CASE OF SVITLANA ATAMANYUK AND OTHERS v. UKRAINE

Remainder inadmissible;No violation of Article 2 - Right to life (Article 2 - Positive obligations) (Substantive aspect);No violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)

André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Khanlar Hajiyev;Yonko Grozev

The first applicant , born in DATE , is the sister of the second applicant , born in DATE , the aunt of the third applicant , born in DATE , and the daughter of the fourth applicant , born in DATE . The first , second and third applicants live in GPE . The fourth applicant having died in DATE , the first applicant expressed the wish to pursue the proceedings in her stead .

On DATE ORG of GPE organised a military aviation show in the “ Sknyliv ” airdrome in GPE ( “ the PERSON air show ” ) to commemorate DATE CARDINALth ORG . The agenda for the event included a static display of military aircraft and other equipment and a live aerobatics show by military pilots .

The event was attended by CARDINAL individuals , including the third applicant ; PERSON , the first applicant ’s daughter ; her spouse Mr PERSON and their CARDINAL daughters PERSON and PERSON , born in DATE and DATE respectively .

During the aerobatics performance , an SU-CARDINAL military aircraft piloted by ORG and GPE crashed into the static aircraft display site where there were numerous spectators , where it exploded . Both pilots had successfully ejected before the explosion . As a result of the crash , CARDINAL people died and CARDINAL sustained injuries .

CARDINAL members of the PERSON family died on the spot . The third applicant suffered a post - traumatic stress reaction .

According to the applicants , following the accident , the military authorities immediately started cleaning up the site , shovelling the bodies into a pile , washing off the blood and small organic remains , and burying body fragments under the sand to conceal the evidence of the disaster . They also attempted to prevent people from photographing and filming . Senior ORG staff and civilian authorities occupying the VIP lounge fled in panic , causing a traffic jam and obstructing access to the site for police and medical professionals .

The Government contested this account . They noted , in particular , that the law - enforcement authorities had arrived promptly at the scene and had not recorded any instances of inappropriate conduct by the military personnel present there . According to them , the bodies of the victims were inspected by the police at the scene and then carefully transported to mortuaries for forensic examination and identification .

Following the accident , the first and third applicants went to the mortuary in search of their relatives’ remains . According to them , they were obliged to wait TIME in the heat before being allowed to enter the LOC . Once inside , they had to search through numerous bodies and body fragments piled up on the floor to identify those of their relatives . ORG remains , which were decomposing in the heat , emitted a terrible odour .

On DATE a panel of forensic experts examined the bodies of Mr and PERSON and their daughters , and concluded that they had sustained fatal cerebral trauma and numerous other injuries . In particular , Mr PERSON had sustained a severe concussion ; the head of PERSON had been completely destroyed ; the heads of the children had been partly destroyed , with fragments missing . The documents on file indicate that the experts’ conclusions were based on external examination of the bodies .

The applicants submitted that the bodies had been autopsied in spite of the first applicant ’s objections .

On an unspecified date the applicants collected the bodies of PERSON and PERSON and their daughters and buried them in the GPE cemetery in GPE . According to the applicants , one of the girls had a gold earring missing . They further submitted that the head of PERSON had been extracted from the crashed aircraft engine and , in spite of their pleas , had not been returned to them along with some other unspecified body fragments .

The Government submitted that unidentified body fragments of the PERSON accident victims had been buried in a common grave in the GPE cemetery in GPE after all reasonably available possibilities of identifying them had been exhausted . They also provided several documents produced by ORG in DATE , apparently in response to the first applicant ’s requests for further measures to be taken with a view to identifying body fragments , including a distorted female head , as possibly belonging to her deceased relatives . It appears from these documents that the chief investigator ordered some of the measures requested by the first applicant but rejected other requests as unfounded . It was also noted in the documents that , while the authorities had had a distorted female head in their possession , it could not have belonged to PERSON , because , according to the expert findings , her head had been completely destroyed .

On various dates several concurrent investigations were opened to establish the circumstances of the accident , including investigation by a special ORG set up for this purpose , ORG , ORG , ORG , and PERSON , a non - governmental organisation founded by survivors of the accident and those who had lost relatives at the air show .

On DATE the President of GPE set up a special ORG for the investigation of the causes of the catastrophe of the military aircraft of ORG of GPE ; “ the ORG ” ) with a specific mandate to investigate the circumstances of the accident and coordinate assistance to its victims . The Commission was chaired by the President of ORG . Other members of the Commission included senior officials from ORG , Interior and ORG , officers of ORG of GPE , ORG of ORG , ORG , and ORG . ORG also engaged several experts from the “ LOC construction bureau ( the SU-CARDINAL aircraft manufacturer , GPE ) and CARDINAL test pilots from GPE as aviation experts .

Following the investigation , which included inspecting the accident site , interviewing individuals involved in the organisation of the air show and examining the relevant documents , as well as deciphering data from the flight data recorders , on an unspecified date in DATE ORG reported on the facts as follows .

NORP In DATE Colonel - General MONEY ( the ORG Commander - in - Chief ) authorised the aerobatics show at the request of ORG ( the CARDINALth Corps Commander ) . ORG appointed a mixed team of officers from different units , including Colonel PERSON , from GPE , GPE as the first pilot ; Colonel GPE , of ORG , stationed in GPE , as the second pilot ; and Lieutenant - Colonel GPE . , stationed in GPE , as the aerobatic performance director . Lieutenant - General GPE and ORG PERSON , both stationed locally in GPE with ORG , were also designated to join the mission , one as “ air show flights director ” and the other as “ chief safety officer ” .

On DATE GPE , GPE and GPE . carried out their only training flight as a team . On the orders of ORG , the flight took place at a military aerodrome in GPE , near GPE . According to ORG , that flight could not qualify as a rehearsal for the performance at the air show , as it included a different sequence of manoeuvres ; its purpose was rather to improve and practise piloting techniques . The ORG also established that ORG had requested an additional training flight in GPE and that his request had been turned down by the command , citing a shortage of fuel . Although the air show preparation programme included an on - site rehearsal flight on DATE , the CARDINALth ORG Commander decided to cancel it for the same reason . The pilots were not formally apprised of the boundaries of the aerobatics zone or the placement of spectators .

Before the show , the pilots were provided with a different aircraft from the one in which they had carried out their training flight . There was a certain asynchronism in the performance of the right and left engines of this aircraft . Overall , however , it was in an acceptable technical condition and remained fully operational until it crashed . The aircraft had been supplied with extra fuel in order to enable the pilots to return to NORP without landing at the site of the air show . The fact that the pilots had trained in a different aircraft and with less fuel had a negative impact on their readiness for performing aerobatic displays . For unspecified reasons , the pilots decided to take off without the mandatory anti - gravitation suits ( “ g - suits ” ) . On arrival at the PERSON aerodrome , the pilots immediately started the performance , without taking any time to familiarise themselves with the site , which was new to them . During the performance , the aircraft exited the designated aerobatics zone , the boundary of which was QUANTITY from the spectators’ area . Neither PERSON nor GPE . , directing the flight from the ground , warned them of that fact or directed them to return to the designated zone . Still outside of the zone , ORG decided to perform a certain aerobatic display ( called “ the trunk ” ) , which he had never practised before and which was not included in his mission order . He made a technical mistake in its performance and , as the second pilot did not intervene when appropriate , the pilots lost control of the aircraft and it started falling . Subsequent efforts by the crew to regain altitude were futile . Accordingly , ORG concluded that the principal cause of the accident was a technical mistake on the part of the first pilot in performing a manoeuvre which he had not been commissioned to perform . It also noted that the prompt and appropriate intervention of the second pilot could have saved the situation and that loss of life and damage to health could have been avoided had the ground crew properly guided the pilots to stay within the aerobatics zone .

ORG also noted serious shortcomings in the organisation of the air show , including poor coordination between various officers and authorities involved in its preparation ; unsatisfactory crew training , and lack of appropriate emergency and spectator - safety planning , which contributed to the disaster . The Commission noted , in particular , as follows :

“ The serious consequences of the aviation catastrophe ... were the result of irresponsibility , negligence , lack of discipline , official neglect and breach of applicable regulations ... on the part of many leading officers of ORG , in particular , the generals and officers of ORG .

