Part 1, Article 238 of the Criminal Code of the Russian Federation. What punishment is provided for in the criminal code for the sale of unsafe products and the provision of services of inadequate quality?

There are a lot of disputes and discussions on various platforms, including “Doctors. RF”, raised the question of the application of Art. 238 of the Criminal Code of the Russian Federation “Production, storage, transportation or sale of goods and products, performance of work or provision of services that do not meet safety requirements” to medical workers. Let's try to figure it out, because the question is really very important.

To begin with, a few words about what this article is. As a rule, medical professionals are involved in criminal liability under part 2 of this article, namely “1. Production, storage or transportation for marketing purposes or sale of goods and products, performance of work or provision of services that do not meet the requirements for the safety of life or health of consumers, as well as unlawful issuance or use of an official document certifying compliance specified goods, works or services to safety requirements, -

Resulting in causing by negligence grievous harm health or death of a person, -

Punishable by a fine in the amount of one hundred thousand to five hundred thousand rubles or in the amount wages or other income of the convicted person for a period of one to three years, or forced labor for a term of up to five years, or imprisonment for a term of up to six years with or without a fine in the amount of up to five hundred thousand rubles or in the amount of the wages or other income of the convicted person for a period of up to three years.”

The fundamental point here is the following. This article contains elements of a serious crime. There are several unpleasant aspects here, for example, the expungement of a criminal record 8 years after leaving the colony (Article 86 of the Criminal Code of the Russian Federation), and the most unpleasant and decisive thing, in my opinion, is that the statute of limitations for such crimes is 10 years (unlike, for example, Article 109 of the Criminal Code RF, where the same period is 2 years) by virtue of Art. 83 of the Criminal Code of the Russian Federation. But more on that later.

Thus, the object of the crime under this article is public health. Objective side crime in the case where the subject of the crime is a medical worker, consists of performing work or providing services that do not meet the requirements for the safety of life and health of consumers. Here, in general, everything is clear. Much more interesting next.

The subjective side of the crime is characterized by direct intent, which is confirmed by the opinion of a number of authors (“Commentary to the Criminal Code Russian Federation: in 2 volumes." Article-by-article, volume 2, 2nd edition, edited by A.V. Brilliantov, "Prospect", 2015; "Commentary to the Criminal Code of the Russian Federation: Scientific and Practical", article-by-article, 2nd edition , revised and expanded, edited by S.V. Dyakov, N.G. Kadnikov, “Jurisprudence”, 2013). the possibility or inevitability of the onset of social dangerous consequences and wanted their offensive (Article 25 of the Criminal Code of the Russian Federation). That is, a medical worker performing a medical procedure (which is de facto considered a service) should have realized that he was performing medical intervention in violation of safety requirements.

So, let's draw our first conclusion. Article 238 of the Criminal Code of the Russian Federation is not applicable to a medical worker, since it contains elements of a crime with direct intent, consisting of the conscious commission of actions that pose a danger to patients, which the medical worker de facto does not have.

But it is much more interesting who is considered the subject of this crime. Thus, a number of authors (Commentary to the Criminal Code of the Russian Federation (article-by-article) / Edited by A.I. Chuchaev. M.: Contract, 2013. 152 pp.; Commentary to the Criminal Code of the Russian Federation for prosecutors / Responsible editor. V .V. Malinovsky; Scientific editor A.I. Chuchaev. M.: Contract, 2011. P. 706; Kolosovsky A.N. Criminal process. 2008. N 3. P. 11 - 13.) clearly indicates that the subject of the crime under this article is the owner. commercial organization, or the head of an organization providing certain services. This circumstance is based on the provision of the Law of the Russian Federation of 02/07/1992 No. 2300-1 “On the Protection of Consumer Rights”, according to which the contractor is recognized as an organization, regardless of its legal form, as well as an individual entrepreneur performing work or providing services to consumers under a paid contract.

Thus, conclusion number two suggests itself. A medical professional who is part of labor relations With medical organization, and does not act in business on its own behalf, since it does not have a license to carry out medical activities and does not enter into a contract paid provision services with the patient cannot be held accountable under Article 238 of the Criminal Code of the Russian Federation. However, this circumstance does not exclude the fact of bringing him under other articles of the Criminal Code in cases where his actions involved negligence, which resulted in serious harm to health or death of the patient. In this case, it is possible to attract him under Part 2 of Art. 109, and part 2 of Art. 118 of the Criminal Code, respectively. But not under Article 238 of the Criminal Code of the Russian Federation.

Let's move on. Let us carefully read the title of the article itself - “... performance of work or provision of services that does not meet the requirements for the safety of life or health of consumers, as well as the unlawful issuance or use of an official document certifying the compliance of these goods, works or services with safety requirements.” Okay, the question immediately arises - what safety requirements are established for medical services? All we could find was a definition of security medical care, which means the absence of unacceptable risk associated with the possibility of damage ("OST 91500.01.0005-2001. Industry standard. Terms and definitions of the standardization system in healthcare", adopted and put into effect by Order of the Ministry of Health of Russia dated January 22, 2001 No. 12). At the same time, Part 2 of Article 41 of the Criminal Code of the Russian Federation “Justified risk” immediately comes to mind, according to which the risk is recognized as justified, if the specified goal could not be achieved by actions (inaction) not related to risk and the person who allowed the risk took sufficient measures to prevent harm to the interests protected by criminal law. That is, simply put, according to these definitions, a medical service (that is, a medical manipulation) should not have something unacceptable. (unreasonable risk), which can lead to possible damage. But in the vast majority of cases of medical care, there is no such conscious risk. The only trouble is that medical care itself is fraught with the risk of certain complications. just like, for example, flying on an airplane carries the threat of it crashing. But if the cause of the plane crash can be determined (although of course not always) and it may be associated, among other things, with failure to comply with safety requirements (for example, timely engine maintenance). ) which are clearly established and regulated by various technical regulations, then for medical care there are unfortunately no such regulations establishing safety criteria.

Also, the law on the protection of consumer rights establishes that the safety of a service implies safety, services for the life, health, property of the consumer and environment under normal conditions, as well as the safety of the process of performing work (providing services). In this case, safety requirements must be established in some way normative act, however, currently such an act in relation to medical services No.

We come to the third conclusion - the application of this article to the provision of medical services is impossible due to the lack of appropriate safety criteria for their provision established by law.

These are the main points why Article 238 cannot be applied to medical workers. But it is used, and actively used. In my opinion, this is due to the fact that law enforcement there is some task for real condemnation medical workers, as well as the task of implementing the plan to disclose serious crimes, which can be solved in such a simple way. As practice shows, if it is possible to intervene in the investigation of such cases before they are transferred to court, the chance of ruining such a case is quite high. But unfortunately, the trend is that the number of criminal cases against medical workers, including cases initiated under Article 238 of the Criminal Code of the Russian Federation, is steadily increasing. The witch hunt is gaining momentum...

* This material is over two years old. You can check with the author the degree of its relevance.

The crime specified in Art. 238 of the Criminal Code of the Russian Federation, refers to the group of crimes against public health. Part 1 art. 238 of the Criminal Code of the Russian Federation establishes liability for the production, storage or transportation for the purpose of distribution or sale of goods and products, performance of work or provision of services that do not meet the requirements for the safety of life or health of consumers, as well as the unlawful issuance or use of an official document certifying the conformity of these goods, works or services to safety requirements.

