Problems of determining the threat of harm (damage) to legally protected values in the implementation of state fire supervision

Vinokurov Vladimir Anatol'evich ORCID: 0000-0003-0002-3010 Doctor of Law Professor of the Department of Theory and History of State and Law of Saint Petersburg University of the State Fire Service of the Ministry of Civil Defense, Emergencies and Elimination of Consequences of Natural Disasters named after Hero of the Russian Federation Army General E.N. Zinichev 196105, Russia, Saint Petersburg, Moskovsky ave., 149 V.Vinokurov.JD@gmail.com Other publications by this author     Shmantsar Dmitry Aleksandrovich Investigator of the Karachevsky district's (Bryansk region) Department of Supervision and Preventive Work Of the Russian Federation for Civil Defense, Emergencies and Elimination of Consequences of Natural Disasters Office of Lenin str., 51, Karachev, Bryansk region, 242500, Russia. - da.shmantsar@32.mchs.gov.ru

Tishchenko Aleksey Viktorovich Deputy Head of the Federal State budgetary Institution "Forensic Expert Institution of the Federal Fire Service “Test Fire Laboratory” in the Bryansk region" 241050, Russia, Bryansk region, Bryansk, Duki str., 59, office building 7 ipl@32.mchs.gov.ru

In accordance with the Constitution of the Russian Federation, it is the duty of the State to respect and protect human and civil rights and freedoms, since "a person, his rights and freedoms are the highest value" (article 2).

In the human rights system, fundamental rights are, first of all, the right to life and the right to health protection (articles 20, 41). According to article 18 of the Constitution of the Russian Federation, human and civil rights and freedoms are directly applicable; they determine the meaning, content and application of laws, the activities of legislative and executive authorities, local self-government and are ensured by justice.

The functioning of the system of mandatory requirements contained in normative legal acts and aimed at protecting these constitutional rights is based on the Federal Law "On Mandatory Requirements in the Russian Federation", which defines the purpose of establishing mandatory requirements to protect legally protected values, in particular, life, human health, rights and legitimate interests of citizens and organizations, non-infringement harm (damage) to the environment, objects of cultural heritage (from Article 5). At the same time, article 6 of the said Federal Law defines that "the necessary conditions for establishing mandatory requirements are the presence of a risk of harm (damage) to legally protected values, the elimination of which is aimed at establishing mandatory requirements, and the possibility and sufficiency of establishing mandatory requirements as measures to protect legally protected values."

According to the provisions of the Basic Model for determining criteria and risk categories, approved by the minutes of the meeting of the project committee of the priority program "Reform of control and supervisory activities", approved by the minutes of the meeting of the project committee of the priority program "Reform of control and supervisory activities" dated March 31, 2017 No. 19 (3), the risk of harm in general should be understood as "the probability of events that may result in harm to legally protected values of varying severity." The document under consideration, along with establishing what relates to legally protected values (life and health of citizens, rights, freedoms and legitimate interests of citizens and organizations, their property, the safety of animals, plants, other environmental objects, etc.), indicates that "for each type of state control (supervision) should be defined the values that the implementation of these powers is aimed at protecting" (section 1).

The Federal Law "On State Control (Supervision) and Municipal Control in the Russian Federation" provides that the types of federal state control (supervision) are established by federal laws, and the organization and implementation of federal state fire supervision is regulated by "federal laws on types of control adopted in accordance with them provisions on types of federal state control (supervision) and (or) regulatory legal acts of federal executive authorities" (part 8 of Article 1; part 6 of Article 2).

Issues related to federal state fire supervision are regulated by the Federal Law "On Fire Safety". This Federal Law establishes the implementation of federal state fire supervision, the subject of which is, inter alia, compliance by citizens with fire safety requirements in buildings, premises, structures, territories, land plots that citizens own and (or) use and to which fire safety requirements are imposed (Articles 3 and 6), and also provides the presence of state fire supervision bodies in the federal Fire Service, which is part of the State Fire Service (Article 5), currently under the jurisdiction of the Ministry of Emergency Situations of Russia (see the Regulations on the Ministry of the Russian Federation for Civil Defense, Emergencies and Elimination of Consequences of Natural Disasters, approved by Decree of the President of the Russian Federation dated July 11, 2004 No. 868.

It follows from the norms of the Federal Law "On Fire Safety" that ensuring fire safety is one of the most important functions of the state, the concept of "fire safety" is defined as "the state of protection of an individual, property, society and the state from fires", and the term "fire" used is "uncontrolled gorenje causing material damage, harm the life and health of citizens, the interests of society and the state." At the same time, this Federal Law explains that the mandatory requirements for fire safety are special conditions of a social and (or) technical nature established in order to ensure fire safety by federal laws and other regulatory legal acts of the Russian Federation, as well as regulatory documents on fire safety (preamble and article 1).