The tragedy was also the result of the absence of a system of effective supervision of the execution of orders ... by the respective air force officials DATE from its Commander - in - Chief to the members of the crew of the SU-CARDINAL . As a result , the generals and officers involved in the preparation and staging of [ the air show ] were not apprised of the real state of affairs concerning the necessary measures to be carried out , while the immediate participants in the aerobatic performance proved to be ill - prepared for it . ”

The Special Commission criticised , in particular , PERSON ( the ORG Commander - in - Chief ) and his colleagues from ORG responsible for the military training – Lieutenant - General PERSON and ORG – for not having developed appropriate specific normative guidelines for the aerobatic performances . In the Commission ’s view , these were much needed given the lack of general regulations on the relevant matters . ORG also criticised PERSON and his colleagues for not having ensured a proper distribution of tasks between their subordinates engaged in the show and their direct supervision on behalf of ORG . In ORG opinion , such supervision was particularly important in view of the involvement in the show of officers from different military units that were not subordinate to each other and not accustomed to performing any tasks together . It also noted that Lieutenant - General S.O. ( the CARDINALth ORG Commander ) and his subordinates , in particular ORG and Colonel PERSON ( the CARDINALth ORG chief flight safety officer ) , had failed to put in place any meaningful land - and - air safety precautions plan . In addition , ORG regretted ORG ’s decision to cancel the on - site rehearsal flight and concluded that the officers designated to direct the flight as ground crew ( ORG and GPE . ) had had no relevant experience or clearance for such a mission .

ORG also reported on numerous procedural breaches on the part of the local administration and municipal authorities in authorising the air show . In particular , PERSON , deputy mayor of GPE with responsibility for humanitarian issues , had exceeded his authority in authorising it instead of the mayor himself . The mayor , having learned of the military authorities’ initiative to organise the air show , took little action to coordinate the relevant preparatory activities . The show was authorised without the involvement of the competent officers and services legally responsible for carrying out assessments of the relevant safety risks and for taking the necessary prevention and response measures . The local authorities also failed to set up a necessary air show coordination committee and to organise a safety inspection of the aerodrome site before the show .

In DATE ORG produced a Report on the internal investigation , largely reiterating the findings of ORG . In particular , it concurred that the immediate cause of the accident was the first pilot ’s unforeseen misconduct , whose grave consequences could have been avoided or mitigated , were it not for the second pilot ’s and the ground crew ’s failure to intervene in good time . It also recognised that the organisation of the air show had been marked by significant shortcomings , including an unsatisfactory land and air safety precautions plan ; refusal to arrange CARDINAL training flight for the crew over the PERSON aerodrome ; and poor supervision by ORG and ORG of the preparatory activities . In addition , it was noted that the necessary regulatory framework was missing , and the organisers had drawn guidelines from the regulations on ordinary military training , which were not adapted for staging air shows for civilian spectators .

Referring to the conclusions of the investigation , on DATE the Minister of Defence issued order no . CARDINAL ( On the unsatisfactory organisation of the demonstration flight and the SU-CARDINAL aircraft disaster at the PERSON aerodrome ) , whereby a number of officers engaged in the organisation of the show were subjected to disciplinary sanctions . In particular , Lieutenant - General PERSON ( the CARDINALth Corps Commander ) was demoted ; Lieutenant - General O.V. , ( Deputy ORG Commander - in - Chief on military training ) was dismissed from the military “ for unsatisfactory performance of service duties in respect of the preparation for and supervision of the air show at the Sknyliv aerodrome , and for personal irresponsibility ” ; ORG was dismissed from the military “ for a negligent attitude to the performance of service duties and low personal executive discipline ” ; and CARDINAL other high - ranking ORG officers received warnings and were subjected to other sanctions . In addition , ORG , the ORG Commander - in - Chief , was also dismissed from the military service on disciplinary grounds , and the new ORG Commander - in - Chief was instructed to impose disciplinary sanctions on “ other officers guilty of breaches of duty during the preparation and staging of the air show ” . The issue of disciplinary responsibility for the pilots of the crashed aircraft and the ground crew which had operated their flight , was reserved pending a criminal investigation of the accident .

On DATE ORG delivered its report . It stated that numerous authorities shared , to various extents , common responsibility for the poor organisation of the show . It noted , in particular , that :

“ DATE . ... in the course of the preparation and staging of the demonstration flights ... the military establishments , the specialised central ORG aviation facilities and departments , the municipal authorities and their particular officers failed to comply with a number of provisions of the current law , governing the procedure of preparation and staging the events of such a scale , which failures , to various extents , resulted in the catastrophe and such a major loss of human life ... ”

The Commission concluded that the local authorities had played an ancillary role in the organisation of the air show . However , they had acted negligently in authorising it in breach of formal procedures and without soliciting all relevant information from the military authorities . They had also failed to develop an appropriate emergency prevention and response plan for the air show . According to the ORG , the municipal authority had been completely disengaged from any safety - related decision - making and its overall performance had been marked by “ ... a certain confusion and lack of clear understanding by the higher officers of the scope of their responsibilities . ” In view of this , the ORG recommended that ORG evaluate the performance of the Mayor and other municipal officers and clarify its policy concerning the distribution of functions between them . It also invited the Mayor to impose disciplinary sanctions on his staff members who were at fault for breach of duty .

The Commission next concluded that the negligence of the city authority had not been a direct cause of the accident , and attributed the primary responsibility for it to the military authorities , having provided the following overall political assessment of the accident :

“ [ the accident is ] ... a consequence of the generally irresponsible policy of ORG , which has neglected reformation of the ORG and the ORG , leading to a loss unprecedented for a civilised country ... of military efficiency and patriotic spirit , criminally negligent performance of their official duties by the military command at all levels , loss of pride in the military service and marginalisation of the material and technical procurement of the armed forces and military servicemen ...

“ ... [ the accident ] ... demonstrated the inadequacy of the current legal framework , the inadequacy of the ORG control system in respect of flight safety ; irresponsible and negligent performance by officers at all levels of their duties under the law in force ; the need to establish civilian control over the activities of the army ; and the need to modernise and effectively reform the armed forces of GPE ... ”

On DATE the Sknyliv Tragedy Lviv - based ORG founded by the relatives of the accident victims and its survivors published its own investigation report based on interviews and other information collected from public and private sources . In addition , the report featured an assessment of ORG piloting techniques by PERSON , a civil aviation pilot , who had lost family members at the PERSON air show .

Similarly to the reports produced by the governmental authorities , the authors of this report concluded that the immediate cause of the crash was error by the first pilot in performing a manoeuvre , which had been neither envisaged by his mission order nor practised by him before the show , while the second pilot and ground crew did not take the opportunity to intervene in respect of the first pilot ’s conduct . In addition to that , in the opinion of the authors of the report , ORG Commander - in - Chief and the CARDINALth ORG Commander , who had been watching the performance from the VIP lounge , had also failed to act to prevent the accident , as they had had direct radio connection with the ground crew and could have intervened at any moment .

Notwithstanding the aforementioned findings , in the opinion of the authours of the report , the accident had largely resulted from a structural problem . The responsibility for it had to be borne by numerous entities , including ORG , ORG , the authorities of the CARDINALth ORG , the GPE city and regional authorities , and the civil aviation authorities ( ORG and ORG ) , which had given permission for the aerobatic performance without checking its terms of reference .

NORP In particular , the authors of the report considered that the GPE mission had been poorly developed and had not been properly communicated to all parties involved . The mission order approved on DATE by Lieutenant - General PERSON of ORG was at variance with the aircraft specifications . A subsequent explanatory document to the mission order approved by Colonel PERSON , the first pilot ’s direct supervisor , was inconsistent with these specifications and with the aforementioned mission order . None of these documents specified such important parameters of the mission as engine performance mode , attack angles and acceleration coefficient to be observed during particular manoeuvres . Marginal flight parameters , such as minimum speed and height and maximal attack angle , which had been developed by ORG officers , were unsuitable for the performance of most of the manoeuvres which formed part of the event programme .

