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THIRD
SECTION
DECISION
Application no.
19870/05
by Mihai SÎRGHI
against
Romania
The
European Court of Human Rights (Third Section), sitting
on 13 December 2011 as a Chamber
composed of:
Josep
Casadevall,
President,
Alvina
Gyulumyan,
Egbert
Myjer,
Ján
Šikuta,
Luis
López Guerra,
Nona
Tsotsoria,
Mihai
Poalelungi,
and Santiago Quesada,
Section Registrar,
Having
regard to the above application lodged on 17 May 2005,
Having
regard to the decision taken by the President of the Chamber
to appoint Mr Mihai Poalelungi to sit as ad
hoc judge (Article 26 § 4 of
the Convention and Rule 29 § 1 of the Rules of Court), as Mr
Corneliu Bîrsan, the judge elected in respect of Romania, had
withdrawn from the case (Rule 28 of the Rules of Court),
Having regard to the observations submitted by the respondent
Government and the observations in reply submitted by the applicant,
Having
deliberated, decides as follows:
THE FACTS
- 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.
A. The circumstances of the case
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.”
- 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.
- 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...”
- The
Court of Appeal concluded that the applicant and the victim had each
made a 50 % contribution to the accident.
- 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.
- The
Court of Appeal also decided that the first instance 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.
B. Relevant domestic law
- 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.
- 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.
- 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.
COMPLAINT
- The
applicant complained under Article 7 of the
Convention that his conviction for involuntary
manslaughter and breach of safety regulations had not been based on a
foreseeable law.
THE LAW
- The
applicant contended that the acts or omissions
on the basis of which he had been convicted had not constituted a
crime at that time, as no law had imposed an obligation on him to
guide the military vehicle that caused the fatal accident. He
submitted that to his knowledge there had been no written regulations
on safety at work applicable to military aviation at that time.
He
relied on Article 7 of the Convention, which reads as follows:
“1. No one shall be held guilty of any
criminal offence on account of any act or omission which did not
constitute a criminal offence under national or international law at
the time when it was committed. Nor shall a heavier penalty be
imposed than the one that was applicable at the time the criminal
offence was committed.
2. This article shall not prejudice the trial
and punishment of any person for any act or omission which, at the
time when it was committed, was criminal according to the general
principles of law recognised by civilised nations.”
- The
Government contested that argument. They contended that the domestic
courts had thoroughly examined the facts of the case and the
applicant’s responsibility in the accident and considered that
the laws applied had been accessible and foreseeable.
The Court’s assessment
1. Summary of the general principles
- The
Court makes reference to the well-established principles developed in
its case-law in the context of Article 7 of the Convention (see, in
particular, Kokkinakis v. Greece, 25 May 1993, § 52,
Series A no. 260 A; Dragotoniu and Militaru-Pidhorni v.
Romania, nos. 77193/01 and 77196/01, §§ 33-38, 24 May
2007; Kafkaris v. Cyprus [GC], no. 21906/04, §§
139-141, ECHR 2008 ...; Sud Fondi S.r.l. and Others v. Italy,
no. 75909/01, §§ 105-110, 20 January 2009; and
Scoppola v. Italy (no. 2) [GC], no. 10249/03, §§
92-109, 17 September 2009). In particular, it reiterates that Article
7 of the Convention requires that an offence must be clearly defined
in law, and that the law must be predictable and foreseeable and must
not be extensively construed to an accused’s detriment, for
instance by analogy. In its relevant case-law, the Court has
understood by “law” the provision in force as the
competent courts have interpreted it, comprising statute law,
including both enactments of a lower rank than statutes, and
unwritten law, as well as case-law (see Kafkaris, cited above,
§§ 139-140).
- The
Court has already had occasion to note that, as a logical consequence
of the principle that laws must be of general application, the
wording of statutes is not always precise, the use of general
categorisations being favoured over that of exhaustive lists (see
Cantoni v. France, 15 November 1996, § 31, Reports
of Judgments and Decisions 1996 V). It follows that the
interpretation of these rules depends on practice and it
is beyond doubt that the domestic courts are best placed to examine
and interpret the domestic legislation, an exercise which is not in
itself incompatible with Article 7 of the Convention (see
García Ruiz v. Spain [GC], no. 30544/96, § 28,
ECHR 1999 I; Streletz, Kessler and Krenz
v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, §
50, ECHR 2001 II; and Sud Fondi S.r.l. and Others,
cited above, § 108).
2. Application of those principles to the case
- In
the case under examination, the applicant contended that in
convicting him the court of last resort had found that he had had an
obligation relating to the safety at work regulations which, in
reality, he had not had, as there were no specific safety regulations
for his field of activity.
- However,
the Court is satisfied with the reasoning advanced by the Court of
Appeal to justify the application of the general rules of safety at
work to the applicant’s case. It finds no indication of
arbitrariness in the manner in which the domestic court interpreted
and applied those laws and considers that it is acceptable for a
general law to apply in the absence of specific regulation in a given
field.
As
for the foreseeability of the law, the Court notes that the applicant
himself admitted throughout the proceedings that the custom in the
workplace dictated that he should guide the vehicle, and it appears
that that custom had been thoroughly respected by the applicant and
his colleagues. As the applicant accepted to conform in his behaviour
to unwritten rules and custom, he cannot, as a matter of fairness,
deny the application of those very rules when they engage his
responsibility. For the purposes of Article 7, it would be too
formalistic an approach to require that the obligation in question be
only enforced if in written form (see, mutatis mutandis, Kafkaris,
cited above, § 139).
Therefore,
the court of appeal’s decision cannot be construed as a
far fetched or unforeseeable interpretation of the applicable
statutes.
- The
foregoing considerations are sufficient to enable the Court to
conclude that the safety regulations, coupled with the customs
developed and consistently applied in the work place, made for an
accessible and foreseeable legislation which should have allowed the
applicant to anticipate that his acts would make him
criminally liable (see also, mutatis mutandis,
Achour v. France [GC], no. 67335/01, §
41, ECHR 2006 IV).
It
follows that the application is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 (a) and 4 of
the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Santiago Quesada Josep
Casadevall Registrar President
