ST 216 of the Criminal Code of the Russian Federation.
1. Violation of safety rules when carrying out construction or other work, if this entailed, through negligence, the infliction of serious harm to human health or major damage, -
shall be punishable by a fine in the amount of up to eighty thousand rubles, or in the amount of the wages or other income of the convicted person for a period of up to six months, or by restriction of freedom for a term of up to three years, or by forced labor for a term of up to three years with deprivation of the right to hold certain positions or engage in certain activities. for a term of up to three years or without it, or imprisonment for the same term with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years or without it.
2. The same act, which through negligence resulted in the death of a person, is punishable by forced labor for a term of up to five years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years or without it, or imprisonment for a term of up to five years with deprivation of the right hold certain positions or engage in certain activities for a period of up to three years or without it.
3. An act provided for in the first part of this article, resulting in the death of two or more persons through negligence, is punishable by forced labor for a term of up to five years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years or without it, or by imprisonment for up to five years. for a term of up to seven years with or without deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years. Note. In the articles of this chapter, major damage is recognized as damage the amount of which exceeds five hundred thousand rubles.
Commentary to Art. 216 Criminal Code
1. Any person can act as a victim.
2. The objective side is characterized by an act in the form of action or inaction, which constitutes a violation of the current safety rules when carrying out the relevant work.
3. A mandatory feature of the objective party is the place where the crime was committed, i.e. an enterprise where mining, construction or other work is carried out.
4. The signs of the objective side are also explained in the Resolution of the Plenum of the Supreme Court of the Russian Federation dated April 23, 1991 No. 1 “On judicial practice in cases of violations of labor protection and safety rules in mining, construction and other works.”
5. The crime is completed at the moment of causing serious harm to human health or major damage (note to Article 216 of the Criminal Code).
Second commentary to Art. 216 of the Criminal Code of the Russian Federation
1. Victims of a crime can be not only persons carrying out this type of work, but also outsiders.
2. The objective side consists of the following features:
a) violation of safety rules during construction or other work; b) causing serious harm to human health or major damage; c) a causal relationship between the specified violations and harmful consequences.
Construction work means excavation, stone, concrete, installation, dismantling, insulation, roofing and other work performed on a construction site in connection with the construction, reconstruction, repair, movement or demolition of residential buildings, premises and structures for industrial and other purposes, as well as work outside the construction site related to the repair and installation of communication lines, electrical networks, roads, heat supply communications, gas supply and other engineering networks.
Others are understood as similar to construction work, which have the same degree of public danger, can cause harm to human health and during which certain rules must also be observed (for example, gas and electric welding work, area decontamination, etc.).
3. The crime is completed from the moment the consequences occur in the form of causing serious harm to health or major damage. Major damage is considered to be damage whose amount exceeds 500 thousand rubles. (note to article 216).
4. The subjective side is characterized by a careless form of guilt.
5. The subject of the crime is a special one: a person who, by the nature of his activity related to construction or other work, is obliged to comply with or ensure compliance with the relevant safety rules.
6. Causing the death of a person by negligence is qualified under Part 2 of Art. 216.
A particularly qualified (part 3) type of crime is the infliction of death by negligence on two or more persons.
7. When delimiting the crime in question from the crime provided for in Art. 143 of the Criminal Code, it is necessary to take into account which specific work safety rules were violated. If a violation of these rules (including labor safety rules) was committed during construction work, then the offense must be qualified under Art. 216.
Judge: Lyakhova E.A.
Case No. 22-178/2019
DECISION OF APPEAL
Lipetsk February 26, 2022
Court of Appeal of the Lipetsk Regional Court composed of:
presiding judge Konovalova I.A.,
under secretary Zotova Y.A.,
with the participation of state prosecutor N.A. Shvarts,
victim Victim No. 1,
convicted Ryabov V.I.,
defense lawyer - lawyer O.L. Kolobaeva,
Having considered in open court a criminal case on the appeal (main and additional) of lawyer O.L. Kolobaeva. on the verdict of the Levoberezhny District Court of Lipetsk dated November 26, 2022, by which
Ryabov Full name46,
<data withdrawn> birth, <data withdrawn>,
convicted
under Part 2 of Article 216 of the Criminal Code of the Russian Federation to 2 years of imprisonment with deprivation of the right to engage in certain activities related to the management of lifting structures (vehicle crane, aerial platform, crawler crane, loader crane) for a period of 1 year.
