C.64 - Case Alhóndiga Agrisel

I. summaryof the facts.

In the account of the facts, it is pointed out that a worker (Rafael) has a serious accident at work, as a result of which he suffers very serious consequences (peripheral facial paralysis, epilepsy, personality alteration, moderate cognitive deficit and dysfunction of the jaw joint, with permanent incapacity to carry out all classof work, as well as 34 days of hospitalisation and a long convalescence) after falling from a height of 4 metres (a wooden stepladder) and hitting the ground "hard" with his head. Rafael was working without using "any protective equipment staff".
We considered the possible criminal liability of whoever was at positionof the construction works (within the business"Alhóndiga Agrisel"). On the basis of these facts, and without modifying them, the following can be stated about the possible criminal liability.

II. Proposed solution.

II.1. As regards the existence or not of human conduct on the part of "Alhóndiga Agrisel", this can be denied, since a legal person does not carry out conduct in the criminal law sense in the sense required here. It has to be investigated whether a natural person within the legal person has carried out such conduct. In this case, we do not perceive any activity on the part of anyone; this does not detract from the fact that it could be a case of inactivity, i.e. that someone has omitted to do so. Indeed, self-control is required, not only for processes set in motion by an agent, but also for inactivities maintained by a subject (omitter). This is what seems to us to be the case here: the managerhealth and safety officer at business"Alhóndiga Agrisel" (who is not mentioned in the case, but who we will refer to as the "foreman") did not prevent Rafael from carrying out his construction work without using "any protective equipment staff". This inactivity can be said to be a human inactivity in that it is susceptible to self-control, since a natural person at frameworkof the construction site could have prevented such a lack of self-protection in the operator, as is shown by the regular existence of such measures and that nothing is said about possible causes of inaction (irresistible force, etc.). We therefore affirm that the first of the elements is fulfilled in order to be able to proceed in the theory of the offence, although here as inactivity, rather than as an active "process". Let us see whether it is typical.
II.2. The possible objective criminality of such a case can be based on two offences:

a) In the offence of art. 316 PC ("failure to provide the necessary means for workers to carry out their activity with the appropriate safety and hygiene measures, in such a way as to seriously endanger their life, health or physical integrity"). This subjectis an omissive offence; and among the omissive offences, it does not appear to be an offence of mere omission (pure omission), as more than mere inactivity is required (in addition, the placing in serious danger); Nor does it seem to be result(commission by omission), as this would require that the inactivity and the direct action be structurally and value-wise identical (i.e. that pushing and failing to secure someone be identical); but in this case it is only punishable by a penalty of six months to three years (apart from a fine), which is the same as for serious injury average(art. 147.1). 147.1), so it does not seem possible to attribute a very serious resultof injury or even death to such an omission (it would mean punishing less than life and health deserve). It would therefore be a crime of pure intermediate omission or omission of guarantor, insofar as it requires the omission of the action and that it is omitted by a qualified subject (art. 316: "Those who ... being legally obliged"; art. 318: "those in charge of the service"). There is i) the so-called typical status, because the danger (construction) exists, there is someone immersed in it (Rafael), and there is a subject (person in charge) who is responsible for ensuring safety at work; ii) there is also the omission of the safety measures required by labour legislation (it is said that he did not use anything) and specifically the "failure to provide the means...", which seems to be the case in the case of Rafael..", which seems to be the case here, since if nothing is said about any risk prevention measures, it can be deduced that either they did not exist (nets...) or, if they did exist, they were not provided (he allowed workto start without those means); and iii) there is also the possibility of acting, since nothing is said that the managerin question was prevented from providing and using the safety measures at work. employmentIn this last sense, it could be affirmed that the non-use of the safety measures at workis due exclusively to the decision of the worker, Rafael, which could imply that the person in charge is not responsible beyond what he cannot avoid (ad impossibilia...); however, it seems that it is the function of the person in charge to enforce compliance with the rules and regulationssafety measures, and we are not told that the person in charge did anything in this sense (nor is he mentioned in the case). In other words, careless conduct on the part of the victim does not remove the duty of the attendant. Nor can it be said that, if the helmet and belt had been worn at employee, result would not also have been prevented, as the safety measures should have been adequate (use of safety nets, employmentof scaffolding...). For all these reasons, I understand that the inactivity of the person in charge fulfils the requirementsof the subjectgoal of the offence described in art. 316 CP. We will see later whether it also fulfils those of the subjective subject. Before that, let us look at another question about the criminal nature of the offence.
b) We must consider the possibility of imputing Rafael's injuries to the person in charge by omission. In other words, if this were the case, the foreman would deserve the same penalty as if he had pushed the victim from the top of the stairs (which requires a lot of argumentation). In fact, commission by omission makes it possible to understand that inactivity is structurally and value-wise identical to active commission. It does not seem that the position of guarantor of the person in charge (which we have already said does exist) can be understood in terms of a specific and effective commitment to act as a barrier to contain risks. His position of guarantor, of the person in charge, extends to ensuring that the employmentsafety means are used, but not to the extent that socially we understand that he must ensure at all times that workers wear helmets, seat belts, etc., in such a way that his omission is identical to active causation. The assumption of such a position could be appreciated in a nursery for young children, but not in this context. The fact that we said earlier that his function is to "enforce" does not mean that he must be in charge of materially insuring each worker. Otherwise, the person in charge would have to be constantly watching over the workof the workers, without being able to be absent for a moment, which seems excessive. Therefore, the imputation of the serious resultof injuries to the foreman in commission by omission does not seem to me to be defensible (the position of some jurisprudential decisions in other cases such as this one has been to understand that there is commission by omission, which seems to us, however, difficult to sustain from the proposed interpretation of the position of guarantor in terms of commitment).

