A teenager unofficially employed as a rope park instructor fell from an 8-meter height – the entrepreneur tried to appeal a 3-year restriction of liberty

The Zhytomyr Appellate Court upheld the verdict regarding the violation of labor legislation and occupational safety rules that led to the death of a minor.

Case circumstances

By the verdict of the Zviahel City District Court of Zhytomyr region, an individual entrepreneur was found guilty of committing criminal offenses under part two of article 172 and part two of article 271 of the Criminal Code of Ukraine.

Thus, the accused, conducting entrepreneurial activity at the attraction "Rope Park 'Tarzan'" in the city park of culture and recreation in Zviahel, Zhytomyr region, in violation of the requirements of the Labor Code of Ukraine, the Law of Ukraine "On Occupational Safety" and other regulatory legal acts, without concluding a written employment contract, without obtaining consent from one of the parents, without prior medical examination, without maintaining special records of employees under eighteen years old, and without developing necessary occupational safety instructions, effectively allowed a minor to perform work as an instructor at the attraction.

The minor, performing the duties of an instructor while accompanying a visitor to the attraction, as a result of the tandem carriage slipping off the cable at a height of 8.6 meters, fell onto concrete slabs. Due to the fall, he sustained severe life-threatening injuries in the form of combined blunt trauma to the head, torso, and limbs with skull fractures, hemorrhages, and brain tissue crushing, which led to death.

The accused did not develop or approve occupational safety instructions, did not organize safe work performance, did not ensure proper control over the technical condition of high-risk equipment, and allowed the minor to work under harmful and dangerous working conditions.

The court of first instance, having examined the testimony of the victim (the minor’s mother), witnesses-instructors who also worked unofficially, protocols of the incident site inspection, forensic medical examination conclusions, video recordings, investigative experiments, and other evidence, established the actual employment of the minor, his performance of instructor duties, and the accused’s violation of labor and occupational safety legislation requirements.

Court decision

The Zhytomyr Appellate Court dismissed the accused’s appeal and left the verdict of the Zviahel City District Court of Zhytomyr region unchanged.

The appellate court recognized that the court of first instance thoroughly, comprehensively, and impartially investigated the case circumstances, properly evaluated the evidence, and correctly qualified the accused’s actions under part two of article 172 of the Criminal Code of Ukraine (gross violation of labor legislation) and part two of article 271 of the Criminal Code of Ukraine (violation of occupational safety rules that caused severe consequences, including the victim’s death).

The court of first instance imposed the following punishment on the accused:

• under part two of article 172 of the Criminal Code of Ukraine — a fine of 85,000 hryvnias with subsequent release from the imposed punishment due to expiration of the statute of limitations (part 5 of article 74 of the Criminal Code of Ukraine);
• under part two of article 271 of the Criminal Code of Ukraine — restriction of liberty for 3 years with deprivation of the right to hold positions related to organizational and administrative functions and ensuring safe working conditions for hazardous work, as well as those related to occupational safety legislation, for 3 years.

Based on article 75 of the Criminal Code of Ukraine, the accused was released from serving the main punishment with probation for 2 years and assigned the obligation to periodically appear for registration with the authorized probation body and to notify about changes in residence, work, or study.

The court also partially satisfied the civil claim of the victim (the deceased’s mother) and recovered from the accused 22,375 hryvnias in material damages and 500,000 hryvnias in moral damages.

The appellate court referred to the legal position set out in the resolution of the Plenum of the Supreme Court No. 7 "On the practice of applying legislation by courts of Ukraine in cases of crimes against production safety," according to which the subject of the crime under article 271 of the Criminal Code of Ukraine can be a citizen — a business entity obliged to ensure safe working conditions.

The court also found the imposed punishment, the decision to release from serving the main punishment with probation, and the partial satisfaction of the victim’s civil claim justified.

The appellate court’s ruling comes into legal force from the moment of its announcement.

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