New edition of Art. 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, resulting in the death of a person through negligence, -
shall be 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 to hold certain positions or engage in certain activities for a term of up to three years, or without one.
3. An act provided for in the first part of this article, resulting in the death of two or more persons through negligence, -
shall be 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 a term of up to seven 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 one.
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 of the Criminal Code of the Russian Federation
1. The object of the crime is public safety during mining, construction or other work. The list of hazardous industries (enterprises, their workshops, sites, sites, as well as other production facilities) is given in Appendix 1 to the Federal Law of July 21, 1997 N 116-FZ “On the Industrial Safety of Hazardous Production Facilities”.
———————————
NW RF. 1997. N 30. Art. 3588.
The victim can be any person, both connected and not connected with labor relations with this production.
2. Mining work is the construction, reconstruction, operation and repair of drilling rigs, mines or other workings for the extraction of mineral resources, as well as the construction and repair of underground structures not related to the extraction of mineral resources, such as subways, tunnels, etc. . Construction work means excavation, stone, concrete, installation, finishing, loading and unloading and other work on a construction site related to the construction, repair, movement, reconstruction or demolition of residential buildings, industrial, domestic or other premises, as well as work outside construction site, but related to the repair and installation of various engineering networks, heat and water supply communications, etc. Other work is work that has the same high level of potential for occupational injury as mining and construction work (for example, work using equipment under high pressure or high temperature, or permanently installed lifting mechanisms, escalators, cable cars, cable cars, as well as underground work).
3. The objective side can be expressed both in actions (issuing orders, influencing the organization of work, etc.) and inaction (failure to comply or improper compliance with safety requirements provided for by certain rules).
A mandatory sign of the objective side is the occurrence of consequences in the form of causing serious harm to human health or major damage (see note to Article 216). Therefore, the crime should be considered completed from the moment the named consequences occur.
4. The subjective side is characterized only by a careless form of guilt.
5. The subject of the crime is a special one: a person who, by the nature of permanent or temporary activity related to this production, is obliged to comply with or ensure compliance with the relevant safety rules.
6. The qualified type of crime under analysis (Part 2) is causing the death of a person by an act of negligence. A particularly qualified type (Part 3) is the infliction of death by negligence on two or more persons.
Security
Article 216 is applicable to those citizens who, by the nature of their activities, must ensure maximum work safety for company employees. Therefore, they are assigned certain responsibilities that help the official create normal working conditions.
- Regular TB training.
- Control during work.
- Checking the qualifications of working personnel.
- Ensuring the boundaries of hazardous areas.
- Checking working mechanisms and equipment.
In essence, the specialist responsible for the safety of working conditions in the company acts as a consultant to management. Taking into account the requirements of Russian legislation on labor protection and his observations, he can recommend that the company replace an employee, update the mechanism, and be more attentive to the work being carried out.
To fully familiarize yourself with all the rules, this employee is allowed to download the necessary legislative acts onto his work computer in order to be guided by them in the future to ensure reliable work.
This specialist must conduct safety training for company employees at least twice a year, check people working with special equipment, and their knowledge of working with mechanisms. If work is carried out in public places or at facilities where it is impossible to isolate people, the specialist must calculate safe boundaries for the population and install fences.
The set of actions carried out by such an employee must ensure the most reliable working conditions for an employee of any level, as well as for the population in the case of working in public places.
Comments on the article
Many lawyers comment on the application of this article in practice. In order for the application of this article to be possible, it is necessary to carefully examine the elements of the crime, to find points that indicate that this act can be qualified under Article 216.
- The crime scene must be within the boundaries of the entity where mining, construction or similar work is being carried out.
- From the materials it can be understood that the damage occurred as a result of safety violations.
- The victim must be injured at the place of work as a result of a safety violation.
- The death of the victim will be recognized by the court if he actually died from the injuries inflicted.
- The amount of damage must be from 500 thousand rubles.
