Communicated on 30 May 2017

FOURTH SECTION

Applications nos . 32619/08 and 33622/08 Ion GHERGHE against Romania and Mihai GUNÄ‚ against Romania lodged on 10 July 2008 and 15 July 2008 respectively

STATEMENT OF FACTS

1. The applicant in application no. 32619/08, Mr Ion Gherghe (“the first applicant”), is a Romanian national, who was born in 1957 and lives in Craiova. He is represented before the Court by Mr. S. Răduleţu , a lawyer practising in Craiova.

2. The applicant in application no. 33622/08, Mr Mihai Gun ă (“the second applicant”) , is a Romanian national, who was born in 1971 and lives in Craiova. He is represented before the Court by Ms Diana-Elena Dragomir , a lawyer practising in Bucharest.

A. The circumstances of the case s

3. The facts of the case s , as submitted by the applicants, may be summarised as follows.

1. Events of 24 May 2004

4. On 24 May 2004 a lorry carrying 20 tons of ammonium azote, a chemical fertiliser used in agriculture, was involved in a traffic accident and got overturned. A small fire started in the cabin of the lorry. The driver, M.F., got out of the lorry.

5. At 4.50 a.m. a passing by driver called the county fire department and the county police giving information about the accident and the charge of the lorry. In the meantime other passers-by stopped their cars attempting to put down the fire.

6. At 5.05 a.m. the chief of the closest police station arrived at the scene of the accident. He verified M.F. ’ s documents and guided the traffic around the lorry.

7. The firefighters arrived at the scene at 5.47 a.m. A few minutes later, the lorry and its carriage exploded. Eighteen people were killed, including M.F. and several firefighters and thirteen others were injured. Numerous vehicles were destroyed, including a police car and two firefighting vehicles.

8. The explosion had the impact of eight tons of TNT, leaving behind a crater with a diameter of twenty-one metres and a depth of almost seven metres.

2. The criminal investigation

9. The Prosecutor ’ s Office attached to the High Court of Cassation and Justice launched a criminal investigation immediately after the event. The investigation began with an examination of the crime scene. Eye-witness statements were gathered and expert examinations were ordered.

10. An expert examination was conducted by the National Institute on Mining Security and Protection against Explosives (“INSEMEX”), the competent authority to conduct research into events such as the one in the current case. The report issued by INSEMEX found that the mixture of the diesel leaked from the lorry ’ s tank with the chemical substance spread out of its package following the accident had created an explosive product. This product had been detonated most probably by the explosion of the fuel in the lorry ’ s tank. The report concluded that, based on experiments conducted as well as based on the literature in the field, the mixture between diesel and ammonium azote in certain proportions had resulted in a well-known explosive called Nitramon and used mostly in the mining industry.

11. The intervention of the firefighters was analysed in a report by the Ministry of Interior. The report concluded that their actions had been appropriate and that the explosion could have been prevented if the accident would have been signalled ten to fifteen minutes earlier.

12. The criminal investigation concluded that the accident had been the result of breaches of the general rules of work safety, the specific safety rules for road transport as well as the rules provided by the legislative framework in the field of dangerous substances and chemical products including the European Agreement Concerning the International Carriage of Dangerous Goods by Road (“the A.D.R.”).

13. On 30 September 2004 the applicants were indicted for several accounts of involuntary manslaughter and involuntarily causing bodily harm and destruction of goods.

14. The first applicant was accused that, in his capacity of director of the chemical plant where the pesticide had been produced, had failed to abide by the safety rules governing the production, labelling and transport of dangerous goods. More specifically, he had allowed the transportation of such goods without handing over to the transporter the security information and without verifying whether the transporter had been lawfully authorised to carry dangerous goods.

15. The second applicant was accused that, as administrator of the company leasing the lorry, failed to abide by the rules on transportation of dangerous goods and allowed another company to use the lorry without inquiring about the nature of the transport and whether M.F. had the certificate provided by law for transportation of dangerous goods.

16. A third person, the administrator of the company who contracted the transport services, used the lorry and employed M.F., was also charged for the same crimes.

3. The trial

17. On 20 December 2006 the Foc ş ani District Court convicted the applicants as charged and sentenced them to four years ’ imprisonment. The applicants were also sentenced jointly with their respective companies and their insurance company, to the payment of a total amount of 1.375.602 euros (EUR) in respect of civil damage.

18. The court held that ammonium azote fertiliser was listed in the annexes to the A.D.R. as a dangerous substance allowed for road transport. Romania ratified the A.D.R. by Law no. 31/1994. The A.D.R. set forth several safety measures compulsory for the sender of dangerous substances, the transporter as well as the receiver. These measures have been transposed in the national legal system by the Government Ordinance No. 48/1999 and the Government Decision No. 1374/2000. In breach of the above legislation the first applicant had failed to employ one or more safety councillors, as well as to respect the rules governing the packaging and labelling of dangerous substances and to hand over to M.F. the safety information for the substance to be transported. The court further held that Articles 14, 16, 21 and 24 of the Government Ordinance No. 200/2000 on the classification, packaging, labelling and notification for subsequent trade of dangerous chemical substances set forth several requirements which have not been fulfilled by the chemical plant administered by the first applicant. More specifically, it had failed to conduct tests in order to classify the substances produced according to their danger levels, to draft and make available to the transporter the security information for the substance to be transported and to include information regarding its danger levels on its labels.