Part 2 and part 3 art. 238 of the Criminal Code of the Russian Federation contain qualifying elements of a crime that affect the imposition of a more severe punishment than provided for in Part 1 of Art. 238 of the Criminal Code of the Russian Federation. So in part 2 of Art. 238 of the Criminal Code of the Russian Federation provides for punishment for the commission of a crime by a group of persons by prior conspiracy or organized group; in relation to goods, works or services intended for children under six years of age; if, as a result of a crime due to negligence, serious harm to health or death of a person is caused. In Part 3 of Art. 238 of the Criminal Code of the Russian Federation provides for punishment for committing a crime specified in Part 1 of Art. 238 of the Criminal Code of the Russian Federation, resulting in the death of two or more persons through negligence.

The corpus delicti provided for in Art. 238 of the Criminal Code of the Russian Federation, has the following features:

1) Subject of the crime- a person who is the owner or manager of a commercial organization, individual entrepreneur and have reached the age of 16 years; for the unlawful issuance of an official document certifying the compliance of the specified goods, works or services with safety requirements, the employee of the body carrying out the certification of these goods, works or services is responsible.

2) Objective side characterized by performing one of the following actions:
- production, storage or transportation for marketing purposes
- or the sale of goods and products that do not meet the life safety or health requirements of consumers
- performance of work, provision of services that do not meet the life safety or health requirements of consumers
- unlawful issuance of a document confirming the conformity of goods or services

3) Composition of the crime- according to Part 1 - formal, i.e. the crime is completed from the moment the actions specified in the article are committed, and according to Part 2 (clause “c”) and Part 3 - material (i.e., the crime will be considered completed from the moment the consequences occur. In our case, this is the infliction of a grave harm or death due to negligence)

4) Subjective side characterized by direct intent.

What are the requirements for goods, works and services provided to consumers, are specified in the Law of the Russian Federation of 02/07/1992 No. 2300-1 “On the Protection of Consumer Rights”. In Art. 7 of the Law on the Protection of Consumer Rights specifically stipulates the consumer’s right to the safety of goods and services (Part 1 - “The consumer has the right to ensure that the product (work, service) under normal conditions of its use, storage, transportation and disposal is safe for life, consumer health, the environment, and did not cause harm to consumer property.

Requirements that must ensure the safety of goods (work, services) for the life and health of the consumer, the environment, as well as the prevention of harm to the consumer’s property, are mandatory and are established by law or in the manner established by it,” Part 2 - “Manufacturer (performer) is obliged to ensure the safety of the goods (work) during deadline service or shelf life of the product (work).”

Under the production of products in Art. 238 of the Criminal Code of the Russian Federation refers to the release of ready-to-use products, equipped with a quality certificate, outside the manufacturer or the placement of these products in a warehouse for the purpose of subsequent sale.
Storage refers to the actions of a person in actual possession of goods and products that do not meet the safety requirements for their sale.
Transportation refers to the movement of goods or products from one place to another (from the manufacturer's warehouse to the store's warehouse).
Sales of goods and products means their release to commodity market, sales to wholesale or retail consumers.

The performance of work or provision of services includes any activity carried out in the interests of consumers (construction of residential buildings, repair household appliances, tailoring, etc.) and does not meet the requirements for the safety of their life or health.

The following goods are recognized as not meeting the requirements for the safety of life and health of consumers:

For which a refusal to issue a certificate of compliance with the safety requirements established in the standards was received;
- for such goods that have not passed certification for compliance with established safety requirements;
- with an unspecified expiration date and with unspecified special rules safe use, storage, transportation and disposal.

An official document certifying that specified goods, works or services comply with safety requirements, if required by law mandatory certification, is a certificate or mark of conformity with the Federal Law of December 27, 2002 N 184-FZ “On Technical Regulation”. Certificate of conformity (Article 2 of the specified Federal Law) - a document certifying the object’s compliance with the requirements technical regulations, provisions of standards, codes of practice or terms of contracts, and the mark of conformity is a designation used to inform purchasers, including consumers, about the compliance of the certification object with the requirements of the system voluntary certification or national standard.

The procedure for issuing these certificates is specified in Federal law dated December 27, 2002 N 184-FZ “On technical regulation”. Accordingly, the violation established order issuance of documents confirming the compliance of the specified goods and services with safety requirements and will constitute a crime specified in Part 2 of Art. 238 of the Criminal Code of the Russian Federation.

In paragraph 15 of the Plenum Resolution Supreme Court RF dated November 18, 2004 N 23 (as amended on December 23, 2010) “On judicial practice in cases of illegal entrepreneurship and legalization (laundering) Money or other property acquired criminally» clarifies some issues of qualification when committing a crime under Art. 238 of the Criminal Code of the Russian Federation. It states the following: “in cases where illegal entrepreneurial activity was associated with the production, storage or transportation for the purpose of sales or sale of goods and products, performance of work or provision of services that do not meet the requirements for the safety of life or health of consumers, the act constitutes a set of crimes provided for in the relevant parts of Art. 171 and art. 238 of the Criminal Code of the Russian Federation.”

Article 238 of the Criminal Code of the Russian Federation establishes liability for actions related to the sale of goods or services that do not meet safety requirements.

This standard is aimed at protecting the life and health of people, protecting them from the possibility of using products poor quality.

Provision of services of inadequate quality under the Criminal Code of the Russian Federation

Services are considered inappropriate when their use leads to a real threat to the health of an individual or group of people.

Typically, violations occur when providing the following services:

medical;
sanitary;
transport;
household, etc.

The provision of services is expressed in the repair and maintenance of household appliances, electronic equipment, transport, dry cleaning, hairdressing and public services, in the field of food, tourism, and trade.

Comments on Article 238 of the Criminal Code of the Russian Federation

The article has 2 objects of encroachment:

Population health.
The sphere of trade, provision of services and work that ensures the rights of citizens.

The subject of the encroachment is:

Products with poor quality. The nature of the goods does not matter and can be imported or domestically produced, for food or industrial use.
Documents issued authorized organizations, with data falsification. These include licenses for the use of conformity marks, certificates, and product labeling.

Items and works are considered non-compliant with safety requirements for consumers in the following cases:

receipt of a refusal to issue a certificate;
lack of information about certification;
lack of rules for storage, transportation, disposal and expiration date.

The objective side is represented by the following actions:

production, storage, transportation of products of inadequate quality for sales purposes;
sale of such items;
work that violates quality requirements;
illegal execution or use of a document confirming the fact that products comply with safe conditions.

It is important to understand: the subjective side is expressed only in a deliberate form.

The punishment under this article applies to a person over 16 years of age. The violator must be the head of an organization that provides services or sells items with poor quality. Please note that this may be the person responsible for the manufacture of such products or the one who sells the product or provides services.

The special subject is the employee of the certification body who issued the illegal document.

Parts 2 and 3 of the article of the Criminal Code indicate the following qualifying characteristics:

Committing a crime by a group of persons.
The occurrence of serious harm to health.
Death of one person or group of people.
Products and services are intended for children under 6 years of age.