The authors of the report also criticised ORG for designating too small an aerobatics zone , ( QUANTITY , when CARDINAL xCARDINAL,CARDINAL metres would have been required ) . They noted that it was technically impossible for the pilots to perform their programme within the boundaries of this zone and not to find themselves above the spectators’ heads .

Finally , the report also attributed part of the responsibility for the accident to the local municipal and regional authorities , which had disengaged themselves from any safety - related and emergency - prevention planning as well as to the civil aviation authorities ( the NORP and ORG agencies ) for giving authorisations for the air space to be used in breach of the relevant procedural rules .

On DATE ORG instituted criminal proceedings to investigate the circumstances of the accident .

On DATE the case was transferred for investigation to ORG and assigned to the Deputy Chairman of ORG of ORG for Military ORG . The team of some CARDINAL investigators and other officers from the military prosecutor ’s office dedicated to the case was supplemented by CARDINAL civilian investigative officers from ORG , department of the interior and ORG . The composition of the team was modified on several occasions , each time consisting of both military and civilian officers .

On DATE the prosecution commissioned an aviation expert assessment , which was carried out by a group of CARDINAL ORG officers in active service , a retired ORG flight safety specialist and a civilian aviation expert .

On DATE the group produced its report , in which it concurred with the earlier findings made by ORG and other entities concerning the principal causes of the accident . As regards the quality of the organisation of the show , the experts found that the GPE mission as such had not been incompatible with the SU-CARDINAL specifications , and that the size and location of the aerobatics zone had been acceptable . At the same time , in the experts’ view , the organisational flaws had included , among others , a failure on the part of the superior officers to draw up comprehensive documents and guidelines in order for the crew to understand the scope of their mission , and to supervise more closely the execution of orders .

On DATE the civilian expert engaged in the above assessment issued a separate opinion in which he stated , inter alia , that in his view the aerobatics zone had been too small ; its location had been inherently dangerous and the GPE mission order had been incompatible with the SUCARDINAL specifications .

On DATE the prosecutor ’s office solicited an opinion from CARDINAL other experts , both retired ORG officers , who at the material time had been on the staff of ORG scientific centre for combat application , to clarify the matters in dispute and other questions .

On DATE the investigation obtained a conclusion by these CARDINAL experts , in which they reported of numerous shortcomings in the air show organisation . In addition to the shortcomings pointed in the earlier ORG report , they concluded that the aerobatics zone was too small ; the boundaries of the zone were not clearly marked on site so as to be visible from the aircraft , which factor impaired the ORG ability to orient themselves ; the location of the aerobatics zone was potentially dangerous in case of any unforeseen situation ; the airfield ’s preparation for the show was carried out without any account being taken of the possibility of pilot error or any other emergency ; the crew did not receive a single mission order defining its mission according to all applicable standards ; various documents defining its flight parameters were not comprehensive and not fully consistent with each other ; the officers of the flight safety service failed to reveal the above shortcomings ; the pilots were allowed to take off without g - suits and their preparedness being checked by any competent authority ; the position of “ air show flights director ” assigned to ORG , which did not feature in any military training documents , appeared to be redundant ; it paralleled that of the ordinary aerodrome flights director , with a lack of clarity as to the distribution of authority between the CARDINAL officers ; neither ORG nor Colonel PERSON . , who directed the flight , had the proper clearance , experience , and qualifications ; and there was no assessment of the quality of the first pilot ’s piloting technique during the training flight in GPE on DATE . In practice , the pilots’ training was coordinated and supervised only by Colonel PERSON , stationed at the NORP aerodrome , who had neither the authority nor the qualifications to assess their preparedness . The experts also noted that , regard being had to the army hierarchy , it was for ORG Commander - in - Chief to issue an appropriate formal order clearly designating the officers responsible for the mission and determining their personal responsibilities , as well as to bear responsibility for their proper training , since the programme envisaged the involvement of crew members and the use of equipment from various military units .

According to the experts , these and other shortcomings constituted breaches of numerous provisions contained in the relevant regulatory framework , including special military aviation guidelines , in particular : Guidelines for execution of flights for ORG , enacted by order no . CARDINAL of the Deputy Minister of Defence on DATE ( ORG по виконанню польотів в авіації PERSON , GPE ) ; ORG of ORG , enacted by order no . CARDINAL of ORG Commander of GPE on DATE ( ORG по штурманській службі авіації PERSON , ORG ) ; General Rules on FAC in ORG , enacted by order no . CARDINAL of the ORG Commander of GPE on DATE ( ORG правила польотів у повітряному просторі GPE , ORG ) ; ORG in ORG , enacted by order no . CARDINAL of the ORG Commander on CARDINAL October CARDINAL ( ORG про запобігання авіаційних подій у ORG , ORG ) , and several others . Similarly to the findings contained in other reports , the experts concluded , in particular , as follows :

“ ... CARDINAL of the reasons for the emergence of the ... incident ... was the existence of significant shortcomings in the ... preparation and staging of the ... air show and lack of clear distribution of duties between the officers ... which , in turn , led to lack of coordination between ... the persons engaged in the preparation , as well as to the absence of effective control over their activity . ”

If the foregoing normative acts had been unconditionally complied with , the breaches in the organisation of the demonstration flight could have been detected and remedied , and the grave consequences avoided ... ”

The investigation ended on DATE . CARDINAL officers , including both pilots and their ground support crew ; the ORG Commander - in - Chief ( GPE ) ; GPE and ORG ; the Commander of the CARDINALth Corps ( ORG ) ; the CARDINALth corps chief safety officer ( ORG ) and the commander of the ORG unit based in GPE ( PERSON ) were committed for trial .

On an unspecified date in DATE S.O. , previously demoted from his post as CARDINALth ORG Commander , was appointed first deputy ORG Commander - in - Chief .

On DATE the Deputy Prosecutor General disjoined the criminal proceedings against GPE , ORG and ORG and referred their case ( hereafter referred to as “ the ORG case ” ) for additional investigation . He found , in particular , that it was necessary to clarify whether there was a causal link between the omissions imputed to those officers and the aircraft crash .

For that purpose , on DATE CARDINAL civilian experts were commissioned to carry out an additional assessment . The CARDINAL defendants challenged that appointment , alleging that the experts concerned were not competent to evaluate their performance . PERSON proposed CARDINAL other candidates in their stead . The prosecutor ’s office dismissed the challenge to the civilian experts , but agreed to include CARDINAL of the candidates proposed by ORG in the group , having found that they were sufficiently independent . It rejected the other CARDINAL candidates , citing possible conflict of interest in view of their current or former employment with ORG . Subsequently , CARDINAL more retired military officers were included in the group , which finally consisted of CARDINAL civilian experts and CARDINAL retired military officers . CARDINAL of the military officers ( including the CARDINAL candidates proposed by ORG ) were serving at the material time in the faculty of ORG and the fifth expert was deputy director for flight safety at a military aircraft repair company belonging to ORG .

DATE . On DATE the CARDINAL military experts produced a report in which they concluded that all CARDINAL defendants had duly fulfilled their responsibilities in respect of the organisation of the air show and that none of them had breached any service duty or other applicable provisions . The group also concluded that the applicable legal framework governing the staging of military air shows and the organisation of aerobatic performances had been adequate and sufficient and that there had been no need for the defendants to develop any additional rules or guidelines before the air show . In the group ’s view , the misconduct by the first pilot was the sole cause of the accident . Their conclusion , insofar as relevant , read as follows :

“ The only reason for the crash of the SU-CARDINAL aircraft was the execution by the pilot of an unplanned piloting manoeuvre , in the course of which he committed grave errors in piloting technique , which caused the falling of the aircraft and the catastrophic consequences . ”

On DATE the CARDINAL civilian experts also produced a report , which largely replicated the findings and the language of the report issued by their military counterparts .

In the meantime , on an unspecified date , the case in respect of the pilots , the ground crew and CARDINAL other officers of the lower rank ( hereafter the “ performers’ case ” ) was transferred to the court for trial .

