CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 8 mars 2018

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LATVIA   (Application no. 44154/14)               JUDGMENT     STRASBOURG   8 March 2018       FINAL   04/02/2019   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of R.Š. v. Latvia, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Angelika Nußberger, President,   Erik Møse,   André Potocki,   Yonko Grozev,   Síofra O’Leary,   Mārtiņš Mits,   Lәtif Hüseynov, judges, and Claudia Westerdiek, Section Registrar, Having deliberated in private on 30 January 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 44154/14) against the Republic of Latvia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Latvian national, Mr R.Š. (“the applicant”), on 9   June   2014. The President of the Section acceded to the applicant’s request not to have his name disclosed (Rule 47 § 4 of the Rules of Court). 2.     The applicant was represented by Mrs L.   Sokolova, a lawyer practising in Riga. The Latvian Government (“the Government”) were represented by their Agent, Mrs K. Līce. 3 .     The applicant alleged that he had been unable to obtain compensation for harm suffered as a result of an aircraft accident, and that the State should bear responsibility for any shortcomings in the legal regulation of the safety of private flights. 4.     On 7   January   2015 the above complaints under Articles   2 and 8 of the Convention were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54   §   3 of the Rules of Court. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1983 and lives in Mārupe. At the material time the applicant held a pilot licence and was undergoing aviation training. A.     Background information 6.     In 2008 the applicant used the services of a company, KD.C. (the name of this company was subsequently changed, but it will be referred to hereinafter as “KD.C.” or “the company”). D.K. held 100% of the shares in the company (he was its sole owner) and he was also its sole board member. The company provided private flights and organised private pilot training courses. The Civil Aviation Agency had issued the company with a registration certificate for the provision of private pilot training courses. 7.     The company did not provide commercial flights, therefore it fell outside the scope of the Regulation of the Cabinet of Ministers on Procedures Regarding the Issuing of an Air Operator’s Certificate for Aerial Work (8   May   2007), and was not certified by the Civil Aviation Agency. B.     Aircraft accident 8.     On 16   August   2008 KD.C. organised a private flight from Riga to Tukums using a multi-engine aircraft, a Piper PA-31 with a maximum allowed mass of 2,900 kg. The applicant and six other people boarded the aircraft as passengers. The applicant occupied the front seat of the aircraft, next to the pilot, G.V., and maintained radio communication with the air traffic control service. 9.     At around 10 a.m. the pilot, G.V., lost control of the aircraft and it crashed (see paragraph 12 below). As a result, the pilot died and all passengers sustained serious injuries. 10 .     According to a forensic medical examination, the applicant suffered serious, life-threatening injuries. He permanently lost the vision in his right eye and sustained other permanent damage to his health. He underwent treatment in Latvia and abroad. After rehabilitation, the applicant was able to continue working as an aviation specialist, but under certain limitations. He was not permitted to operate an aircraft independently and was required to undergo medical checks more often than other aviation specialists. C.     Investigation into the accident 11 .     Following the accident on 16   August   2008 officials from the Transport Accident and Incident Investigation Bureau ( Transporta nelaimes gadījumu un incidentu izmeklēšanas birojs , hereinafter “the TAIIB”), whose main task was to establish the circumstances of an accident, went to the scene of the accident and carried out an investigation. 12 .     According to the TAIIB’s final report of 27   June   2009, on the day of the accident, when operating in cloudy weather, G.V., the pilot, made a series of chaotic manoeuvres, as a result of which the aircraft, which was about 30-50 m from the ground, lost altitude. The attempts to stabilise it were unsuccessful. As a consequence of hitting the ground and damaging its tank, the aircraft caught fire. 13.     The investigation concluded that the primary cause of the accident was “human error” ( cilvēka faktors ), namely G.V. having insufficient skills and experience to independently operate a multi-engine aircraft in accordance with instrumental flight rules and, in particular, to operate a Piper PA-31 aircraft. The pilot had not obtained authorisation from the Civil Aviation Agency to fly that particular type of aircraft. In particular, G.V. had started the “differences training programme” for the Piper PA ‑ 31 aircraft on 1   August   2008, but had not finished it. Nevertheless, on 16   August   2008 he had flown without sufficient qualifications. 14 .     The final report indicated several aspects which had contributed to the accident, such as unfavourable weather conditions with poor visibility, and the “unsafe supervision” ( nedroša uzraudzība ) carried out by the Civil Aviation Agency “[to ensure] that the aviation legislation and visual flight rules were complied with”. 15.     