Arbitrage practice

Judicial practice on the article in question does not have a uniform approach. This is due to the correct application of the norm and its delimitation from adjacent compounds.

The text of the article is limited, which leads to the need to turn to additional sources of law in the field of safety of goods, services and works.

Some of them do not agree with each other, which leads to a broad or, conversely, narrow interpretation of the article. In practice, this is expressed in an acquittal or conviction.

Often problems arise when establishing the objective side. Thus, the mere fact of the absence of a certificate of conformity does not mean that the product has quality violations. Inadequate quality must be established on the basis of examinations.

Thus, the article applies to persons selling products with quality violations. Required condition– is the creation of a threat to human health as a result of the use of such products. Products produced or stored for subsequent sale are also taken into account.

We bring to your attention an interesting video that discusses the nuances of applying Article 238 of the Criminal Code of the Russian Federation in modern conditions in Russia:

The verdict of the Savyolovsky District Court of Moscow under paragraph “b” of Part 2 of Article 238 of the Criminal Code of the Russian Federation “provision of services that do not meet safety requirements, namely the provision of services that do not meet the requirements for the safety of life and health of consumers.”

P R I G O V O R

In the name of the Russian Federation

Savelovsky district court Moscow consisting of:

presiding judge N.M.V.,

under secretary K.L.Z.,

with the participation of the state prosecutor - Deputy Savyolovsky Interdistrict Prosecutor of Moscow B.V.V.,

legal representatives of the minor victim – FULL NAME 2 and FULL NAME 3,

having examined in the open court hearing materials of the criminal case against

Full name1, *** year of birth, native ***, citizen of the Russian Federation, registered at the address: ***, with higher education, single, having minor child*** year of birth, employed by the head of a section in the State Budgetary Institution of Moscow "Zhilischnik *** District", without a criminal record,

accused of committing a crime under clause “b”, part 2, article 238 of the Criminal Code of the Russian Federation,

INSTALLED:

FULL NAME1 is guilty of providing services that do not meet safety requirements, namely the provision of services that do not meet the requirements for the safety of life and health of consumers.

The crime was committed under the following circumstances.

So FULL NAME1 in accordance with employment contract No. 316/16 dated December 6, 2016 with the employer represented by the director of the State budgetary institution Moscow "Zhilishchnik *** district" (hereinafter referred to as GBU "Zhilishchnik") FULL NAME4 was hired and, from December 6, 2016, performed the duties of the head of the production site No. 5 of the GBU "Zhilishchnik", which, as a managing organization, concluded on January 1, 2016 management agreement with the homeowners association apartment buildings No. B/N at addresses: address1; Moscow, Address2, having assumed obligations to carry out a range of works and services for managing houses, ensuring favorable and safe conditions residence of citizens in them, proper maintenance common property in apartment buildings.

In his work, FULL NAME1 was guided by job description the head of the production site of the State Budgetary Institution "Zhilischnik" dated August 1, 2016, approved by the director of the State Budgetary Institution "Zhilishchnik" FULL NAME4, according to which he is obliged to be guided by and know: the legislation of the Russian Federation, decrees and orders of the Government of Moscow; orders of the Northern Prefecture administrative district Moscow, Council of the *** district of Moscow; charter of the institution; orders and instructions of the director of the institution; regulatory and administrative documents of the institution; guidelines relating to the work of the department for maintaining the yard area; inner order rules.

In accordance with the order of the director of the State Budgetary Institution "Zhilischnik" FULL NAME4 No. 363/1-P dated November 25, 2016 "On the appointment of persons responsible for ensuring work safety and labor protection", FULL NAME1, as the head of production site No. 5, was assigned responsibilities on training in safe methods and techniques for performing work in accordance with the Procedure for training on labor protection and testing knowledge of labor protection requirements for employees of organizations, approved by Resolution of the Ministry of Labor of the Russian Federation and the Ministry of Education of the Russian Federation of January 13, 2003 No. 1/29; timely conduct of briefings at the workplace (initial, repeated, unscheduled and targeted), with a mandatory entry in the register of registration of briefings at the workplace.

In accordance with the order of the director of the State Budgetary Institution "Zhilishchnik" FULL NAME4 No. 369/2-P dated November 28, 2016 "On the appointment of a person responsible for the organization and safe performance of work at height" FULL NAME 1 was appointed responsible for the organization and safe performance of work at height at production site No. 5 , whose area of responsibility includes, among others, apartment buildings at address: address1, and Moscow, Address2.

In accordance with the order of the director of the State Budgetary Institution “Zhilishchnik” FULL NAME 4 No. 371/2-P dated December 2, 2016 “On the organization of work at operational sites for promptly taking measures to clean roofs and protruding elements of the facades of residential buildings from snow and ice for 2016-2017 .G." FULL NAME1 has been appointed as the responsible person for carrying out daily monitoring of the timely cleaning of roofs and protruding elements of facades from snow and ice at production site No. 5, the area of responsibility of which, among others, includes apartment buildings at address 1, and Moscow, Address 2.

In accordance with work permit No. 37 to perform high-risk work, FULL NAME1, being the head of production site No. 5 of the State Budgetary Institution “Zhilischnik”, performing the organizational and administrative functions assigned to him in connection with his position, that is, being official, appointed responsible for the work of clearing the roof of snow at the address: address 1 and address 2, for the period from 9:00 a.m. on January 11, 2017 to 5:00 p.m. on January 21, 2017, the foreman for the operation of residential buildings of production site No. 5 GBU "Zhilischnik" FULL NAME5, appointed to the position by order of the director of GBU "Zhilishchnik" FULL NAME4 dated November 29, 2016.

At the same time, FULL NAME5 in his activities is guided by the job description of the foreman dated June 4, 2015, approved by the director of the State Budgetary Institution "Zhilishchnik" FULL NAME4, according to which FULL NAME5 is obliged to organize the work of teams daily, including weekends and holidays, including work at height, and monitor teams’ compliance with occupational health and safety measures, fencing off hazardous areas and assigning employees to the cordon.

Further, Full Name1, being an official - the head of the production site No. 5 of the State Budgetary Institution "Zhilishchnik" who, in accordance with the management agreement for an apartment building No. B/N dated January 1, 2016, was assigned responsibilities for maintaining the house at the address: address 1, contrary to the requirements of the job description and Order No. 363/1-P dated November 25, 2016 “On the appointment of persons responsible for ensuring work safety and labor protection” did not ensure proper control during the work on cleaning the roof of the house on January 14, 2017 at: address 1, in violation of instructions No. 42 “On labor safety when clearing roofs of snow”, approved by the director of the State Budgetary Institution “Zhilischnik” FULL NAME4 on July 1, 2016, which provides for the adoption of precautionary measures when throwing snow from roofs: sidewalks, streets and driveways to the width of a possible snow fall must be fenced ; all doorways, as well as the gate arch of buildings facing the roof slope being cleared of snow, must be closed or guarded by a duty officer standing inside the stairwells or arches to warn people leaving the building from danger; In addition to a fence at the place where snow, ice and icicles are collected, security must be posted to warn pedestrians and signal those working on the roof.