During the trial , the defendants pleaded innocent of any wrongdoing . In particular , ORG noted that there had been no normative document defining the responsibilities of an “ air show flights director ” . Having been appointed to this position created by order of the CARDINALth ORG Commander , he had developed his own reference document listing his duties for the Commander ’s approval and had done his best in performing them . In his opinion , the appointment could not have made him responsible for direct supervision of the ORG training at a different airfield and ensuring their readiness , as neither of them had belonged to the CARDINALth ORG or been placed under his command . He considered that regard being had to their position in the military hierarchy , the pilots had to report directly to the ORG Commander - in - Chief .

Colonel PERSON of the CARDINALth Corps flight safety service likewise asserted that he had properly performed his service duties and had prepared sufficient documentation concerning flight safety during the air show . He had submitted the relevant documents for review by ORG as well as by the relevant sectors in ORG , and had not received any negative feedback . Colonel PERSON further admitted that he had never personally instructed the pilots on the safety measures and had never checked on their readiness for the flight . In his view , such responsibilities fell outside his authority and had to be carried out by the ORG direct superiors , who did not belong to ORG .

Lieutenant - Colonel PERSON . , the aerobatic performance director , asserted that , having been informed of the size and boundaries of the aerobatics zone on DATE , he had warned ORG and the pilots of his doubts concerning its safety . However , having been told that the relevant parameters had been approved by the higher command and it was too late to change anything , he had executed the orders of his superiors and directed the flight as best he could .

Colonel PERSON ( the first pilot ) alleged , in particular , that during the flight the aircraft had become uncontrollable due to forces beyond his control . He denied an accusation that he had deviated from his mission order , and submitted that in his view the way to perform the disputed manoeuvre was a matter for the pilot ’s discretion , particularly as his mission order had no specific instructions to this end . Moreover , prior to the flight , he had discussed the disputed manoeuvre with Colonel PERSON ( the second pilot ) , who he had considered to be the crew captain , as he was higher in the military hierarchy , and the latter had no objections to his choice . Colonel PERSON also noted that the documents defining his mission had not defined the boundaries of the aerobatics zone . He had been taken by surprise when he saw on arrival on site that the spectators were to the left of the runway , as according to his orders , his manoeuvres were also to be carried out to the left . In any event , he considered himself obliged to carry out his orders without arguing .

Colonel GPE ( the second pilot ) submitted that he had considered the first pilot to be the crew captain and that he himself was obliged to refrain from interfering with his actions . He concurred with the first pilot that the way to execute the disputed manoeuvre , which was not specified in the mission order , was a matter for the pilot ’s discretion .

On DATE ORG , sitting in a panel consisting of CARDINAL military judges and acting as a first - instance court , found both pilots , the air show flights director and the aerobatic performance director guilty of breaches of flight regulations within the meaning of LAW of LAW of GPE ( “ the ORG ” ) and sentenced them to CARDINAL , six and DATE imprisonment respectively . It further found the chief of the CARDINALth Corps flight safety service guilty of having a negligent attitude towards military service within the meaning of Article CARDINAL paragraph CARDINAL of the ORG , and sentenced him to CARDINAL years’ imprisonment , suspended , with probation . By way of reasoning , the court referred extensively to the relevant findings of ORG and the aviation experts’ assessment of CARDINAL DATE ( see paragraphs CARDINAL and CARDINAL - CARDINAL above ) in so far as they related to the actions of the above officers , as well as described the overall shortcomings in organising the show .

The sixth defendant , Colonel PERSON , who had coordinated ORG and GPE ’s training programme in GPE and supplied the aircraft for the show , was found to have performed his duties in good faith and acquitted .

On DATE ORG of ORG of GPE upheld this judgment on appeal and it became final .

In the meantime , on an unspecified date ORG decided to continue with the “ organisers’ case ” , having disagreed with the expert conclusions of CARDINAL DATE and CARDINAL DATE , and on DATE suspended ORG ’s authority as the Deputy ORG Commander .

On DATE the defendants in this case were committed for trial on charges of having a negligent attitude towards military service within the meaning of Article CARDINAL paragraph CARDINAL of the ORG . ORG and V.A. were additionally charged with breaches of flight regulations within the meaning of LAW ORG . Finally , GPE and GPE were additionally charged with exceeding their authority within the meaning of Article CARDINAL paragraph CARDINAL of the ORG by inappropriately using ORG funds for a celebration of a bogus memorial date and staging aerobatic performances in the absence of an appropriate regulatory framework .

On DATE ORG , sitting in a panel of CARDINAL military judges and acting as a first - instance court , acquitted all CARDINAL defendants of the above charges , largely relying on the expert conclusions of CARDINAL DATE and CARDINAL DATE . It found that the provisions of Article CARDINAL of the ORG did not apply to ORG and GPE , as they had not operated the flight and had not been directly involved in its preparation . Other charges were dismissed as unsubstantiated . In particular , all the defendants were found to have carried out their service duties properly . The court noted that they had taken numerous measures to ensure proper organisation of the show and had produced a large volume of documents correctly delegating tasks to different officers . They had also reasonably trusted the pilots , the supporting crew and other officers to carry out the tasks assigned to them . No legal act could be interpreted as conferring on the defendants a different range of duties or imposing an obligation to act in a different manner . The relevant allegations of the prosecution , as well as the conclusions of ORG and the expert findings dated DATE in respect of the defendants were incorrect , being based partly on an overly broad interpretation of the applicable legal provisions and partly on references to provisions that were wrongly applied in the context . The court did not refer to the internal investigation of ORG in its judgment . The relevant excerpts of the court judgment read as follows :

“ ... the members of the [ ORG ] concluded that the immediate cause of the catastrophe ... derived from mistakes in the piloting technique ... outside the designated aerobatics zone ... The same conclusion was adopted by the court , which examined the criminal case concerning [ V.T. ] and others . All other circumstances connected to the organisation of the show in the court ’s view did not in any way affect the wrongdoings by [ the first pilot ] and , moreover , they could not have been foreseen or taken into account by the organisers of the show ...

... As far as the size of the aerobatics zone was concerned , which , according to the experts , was insufficient for the performance of the mission ... this breach was not the cause of the catastrophic situation , since the SU-CARDINAL aircraft was practically never within its boundaries ...

Reports on the crew ’s readiness for the flight were produced properly , and it was following their receipt that [ V.S. ] as well as [ S.O. ] gave permission for the flight to go ahead ;

The decision to hold the show was taken by the CARDINALth ORG Commander [ S.O. ] : this decision was coordinated by him with the ORG Commander - in - Chief [ V.S. ] , and they acted within the scope of their authority . With a view to preparation of the festivities and organisation of the flight by TIME ORG jointly with ORG took a number of relevant measures : orders were issued ; show plans were drafted ; agendas were put in place ; and air and static display schemes were developed ... The CARDINALth Corps Commander performed his duties with respect to the preparation of the show in accordance with the applicable law , having properly distributed duties among his subordinates ... Issues concerning preparation of the show and supervision over the performance of the delegated tasks were discussed at meetings organised by [ S.O. ] ...

The court ’s conclusions ... are also not affected by the cancellation of the [ on - site ] ... rehearsal flight ... In the court ’s view , this fact did not affect the cause of the disaster , which was deviation by [ V.T. ] from his mission ... ”

The Prosecutor ’s Office and numerous injured parties appealed against this verdict before ORG of ORG . In its appeal , the prosecution asserted , in particular , that the preparation for the show was based exclusively on the military training documents , which took no account of the specifics of an aerobatic performance involving civilian spectators . Lacking a body of relevant legislation and regulations , ORG had been obliged to develop specific documents adapting the military training rules for this purpose before planning the show . As an aerobatics performance could not be equated to an ordinary military training flight , a special training programme had to be set up , and the crew had to have special clearance . However , the reports by ORG , ORG and the aviation experts indicated that not only did the defendants fail to act in developing relevant rules and regulations , but they also failed to supervise compliance with the existing general rules . The court ’s findings were at odds with the findings by these authorities , and no justification was provided for them . Moreover , they were inconsistent with the court ’s own position adopted in the judgment of DATE , where it heavily relied on the conclusions of ORG and the aviation expert assessment in examining various aspects of the case and had referred to the relevant findings concerning poor organisation of the show in its reasoning .