This article will be applied upon sentencing if the conditions listed above have been met. The investigation is obliged to present to the court evidence confirming the events that occurred and evidence of the guilt of the accused persons.
The perpetrators can receive a more lenient punishment; for this they must have certain evidence that can convince the court of their repentance.
As a rule, the perpetrators provide a reference from their place of work, cooperate with the investigation and receive a more lenient punishment.
Criminal case No. 1- 48/15
SENTENCE
IN THE NAME OF THE RUSSIAN FEDERATION
Moscow January 30, 2015
Izmailovsky District Court of Moscow composed of the presiding federal judge Pospelova E.V., with the secretary of the court session Ashyrova M.Sh., with the participation of:
State Prosecutor - Senior Assistant of the Izmailovo Interdistrict Prosecutor of Moscow, 3rd Class Lawyer O.M. Lavrov,
defendant Kuts D.V.,
defense lawyer Arshinova G.A.,
having examined in an open court session in a special manner the materials of the criminal case in relation to:
Kuts D.V., no criminal record,
accused of committing a crime under Art. 216 part 1 of the Criminal Code of the Russian Federation, -
INSTALLED:
Kuts D.V. guilty of violating safety rules when carrying out construction and other work, if this resulted in negligence causing serious harm to human health.
The crime was committed under the following circumstances: ** 2014 in the period of time from approximately * hours * minutes to * hours * minutes, during the implementation of LLC "****" complex of construction, installation and commissioning work on laying a cable line from the substation to the electrical panel ******, located at: Moscow, st. *** foreman of LLC “****” Kuts D.V., appointed by order of the General Director of the said Company No. ** dated ** 2014 as the responsible manager of the work with the obligation to comply with the “Rules for conducting earthworks in Moscow” when performing labor protection, safety of existing networks and communications”, violated safety rules when carrying out construction and other work, showing criminal negligence, that is, he did not foresee the possibility of socially dangerous consequences of his actions, although with the necessary care and forethought he should and could have foreseen these consequences. So he (D.V. Kuts) did not take into account the unsatisfactory content and shortcomings in the organization of workplaces, in violation of paragraph 3 of table 1. clause 5.2.6 of section 5.2 “Organization of workplaces” SNiP 04/12/2002 “Labor safety in production” ": "Work associated with the presence of workers in excavations with slopes without fastenings in bulk, sandy and silty-clayey soils above the groundwater level" (taking into account capillary rise) or soils drained by artificial dewatering is allowed at the excavation depth and the steepness of the slopes indicated in Table 1: The steepness of the slope (the ratio of its height to the foundation), after which he gave instructions to the electrician for servicing electrical installations of LLC “****” K.I. appointed to this position in accordance with the order of the General Director of the said Company No. 8 dated May 7, 2014, to trim the reinforcement existing at the bottom of the earthen trench, without taking into account that the ground, vertical walls of the trench are not strengthened and when carrying out work in the trench, collapse is possible unstrengthened walls. During the execution of K.I. of the specified works, ** 2014, approximately in the period of time from * hours * minutes to * hours * minutes, a ground collapse occurred, as a result of which the latter, according to the expert’s conclusion dated ** 2014, suffered the following bodily injuries: closed blunt trauma to the chest cells: multiple bilateral fractures of the ribs: closed fractures of the 2,3,5,6,7,8,9 ribs on the right, 10th rib on the right with displacement of fragments: closed fractures of the 3,4,5 ribs on the left, 5, 6,7,8,9th ribs on the left with displacement of fragments; closed fracture of the middle third of the left clavicle with displacement of fragments; hemothorax (accumulation of blood in the pleural cavity) on the right and left; pneumothorax (accumulation of air in the pleural cavity) on the right and left; contusion of both lungs; soft tissue emphysema (accumulation of air in the soft tissues) of the neck, chest and abdomen; abrasions of the torso, limbs. These injuries are collectively qualified as serious harm to health based on the danger to life. The diagnosis made: “Contusion of the thoracic spine” was not confirmed by the presence of bodily injuries (wounds, abrasions, bruises or bone-traumatic changes) in the specified area, and therefore is not subject to forensic medical assessment.