By virtue of Art. 73 of the Criminal Code of the Russian Federation, the imposed sentence of imprisonment was decided to be considered suspended with a probationary period of 2 years.
Ryabov FULL NAME47 is assigned the following responsibilities: not to change his permanent place of residence without notifying the specialized state body that monitors the behavior of the conditionally convicted person and to register once a month with this specialized state body on the days established by this body.
The preventive measure for Ryabov, FULL NAME48, until the sentence entered into legal force, remained the same, in the form of a written undertaking not to leave the place and proper behavior.
Having heard the report of Judge I.A. Konovalova; explanations of the convicted person and the defense lawyer who supported the arguments of the appeal; the opinion of the public prosecutor and the victim on leaving the sentence unchanged, the complaint - without satisfaction; appellate court
U S T A N O V I L:
By the verdict of the Levoberezhny District Court of Lipetsk dated November 26, 2018, Ryabov V.I. found guilty of violating safety rules when conducting other work, resulting in the death of a person through negligence.
The crime was committed under the circumstances set out in the court verdict.
In the appeal and additions to it, lawyer Kolobaeva O.L.
asks the court's verdict to be quashed and an acquittal pronounced. Argues that most of the evidence presented by the prosecution does not in any way relate to the charge brought against V.I. Ryabov. The court's attention is drawn to the fact that the examination carried out on November 21, 2022. and expert opinion No. 1841/50 dated November 21, 2017, do not meet the requirements for evidence. 12/18/17 the investigator issues a resolution to order a medical forensic examination; from December 22 to 26, a medical examination was carried out; conclusion No. 174/949/2-17 dated December 22, 2017 was given, which also does not meet the requirements for evidence. In addition, the Tambov expert was presented with the case materials in the amount of one volume on 312 pages. The expert who conducted the medical examination was given the materials of the criminal case without any indication of the number of sheets and volumes. Further, the court draws attention to the education (qualification) of the expert Full name14 There is no information about the existence of certification of an expert in the field of industrial safety. He believes that a forensic technical examination of violations of safety regulations was carried out, but it was necessary to conduct a comprehensive construction and technical examination of violations of safety regulations. Considering that the examination was carried out without observing the procedure for conducting a procedural action and correctly documenting its results, in violation of the requirements of the Code of Criminal Procedure of the Russian Federation, we ask that you take a critical look at the above-mentioned expert opinions and exclude them from the list of evidence in a criminal case as unacceptable evidence. In addition, he asks the court to take a critical look at the technological map and exclude it from the list of evidence in the criminal case as unacceptable evidence. Notes that the testimony of the victims, in the opinion of the defense, not only does not confirm Ryabov’s guilt, but also contradicts the testimony of the installers interrogated at the court hearing, Witness No. 3 and Witness No. 4, who claimed that they were moving into a safe zone, did not see or hear anything knocking, but they didn’t shout. It remains unclear what exactly in the testimony of the victims, who “know nothing” in their words, is evidence of Ryabov’s guilt. He believes that the testimony of witnesses Witness No. 3, Witness No. 4, Witness No. 5, quoting them, in the opinion of the defense, not only does not confirm Ryabov’s guilt, but is also extremely inconsistent, illogical and there are significant contradictions in them. Witnesses for the prosecution, except Witness No. 3 and Witness No. 4, testified about the existence of the main cause that led to the death of the employee - unsatisfactory organization of work, the absence of a responsible person Witness No. 10 In addition, the court did not examine the materials of the criminal case (vol. 2 pp. 90-103), although the defense filed a motion.
