CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 1 septembre 2016

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s598389FB { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:14pt } .sF5E1C6CF { font-family:Arial; font-weight:bold; text-decoration:underline; color:#ff0000 } .sE208486F { font-family:Arial; color:#ff0000 } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .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 } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s79DE5897 { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; 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 } .s8EB5F569 { font-family:Arial; font-size:6.67pt; vertical-align:super } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .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 } .s3A891538 { margin-top:12pt; margin-left:41.65pt; margin-bottom:6pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s59DEA84 { margin-top:12pt; margin-left:59.5pt; margin-bottom:6pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s583D00FA { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .sBF964C40 { width:8.54pt; display:inline-block } .s282F0AA0 { width:188.76pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .sC36A6361 { font-family:Arial; color:#000000 }       FIFTH SECTION                   CASE OF SVITLANA ATAMANYUK AND OTHERS v. UKRAINE   (Applications nos. 36314/06, 36285/06, 36290/06 and 36311/06)           JUDGMENT       STRASBOURG     1 September 2016   FINAL   01/12/2016   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Svitlana Atamanyuk and others v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Angelika Nußberger, President,   Ganna Yudkivska,   Khanlar Hajiyev,   Erik Møse,   André Potocki,   Yonko Grozev,   Carlo Ranzoni, judges, and Milan Blaško, Deputy Section Registrar, Having deliberated in private on 5 July 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in four applications (nos.   36314/06, 36285/06, 36290/06 and 36311/06) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by four Ukrainian nationals, Ms   Svitlana Fokiyivna Atamanyuk, Ms Lyudmila Fokiyivna Atamanyuk, Mrs   Anna Oleksandrivna Loskutova (aka Volodina) and Ms   Ganna Vasylivna Atamanyuk (“the applicants”), on 1   September 2006. 2.     The Ukrainian Government (“the Government”) were represented, most recently, by their acting Agent, Ms   O.   Davydchuk. 3.     The applicants alleged, in particular, that the State authorities had failed to protect the lives of their relatives (the Mykhayliv family) and to conduct an effective investigation into their deaths; that they had been subjected to inhuman and degrading treatment; that the courts dealing with their claim for damages had not been independent and impartial, that the relevant proceedings had been inordinately lengthy and that they had had no effective remedy for the length complaint. 4.     On 24   September 2012 the applications were communicated to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The first applicant, born in 1953, is the sister of the second applicant, born in 1946, the aunt of the third applicant, born in 1984, and the daughter of the fourth applicant, born in 1920. The first, second and third applicants live in Lviv. The fourth applicant having died in January 2013, the first applicant expressed the wish to pursue the proceedings in her stead. A.     The crash of a military aircraft during an air show at the Sknyliv airdrome on 27 July 2002 and the death of the Mykhayliv family 6.     On 27 July 2002 the Air Force of Ukraine organised a military aviation show in the “Sknyliv” airdrome in Lviv (“the Sknyliv air show”) to commemorate the sixtieth anniversary of the 14 th Air Force Corps. The agenda for the event included a static display of military aircraft and other equipment and a live aerobatics show by military pilots. 7.     The event was attended by several thousand individuals, including the third applicant; Mrs Natalya Mykhayliv, the first applicant’s daughter; her spouse Mr Andriy Mykhayliv and their two daughters Natalya and Andriana, born in 1994 and 1998 respectively. 8.     During the aerobatics performance, an SU-27 military aircraft piloted by Colonels V.T. and Y.Y. 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, seventy-seven people died and nearly three hundred sustained injuries. 9.     Four members of the Mykhayliv family died on the spot. The third applicant suffered a post-traumatic stress reaction. 10.     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 Air Force 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. 11.     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. 12.     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 long hours in the heat before being allowed to enter the premises. Once inside, they had to search through numerous bodies and body fragments piled up on the floor to identify those of their relatives. Unrefrigerated remains, which were decomposing in the heat, emitted a terrible odour. 13.     On 5   August 2002 a panel of forensic experts examined the bodies of Mr and Mrs   Mykhayliv and their daughters, and concluded that they had sustained fatal cerebral trauma and numerous other injuries. In particular, Mr   Mykhayliv had sustained a severe concussion; the head of Mrs   Mykhayliv 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. 