With regard to KD.C., the company which owned the aircraft, the investigation concluded that it had not followed up on the pilot’s differences training programme and its outcome. On the day of the accident the company had not checked whether the pilot’s documents complied with the requirements of the legislation, and it had unjustifiably ( nepamatoti ) handed over the aircraft to him and verbally authorised him to fly. 16 .     The above report, inter alia , addressed to the Civil Aviation Agency eight recommendations concerning flight safety. The second recommendation advised the Civil Aviation Agency to impose a duty on aircraft owners to set up a procedure for aircraft handovers which would prevent pilots from operating a flight without a licence and would contain confirmation of an appropriate qualification certificate issued by the Civil Aviation Agency. D.     Criminal proceedings 1.     Investigation 17 .     On 16   August   2008 a criminal investigation was opened into the aircraft accident. In the course of the investigation the police gathered evidence, ordered that forensic examinations be carried out, and interviewed numerous witnesses, including various aviation specialists. 18.     Questioned as a witness, D.K. stated that he himself had no experience of operating aircrafts, and that G.V. had been the company’s de facto associate, although legally he had had no contractual relationship with the company; D.K. also stated that he had had no doubts that G.V. had had sufficient qualifications, because he had undergone the necessary training and obtaining a certificate had only been a formality. It had been supposed that G.V. would at all times be accompanied by a more experienced instructor during the training flights. On the day of the accident D.K. had a telephone conversation with G.V. and the latter informed him that he had finished his “instruction” and would soon be starting a flight. Only afterwards did D.K. find out that another aeroplane had returned to the same airport owing to bad weather conditions. 19.     The investigation revealed that G.V. had undertaken to fly the aircraft even though he lacked the requisite skills, which had caused the accident in question. On 14   January   2010 the proceedings with regard to G.V. were terminated due to his death. 20 .     The material in the criminal case contained a letter from the TAIIB dated 20   October   2009 which stated, inter alia , that at the material time the legislative acts regulating aviation safety in Latvia had not provided for a procedure setting out how to hand over an aircraft for a general aviation flight. 21 .     This was further confirmed in a statement given by a TAIIB official during the investigation, that in general aviation, unlike in commercial aviation, there were no established ( nebija sakārtots ) regulations regarding an aircraft owner’s responsibility in relation to a specific flight and a pilot’s skills. Therefore the recommendations of the TAIIB were adopted to address that issue within the existing system (see paragraph 16 above). During the investigation, an official of the Civil Aviation Agency testified that in commercial aviation, the question of an operator’s responsibility with regard to the qualifications and rights of a pilot was sufficiently regulated, however this regulation did not apply to general aviation flights. 22.     On 24   May   2011 the prosecution indicted D.K. for negligence in the performance of his professional duties (section 197 of the Criminal Law) and violation of air traffic safety or operation regulations (section 257(2) of the Criminal Law). The prosecution alleged that D.K. had handed over the aircraft to G.V. knowing that the latter lacked the requisite permit and skills to operate it. On 8 June 2011 the prosecution referred the case for trial. 2.     Trial 23 .     On 22   October   2012 the Tukums District Court found D.K. guilty on both counts. It established that D.K. had not applied any measures to verify G.V.’s qualifications. He had given the aircraft to the pilot knowing that the latter lacked the appropriate authorisation and had permitted him to fly. D.K. was given a suspended prison sentence of five years. He was also ordered to pay the applicant 20,000 Latvian lati (around 29,000 euros (EUR)) in compensation for non-pecuniary damage. 24.     On 15   May   2013 the Zemgale Regional Court, acting as an appellate court, quashed the above judgment and acquitted D.K. In the appeal proceedings, D.K. testified that in his telephone conversation with G.V. on 16   August 2008 they had agreed that G.V. would not fly, owing to the bad weather conditions. He explained the inconsistency in relation to his pre ‑ trial testimony (see paragraph 18 above) as follows. Firstly, he had been a witness at that stage. Secondly, he had been interviewed in Latvian, which was not his mother tongue, and he had not been as fluent as was necessary. He had no doubt that G.V. was responsible for the accident, and he could not envisage also being charged in criminal proceedings. 25.     With regard to negligence in the performance of his professional duties (see paragraph 44 below), the court deemed that neither the indictment nor the first-instance judgment had shown what professional duties in particular D.K. had neglected. Also, not being an aviation specialist, he could not have been regarded as a “special subject” for the purposes of this section of the Criminal Law (an organisation’s responsible employee). 26.     Concerning the alleged violation of air traffic safety or operation regulations (see paragraph 45 below), the appellate court concluded that it had not been established precisely what regulations D.K. had violated and by what conduct in particular. Besides, section   257 of the Criminal Law required that the prohibited conduct be committed by a transport employee, which D.K. was not. 27 .     