In objections to the appeal, state prosecutor M.I. Shaforostov
asks the court's verdict to be left unchanged, and the appeal of lawyer O.L. Kolobaeva. - without satisfaction.
In objections to the appeal, the victims Victim No. 1 and Victim No. 2
They ask that the court’s verdict be left unchanged as legal and justified, and that the lawyer’s appeal be rejected, since the decision made by the court fully takes into account the factual circumstances of the case and complies with the norms of the substantive and procedural legislation of the Russian Federation.
Having checked the case materials, discussed the arguments of the appeal, filed objections, and listened to the opinions of the participants in the process, the appellate court considers the court’s verdict legal, reasonable and fair.
The court correctly established that V.I. Ryabov, being the driver of the truck crane of SMT NLMK LLC, in violation of the requirements of Art. 214, art. 225 Labor Code of the Russian Federation; clause 272 of the Rules on labor protection in construction, approved by order of the Ministry of Labor and Social Protection of the Russian Federation dated June 1, 2022 No. 336n; clause 23.i), clause 26., clause 130., clause 162., clause 220 of the Safety Rules for hazardous production facilities that use lifting structures, approved by order of the Federal Service for Environmental, Technological and Nuclear Supervision dated 12 November 2013 N 533; clause 19., clause 22., clause 35., clause 38., clause 105 of the Rules on labor protection during loading and unloading operations and placement of cargo, approved by order of the Ministry of Labor and Social Development of the Russian Federation dated September 17, 2014 N 642n; Clauses 2.9, 3.17, 3.17.3, 3.17.14, 3.19, 3.19.1 of the Production Instructions “For the crane operator” PI 012-001-2014, approved by the technical director of SMT NLMK LLC on May 23, 2014, carried out work on moving pipes without familiarization with the technological map of Promelektromontazh LLC, in the absence of slinging diagrams for lifted loads; did not comply with the technological process of cargo transportation, which excludes the presence of workers and third parties under the transported cargo and in hazardous areas of the crane operation; performed the work in the absence of a specialist responsible for the safe performance of work, and also did not notify the above-mentioned person about a possible threat to the life and health of workers, due to the lack of properly trained slingers, which led to a fall of the pipe and injury to the chest, back, limbs FULL NAME8 and an attack his death.
According to the conclusion of a forensic expert, the death of the victim, FULL NAME8, occurred on June 27, 2017. from blunt combined trauma to the body, which is assessed on the basis of danger to life as causing serious harm to health.
Contrary to the arguments of the author of the appeal, the court of first instance made a reasonable conclusion that the guilt of the convicted person in violating safety rules when carrying out other work on the operation of a truck crane at the installation site of Converter Shop No. 2 of NLMK PJSC was proven, which is in a direct cause-and-effect relationship with the consequences that occurred in the form of the hooks of the sling coming out of gear, the fall of the pipe at the moment of touching the ground, which through negligence resulted in the death of the victim.
The court's conclusions about the guilt of V.I. Ryabov in the commission of this crime are based on admissible, fully, comprehensively, objectively examined and presented in the verdict: testimony of victims Victim No. 1 and Victim No. 2, who informed the court about the known circumstances of the death of their husband and father as a result of a falling pipe, witnesses Witness No. 9, Witness No. 17, Witness No. 10, Witness No. 1, Witness No. 4, Witness No. 5 Witness No. 3 Witness No. 6, Witness No. 2, Witness No. 7, Full Name 10, Witness No. 18, Witness No. 14, Witness No. 13, Full Name 12, Witness No. 6, Witness No. 11, Witness No. 15, Witness No. 21, Witness No. 22, Witness No. 12, Witness No. 16, information contained in the inspection report of the scene of the incident, protocols of other investigative actions, the report on the industrial accident, the report inspection of the accident site, an expert's conclusion about the death of FULL NAME8 as a result of a falling pipe, other evidence examined and cited in the verdict, as well as testimony of FULL NAME19 and Witness No. 20 during the preliminary investigation, reasonably recognized by the court as admissible and reliable evidence, which in total was given the proper assessment in accordance with the requirements of Art. 88 Code of Criminal Procedure of the Russian Federation.
