Rus News Journal

The decision of the Constitutional Court of the Russian Federation from May, 24th, 2007 N 7 - P “ on the case of check of constitutionality of the paragraph of the fourth part of twelfth article 230 of the Labour code of the Russian Federation on demand of Uhtinsky city court of Republic Komi “

the Name of the Russian Federation

the Constitutional Court of the Russian Federation as a part of the chairman - judge A.Ja.Slivy, judges N.S.Bondarja, G.A.Gadzhiev, A.L.Kononova, L. O.Krasavchikovoj, S. P.Mavrina, Ju.D.Rudkina, V.G.Strekozova, B.S.Ebzeeva, V.G.Yaroslavtsev,

with participation of the judge of Uhtinsky city court of Republic Komi of V.A.Panteleevoj, the constant representative of the State Duma in the Constitutional Court of the Russian Federation

E. B.Mizulinoj, the representative of the Federation Council - doctors of jurisprudence E. Century Vinogradovoj, the plenipotentiary of the President of the Russian Federation in the Constitutional Court of the Russian Federation of M.V.Krotova,

being guided by article 125 (a part 4) Constitutions of the Russian Federation, point 3 of a part of the first, parts of third and fourth article 3, point 3 of a part of second article 22, articles 36, 74, 86, 101, 102 and 104 Federal constitutional laws “ About the Constitutional Court of the Russian Federation “

has considered in a public meeting case about check of constitutionality of the paragraph of the fourth part of twelfth article 230 of the Labour code of the Russian Federation.

the Occasion to a legal investigation was the inquiry of Uhtinsky city court of Republic Komi. The basis to a legal investigation was the found out uncertainty of a question on, whether there corresponds to the Constitution of the Russian Federation norm of the paragraph of the fourth part of twelfth article 230 of the Labour code of the Russian Federation challenged by the applicant (in edition of the Federal law from December, 30th, 2001 N 197 - FZ).

Having heard the message of the judge - lecturer S. P.Mavrina, explanations of representatives of the parties, the expert`s statement - the candidate of jurisprudence N.S.Kovalevsky, performance of the representatives invited in session: from Ministry of health and social development of the Russian Federation -

V.K.Sviridov, from Federal Agency of work and employment - I.I.Shklovtsa, from Fund of social insurance of the Russian Federation - S. V.Petrovoj, having investigated the presented documents and other materials, the Constitutional Court of the Russian Federation

has established:

1. In manufacture of Uhtinsky city court of Republic Komi are business under the claim of citizens L.A.Sergeevoj and A. V.Sergeeva to Open Society “ Komineftegeofizika “ and to official body - to regional branch of Fund of social insurance of the Russian Federation on Republic Komi about payment of the insurance sums, harm compensation in connection with loss of the supporter and collecting of moral harm, and also business under the claim of citizen O.A.Seredinoj besides official body about harm compensation in connection with loss of the supporter.

Having come to a conclusion that subject to application in these affairs the norm of a part of twelfth article 230 of the Labour code of the Russian Federation according to which accident, proisshedshy at fulfilment by the victim of the offence containing on the conclusion of law enforcement bodies signs of penal act, it is investigated and qualified as the accident which has been not connected with manufacture, with registration of the certificate of any form (the paragraph the fourth), does not correspond to the Constitution of the Russian Federation, Uhtinsky city court, having suspended manufacture on affairs, the inquiry about check of its constitutionality has directed to the Constitutional Court of the Russian Federation.

1. 1. As appears from inquiry and the materials enclosed to it, as a result dorozhno - the transport incidents which have happened on May, 24th, 2003 and on December, 19th, 2003 accordingly, were lost coming back of official journeys on cars belonging to employers the driver of Open Society “ Komineftegeofizika “ V.A.Sergeev and the driver of branch of the Joint-stock power company “ Komienergo “ “ the Central electric networks “

A. V.Seredin, and also the passengers who were with them. The criminal case raised in the relation of V.A.Sergeeva to signs of a crime, provided by a part of second article 264 UK of the Russian Federation (infringement of Traffic regulations of the Russian Federation by the person operating the car, entailed on imprudence death of the person), has been stopped on the basis of point 4 of a part of first article 24 UPK of the Russian Federation in view of death of the suspect. On the same basis by bodies of preliminary investigation it has been refused excitation of criminal case concerning A. V.Seredina.

the Regional branch of Fund of social insurance of the Russian Federation on Republic Komi has refused to families of the lost drivers maintenance appointment on the insurance, provided by the Federal law “ About obligatory social insurance from accidents on manufacture and occupational diseases “ as the death of both drivers has been qualified by the commissions on investigation of accidents as come out the accidents which have been not connected with manufacture (the paragraph of the fourth part of twelfth article 230 of the Labour code of the Russian Federation) that has not allowed to carry them to a category of the insurance.