The appellate court indicated that, even though D.K. could not be held criminally liable, KD.C. had an obligation to provide compensation for the damage sustained by the victim, and therefore the applicant had rights to seek damages in civil proceedings. 28 .     Both the applicant and the prosecutor submitted appeals against the appellate court’s judgment. 29.     On 9   December   2013 the Senate of the Supreme Court endorsed the appeal court’s findings that it had not been shown that D.K. had committed the requisite actus reus . The Senate confirmed that D.K.’s actions did not contain the necessary elements of a crime under sections 197 and 257(2) of the Criminal Law. 30 .     The Senate stated that the prosecution should not have relied on certain provisions of the Commercial Law, the Civil Law, the Law on Aviation and the Convention on International Civil Aviation (hereinafter “the Chicago Convention”). Those provisions were applicable when determining the civil and not criminal liability of an aircraft owner. In accordance with section 34 of the Law on Aviation, a pilot was prohibited from performing his functions in the event that he had not acquired the appropriate qualifications. The above provision had been binding upon the pilot and not D.K. The Senate also stated that only on 18   November   2010 had Part II of Annex   6 to the Chicago Convention, Seventh Edition, come into force, making provision for the liability of an aircraft owner and a pilot; before that date the Chicago Convention provided the responsibility only of the pilot (see also paragraph 58 et seq. below). 31.     Furthermore, at the material time, no legislation had provided for a procedure for handing over an aircraft to a pilot, designating a person responsible for verifying pilots’ training, or checking flight planning and implementation. Only subsequent to the accident in question had recommendations been issued to the Civil Aviation Agency on the preparation of statutes relevant to flight safety. As of 24   April   2013, section   9 1 of the Law on Aviation had provided that an aircraft owner or operator was not allowed to hand over an aircraft to a person lacking the appropriate qualifications and insurance cover (see paragraph 55 below). E.     Civil proceedings for damages 32 .     On 13   August   2010 the applicant lodged a claim for damages against KD.C. (the company which owned the aircraft), D.K. (the sole owner and board member of the company), and the insurance company. In the claim, inter alia , the applicant relied on sections 1782, 2347 and 2349 of the Civil Law (see paragraphs 42-43 below). In the meantime, by a final decision of the Riga Regional Court of 8   November 2010, KD.C. was declared bankrupt ( maksātnespējīgs ) upon application by one of its creditors and respective proceedings were started with retrospective effect from 31   December 2008. 33.     On 14   May   2013 the Riga Regional Court, acting as a court of first instance, dismissed the claim in full on the grounds that the defendants had not committed unlawful actions ( prettiesiska darbība ). There was no dispute that D.K. had agreed to the pilot starting a “differences training programme” for the Piper PA-31 aircraft with a flight instructor, O.G. However, there was no evidence that on 16 August 2008 D.K. had allowed the pilot to operate this aircraft carrying seven passengers. On the contrary, the instructor and another witness (J.Z.) had testified that it had been planned that the pilot would operate the aircraft with the flight instructor, who had not arrived at the airport to take the flight on that date because of the bad weather conditions. The pilot had been informed of the bad weather conditions and the fact that the flight instructor would not arrive for the flight. By referring to the investigation carried out by the TAIIB, the Riga Regional Court noted that the primary reason for the accident was “human error” on the part of the pilot, and that the lack of sufficient procedure in relation to handing over an aircraft had contributed to the accident, but was not the sole cause of it. Moreover, the applicant had occupied the front seat of the aircraft, next to the pilot, and had maintained radio communication. Taking into account that he was a pilot himself and that he had received information about the unfavourable weather conditions, he could have avoided any damage by choosing not to fly in such circumstances. By referring to the second recommendation (see paragraph 16 above), the court concluded that, at the material time, there had been no obligation for aircraft owners to verify the qualifications and health of pilots. 34.     On 24   September   2015 the Civil Cases Chamber of the Supreme Court, acting as an appellate court, dismissed the applicant’s claim in full on the following grounds. 35.     With regard to KD.C., the civil proceedings were terminated because the company had ceased to exist (on 26 May 2015 it had been excluded from the Companies Register) and there was no legal successor. 36.     