Thus, fire safety requirements for the purposes of implementing constitutional norms in terms of preserving the life and health of citizens and in order to ensure fire safety in the Russian Federation within the framework of the control and supervisory activities of the Ministry of Emergency Situations of Russia are established as a certain (in some cases - a certain) criterion, the inconsistency of which allows us to judge the risk of harm (damage) protected by law values. The cited norms suggest that the threat of harm (damage) to legally protected values within the framework of fire safety is nothing more than a threat (risk, probability) of fire, as well as a threat to human life and health, as well as material values from exposure to fire hazards, to which the Federal Law "Technical Regulations on fire safety requirements", in particular, include flames and sparks; heat flow; elevated ambient temperature (part 1 of Article 9).

An analysis of regulatory legal acts and scientific literature shows that the concept of "threat to life and health" is not a unified term and does not have a clear definition at the legislative level.

As an example of the use of this phrase in legal acts, one can cite the norm of paragraph 1 of Article 77 of the Family Code of the Russian Federation, which states that "In case of an immediate threat to the life of a child or his health, the guardianship and guardianship authority has the right to immediately take the child away from the parents (one of them) or from other persons in whose care he is." But the Family Code of the Russian Federation does not define what a threat to the life and health of a child can or is expressed in. In this case, the necessary clarifications were proposed by the Plenum of the Supreme Court of the Russian Federation, which in its resolution No. 44 dated November 14, 2017 "On the practice of applying legislation by courts in resolving Disputes related to the protection of the rights and legitimate interests of a child in case of an immediate threat to his life or health, as well as in case of restriction or deprivation of parental rights" determined, that "an immediate threat to the life or health of a child ... should be understood as a threat that clearly indicates the real possibility of negative consequences in the form of death, harm to the physical or mental health of the child as a result of the behavior (actions or inaction) of the parents (one of them) or other persons in whose care the child is. Such consequences may be caused, in particular, by the lack of child care that meets the physiological needs of the child in accordance with his age and state of health (for example, failure to provide a young child with water, food, shelter, failure to care for an infant or leaving him unattended for a long time)" (paragraph 28). As you can see, this explanation contains possible facts and factors that should be determined by the relevant officials in a particular situation, that is, they are subjective in nature.

In the field of fire safety, the legal acts of the Russian Federation do not contain an explanation of what should be understood as a threat to life and health. The Ministry of Emergency Situations of Russia states this fact, at the same time clarifying that the decision on the presence of a real threat to human life and health is made judicially, and as an evidence base can be presented "the results of control measures, photographic materials, the conclusion of a forensic expert institution, the conclusion of duly accredited experts and expert organizations involved by authorized bodies to carry out federal state fire supervision ... to carry out control measures" (see letter No. 19-16-302 of the Ministry of Emergency Situations of Russia dated February 17, 2017, explaining certain provisions of the legislation of the Russian Federation in the field of fire safety).

Decree of the Government of the Russian Federation No. 336 dated March 10, 2022 "On the specifics of the organization and implementation of State control (supervision), municipal control" established that in 2022-2023, unscheduled inspections can be carried out subject to coordination with the prosecutor's office, in particular, "with an immediate threat of harm to life and serious harm to the health of citizens, according to the facts of causing harm to the life and serious harm to the health of citizens" (paragraph 3). However, this government act does not explain what is meant by the immediate threat of harm to life and serious harm to health.

An attempt to clarify the specifics of the organization and implementation of state control (supervision) was a letter issued by the Ministry of Economic Development of the Russian Federation dated March 24, 2022 No. D24i-8436 "On clarifying the specifics of the organization and implementation of State Control (supervision), municipal control in 2022", which, in violation of legislative norms, clarifies certain provisions of the above-mentioned Government decree The Russian Federation (however, only for 2022). In this explanation, in addition to fixing the lack of criteria for determining the immediate threat of harm, it is explained that "this concept includes a direct causal relationship between violation of mandatory requirements and causing harm to specific persons ... of a certain category," and it is also reported that the assessment of the validity of the decision to conduct a control (supervisory) event "It is given by the prosecutor's office when approving the conduct of a control (supervisory) event."

Thus, the Ministry of Economic Development of the Russian Federation, having no legal grounds, placed all responsibility for the legal validity of unscheduled inspections, including in the field of fire safety, on officials of the Prosecutor's Office of the Russian Federation, who, in fact, to the best of their personal perceptions of reality, should determine whether a specific action or omission of an individual (the owner or user of the property) is an immediate threat to human life and health, including on issues related to fire safety. Attention should be paid to the Decree of the Government of the Russian Federation dated August 4, 2021 No. 1305 "On Amending the Regulations on the Ministry of Economic Development of the Russian Federation and Invalidating a Separate Provision of the Act of the Government of the Russian Federation", by which the Ministry of Economic Development of the Russian Federation received the right to "provide explanations on the application of " federal laws " On State control (supervision) and Municipal Control in the Russian Federation" and "On mandatory requirements in the Russian Federation", but at the same time did not receive the right to clarify the norms of acts of the Government of the Russian Federation.

The authors of this article expressed the opinion that such explanations have no legal force in general and are practically untenable in the process of coordinating an unscheduled inspection with the prosecutor's office on the basis we are considering, in particular ^{[1, pp. 46-47]}.