As inquiry of Uhtinsky city court of Republic Komi affirms that the norm of the paragraph of the fourth part of twelfth article 230 of the Labour code of the Russian Federation contradicts the Constitution of the Russian Federation, to its articles 19 (to a part 1 and 2) and 55 (parts 2 and 3) as, excluding from a category insurance accidents, proisshedshie at fulfilment by the victim - the insured person of the offence containing signs of penal act, it breaks the constitutional principle of equality of all before the law and court and unreasonably limits the rights and freedom of the person and the citizen. The reference containing in drawn norm to the conclusion of law enforcement bodies as the legislative ground for a presence recognition in actions of the victim of signs of penal act as the applicant believes, directly contradicts article 49 (the part 1) Constitutions of the Russian Federation according to which everyone accused of commission of crime is considered innocent while its guilt will not be proved in the order provided by the federal law and is established by the sentence which has entered validity of court.

1. 2. The federal law from June, 30th, 2006 “ About modification of the Labour code of the Russian Federation, a recognition not operating in territory of the Russian Federation of some standard legal certificates of the USSR and become invalid for some acts (positions of acts) Russian Federation “ Article 230 of the Labour code of the Russian Federation has been stated in other edition, and the standard positions containing regarding twelfth given article, its parts of the sixth are partially reproduced in the Russian Federation entered into the Labour code to article 2292.

However in spite of the fact that to the beginning of consideration of the present business in session of the Constitutional Court of the Russian Federation the part of twelfth article 230 of the Labour code of the Russian Federation in the edition operating before acceptance of the named Federal law, has become invalid, standard positions containing in it, on sense of a part of second article 43 of the Federal constitutional law “ About the Constitutional Court of the Russian Federation “ are subject to check on conformity of the Constitution of the Russian Federation.

Thus, a subject of consideration of the Constitutional Court of the Russian Federation on the present business the norm of the paragraph of the fourth part of twelfth article 230 of the Labour code of the Russian Federation (in edition of the Federal law from December, 30th, 2001 N 197 - FZ), as not assuming in case of death of the insured worker - the driver of the vehicle, come out accident, an event is at fulfilment by it during performance of labour duties of offence which on the conclusion of law enforcement bodies contains signs of the penal act which are not recognised as accident connected with manufacture, granting of the right to maintenance on insurance to members of his family which have lost the supporter.

2. According to the Constitution of the Russian Federation the person, its rights and freedom are proclaimed supreme value, and their recognition, observance and protection - a duty of the Russian Federation which as the social state should direct the policy on creation of the conditions providing worthy life and free development of the person, a labour safety and health of people, maintenance of the state family support service and an establishment of guarantees of social protection for certain groups of citizens (article 2; article 7, parts 1 and 2).

the Resulted constitutional positions in their unity with article 39 (the part 1) Constitutions of the Russian Federation guaranteeing as one of the basic directions of realisation of social policy of the state social security in case of loss of the supporter, is caused creation of system of guarantees of social protection of the population, including social security in the cases established by the law, including social security of the family which have lost the supporter, subject as the worker to obligatory social insurance from accidents on manufacture and occupational diseases.

2. 1. According to the Federal law from July, 16th, 1999 “ About bases of obligatory social insurance “ Operating in edition of the Federal law from March, 5th, 2004 N 10 - FZ, obligatory social insurance, representing itself as a component of the state system of social protection of the population, functions as uniform system of the legal state legal, economic and organizational measures directed on indemnification or minimisation for working citizens and other categories of citizens of consequences of their change material and (or) the social status which has arisen owing to approach provided legislation of the Russian Federation of social insurance risks (a part the second and third articles 1).

