MINISTRY FOR DEFENCE ACCEPTS STATE’S LIABILITY FOR YAK-42 ACCIDENT

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Ministerio-de-Defensa

The Minister for Defence, María Dolores de Cospedal, signed the ruling in the administrative case relating to the applications for compensation brought by the families of the 62 Spanish servicemen that died on 26 May 2003 in Trabzon (Turkey). This ruling comes after the mandatory opinion handed down by the Council of State on 20 October 2016.

​The Ministry for Defence, as announced by the minister to the families at their meeting on 10 January 2017, accepts the State’s liability for the plane crash.

“Following years of administrative and judicial proceedings, the State accepts its liability”, concludes the report in its legal findings. After the commitment taken on by María Dolores de Cospedal, the whole text was presented to the representatives of the Yak-42 Victims’ Association.

The administrative ruling contains the main conclusions reached by the Council of State on the acceptance of the State’s liability, such that “the application of this doctrine to the tragic event that constitutes the object of the present administrative case must draw the conclusion that the State is liable”, explains the report drawn up by the Ministry of Defence.

According to the report, “facts prior to the date of the accident have been proven which would have allowed the administration to weigh up the special risk in transporting troops that existed in the circumstances in which the accident took place”.

Recognition, respect and memory

The case file sets out in detail that “in the present case, the only outcome is the obligation of the public administration to guarantee the State’s extra-contractual liability”. Accordingly, “on the occasion of this action by the military administration to transport members of the armed forces pursuant to certain international commitments taken on within the framework of defence policy, this tragic event took place culminating with the death of the 72 Spanish servicemen on board, unfortunately, giving rise to unlawful harm that the families affected are not under a legal obligation to bear”, adds the ruling.

62 Spanish servicemen died on 26 May 2003 in Trabzon (Turkey).

In its legal findings, the ruling also states that “this unlawful harm must be duly recognised by this ministerial department, clearly in line with the rules in force on the matter of redressing this harm caused but also, as must be the case, as an expression of the institutional support for the recognition, respect and memory of the Spanish servicemen who gave their lives in the defence of the national interest while fostering international peace”.

Accordingly, it underlines the “worthy support to the patriotism of the members of the armed forces and also of those in their personal environment, since the delay in the proceedings and the errors and circumstances subsequent to the tragedy have only served to exacerbate this pain”. In short, “Following years of administrative and judicial proceedings, the State accepts its liability”.

Sale Agreement

Specifically, the administrative ruling implies that the Sale Agreement signed with NAMSA, responsible for chartering the flight, does not amount to “a total and complete transfer of responsibilities on the execution of the contract to NAMSA, with the simultaneous and total divestment of powers to oversee and control by the military authorities concerned. This can be deduced from the literal interpretation of the clauses, which accept certain powers that are translatable into duties to control and oversee”.

Documentation

Specifically, and in relation to the contracts and documentation that the Ministry of Defence has been able to access in drafting its report, “we have been able to reliably substantiate that no money was paid whatsoever for the tragic flight since an official communication was received in this regard from the NSPA (the current agency that replaced NAMSA within the framework of NATO), dated 16 January 2017. Similarly, it has been substantiated that out of the amount of 149,000 euros comprising the total cost of the flight, 95,360 euros corresponded to the payment of the flight time, 38,740 to the cost of fuel, and 14,900 euros to take-off and handling charges”.

However, “and despite the new enquiries made for this ministerial department, no more information has been obtained on the specific aspect of the sub-contracting of the different flights to transport troops that could have taken place under the provisions of the contract entered into between NAMSA and Chapman”.

Ruling on compensation

At any event, the assumption of administrative liability does not give rise to the payout of further compensation, as some families claimed back in 2004, the application for which was the origin of the file. In this regard, special emphasis was placed on “the significant compensation deriving from the different mechanisms that have operated in the present case”, and hence “no further compensation should be paid out as a result of the State’s liability”. Therefore, the Ministry of Defence rules to turn down the claims brought.

Commitment to the victims

The ruling on this administrative case takes place after the meeting held between the Minister for Defence and the del Yak-42 Victims’ Association on 10 January, following the opinion issued by the Council of State. On 16 January, María Dolores de Cospedal appeared at her own request in the Lower House of Parliament to report on this issue. Furthermore, the President of the Government, Mariano Rajoy, received the families at Moncloa Palace on 31 January.

 

 

 

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