The limits of criminal liability for negligence on the part of supervising engineers and safety technicians in the event of an accident at work

From the combination of international legislative texts and national constitutional, civil, administrative, and criminal provisions, it follows that the safety and health of workers in technical projects are considered legal rights. As such, any act or omission that infringes upon them, under circumstances known in the technical and legal world as an “accident at work,” may, in principle, trigger the activation of the state’s criminal arsenal. In criminal law, damage to the aforementioned legal rights may result in criminal liability for the offenses of manslaughter through negligence (Penal Code No. 299 in conjunction with No. 28) and bodily harm through negligence (Penal Code No. 314)^[1]. This article deals with the conditions for activation and the determination of the limits of criminal liability of the supervising engineer and safety technician in cases of accidents at work during the execution of technical works.

Conditions for triggering criminal liability for negligence

The first, logical priority, fact of the external world in order to legitimize the investigation into the criminal liability of the Supervising Engineer and the Safety Technician is the loss of human life or injury to the human body.

Secondly, negligence must be demonstrated on the part of the Supervising Engineer (SE) or Safety Technician (ST) within the meaning of Article 28 of the Penal Code. The modern understanding of criminal doctrine regarding negligence stipulates that lack of attention alone is not sufficient to establish criminal liability^[2]. On the contrary, this carelessness must also be found to be objectively present (not only as existing in the perpetrator’s mind), i.e., it must have manifested itself in the form of a breach of a specific duty of care, which was intended to protect the good of life or health that was harmed in each case. In other words, in order to diagnose negligence on the part of the EM or TA in the case of accidents at work, it is not sufficient to demonstrate any carelessness on the part of the engineer, but it must be established that the harmful result occurred because the engineer failed to take a specific safety measure imposed by a specific duty of care that exists to protect the specific legal interest (e.g. life or health), in order to prevent it from being harmed in the specific way that it was harmed. In conclusion, the modern concept of negligence is not satisfied with a general finding of lack of attention in order to establish criminal liability. It requires answers as to what specific care was not taken, as well as where it follows that such care should have been taken.

In this way, the modern conception^[3] is consistent with a principle that lies at the heart of the concept of justice and defines the meaning of negligence: that no one is obliged to do the impossible or, in this specific case, that no one is obliged to foresee the unforeseeable and prevent the inevitable. In other words, it acts effectively or aspires to do something necessary and beneficial for the Greek judicial reality: it defines the criminal liability of EM and TA. The fact that a person undertakes the duties of a contractor or subcontractor on a technical project does not mean that, in the event of an accident, that person must necessarily be held criminally liable if an accident occurs. As logical as it may seem that someone must be found guilty for every unpleasant outcome, this perception is nevertheless dangerous, utterly authoritarian and contrary to the constitutionally protected principle of guilt, namely that guilt cannot be presumed. Unfortunately, although Greek courts now more often express, in whole or in part, the aforementioned modern concept of negligence, they have not yet shown the courage to apply it with unwavering consistency.

No one can therefore be held responsible for things that they could not have prevented, no matter how careful they were. However, criminal liability for negligence presupposes a failure to exercise due care. But when is due care required and when is it not? The answer to this question is provided first and foremost by the law, then by the rules of art and science, which in turn are often reflected in provisions with legislative force, and thirdly by the circumstances of each case ^[4].

As far as the law is concerned, the specific obligations of EM and TA arise from the irresponsibly worded, extensive, scattered, and non-uniformly codified network of formal laws, regulatory acts, ministerial decisions, and labor regulations concerning the safety of workers in technical projects. Indicatively, the duties of EM and TA, as well as the minimum requirements for the safety of workers, are mainly determined by the provisions of the Decree of 17/7-16/8/1923 in conjunction with Royal Decree 15/12/23-21/01/24, which describe the service of supervision and oversight of technical projects for the construction of which a permit from a public authority is required, as well as by the provisions of Presidential Decrees 696/74, Presidential Decree 1073/1981 and Law 1396/83, the latter concerning only private projects.

Any conviction that attributes criminal liability to EM and TA by claiming guarantees of legality must identify and invoke, on the one hand, the specific provision that imposes a specific duty of care and, on the other hand, precisely define the manner in which this duty was breached, before proceeding to prove how this specific breach caused the damage. on the other hand, precisely define the manner in which it was violated, before proceeding to prove how the specific violation causally led to the specific harmful result in each case. However, even if the law stipulates that the TA must disclose the risks inherent in the project and propose safety measures, and the contractor is required to supervise the safe performance of the work, the above cannot be held liable for accidents that occurred in specific areas of the project for which they were not hired to provide services. Therefore, the relevant civil contracts are also crucial here. The project contract between the project owner and the contractor, the contract between the contractor and the subcontractor, as well as the individual contracts between the EM and the TA with their respective employers are those that in turn determine the spatial, temporal and living conditions from which the investigation into the responsibilities of the aforementioned persons will begin. From the above, and in combination with the aforementioned need for precise determination of the legal source and the type of diligence required in each case, it follows that the obligation of the EM and the TA to be diligent is not uniform, abstract, and indivisible. On the contrary, it is the result of a network of specific, separate and different provisions, and it is the duty of the criminal judge to determine exactly what legal obligation to exercise due diligence, but also by whom ^[5] , was violated in each case. In other words, the numerous cases of duty of care on the part of EM and TA do not constitute an indicative, but strictly restrictive list of cases of liability. Thus, if an accident occurs due to events that the legislator did not specifically assign to EM and TA to prevent, no liability arises for them. Moreover, any event that an EM or TA is responsible for preventing is part of a task that they have undertaken to perform and for which they are entitled to a minimum legal fee under the agreement or by law (e.g. PD. 696/1974). However, if we accept that they may be criminally liable even for the occurrence of a risk that the legislator did not oblige them to prevent, we are essentially imposing additional supervisory obligations on him, the content of which is completely unclear and for which, since they are not described in the law, no minimum remuneration is provided. This also violates the spirit of Presidential Decree 696/1974, which states that “for every work or service performed, there is a minimum remuneration.”

