THIRD SECTION

Application no. 39438/05 Dan- Liviu BINIÅžAN against Romania lodged on 24 October 2005

STATEMENT OF FACTS

The applicant, Mr Dan- Liviu BiniÅŸan , is a Romanian national who was born in 1974 and lives in Lugoj .

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. Background to the case

On 20 September 2002, at about 1 p.m., the applicant was electrocuted while carrying out his duties as a customs inspector. As a result of the accident, the applicant needed 138 days of medical care. He suffered burns to 70% of his body.

In most official documents reflecting the accident, such as the decisions of the courts or the prosecutors, as well as a medica l report drafted on 16 February 2004, it was mentioned that the applicant ’ s l ife was at risk. For almost two months he was in a deep coma, in a hospital located in Hungary . Because of the severe burns he had serious breathing difficulties and underwent multiple skin grafts.

Following a decision of the National Pen sion Authority issued on 28 May 2004, the applicant was classed as permanently disabled.

2. Investigation into the accident of 20 September 2002

A special commission co mposed of ex perts from the Timişoara Labour Inspectorate, the Ti miş oara Regional Customs Department ( Direc ţia Regională Interjudeţeană Timiş oara ) and the Timişoara Subsidiary of the National Railway Company was set up to investigate the accident.

According to the report drafted by the commission on 16 September 2002, a priv ate exporting company (“company E”) concluded a contract with the Lugoj Merchandise Subsidiary of the National Railway Company ( Sta ţia CFR Marfă Lugoj ) and another private company (compan y M), which had the right to u se industrial railway track no. 20. The contract provided that company E could u se industrial railway track no. 20 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.

On 20 September 2002, at about 9.30 a.m., S.V. went to Lugoj Railway Station with all the documents related to the transport of company E ’ s merchandise in order to have the station ’ s stamp applied on them. Having had all the documents stamped, the manager of company E and S.V. went to Lugoj Customs Office in order to ask a customs inspector to carry out the inspection of the wagons and apply the seals. The applicant was in charge of carrying out the customs inspection.

At about 1 p.m., the applicant acc ompani ed the manager of company E and S.V. to Lugoj Railway Station. T he wagons were not a t track no. 20 but at track no. 7. According to the state ments 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. However, according to the statements of M.M. ’ s colleagues, she did not accompany them as she was further down the track. The applicant was electrocuted at 1.19 p.m. while he was on top of a wagon trying to apply the seals.

The report concluded that the accident had occurred because 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. The report also stated that “the receipt of the wagons by company E from the National Railway Company was not in accordance with the framework agreement signed on 24 June 2002 by Lugoj Railway Station and company M and the document called “ Declara ţ ie ” signed by company M, company E and the National Railway Company. [1]

The report concluded that the following were re sponsible for the accident: ( i ) the manager of company E because he had not organised the customs inspection and had not observed the abo ve-mentioned agreement; (ii) the applicant because he had not observed the rules for car rying out the inspection; (iii) the applicant ’ s superior for not training the applicant in the applica ble safety regulations and (iv) company E, also for not properly t raining its employees.

The TimiÅŸ oara Regional Customs Department raised some objections concerning 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 accident (reference to the statements of S.V. and the manager of company E, who were present when the accident occurred).

It also stated that “an analysis of the documents and the statements of witnesses present at the incident shows that the accident occurred because the National Railway Co mpany did not observe Order no. 26 of 11 January 2000 which sets out the health and safety regulations for the ra il transport industry”. Article 66 of the Order prohibits the inspection, application of seals or execution of any work on the upper parts of a wagon while the train is on electrified tracks. Article 79 provides that all specific preventive steps must be taken when operations presenting a danger of electrocution are performed.

3. Complaints against the fines imposed by the investigation commission

At the end of the investigation the special commission imposed administrative fines on company E and its manager for non-observance of the applicable health and safety regulations.

a) 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 its employee.

By a judgment of 16 September 2003 the Lugoj District Court allowed the complaint and held that the National Railway Company should have been held liable for the accident. Its reasoning reads 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”, which was not electrified. The court continued its reasoning 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 transport 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 not fulfilled its obligation.

b) 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 requested the removal of the freight wagons from the electrified railway tracks in writing.

By a final judgment rendered on 29 Sep tember 2003, the Lugoj District Court allowed the complaint lodged by the manager against the fine, 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 a framework convention signed on 24 June 2002, the wagons should have been received at track no. 20 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 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.

4. Subsequent criminal proceedings

On 8 January 2003 the Timiş 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 investiga tion. By a decision of 24 April 2003, it decided not to initiate a criminal investigation on the ground that the accident had been the applicant ’ s own fault.

On 14 April 2004 the applicant lodged a complaint against this decision with the Lugoj District Court alleging that the staff of the National Railway Company had been responsible for the acc ident. By a judgment of 18 June 2004, the court allowed the complaint and referred 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 accompanied the applicant, bore any responsibility. The experts were to establish whether the railway tracks had been electrified when the applicant went onto the freight train on the day of accident.