The provision of services by FULL NAME that do not meet the requirements for the safety of life and health of consumers is expressed in the following:

On January 14, 2017, at a time not exactly established by the investigation, but no later than 12 hours 32 minutes, FULL NAME1, contrary to work permit No. 37, according to which the responsibility for organizing snow removal from the roofs of the buildings of the production site No. 5 of the State Budgetary Institution Zhilishchnik is assigned to Full Name 5, with which Full Name 1 I could not contact you on the specified day, I ordered the organization of work to clear the snow from the roof of the building located at address 1, FULL NAME6, working on the basis employment contract No. 306/16 dated November 8, 2016, concluded with the director of the State Budgetary Institution "Zhilischnik" FULL NAME4, technician of the production site No. 5 of the State Budgetary Institution "Zhilishchnik", whose duties are in accordance with her job description as a technician dated June 4, 2015, approved by the director of the State Budgetary Institution "Zhilishchnik" FULL NAME4 does not include organizing the work of the team to clear the roof of the house from snow and ice, thereby realizing that he provides services that do not meet the requirements for the safety of life and health of consumers.

In turn, on January 14, 2017, Full Name 6, to clear the snow from the roof of the building located at address 1, she hired roofers from the State Budgetary Institution “Zhilischnik” Full Name 7 and Full Name 8, guided in their activities by the job description of roofers for steel roofs, approved on June 5, 2015 by the director of the State Budgetary Institution "Zhilishchnik" FULL NAME4.

Further Full Name6 January 14, 2017, during the period from approximately 12:00 to 12:32, in job responsibilities which, by virtue of her position, includes monitoring compliance by teams with safety regulations and the implementation of labor protection measures, fencing hazardous areas and assigning employees to the cordon, before the start of the above work and during their implementation, did not adequately monitor compliance with safety regulations, did not organize the installation of warning signs about the danger of signs and fences, as a result of which the roofer, FULL NAME7, threw ice formations from the roof of Adrem1, as a result of which, during the specified period of time, he was at the above address together with his father, FULL NAME2 - minor, FULL NAME9., born on July 9, 2014, living at : address2, received injuries, and by ambulance and emergency medical care was taken to the State Budgetary Institution "Children's City Clinical Hospital No. 9 named after. G.N. Speransky”, where he was provided with medical assistance and bodily injuries were recorded.

Thus, FULL NAME1 being, in accordance with the order of the director of the State Budgetary Institution “Zhilischnik” FULL NAME4 No. 369/2-P dated November 28, 2016 “On the appointment of the person responsible for the organization and safe performance of work at height”, responsible for the organization and safe performance of work at height at the production site site No. 5 did not control the organization of the work and the safety of this work, realizing that thereby he was providing services that did not meet the requirements for the safety of life and health of an indefinite number of consumers.

With the above intentional, criminal acts, Full Name1 created a threat to the safety of life and health of consumers from among the residents of houses at address 1, and Moscow, Address 2.

As a result of the fall of ice formation and snow on FULL NAME 9., *** year of birth, the latter, according to expert conclusion No. 1970m/2344 dated March 28, 2017, suffered damage in the form of: abrasions in the area of the bridge of the nose (1), upper lip ( 1), which could have been formed from the sliding effects of solid objects (objects), with the application of traumatic force to the area of the back of the nose and upper lip, which did not result in a short-term health disorder or a slight permanent loss of general ability to work and are therefore regarded as injuries that did not cause harm to human health.

Interrogated at the court hearing, the defendant FULL NAME1 did not admit his guilt in the crime committed, pointing out his non-involvement in the crime committed. According to the circumstances of the case, he testified that at the time of the events in question he was the head of precinct No. 5 of the State Budgetary Institution “Zhilischnik *** District” of Moscow. On January 13, 2017, he gave oral instructions to FULL NAME5 to clean the roof of the house at address: address3. On January 14, 2017, he was unable to reach Full Name 5, and therefore instructed Full Name 6, who was on duty that day, to clean the roof at the above address, but the latter mixed up the addresses and began to carry out work at Address 1. As he later learned from the people who carried out the work, when cleaning the roof at address: address 1, a child was injured during the cleaning of the roof.

The court, having studied the testimony of victims and witnesses, having examined the materials of the criminal case, considers that the guilt of the defendant, FULL NAME1, in committing a crime under Part 1 of Article 238 of the Criminal Code of the Russian Federation is proven:

- testimony of the legal representative of the victim, FULL NAME2, given by him at the court hearing, according to which it was established that on January 14, 2017, when he walked past the house at address 1, together with his child, ice fell on his head, which fell on him, and also next to them, after which the child began to cry and he saw blood on his face. He started shouting for the workers to stop removing ice from the roof, but they did not do it right away. There were no fences or announcements that roof cleaning work was underway at the above address. Next, emergency medical services and police were called;

- testimony of the legal representative of the victim, FULL NAME3, given by her at the court hearing, according to which it was established that on January 14, 2017, in the daytime, her son and husband went for a walk. A short time later, her husband called her and said that her son had been hit by an icicle from the roof of the house. Next, the husband brought the child home, and they called emergency medical services and police officers, since the son had injuries on his face;

- testimony of the witness FULL NAME5, given by him at the court hearing, as well as during preliminary investigation, which were examined in court with the consent of the participants in the process, according to which it was established that at the time of the events in question he was in the position of operating foreman apartment buildings in the State Budgetary Institution Zhilishchnik *** district of Moscow. His job responsibilities include monitoring the operation of residential buildings in site No. 5 of the State Budgetary Institution “Zhilishchnik *** District” in Moscow. His immediate superior is the head of section No. 5, FULL NAME1. The service area of site No. 5 includes a residential multi-apartment, 5-story residential building located at address: address 1. The maintenance of site No. 5 is carried out by the head of the site, Full Name 1, he, the caretaker technician, Full Name 10, who is responsible for cleaning the entrances, and the landscaping technician, Full Name 6, who is responsible for cleaning the area adjacent to the houses, as well as snow removal in the adjacent area. Full name 1 and he are responsible for removing snow from the roof of a house located at address 1. Instructions for organizing and carrying out work on removing snow from the roofs of residential buildings are received directly from Full Name 1, and they are given orally or Full Name 1 informs him about this in a group organized between them in the WhatsApp messenger, and these are neither written instructions, nor instructions or is not formalized by regulations. On January 14, 2017, he wanted to go to work to supervise the removal of snow from the roofs, but did not do this due to the fact that he overslept. Having woken up at approximately 13:30, he saw on his phone many missed calls from Full Name 1, Full Name 11, Full Name 6, the dispatch service of the State Budgetary Institution Zhilischnik in the *** district of Moscow and calls from phone numbers unknown to him. Later he learned that while cleaning the roof of a residential building located at address 1, an icicle fell from the snow on the child. Work permits dated January 11, 2017 to clear the roof of snow on site No. 5, valid for 10 days, signed by Full Name 1 and drawn up personally by him, were issued on January 11, 2017 to the roofers of the State Budgetary Institution Zhilishchnik in the *** district of the city. Moscow, FULL NAME8u and FULL NAME7u, to whom, upon reviewing these work permits, safety precautions were explained when carrying out work on cleaning the roofs of houses located on the territory of site No. 5. The work permits for the above work indicated the time of work to clear the roof from snow in the period from 9:00 a.m. on January 11, 2017 to 5:00 p.m. on January 21, 2017, while this time and period are indicated for the work to be carried out on the entire site No. 5 and the specific time and date for removing snow from the roofs of specific houses are not indicated. The work of clearing the roof of a house from snow is carried out as follows - having received a permit to carry out the work, workers must receive instructions from him or Full Name1 to carry out the work at a specific address, after which he selects several employees of the State Budgetary Institution Zhilischnik in the *** district of the city. Moscow, who will be with him in a cordon on the street near the house where the work is being carried out, in order to ensure the safety of the work. Before starting work, he gives one roofer doing work on the roof a radio station; he keeps the second one. They also stretch warning tape on the street along the outer wall of the house at a safe distance of approximately five to seven meters from the outside of the house wall to restrict the passage of citizens and passing vehicles into the area where snow and ice falling from the roof during work fall. The distance at which the tape is placed may vary depending on the degree of need to ensure safety for citizens. Next, the roofers are explained the procedure for clearing the roof of snow and the technique and safety rules for carrying out the work are explained;

