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Cite as: [2011] ECHR 2330

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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Convention and Rule 29 § 1 of the Rules of Court), as Mr Corneliu Bîrsan, the judge elected in respect of Romania, had withdrawn from the case (Rule 28 of the Rules of Court),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