Ryabov V.I., without admitting guilt, testified to the court that he has been working as a truck crane operator since 1982. On June 27, 2017, at approximately 1:30 p.m., he arrived at the territory of PEM LLC to carry out work. An employee of PEM LLC brought the slinger to him, who signed the log and showed his ID; it was Witness No. 1. He doesn’t remember who made the entry in the log with the slinger’s data. When Witness No. 1 left, he did not see. Before starting work with lifting structures, he did not know what slinging method would be used; no one introduced him to the technological map. The slinger working with him in the afternoon had no identifying marks. The person responsible for safety during the work did not sign his log after lunch and was not present at the site. During the work on this site, he was convinced that the work of the slinger was performed by Witness No. 1, who signed his log. The slinger pointed his hand upward, and at his command he began to lower the arrow in his direction. After which the slinger hooked the pipe onto the eyelets already in the pipe and moved away to a safe distance, behind the signal tape. He showed the command to rise, and he began to lift. When the first pipe was raised 30-40 centimeters above the ground, 2 workers approached with a sledgehammer and hit it several times, moved away to a safe distance, after which the slinger gave a sign to lower this pipe and lay it horizontally on the ground. After some time, the slinger approached the pipe, unhooked the hooks and went to hook the second pipe. Having hooked the pipe in the same way, he moved away to a safe distance and signaled to rise. He raised the second pipe 30-40 cm from the ground, the workers tapped the pipe, then they went to a safe distance and showed a sign to descend in order to lay the pipe in the same way as the first. At that moment, he saw that a man had entered the danger zone from behind another crane; as he later learned, he was a master, FULL NAME8. He started beeping and stopped working. He saw how FULL NAME8 began to move away, but when he looked up the pipe, he saw that the hooks were disengaged. The pipe began to fall and fell on FULL NAME8, who was still in the danger zone, about 2 meters from the signal tape. He reported the incident to management. He believes that the slinging was carried out by Witness No. 3, since he is similar in build to a slinger. Witness No. 1, Master FULL NAME8, was not on the site, did not perform any work, including slinging, and appeared on the site by accident. Only two people worked with him: Witness No. 3 and Witness No. 4. In his opinion, he is not guilty of the death of the master FULL NAME8, since he was misled by replacing the slinger. He did not commit any violations of the safety rules and job descriptions charged to him, since this type of lifting work, in his opinion, should have been carried out by the usual method of slinging and only by a slinger, for whose actions he, as a truck crane operator, was not responsible. The appearance of FULL NAME8 in the danger zone was unexpected; all his subsequent actions when a person was detected in the danger zone were in accordance with the current rules and instructions.
Nominated by Ryabov V.I. arguments about the performance of work on slinging pipes by a slinger Witness No. 1 - the person entered in the log, the absence of the foreman FULL NAME8 at the site of the dangerous zone during the performance of both pipe breaking work and when performing lifting work with pipes and his unexpected appearance in the dangerous zone during the time of the fall of the pipe, were duly verified by the court and reasonably rejected as contradicting the evidence collected during the preliminary investigation and examined by the court, regarding them as a way of protecting him in order to reduce the degree of public danger of his actions.
The court's conclusions about the guilt of V.I. Ryabov the crime charged against him is confirmed by the following body of evidence:
- testimony of the witness FULL NAME9, from which it follows that he allowed FULL NAME8 to use a truck crane for work, gave him instructions to take a slinger from another team to perform slinging and enter the slinger’s data in the truck crane operator’s logbook, ensure fencing of the dangerous zone of production work and wait for his arrival, for checking the organization and control of the work with lifting pipes and the need for him to enter his data in the truck crane operator’s log. Slinger, who is recorded in V.I. Ryabov’s journal. – Witness No. 1 did not actually perform slinging work with Full Name 8 Neither Full Name 8 himself nor the two installers Witness No. 3 and Witness No. 4 had a slinger’s license. None of the workers at the time of work with truck crane operator Ryabov V.I. the signal vest was not worn. He, as the responsible person, did not sign the truck crane operator’s log, since he had not yet arrived at the place of work. Since Ryabov V.I. there was no technological map with the method of slinging, he had to wait for him, as a responsible person and sign in his log. Ryabov V.I. did not have the right to carry out work without making sure that the slinger had the appropriate certificate, distinctive signs, and also in the absence of a specialist responsible for the safe performance of work, that is, without him.