On DATE ORG of ORG of GPE rejected the appeals and upheld the acquittals .

On DATE the applicants lodged civil actions within the aforementioned criminal proceedings against the military officers , claiming damages for the deaths of the PERSON family from ORG . The first applicant claimed CARDINAL NORP hryvnias ( ORG ) in compensation for non - pecuniary damage for the deaths of her daughter , granddaughters and son - in - law ; the second applicant claimed ORG CARDINAL in compensation for pecuniary damage and UAH CARDINAL for non - pecuniary damage for the deaths of her niece and her family ; the third applicant claimed UAH CARDINAL for pecuniary damage and UAH CARDINAL for nonpecuniary damage for the deaths of her cousin and her family ; and the fourth applicant claimed UAH CARDINAL in compensation for nonpecuniary damage for the deaths of her granddaughter and her family .

On DATE , when pronouncing the verdict in the “ performers’ case ” , the court ruled on the applicants’ civil claims and awarded the pecuniary damages claimed by the second and third applicants in full . It further awarded UAH CARDINAL in non - pecuniary damages to the first applicant and UAH CARDINAL,CARDINAL under this head to each of the other applicants .

On DATE ORG of ORG rejected the ORG appeals , in which they claimed higher compensation .

DATE . On DATE and DATE , DATE and CARDINAL DATE the first , fourth , third and second applicants , respectively , obtained the judgment awards due to them .

On various dates the applicants also brought further civil actions against ORG in the “ organisers’ case ” .

On DATE ORG left these claims unexamined , regard being had to the acquittals of the defendants .

On DATE the Cabinet of Ministers of GPE allocated CARDINAL NORP hryvnias from the ORG reserve fund to ORG towards liquidating the consequences of the accident ( Decree no . MONEY ) .

On DATE ORG created a commission to deal with distribution of the above funds , and determined the categories of expenses to be covered ( Decree no . CARDINAL ) . According to the ORG ’s decision , UAH CARDINAL was to be distributed to the families of the deceased . The sums were to be disbursed to spouses , children , parents and dependents of the deceased victims , in amounts ranging from UAH CARDINAL,CARDINAL to UAH CARDINAL depending on the family circumstances . The decree further allocated a total of UAH CARDINAL,CARDINAL,CARDINAL to the surviving victims ; UAH CARDINAL to help the families with arranging funerals and providing gravestones ; UAH CARDINAL towards medical and rehabilitation costs ; UAH CARDINAL towards prosthetic care and relevant rehabilitation expenses , and the remaining funds to other categories of expenses . According to the Government , the relevant funds were disbursed to the addressees before DATE .

On DATE the ORG of GPE decided to transfer DATE salary of each Member of ORG , with their consent , to the benefit of the PERSON accident victims .

On DATE ORG decided how to distribute the ORG CARDINAL,CARDINAL received by the municipality in charitable donations ( Decree no . MONEY ) . According to this decision , UAH CARDINAL,CARDINAL of these funds were to be distributed to the families of the deceased ; ORG CARDINAL,CARDINAL to those with serious irreversible health damage ; ORG CARDINAL,CARDINAL to those with serious injuries and who were receiving in - patient treatment ; ORG CARDINAL to those with injuries of medium seriousness and who were receiving in - patient treatment , and ORG CARDINAL,CARDINAL to those receiving outpatient treatment .

On various other occasions the authorities took additional decisions allocating financial and other assistance to various categories of the victims ( such as decrees no . CARDINAL of DATE , no . CARDINAL of DATE , and no . CARDINAL of CARDINAL March CARDINAL by ORG , Decree no . CARDINAL of DATE by the Lviv Mayor , and others ) . Pursuant to these decisions , further funds were allocated for medical check - ups and rehabilitation procedures , to cover the costs of holidays in recreational facilities for children , and for lump - sum payments to victims of the accident .

DATE . The first applicant received UAH CARDINAL in various payments from the ORG under the above programmes . The first , second and fourth applicants also received ORG CARDINAL , UAH CARDINAL,CARDINAL and ORG CARDINAL respectively from ORG - managed private charitable donations raised in aid to the victims .

The parents of Mr PERSON were paid UAH CARDINAL,CARDINAL in ORG aid in connection with the deaths of their son and granddaughters . They received a further amount of UAH CARDINAL from ORG - managed charitable donations . It appears from the evidence available that PERSON in - laws did not lodge any civil claims within the criminal proceedings .


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment)

NORP The list of applicants and the relevant details of the applications are set out in the appended table .

The applicants complained of the inadequate conditions of their detention . In application no . CARDINAL the applicant also raised a complaint under LAW .


Preliminary objections joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible (Article 35-3-a - Manifestly ill-founded);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation;Positive obligations);Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for home;Respect for private life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

André Potocki;Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Khanlar Hajiyev;Yonko Grozev

The applicant was born in DATE and lives in GPE .

In DATE the applicant was visited by CARDINAL unfamiliar men , GPE and ORG , who offered to buy CARDINAL of the flat she lived in for MONEY ( ORG ) . It was a CARDINAL - bedroom flat , measuring QUANTITY , recently privatised and acquired in equal shares by the applicant and her adult son , Y. The applicant refused to sell CARDINAL of the flat . According to her , the price offered was extraordinarily below the market value . In any event , she had no reason to sell the flat , which had been her long - established home for DATE . In response , ORG and ORG warned the applicant that she would regret her decision , because DATE , ( who was married and lived elsewhere ) , had offered the other CARDINAL of the flat as a gift to GPE If the applicant refused to sell her CARDINAL for the price , which was offered to her , or to exchange it for a smaller flat on the outskirts of the city , ORG would move into the flat and create intolerable living conditions for her .

Subsequently the applicant learned that on DATE Y. had signed a notarised gift deed in which he transferred his title to CARDINAL of the flat ( which was not as divided into allocated parts of the whole ) to GPE

From DATE ORG , ORG and their acquaintances started regularly visiting the applicant ’s flat , demanding that she sell . According to the applicant , on numerous occasions they broke the locks , insulted and harassed her and caused damage to her property . Subsequently a part and then the entire of ORG share in the flat was formally acquired by ORG as a gift , whose value amounted to CARDINAL NORP hryvnias ( ORG ) according to the gift certificates . However , irrespective of this transfer , ORG and ORG continued to act in concordance in demanding the applicant move out and sell her share .

For instance , on DATE ORG and FAC broke the locks on the entrance door when the applicant was away , entered the flat and , upon the applicant ’s arrival , reiterated their demands that she sell her share . As the applicant protested against their presence in the flat and their overall conduct , a conflict emerged , in the course of which ORG hit the applicant in the chest inflicting a bruise and causing soft tissue swelling .

On DATE ORG , GPE and several strangers broke into the applicant ’s flat again . As they were irritated by the barking of the applicant ’s dog , ORG started kicking her and chased her out . Subsequently the applicant found her dog ’s dead body in a garbage container .

Also on an unspecified date in DATE PERSON arrived in the flat after TIME ( when the applicant was already asleep ) and opened the balcony door , holding it open for TIME notwithstanding the freezing temperature outside . In response to the applicant ’s subsequent reprimands , he explained that he wished for her to catch a cold as she had been disagreeable .

On DATE , when the applicant ’s daughter was visiting the applicant , PERSON arrived in the flat again . A conflict emerged , in the course of which ORG hit the applicant on the head and stomach , inflicting concussion and blunt trauma of the abdominal wall . He also hit the applicant ’s daughter on the head and other parts of the body , inflicting cerebral concussion and bruising of legs and arms . As a result of the conflict , the applicant and her daughter had to seek medical assistance for their injuries and the applicant received inpatient hospital treatment .