14.     The applicants submitted that the bodies had been autopsied in spite of the first applicant’s objections. 15.     On an unspecified date the applicants collected the bodies of Mr and Mrs   Mykhayliv and their daughters and buried them in the Yanivske cemetery in Lviv. According to the applicants, one of the girls had a gold earring missing. They further submitted that the head of Mrs Mykhayliv 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. 16.     The Government submitted that unidentified body fragments of the Sknyliv accident victims had been buried in a common grave in the Goloskivske cemetery in Lviv after all reasonably available possibilities of identifying them had been exhausted. They also provided several documents produced by the General Prosecutor’s Office in August and September 2002, 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 Mrs   Mykhayliv, because, according to the expert findings, her head had been completely destroyed. B.     Investigation of the circumstances of the Sknyliv air show accident 17.     On various dates several concurrent investigations were opened to establish the circumstances of the accident, including investigation by a special Government Commission set up for this purpose, the Ministry of Defence, the Lviv City Council, the Prosecutor’s Office, and Sknyliv Tragedy , a non-governmental organisation founded by survivors of the accident and those who had lost relatives at the air show. 1.     Investigation by the Special Government Commission 18.     On 27 July 2002 the President of Ukraine set up a special Commission ( the Government Commission for the investigation of the causes of the catastrophe of the military aircraft of the Air Force of Ukraine ; “the Special Commission”) 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 the National Security and Defence Council. Other members of the Commission included senior officials from the Ministries of Emergencies, Transport, Finances, Health, Interior and Social Protection, officers of the Security Service of Ukraine, the General Headquarters of the Armed Forces, the State Aviation Transport Department, and the Lviv Regional State Administration. The Commission also engaged several experts from the “Sukhoy” construction bureau (the SU-27 aircraft manufacturer, Russia) and two test pilots from the Russian Federation as aviation experts. 19.     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 2002 the Special Commission reported on the facts as follows. 20.     In June 2002 Colonel-General   V.S. (the Air Force Commander-in-Chief) authorised the aerobatics show at the request of Lieutenant-General S.O. (the 14 th Corps Commander). The Air Force Headquarters appointed a mixed team of officers from different units, including Colonel V.T., from Kirovske, Crimea as the first pilot; Colonel   Y.Y., of the Air Force Headquarters, stationed in Vinnytsia, as the second pilot; and Lieutenant-Colonel   Y.Ya., stationed in Mirgorod, as the aerobatic performance director. Lieutenant-General   A.T. and Major-General A.L., both stationed locally in Lviv with the 14 th Corps Command, were also designated to join the mission, one as “air show flights director” and the other as “chief safety officer”. 21.     On 24 July 2002 V.T., Y.Y. and Y.Ya. carried out their only training flight as a team. On the orders of the Air Force Headquarters, the flight took place at a military aerodrome in Ozerne, near Zhitomir. According to the Special Commission, 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 Commission also established that V.T. had requested an additional training flight in Ozerne 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 26   July 2002, the 14 th Corps 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. 22.     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 Ozerne 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 Sknyliv 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 some 150   metres from the spectators’ area. Neither A.T. nor Y.Ya., 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, V.T. 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, the Special Commission 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. 23.     The Special Commission 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 the Armed Forces, in particular, the generals and officers of the Air Force Headquarters. 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 – from its Commander-in-Chief to the members of the crew of the SU-27. 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.” 24.     The Special Commission criticised, in particular, V.S. (the Air Force Commander-in-Chief) and his colleagues from the Air Force Headquarters responsible for the military training – Lieutenant-General O.V. and Major-General V.A. – 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. The Special Commission also criticised V.S. 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 the Air Force Headquarters. In the Special Commission’s 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 14 th Corps Commander) and his subordinates, in particular Major-General A.T. and Colonel A.L. (the 14 th Corps chief flight safety officer), had failed to put in place any meaningful land-and-air safety precautions plan. In addition, the Special Commission regretted S.O.’s decision to cancel the on-site rehearsal flight and concluded that the officers designated to direct the flight as ground crew (A.T. and Y.Ya.) had had no relevant experience or clearance for such a mission. 