Failure to provide Ryabov V.I. technological map and his failure to familiarize himself with it was the basis, in accordance with the safety rules and his job description, to begin work with lifting structures only in the obligatory presence of the responsible person, in this case, FULL NAME9 - the head of the installation site, that Ryabov V.I. was not done.
- testimony of the witness Witness No. 1, according to which, at the request of FULL NAME8, he signed in the journal for the duties of a slinger, but he did not fulfill these duties.
- the testimony of Witness No. 4 and Witness No. 3, from which it follows that there was no slinger in their team, and therefore FULL NAME8 invited the slinger Witness No. 1, who, at his request, signed the logbook of the truck crane, and then went to another site. FULL NAME8 personally took on the duties of a slinger. The area was fenced off with warning tape. While the pipe was being raised to a height, they were on the side, in a non-hazardous area. When Ryabov began to lower the pipe, FULL NAME40 did not come out of the fence, the pipe fell on FULL NAME40, who was in the danger zone, and crushed him. None of them were wearing signal vests; truck crane operator Ryabov V.I. watched their work and could see and distinguish those working.
- testimony of the witness Witness No. 5, from which it follows that on June 27, 2017, after lunch, passing by the area where the truck crane was located, the master FULL NAME8 and his workers heard a scream, turned around and saw a pipe from a vertical position falling onto his back FULL NAME8 The pipe fell on FULL NAME8 and crushed him. He immediately ran up to FULL NAME8, ordered the crane operator to remove the pipe, hooked it with hooks, and the crane operator removed it. To carry out the work carried out by FULL NAME8, it is necessary to have a slinger, who must have a signal vest, and a specialist responsible for the safe performance of work, they were at the installation site - Witness No. 10 and FULL NAME10 The crane operator does not have the right to carry out work without a slinger, and the foreman does not has the right to assume the duties of a slinger. The foreman’s instructions to the truck crane operator to begin work in violation of safety rules are not mandatory. None of them had a signal vest.
The court reasonably accepted as evidence the testimony of witnesses Witness No. 1, Witness No. 3, Witness No. 4, Witness No. 10, Witness No. 5, which it gave a proper assessment. The testimony of these witnesses is not contradictory, complements each other, was obtained in accordance with the requirements of the law, and is consistent with each other and with other evidence in the case. They were warned about criminal liability for giving knowingly false testimony; no hostile relationship with the convicted person was established by the court. The grounds for recognizing them as inadmissible evidence in accordance with Art. 75 of the Code of Criminal Procedure of the Russian Federation is not available.
- from the testimony of witnesses, Witness No. 2 and Full Name 10, it follows that according to safety regulations, the truck crane operator is obliged not to start work with lifting structures in the absence of the slinger and the person in charge, and also to stop work if he sees a person in the danger zone. Ryabov was also obliged to stop work if the slinging was performed by another person who was not recorded in his log. All slingers in their organization have signal vests.
