MINDROVA v. UKRAINE
Inadmissible
André Potocki;Angelika Nußberger;Ganna Yudkivska;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev
1. The applicant, Mrs Tetyana Oleksiyivna Mindrova, is a Ukrainian national who was born in 1956 and lives in Lviv. She was represented before the Court by Mr V.M. Skakun, a lawyer practising in Kyiv. 2. The Ukrainian Government (“the Government”) were represented by their Agents, most recently, Mr I. Lishchyna. 3. On 27 July 2002 Oleg Zheykov, the applicant’s nephew born in 1991 was killed in the Sknyliv air show accident (for more details concerning the accident, ensuing investigation and State aid to the victims see Mikhno v. Ukraine (no. 32514/12, §§ 6-8, 12-58 and 67-71, 1 September 2016). 4. On 8 August 2003 the applicant lodged a civil claim against the Ministry of Defence seeking 75,000 hryvnias (UAH) in damages on account of her nephew’s death. This claim was joined to the criminal proceedings instituted against military officers accused of negligent conduct resulting in the accident. 5. On 6 December 2004 the applicant increased the amount of her initial claim to UAH 1,066,000. According to her, this figure represented the equivalent of the amount allocated by the Government of Ukraine per death of each Israeli and Russian national under the recently ratified interstate friendly settlement agreements concerning the crash of a TU-154M airliner on 4 October 2001. That airliner had exploded over the Black Sea while en route from Tel-Aviv, Israel, to Novosibirsk in the Russian Federation. The exact causes of that accident had not been established; however, according to the leading version of the investigation, the airliner had been accidentally shot down by a Ukrainian missile launched during military training manoeuvres. 6. During the trial, the applicant submitted that she had been Oleg Zheykov’s primary caretaker since his infancy, as his parents had not taken care of him. Although she had had no formal guardianship over Oleg, they had a very close relationship. Losing him for her was the same as losing her own son. 7. On 23 June 2005 the Central Region Military Court of Appeal found five military officers guilty of negligent conduct resulting in the accident and sentenced them to various terms of imprisonment. 8. On the same date it awarded the applicant UAH 95,000 by way of compensation for non-pecuniary damage in connection with her nephew’s death. O.Z. (Oleg Zheykov’s father) was awarded UAH 5,000 under the same head. 9. The applicant appealed in cassation against this judgment, complaining that the compensation awarded for non-pecuniary damage was grossly inadequate. She also submitted that it was discriminatory to ascribe a value to her nephew’s life that was lower than the lives of the Russian and Israeli nationals who had died in the aforementioned TU-154M airliner crash, for which the military authorities had borne a similar degree of responsibility. 10. On 2 March 2006 the Military Panel of the Supreme Court of Ukraine rejected the applicant’s appeal and upheld the trial court’s judgment. 11. During 2008 four senior military officers (the criminal proceedings in respect of whom had earlier been disjoined) were tried and acquitted by courts at two judicial instances. The applicant did not lodge any civil claims in these proceedings. 12. Article 3 of the Constitution of Ukraine of 1996 reads as follows: “The human being, his or her life and health, honour and dignity, inviolability and security are recognised in Ukraine as the highest social value. Human rights and freedoms and their guarantees determine the essence and orientation of the activity of the State. The State is answerable to the individual for its activity. To affirm and ensure human rights and freedoms is the main duty of the State.” 13. The relevant provisions of the aforementioned agreement, ratified by the Verkhovna Rada of Ukraine on 25 December 2003, read as follows: “The Government (Cabinet of Ministers) of Ukraine ... and the Government of the State of Israel ... Taking note that Israel has formally supported before Ukraine the claims of its citizens, victims of the Air Catastrophe ... Taking note that Ukraine has not recognized any legal obligations or responsibility in connection with the Air Catastrophe ... Have agreed on the following: With a view to full and complete settlement and resolution of any and all disputes ... Ukraine shall pay ex gratia to Israel a lump sum of USD 7,590,933.34 ... for the benefit of Israeli heirs, successors and dependents ... of the victims of the Air Catastrophe ... ... after the payment of the amount of settlement ... the State of Israel, its bodies, citizens, legal entities ... shall drop and forever relieve Ukraine ... from any and all claims ... This Agreement does not constitute any acknowledgment on the part of Ukraine. This Agreement does not constitute a juridical precedent and shall be used only with a view to fulfil its provisions ...” 14. This agreement, ratified by the Verkhovna Rada of Ukraine on 4 June 2004, envisaged the transfer to the Russian Government of USD 7,809,066.66 on terms similar to those stipulated in the analogous agreement with the Government of Israel.