Next, the appellate court found that D.K. could not be held liable under sections 1779 and 1635 of the Civil Law for the damage sustained by the applicant. By referring to the investigation carried out by the TAIIB, the appellate court also noted that the primary cause of the accident had been “human error” on the part of the pilot. While the lack of a sufficient procedure in relation to handing over the aircraft had contributed to the accident, there was no causal link between the accident and the actions of D.K., who managed the company. The appellate court also referred to the conclusions made in the criminal proceedings to the effect that D.K. was not liable for the flight operated by the pilot, and the fact that he had been acquitted. Moreover, the appellate court referred to evidence given to the first-instance court and concluded that on 16   August 2008 D.K. had not allowed the pilot to operate the aircraft independently and that the pilot’s course of action (to operate the aircraft independently) had been arbitrary and unlawful. It had been planned that the pilot would operate the aircraft with the flight instructor (see paragraph   33 above). In the light of sections 97 and 98 of the Law on Aviation, the owner of the aircraft was the company and not D.K. Thus, the latter could not be held responsible under the Law on Aviation. In so far as the applicant referred to the Chicago Convention, this was inapplicable, because it only provided for the responsibility of a pilot-in-command and, from 18   November   2010 onwards, the responsibility of an owner; D.K. was neither a pilot nor an owner. Neither could D.K. be held liable under section   1782 of the Civil Law (see paragraph 43 below) because the pilot had not been an employee of the company. Nor could he be held liable under sections 2347 and 2349 of the Civil Law (see paragraph 42 below). Referring to the conclusions made in the criminal proceedings, the appellate court held that D.K. had not engaged in any unlawful ( prettiesiska ) or liable ( vainojama ) activity. Therefore, he could not be required to pay damages to the applicant. There was no doubt that the aircraft was a source of dangerous activity, but D.K. was not its owner. Instead, KD.C. was the owner of the aircraft, therefore it was liable for loss caused by the source of dangerous activity. 37.     The appellate court also refused to hold D.K. liable as a board member of the company. It concluded that, under the relevant provisions of the Commercial Law, board members were liable for damage caused to a company. In the present case, the company had not incurred any losses because it had not provided compensation for any damage sustained by the applicant. 38.     Lastly, the appellate court dismissed the claim against the insurance company. In the judgment, it stated that the aircraft accident fell outside the terms of the aircraft’s insurance, which provided that compensation was not awarded if an accident was caused by a pilot who had no right to operate an aircraft. In the present case, the pilot had not had a permit to operate the aircraft in question. 39 .     In a preparatory meeting on 5   May   2016 the Senate of the Supreme Court dismissed an appeal on points of law by the applicant in the case against KD.C., D.K. and the insurance company. F.     Other relevant information 40 .     In a letter dated 12   May   2015 addressed to the Government regarding the accident in question, the Civil Aviation Agency stated: “As regards the responsibility of the aircraft owner, we note that the legislative acts [at the material time] provided that the owner of an aircraft was responsible for ensuring the maintenance of the aircraft’s airworthiness, but not its safe operation during a flight, which was the pilot’s responsibility. In particular, in accordance with Commission Regulation (EC) No 2042/2003 of 20 November 2003 on the continuing airworthiness of aircraft and aeronautical products, parts and appliances, and on the approval of organisations and personnel involved in these tasks, under Annex I (Part M) M.A. 201 (a), the owner is responsible for the continuing airworthiness of an aircraft and shall ensure that no flight takes place unless: the aircraft is maintained in an airworthy condition; and any operational and emergency equipment fitted is correctly installed and serviceable or clearly identified as unserviceable; and the airworthiness certificate remains valid; and the maintenance of the aircraft is performed in accordance with the approved maintenance programme.” II.     DOMESTIC LAW AND PRACTICE A.     Legislation on the right to compensation 41.     Article 92 of the Constitution ( Satversme ) provides, inter alia , that “any person whose rights are violated without justification has a right to commensurate compensation”. Domestic legal provisions pertaining to compensation for pecuniary and non-pecuniary damage under the Civil Law ( Civillikums ) are quoted in full in Zavoloka v. Latvia (no.   58447/00, §§   17 ‑ 19, 7   July   2009). Sections 1635 and 1779 are also explained in the case of Holodenko v. Latvia (no.   17215/07, § 45, 2   July   2013).   B.     Civil Law 42 .     Under section 2347 of the Civil Law, if a person is responsible for causing another person bodily injury through an illegal action, the person responsible shall compensate the victim for medical expenses and the loss of future income (paragraph one). A person engaging in activities, which are dangerous for others (transport, enterprise, construction, dangerous substances, etc.), shall compensate for loss caused by the source of dangerous activity, unless he or she proves that it was incurred owing to force majeure , or through the victim’s own intentional act or gross negligence (paragraph two). Under section 2349 of the Civil Law, the domestic courts shall award compensation for bodily injuries causing mutilation and disfigurement. 43 .     