Definition of social insurance risks with which the Constitution of the Russian Federation connects realisation by citizens of the right to social security, concerns powers of the legislator establishing within the limits of special legal regulation entered by it of corresponding relations principles, rules and features of various kinds of social security, including maintenance on obligatory social insurance from accidents on manufacture and occupational diseases of the worker, and in case of his death - the family which have lost the supporter (article 39, parts 1 and 2; article 72, point “ “ parts of 1 Constitution of the Russian Federation).

Now legal regulation of relations on obligatory social insurance from accidents on manufacture and occupational diseases is carried out on the basis of norms of the Federal law from July, 24th, 1998 “ About obligatory social insurance from accidents on manufacture and occupational diseases “ and the Labour code of the Russian Federation (chapter 36 “ Maintenance of the rights of workers on a labour safety “) Having for an object both social protection in the broad sense of the word, and social security of insured and other persons specified in the law at insured event approach and by that - owing to articles 7 (a part 2) and 37 (a part 3) Constitutions of the Russian Federation - called to promote not only to creation of safe working conditions and compensation of the harm caused to health of workers, but also social security of members of their families in case of loss of the supporter as a result of an event on accident or occupational disease manufacture.

2. 2. Within the limits of special legal regulation of relations on obligatory social insurance from accidents on manufacture and occupational diseases the federal legislator has defined a circle of the subjects having the right to reception of insurance payments, maintenance kinds on insurance, and also the bases of appointment of insurance maintenance and refusal in such maintenance, including in case of death of the insured person - concerning lost supporter of members of his family or other persons specified in the law (articles 7 and 14 Federal laws “ About obligatory social insurance from accidents on manufacture and occupational diseases “) . Thus as the general basis which attracts occurrence of the obligation of the insurer to carry out maintenance by the given kind of insurance, the Federal law “ About obligatory social insurance from accidents on manufacture and occupational diseases “ names insured event - the fact of damage of health of the insured person confirmed when due hereunder, proisshedshy owing to accident on manufacture or occupational disease (the paragraph of ninth article 3 and article 7 point 1); accident is defined as event in which result the insured has received at discharge of duties under the labour contract a mutilation or other damage of the health which has entailed necessity of its transfer for other work, time or proof loss of professional work capacity or death (the paragraph of tenth article 3).

Regulating relations on investigation, the account and qualification of accidents, the federal legislator has provided the norm supposing refusal in granting of maintenance on insurance to members which has lost the supporter of a family insured, which death in the paragraph of the fourth part of twelfth article 230 of the Labour code of the Russian Federation has come out accident, an event at fulfilment of the offence containing on the conclusion of law enforcement bodies signs of penal act by it, admits not connected with manufacture.

On the sense given to given norm pravoprimenitelnoj by practice, the such conclusion in most cases meant a recognition of that the worker which actions contain, according to law enforcement bodies, signs of penal act, at the moment of damage causing to the health or life did not fulfil the labour duties owing to what proisshedshy with it accident did not admit connected with manufacture by the commissions on investigation of accidents, the state inspectors of work, regional branches of Fund of social insurance of the Russian Federation and judicial bodies. For this reason members of a family of the insured person did not get the right to reception provided by point 2 of article 7 of the Federal law “ About obligatory social insurance from accidents on manufacture and occupational diseases “ insurance payments in connection with loss of the supporter.

At the same time with reference to the affairs which have become the cause for the reference of court of law in the Constitutional Court of the Russian Federation, it is necessary to consider that as victims have appeared drivers who operated the car on the instructions of the employer, actually they fulfilled the labour duties even if driving has been interfaced to fulfilment of the actions containing, according to law enforcement bodies, signs of penal act.

Thus, by the general rule, the accident which has led to death of the worker - the driver of the vehicle operating on the instructions of the employer and by that fulfilling labour duty, cannot be recognised by not connected with manufacture, owing to what to members semi this worker who was subject to obligatory social insurance from accidents on manufacture, maintenance on the insurance, carrying out in the present state of affairs function of social security on the occasion of loss of the supporter (article 39, a part of 1 Constitution of the Russian Federation) if to that there are no other obstacles in particular provided by point 2 of article 14 of the Federal law " should be given; About obligatory social insurance from accidents on manufacture and occupational diseases “ establishing that the harm which has arisen owing to intention insured is not subject to compensation.