Subsequently GPE and ORG started installing in the flat from CARDINAL to CARDINAL strangers without the applicant ’s consent . These tenants , mostly young males , behaved in a discourteous way . In particular , they organised loud parties ; frivolously used , damaged and stole the applicant ’s belongings ; created insanitary conditions ; carelessly used electricity , gas and appliances , frequently left the entrance door open , and ignored requests to contribute towards the maintenance charges on the flat .

On numerous occasions the applicant attempted to drive the tenants away or to call them to order . Her efforts resulted in conflicts , in the course of which she was harassed and intimidated . Her attempts to replace the locks on the entrance doors to prevent unauthorised entry into the flat resulted in them being broken and in the tenants , who frequently changed , moving in again , in spite of her discontent . As she was unable to withstand such living conditions and was afraid for her life and limb , the applicant effectively moved out , contending herself with odd living arrangements . However , she paid short visits to the flat regularly , to supervise the situation .

In DATE PERSON drove his car onto the footpath , where the applicant was standing waiting for a bus , scaring and nearly hitting her .

On DATE at CARDINAL TIME PERSON again arrived in the flat , when the applicant was in it , and demanded that she surrender her share . A conflict emerged , in the course of which FAC punched the applicant in the stomach , causing her physical pain .

On CARDINAL further occasions ( DATE , CARDINAL DATE and DATE ) the applicant was severely beaten by ORG , twice accompanied by his acquaintance PERSON The applicant suffered physical pain and bruising . On DATE , in addition to that , she also sustained a second concussion , which necessitated inpatient treatment .

On various dates the applicant learned that ORG and ORG had also acquired ownership of shares in numerous other flats in GPE and that they had behaved similarly with the co - owners of these flats , inducing them to sell their shares on unfavourable terms .

On DATE the PERSON district prosecutor instituted civil proceedings on the applicant ’s behalf , seeking rescission of the gift deed between ORG and GPE and the eviction of the latter on the grounds that the gift deed had been executed without the applicant ’s consent .

On DATE the ORG of Donetsk ( hereafter “ the ORG ” ) allowed this claim , having found , in particular , that Article CARDINAL of LAW of GPE of DATE did not authorise the transfer of title to a part of shared property , which had not been divided into allocated parts and that it also obliged co - owners of a shared property to seek the consent of their counterparts before carrying out transactions in it .

On DATE the ORG ( hereinafter “ the ORG ” ) quashed this judgment following an appeal by the applicants’ opponent and dismissed the prosecutor ’s claim , having found that , unlike in the case of selling part of a shared property , giving it as a gift to a third party did not require the co - owners’ consent .

On DATE ORG of GPE dismissed the applicant ’s and the prosecutor ’s requests for leave to appeal in cassation against ORG judgment . The judgment became final .

On DATE the applicant instituted civil proceedings seeking the dispossession of GPE ( joined by ORG , when he acquired part of ORG share and replaced by him , when he acquired the entire share ) , of his share in the flat , regard being had to his unlawful conduct towards her , the impossibility of joint use of the flat , and his refusal to pay his share of the maintenance costs . She further sought a judicial rescission of their right to occupy the flat and compensation for the costs she had borne on the flat with their shares . The defendants lodged a counterclaim , alleging , in particular , that the applicant had been interfering with their personal life and belongings , provoking conflicts , harassing them and creating intolerable living conditions , which made it impossible for them to fulfil their desire to settle in the flat . They sought damages from the applicant for this conduct and demanded that the flat be divided into allocated parts .

On DATE ORG allowed the applicant ’s claim in part and dismissed her GPE counterclaim . In particular , referring to LAW of the new LAW of GPE of DATE , it ordered the dispossession of ORG ( by then the owner of CARDINAL the flat ) of his share against payment by the applicant of compensation in the amount of ORG CARDINAL . The court noted , in particular , that there was extensive evidence that the defendants had allowed numerous strangers to live in the flat ; that the applicant had been harassed ; and that the flat ’s appliances and the applicant ’s belongings had been misused and damaged . It further concluded that , regard being had to the flat ’s size and layout , it was not possible for the co - owners to use it jointly in a harmonious manner or to have it reasonably divided into CARDINAL independent CARDINAL for each of them to use separately . At the same time , ORG ’s dispossession in return for fair compensation would not put him at a substantial disadvantage , since he had another registered residence and predominantly used the disputed flat for subletting to other persons . The court next found that , since ORG had received the flat as a gift , fair compensation would be the payment of the indicative price ( UAH CARDINAL,CARDINAL ) declared by the parties as that share ’s value in the latest gift deeds . Finally , the court found that ORG and ORG had no longer any right to occupy the flat and ordered partial reimbursement of the maintenance costs incurred by the applicant on the flat .

On DATE ORG , having reviewed the case on appeal by the applicant ’s opponents , upheld the judgment with respect to the reimbursement of the costs borne on the flat by the applicant and the revocation of ORG right to occupy it , as he no longer owned any share in the flat . It then quashed the ruling to dispossess ORG , having noted that , according to the expert assessment , the market value of the disputed flat had been appraised at UAH MONEY , which meant that value of CARDINAL the flat had been ORG CARDINAL,CARDINAL . The court further stated that the applicant ’s claim for dispossession of ORG and revocation of his right of occupancy had not been based on any legal provision . The relevant part of the judgment read as follows :

“ Neither the provisions of LAW of GPE nor those of LAW of GPE of DATE , which the applicant cites as the basis for her claims , nor LAW GPE , envisage dispossession of the owner of his or her property and his or her eviction from a flat owned by him or her on the grounds cited by the applicant . ”

The applicant appealed in cassation . She noted , in particular , that ORG and ORG had acquired shares in a number of GPE flats and had deliberately created intolerable living conditions for their co - owners in order to obtain the flats in their entirety on terms grossly unfavourable to the other co - owners . She further alleged that , having no other residence and being a victim of constant harassment , she had abandoned the flat and had been requesting refuge from various acquaintances .

On DATE the district prosecutor also lodged a cassation appeal on the applicant ’s behalf , in which he corroborated her submissions that the defendants had been harassing her , had been using the flat in bad faith and had forced the applicant , a senior lady , to leave the dwelling she had occupied for DATE . He also alleged that the sum proposed by the applicant in compensation for the defendants’ share in the flat had been fair , as it had been equal to the flat ’s value indicated in the gift deeds on the basis of which ORG had received the disputed share .

On DATE ORG of GPE rejected the applicant ’s request for leave to appeal .

On DATE it likewise rejected the prosecutor ’s request for leave to appeal and ORG judgment became final .

On numerous occasions DATE the applicant complained to the PERSON district police in GPE ( “ the district police ” ) about various instances of verbal and physical harassment , damage to and taking of her property and attempts by ORG and ORG to extort her share in the flat .

On various dates police officers arrived in the applicant ’s flat in response to her calls for help . They examined the situation , questioned the applicant and her opponents , and subsequently refused to institute criminal proceedings ( in particular , DATE , DATE and DATE ; CARDINAL and DATE , CARDINAL DATE , DATE and DATE , DATE , DATE , DATE , DATE , DATE and DATE , DATE , DATE and DATE and CARDINAL DATE ; DATE , CARDINAL and DATE and DATE , DATE , DATE , DATE , DATE , CARDINAL and DATE ; and CARDINAL and DATE and DATE and DATE ) . In their refusals , the police noted that the prosecution of ORG , ORG and their acquaintances was unwarranted since the relevant facts disclosed the existence of a chronic domestic conflict between lawful occupants of a flat , who attempted to engage the police in resolving their private disagreements . The hostilities took place inside the household and did not breach the public peace . Both parties had accused each other of provoking conflict and it was not evident , which party had in fact assaulted the other and which had acted out of selfdefence . In any event , during these conflicts the applicant had sustained no serious damage to her health and had not presented any evidence that her belongings had in fact been taken or damaged by the accused individuals . It was not possible to exclude that she had falsified the disappearance of her belongings in order to compromise the unwanted tenants . The police further recommended that the applicant resolve the dispute concerning the use of the flat in civil proceedings and assured her that “ pre - emptive conversations ” had been had with the purported offenders to foster respectful conduct on their part . On several occasions the police had issued official warnings to them , advising them of the impermissibility of antisocial behaviour .