- testimony of witness Witness No. 18, from which it follows that according to the instructions and safety rules, the slinger always works in a signal vest. The foreman, FULL NAME8, did not have a slinger’s license. FULL NAME8 submitted to Witness No. 10
Witnesses Full name 11, Witness No. 13, Full name 12, Witness No. 6, Witness No. 11, Witness No. 15, Witness No. 21, Witness No. 22, Witness No. 12, Witness No. 16, interrogated at the court hearing, explained the organization and procedure of the commission in investigation of the accident that occurred on June 27, 2017, establishing the causes of the incident and the direct cause-and-effect relationship with the grave consequences that occurred in the form of the death of the victim, FULL NAME8 in connection with the actions of the truck crane driver of SMT NLMK LLC, V.I. Ryabov, who began to work on moving pipes without familiarizing yourself with the technological map of Promelektromontazh LLC for the process of manufacturing a platform for the enlarged assembly of spark arrester metal structures. Did not stop the work with a truck crane when hooking pipes by workers who do not have slinger rights, in the absence of slinging diagrams, when people were in the danger zone along the path of cargo movement, thereby violating: clauses 15, 18, 22 of the Labor Safety Rules during loading unloading work and placement of cargo approved by Order of the Ministry of Labor and Social Protection of the Russian Federation dated September 17, 2014 No. 642n; clauses 2.9, 3.17, 3.17.3, 3.17.14, 3.19, 3.19.1 of the Production Instruction “For the crane operator” PI 012-001-2014, approved by the technical director of SMT NLMK LLC on May 23, 2014. They insisted that regardless of the violations committed by other persons, if Ryabov V.I. did not start work under the conditions of the specified violations, then the accident with FULL NAME8 did not occur.
The court rightly recognized the testimony of these prosecution witnesses as objective and reliable, since they are consistent both with each other and with other evidence in the case, which was analyzed in the verdict.
Witnesses FULL NAME19 and Witness No. 20 during the preliminary investigation gave testimony similar to the testimony of the above-mentioned witnesses - members of the commission to investigate the accident that occurred on June 27, 2017.
However, at the court hearing, during interrogation, they changed their testimony as witnesses regarding the circumstances of the cause-and-effect relationship between the violations committed by the truck crane operator V.I. Ryabov. and the grave consequences that occurred with the victim FULL NAME8 in the form of death, and explained to the court that during the preliminary investigation they signed the protocol of their interrogation without reading it, while they did not challenge the handwritten entries in the protocol and the presence of signatures.
The court was critical of the testimony of witnesses FULL NAME19 and Witness No. 20, citing the reasons for the decision, which the appellate court agrees with.
Also the fault of V.I. Ryabov. is also confirmed by written materials of the criminal case:
- protocol of inspection of the scene of the incident dated July 27, 2017, which inspected a section of the area located on the territory of the gas purification of converter shop No. 2 of PJSC NLMK, during which a corpse, FULL NAME8, was discovered and examined;
- by order No. 480-k dated December 30, 2016, according to which Ryabov V.I. was an employee of the automobile convoy of the transport workshop of the Limited Liability Company "Construction and Installation Trust NLMK" from 01.01.2017 as an automobile crane operator (vol. 3, pp. 125);
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by order of the head of the transport department of SMT NLMK LLC, FULL NAME13 No. 601/00003 dated January 10, 2017, according to which Ryabov V.I. on the basis of Art. 154 Federal norms and rules in the field of industrial safety “Safety rules for hazardous production facilities where lifting structures are used” (approved by order of the Federal Service for Environmental, Technological and Nuclear Supervision dated November 12, 2013 No. 533) was allowed to work independently as a driver lifting equipment and a technically serviceable truck crane KS-55729V uch was attached to it. No. 17615, manager No. 020, state registration plate K400ER (vol. 1, pp. 156);
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automobile crane driver’s certificate dated July 7, 1982 No. 185, according to which it follows that the operator of the automobile crane of SMT NLMK LLC Ryabov V.I.