- testimony of witness FULL NAME12, given by him at the court hearing, according to which it was established that on January 14, 2017, he saw a man with a small child come out from around the corner of house No. 7, building 1 on Magistralny Lane in Moscow, and they began to move past the indicated house towards the second entrance. At that moment, he saw how an employee on the roof began to clear away snow and icicles, which began to fall down to the ground and onto a man and a child passing below at that moment. Then the man began shouting to stop throwing snow and to stop work. He approached the man and saw that the child had injuries on his face. There were no barriers or warning signs posted;

- testimony of witness FULL NAME13, given by her at the court hearing, according to which it was established that at the time of the events in question she was in the position of deputy director for landscaping - chief gardener of the State Budgetary Institution "Zhilischnik *** District" of Moscow. Her job responsibilities included sanitary and technical maintenance of courtyard areas and landscaping facilities. She learned about the events that took place on January 14, 2017, namely about ice falling on a child while employees of the State Budgetary Institution were carrying out roof cleaning work, from her colleagues; the specific circumstances are not known to her;

- testimony of the witness FULL NAME6, given by her at the court hearing, as well as during the preliminary investigation, which were examined at the court hearing with the consent of all participants in the process, according to which it was established that at the time of the events in question she was in the position of a landscaping technician at the State Budgetary Institution “Zhilischnik” *** district of Moscow. Her job responsibilities included: cleaning the courtyard area, supervising the janitors at site No. 5 entrusted to her, and monitoring the removal of snow and ice from the roofs of houses was not part of her job responsibilities. On January 14, 2017, she began performing her official duties, distributed a work plan to the janitors for cleaning the courtyard areas, and gave them safety training. In the morning, she received a call from the head of site No. 5, Full Name 1, who explained that it was necessary to organize the removal of ice from the roof of the house located at address 1, after which she called Full Name 8 and reported this. After some time, FULL NAME 8 and FULL NAME 7 arrived at the specified address. Upon arrival at the place, FULL NAME7 went up to the roof, and FULL NAME8 and she remained below to control the area where snow could fall from the roof, so that no one would go. At some point during the work, she heard screams. Later she saw a man and a child who was crying, and the child had injuries on his face. After this, the child’s father immediately called the ambulance and police. Her job responsibilities do not include monitoring the roofers, as well as their work on the roof; on January 14, 2017, she organized their work on the verbal instructions of FULL NAME1, this had not happened before;

- the testimony of the witness FULL NAME8, given by him at the court hearing, according to which it was established that at the time of the events in question he was in the position of a roofer of the State Budgetary Institution “Zhilischnik *** District” of Moscow. His job responsibilities included: performing work on cleaning and maintaining the roofs of houses. Geographically, his work area includes site No. 5 of the State Budgetary Institution “Zhilischnik *** District” of Moscow. On the evening of January 13, 2017, he was informed that on January 14, 2017, he would need to go to work to clear the roof of ice. On the morning of January 14, 2017, Full Name 6 informed him that he needed to clean the roof of the house located at address 1, and therefore he and Full Name 7 went to this address. When they arrived at the specified address, FULL NAME7 went to the roof of the house, and he and FULL NAME6 remained below to control the territory. Before starting work, he inspected the area near the house and, since no one was there, gave a command over the radio to FULL NAME7u to start working. As soon as FULL NAME7 began to clear off the ice, a man came out from around the corner of the house and Small child, at this moment the snow was already falling. He radioed to FULL NAME7u that it was necessary to stop the work. The child's father immediately called ambulance, as well as the police, since the child had injuries on his face. Previously, FULL NAME6 had never managed them, he never received any orders from her to carry out work on cleaning the roof, since this is controlled by FULL NAME5;

- the testimony of witness FULL NAME7, given by him at the court hearing, as well as during the preliminary investigation, which were examined at the court hearing with the consent of all participants in the process, according to which it was established that at the time of the events in question he was employed as a roofer of the 5th section. His job responsibilities include clearing snow from the roofs of houses and buildings located on the territory of the 5th precinct. On January 14, 2017, he went to work and from the technician FULL NAME6 received an oral assignment about the need to clear the roofs of houses from snow. After receiving instructions, he went to perform the work together with employee FULL NAME 8 and FULL NAME 6. Initially, they cleaned the roof of house No. 1 on the *** highway in Moscow. Having finished work at the specified address, Full Name 8 informed him on the radio that he had received instructions from Full Name 6 to move to the address: Address 1. They began work at this address at about 12:00 p.m. When they arrived to clear the snow from the roof of the house at address 1, they did not install any fencing. He was on the roof of the house, clearing snow from it and throwing it down, when he received a command over the radio from FULL NAME8 that the snow could be thrown off, since there were no people below. Being on the roof, he could not see where the snow was falling and whether there were people there. After throwing snow a couple of times, he received a command over the radio from FULL NAME8 to stop throwing snow, but he didn’t say why. Then, at the command of FULL NAME8 on the radio, he went down from the roof, and when he was already on the ground, FULL NAME8 said that when he was throwing snow off the roof, an icicle fell on the child;

- the testimony of the witness FULL NAME11, given by him during the preliminary investigation, which was examined at the court hearing with the consent of all participants in the process, according to which it was established that on January 14, 2017 at approximately 12:30 p.m. mobile phone called FULL NAME6, who reported that at the address: address1, a child was injured. At the time of his arrival, FULL NAME6, police officers and the father of the injured child were at the scene. Operation and maintenance of the building at address: address 1 is carried out on the basis of a management agreement concluded between residents and the State Budgetary Institution “Zhilischnik *** District”. All the basic rules and regulations that guide the employees of the State Budgetary Institution “Zhilischnik” *** district of Moscow when clearing the roof of snow and ice mass are enshrined in the Rules and Standards for the Operation of the Housing Stock, approved by the State Construction Committee in 2003, in addition, there are decrees of the Government of the city. Moscow on this matter. Also, based on these documents, the State Budgetary Institution “Zhilischnik *** District” issued an order appointing those responsible at the sites for carrying out work to clear the roof of snow and ice. In all cases, site managers are responsible. In the case he described, the responsible person was the head of the 5th precinct, FULL NAME1. In addition, the State Budgetary Institution “Zhilischnik *** District” has relevant instructions. When carrying out work, the head of the site where work is being carried out to clear the roof of snow and ice is responsible for the implementation of these rules and regulations. He does not know on what basis on January 14, 2017, at the address: address 1, the roof was cleared of snow and ice; he did not give any instructions on this matter, either written or oral. The head of the site can independently decide to clear the snow in an emergency; when the head of the site, while walking around the territory, notices ice or accumulation of snow that threatens people, he can decide on urgent clearing, while fencing off the dangerous area. Also, other employees of the State Budgetary Institution can detect the above, and then report this to the head of the site, who can make the above decision. FULL NAME1 could not give instructions to FULL NAME6 to clean the roof of the specified house, due to the fact that this order he should have given the site foreman FULL NAME5u. IN in this case FULL NAME6 could provide assistance in organizing a cordon with the help of wipers;

