CASE OF BINIŞAN v. ROMANIA
Violation of Article 2 - Right to life (Article 2 - Positive obligations) (Procedural aspect)
Alvina Gyulumyan;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra
5. The applicant was born in 1974 and lives in Lugoj. 6. A private exporting company (“company E”) had concluded a contract with the Lugoj Merchandise Subsidiary of the National Railway Company (Stația CFR Marfă Lugoj) and another private company (company M). The contract provided that company E could use an industrial railway track for the five wagons put at its disposal by the National Railway Company in order to perform all the necessary operations, including customs inspections, for exporting its merchandise abroad. 7. On 20 September 2002, at about 9.30 a.m., S.V. went to Lugoj Railway Station with all the documents relating to the transportation of company E’s merchandise, in order to have the station’s stamp applied to them. When all the documents had been stamped, the manager of company E, together with S.V., went to the Lugoj Customs Office to ask for a customs inspector to carry out an inspection of the wagons and apply the required seals. The applicant was designated to carry out the customs inspection. 8. At about 1 p.m. the applicant went with the manager of company E and S.V. to Lugoj Railway Station. They firstly went to the station’s cash desk, where the manager of company E paid the taxes relating to the transportation of the merchandise and asked to have the consignment note (CIM) stamped. According to the statements of the manager of company E, S.V., and the applicant, an employee of the National Railway Company, M.M., went with them in order to show them where the wagons were. 9. At 1.19 p.m., while he was on top of a wagon trying to apply the customs seals, the applicant was electrocuted. As a result of the accident, the applicant needed 138 days of medical care. He suffered burns to 70% of his body. 10. In most of the official documents regarding the accident, such as the report of the investigation commission of 16 October 2002, the decisions of the courts and the prosecutors, and a medical report drafted on 16 February 2004, it was stated that the applicant’s life was at risk. For almost two months he was in a deep coma in a hospital in Hungary. Because of the severe burns he had serious breathing difficulties and had to undergo multiple skin grafts. 11. Following a decision by the National Pension Authority on 28 May 2004, the applicant was classed as permanently disabled. 12. Two police officers attended at the scene of the accident and drafted a preliminary on-the spot report on the same day. 13. A special commission composed of experts from the Timișoara Labour Inspectorate, the Timișoara Regional Customs Department (Direcția Regională Interjudețeană Timișoara) and the Timișoara Subsidiary of the National Railway Company was set up to investigate the accident. The commission started its investigation on 24 September 2002, four days after the accident. 14. According to the report drafted by the commission, which was completed on 16 October 2002, the accident had occurred because of the improper organisation of the procedure for inspecting the merchandise. It stated that there were several concurrent causes which had led to the applicant’s accident. 15. The report stated that the receipt of the wagons by company E from the National Railway Company had not been effected in accordance with the framework agreement signed on 24 June 2002 by the Lugoj Railway Station and company M, or with the document entitled “Declarație” signed by company M, company E and the National Railway Company. According to a final decision of 25 January 2006, delivered in criminal proceedings, this last document was signed after the accident occurred, but the manager of the National Railway Company back-dated it (see paragraph 36 below). 16. The report also stated that health and safety regulations had not been observed and the applicant’s employer had not ensured that he was properly trained for performing his duties on the railway tracks. 17. The report concluded that the following were responsible for the accident: (i) the manager of company E because he had not organised the customs inspection and had not complied with the above-mentioned agreement; (ii) the applicant because he had not complied with the rules for carrying out the inspection; (iii) the applicant’s superior for not training him on the applicable safety regulations, and (iv) company E, also for not training its employees properly. 18. The Timișoara Regional Customs Department raised certain objections in respect of the report. It insisted that the report mention that the applicant had gone up onto the wagon only after M.M., an employee of the National Railway Company, had assured him that there was no danger of an accident (a reference to the statements of S.V. and the manager of company E, who had been present when the accident occurred). 19. It also pointed out that the applicant had undergone training on 3 June 2002. 20. Finally, it contended that an analysis of the documents and the statements of the witnesses present at the incident showed that the accident had occurred because the National Railway Company had not observed Order no. 26 of 11 January 2000, which set out the health and safety regulations for the rail transport industry. 21. At the end of the investigation the special commission imposed administrative fines on company E and its manager for nonobservance of the applicable health and safety regulations. 22. Company E lodged a complaint seeking to have the fine cancelled, arguing that it had been under no legal obligation to train the applicant because he was not employed by them. 23. By a judgment of 16 September 2003 the Lugoj District Court allowed the complaint and held that the National Railway Company should be held liable for the accident. Its reasoning was as follows: “Demonstrating gross negligence, the representatives of the National Railway Company did not order the removal of the five freight wagons to the industrial track”. The industrial track was not electrified. The court continued its reasoning by stating that since the National Railway Company had agreed to transport the merchandise by presenting the necessary documents to the customs authority, it had become responsible for the operation. In accordance with decision T1 concerning the application to Romanian territory of the common transit system for rail freight transport, the National Railway Company was required, among other obligations, to ensure appropriate conditions for a safe customs inspection. The court concluded that by leaving the five freight wagons on high voltage railway tracks without informing all the persons involved in the customs inspection, the National Railway Company had failed to fulfil that obligation. 