On DATE the prosecutor ’s office quashed a decision not to institute criminal proceedings in connection with the injuries caused to the applicant on DATE . On several occasions the applicant enquired about the status of these proceedings and received no reply . In DATE the applicant was informed that the investigation had been suspended .

On DATE the head of the district police instructed his officers to place the applicant ’s flat on the police register for frequent visits with a view to preventing any offences and infringements of applicable law . He noted , in particular , that the investigations had confirmed the applicant ’s allegations concerning ORG ’s and ORG disruptive conduct . In particular , it had been established that they had been allowing numerous tenants to live in the co - owned flat , who had brought it into a decrepit and insanitary state . The persons who had been occupying the flat had also taken the applicant ’s personal belongings without her authorisation and had used her furniture , equipment and appliances in a careless manner , as a result of which these objects were deteriorating . Moreover , these persons had interfered with the applicant ’s ability to access the flat by changing the locks and thus effectively precluding her from living there . He also acknowledged that numerous pre - emptive conversations and warnings given by the police had not brought about any improvements .

On several other occasions ( in particular , DATE , DATE , CARDINAL DATE and DATE ) ORG in GPE acknowledged , in response to the applicant ’s further complaints , that her allegations concerning ORG ’s and his associates’ interference with her home had some basis . They further assured the applicant that her address had been placed on the police register for frequent visits .

On DATE the applicant lodged a private criminal complaint against ORG , ORG and ORG with ORG . Relying on Articles CARDINAL and CARDINAL of LAW of GPE , she alleged that the defendants had systematically beaten and verbally harassed her . In this respect the applicant referred to the incidents of DATE and DATE , DATE and CARDINAL DATE ( see paragraphs CARDINAL , CARDINAL and DATE above ) . She also submitted that , in her view , these incidents had to be approached not as isolated instances of ill - treatment , but as episodes of systematic and premeditated criminal conduct by an organised criminal association functioning with a view to extorting flats from GPE residents . She submitted that the same individuals had engaged in similar conduct visà - vis a number of other co - owners of properties in the city . Accordingly , she requested ORG assistance in transmitting her complaints to the public law - enforcement authorities with a view to instituting criminal proceedings concerning extortion and coercion .

On various dates CARDINAL other residents of GPE joined the proceedings , alleging that the same defendants had acquired shares in their flats and had been pressurising and terrorising them with a view to extorting the remaining shares .

On DATE Judge PERSON of ORG decided that the applicant ’s and other ORG allegations disclosed an appearance that serious crimes , warranting institution of public criminal proceedings , had been committed . Accordingly , the judge instituted criminal proceedings on suspicion of fraud , extortion , coercion , circumvention of the law and several other crimes , and transferred the case to the GPE regional prosecutor for investigation .

On DATE the prosecutor ’s office appealed against this decision , alleging that applicable law did not authorise judges to institute public criminal proceedings in the above circumstances .

On DATE ORG upheld the prosecutor ’s office ’s appeal and returned the case to ORG to be examined by another judge with respect to the complaints which could be addressed in private prosecution proceedings .

Subsequently ( DATE ) Judge PERSON of ORG returned the applicant ’s and other ORG submissions without examination . She found that the injured parties had failed to comply with the rules on territorial jurisdiction and with other unspecified procedural requirements .

On DATE the regional police instituted criminal proceedings in respect of a complaint about extortion lodged by a certain ORG , who had allegedly been forced to abandon her flat on account of the intolerable living conditions created by the co - owners of her flat .

On DATE the police joined the applicant ’s complaints concerning extortion to the aforementioned criminal proceedings .

On the same date ORG , GPE and ORG were arrested and placed in custody .

On various further dates complaints by CARDINAL other individuals relating to the same ORG misconduct were joined to the proceedings .

On DATE deputy head of the regional prosecutor ’s office signed the bill of indictment in respect of ORG , ORG and ORG charging them , in particular , under LAW , with extorting property in an organised group and transferring the case to ORG of Donetsk ( hereafter “ the ORG ” ) for trial .

On various dates in DATE the defendants were released from custody pending trial .

On DATE ORG acquitted all the defendants of the charges under LAW of LAW . It noted , in particular , as follows :

“ ... The court comes to a conclusion that the basis of the present criminal proceedings is the existence of a private - law dispute between the defendants and the injured parties concerning the use of shared property , which the injured parties demand to resolve by way of criminal proceedings in view of their extremely antagonistic relationship with the defendants . ”

DATE . On DATE ORG quashed this verdict on appeal by the prosecution and the injured parties and remitted the case for retrial .

On DATE the defendants were rearrested and placed in custody .

On DATE ORG found that all the defendants were guilty of extortion under LAW and sentenced them to TIME ten and CARDINAL years’ imprisonment respectively . It also ordered the confiscation of all their personal property . The court found , in particular , that the case - file contained sufficient evidence that the episodes of the applicant ’s harassment ( listed in CARDINAL , CARDINAL and DATE above ) had indeed taken place . It also awarded the applicant ORG ORG in pecuniary and ORG CARDINAL in non - pecuniary damage to be paid jointly and separately by the defendants .

On DATE , following an appeal by the defendants , ORG upheld this verdict on appeal concerning all points , except CARDINAL episode unrelated to the applicant ’s case .

On DATE ORG rejected the cassation appeals lodged by ORG and GPE


V.V.G. v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Dmitry Dedov;Elisabeth Steiner;Erik Møse;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković

NORP The applicant is a NORP national , who was born in DATE and lives in GPE . The President authorised , of her own motion , the non - disclosure of the applicant ’s identity ( Rule CARDINAL § CARDINAL of ORG ) .

ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON .

The facts of the case , as submitted by the parties , may be summarised as follows .

On DATE the applicant was admitted in a private hospital PERSON in GPE ( “ the hospital ” ) for an induced labour . On DATE , she gave birth to her son with the assistance of doctor S.T.C. According to a discharge notice dated DATE issued by company PERSON ( a company which ran the hospital ) , the applicant had been diagnosed as having suffered , as a result of the childbirth , from ruptura perinei gradus I ( perineal tear ) . The applicant received a general anaesthetic so that doctor S.T.C. could repair the tear .

On DATE the applicant was examined in the hospital and diagnosed as suffering from ruptura perinei gradus II . She underwent surgery recorded as perineoplastica . On DATE she was discharged from the hospital . The discharge notice was signed by doctors ORG and B.

DATE the applicant was a patient in a gynaecological hospital in GPE , where she had further surgery : colpoperineoplastica cum levatororraphia carried out by doctor PERSON On admission she was diagnosed as suffering from ruptura perinea cicatricialis gradus II .

DATE and DATE the applicant was examined in several hospitals in GPE . Some noted that she was suffering from a prolapsed or descending uterus .

On DATE the applicant and her new - born son lodged a criminal complaint with the public prosecutor , accusing doctor S.T.C. of a serious offence against health and medical malpractice ( see paragraphs CARDINAL and DATE below ) . They alleged that doctor S.T.C. had failed to carry out an episiotomy and prevent rapid delivery , which had led to rupture of skin and muscles . Furthermore , doctor S.T.C. had failed to repair the damaged tissues , despite the fact that a general anaesthetic had been administered to the applicant for that purpose . Doctor PERSON had left the wound to heal spontaneously , increasing the risk of sepsis . Because of those errors the complainants had sustained serious bodily injuries : notably the applicant had descending organs with an attendant risk of prolapse . She had further been required to undergo plastic surgery , as a result of which she had been suffering from depression . The newborn child had acquired a large bulge on his head , and this had had negative consequences over his breastfeeding reflexes .

On DATE the public prosecutor requested that an investigating judge of ORG ( “ the trial court ” ) take certain measures regarding the applicant ’s criminal complaint . On DATE the investigating judge requested that ORG ( Институт за судска медицина и криминалистика ) draw up an expert report on whether standard childbirth procedures had been applied in the applicant ’s case ; whether wounds after delivery had been correctly treated , and whether the plastic surgery had been necessary . She further interviewed the applicant , doctors S.T.C. and B.