Does the Supervising Engineer have to be present at all times?

The question is of fundamental importance in relation to the establishment of criminal liability for the criminal outcome of Article 299 in conjunction with Article 28, as well as Article 314. As mentioned above, the obligations of engineers regarding the measure of their diligence must be sought exclusively in the framework of their obligations, as determined by their individual agreement or by law. However, what emerges from the relevant provisions (in particular Article 111, PD 1073/1981) is that the EM has no obligation to be physically present at the project site at all times and does not become a special or general representative of the employer. This means that their position alone does not create a general presumption of competence or general responsibility for anything that happens on the construction site, unless the law specifically assigns them such responsibility. Moreover, no provision of law prohibits the EM or TA from simultaneously supervising two or more projects, which means that the legislator clearly tolerates the non-permanent presence of these persons at the project site. In light of the above, considerations such as that of AP 1042/08^[6], namely that “the supervising engineer of a construction project, as the representative of the employer of this project, must be present at the site of its execution throughout the daily work of the various crews with which the project in question is being carried out” raise concerns, because it is not prohibited, for example, on a road interesting project with many fronts developing simultaneously by several contractors at different locations, there is only one supervising engineer or even one technical supervisor, who of course cannot be “omnipresent.” As a result, the above decision unacceptably broadens the scope of responsibility of the EM and equates it with that of the project owner, without the clear intention of the legislator. However, if this expansion is considered correct, which in the opinion of the author should not be the case, the cases of liability for the EM are also expanded proportionally. Even if the latter identified every possible risk in the project and took every possible safety measure, the above decision of the Supreme Court may be used to establish an objective and therefore impermissible liability in criminal law due to absence. The risk that the above-mentioned case law poses to legal certainty is also evident elsewhere. If the EM is obliged to be constantly present at the project as the employer’s representative, what is the point of all his specific legal obligations in view of his quasi-equivalence with the employer? Furthermore, what is the point of the division of tasks between, possibly, several EMs or between EMs and TAs? As we said earlier, this division ^[7] defines, together with the law, the areas of responsibility of each. However, if we accept the Areopagite position unconditionally, then any distinction of responsibilities is undermined and we end up with the paradoxical result that everyone is responsible for everything.

The legislatively defined obligations of diligence of the EM and TA must be interpreted restrictively.

As mentioned above, liability for negligence on the part of the EM and TA can only be based on an objective breach of a legally defined duty of care. Decision AP 1042/08 provides a broad interpretation of these obligations, i.e., it broadens their content and ends up imposing new responsibilities on them, in addition to those already defined. However, as the duties of care are broadened, so too are the possibilities for establishing criminal liability for EM and TA. The limits of liability under AP 1042/08 are so vague that there is considerable uncertainty as to what is ultimately required and what is not. In the field of criminal law, however, such broadening is strictly prohibited. The reason for this comes from the Constitution itself, which states in Article 7(1) that “^[8]There is no crime and no penalty shall be imposed without a law in force prior to the commission of the act and defining its elements…” Thus, the only way to prevent new crimes from being created is to interpret the conditions for convicting someone for committing them restrictively.

Conclusion

In criminal law, unlike civil law, the concept of objective liability does not exist, and any ambiguity regarding the duty of the EM or TA distances it from the subjective element and approaches the objective element in an unacceptable manner. In cases that meet the objective criteria of Articles 314 and 299 of the Penal Code in conjunction with Article 28, criminal liability should not be established for the Supervising Engineer and the Safety Technician, provided that there was no objective (in fact) violation of a legally defined and primarily identified as existing obligation stricto sensu of diligence. This breach must have causally led to the criminal result, which in turn was not inevitable in the normal course of events. Finally, Supervising Engineers and Safety Technicians are obliged to exercise the degree of diligence expressly required of them by law, and this obligation must not be interpreted broadly, but narrowly, in order to safeguard the principle of legality of crimes and penalties.

This article was published in Public Works and Environment Case Law (NO.D.E.PE, Farai S.A.), Issue 3, July–September 2017, p. 8

 

1. In addition to the above, and given that occupational accidents, apart from being of criminal interest, also constitute civil wrongs (Civil Code, Article 914), the victim of the accident at work has a civil claim for monetary compensation for any material or financial damage suffered as a result of the accident, as well as a claim for monetary compensation for moral damage. It should be noted that the classical criminal law concept of negligence defined it exclusively as a form of culpability. See (Chorafas, Criminal Law, vol. A, ed. Th [edited by K. Stamatis], 1978, 276, Androulakis, Criminal Law, General Part, vol. I, 2nd ed., 2005, 309).
3. See Christos H. Mylonopoulos, “The Criminal Liability of the Supervising Engineer for Manslaughter and Bodily Harm through Negligence under Greek Law,” ibid., Criminal Law General Part 2007, Volume 1, p. 303.
4. See AP 21/2001, PoinLog 2001, 60, where this triptych is referred to as the legal rules, customs of transactions, and common experience and logic in the normal course of events.
5. No provision of law indicates that individual supervision tasks, and therefore the associated duties of care, cannot be divided among several persons-engineers.
6.TN Law 1168/07
7. Especially in the field of criminal law and subject to the allocation of responsibilities under the law, the contractually agreed division of tasks, in cases where there is converging action by several persons, results in each person being liable only for the duty of care that they independently undertook. This is the principle of the legality of crimes and penalties (nullum crimen nulla poena sine lege).