GAVRYLOVA AND OTHERS v. UKRAINE
Inadmissible
André Potocki;Angelika Nußberger;Ganna Yudkivska;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev
1. A list of the applicants, who lodged the present applications between 23 December 2005 and 31 August 2006, is set out in the appendix. 2. The Ukrainian Government (“the Government”) were represented by their Agents, most recently, Mr I. Lishchyna. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 27 July 2002 the Air Force of Ukraine staged a military aviation show at the Sknyliv aerodrome in Lviv. During the aerobatics performance, an SU-27 military aircraft crashed into a crowd of spectators and exploded. Both pilots had successfully ejected before the explosion. As a result of the crash, seventy-seven people were killed and over 290 people, including the applicants, sustained damage to their health (see details in paragraphs 17-50 below). 5. On the date of the accident criminal proceedings were instituted to establish the cause of the crash. 6. On various dates the applicants were admitted in these proceedings as injured parties and civil claimants. Following individualised assessments of the applicants’ injuries by forensic experts within the framework of those proceedings, they were divided in three categories: “minor injuries”, “injuries of intermediate seriousness” and “grave injuries” depending on their impact on the applicants’ health and well-being, the reversibility or irreversibility of their nature, the length of recovery and the intensity of the medical intervention required. The seriousness of both the physical and the emotional trauma were taken into account in the process of attribution to a category. 7. On 27 August 2004 the criminal proceedings against four officers of the rank of general (hereinafter “the organisers’ case”) were disjoined from the criminal proceedings against the pilots and the supporting ground crew (hereinafter “the performers’ case”). 8. On 23 June 2005 the Central Region Military Court of Appeal examined the performers’ case and found the two pilots of the crashed aircraft and three supporting crew members guilty of negligence. These officers were sentenced to various terms of imprisonment. 9. On the same date the court also ruled on the applicants’ civil claims, awarding them various amounts in respect of pecuniary damage (mostly medical expenses) and non-pecuniary damage in connection with physical injuries and emotional distress, to be paid by the Ministry of Defence (see details in the appended table below). 10. The applicants appealed, seeking, in particular, an increase in the compensation payments. 11. On 2 March 2006 the Military Panel of the Supreme Court of Ukraine rejected the applicants’ appeals and the judgment in the performers’ case became final. 12. Between June 2006 and March 2007 all the judgment awards due to the applicants were paid out. 13. Some applicants lodged further civil claims within the framework of the organisers’ case, which was still ongoing at the material time. 14. On 11 June 2008 the Central Region Military Court of Appeal examined the organisers’ case and acquitted the four officers charged in these proceedings. 15. On 22 October 2008 this decision was upheld on appeal by the Military Panel of the Supreme Court of Ukraine and all the civil claims lodged within the framework of the organisers’ case were left unexamined in view of the acquittal. 16. On various dates starting from 2002, in addition to the compensation awarded by the court, almost all of the applicants also obtained payments in State and municipal aid from the Sknyliv accident victim relief funds (see details in the appended table below). Every applicant also obtained further payments ranging from 2,620 hryvnias (UAH) (Ms Liliya Belinska; minor emotional injury) to UAH 41,000 (Mr Denis Gavrylov; grave injury) from charitable funds set up and managed by the authorities to attract private donations in aid to the Sknyliv accident victims. On various occasions some of the applicants were also provided with vacation vouchers and recreational treatment vouchers to facilitate their mental and physical recovery. For more details concerning the accident, the ensuing investigation and State and municipal aid to the victims see Mikhno v. Ukraine, no. 32514/12, §§ 12-58 and 67-71, 1 September 2016 and Svitlana Atamanyuk and Others v. Ukraine, nos. 36314/06 and 3 others, §§ 17-64 and 71-75, 1 September 2016). 17. The present application was lodged by two Ukrainian nationals who are resident in Lviv: Mrs Tetiana Kostyantynivna Gavrylova, born in 1949 and Mr Denis Oleksandrovych Gavrylov, born in 1987. Mrs Tetiana Gavrylova is the mother of Mr Denis Gavrylov. The applicants were represented by Mr T.R. Sendega, a lawyer practising in Lviv. 18. As a result of the Sknyliv air show accident, Mrs Tetiana Gavrylova sustained a blunt soft tissues leg injury with haemorrhage and multiple abrasions cumulatively classified by domestic forensic experts as injuries of “intermediate seriousness”. 