- testimony of witness FULL NAME4, given by her during the preliminary investigation, which was examined at the court hearing with the consent of all participants in the process, according to which it was established that on January 14, 2017, at approximately 13:00, the deputy head of the Administration called her on her mobile phone *** district of Moscow, FULL NAME14, who reported that the Administration received information about the fall of an icicle at the address: address1, and therefore she needs to arrive at the specified address for investigation. Upon arrival at the address, she saw that there was a squad of police officers standing near address 1, and an ambulance and emergency medical vehicle stood next to the entrance of another house. When she arrived, she did not see the child at the scene of the incident; next to the house where the ambulance and emergency medical services were parked, no work was being done to clear the ice from the roof; in addition, there was no ice on the roof of the said house. There was no need to install any announcement signs. Also, as far as she remembers, there was a plastic fence at the corner of this house. Maintenance of the house at address: address 1 is carried out on the basis of an agreement concluded between the State Budgetary Institution “Zhilischnik” *** district of Moscow and the residents of the specified house. When clearing the roof of snow and ice, employees are guided by the orders of the State Budgetary Institution “Zhilischnik *** District” of Moscow, according to which each site is assigned a person responsible for carrying out work on clearing the roofs of houses from snow and ice, each employee is instructed in the technique safety and labor protection, instructions are brought to the attention of each employee on the procedure for carrying out work to clear the roof of snow and ice. In addition, there are Housing norms and rules approved by the Moscow Government on this matter, as well as other orders. All orders are brought to the attention of the relevant employees, about which they affix their signature. According to these orders, the responsibility for performing safe work at each site is assigned to the head of the corresponding site, and this is monitored by Chief Engineer. On the basis of what on January 14, 2017, at the address: address 1, the roof was cleared of snow and ice mass, he cannot say. She did not directly give any instructions for cleaning the roof of this particular house to the head of site No. 5, FULL NAME1u;

- testimony of witnesses FULL NAME15 and FULL NAME16, given to them during the preliminary investigation, which were examined at the court hearing with the consent of all participants in the process, according to which it was established that on January 14, 2017 at about 12:30 p.m. Moscow received a message that at address: address 1, a young child was injured as a result of an icicle falling from the roof of a house. They, together with the ECC expert FULL NAME17, at the direction of the duty department, went to the scene of the incident. Arriving at the place at about 13:00, they were met by a man, FULL NAME 2., who explained that he and his young son were walking past the house at address 1 at about 12:30. While walking, a utility worker began knocking icicles off the roof of the house in question, resulting in one of the icicles hitting his young son in the face. At the same time, as explained by Full Name 3., when he walked past this house, he did not see any fences or warning signs that work was being done to clear the roof of the house from snow and ice. Also, none of the utility workers tried to stop them or warned them that work was underway. At the time of arrival in the area of the house at address: address 1, where work was being done to clean the roof of the house, there were no fences or warning signs;

- the testimony of the witness FULL NAME18, given by him during the preliminary investigation, which was examined at the court hearing with the consent of all participants in the process, according to which it was established that on January 14, 2017, at about 12:30 p.m. a message was received from the operational duty officer that at address: address 1, a young child was injured as a result of an icicle falling from the roof of a house. He immediately went to the scene of the incident in order to collect initial material and identify eyewitnesses of what happened. As they explained to him, the icicle fell on the child while utility workers were cleaning the roof of the house in question. There were no fences or signs indicating that work was being carried out in the specified area to clear the roof of the house from snow.

In addition, the guilt of the defendant is proven by written evidence examined during judicial trial, namely:

- a report on the detection of signs of a crime dated January 14, 2017, according to which it was established that on January 14, 2017 at approximately 12:30 p.m. at the address: address 1, minor full name 8. On July 9, 2014, he was born and received bodily injuries in the form of bruises and abrasions to the head as a result of an ice mass falling on him from the roof of the said building, as a result of which the latter was taken by an ambulance squad to the Children's City Clinical Hospital No. 9 of the Moscow Health District, where he was provided with medical assistance. At the indicated time, at the indicated address, unidentified employees of the State Budgetary Institution “Zhilishchnik” of the *** district of Moscow were cleaning the roof of this building from snow and ice mass. (vol. 1 pp. 18);

- incident card No. 31566808 dated January 14, 2017, according to which it was established that FULL NAME2 filed a statement that at the address: Moscow, address 2, utility workers, without fencing the territory, were clearing snow from the roof, hitting 2 year old child and citizen (vol. 1 case file 21);

- a statement from Nefedova’s legal representative dated January 14, 2017, according to which it was established that she asked to take action against an unknown person who, on January 14, 2017 at 12:30 p.m., was clearing the roof of snow at the address: address 1, without restrictive tape, carrying out a reset ice mass, which, when falling, touched a minor, FULL NAME8, born July 9, 2014, causing injury to the head and face. Currently, the child is hospitalized in Children's City Clinical Hospital No. 9 in Moscow (vol. 1, case 22);

- a protocol for the inspection of the scene of the incident dated January 14, 2017, a photo table for it and a plan diagram, according to which it was established that on January 14, 2017, in the period from 13:10 to 13:35, an inspection of the scene of the incident was carried out at the address: address 1 . During the inspection of the scene of the incident, no barrier devices or flagpoles were found at the beginning of the inspection or at the end of the inspection (vol. 1, pp. 28-35)

- a seizure protocol dated January 14, 2017 and a photo table to it, according to which it was established that the following was confiscated from the head of site No. 5 of the State Budgetary Institution "Zhilischnik *** District" of Moscow: permission slip No. 37 for performing high-risk work, a registration log on-the-job training PU No. 5, instruction No. 12 on labor protection for roofers, instruction No. 42 on labor protection when clearing roofs of snow (vol. 1, pp. 53-58);

- expert opinion No. 1970m/2344 dated March 28, 2017, according to the findings of which it was established that FULL NAME8, born at birth, had injuries: an abrasion in the area of the back of the nose (1), upper lip (1), which could have been formed from the sliding effects of hard objects ( object), the individual properties of which (which) are not reflected in the description of the injuries, with the place of application of traumatic force in the area of the bridge of the nose and upper lip, possibly within the time period specified in the resolution, which is confirmed by clinical data, the nature, timing and volume of medical care provided and both collectively and individually did not entail a short-term health disorder or a slight permanent loss of general ability to work and are therefore regarded as injuries that did not cause harm to human health (vol. 1 case sheet 195-198);