2. 3. Carrying out legal regulation of relations on obligatory social insurance from accidents on manufacture and occupational diseases, the federal legislator has the right to provide certain negative consequences for the persons applying for maintenance on insurance, in the presence of intention on a tresspass to own health or life, - article 19 of the Constitution of the Russian Federation, proclaiming equality of the rights and freedom of the person and the citizen, cannot be considered as guaranteeing equality of the rights of the person injured with circumstances, recognised as the Federal law “ About obligatory social insurance from accidents on manufacture and occupational diseases “ insured event, and the person injured with a deliberate tresspass not recognised as insured event to the health.

Owing to it the federal legislator, proceeding from the nature and the purposes of the given kind of insurance, has the right to enter restrictions of the right on maintenance on insurance both for the most insured, and for other persons specified in the law in that case when caused to health or life of the insured person harm became a consequence of its intention that in itself does not mean infringement of the constitutional principle of equality of citizens before the law and disproportionate restriction of their rights and freedom. However thus rules of law which will be taken as a principle pravoprimenitelnyh decisions, including judicial, should be exact and concrete so that participants corresponding pravootnosheny could in reasonable limits expect a consequence of the behaviour and to be assured of an invariance of the officially recognised status, the got rights, effectiveness of their state protection (the Decision of the Constitutional Court of the Russian Federation from January, 29th, 2004 N 2Ο).

3. Positions of a part of twelfth article 230 of the Labour code of the Russian Federation are directed on otgranichenie criminal behaviour of the worker from execution of labour duties by it and by that - on an exception of the maintenance of labour function of its wrongful actions expressed in fulfilment of penal act that should not serve as an obstacle for achievement of socially significant purposes of legal regulation of relations on obligatory social insurance, in particular such, as social security of members of a family of the worker, the lost supporter as a result of accident on manufacture.

Proceeding from it accident, proisshedshy in the absence of intention of the victim which fulfilled the labour duties, should, by the general rule, admit the legal fact, sufficient for granting in case of death of this person of maintenance on insurance to the members who have lost the supporter of his family that would allow to compensate it loss of means of subsistence. On sense of a legal position of the Constitutional Court of the Russian Federation formulated in Definition from December, 1st, 2005 N 460 - About, a principle of completeness and garantirovannosti compensation of the caused harm, fixed in the Federal law “ About obligatory social insurance from accidents on manufacture and occupational diseases “ assumes in case of death insured acquisition and realisation by the members who have lost the supporter of his family of the right to reception in full all relying insurance payments.

3. 1. The paragraph of the fourth part of twelfth article 230 of the Labour code of the Russian Federation, on the literal sense, connects acquisition and realisation by members of a family of the insured person of the right to social security on the occasion of loss of the supporter with an estimation law enforcement bodies of its behaviour as penal, instead of with the fact of execution by it of the labour duties and not with presence or absence at it intention on a tresspass of the life or to health.

Meanwhile at the decision of a question on granting of corresponding insurance compensation the given standard position cannot be applied separately from other standard positions by which the concept and the list of the accidents which are subject to investigation and the account (article 227 of the Labour code of the Russian Federation), concept of insured event (article 3 of the Federal law " are defined; About obligatory social insurance from accidents on manufacture and occupational diseases “), guarantees of compensation of the harm caused to life or health insured (article 14 of the Federal law " are established; About obligatory social insurance from accidents on manufacture and occupational diseases “) .