19. Mr Denis Gavrylov had his popliteal artery and right leg muscles crushed. He also sustained multiple abrasions, contusions and other injuries cumulatively classified by domestic forensic experts as a “grave injury”. Following the accident, he underwent treatment in the hospital rehabilitation unit followed by lengthy inpatient and outpatient treatment. 20. By the time the present application was lodged in December 2005, Mr Gavrylov had been classified as suffering from “second (intermediate) degree” disability under domestic classification and was in receipt of a disability pension. 21. The present application was lodged by three Ukrainian nationals resident in Lviv: Mrs Natalya Yaroslavivna Chorna, born in 1971, Mr Anton Bogdanovych Chornyy born in 1977 and Mr Bogdan Antonovych Chornyy, born in 1999. The first two applicants are spouses and the third applicant is their son. They were represented by Mr D.A. Gudyma and Ms S.V. Khyliuk, lawyers practising in Lviv. 22. According to the applicants, they were so close to the site of the SU27 aircraft crash that their clothes were stained with the blood and body parts of people injured and dying around them. In order to reach safety, they had to make their way past numerous mutilated corpses and disfigured screaming people along the aerodrome runway. 23. Mrs Natalya Chorna sustained an ankle injury with a ligament rupture, contusion and haematoma. Subsequently she was also diagnosed as suffering from post-traumatic stress disorder, which transformed into asthenic-depressive neurosis. Her injuries were classified as injuries of “intermediate seriousness” by domestic forensic experts. 24. Mr Anton Chornyy was diagnosed as suffering from post-traumatic stress disorder. His psychological trauma was classified by domestic forensic experts as a “minor injury”. 25. Mr Bogdan Chornyy, a three-year old minor at the date of the accident, sustained a contused cerebral wound, concussion and a haematoma. He also developed post-traumatic stress disorder, which included symptoms such as fear of crowds and sleep disturbance. He also suffered from various forms of physiological dysfunction, including a stutter and disruption of his speech development. Mr Bogdan Chornyy’s injuries were classified by the domestic forensic experts as ones of “intermediate seriousness”. On several occasions in the years that followed, Mr Bogdan Chornyy was placed on inpatient treatment programmes in psychoneurological institutions. 26. According to the applicants, at the date of the exchange of observations in 2013, they were still suffering from the after-effects of the accident. They provided numerous medical documents as evidence that they had continued to be under on-going medical supervision in connection with the psychological trauma sustained at the accident site. 27. The present application was lodged by Mr Boris Borisovich Yudin, a Ukrainian national born in 1946 and resident in Lviv. The applicant was represented by Ms Y.V. Kulbiy-Kukhar, a lawyer practising in Lviv. 28. As a result of the Sknyliv air show accident, Boris Yudin sustained a heavy cerebral contusion with subarachnoid haemorrhage and a fracture of the clavicular bone. For six days after the accident he was in a coma. Upon regaining consciousness, he suffered from partial amnesia, temporary speech loss, hallucinations and was unable to walk. Following intensive inpatient neurological treatment, Boris Yudin regained some cerebral functions. However, he never attained full recovery and by 2006 he had been classified as suffering from disability of “the first degree” in need of outside assistance for meeting basic daily needs. According to classification by domestic forensic experts, Boris Yudin’s trauma was classified as a “grave injury”. 29. The present application was lodged by two Ukrainian nationals ‒ Mrs Iryna Grygorivna Reshetilova, born in 1950, and Mr Viktor Mykhaylovych Yegorov, born in 1957, and a US national ‒ Mr Nikita Sergejevich Bastrakov, born in 1998. The first two applicants are the grandparents of the third applicant. All three applicants are resident in Lviv. They were represented by Mr A.P. Syvyk, a lawyer practising in Lviv. 30. According to the applicants, on the date of the accident, moments before the SU-27 hit the ground, Mr Bastrakov − a four-year-old minor at that time − was watching it with his mouth open, while Mrs Reshetilova said to him in amusement: “Wow, look how low can this airplane fly!” The next moment, Mr Yegorov, having suddenly realised that the aircraft was falling, pushed his grandson to the ground and covered him with his body, urging his wife to likewise lie on the ground. Moments