24. The special commission also imposed a fine on the manager of company E on the ground that he had not taken the necessary steps to ensure the safety of the customs inspection, and that although he had accompanied the applicant to the railway station he had not made a written request for the removal of the freight wagons from the electrified railway track. 25. The manager lodged a complaint against the fine and, by a final judgment rendered on 29 September 2003, the Lugoj District Court allowed the complaint, holding that the manager had not been obliged to request the removal of the wagons from the electrified railway tracks. It also held that he could not have known that the tracks were electrified. Further, it stated that according to the framework agreement signed on 24 June 2002, the wagons should have been at track no. 20, which was located outside the railway station, and that employees of the National Railway Company should have moved the wagons from the railway station to track no. 20. It concluded that the employee of the National Railway Company who had also been present at the customs inspection, M.M., had assured the applicant that he could perform his inspection even though the wagons were on an electrified track. 26. On 8 January 2003 the Timiș Labour Inspectorate asked the prosecutor’s office to start a criminal investigation into whether the manager of company E could be held responsible for the accident. Accordingly, the prosecutor’s office attached to the Lugoj District Court opened a preliminary investigation. 27. The applicant gave a statement before the prosecutor on 26 February 2003. He informed that he intended to claim compensation from the persons found responsible for the accident. 28. By a decision of 24 April 2003, the prosecutor decided not to initiate a criminal investigation on the ground that the accident had been caused through the applicant’s own fault. That decision was upheld by the chief prosecutor on 31 July 2003. 29. The applicant lodged a complaint against that decision with the prosecutor’s office attached to the Timiș County Court. He contended that the investigation body had not managed to clarify the circumstances under which the accident had occurred and therefore it was necessary to hold a confrontation between all the witnesses who had given contradictory statements, and that a reconstruction of the accident scene would be useful. As to the presence of M.M., the employee of the National Railway Company, at the scene of the accident, even the statements of her own colleagues were contradictory. The applicant further maintained that without M.M., who had accompanied them to track no. 7, he and the manager of company E would not have been able to find the wagons to be inspected. The applicant also claimed that the warning sign on the wagons to be inspected had not been there at the time of the accident but had been placed there after the accident. In this connection, he pointed out that such a sign could not be seen in the photographs taken by the police officers who had examined the scene immediately after the accident. The sign appeared only in the photographs taken by the Timiș Labour Inspectorate four days after the accident. 30. On 30 October 2003 the chief prosecutor dismissed the applicant’s complaint as unfounded. He held that the applicant alone was responsible for the accident because he had mounted the wagon while it was connected to live electricity without paying heed to the warning sign on the wagon and the framework agreement signed by the National Railway Station and the beneficiary (company E). He dismissed the applicant’s allegation that the warning sign had not been attached to the wagon on the day of the accident, stating that the sign could not be seen from the angle at which the photographs had been taken on that day. He also dismissed the applicant’s request to have the witnesses reheard on the ground that their statements were not relevant in so far as they could not make any difference to the final conclusion. 31. On 14 April 2004 the applicant lodged a complaint against that decision with the Lugoj District Court, alleging that the staff of the National Railway Company were responsible for the accident. By a judgment of 18 June 2004 the court allowed the complaint and sent the file back to the prosecutor’s office for an expert report to be drafted and for it to be determined whether M.M., the employee of the National Railway Company who the applicant claimed had accompanied him to the freight train, bore any responsibility. The experts were to establish whether the railway tracks had been electrified when the applicant climbed onto the freight train on the day of accident. 32. On 27 September 2004 the Timiș County Court allowed an appeal on points of law lodged by the prosecutor’s office and quashed the judgment of 18 June 2004 on the ground that on the basis of Article 278 (1) of the Code of Criminal Procedure, the first-instance court could not remit the case to the prosecutor’s office for further investigation. Consequently, the file was sent back to the District Court for fresh examination. 33. On 21 January 2005 the Lugoj District Court dismissed the applicant’s complaint and upheld the prosecutor’s decision not to initiate a criminal investigation. It held that none of the National Railway Company’s employees had been responsible for the applicant’s accident. In this connection, it found that according to the statements given by M.M.’s colleagues, she had not accompanied the applicant, S.V. and the manager of company E to the freight train. It also stated, however, that the customs inspection should have been carried out at track no. 20 and not at track no. 7. It concluded that the applicant alone was responsible for the accident because he had not paid heed to the warning sign on the wagon and the framework agreement signed by the National Railway Station and company E. 34. The applicant lodged a criminal complaint against the manager of the National Railway Company for forgery of a document called “Declarație”, submitted to the special commission while it was carrying out its investigation into the accident. The document was in fact an agreement signed by the National Railway Company, company E and company M stipulating that customs inspections of merchandise should be carried out only at track no. 20 (which was not electrified). The applicant stated that the manager had drafted it and asked the managers of the two other companies to sign it immediately after the applicant’s accident (on 21 September 2002), but had given 16 September 2002 as the date of signing. 