of June 12, 2009 No. 7
About practice of application by courts of Ukraine of the legislation in cases on crimes against safety of production
According to article 43 of the Constitution of Ukraine everyone has the right to proper, safe and healthy working conditions, and according to article 4 of the Law of Ukraine of October 14, 1992 N 2694-XII "About labor protection" (in edition of the Law of November 21, 2002 N 229-IV) priority of life and health of workers, the complete employer's liability for creation of proper, safe and healthy working conditions is one of the basic principles of state policy in the field of labor protection.
Generalization of court practice in cases on crimes against safety of production showed that in case of the solution of cases of this category courts generally correctly apply the current legislation.
At the same time by consideration of such cases courts not always provide complete and comprehensive investigation of circumstances of making of the specified crimes. Courts still make mistakes in case of qualification of actions of perpetrators, and also in case of purpose of punishment by it. The reasons of crimes against safety of production and condition which promoted their making are not always established, and also the measures provided by the law are not applied to full recovery of the loss caused by these crimes.
For the purpose of ensuring identical application by courts of the legislation in cases of the specified category Plenum of the Supreme Court of Ukraine DECIDES to make to courts such explanations:
1. In cases on crimes against safety of production courts need to increase insistence to quality of pretrial investigation all measures provided by the law to comprehensive, complete and objective investigation of all facts of the case, establishment of causal relationship between the allowed violations of requirements of the legislation on labor protection and effects which came were taken or could come. After everyone case should find out the circumstances connected with causing the harm done by crime and in the procedure established by the law to resolve issue of its compensation.
3. Draw the attention of courts to need of improvement of quality of judicial review of cases of this category for the purpose of providing careful, comprehensive investigation of all facts of the case, identifications of all persons who committed crime determination of degree of their guilt, establishment of causal relationship between act of the defendant and socially dangerous effects which came or could come. If it is determined that the victim allowed rough imprudence, then in case of recognition of the defendant guilty of crime execution it is necessary to consider this circumstance in case of assignment of punishment.
4. That for establishment in act of actus reus of disposition of Articles 271 - 275 UK send to legal and other regulations about labor protection, to special rules which regulate labor safety, courts, formulating admitted proved charge for this category, shall refer in sentence to the relevant articles of the Law "About Labor Protection", Article, paragraphs (paragraphs) of legal and other regulations which are violated and to open essence of the allowed violations.
5. Courts need to consider that according to article 271 UK responsibility comes for violation of requirements of the legislation on labor protection on production. The responsibility for violation of requirements of the legislation concerning safety of persons during implementation of other activities depending on the specific facts of the case comes under articles of the Criminal Code on crimes against life and health of person, in the field of office activities, against the environment and so forth.
As production it is necessary to understand not only the activities connected directly with creation of products but also any activities of the company, organization, organization or citizen subject of business activity of whose functioning the work of the person directed to receipt of socially useful result is the cornerstone.
Violations of special safety rules which concern performance of works with the increased danger act on the explosive companies or in explosive workshops; abuses of regulations of nuclear or radiation safety, safe use of industrial output or safe operation of buildings and constructions article 271 UK are not covered and need qualification respectively under Articles 272 - 275 UK.
7. Violation of requirements of legal and other regulatory legal acts about labor protection (article 271 KK) consists in committing by person of actions which are prohibited by the relevant acts, or in failure to carry out of actions which person shall was make according to legislative or normative requirements.
8. Courts need to consider that the subject of crime, stipulated in Article 271 UK, is the official of the company, organization, organization who based on the order of administration, the job description or according to post has special obligations on labor protection, or the citizen subject of business activity.
In case of violation of requirements of the legislation on labor protection which entailed criminal consequence in law by other officials the last taking into account the facts of the case can bear responsibility for crimes in the field of office activities, and non-management employees - for crimes against life and health of person.
Persons who have continuous or temporary communication with certain company, organization, the organization or with productive activity of the citizen subject of business activity can only be the victims from the analyzed crime (directly work, arrived to business trip, to practice, training or activities of which it is connected with this production and so forth).
Persons who are not connected with the specified production cannot be recognized injured from this crime (representatives of monitoring bodies, customers of products or services, persons who accidentally appeared in the territory of the company, organization, the organization and so forth).
9. By hearing of cases about abuse of regulations of safety during execution of works with the increased danger (article 272 UK) courts shall be guided by the List of works with the increased danger approved by the order of the State committee of Ukraine on supervision of labor protection of January 26, 2005 N 15 (further - the List), and legislative or the regulatory legal act (industry or cross-industry) in which safety rules are established during the corresponding works which are included into the List, considering that in this case not the industry of production, but nature of such works matters.
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