25.     The Special Commission also reported on numerous procedural breaches on the part of the local administration and municipal authorities in authorising the air show. In particular, K., deputy mayor of Lviv 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. 2.     Internal investigation by the Ministry of Defence 26.     In September 2002 the Ministry of Defence produced a Report on the internal investigation , largely reiterating the findings of the Special Commission. 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 at least one training flight for the crew over the Sknyliv aerodrome; and poor supervision by the Air Force Headquarters and the 14 th Corps Command 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. 27.     Referring to the conclusions of the investigation, on 6   September 2002 the Minister of Defence issued order no.   305 ( On the unsatisfactory organisation of the demonstration flight and the SU-27 aircraft disaster at the Sknyliv aerodrome ), whereby a number of officers engaged in the organisation of the show were subjected to disciplinary sanctions. In particular, Lieutenant-General S.O. (the 14 th Corps Commander) was demoted; Lieutenant-General O.V., (Deputy Air Force 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 ”; Major-General V.A. was dismissed from the military “ for a negligent attitude to the performance of service duties and low personal executive discipline ”; and four other high-ranking Air Force officers received warnings and were subjected to other sanctions. In addition, Colonel ‑ General V.S., the Air Force Commander-in-Chief, was also dismissed from the military service on disciplinary grounds, and the new Air Force 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. 3.     Investigation by Lviv City Council Special Temporary Commission 28.     On 22 October 2002 the Lviv City Council Special Temporary Investigation Commission 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: “2.2.     ... in the course of the preparation and staging of the demonstration flights ... the military establishments, the specialised central State 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 ...” 29.     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 Commission, 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 Commission recommended that the City Council 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. 30.     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 the National Government, which has neglected reformation of the Army and the Navy, 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 State 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 Ukraine ...” 4.     Investigation by the Sknyliv Tragedy Non-Governmental Organisation 31.     On 1 October 2003 the Sknyliv Tragedy Lviv-based NGO 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 V.T.’s piloting techniques by S., a civil aviation pilot, who had lost family members at the Sknyliv air show. 32.     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, the Air Force Commander-in-Chief and the 14 th Corps 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. 33.     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 the Ministry of Defence, the Air Force Headquarters, the authorities of the 14 th Air Force Corps, the Lviv city and regional authorities, and the civil aviation authorities (the Ukraviatrans State Aviation Transport Department and the Ukraerorukh State Company), which had given permission for the aerobatic performance without checking its terms of reference. 34.     In particular, the authors of the report considered that the pilots’ mission had been poorly developed and had not been properly communicated to all parties involved. The mission order approved on 12   July 2002 by Lieutenant-General O.V. of the Air Force Headquarters was at variance with the aircraft specifications. A subsequent explanatory document to the mission order approved by Colonel O.K., 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 the 14 th Air Force Corps officers, were unsuitable for the performance of most of the manoeuvres which formed part of the event programme. 35.     The authors of the report also criticised the 14 th Corps Command for designating too small an aerobatics zone, (2,500x1,600 metres, when 3,514   x2,000 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. 36.     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 Ukraviatrans and Ukraviarukh State agencies) for giving authorisations for the air space to be used in breach of the relevant procedural rules. 5.     Criminal proceedings against the military officers 37.     On 27 July 2002 the Western Region Military Prosecutor’s Office instituted criminal proceedings to investigate the circumstances of the accident. 38.     