Oleksandr CHALY on payments to the relatives of those killed in the Tu-154 crash

The subject of the compensation Ukraine is to pay to the families of those killed in the crash of Sibir Airlines’ Tu-154 on October 4, 2001, is from time to time broached by the press in various contexts and from different points of view. Many reports focus on the lawsuits filed in Kyiv’s Pechersky Court by the victims’ relatives over Ukraine’s alleged failure to meet the obligations it has assumed. Diplomats have drawn a veil of secrecy over whether Ukraine really managed to reach a basic agreement with Israel on the procedure of making such payments (Israeli citizens were the majority of those killed). It is unclear from diplomatic statements why negotiations with Russia on this issue have bogged down. The amounts to be paid also remain secret. All this hardly improves Ukraine’s overall image abroad. Asked by The Day, Foreign Ministry State Secretary Oleksandr CHALY, chair of the Ukrainian Interdepartmental Commission, confirmed that Ukraine had finished talks with Israel on signing an intergovernmental agreement about the aforesaid payments, the only still-to-be-solved problem being the concrete amount to be paid. As to Russia, Mr. Chaly says Kyiv expects the latter to show “understanding and flexibility.” Ukraine’s position is that, first, damages payable to the victims’ relatives should be considered as voluntary payments, and, secondly, Kyiv is seeking an out-of-court settlement of the problem. According to the diplomat, the amounts Ukraine offers exceed both the damages claimed by the victims’ families and the amounts payable today by court order in Ukraine and CIS countries. But is this enough to assuage passions?

“What is the current situation about settling the consequences of the Russian passenger plane crash on October 4, 2001?”

“By mutual consent of the governments of Ukraine, Russia, and Israel, the consequences of the Sibir Airlines Tu-154 plane crash are being settled on the political level by means of intergovernmental consultations. These consultations made it possible to formulate the key principles of settling the crash’s consequences. They are as follows: settlement is to be reached by means of intergovernmental mechanisms out of court; settlement is to be based on current international practices; the government of Ukraine will offer, as a humanitarian act, voluntary payments to the governments of Russia and Israel, to be further distributed among the victims’ relatives; payments will be made on a non-discriminatory basis to the citizens of Russia and Israel; the victims’ relatives who agree to receive the offered compensation will withdraw their suits against Ukraine by signing a document to that effect. We have practically completed talks with the Israeli side on drafting an intergovernmental agreement. We are grateful to the Israeli side for showing understanding of the Ukrainian side’s position, for its flexibility and professionalism. The only crucial question still to be discussed with the Israeli side is the amount of compensation to be paid to crash victims’ families. As to negotiations with the Russian side, a number of the draft intergovernmental agreement’s provisions sensitive to the Ukrainian side still remain undecided as do the amounts of compensation to be paid. Simultaneously, we believe that all negotiating resources have not yet been fully tapped and expect the Russian Federation to show understanding and flexibility. The mutual understanding reached with the Israeli side gives us ample grounds to believe that we will find positive decisions with the Russian delegation too.”

“You mentioned voluntary payments to the victims’ relatives from the government of Ukraine. Would it be more correct to call it Ukraine’s obligation to pay damages for the crash? Besides, what does a voluntary payment mean? Is this a misnomer?”

“No, it is not a misnomer but Ukraine’s position of principle. In the course of intergovernmental talks and consultations, the Ukrainian delegation has said it admits Ukraine’s involvement in the Tu-154 crash but at the same time rejects categorically Ukraine’s international juridical responsibility for the crash. This standpoint is based on the fact that, as the investigative commission found, the crash occurred due to a tragic and unforeseen concurrence of circumstances, not through an illegal and guilty act by Ukraine. Therefore, admitting Ukraine’s involvement in the crash and at the same time taking into account that this involvement is not illegal and guilty, the government of Ukraine is taking measures to relieve the sufferings of the crash victims’ relatives by, among other things, rendering them material assistance. I would also like to note that other states have also adopted the same attitude in similar situations: damages were paid to victims’ families without recognizing and outside the context of the juridical responsibility of the states involved in air accidents. It is this approach that allows the parties to achieve the fastest and most effective settlement and to concentrate on taking a set of measures to avert this kind of accidents in the future.”

“When can an intergovernmental settlement be reached?”

“Our position is that settlement should be reached by October 2003, the second anniversary of the tragedy. We have all the prerequisites for this. I would also like to note in this connection that Ukraine’s 2003 national budget includes funds required for paying damages to the victims’ relatives. Under the current budget rules, these funds should be spent in 2003, otherwise they will be out of reach for an intergovernmental settlement.”

“What turn do you think the situation will take should the victims’ relatives not be content with the offered amount of damages or the governments fail to reach agreement?”