Defendant Kuts D.V. He fully admitted his guilt in committing the crime, repented of what he had done, agreed with the accusation and filed a petition for consideration of the criminal case in a special manner, explaining that he submitted the petition voluntarily and after consultation with the defense lawyer, he (D.V. Kuts) understands the nature and consequences of this request.
Having made sure that all the requirements of the law have been met for consideration of the case in a special order, since the defendant is aware of the nature and consequences of the petition filed by him, this petition was submitted by the defendant voluntarily and after consultation with the defense lawyer, who supported the stated petition in court, taking into account the consent of the prosecutor and the victim , who did not object to the consideration of the case in a special order, the court considers it possible to satisfy the defendant’s request and, having considered the present criminal case in a special order, comes to the conclusion that the charge, which the defendant agreed with Kuts D.V. justified and supported by evidence collected in the criminal case.
The court qualifies the actions of Kuts D.V. according to Art. 216 part 1 of the Criminal Code of the Russian Federation, since he is guilty of violating safety rules when carrying out construction and other work, if this resulted in negligence causing serious harm to human health.
When assigning punishment to the defendant, the court, in accordance with Art. 60 of the Criminal Code of the Russian Federation takes into account the nature and degree of public danger of the crime, information about the identity of the perpetrator:
Kuts D.V. we have no criminal record (vol. 2, pp. 100-102), are characterized positively at the place of work (vol. 2, pp. 99), no complaints were received at the place of residence (vol. 2, pp. 104), is not registered in the ND, PND (vol. 2, pp. 105-106), has a dependent mother who suffers from a serious illness and needs expensive operations.
Mitigating Kuts D.V. circumstances, the court recognizes his repentance for his actions, a positive reference at his place of work, and the presence of a dependent mother with a serious illness.
Considering the nature and degree of public danger of the crime committed, mitigating circumstances, guided by Art. 43 of the Criminal Code of the Russian Federation, the court believes that in order to restore social justice and prevent the commission of new crimes, the correction of Kuts D.V. perhaps by imposing punishment on him using Art. 73 of the Criminal Code of the Russian Federation.
Guided by Art. Art. 314-316 Code of Criminal Procedure of the Russian Federation, court
SENTENCED
Recognize Kuts D.V. guilty of committing a crime under Art. 216 part 1 of the Criminal Code of the Russian Federation and impose a fine on him in the amount of 30,000 (thirty thousand) rubles.
The preventive measure until the sentence enters into legal force remains unchanged in the form of a written undertaking not to leave the place and proper behavior.
The verdict can be appealed to the Moscow City Court through the Izmailovsky District Court of Moscow within 10 (ten) days from the date of proclamation, taking into account the requirements of Art. 389.15 clause 1 of the Code of Criminal Procedure of the Russian Federation.
In the case of an appeal, the convicted person has the right to participate in the consideration of the criminal case by the court of appeal.
Chairman E.V. Pospelov
Persons liable
When applying any article, the investigation will look for the defendant who is guilty of the events that occurred. If the investigation is considering charges under Article 216 of the Criminal Code of the Russian Federation, then these accused are sought based on their level of responsibility for safety at the enterprise or during public works.
- Chief managers of enterprises.
- Responsible for TB.
- Persons who have violated established rules.
The main managers of a mining or construction organization may be considered guilty of violating established rules if, with their knowledge or on the order, work was carried out that led to injury or property damage.
It follows from judicial practice that such persons are often deprived of the right to occupy positions in which such a violation of the law occurred. Their punishment is often associated with a restriction of freedom, but not a deprivation of it, due to the fact that these people are not the main safety officials.
