On May 26, 2003, a Russian-made Yak-42 military transport plane carrying 62 members of the Spanish armed forces back from Afghanistan crashed into a mountainside near the Turkish city of Trabzon. José Manuel Sencianes, a sergeant in the air force aged just 30, was among them. His brother, Miguel Ángel Sencianes, who heads the association set up by families of the victims, says the Spanish justice system has failed: "None of those responsible for the catastrophe has paid for their actions, and nobody has apologized to us."
Ten years is a long time. The victims' younger brothers and sisters are now teenagers or adults, and some of them have joined the armed forces themselves. Some of the widows have started new lives. Many parents have died without knowing why their children were taken away from them. Time passes, but trials and appeals have failed to untangle the knots of lies and complicity.
On February 13, the Constitutional Court rejected an appeal by the families against the closure of the investigation into the many irregularities involving the hiring of the Yak-42. The Court summed up its arguments for closing the case in a single paragraph alleging the "manifest inexistence of the violation of any fundamental law," despite the belief of the State Prosecutor's Office that the accident was "foreseeable," and the result of "serious negligence" and an "absolute lack of diligence," and the fact that six senior officials - among them Admiral Antonio Moreno Barberá and Lieutenant General Juan Luis Ibarreta, the former heads of the High Command and the Joint Chiefs of Staff, respectively - were charged. The experts concluded that the accident was caused by either human error by the pilots, a dangerous maneuver, or for reasons unknown. What is clear is that the pilots were not properly trained to use the Yak-42, and were extremely tired when they undertook the flight.
No one has paid for their actions, and no one has apologized to us"
To start with, neither the fuel indicator nor the system for recording all conversations between the crew were working. These breakdowns did not cause the accident, but according to international aviation rules, were sufficient cause to have the plane grounded.
The decision to close the case means no investigation into why Ukrainian-Mediterranean Airlines (UM Air), a company that would later be put on the International Civil Aviation Organization's blacklist and is now bankrupt, was contracted to organize the transport of the troops, nor what happened to the 110,558 euros left over after UM Air had been paid 38,442 euros from a total of 149,000 euros assigned by the Defense Ministry.
To answer that question would have involved investigating the chain of half-a-dozen subcontractors involved. The current head of the National Intelligence Center, General Félix Sanz Roldán, ordered a thorough investigation to find the relevant contracts, but several of them had been interfered with and the amounts scratched out. The judge overseeing the case also asked to see the reports on 41 previous flights, the cost of which amounted to 8.8 million euros.
Trials and appeals have failed to untangle the knots of lies and complicity
The Spanish Defense Ministry attempted to put all responsibility on NAMSA, NATO's Maintenance and Supply Agency, which in turn has said its job is merely to verify documentation, not to establish the air-worthiness of aircraft used for transporting NATO member states' military personnel. But the Yak-42 that crashed in Turkey was not even insured properly, and the Spanish Defense Ministry had to pay out 75,000 euros for each death, a total of 4.6 million. The money was paid by the state, and was never recovered.
Having exhausted all legal recourse in Spain, the families of the victims say they will now take their case to the European Court of Human Rights in Strasbourg.
Not that there haven't been victories in three trials in Spain: one in Madrid and another in Zaragoza, where the civil action suit had to be repeated. On May 19, 2009, it looked as though justice would be done. The High Court in Madrid condemned General Vicente Navarro to three years in jail, while majors José Ramón Ramírez and Miguel Ángel Saéz were sentenced to 18 months behind bars for falsely identifying 30 of the 62 bodies. Navarro and his assistants did not mistake the identities of the dead soldiers, but simply attributed the names of the 30 victims, which in many cases were burnt beyond recognition, ad hoc, "with deliberate intent to not tell the truth," according to the sentence, which was subsequently ratified by the Supreme Court.
The pilots were not properly trained to use the Yak-42, and were extremely tired
Navarro never went to prison; he died in June 2010. The two majors were not dishonorably discharged, as the sentence required. In April last year, just four months after he took office, Prime Minister Mariano Rajoy pardoned the two men. Federico Trillo, who was the Defense Minister at the time of the disaster, told Navarro to repatriate the bodies to Spain "as quickly as possible," in time for a state funeral. Trillo is now Spanish ambassador to the United Kingdom.
UM Air has yet to assume its responsibilities, nor has Chapman Freeborn, the company that chartered the flight via the Ukrainian outfit. In September, the Supreme Court ratified a sentence ordering the two companies to pay a total of 6.1 billion euros to the families of the victims, but there has been no payout. Chapman is based in Germany; any payment will require the involvement of the German justice system. As regards UM Air, Leopoldo Gay, the lawyer for the victims' association, shrugs his shoulders when asked why no legal action has been brought in Ukraine: "that company's solvency is in doubt."
Ten years on, the families are right back where they started: the case is closed. They say they will now refile their claim against the Spanish state for damages. They have been compensated in line with the payments made to any family members of Spanish soldiers killed in action. They now want the state to accept its responsibility for sending their loved ones to a conflict zone without taking the due safety measures. If the state is not responsible, they ask, who is?