Section 1782 provides that a person who fails to exercise due care in choosing agents or other employees, and who fails to satisfy himself or herself as to their abilities and suitability to perform duties as may be imposed on them, shall be liable for losses the agents or employees cause a third party. C.     Criminal Law 44 .     Section   197 criminalises negligence by an organisation’s employee in the performance of his or her professional duties where substantial harm is caused to the organisation or to the lawful rights and interests of another person. 45 .     Section   257(2) criminalises, inter alia , violation by a transport employee of air traffic safety or operation regulations if there are serious consequences ( smagas sekas ). D.     Law on Aviation (as in force at the material time) 46 .     Section   5 provided that the Ministry of Transport and the Civil Aviation Agency implemented the State policy and administration in the area of the use of the Republic of Latvia’s airspace and civil aviation operations. 47.     Section 6 defined the powers of the Civil Aviation Agency. These powers comprised, inter alia : carrying out State supervision of the use of the Republic of Latvia’s airspace and civil aviation operations; prohibiting activities related to the use of airspace or the operation of aircrafts in breach of legislative acts; coming up with measures to guarantee aircraft flight safety; and drawing up legislative acts regulating the safety of civil aviation operations. Together with other authorities, the Civil Aviation Agency was also tasked with supervising the training, retraining and raising of the level of qualifications of civil aviation personnel (section 31). 48.     Section 33 provided that aviation specialists should carry out their functions pursuant to the domestic and European Union law and the international agreements which were binding upon the Republic of Latvia. 49.     The relevant parts of section   34 read as follows: “An aviation specialist is prohibited from performing his or her functions if he or she: 1) is unable to present a licence with an appropriate qualification stamp allowing the performance of such functions, or if the specialist’s [possession of] the appropriate qualification has not been verified within the time-limit prescribed; ...” 50.     Section 36 provided that the work of a civil aircraft flight crew should be managed by a pilot-in-command. If a civil aircraft flight crew included only one pilot, he or she was also the pilot-in-command. 51 .     Section 37 set out the duties of the pilot of an aircraft, such as: managing the work of a flight crew so that aircraft flight safety was ensured and the provisions of this Law and other laws of the Republic of Latvia were respected, as well as the requirements of by-laws, instructions and other laws and regulations; implementing measures to prevent danger threatening the aircraft which he or she controlled; rescuing passengers, injured crew members, the aircraft, and its documentation and property on board; and providing medical assistance to those who were injured if the aircraft had an aviation accident. 52 .     Section 38 set out the rights of the pilot of an aircraft, such as: taking the final decision on an aircraft taking off, continuing with a flight or landing at an intended flight destination or an alternate aerodrome; or temporarily suspending the departure of an aircraft. 53 .     Section   96 provided as follows: “An aircraft owner or operator, if the aircraft has been operated by another person, shall be liable for any harm caused by the death or damage to health of a member of the flight crew which occurs during the performance of his or her official duties. The performance of duties shall commence with a flight crew member’s preparation for a flight and shall conclude after the flight at the moment when he or she has fulfilled all of the functions set out in the rules regarding the operation of the aircraft and other regulations.” 54 .     Section   97 provided as follows: “An aircraft owner or operator, if the aircraft is operated by another person, shall be liable for any harm caused to a third party in the territory of the Republic of Latvia by an aircraft in flight or an object that has become separated from that aircraft [where this harm] manifests [itself] in either the death of the third party or damage caused to his or her health, or harm caused to his or her property, if the aircraft owner or operator, in accordance with the procedures laid down in legal acts of the Republic of Latvia, does not prove that the harm occurred according to the fault of the victim himself or herself. The Cabinet [of Ministers] shall determine the procedures by which compensation for harm to a third party or [that third party’s] property shall be provided, if [such harm] is caused by a military or civil aircraft (or an object that has become separated from that aircraft) of the Republic of Latvia which the National Armed Forces of Latvia use for military purposes. For the purposes of this section, an aircraft shall be deemed to be an aircraft in flight from the moment the engines of the aircraft are started before take-off until the moment when the aircraft has finished taxiing after its landing.” 55 .     On 21   March   2013 the Law on Aviation was supplemented by section 9 1 . This was to have effect from 24   April   2013 onwards and was worded in the following manner: “An aircraft owner and operator is prohibited from handing over an aircraft which is to be flown to a person who does not have a civil aircraft flight crew member licence with an appropriate qualification stamp and who is not insured in accordance with section 111 of this law.” E.     