35. After repeated decisions not to initiate criminal proceedings delivered on 28 September, 27 October and 17 December 2004, on 7 June 2005 the prosecutor’s office attached to the Lugoj District Court indicted the manager of the National Railway Company for abuse of office, forgery and the use of forged documents, and sent his file to the Lugoj District Court. 36. By a judgment of 25 January 2006, the Lugoj District Court found the manager guilty as charged. It held that he had drafted the agreement in order to protect his company from liability for the applicant’s accident. The subsequent appeal and appeal on points of law were dismissed as unfounded by the Timiș County Court and the Timișoara Court of Appeal on 17 April and 6 September 2006 respectively. 37. On 8 May 2006 the applicant lodged an application for judicial review of the criminal judgment rendered on 21 January 2005 by the Lugoj District Court. He claimed that there were new elements which could prove the guilt of the National Railway Company in respect of the events which had led to his accident. In this connection he relied on the final decision of the Lugoj District Court of 25 January 2006, by which the manager of the National Railway Company had been found guilty of the forgery of the document entitled “Declarație” which had been used as evidence in the criminal proceedings relating to the applicant’s accident. He also applied for three new witnesses to be heard on the question of whether M.M. had been present when the accident occurred. 38. The applicant argued that that document had played a decisive role in the conclusions of the investigation commission, as well as in the decisions of the prosecutors and judges, as to liability for the accident. 39. The Lugoj District Court dismissed the application as inadmissible as it concerned a decision in which the court had not examined the merits of the case, and as unfounded because the new evidence referred to by the applicant did not de facto affect the facts established in the decision. 40. On 18 October 2005 the applicant brought a civil action before the Lugoj District Court seeking compensation in respect of pecuniary and non-pecuniary damage. He claimed damages from the National Railway Company and M.M on account of their negligence in the organisation of the customs inspection. He stressed that because of the accident he had had to undergo expensive surgical interventions and had been classed as permanently disabled. 41. On 20 June 2006 the Lugoj District Court dismissed an objection of res judicata raised by the defendants. It held that the criminal decision of 21 January 2005 had not examined the civil liability of the defendants but only their criminal liability. The court noted that although the evidence concerning M.M.’s presence at the scene of the accident was not conclusive, the National Railway Company’s employee should nevertheless be held liable because she had not fulfilled her professional duties. The court further noted that, according to one of M.M.’s colleagues who had occupied the same position as M.M., and to her job description (“Fișa Postului”), it had been M.M.’s duty to handle the customs documentation for the customs agent and also to supervise the shunting of the relevant wagons in the railway station. The court also found that under the applicable law on the application of the common transit system in Romania, the National Railway Company had been obliged to be actively involved in the customs inspection of the wagons. However, the company had observed its obligations superficially through its employees. Thus, by applying the stamp to the CIM, the company employee had convinced the applicant and the manager of company E that everything was ready for inspection. The court partly allowed the applicant’s action, held that both the applicant, the National Railway Company and M.M. were equally responsible for the accident, and ordered the defendant company and M.M. to pay half the damages claimed. 42. The defendant company appealed and the appeal was allowed by the Timiș County Court on 19 February 2008. It quashed the judgment of the first-instance court, holding that the de facto situation had already been established by a final decision of a criminal court, and had thus acquired the authority of res judicata before the civil courts. 43. On 26 January 2009 the Timișoara Court of Appeal dismissed an appeal on points of law lodged by the applicant. 44. Order no. 26 of 11 January 2000 sets out the health and safety regulations for the rail transport industry. Article 3 provides that the regulations are compulsory and that they must be communicated to the interested persons by local labour inspectorates. They are not published in the Official Gazette. 45. Article 66 of the Order prohibits the inspection, application of seals or carrying out of any work on the upper parts of a wagon while the train is on electrified tracks. 46. Article 79 of the Order provides that all specified preventive steps must be taken when operations presenting a danger of electrocution are performed. 47. The CIM is a standardised document for the cross-border transport of cargo by rail, based on UN recommendations for uniform international rules and in use in the European Union (EU). CIM stands for Convention Internationale concernant le transport des Marchandises par chemin de fer, the French name for the Convention that governs its definitions and application. 48. The T1 procedure concerns the movement of non-EU goods when customs duties or other import taxes are involved. 49. According to Article 70 of the above-mentioned Convention, which sets out a common transit procedure, a railway company which accepts goods for carriage under cover of a CIM consignment note serving as a common transit declaration shall be the principal for that operation. 50. Criminal proceedings in Romania are regulated by the Code of Criminal Procedure and based on the principles of legality and officialness. Prosecution is mandatory when reasonable suspicion exists that a criminal offence subject to mandatory prosecution has been committed.