On 28 July 2002 the case was transferred for investigation to the General Prosecutor’s Office and assigned to the Deputy Chairman of the Investigation Division of the Chief Department for Military Prosecutors’ Offices. The team of some twenty investigators and other officers from the military prosecutor’s office dedicated to the case was supplemented by nineteen civilian investigative officers from the Lviv Regional Prosecutor’s Office, department of the interior and the State Security Service. The composition of the team was modified on several occasions, each time consisting of both military and civilian officers. 39.     On 4   February 2003 the prosecution commissioned an aviation expert assessment, which was carried out by a group of four Air Force officers in active service, a retired Air Force flight safety specialist and a civilian aviation expert. 40.     On 15   April 2003 the group produced its report, in which it concurred with the earlier findings made by the Special Commission 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 pilots’ mission as such had not been incompatible with the SU-27 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. 41.     On 30   May 2003 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 pilots’ mission order had been incompatible with the SU ‑ 27 specifications. 42.     On 2   June   2003 the prosecutor’s office solicited an opinion from two other experts, both retired USSR Air Force officers, who at the material time had been on the staff of the Air Force scientific centre for combat application, to clarify the matters in dispute and other questions. 43.     On 11   June 2003 the investigation obtained a conclusion by these two experts, in which they reported of numerous shortcomings in the air show organisation. In addition to the shortcomings pointed in the earlier Special Commission’s 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 pilots’ 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 Major-General A.T., 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 two officers; neither Major-General A.T. nor Colonel Y.Ya., 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 Ozerne on 24   July 2002. In practice, the pilots’ training was coordinated and supervised only by Colonel O.D., stationed at the Ozerne 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 the Air Force 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. 44.     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 the Ukrainian Air Force, enacted by order no.   249 of the Deputy Minister of Defence on 25   December   1998 ( Настанова по виконанню польотів в авіації Збройних Сил України, НВП-99 ); Air Force Navigation Service Guidelines of the Armed Forces of Ukraine, enacted by order no.   54 of the Air Force Commander of Ukraine on 9   November   1992 ( Настанова по штурманській службі авіації Збройних Сил України, НШС-93 ); General Rules on Flights in Ukrainian Air Space, enacted by order no.   62 of the Air Force Commander of Ukraine on 10   December   1992 ( Основні правила польотів у повітряному просторі України, ОПП-93 ); Regulation on Prevention of Aviation Incidents in the Ukrainian Air Force, enacted by order no.   210 of the Air Force Commander on 29   October   1999 ( Положення про запобігання авіаційних подій у Військово-Повітряних Силах України, ПЗАП-2000 ), and several others. Similarly to the findings contained in other reports, the experts concluded, in particular, as follows: “... One 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 ...” 45.     The investigation ended on 10   August   2004. Ten officers, including both pilots and their ground support crew; the Air Force Commander-in-Chief (O.S.); O.V. and V.A. of the Air Force Headquarters; the Commander of the 14 th Corps (S.O.); the 14 th corps chief safety officer (A.L.) and the commander of the Air Force unit based in Ozerne (O.D.) were committed for trial. 46.     On an unspecified date in 2004 S.O., previously demoted from his post as 14 th Corps Commander, was appointed first deputy Air Force Commander-in-Chief. 47.     On 27 August 2004 the Deputy Prosecutor General disjoined the criminal proceedings against V.S., O.V., V.A. and S.O. and referred their case (hereafter referred to as “the organisers’ 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. 48.     For that purpose, on 24   September   2004 two civilian experts were commissioned to carry out an additional assessment. The four defendants challenged that appointment, alleging that the experts concerned were not competent to evaluate their performance. S.O. proposed six other candidates in their stead. The prosecutor’s office dismissed the challenge to the civilian experts, but agreed to include three of the candidates proposed by S.O. in the group, having found that they were sufficiently independent. It rejected the other three candidates, citing possible conflict of interest in view of their current or former employment with the Air Force Headquarters. Subsequently, two more retired military officers were included in the group, which finally consisted of two civilian experts and five retired military officers. Four of the military officers (including the three candidates proposed by S.O.) were serving at the material time in the faculty of the National Military Academy and the fifth expert was deputy director for flight safety at a military aircraft repair company belonging to the Ministry of Defence. 49.     