II.3. With regard to the subjective criminality of the offence in question (no. 2.a), there are doubts as to the wilfulness of the person in charge with regard to the typical risk of such an offence. Thus, it could be thought that he was not present (nothing is said in the facts), that he was unaware of the concrete conduct of these workers on the unstable stairs, that he did not know of the risky operation of placing a truss on pillars at that height.... All this is possible. However, this would also support his liability for malice aforethought, inasmuch as, aware of the risks involved in such an activity (construction), he should not be absent or trust that "everything will go without a hitch". In other words, such a foreman would be defying fate by being unaware of such risks and knowing of his omission. However, I think it can be argued that he is acting without malice. This is because it is not reasonable to demand that the foreman be present at all times in all risky places of a construction site (it would be impossible); furthermore, because the conduct of third parties, of the workers, is something that is beyond his specific control knowledge, as the freedom of others is not predictable in the same way as we predict other habitual events. It can therefore be affirmed that the person in charge is in error (ignorance) about what was happening at the time. But such an error would not interrupt the imputation, as it is reasonable that whoever carries out a dangerous activity (construction) should take special care to avoid errors (art. 14.1). And this is what seems to have been lacking in this case: that the person in charge did not update the rules of experience, or that he made a miscalculation about the risk of this status. For such an error, the person in charge could be held liable under Art. 317 ("gross negligence"). The seriousness of the imprudence, of his imputable error, is based on the high danger and the possibility of foreseeing the means to mitigate it, which would require very little effort staffto prevent risks (everyone knows how dangerous certain activities are). If, on the other hand, he had taken some precaution (reiterating to the specific workers the need to wear a helmet, having made an effort to put up nets...), his error could be classified as slight negligence; if so, as this is not typified in art. 317 or elsewhere in the code, it would go unpunished. The person in charge therefore carries out an inactivity that is objectively and subjectively typical (arts. 316 and 317).
II.4. There is nothing in the facts to cast doubt on the unlawfulness of the conduct, nor on the culpability and punishability of the person in charge.
II.5. Regarding the responsibility of the person in charge, it is worth bearing in mind the specific rule of attribution contained in art. 318, by virtue of which responsibility would be attributed, not to business, but to the administrators or persons in charge of the security service. As we have already argued, the responsibility of the person in charge has already been taken into account when considering the position of guarantor.

III. Conclusion.
The person in charge should be liable for a crime of omission of the duty to ensure the adoption of safety measures in the work(arts. 316 and 317). The business"Alhóndiga Agrisel" would not be criminally liable, as stated at the beginning, but it could be civilly liable, which is what the fact that it had insured its activities leads to.