— a protocol for the inspection of items (documents) dated April 3, 2017, according to which it was established that the following were inspected: a hardcover “registration of workplace training” journal, consisting of 46 sheets; instruction No. 12 “On labor protection for roofers” consisting of 9 sheets; instruction No. 42 “On labor protection when clearing roofs of snow” consisting of 4 sheets; 1 sheet “Permission Work Order No. 37 to perform high-risk work”; 1 blank lined familiarization sheet (vol. 2 pp. 66-67);

- a resolution on the recognition and inclusion of material evidence in the criminal case dated April 3, 2017, according to which it was established that the hardcover journal “registration of workplace training”, consisting of 46 sheets, was recognized as such; instruction No. 12 “On labor protection for roofers” consisting of 9 sheets; instruction No. 42 “On labor protection when clearing roofs of snow” consisting of 4 sheets; 1 sheet “Permission Work Order No. 37 to perform high-risk work”; 1 blank lined familiarization sheet (vol. 2, sheet 68);

- a seizure protocol dated March 22, 2017 and a photo table to it, according to which it was established that the management agreement for apartment buildings No. B/N dated January 1, 2016 was seized from FULL NAME11 at the following addresses: address1; Moscow, Address2 (vol. 2, pp. 70-73);

— protocol of inspection of objects and documents dated April 8, 2017, according to which it was established that the following were inspected: management agreement for apartment buildings No. B/N dated January 1, 2016 at the addresses: address 1; Moscow, Address2 (vol. 2 pp. 74-75, 76-110);

— a resolution on the recognition and inclusion of material evidence in the criminal case dated April 8, 2017, according to which it was established that the management agreement for apartment buildings No. B/N dated January 1, 2016 at the addresses: address 1 was recognized as such; Moscow, Address2 (vol. 2, case sheet 111);

- a seizure protocol dated March 23, 2017 and a photo table to it, according to which it was established that a cell phone brand “***” (***) gray IMEI *** was seized from FULL NAME5 (vol. 2 pp. 113-116);

- a protocol for the inspection of items dated March 23, 2017 and a photo table to it, according to which it was established that the following was inspected: a cell phone brand “***” (***) gray IMEI *** (vol. 2 pp. 117 -121);

- a resolution on the recognition and inclusion of material evidence in the criminal case dated March 23, 2017, according to which it was established that a cell phone brand “***” (***) gray IMEI *** (vol. 2 l.) was recognized as such. d.122).

The court recognizes all evidence collected in the case and examined at the court hearing as reliable, relevant, admissible, and in the aggregate sufficient to resolve the criminal case.

The court did not find any violations of the criminal procedural law during the proceedings preliminary investigation on business. All written evidence is duly prepared in accordance with the requirements for this species evidence required by law does not contain any significant violations affecting the decision on their admissibility.

Assessing the testimony of legal representatives FULL NAME2 and FULL NAME3, witnesses FULL NAME5, FULL NAME12, FULL NAME13, FULL NAME6, FULL NAME8, FULL NAME7, FULL NAME11, FULL NAME4, FULL NAME15, FULL NAME16 and FULL NAME18, the court finds no reason not to trust them, since the testimony of the legal representatives of the victim and witnesses is consistent, not contradictory , complement each other, are consistent with each other and with the totality of other evidence examined in the case. The court has no reason not to trust the evidence presented by the prosecution. The court did not establish any reasons for slandering the defendant on the part of the named persons. All evidence in the case was obtained in accordance with current legislation. The court attributes minor discrepancies in the testimony of persons interrogated at the court hearing to the remoteness of the events, noting that there are no significant contradictions affecting the proof of FULL NAME1’s guilt in the crime committed. In addition, all the interrogated persons, whose testimony was read out during the trial, confirmed them and showed that at that time they remembered the circumstances of the incident better.

The arguments of the defense about the non-involvement of the defendant FULL NAME1 in the crime committed appear to the court to be untenable, since they are refuted by the evidence examined at the court hearing. Thus, at the court hearing, it was reliably established that at the time of the events in question, FULL NAME1, as an official - the head of the production site No. 5 of the State Budgetary Institution "Zhilishchnik", was assigned responsibilities for maintaining the house at the address: address 1, including cleaning the roof. He, contrary to the requirements of the job description and order No. 363/1-P of November 25, 2016 “On the appointment of persons responsible for ensuring work safety and labor protection,” did not ensure proper control during the roof cleaning work carried out on January 14, 2017 at home at address: address 1, in violation of instructions No. 42 “On labor protection when clearing roofs of snow,” approved by the director of the State Budgetary Institution “Zhilischnik” FULL NAME4 July 1, 2016.

The position of the defense that at the time of the events, FULL NAME 1 had a day off, by his oral order, FULL NAME 6 was appointed responsible for the work, cannot indicate the innocence of FULL NAME 1 in the crime committed, since, FULL NAME 1, being the head of production site No. 5 of the State Budgetary Institution “Zhilischnik”, performing the organizational and administrative functions assigned to him in connection with his position, that is, being an official, appearing in accordance with the order of the director of the State Budgetary Institution “Zhilishchnik” FULL NAME4 No. 369/2-P dated November 28, 2016 “On the appointment of a responsible for the organization and safe performance of work at height" responsible for the organization and safe performance of work at height at production site No. 5, did not control the organization and safety of this work, contrary to work permit No. 37, according to which the responsibility for organizing snow removal from the roof buildings of the production site No. 5 of the State Budgetary Institution Zhilishchnik was entrusted to Full Name 5, with whom Full Name 1 could not contact on the specified day, and assigned the organization of work to clear snow from the roof of the building located at address 1, Full Name 6, who is a technician at the production site No. 5 of the State Budgetary Institution "Zhilishchnik", whose duties, in accordance with her job description as a technician dated June 4, 2015, approved by the director of the State Budgetary Institution “Zhilischnik” FULL NAME4, do not include organizing the work of a team to clear the roof of a house from snow and ice, thereby realizing that he is providing services that do not meet the requirements safety of life and health of consumers.

In such circumstances, analyzing all the above evidence, the court, agreeing with the position of the state prosecutor, who believed that FULL NAME1 provided services that did not meet the requirements of life and health safety for an indefinite circle of consumers, and not just minors, FULL NAME9., believes that the actions of FULL NAME1 should be qualified under Part 1 of Article 238 of the Criminal Code of the Russian Federation as the provision of services that do not meet safety requirements, namely the provision of services that do not meet the requirements for the safety of life and health of consumers.

When assigning punishment to a defendant, the court, by virtue of Articles 6, 60 of the Criminal Code of the Russian Federation, takes into account the nature and degree of public danger of the crime, the specific circumstances of the case, information about the identity of the perpetrator, the impact of the imposed punishment on his correction and on the living conditions of his family, as well as mitigating circumstances.

Thus, the court takes into account that FULL NAME1 was brought to criminal responsibility for the first time, repented of his deeds, apologized to the victims, is positively characterized, has a dependent young child and other relatives, the health status of the defendant and his relatives, which, in accordance with paragraph “d”, part .1 Article 61 of the Criminal Code of the Russian Federation, Part 2 of Article 61 of the Criminal Code of the Russian Federation, is recognized by the court as mitigating circumstances.

At the same time, the court also takes into account that FULL NAME1 committed an intentional crime aimed against public health.

The court did not establish any aggravating circumstances provided for in Article 63 of the Criminal Code of the Russian Federation.

