harm suffered as a result of the aircraft accident. No person has been held responsible for that harm.
37. Relying on Article 8 § 1 of the Convention the applicant complains that his right to private and family life has not been protected.
38. He argues that the State did not provide the legislative framework ensuring flight safety and that the aircraft would not be piloted by a person lacking appropriate qualification.
QUESTIONS TO THE PARTIES
1. Has the applicant exhausted the domestic remedies with regard to his complaints?
2. Having regard to the State’s positive obligations under Articles 2 and 8 of the Convention, did the State authorities take all the necessary measures to protect the applicant’s life and personal integrity (see, for example, Öneryıldız v. Turkey [GC], no. 48939/99, ECHR 2004‑XII; Ilbeyi Kemaloğlu and Meriye Kemaloğlu v. Turkey, no. 19986/06, 10 April 2012; and Kayak v. Turkey, no. 60444/08, 10 July 2012)?
3. Having regard to the procedural protection of the rights guaranteed by Articles 2 and 8 of the Convention, did the State comply with its duties to protect life and integrity by setting up an effective judicial system capable of holding accountable those responsible for the life threatening injuries of the applicant?
Was a criminal investigation required? If so, was the investigation effective, including with regard to identifying the duties of D.K.?
Did the State have appropriate regulatory measures in place at the material time with regard to the aviation activity and situation at issue?
4. The Government are requested to provide information on the relevant regulatory framework and specific safety measures in place at the material time.
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