of November 29, 2018 No. 41
About court practice on criminal cases about violations of requirements of labor protection, safety rules when conducting construction or other works or requirements of industrial safety of hazardous production facilities
For the purpose of ensuring uniform application by courts of the penal legislation about responsibility for violations of requirements of labor protection, safety rules when conducting construction or other works or requirements of industrial safety of hazardous production facilities (Article 143, 216 and 217 Criminal Codes of the Russian Federation), and also in connection with the questions arising at courts, the Plenum of the Supreme Court of the Russian Federation, being guided by article 126 of the Constitution of the Russian Federation, articles 2 and 5 of the Federal constitutional Law of February 5, 2014 No. 3-FKZ "About the Supreme Court of the Russian Federation", decides to make the following explanations:
1. Draw the attention of courts that Articles 143, of 216, 217 Criminal Codes of the Russian Federation (further - the Criminal Code of the Russian Federation) provide responsibility for violation of requirements of labor protection of safety rules when conducting construction or other works or requirements of industrial safety of hazardous production facilities (further - violation of special rules) which is expressed in non-execution or improper execution-faced the obligations established in regulatory legal acts and entailed approach provided by the specified Articles of effects.
2. Proceeding from the note to article 143 Criminal Code of the Russian Federation, it is necessary to understand the state normative requirements of labor protection containing in the Federal Laws and other regulatory legal acts of the Russian Federation as requirements of labor protection (for example, in standards of labor safety, rules and standard instructions for labor protection), the laws and other regulatory legal acts of subjects of the Russian Federation, the establishing rules, procedures, criteria and standard rates directed to preserving life and health of workers in the course of labor activity.
In sentence or other judgment (further - the judgment) on criminal case about crime, the stipulated in Article 143 Criminal Code of the Russian Federation, the corresponding Items of the regulatory legal acts listed in the note to this regulation shall be specified. As according to Articles 5 (part two) and 8 Labor Code of the Russian Federation (further - the Labor Code of the Russian Federation) the local regulations containing regulations of labor right also govern the employment and related relations, in the judgment can be in addition made a reference also to provisions of such acts for the purpose of specification of the violated state normative requirements of labor protection if the corresponding local regulations are adopted in their development, do not contradict them and do not change their content.
3. Taking into account that the crime, the stipulated in Article 143 Criminal Code of the Russian Federation, encroaches on the public relations connected with the ensuring preserving life and health of workers in the course of labor activity, and also the other persons participating in productive activity of the employer which was injured on criminal cases about this crime there can be not only workers with whom employment contracts are in accordance with the established procedure signed, but also those persons with whom such agreement was not signed or was not drawn up properly, but they got to work from permission or at the request of the employer or his authorized representative.
The persons specified in the article 227 Labor Code of the Russian Federation, for example getting education according to the student's agreement treat the other persons participating in productive activity of the employer.
4. In sense of part 1 of article 143 Criminal Code of the Russian Federation heads of the organizations, their deputies, chief specialists, heads of structural divisions of the organizations, security service specialists of work and other persons to whom in the procedure established by the law (including owing to their official position or according to the special order) obligations on ensuring compliance with labor protection are assigned can be subjects of this crime.
Under article 143 Criminal Code of the Russian Federation representatives of the organization, the rendering service in the field of labor protection, or the corresponding specialists involved by the employer under the civil agreement according to part three of the article 217 Labor Code of the Russian Federation can also bear responsibility if obligations are directly assigned to specified persons to provide observance of requirements of labor protection by the workers and other persons participating in productive activity of the employer.
5. In case of permission of question of reference of certain production to hazardous production facilities on criminal case about crime, the stipulated in Article 217 Criminal Code of the Russian Federation, courts should be guided by the Federal Law of July 21, 1997 No. 116-FZ "About industrial safety of hazardous production facilities". In particular, objects on which turn out, used, processed belong to the category of hazardous production facilities, will be formed, stored, transported, dangerous substances are destroyed, mining operations (except for the production of popular minerals and development of loose mineral deposits which are carried out by open method without application of explosive works), works on mineral processing are conducted.
6. During consideration of each case on the crime provided by Articles 143, 216 or 217 Criminal Code of the Russian Federation not only the fact of violation of special rules, but also availability or lack of causal relationship between this violation and the come effects is subject to establishment and proof that shall be proved in the judgment. Besides, court, having established availability of such communication in the decision, shall refer not only to regulatory legal acts which provide relevant requirements and rules, but also on specific regulations (Item, part, Article) of these acts which violation entailed the effects provided by the penal statute, and also to specify in what this violation was expressed.
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