Safety officials are more likely to be disciplined because they hold a position that requires care, skill, and skill. They must be responsible for communicating to workers information about the rules to ensure proper working conditions that will not cause an emergency.
These workers are required to hold meetings on a regular basis, at which they must familiarize workers with safety rules and explain the main points on the operation of equipment and actions in dangerous situations. They are also responsible for developing a plan for the evacuation of people, the location of equipment to eliminate danger or damage to property. Before the moment of danger occurs, they must notify employees of the impending disaster.
Persons who are direct violators of the rules include workers in the mining, construction and other sectors, where established laws and rules help workers save not only their lives, but also not endanger other people. Their punishment will depend on the factors on which the worker violated the rules for protecting the life and health of people, and it is also important who received what damage, if a connection is proven between the violation that occurred and the harm caused.
Responsibility measures
The 216th article of the Criminal Code of the Russian Federation under consideration determines the punishment for those persons who violated safe working methods when carrying out construction, mining or other types of work.
- to violation of public danger;
- pose a danger to the health of workers or citizens;
- to economic damage;
If during investigative actions and in court this danger is proven, although it was not realized, then the accused person faces a minimum punishment, expressed in restriction of freedom or a fine.
This method of holding a person accountable is necessary so that the person understands the seriousness of the situation when carrying out work that requires increased attention. If violations of safety rules during mining, construction or other work were not only identified, but also carried out, resulting in damage to human health or damage to property, then the punishment will be associated with imprisonment. The terms of deprivation will be determined by the court depending on the number of victims, as well as the degree of injuries received. Since non-compliance with the rules leads to serious consequences, the punishment will be more severe than simply for non-compliance with safety rules.
If it is revealed that there are no victims of the violations, but the production suffered damage, as a result of which funds will be required to eliminate the deficiencies, then this moment will be considered economic damage, and the punishment will be determined depending on the amount of damage.
If the amount is insignificant, the sanction may not be criminal, but may be subject to consideration under an article of the Code of Administrative Offenses, which implies administrative liability. If the amount of damage is assessed as significant, that is, large, then the sanction will be criminal and directly depend on whether there are victims or not.
Qualification
Violation of safety rules during construction, mining and other work has varying degrees of qualification of guilt and depends on the circumstances of the incident.
- Part 1, Art. 216 of the Criminal Code of the Russian Federation regulates liability for causing grievous bodily harm and major damage;
- Art. 216, part 2 of the Criminal Code of the Russian Federation applies if non-compliance with the rules resulted in the death of a person;
- Art. 216, part 3 regulates liability if two or more people die as a result of security violations.
If the crime is classified under Part 1 of the article in question, then the amount of punishment will be considered in proportion to the harm caused. If material damage is caused on an especially large scale, that is, when the damage is estimated at more than 500 thousand rubles, then, according to Russian legislation, the culprit faces a fine of 80 thousand or seizure of income for a period of up to 6 months.
With aggravating factors, there is a risk of being sentenced to restriction of freedom for up to 3 years.
In this case, the culprit is deprived of the right to hold similar positions for the same period. If serious harm to health is caused, the perpetrator may be imprisoned for up to three years and, after release, may not have the right to work in positions related to safety for three years. The qualification of a crime under Part 2 of this article implies that a violation of security rules led to the death of one citizen. In this case, it does not matter who was injured: an employee of the enterprise or a random passer-by who found himself in the area of the work being carried out. The guilty person faces imprisonment for up to 5 years. If he has mitigating circumstances, the court may replace actual imprisonment with forced labor for a period of up to three years. But in both cases, this person will be deprived of the right to work at sites with increased danger and be responsible for the safety of other persons.
If the violation of the law is qualified under Article 216 of the Criminal Code under Part 3, it means that the circumstances of the case were such that an incident occurred that claimed more than two human lives. In this case, the culprit of the incident may end up in prison for up to 7 years. If there are mitigating circumstances, the punishment may be changed to a more lenient one - in the form of forced labor for up to 5 years.
