CASE OF R.Š. v. LATVIA
No violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect);No violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Effective investigation) (Procedural aspect)
André Potocki;Angelika Nußberger;Erik Møse;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev
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. 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. 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. 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 PA31 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. 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. 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 pretrial 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 91 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). 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. 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.”