Examples of domestic case-law concerning claims against the State for compensation for non-pecuniary damage 56 .     In a judgment of 24   November   2010 in case no.   SKC-233/2010, the Civil Cases Chamber of the Senate of the Supreme Court held that there was no specific legal regulation for compensation with regard to actions taken by a domestic court, save for regulation concerning unjustified conviction and administrative arrest. However, such an absence could not be an obstacle to lodging a respective claim, because the third sentence of Article 92 of the Constitution, which provided for the right to receive compensation, was directly applicable. The Administrative Cases Chamber of the Senate of the Supreme Court, in a decision of 24 July 2012 in case SKA-726/2012, held that, in order for a person to seek compensation for an infringement of his or her rights caused by a legal provision adopted by Parliament, he or she could file a civil claim with a court of general jurisdiction, directly referring to the third sentence of Article 92 of the Constitution. Such a claim would be brought against the Republic of Latvia, which would be represented by its Parliament ( pret Latvijas Republiku Saeimas personā ). 57 .     The claimant in civil case no.   04255508, relying on Article 92 of the Constitution and Article 1635 of the Civil Law, alleged liability on the part of the State and requested an award of compensation for non-pecuniary damage in respect of a failure to ensure the safety of soldiers’ skydiving classes and their compliance with legal provisions, which had resulted in the death of the claimant’s son. These skydiving classes had been organised by the National Armed Forces, and the domestic courts established negligence on the part of State officials (they had failed to comply with various provisions of domestic law and internal instructions), as well as a causal connection between that negligence and the death of the soldier. In its judgment of 6   March   2013, the Senate of the Supreme Court, sitting in an extended composition, referring to, inter alia , the State’s positive obligations enshrined in Article 2 of the Convention, ruled that an acquittal in criminal proceedings did not exclude the State’s liability for an accident. Consequently, the victim’s relatives had a right to seek compensation for non-pecuniary damage. In its judgment of 31   October   2014 in civil case no.   C33137808, the Senate of the Supreme Court, sitting in an extended composition, noted that the State police’s conclusion reached in the course of criminal proceedings as to the absence of pecuniary damage was not binding on a court adjudicating a civil claim, and did not absolve parties to civil proceedings from the obligation to prove the non-existence of pecuniary damage in the course of those proceedings. In another decision of 3   February   2015 in case no.   C322451I I, the Civil Cases Division of the Supreme Court upheld a lower court’s ruling awarding compensation for non-pecuniary damage to a victim’s relatives, notwithstanding the fact that criminal proceedings were ongoing in respect of the same events. III.     INTERNATIONAL LAW AND PRACTICE 58 .     The Chicago Convention provides that every State has complete and exclusive sovereignty over the airspace above its territory (Article 1). No scheduled international air service may be operated over or into the territory of a contracting State without that State’s special permission (Article 6). Latvia acceded to the Convention on 13 July 1992, and it entered into force in respect of Latvia on 12 August 1992. The Sixth Edition of Annex   6 (“Operation of Aircraft”) to the Chicago Convention contains International Standards and Recommended Practices that were applicable on 1 July 2008. It contains three parts: international commercial air transport – aeroplanes (Part I), international general aviation – aeroplanes (Part II) and international operations – helicopters (Part III). 59 .     Part II reads as follows: FOREWORD Historical background “... Level of safety . The Annex should ensure an acceptable level of safety to passengers and third parties (third parties meaning persons on the ground and persons in the air and in other aircraft). Also, as some international general aviation operations (typically under 5,700 kg) would be performed by crews less experienced and less skilled, with less reliable equipment, to less rigorous standards and with greater freedom of action than in commercial air transport operations, it was therefore, accepted that the passenger in international general aviation aircraft would not necessarily enjoy the same level of safety as the fare-paying passenger in commercial air transport. However, it was recognised that in ensuring an acceptable degree of safety for third parties, an acceptable level of safety for flight crews and passengers would be achieved. Freedom of action . The maximum freedom of action consistent with maintaining an acceptable level of safety should be granted to international general aviation. Responsibility . The responsibility that devolves under the operator in Annex   6, Part I, should, in Part II of the Annex, fall under the owner and pilot-in-command. ...” Applicability “The Standards and Recommended Practices of Annex 6, Part II, are applicable to international general aviation operations with aeroplanes. The Standards and Recommended Practices represent minimum provisions and, together with those of Annex 6 – Operation of Aircraft , Part I – International