3. 2. Accident about which there is a speech in the paragraph of the fourth part of twelfth article 230 of the Labour code of the Russian Federation, admits not connected with manufacture without dependence from presence or absence at the suffered intention on a tresspass to the health or life. Therefore even in the absence of such intention at the worker who has made offence, containing on the conclusion of law enforcement bodies signs of penal act, in case of his death the right to maintenance on insurance to members of his family which have lost the supporter, is not given. As to cases of death of the worker - the driver of the vehicle law enforcement bodies, formulating in corresponding certificates the conclusion about character of actions of the victim, only external signs of its behaviour (actions or inactivity) as owing to point 4 of a part of first article 24 UPK of the Russian Federation the establishment in the order of presence provided by the law in these actions (inactivity) of fault, including in the form of intention, is impossible actually estimate. Such conclusion, as a matter of fact, represents only the assumption of criminal punishability of actions (inactivity) of the victim, leaning against the data about presence of the signs concerning only to the objective party of given act which anyway it is not enough for decision-making on presence in actions (inactivity) of the driver of the vehicle of structure of a crime as a whole as is unique the appropriate basis for a conclusion about criminal punishability of its actions (inactivity) (article 8 UK of the Russian Federation).

Owing to it the conclusion of law enforcement bodies always leaves ineradicable doubts in guilt of the worker in case of its  destruction and, hence, cannot predetermine the decision of questions on an accident recognition connected or not connected with manufacture and about refusal in maintenance granting on insurance to the members who have lost the supporter of his family. Such doubts can be eliminated only court. At absence of the judicial certificate by which all signs of structure of a crime in actions of the victim as a result of accident of the driver of the vehicle or its intention on a tresspass of the life would be established, not eliminated by the conclusion of law enforcement bodies of doubt in criminal punishability of its actions or available intention on their fulfilment it is necessary to interpret in favour of the victim (article 49, a part of 3 Constitutions of the Russian Federation).

Hence, only one conclusion of law enforcement bodies about presence in actions of the victim of signs of penal act does not assume an unconditional recognition of accident not connected with manufacture. On sense of positions of a part of twelfth article 230 of the Labour code of the Russian Federation in system communication with its article 227 and articles 3 and 14 Federal laws “ About obligatory social insurance from accidents on manufacture and occupational diseases “ the commission allocated with power to investigate accident and in appropriate way to qualify it, is obliged to base the decision on full and all-round finding-out of all actual circumstances and research of all necessary materials.

3. 3. Thus, the paragraph of the fourth part of twelfth article 230 of the Labour code of the Russian Federation does not interfere with a recognition connected with manufacture of accident, an event at fulfilment by the insured worker - the driver of the vehicle during performance of labour duties of the offence containing on the conclusion of law enforcement bodies signs of penal act, and, hence, does not assume refusal - without acceptance about that of the judgement taking into account all circumstances of business - in maintenance granting on insurance to the members who have lost the supporter of a family of this worker according to norms of the Federal law “ About obligatory social insurance from accidents on manufacture and occupational diseases “ that is why it can not be considered as breaking the rights guaranteed by articles 19 (a part 1) and 39 (a part 1) Constitutions of the Russian Federation, and contradicting its article 55 (to a part 2 and 3).

Proceeding from stated and being guided by article 6, parts of first and second article 71, articles 72, 74, 75, 79, 87 and 100 Federal constitutional laws “ About the Constitutional Court of the Russian Federation “ the Constitutional Court of the Russian Federation

has decided:

1. To recognise the paragraph of the fourth part of twelfth article 230 of the Labour code of the Russian Federation (in edition of the Federal law from December, 30th, 2001) not contradicting the Constitution of the Russian Federation in that measure in what standard position containing in him does not assume refusal - without acceptance about that of the judgement taking into account all circumstances of business - in maintenance granting on insurance to the members who have lost the supporter of a family of the insured worker - the driver of the vehicle which death has come out accident, an event at fulfilment by it during performance of labour duties of the offence containing on the conclusion of law enforcement bodies signs of penal act.

Konstitutsionno - the legal sense of the specified standard position revealed in the present Decision, is obligatory and excludes any its other interpretation in pravoprimenitelnoj to practice.

2. The present Decision is definitive, is not subject to the appeal, comes into force immediately after declaration, operates directly and does not demand acknowledgement by other bodies and officials.

3. According to article 78 of the Federal constitutional law “ About the Constitutional Court of the Russian Federation “ the present Decision is subject to immediate publication in “ “ and “ Meeting of the legislation of the Russian Federation “. The decision should be published also in “ the Bulletin of the Constitutional Court of the Russian Federation “.

the Chairman

the Constitutional Court

the Russian Federation

Century Zorkin

the Judge - the secretary

the Constitutional Court

the Russian Federation

J.Danilov