trained in the rules and procedures for performing work and allowed to work independently as a substation driver (
vol. 1, pp. 157-158);
- protocol No. 1 of November 25, 2016 of the qualification commission of the mechanization department of SMT NLMK LLC, according to which it follows that Ryabov V.I. passed a repeated knowledge test in the scope of order No. 533 dated November 12, 2013 (vol. 1, pp. 159-160);
- act No. 1 on an industrial accident dated July 31, 2017, one of the reasons for the accident was that Ryabov V.I. - an operator of an automobile crane at NLMK Construction and Installation Trust LLC - began work on moving pipes without familiarizing himself with the Technological Map of Promelektromontazh LLC for the process of manufacturing a site for the enlarged assembly of spark arrester metal structures. Did not stop the work with a truck crane when hooking pipes by workers who do not have slinger rights, in the absence of slinging diagrams, when people were in the danger zone along the path of cargo movement, thereby violating: clauses 15, 18, 22 of the Labor Safety Rules during loading unloading works and placement of cargo, approved. Order of the Ministry of Labor and Social Protection of the Russian Federation dated September 17, 2014 No. 642n; clauses 2.9, 3.17, 3.17.3, 3.17.14, 3.19, 3.19.1 of the Production Instructions “For the crane operator” PI 012-001-2014, approved by the technical director of SMT NLMK LLC on May 23, 2014 (vol. 1, pp. 38-50);
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certificate of forensic medical examination No. 949/2-17 dated July 14, 2017 and expert opinion No. 174/949/2-17 dated December 26, 2017, according to the conclusions of which the death of FULL NAME8 occurred from a blunt combined injury of the chest, spinal injury, limbs and consist of a direct cause-and-effect relationship with the occurrence of death, in the complex they are qualified as serious harm to health on the grounds of danger to life. These injuries were caused by the impact of a blunt hard object with a predominant traumatic surface. The place of application of the traumatic force was predominantly the right posterolateral surface of the body FULL NAME8 (vol. 2 case sheet 36-42, volume 1 case sheet 52-56);
- the conclusion of a technical forensic examination in this criminal case No. 1841\50 dated November 21, 2017 (vol. 2 case sheets 189-190), according to the conclusions of paragraph 4 of which the direct cause of the fatal accident that occurred with FULL NAME8 was non-compliance (violation) of safety and labor protection rules by the operator of the truck crane of SMT NLMK LLC V.I. Ryabov. and the victims themselves, FULL NAME8, who should not have started performing the assigned work without completing all organizational and technical measures and in the absence of the person responsible for the safe performance of work.
At the court hearing, expert FULL NAME14 confirmed his conclusions, as well as his powers required of an expert to be able to carry out this examination.
- and other evidence given in the verdict and written materials of the case.
The arguments of the appeal about the incompleteness of the technical forensic examination carried out in the case are untenable and are not objectively confirmed by anything.
The objectivity and reliability of all expert opinions are not in doubt by the appellate court, since the experts’ conclusions are based on a comprehensive assessment of all the circumstances of the criminal case and the materials of the research conducted; they are justified by references to specific circumstances and specific results of the study, given in the manner prescribed by law by persons with relevant special knowledge and experience in expert activities; the conclusions comply with the requirements of Art. 204 of the Code of Criminal Procedure of the Russian Federation.
The arguments of the complaint about the violation of the rights of the defense related to the procedure for familiarization with the decision on the appointment of forensic medical and forensic technical examinations were the subject of assessment by the court of first instance, which came to the reasonable conclusion that there were no violations of the provisions of Art. 198 Code of Criminal Procedure of the Russian Federation. The appellate court also agrees with these conclusions of the court, without finding any grounds for excluding the specified evidence from the list of evidence.
In view of this, the appellate court cannot agree with the arguments set out in the defense attorney’s appeal that the verdict was based on inadmissible evidence, in particular technical forensic examination No. 1841/50 of November 21, 2017, forensic medical examination No. 174/949 /2-17 dated December 22, 2017, due to non-compliance with the procedure for conducting a procedural action and the correct registration of its results, which led to a violation of the requirements of the Code of Criminal Procedure of the Russian Federation.
It should be noted that the excerpts from the case materials and testimony of persons interrogated in the case cited by the defense in the appeal are one-sided in nature, do not fully reflect the essence of this evidence and were assessed by the defendant’s defense attorney in isolation from other evidence available in the case. According to the requirements of the law, the evidence examined in the case must be considered and assessed in its entirety, which is what the court did in the verdict. There are no significant contradictions between the factual circumstances of the case, as established by the court, and the evidence provided by the court in support of them .