Commercial Air Transport – Aeroplanes , now cover the operation of all aeroplanes in international civil aviation, except in aerial work operations. It will be noted that the Standards and Recommended Practices contained in Annex 6, Part II, when applied to the operation of large aeroplanes, are less stringent than those in Annex 6, Part I, applicable to the same or similar aeroplanes when used in commercial air transport operations. Nevertheless, it is considered that, in conjunction with existing provisions in Annexes 1 and 8, Annex 6, Part II, ensures an adequate level of safety for the operations envisaged for the large aeroplanes in question. In this connection attention is drawn to the point that the entire performance Standards of Annex 8 are applicable to all aeroplanes of over 5,700 kg mass intended for the carriage of passengers or cargo or mail international air navigation, of which the prototype was submitted for certification on or after 13   December 1964. Moreover, by virtue of Annex 1 the pilot of an aircraft certificated for operation with a minimum crew of at least two pilots must hold a type rating for that aircraft type.” SECTION 2 – GENERAL AVIATION OPERATIONS CHAPTER 2.1 GENERAL 2.1.1 Compliance with laws, regulations and procedures “2.1.1.1 The pilot-in-command shall comply with the laws, regulations and procedures of those States in which operations are conducted. ... 2.1.1.2 The pilot-in-command shall be familiar with the laws, regulations and procedures, pertinent to the performance of his or her duties, prescribed for the areas to be traversed, the aerodromes to be used and the air navigation facilities relating thereto. The pilot-in-command shall ensure that other members of the flight crew are familiar with such of these laws, regulations and procedures as are pertinent to the performance of their respective duties in the operation of the aeroplane. 2.1.1.3 The pilot-in-command shall have responsibility of the operational control. ...” CHAPTER 2.2 FLIGHT OPERATIONS 2.2.1 Operating facilities “The pilot-in-command shall ensure that a flight will not be commended unless it has been ascertained by every reasonable means available that the ground and/or water facilities including communication facilities and navigation aids available and directly required on such flights, for the safe operation of the aeroplane, are adequate for the type of operation under which the flight is to be conducted ...” 2.2.2 Operational management 2.2.2.1 Operating instructions – general “An aeroplane shall not be taxied on the movement area of an aerodrome unless the person at the controls is an appropriately qualified pilot or: a) has been authorised by the owner ...; b) is fully competent to taxi the aeroplane; c) is qualified to use the radio if radio communications are required; and d) has received instruction from a competent person in respect of aerodrome layout, and where appropriate, information on routes, signs, marking, lights, ATC signals and instructions, phraseology and procedures, and is able to conform to the operational standards required for safe aeroplane movement at the aerodrome.” 2.2.5 Duties of pilot-in-command “2.2.5.1 The pilot-in-command shall be responsible for the operation, safety and security of the aeroplane and the safety of all crew members, passengers and cargo on board. ...” CHAPTER 2.6 AEROPLANE MAINTENANCE 2.6.1 Owner’s maintenance responsibilities “2.6.1.1 The owner of an aeroplane, or in case where it is leased, the lessee, shall ensure that, in accordance with procedures acceptable to the State of Registry [the State on whose register the aircraft is entered]: a) the aeroplane is maintained in an airworthy condition; b) the operational and emergency equipment necessary for an intended flight is serviceable; and c) the certificate of airworthiness of the aeroplane remains valid. 2.6.1.2 The owner or the lessee shall not operate the aeroplane unless it is maintained and released to service under a system acceptable to the State of Registry. ...” CHAPTER 2.7 AEROPLANE FLIGHT CREW 2.7.2 Qualifications “2.7.2.1 The pilot-in-command shall: a) ensure that each flight crew member holds a valid licence issued by the State of Registry...; b) ensure that flight crew members are properly rated; and c) be satisfied that flight crew members have maintained competency.   ...” CHAPTER 2.9 SECURITY 2.9.1 Security of aircraft “The pilot-in-command shall be responsible for the security of the aircraft during its operation.” 60.     Section 3 of Part II, providing for the responsibility of an operator of a flight, is not relevant to the present case, because it applies to international general aviation operations with aeroplanes with a maximum certificated take-off mass exceeding 5,700 kg, or aeroplanes equipped with one or more turbojet engines. THE LAW ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 61 .     The applicant complained that he had been unable to obtain compensation for harm suffered as a result of an aircraft accident from the various third parties involved (see paragraph 75 below) and that the State should bear responsibility for any shortcomings in the legal regulation of the safety of private flights. The Court, being the master of the characterisation to be given in law to the facts of the case, will consider this complaint under Article 2 of the Convention, the relevant part of which reads: “1.     Everyone’s right to life shall be protected by law...” A.     Admissibility 1.     Applicability of Article 2 of the Convention 62.     