19. The court further held that although the lorry had been used by a third company who also employed M.F., it had in fact belonged to the company owned by the second applicant. Since there had been no document attesting the transfer of use, the second applicant was considered liable together with the third company ’ s administrator for the failure to respect the security regulations for the transport of dangerous substances.

20. The court also excluded any fault on behalf of the police agent who arrived at the scene considering that he had not known that the substances transported were dangerous because M.F., who himself had not known, failed to inform him.

21. Based on the conclusions of the expert reports drafted in the case, the court concluded that, if M.F. had been instructed about the safety measures relevant for the transport of dangerous substances he could have reacted in order to limit the initial fire, fuel leaks and to remove the charge from the lorry and hence to limit the consequences of the event.

22. The first applicant maintained before the court that ammonium azote had not been a dangerous substance for the producer and therefore there had been no obligation on his behalf. The second applicant alleged that it had not been his obligation to classify the transported substance as a dangerous one. Both applicants stated that they had not been aware that fertilisers based on ammonium azote were considered dangerous substances. They also contended that the explosion would not have occurred if the competent authorities would have acted in time and effectively.

23. The court reasoned that the applicants ’ failure to comply with the safety measures for the transport of dangerous substances had prevented M.F. and the authorities involved from taking the necessary measures in order to avoid the event.

24. The applicants appealed against that judgment claiming that the events had been fortuitous and in no way under their control. The first applicant contested the results of the expert report prepared by the INSEMEX claiming that ammonium azote was not an explosive substance. The second applicant also argued that there had been no connection between his actions as administrator of the company leasing the lorry and the result produced by the explosion.

25. On 5 October 2007 the Vrancea County Court acquitted the applicants on all charges. Re-considering the evidence administered at the lower court, the county court held that the events of 24 May 2004 had been the result of a series of elements surrounding the car accident which could not have been prevented by the applicants.

26. On 3 March 2008 the Gala ţ i Court of Appeal decided to allow the appeals on points of law ( recurs ) lodged by the prosecution and the civil parties. The applicants testified before the court of appeal reiterating their previous arguments. They insisted that ammonium azote had not been publicly known as an explosive substance and therefore, in their opinion, the explosion had been the result of an accumulation of external elements combined with the authorities ’ failure to intervene correctly. The court of appeal decided to uphold the judgment of 20 December 2006 of the Foc ş ani District Court which was considered to have correctly replied to all arguments raised by the parties.

B. Relevant domestic law

27. Law no. 31/1994 for the ratification of the European Agreement Concerning the International Carriage of Dangerous Goods by Road (“the A.D.R.”) provides that dangerous goods are substances forbidden for road transport or for which road transport may be authorised only under certain conditions. Article 1 of the above-mentioned law provides that these substances are listed in annexes A and B to the A.D.R. The same Article further provides as follows:

“Annexes A and B shall be notified by the Ministry of Transport to the competent authorities which are directly interested.”

28. Government Ordinance No. 48/1999 and Government Decision No. 1374/2000 concern the implementation of the provisions of the A.D.R. in the national system. They provide a series of safety measures for the road transport of dangerous substances to be implemented by the companies dealing with packaging, expedition and transport of dangerous substances. The setting up of these measures is placed under the responsibility of the Ministry of Transport who is also authorised to control their implementation. According to Article 11 of the Government Decision No. 1374/2000 non-compliance with these safety measures is considered an offence which is sanctioned by fine. Article 21 of the same Decision provides that “The translated text of Annexes A and B to the A.D.R., updated with any subsequent amendments, is assured, upon request from those interested, by the Ministry of Transport through the Romanian Traffic Authority.”

29. The relevant provisions of the Criminal Code in force at the relevant time are as follows:

Article 178 Involuntary manslaughter

“ ...

(2) Involuntary manslaughter due to non-compliance with the legal norms or the preventive measures for the exercise of a profession or of an activity is punished with imprisonment from two to seven years. ”

COMPLAINTS

30. The applicants complain under Articles 6 and 7 of the Convention that they have been wrongfully convicted based on legal provisions which lacked foreseeability and accessibility. They allege that they have been convicted for non-compliance with the safety measures applicable for the packaging, labelling and transport of dangerous substances when in fact they had not known that the substance in question was dangerous. They submitted that Annexes A and B to the A.D.R. – to which the domestic courts referred to when classifying ammonium azote fertiliser as a dangerous substance – have never been published or brought to their attention by the competent authorities.

QUESTIONS TO THE PARTIES

Did the acts or omissions of which the applicants were convicted constitute a criminal offence under national law at the time when they were committed, as envisaged by Article 7 of the Convention?

In particular, was the text of the Annexes A and B to the European Agreement Concerning the International Carriage of Dangerous Goods by Road (A.D.R.) accessible and foreseeable to the applicants?