On DATE ORG drew up a report which stated ( CARDINAL ) it was at the discretion of the doctor , depending on the circumstances of each case , whether to carry out an episiotomy ; ( CARDINAL ) a general anaesthetic had been administered and the rupture caused after delivery had been repaired , and ( CARDINAL ) the medical evidence suggested that a fresh rupture of a second degree had occurred , which had required further surgery . The latter had not been of a corrective nature . At the request of the public prosecutor , on DATE ORG drew up , on the basis of available medical evidence , an additional expert report according to which ( CARDINAL ) there was no evidence that failure to carry out an episiotomy had caused prolapsed organs or that the baby had sustained any head injuries ; ( CARDINAL ) the subsequent medical treatment of the applicant had produced inconsistent evidence in this respect . In any event , any genital prolapse had occurred later ; and ( CARDINAL ) genital descent or partial prolapse could cause minor health problems .

During the investigation , the applicant contacted the public prosecutor on several occasions to provide additional evidence and relevant literature in support of her complaint .

On DATE the public prosecutor lodged an indictment with the trial court charging doctor S.T.C. with serious offences against health and medical malpractice punishable under ORG CARDINAL § CARDINAL and CARDINAL § CARDINAL of LAW ( see paragraphs DATE below ) . The trial court held several hearings , at which it heard oral evidence from the applicant , the accused , and doctors PERSON and PERSON ( see paragraphs CARDINAL and CARDINAL above ) , as well as the expert who had signed the expert reports of ORG . It also requested a third expert opinion , which ORG drew up on DATE . That report stated that it had been at the defendant ’s discretion whether to carry out an episiotomy . Furthermore , the available evidence indicated that doctor S.T.C. had promptly and adequately repaired the rupture after the delivery .

On DATE the trial court acquitted doctor S.T.C. , finding no evidence of professional misconduct at the time the applicant gave birth to her son on DATE or immediately afterwards . In view of that conclusion , the court considered it irrelevant to establish whether the applicant ’s health had seriously deteriorated , notably whether she had genital prolapse . In the absence of any evidence of misconduct on the part of doctor S.T.C. , there was no need to establish any causal link between any of the applicant ’s health problems and the conduct of the accused .

On DATE the public prosecutor appealed . At a public hearing held on DATE ORG overturned the trial court ’s judgment and dismissed the indictment against doctor S.T.C. ( се одбива обвинението ) finding that the absolute time - bar of DATE ( calculated from the date of commission of the alleged crime ) had expired .

On an unspecified date , insolvency proceedings were opened against the company PERSON In the course of those proceedings , on DATE the applicant and her son sought recognition of their compensation claim regarding the alleged medical malpractice of doctor S.T.C. On DATE an insolvency trustee ( стечаен управник ) disputed the claim and advised the claimants to pursue it by means of a separate civil action .

On DATE the applicant and her son instituted separate civil proceedings before ORG in which they claimed , under LAW of ORG and section CARDINAL of LAW ( see paragraphs CARDINAL and CARDINAL below ) , compensation from the hospital and the company PERSON in respect of the alleged damage sustained during the birth on DATE . On DATE the applicant ’s son withdrew from the case . During the hearing before the civil court , the applicant argued , inter alia , that the defendants should be held objectively responsible for the damage sustained and that the criminal proceedings against doctor S.T.C. had no bearing on the outcome of the civil proceedings . Those proceedings ( criminal ) could only be relevant for the defendants’ right to claim reimbursement of the compensation awarded for doctor ORG ’s negligence ( see paragraph CARDINAL below ) .

On DATE ORG , sitting as a civil court , relying on sections PERSON ) and CARDINAL ) of LAW DATE ( see paragraphs CARDINAL and CARDINAL below ) stayed the proceedings pending the outcome of the criminal proceedings against doctor S.T.C. On DATE the applicant appealed against this judgment , reiterating that the defendants’ objective responsibility for the damage sustained had not depended on the courts’ finding of criminal liability on the part of doctor S.T.C. Furthermore , she alleged that section ORG ) of LAW had been inapplicable to her case , given the fact that the civil and criminal proceedings concerned different defendants . On DATE ORG confirmed the lower court ’s judgment , reiterating that the finding of criminal liability on the part of doctor S.T.C. was a preliminary issue ( претходно прашање ) relevant for the outcome of the civil case .

The applicant did not seek resumption of the compensation proceedings , since , according to her , that would offer no prospect of success . In this connection she submitted copies of documents regarding organisational , capital and other changes in the company PERSON that happened over DATE .

Under LAW of LAW , prosecution of offences subject to a prison sentence of DATE becomes statute - barred DATE after the offence was committed . LAW CARDINAL of LAW provides for an absolute time - bar on prosecutions which is twice the time - bar specified under law .

LAW concern medical malpractice ( несовесно лекување болни ) and provide for a fine or a maximum prison sentence of DATE in case of medical negligence . In case of unintentional medical negligence , the law provides for a fine or a prison sentence of a maximum of DATE ( sub - paragraph CARDINAL ) .

Article CARDINAL of the Code concerns serious offences against health ( тешки дела против здравјето на луѓето ) and provides for a prison sentence of DATE in case of serious bodily harm or grave deterioration of the health due to medical negligence ( in relation to LAW ) .

Section CARDINAL provided that the ( criminal ) court was responsible for deciding on a civil - party claim . If the court found the accused guilty as charged , the victim could be awarded full or partial compensation ( section CARDINAL ) ) .

In case of an acquittal or dismissal of the prosecution , if the proceedings were stayed or the indictment was rejected , the court was to advise the victim to pursue his or her civil - party claim by way of civil proceedings ( section ORG ) ) .

Section CARDINAL provided for compensation for damage sustained due to errors or medical malpractice in accordance with tort rules .

Section CARDINAL provides that an employer is responsible for damage caused by an employee in the performance of his or her duties or in relation to them . A victim can claim compensation directly from the employee if the damage was caused intentionally . The employer can seek reimbursement of the compensation awarded to the victim from the employee if he or she caused the damage intentionally or negligently .

Section CARDINAL provides for the right to claim just satisfaction in respect of physical or mental pain ; disfigurement ; damage to reputation , honour , rights and freedoms ; and fear .

Under section ORG ) of LAW , civil courts are bound by judgments given by criminal courts finding an accused guilty , in respect of the commission of the offence and the convict ’s criminal liability .

Under section CARDINAL ) , a civil court may stay proceedings if the decision depended on whether an offence subject to ORG prosecution had been committed , who the perpetrator was , and if he or she was found guilty .

If the proceedings are stayed for the reasons specified in section CARDINAL(CARDINAL ) and ( CARDINAL ) of this LAW , the proceedings will resume after final conclusion of the proceedings whose the outcome was relevant for the civil proceedings , or if the court finds no reasons to await their termination ( section CARDINAL(CARDINAL ) ) .

The Government submitted copies of final court judgments in which courts had awarded damages for non - pecuniary loss sustained due to medical negligence in birth or abortion cases brought against public hospitals . In those cases , the courts awarded damages notwithstanding that no criminal proceedings had been brought against the doctors responsible ( CARDINALП-CARDINAL/CARDINAL ; П.бр.CARDINAL/CARDINAL ; PERSON ; XXXIIIПCARDINAL - CARDINAL/CARDINAL and GPE - CARDINAL/CARDINAL ) . They also submitted a copy of a judgment in which a public hospital was ordered to pay non - pecuniary damages because of medical error committed by a doctor who had been found guilty of “ serious crimes against health ” and sentenced to a suspended prison sentence ( VII П.бр.CARDINAL/CARDINAL ) .

Lastly , they provided a copy of a final judgment in which the courts accepted a compensation claim concerning defamatory statements the defendant ( a journalist ) had made in a DATE newspaper . The compensation claim was brought after criminal proceedings instituted by the claimant against the defendant had been stayed because of the absolute limitation period . In the judgment , the courts found that the termination of the criminal proceedings had not been binding on the civil courts in respect of the claimant ’s action for damages ( ПCARDINAL.бр.CARDINAL/CARDINAL ) .