“The government of Ukraine will do its utmost to reach a settlement on an intergovernmental level. We presume in this case that this kind of settlement will also be in the interests of Russia and Israel. If the victims’ relatives, as well as the governments of Russia and Israel, reject the compensation offered by the Ukrainian side, the matter will most probably be taken up by the courts. At the same time, we do not rule out seeking other ways of out-of-court settlement, for example, by unilaterally establishing a damages-payment foundation and cooperating with the victim’s relatives directly, without the mediation of the governments of Russia and Israel. However, this way of settlement has a number of drawbacks and creates additional difficulties compared to a bilateral intergovernmental settlement.”

“At present, Kyiv’s Pechersky District Court is considering several claims from relatives of those killed in the crash. As is known, the Ukrainian government’s defense attorneys insist during the court sessions that there is no direct evidence that the airplane was hit by a Ukrainian missile. But you said that, as attempts to reach an intergovernmental settlement are being taken, Ukraine, including the Interdepartmental Commission which you head, admits its implication in the crash. Is this not a contradiction?”

“This is no contradiction. The work of the Ukrainian Interdepartmental Commission and the court examination of the suits filed by the victims’ relatives are two different, formally and factually independent, processes. An intergovernmental settlement can only be based on the political admission of Ukraine’s implication in the crash. This does not mean, however, that the Ukrainian government’s defense attorneys should automatically toe the line of the Ukrainian Interdepartmental Commission. First, an international settlement can be reached in the field of international law by applying political and diplomatic levers, while a court session is conducted under civil and procedural law. Secondly, under civil and procedural law, the court should conduct a comprehensive and unbiased examination of all circumstances of the case in the aggregate. With this in view, the Ukrainian government’s defense attorneys have every right to ask the court for a thorough investigation of all the circumstances of the crash. Nobody can rule out that new circumstances might arise in the course of a trial. Third, the government of Ukraine is striving to reach a settlement on the intergovernmental level and tries to avoid a court settlement which involves a certain degree of formalism, lengthy proceedings, and an uncertain final result. If the courts legally determine that Ukraine was implicated in the crash, this will mean a purely judicial way of settlement. At the current stage, this will run counter to the agreements made with Israel and Russia on an intergovernmental settlement. Fourth, the burden of proof in Ukraine’s civil and procedural courts lies with plaintiffs. It should also be noted in this connection that the government of Ukraine did not initiate the aforesaid court proceedings. In the context of all of this, the position of the Interdepartmental Commission cannot predetermine that of the Ukrainian government’s defense attorneys in court. These positions can coincide and differ in certain respects.”

“Does the Ukrainian side use in the course of intergovernmental talks the new facts that emerge during the court sessions?”

“Without a doubt. We inform the Russian and the Israeli sides of all new factual evidence that is in the mutual interest of participants in the intergovernmental talks. For example, in the latest round of talks we requested the Russian delegation comment on the Russian legal provision that says it is necessary to install and ensure trouble-free operation of the Parol radar identification system responder onboard the Tu-154 plane. We attach paramount importance to this question first of all because insurance companies keep requesting the government of Ukraine to compensate them for insurance payments made in favor of Sibir Airlines. After all, this could be a question of Sibir’s civil and legal liability, which, in our opinion, gives the victims’ relatives a chance to receive additional money. We have also requested the Russian side furnish us the service record of the Russian defense ministry’s 31st Test Center, the place where a missile firing exercise was held on October 4, 2001.”

“What amounts of damages are you considering? What is the procedure of assessment?”

“As to the methods of assessing the damages payable to the victims’ relatives, we take into account the international nature of the crash, the current international practice in respect to similar accidents, as well as the specifics that distinguish the October 4, 2001, crash from preceding ones. In this context, we consider it fair to assess the amounts to be paid according to the formula, ‘the amount of payments on the part of Ukraine should correspond to the amount of payments offered in similar situations in the past by one of the states whose citizens suffered in the crash on October 4, 2001.’ In addition, as current international practice requires, also taken into account should be such things as Ukraine’s financial status and gross domestic product, the financial situation of victims, indices of subsistence level, and other relevant factors. The amount of damages offered by the Ukrainian side is derivative of all these factors. Any other approach to assessing the amount of payments by the Ukrainian government would have extremely negative consequences, particularly, if Verkhovna Rada discussed ratification of the intergovernmental agreements reached. I would also like to note that during the latest round of intergovernmental consultations with the Russian and Israeli sides the Ukrainian side clearly announced and was ready to make public the concrete amounts of damages. Yet, the Russian and Israeli sides requested that we refrain from commenting on specific amounts in the media. All I can say at the moment is that the amount of damages the Ukrainian side is prepared to pay the victims’ relatives exceeds the one claimed by Kyiv’s Pechersky District Court plaintiffs. The amount of compensation offered also exceeds damages usually awarded by courts in Ukraine and, according to the information available, by the courts of CIS states in the same or similar situations.”