Determining the type and amount of punishment, taking into account the circumstances crime committed, information about the identity of the defendant, the court believes that the goals and objectives of the punishment will be achieved with FULL NAME1u punishment in the form of restriction of freedom with the establishment of restrictions provided for in Part 1 of Article 53 of the Criminal Code of the Russian Federation. Taking into account the nature and degree of public danger of the crime committed, data on the identity of the defendant, the court finds no grounds for applying another type of punishment to him, as well as applying the provisions of Articles 64, 73 of the Criminal Code of the Russian Federation, including taking into account the specific circumstances of the case.

The court resolves the question of the fate of material evidence in

in accordance with the requirements of Article 81 of the Code of Criminal Procedure of the Russian Federation.

Based on the aforesaid and guided by Article. 307, 308 and 309 of the Code of Criminal Procedure of the Russian Federation,

SENTENCED:

Find FULL NAME1 guilty of committing a crime under Part 1 of Article 238 of the Criminal Code of the Russian Federation and sentence him to restriction of freedom for a period of 1 year.

In accordance with Part 1 of Article 53 of the Criminal Code of the Russian Federation, establish the following restrictions for FULL NAME1U: without the approval of a specialized government body supervising the serving punishment for convicted persons in the form of a restriction of freedom, do not change permanent place residence, do not travel outside of Moscow and the Moscow region, do not leave your permanent place of residence during the period from 10 pm to 6 am, do not attend entertainment events and crowded places, do not take part in these events.

Control over the behavior of the convicted person is assigned to a specialized government agency supervising the serving of a sentence by a convicted person in the form of restriction of freedom at the location actual residence Full name1

A preventive measure in the form of a recognizance not to leave and proper behavior FULL NAME1u D.I. upon entry of the sentence into legal force cancel.

Physical evidence: a hardcover journal “registration of workplace training”, consisting of 46 sheets; instruction No. 12 “On labor protection for roofers” consisting of 9 sheets; Instruction No. 42 “On labor protection when clearing roofs of snow” consisting of 4 sheets; 1 sheet “Permission Work Order No. 37 to perform high-risk work”; 1 blank lined familiarization sheet; management agreement for apartment buildings No. B/N dated January 1, 2016 at the following addresses: address 1; Moscow, Address2, stored in the storage room for material evidence of the Savelovsky MRSO of Moscow, upon entry into force of the verdict, be handed over to the owner and allowed to be used at his own discretion; A cell phone brand “***” (***) gray color IME1 ***, transferred to the safekeeping of FULL NAME5u M.A., upon entry into force of the verdict, should be left as belonging to the owner and allowed to be used at his own discretion.

The verdict under Article 238 of the Criminal Code of the Russian Federation (Production, storage, transportation or sale of goods and products, performance of work or provision of services that do not meet safety requirements) can be appealed to appeal procedure to the Moscow City Court within 10 days from the date of proclamation.

ST 238 of the Criminal Code of the Russian Federation.

1. Production, storage or transportation for marketing purposes or marketing of goods and products,
performance of work or provision of services that do not meet life safety requirements or
consumer health, as well as unlawful issuance or use of an official document,
certifying the compliance of the specified goods, works or services with safety requirements, -
shall be punishable by a fine in the amount of up to three hundred thousand rubles or in the amount of wages
or other income of the convicted person for a period of up to two years, or compulsory work for up to
three hundred sixty hours, or restriction of freedom for up to two years, or forced
labor for a term of up to two years, or imprisonment for the same period.

2. The same acts, if they:
a) committed by a group of persons by prior conspiracy or by an organized group;
b) committed in relation to goods, works or services intended for children aged
up to six years;
c) caused by negligence the infliction of serious harm to health or the death of a person, -
shall be punishable by a fine in the amount of one hundred thousand to five hundred thousand rubles or in the amount
wages or other income of the convicted person for a period of one to three years, or
forced labor for a term of up to five years, or imprisonment for a term of up to six years
with a fine of up to five hundred thousand rubles or in the amount of wages or other income
convicted for a period of up to three years or without it.

3. Acts provided for in parts one or two of this article, resulting in
negligence death of two or more persons, -
shall be punished by forced labor for up to five years or imprisonment for
up to ten years.

Commentary to Art. 238 of the Criminal Code

1. The safety of the items listed in the disposition means that the consumer does not have a risk to life and health when using them; the absence of circumstances that could make the work and services hazardous to property, the environment, etc. A necessary condition For most goods, services, products, certification and labeling are carried out in accordance with the procedure established by law, in order to avoid causing harm negative consequences related to the use low quality goods, services, products.

2. The objective side of the crime is characterized by the commission of one of the alternative actions specified in the law.

3. A mandatory feature of the production, storage or transportation of the items specified in the article is the presence of a sales purpose.

4. The subject of the crime, both general and special (persons whose duties include issuing documents confirming the quality and safety of goods, products, services, etc.).

Second commentary to Art. 238 of the Criminal Code of the Russian Federation

1. The direct object of the crime is public health in terms of the safe use of goods and services that meet the requirements for the safety of life and health of consumers.

2. The commented article 238 of the Criminal Code of the Russian Federation establishes liability for two offenses that differ in the subject matter and objective side of the crime: illegal actions in the field of circulation of goods, performance of work and provision of services, as well as illegal actions in the field of certification of goods, work and services.

3. The subject of illegal circulation of goods, performance of work or provision of services are goods and products, as well as work and services that do not meet the requirements for the safety of life or health of consumers (see Article 7 of the Law of the Russian Federation “On the Protection of Consumer Rights” of February 7, 1992 .)

Food products and industrial products, including their components, the use of which under normal conditions endangers the life or health of the consumer, should be recognized as goods that do not meet safety requirements.

Products that do not meet safety requirements are water in central system water supply, fuel and other types of energy, as well as material values, which are not goods intended for the consumer, posing a danger to the life or health of the consumer.

Work that does not meet safety requirements means construction, installation and other work performed at the consumer’s request, in the process or as a result of which the life or health of the consumer is endangered.

Services that do not meet safety requirements should be understood as the provision of medical, cultural, transport and other services, the use of which poses a danger to the life or health of the consumer.

4. The objective side of a crime involving goods and products that do not meet life or health safety requirements lies in their production, storage, transportation or sale. The content of these actions is disclosed in the comments to Articles 228 and 228.1 of the Criminal Code.

5. Illicit trafficking goods and products that do not meet safety requirements for the life or health of consumers are recognized as a completed crime from the moment any of the actions specified in the disposition are committed.

6. The subjective side is characterized by direct intent. During the production, storage or transportation of the specified goods and products mandatory feature subjective side the crime is a special purpose - the purpose of selling these goods or products.

7. Subject misconduct By documentation safe properties of goods, products, works or services is official document certifying the compliance of the specified goods, products, works or services with safety requirements.

18. Qualified types of the crime in question (Part 2) are associated with its commission:

By a group of persons by prior conspiracy or an organized group (clause “a”, part 2);

In relation to goods, works or services intended for children under six years of age (clause “c”);

Inflicting through negligence grievous bodily harm or death of one person (clause “d”).

19. Special qualified type This crime (Part 3) is characterized by the negligent infliction of consequences in the form of the death of two or more persons.