Applying for the application of response measures in the form of shutdown of the enterprise is what the business is most afraid of after inspections by regulatory authorities. However, the inspection does not always end with the inspector's lawsuit, and the lawsuit filed - the court's decision to stop the company. What to pay attention to when your company is approached with such a claim, we'll talk later.
Evidence of violations
Inspectors who file lawsuits do not always provide evidence of violations of the law (such as fire safety regulations). Usually the only evidence by which the supervisory authorities explain the need to stop the operation of enterprises is an inspection report. Sometimes the courts take into account only the data of the inspection report and satisfy the requirements of the controlling body. However, this position is not entirely true.
The Supreme Court in the composition of the panel of judges of the Administrative Court of Cassation in its decision of 31.10.2018 in the case №826 / 14758/17 noted that the concept of "threat to life and health" is evaluative. However, this does not negate the need for courts to examine the evidence that explains their existence, and given that such claims are heard on the basis of claims by subjects of power, courts should not confine themselves to inspection data. The reliability of the information on the recorded violations should be verified by the courts by gathering the relevant evidence, and the application of the court's response measures should be justified in compliance with all the principles of administrative proceedings.
That is, the Supreme Court noted that the courts could not make a decision to suspend the operation of an enterprise solely on the basis of an inspection report. Each violation specified in the act must be verified by the court by collecting relevant evidence.
A real threat to life
It is a common practice for regulatory authorities to reproduce a list of an inspection report in claims for the closure of enterprises and do not indicate how these violations pose a threat to human life and health.
At the same time, the current legislation connects the grounds for going to court with a claim for the application of security measures not with any violations, but only with those that pose a threat to human life and health.
The same legal position has been repeatedly expressed by the Supreme Administrative Court of Ukraine in its decisions on similar cases, in particular in the decision of 27.11.2014 in the case № / 800/51577/14 and in the decision of 15.05.2014 in the case № / 800/3116 / 14 .
For example, in its ruling of 15.05.2014 in case № / 800/3116/14 the Supreme Administrative Court of Ukraine noted:
“The current legislation does not include only the circumstances of the lack of equipment of the premises with fire partitions, automatic fire alarm systems in production and storage facilities, etc. to those circumstances which pose a real threat to life and health of people (the personnel of the enterprise and the persons who will carry out fire extinguishing) ".
Thus, in the lawsuit, the controlling body must state the circumstances confirming that the specific violations found by it during the inspections pose a threat to human life and health.
The Supreme Court in the panel of judges of the Administrative Court of Cassation in its decision of 31.10.2018 in the case №826 / 14758/17 also noted that the lack of reasoned assessment of each argument put forward by the parties, the presence or absence of grounds indicate that the conclusions of the courts the confirmed circumstances of the existence of grounds for the application of response measures are premature and unreasonable.
Thus, in cases of claims for the application of response measures in the form of shutdown of enterprises (including the operation of premises and equipment) the plaintiff must not simply provide an inspection report, but prove the existence of recorded violations, as well as justify the danger to human life. . However, in most cases, controllers provide only general wording and do not indicate the specific consequences of each violation.
Based on the results of the inspection, the inspectors of the controlling bodies issue instructions stating the deadlines for eliminating violations of the law. However, without waiting for the order to be fulfilled, the controllers file lawsuits to suspend the enterprise.
At the same time, the Supreme Administrative Court of Ukraine on the basis of analysis of the provisions of Part 7-9 of Article 7 of the Law of Ukraine "On Basic Principles of State Supervision (Control) in the Sphere of Economic Activity" repeatedly concluded that such claims are premature. A similar legal position was expressed by the court in the decision of 19.04.2016 in the case № / 800/51548/15 and in the decision of 15.05.2014 in the case № / 800/3116/14.
As we can see, the courts do not always satisfy the claims of the supervisory authorities for the suspension of enterprises. This is primarily due to the fact that the controllers do not properly prove the facts of violations, as well as the threat to human life and health. However, objecting to the claim of the supervisory authority, one should not rely only on the shortcomings of the claim. It is necessary to eliminate the identified violations and provide evidence of elimination of violations in court. With regard to violations that cannot be remedied, it is necessary to justify why such violations do not pose a real threat and why shutting down an enterprise is a disproportionate punishment.
The article was published in the "Journal of the Chief Engineer"