Having analyzed and assessed the examined evidence from the point of view of relevance and admissibility, and in aggregate - from the point of view of its sufficiency, the court of first instance, citing the reasons for which it accepted some evidence and rejected others, correctly established the factual circumstances of the case and correctly qualified the actions of Ryabov V. AND. according to Part 2 of Art. 216 of the Criminal Code of the Russian Federation, as a violation of safety rules when conducting other work, resulting in the death of a person through negligence.
As follows from the protocol of the court session, the consideration of this criminal case was carried out by the court in accordance with the established legal procedure, in compliance with the rights guaranteed to the parties. The parties' petitions are resolved by the court in the prescribed criminal procedural order by discussing them by the participants in the court session and the court making an appropriate decision based on the results of this discussion. The appellate court did not establish any data indicating the court’s illegal and unfounded rejection of the petitions; the general requirements of judicial proceedings and in particular Art. 244 of the Code of Criminal Procedure of the Russian Federation, fulfilled by the court.
The appellate court finds the other defense arguments set out in the appeal to be untenable, since they either have no legal significance for resolving the present criminal case on the merits, or are based on a re-evaluation of the evidence, which was assessed by the court according to its internal conviction, based on the totality of available evidence, as provided for in Article 17 of the Code of Criminal Procedure of the Russian Federation. A different assessment of this evidence by the defense attorney is not in itself provided for by the procedural law as a circumstance leading to the reversal of the verdict.
The court of first instance gave a proper assessment of all the evidence examined during the trial, in its entirety, and indicated the reasons why some evidence was accepted and others rejected. This assessment was made by the court in accordance with the requirements of Art. 87, 88, 305 of the Code of Criminal Procedure of the Russian Federation, and the fact that this assessment of the evidence does not coincide with the position of the defense does not indicate a violation by the court of the requirements of the criminal procedural law and is not a basis for reversing the court decision.
The court, in accordance with Part 1 of Article 6 and Part 3 of Article 60 of the Criminal Code of the Russian Federation, when choosing the type and amount of punishment for V.I. Ryabov, took into account the nature and degree of public danger of the crime he committed, which belonged to the category of medium gravity, committed by negligence, information about the identity of the perpetrator Ryabov V.I. (<data withdrawn>); the impact of the imposed punishment on the correction of the convicted person and on the living conditions of his family.
As mitigating circumstances, the court recognized the illegality of the behavior of the victim himself, who, for his part, did not take any measures to ensure safety during the work.
No aggravating circumstances have been established in the case.
Having assessed the totality of the above-mentioned circumstances, the court of first instance reasonably came to the conclusion that it was possible to correct V.I. Ryabov. without isolation from society, applying Art. 73 of the Criminal Code of the Russian Federation.
The reasons that the court used when imposing punishment on V.I. Ryabov suspended sentence and imposed an additional punishment in the form of deprivation of the right to engage in certain activities related to the management of lifting structures (truck crane, truck mounted aerial platform, crawler crane, loader crane), are given in the verdict and are convincing.
The court of first instance motivated the lack of grounds for applying the provisions of Part 6 of Article 15, Article 64 of the Criminal Code of the Russian Federation. The appellate court does not find them either.
No civil claim has been filed in the case.
The court of appeal did not establish any violations of the norms of the Criminal Code of the Russian Federation, the Code of Criminal Procedure of the Russian Federation, the Constitution of the Russian Federation, entailing the cancellation or other change of the sentence, and these were not cited in the appeals and presentations.
In accordance with the above, guided by Art. Art. 389.20, 389.28, 389.33 Code of Criminal Procedure of the Russian Federation, court
P O S T A N O V I L:
Verdict of the Levoberezhny District Court of the city of Lipetsk dated November 26, 2022 against Ryabov FULL NAME49
Leave unchanged the appeal (main and additional) of lawyer O.L. Kolobaeva. - without satisfaction.
Chairman I.A. Konovalova