later, the applicants were hit by the heat wave from the aircraft’s turbines, which burnt their clothes and skin. The soles of Mr Yegorov’s shoes were also completely burned. When the applicants finally got onto their feet, they were covered with other people’s blood and with soot from the aircraft, which had exploded some distance from them. 31. As a result of the accident, Mrs Reshetilova suffered multiple burns to her face, limbs and eyes. The heat wave from the aircraft’s turbines also entered her respiratory system and burned her larynx, trachea, bronchi and lungs. In addition, Mrs Reshetilova suffered an acute neurological reaction to stress. Domestic forensic experts classified her injuries as “minor”. According to the applicant, this classification was incorrect, as she had never fully recovered from her injuries. She provided extensive medical documentation as evidence to prove that the after-effects of her injuries included chronic obstructive bronchitis, pulmonary emphysema, encephalopathy, and various other medical complications. By 2006 Mrs Reshetilova had been classified as suffering from general disability of the “third (mildest) degree” according to the domestic classification system. 32. Mr Viktor Yegorov sustained contusion of the chest area, fractures of the fifth and seventh vertebra and multiple abrasions cumulatively classified by domestic forensic experts as “injuries of intermediate seriousness”. He also developed complications, including frequent headaches, back pain and a number of other neurological symptoms. 33. Mr Nikita Bastrakov sustained a hand wound, face abrasions and post-traumatic stress disorder manifested most markedly, through phobias, asthenic symptoms and bed-wetting. His injuries were classified by domestic forensic experts as being of “intermediate seriousness”. 34. The present application was lodged by Mrs Galyna Ivanivna Kurylka, a Ukrainian national born in 1958 and resident in Lviv. The applicant was represented by Mr D. A. Gudyma and Mrs S. V. Khyliuk, lawyers practising in Lviv. 35. As a result of the accident, the applicant suffered contusion of her foot and developed post-traumatic stress disorder classified by domestic forensic experts as a “minor injury”. According to the applicant, this classification was incorrect, as her mental state had in fact deteriorated to a point that she was forced to quit her employment as a kindergarten mentor. After a series of inpatient and outpatient treatment programmes, in 2006 Mrs Kurylka was classified as suffering from “second-degree” (moderately serious) disability and unfit for work, excluding the performance of domestic tasks. At the time of the exchange of observations in 2013, Mrs Kurylka was unemployed on a disability pension and was under permanent outpatient psychiatric supervision. In addition, several times per year she participated in courses of inpatient rehabilitative treatment in psycho-neurological institutions. 36. The present application was lodged by Ms Khrystyna Viktorivna Koshulap (married name Dzyunka), a Ukrainian national born in 1989 and resident in Lviv. She was represented by Mr D.A. Gudyma and Ms S.V. Khyliuk, lawyers practising in Lviv. 37. As a result of the Sknyliv air show accident, Ms Koshulap, a thirteen-year-old minor at that time, sustained a complicated hand injury with damage to the extensor tendons classified by domestic forensic experts as an “injury of intermediate seriousness”. She underwent a series of reconstructive operations followed by inpatient and outpatient treatment programmes. It is not clear from the case file whether the applicant has fully recovered. 38. The present application was lodged by two Ukrainian nationals resident in Lviv: Mr Anatoliy Romanovych Garasymiv, born in 1964, and Mr Volodymyr Anatoliyovych Garasymiv, born in 1991. Mr Anatoliy Garasymiv is the father of Mr Volodymyr Garasymiv. The applicants were represented by Mr D.A. Gudyma and Ms S.V. Khyliuk, lawyers practising in Lviv. 39. As a result of the Sknyliv air show accident, Mr Anatoliy Garasymiv sustained cerebral concussion, multiple facial and head burns, as well abrasions to the fingers and knees, cumulatively classified by domestic experts as “minor injuries”. According to him, this classification was incorrect, as he had never regained his health and continued to suffer from the after-effects of the accident at the date of the exchange of observations in 2013. As a result of his physical injuries and stress, Mr Anatoliy Garasymiv started suffering, in particular, from frequent headaches, hypertonic disease, and other complications. Within a few months of the accident he was forced to abandon his career as a military wind instrument player and was eventually dismissed from the military forces on health grounds. By 2006, Mr Anatoliy Garasymiv was classified as suffering from disability entailing 40% loss of capacity to work. 40. Mr Volodymyr Garasymiv, an eleven-year-old minor at the date of the accident, developed post-traumatic stress disorder classified by domestic experts as “minor injury”. 