CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 29 août 2017

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA20670C4 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s5F897A7E { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt } .s7E985A65 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; font-size:1pt } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .s34C802BD { width:12.11pt; display:inline-block } .sDE3B003D { width:164.17pt; display:inline-block } .sC30055DD { width:0.44pt; display:inline-block } .s2F7F4368 { width:167.84pt; display:inline-block } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .s75A32C27 { border-collapse:collapse } .s3695F815 { border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .s5FFF0A7E { margin-top:0pt; margin-bottom:0pt; font-size:8pt } .sEECE831 { font-family:Arial; font-weight:bold; color:#474747 } .s7ED160F0 { text-decoration:none } .s26725EEE { font-family:Arial; font-size:5.33pt; font-weight:bold; vertical-align:super; color:#0069d6 } .sE8934522 { border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .s6B505E72 { margin:0pt; padding-left:0pt } .s901B8D2A { font-family:Arial; font-size:10pt; list-style-position:inside } .s97296F0 { width:0.81pt; font:7pt 'Times New Roman'; display:inline-block } .s5FFF0A7F { margin-top:0pt; margin-bottom:0pt; font-size:9pt } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .sAE9BC652 { height:105.7pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sF6A12959 { width:33%; height:1px; text-align:left } .sC36A6361 { font-family:Arial; color:#000000 }     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 Dougin   Nona Tsotsoria   Acting Deputy Registrar   President 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.