THIRD SECTION

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

STATEMENT OF FACTS

The applicant, Mr Dan-Liviu Binişan, 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 medical report drafted on 16 February 2004, it was mentioned that the applicant’s life 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 Pension 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 composed of experts from the Timişoara Labour Inspectorate, the Timişoara Regional Customs Department (Direcţia Regională Interjudeţeană Timişoara) 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 private exporting company (“company E”) concluded a contract with the Lugoj Merchandise Subsidiary of the National Railway Company (Staţia CFR Marfă Lugoj) and another private company (company M), which had the right to use industrial railway track no. 20. The contract provided that company E could use 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 accompanied the manager of company E and S.V. to Lugoj Railway Station. The wagons were not at track no. 20 but at track no. 7. According to the statements 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 “Declaraţie” signed by company M, company E and the National Railway Company. [1]

The report concluded that the following were responsible for the accident: (i) the manager of company E because he had not organised the customs inspection and had not observed the above-mentioned agreement; (ii) the applicant because he had not observed the rules for carrying out the inspection; (iii) the applicant’s superior for not training the applicant in the applicable safety regulations and (iv) company E, also for not properly training its employees.

The Timişoara 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 Company did not observe Order no. 26 of 11 January 2000 which sets out the health and safety regulations for the rail 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 leavi