41. The present application was lodged by Ms Liliya Bogdanivna Belinska (married name Salo), a Ukrainian national born in 1985 and resident in Lviv. She was represented by Mr D.A. Gudyma and Ms S.V. Khyliuk, lawyers practising in Lviv. 42. As a result of the Sknyliv air show accident, Ms Liliya Belinska, a seventeen-year-old minor on the date of the accident, developed posttraumatic stress disorder, which was treated on an outpatient basis. Her trauma was classified by domestic forensic experts as a “minor injury”. 43. The present application was lodged by Ms Liubov Grygorivna Stupets, a Ukrainian national born in 1961 and resident in Lviv. She was represented by Mr D.A. Gudyma and Ms S.V. Khyliuk, lawyers practising in Lviv. 44. Ms Liubov Stupets sustained rupture of the acromio-clavicular ligament, her injury having been classified by domestic experts as one of “intermediate seriousness”. According to the medical documents presented by Ms Stupets, treatment of this trauma required several surgical interventions and extensive inpatient rehabilitation treatment. The applicant had to abandon her career in sports and as a school physical education teacher. In November 2002 she was classified as suffering from disability of the “third degree”. By 2006 her state of health was still deteriorating: she developed post-traumatic arthritis, pain syndrome, and a number of neurological and other conditions. At the date of the exchange of observations in 2013, the applicant was receiving a disability pension. 45. The present application was lodged by Ms Nataliya Yaroslavivna Sivanych (married name Buntseva), a Ukrainian national born in 1985 and residing in Lviv. She was represented by Mr D.A. Gudyma and Ms S.V. Khyliuk, lawyers practising in Lviv. 46. As a result of the Sknyliv air show accident, Ms Nataliya Sivanych sustained cerebral concussion, numerous wounds and fractures of several foot bones, which required inpatient treatment followed by an outpatient rehabilitation programme. The applicant’s injuries were cumulatively classified by domestic forensic experts as ones of “intermediate seriousness.” 47. The present application was lodged by two Ukrainian nationals residing in Lviv: Mr Anatoliy Mykolayovych Shevchuk, born in1967 and Mr Andriy Anatoliyovych Shevchuk, born in 1991. Mr Anatoliy Shevchuk is Mr Andriy Shevchuk’s father. The applicants were represented by Mr D.A. Gudyma and Ms S.V. Khyliuk, lawyers practising in Lviv. 48. According to the applicants, as the fallen aircraft exploded, parts of it flew their way. Both of them would have probably been killed, had it not been for Mr Anatoliy Shevchuk’s quick reaction: he managed to push his son to the ground and cover him with his body just before the moment they would have otherwise been hit by these flying parts. When the applicants got up, they saw numerous mutilated bodies of dead, burnt and wounded people around them. Whilst attempting to provide first aid to accident survivors, Mr Anatoliy Shevchuk lost view of his son, who wandered off in the midst of the mutilated bodies and screaming people. After having looked for his son for about an hour, Mr Anatoliy Shevchuk found him uninjured physically, but in a state of deep mental shock, unable to speak or make productive contact with others. Mr Andriy Shevchuk was immediately placed in a psycho-neurological hospital for inpatient treatment. 49. On 28 July 2002 Mr Anatoliy Shevchuk went back to work and attempted to resume his normal duties. However, after suddenly developing a stutter, he applied for psychiatric assistance. 50. Subsequently, both applicants underwent several sessions of inpatient psychiatric treatment followed by outpatient treatment and regular supervision. They were diagnosed with post-traumatic stress disorder classified by domestic experts as an “injury of intermediate seriousness”. 51. Article 49 of the Constitution of Ukraine (1996) provides, in particular, as follows: “ Everyone has the right to health protection, medical care and medical insurance. Health protection is ensured through state funding of the relevant socio-economic, medical and sanitary health improvement and prophylactic programmes. The State creates conditions for effective medical service accessible to all citizens. State and communal health protection facilities provide medical care free of charge; the existing network of such institutions shall not be reduced. The State promotes the development of medical facilities of all forms of ownership. ...” 52. Other relevant provisions of domestic law are cited in the Court’s judgment in the case of Mikhno (cited above, §§ 76-105).