On 8   February 2005 the five military experts produced a report in which they concluded that all four 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-27 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.” 50.     On 11   May 2005 the two civilian experts also produced a report, which largely replicated the findings and the language of the report issued by their military counterparts. 51.     In the meantime, on an unspecified date, the case in respect of the pilots, the ground crew and two other officers of the lower rank (hereafter the “performers’ case”) was transferred to the court for trial. 52.     During the trial, the defendants pleaded innocent of any wrongdoing. In particular, Major-General A.T. 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 14 th Corps 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 pilots’ training at a different airfield and ensuring their readiness, as neither of them had belonged to the 14 th   Corps 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 Air Force Commander-in-Chief. 53.     Colonel A.L. of the 14 th 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 14 th Corps Command as well as by the relevant sectors in the Air Force Headquarters, and had not received any negative feedback. Colonel A.L. 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 pilots’ direct superiors, who did not belong to the 14 th Corps. 54.     Lieutenant-Colonel Y.Ya., the aerobatic performance director, asserted that, having been informed of the size and boundaries of the aerobatics zone on 24   July 2002, he had warned Major-General A.T. 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. 55.     Colonel V.T. (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 Y.Y. (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 V.T. 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. 56.     Colonel   Y.Y. (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. 57.     On 23 June 2005 the Central Region Military Court of Appeal, sitting in a panel consisting of three 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 Article   416 of the Criminal Code of Ukraine (“the CCU”) and sentenced them to fourteen, eight, six and five years’ imprisonment respectively. It further found the chief of the 14 th Corps flight safety service guilty of having a negligent attitude towards military service within the meaning of Article   425 paragraph 2 of the CCU, and sentenced him to four years’ imprisonment, suspended, with probation. By way of reasoning, the court referred extensively to the relevant findings of the Special Commission and the aviation experts’ assessment of 11   June 2003 (see paragraphs   20-22 and   43-44 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. 58.     The sixth defendant, Colonel O.D., who had coordinated V.T.’s and Y.Y.’s training programme in Ozerne and supplied the aircraft for the show, was found to have performed his duties in good faith and acquitted. 59.     On 2 March 2006 the Military Panel of the Supreme Court of Ukraine upheld this judgment on appeal and it became final. 60.     In the meantime, on an unspecified date the General Prosecutor’s Office decided to continue with the “organisers’ case”, having disagreed with the expert conclusions of 8   February and 11   May 2005, and on 25   January 2006 suspended S.O.’s authority as the Deputy Air Force Commander. 61.     On 11 January 2008 the defendants in this case were committed for trial on charges of having a negligent attitude towards military service within the meaning of Article 425 paragraph   2 of the CCU. O.V. and V.A. were additionally charged with breaches of flight regulations within the meaning of Article 416 of the CCU. Finally, V.S. and S.O. were additionally charged with exceeding their authority within the meaning of Article   424 paragraph 3 of the CCU by inappropriately using State funds for a celebration of a bogus memorial date and staging aerobatic performances in the absence of an appropriate regulatory framework. 62.     On 11 June 2008 the Central Region Military Court of Appeal, sitting in a panel of three military judges and acting as a first-instance court, acquitted all four defendants of the above charges, largely relying on the expert conclusions of 8   February and 11   May 2005. It found that the provisions of Article   416 of the CCU did not apply to O.V. and V.A., 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 the Special Commission and the expert findings dated 11   June   2003 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 the Ministry of Defence in its judgment. The relevant excerpts of the court judgment read as follows: “... the members of the [Special Commission] 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-27 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 14 th Air Force Corps Commander [S.O.]: this decision was coordinated by him with the Air Force 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 SU-27, the 14 th Corps Command jointly with the Air Force Headquarters 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 14 th 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 ...” 63.     The Prosecutor’s Office and numerous injured parties appealed against this verdict before the Military Panel of the Supreme Court. 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, the Air Force Command