CASE OF SÎRGHI v. ROMANIA
Inadmissible
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria
1. The applicant, Mr Mihai Sîrghi, is a Romanian national who was born in 1957 and lives in Timişoara. The Romanian Government (“the Government”) were represented by their Agent, Mr Răzvan-Horaţiu Radu, of the Ministry of Foreign Affairs. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. At the time of the events the applicant was an active junior military officer (maistru militar) working as an experienced technician with special electrical installations in aviation. 4. On 4 December 2002 the applicant was participating in an exercise at the military air base where he was working. His task was to start the engines of military aircraft by using a special electric device which was transported by a military vehicle. That day, the driver of the vehicle was A.C. The applicant was also guiding the vehicle between the aircraft by making conventional hand signals. In accordance with the procedures, each plane was guarded by a person standing in front of it during start-up. D.C., who was one of the guards that day, was fatally injured by the military vehicle while squatting by the plane, against regulations. 5. The Timisoara Military Prosecutor’s Office (“the Military Prosecutor”) started an investigation into the accident. In a statement given on 13 February 2003 to the Military Prosecutor, the applicant admitted that he had had an obligation to guide the vehicle while it was backing up from one plane and then moving forward to the next plane. He reiterated his statements on 22 April 2003. 6. On 18 June 2003 the Military Prosecutor’s Office committed the applicant for trial for involuntary manslaughter under Article 178 § 2 of the Criminal Code and non-compliance with safety regulations. It considered that, under Law no. 90/1996 on Safety at Work (protecţia muncii) and Order no. 330/8 June 1998 approving the Rules for Safety at Work in internal transport (“Law no. 90/1996” and “Order no. 330”), the applicant had had an obligation to guide the military vehicle during the manoeuvre between planes. 7. Before the Timişoara Military Court, the Ministry of Defence, called as the party bearing civil responsibility for the acts committed by the applicant, argued that Order no. 330, relied upon by the prosecution, was not applicable, as special regulations took precedence. They submitted that the special regulations in place at that time did not impose an obligation on the applicant to guide the military vehicle. The applicant reiterated that as an unwritten rule custom dictated that he guided the vehicle while it was backing away from one plane and then moving forward to the next plane. 8. On 17 December 2003 the Military Court acquitted the applicant. The relevant parts of the judgment read as follows: “The evidence in the file demonstrates beyond doubt that [the applicant] did not have any concrete duty to guide the [military vehicle] ... It was only because of the practice that had developed at the time that the technician, in this case the accused person, guided the driver when he was backing up the vehicle; the technical instructions and the specific rules applicable do not impose such an obligation ... Furthermore, the witness B.A., who has the same duties as the accused person at a similar military airbase, declared that there were no specific regulations in military aviation on guiding the military vehicles. In addition, when the events occurred, the accused person did not do anything different from what he had done in other similar operations, some of which had been carried out in worse conditions that the one under examination; however, on the previous occasions ... the victim had complied with the regulations, unlike in the case at hand.” 9. On 11 March 2004 the Bucharest Territorial Military Court rejected the appeal lodged by the Military Prosecutor and the victim’s widow against the above judgment. 10. On 26 November 2004 the Military Court of Appeal examined the appeal in cassation (recurs) by the Military Prosecutor. It re-examined the facts and found, on the basis of the documents in the file, that the applicant had been de facto in charge of guiding the military vehicle. It also considered that Law no. 90/1996 and the general rules on safety at work, including Article 15 of Order no. 330, were applicable to the case. It found: “According to Article 3 of the ‘Rules on the organisation and the course of activities for safety at work in the Ministry of Defence’, the activities connected to starting the airplanes were regulated by Law no. 90/1996 on Safety at Work and by the general and specific Rules on Safety at Work (including, thus, Order no. 330/1998). ... In his statements the accused admitted that it had been his responsibility to guide the vehicle...” 11. The Court of Appeal concluded that the applicant and the victim had each made a 50 % contribution to the accident. 12. It therefore reversed the judgment, found the applicant guilty as charged and gave him a six-month suspended sentence. It ordered the applicant to pay, together with the Ministry of Defence, 100,000,000 Romanian lei (ROL) in damages to the civil party and ROL 1,000,000 in costs. 13. The Court of Appeal also decided that the firstinstance court should examine of its own motion the issue whether the applicant should be ordered to pay monthly contributions for the maintenance of the victim’s two minor children. It therefore referred that matter back to the Timişoara Military Court, which dismissed it in a final decision on 2 March 2005. 14. Law no. 90/1996 on Safety at Work constitutes the general law on safety at work. According to its Articles 4 and 5, the Ministry of Defence had the obligation to organise, coordinate and control the implementation of specific work safety regulations. In its Article 38 it states that ignorance of the safety at work regulations, if it may result in an accident, constitutes a crime and is punishable by a prison sentence. 15. Order no. 330/8 June 1998 sets out the rules for Safety at Work in internal transport. In its Article 15 it provides that when necessary, in dangerous situations, the vehicles shall be guided or there shall be posts for overseeing and guiding the traffic. 16. Article 178 § 2 of the Criminal Code states that involuntary manslaughter as a consequence of ignorance of the safety at work regulations is punishable by a prison sentence.