The parties did not contest the applicability of Article 2 of the Convention in the circumstances of the present case. 63.     The Court has found Article 2 applicable in a number of cases where an individual has survived a serious incident in which the right to life or physical integrity was at stake (see, for example, Budayeva and Others v.   Russia , nos.   15339/02 and 4 others, § 146, ECHR 2008 (extracts) concerning mudslide as a threat to the applicant’s physical integrity, and Iliya Petrov v. Bulgaria , no.   19202/03, §§ 54 and 70, 24 April 2012 concerning electrocution as an accident putting the applicant’s life in imminent danger). 64.     The particular circumstances of the present case (see paragraphs 8 ‑ 10,12 above) leave no doubt as to the existence of a threat to the applicant’s life or physical integrity such as to bring his complaints within the ambit of Article   2, which is therefore applicable to the present case. The Court will examine the question of the existence of a positive obligation to protect life under the merits of the applicant’s substantive complaint under Article 2 of the Convention. 2.     The parties’ observations on admissibility (a)     Abuse of the right of application 65.     The Government contended that the applicant had abused his right of application. Namely, he had misled the Court by stating that the injuries he had sustained as a result of the aircraft accident had prevented him from pursuing his career as a pilot. It appears that since July   2010 the applicant has been employed as a pilot in an airline company. 66.     The applicant submitted that after the accident he had been unable to work in his profession for a long period; in his application to the Court he had not alleged that he had been permanently prevented from pursuing his career. He also explained that even though he had regained his ability to work as a pilot, owing to his persisting health problems, his pilot certificate imposed certain limitations on him, such as a ban on his operating an aircraft without another pilot (see paragraph 10 above). (b)     Non-exhaustion of domestic remedies 67.     The Government argued that the applicant had not exhausted the following domestic remedies. Firstly, with regard to the procedural obligation to investigate, he could have complained to the supervising prosecutor regarding the actions and decision taken in the course of investigation within the criminal proceedings. Secondly, at the time when the observations were made in the present case, the proceedings for civil damages against the third parties responsible had been ongoing before a domestic court. The Government contended that the existing legal framework (Article 92 of the Constitution and the relevant provisions of the Civil Law) and the domestic case-law (see paragraph 57 above) had provided for the possibility to claim D.K.’s civil liability (they referred to him as the aircraft’s owner) and to request compensation for the accident of 16   August   2008. The above argument had already been accepted by the Court in several cases against Latvia where it had held that a decision to discontinue criminal proceedings owing to a lack of corpus delicti had no prejudicial effect in civil proceedings (see, for example, Y. v. Latvia, no.   61183/08, §   71, 21   October   2014). Thirdly, the Government contended that, had the applicant believed that the State had not introduced particular regulations to ensure flight safety back in 2008, and that the failure to introduce such regulations had breached his human rights, he should have relied on Article   92 of the Constitution and instituted proceedings before a court of general jurisdiction (they referred to cases SKC-233/2010 and SKA-726/2012, see paragraph 56 above). 68.     The applicant disagreed and contended that he had had no effective remedies. 3.     The Court’s assessment (a)     Abuse of the right of application 69.     The Court reiterates that, under this provision, among other reasons, an application may be rejected as an abuse of the right of individual application if new, important developments have occurred during the proceedings before the Court and where, despite being expressly required to do so by Rule 47   §   7 of the Rules of Court, the applicant has failed to disclose that information to the Court (see Gross v. Switzerland [GC], no.   67810/10, §   28, ECHR 2014, with case-law cited therein). However, even in such cases, the applicant’s intention to mislead the Court must always be established with sufficient certainty (ibid.). In the present case, the available information provided by the applicant in his observations (see paragraph 66 above) does not indicate that he intended to mislead the Court. 70.     Accordingly, the Court dismisses the Government’s objection. (b)     Non-exhaustion of domestic remedies 71.     In relation to the Government’s first argument that, with regard to the procedural obligation to investigate, the applicant could have complained to the supervising prosecutor regarding the actions and decisions taken in the course of the investigation within the criminal proceedings, the Court notes that the case was subsequently examined by the domestic courts. The applicant had the possibility to lodge any complaints during the trial, and he pursued them to the highest level of domestic courts by lodging an appeal on points of law (see paragraph 28 above). Moreover, the applicant’s complaint in the present case pertains to the possibility of obtaining compensation from a third party and alleged shortcomings in the legal regulation of the safety of private flights (see par