On 27 September 2004 the Timiş County Court allowed the appeal on points of law lodged by the prosecutor ’ s office and quashed the judgment of 18 June 2004 on the grou nd that on the basis of Article 278 (1) of the Code of Criminal Procedure, the first-instance court could not refer the file back to the prosecutor ’ s office for further investigation. Consequently, the file was sent back to the district court for fresh examination.

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 that the customs inspection should have been carried out at track no. 20 and not at track no. 7.

5. Criminal proceedings initiated by the applicant against the manager of the National Railway Company

The applicant lodged a criminal complaint against the manager of the National Railway Company for forgery of a document submitted to the special commission while it carried out its investigation concerning the accident. The document was in fact an agreement signed by the National Railway Company, company E and company M providing that customs inspections of merchandise should b e carried out only at track no. 20 (not electrified). The manager had drafted it an d asked the managers of the two other companies to sign it immediately after the applicant ’s accident (on 21 September 2002), but mentioned 16 September 2002 as the date of signing.

After repeated decisions not to initiate criminal proceedings delivered o n 28 September, 27 Oct ober 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.

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 by the Timi ş County Court and the Timi ş oara Court of Appeal on 17 April and 6 September 2006 respectively as unfounded.

6. The applicant ’ s request for judicial review of the criminal judgment of 21 Janu ary 2005

On 8 May 2006 the applicant lodged an application for judicial review of the criminal judgment rendered on 21 Jan uary 2005 by the Lugoj District Court. He alleged that there were new elements which could prove the guilt of the National Railway Company in 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 was found guilty of forgery of the document “ Declara ţ ie ” used as evidence in the criminal proceedings related to the applicant ’ s accident. He also applied for three new witnesses to be heard concerning whether M.M. was present when the accident occurred.

The Lugoj District Court dismissed the application as inadmissible as it regarded a decision in which the court had not examined the merits of the case and as unfounded as the new evidence proposed by the applicant did not affect the de facto situation established in the decision.

7. Civil proceedings instituted by the applicant

On 18 October 2005 the applicant brought a civil action seeking compensation in respect of pecuniary and non-pecuniary damage before the Lugoj District Court. He claimed damages from the National Railway Company and M.M for their negligence in the organisation of the customs inspection.

On 20 June 2006 the Lugoj District Court partly allowed the applicant ’ s action. It held that both the applicant and the National Railway Company were equally responsible for the accident and ordered the defendant company to pay half of the requested damages.

The appeal lodged by the defendant company was allowed by the Timi ÅŸ 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, having acquired the authority of res judicata before the civil courts.

On 26 January 2009 the Timiş oara Court of Appeal dismissed the appeal on points of law lodged by the applicant, holding that he was solely responsible for the accident as he had not observed the sign “ danger of electrocution ” .

B. Relevant domestic law

Order no. 26 of 11 January 2000 sets out the health and safety regulations for the r ail transport industry. Article 3 provides that the regulations are compulsory and are communicated to the interested persons by the local labour inspectorates. They ar e not published in the Official Gazette.

COMPLAINTS

1. Relying on Article 3 of the Convention the applicant alleges that his life was put at risk through the negligence of the staff of a State ‑ run and owned company. He also complains that the State authorities failed to investigate the accident of 20 September 2000 effectively or to punish those responsible for it. He alleges that the ensuing investigation did not result in criminal or disciplinary penalties, that his attempt to obtain compensation in civil proceedings was unsuccessful owing to the dismissal of his action on the grounds that the matter was already res judicata .

2. Under Article 8 § 1 of the Convention, he complains of the State ’ s failure to protect his right to physical integrity.

3. He also claims that he did not benefit from fair procee dings, as guaranteed by Article 6 § 1 of the Convention, complaining mainly about the outcome of the proceedings.

QUESTIONS TO THE PARTIES

1. Has the applicant ’ s ri ght to life, ensured by Article 2 of the Convention, been violated in the present case?

In particular, having regard to the positive obligations imposed on the State by this provision, did the authorities (the National Railway Company) know or ought they to have known of the existence of a real and immediate risk and, if so, did they do all that could have been required of them to prevent the life of the applicant from being avoidably put at risk ?

In this respect the Government are requested to submit their legislative and administrative framework regulating the organisation of customs inspections on the railway tracks belonging to the National Railway Company and to comment on whether that framework was being implemented effectively.

2. Having regard to the procedural protection of the right to life, did the available legal remedies, taken together, and as provided for in law and applied in practice, secure legal means capable of establishing the facts, holding accountable those at fault and providing appropriate redress to the victim ?

[1] This document was signed after the accident occurred, its date being forged by the manager of the National Railway Company according to the final criminal decision of 25 January 2006.