It should be noted that in the field of fire safety for employees of state fire supervision bodies, criteria have not been defined that should be regarded by employees of the prosecutor's office as unconditional indicators of an immediate threat to human life and health.

Practice shows that it is not possible to develop such criteria for all occasions, because there are too many factors that depend on very different circumstances (a specific subject of Russia, climate and weather conditions, terrain, quality and quantity of buildings, time of year, composition of residents or workers in the appropriate place, etc.). At the same time, the justifications presented by employees of the state fire supervision, based on experience and containing the causes leading to the occurrence of real fires, in most cases are not taken into account.

Thus, we believe that it is impossible to prepare a document covering all possible cases of an immediate threat to legally protected values in the field of fire safety that interests us. There is no need for such a development, but on condition that the reasons stated by employees of the state fire supervision authorities, which served as the basis for contacting the prosecutor's office in order to coordinate an unscheduled inspection, will be regarded as a qualified opinion of specialists concerned about the preservation of life and health of people, as well as property belonging to them and the state.

Otherwise, that is, if an unscheduled fire safety inspection is refused, which in fact led to a fire, that is, to uncontrolled gorenje, which caused material damage, harm to the life and health of citizens, the interests of society and the state, an official of the prosecutor's office must bear criminal or administrative responsibility on an equal basis with the person who violated fire safety requirements.

Interestingly, the procedure for approval by the control (supervisory) body with the prosecutor of an unscheduled control (supervisory) event and standard application forms for approval with the prosecutor of an unscheduled control (supervisory) event and the prosecutor's decision on the results of its consideration, approved by Order No. 294 of the Prosecutor General's Office of the Russian Federation dated June 2, 2021 "On the Implementation of the Federal Law dated 07/31/2020 No. 248-FZ “On State Control (Supervision) and Municipal Control in the Russian Federation"", does not provide either a list of documents that can most likely justify an immediate threat to human life and health, or an approximate list of situations that allow us to unambiguously judge the existing threat (for example, as in the resolution of the Plenum of the Supreme Court of the Russian Federation quoted above). This approach allows prosecutors in most cases to make a decision to refuse to approve an unscheduled control (supervisory) event on almost any application from the body exercising state control (supervision). As a result, employees of the state fire supervision are deprived of the opportunity to conduct unscheduled inspections, which, from the point of view of specialists in this field, could prevent an immediate threat to human life and health or reduce the scale of this threat.

In our opinion, such an approach by the legislator to the state's solution of tasks to protect human and civil rights and freedoms in this case, in terms of fire safety, is unacceptable, since, on the one hand, it is legally difficult, but practically impossible, to comply with the conditions for organizing an unscheduled inspection, and on the other hand, the number of fires that caused death The number of people and those who caused material damage continues to remain at a fairly high level, despite a slight decrease.

Thus, according to the State reports "On the state of protection of the population and territories of the Russian Federation from natural and man–made emergencies", in 2021, 390,859 fires were registered in the territory of the Russian Federation, in which 8,473 people died; in 2022 - 352,514 fires, in which 7,750 people died. Direct material damage from fires in 2021 amounted to 16,248.7 million rubles; and in 2022 – 18,701.3 million rubles. The Ministry of Emergency Situations of Russia notes that the majority of fires occurred due to careless handling of adult fire – 264,086 (2021) and 228,095 (2022), while a significant number of them occurred for reasons related to violations of the rules of installation and operation of furnaces and chimneys – 27,811 (2021) and 25 391 (2022).

Since the introduction of various restrictions regarding the implementation of control measures, scientists and specialists regularly address the issues of determining what is included in the concept of "immediate threat of harm". So, a specialist in the field of fire safety P.Yu. Knyazev suggests that any violation of fire safety requirements constitutes a threat to human life and health ^[2]. In turn, I.K. Bakirov and I.R. Khaliulina came to the conclusion about the absurdity of the position to consider all violations of fire safety requirements as posing a threat to human life and health. Analyzing fire safety standards from the point of view of the possibility of determining by the inspector himself whether a violation of a mandatory requirement poses a threat or not, these authors rightly note that "if the procedure for making some kind of state decision is not clearly defined in the norms, then this creates a basis for corruption and the use of official position" and propose to develop an express methodology for evaluating firefighters risks ^{[3, p. 7]}. The conclusions of I.K. Bakirov and I.R. Khaliulina were developed in the work of S.E. Mordvinenko, A.V. Ershov and D.S. Pikusha, who proposed an express method in the form of a set of actions to be performed by an inspector, followed by on-site mathematical calculation of the results obtained. If the calculation shows that there is a threat to human life and health, then a decision is made to transfer the case to a fire testing laboratory for a full-fledged study and identification of a threat to human life and health based on the methods ^{[4, p. 34]}. The Ministry of Emergency Situations of Russia has approved only the methodology for determining the calculated values of fire risk in buildings, structures and fire compartments of various classes of functional fire danger (see Order of the Ministry of Emergency Situations of Russia dated November 14, 2022 No. 1140 "On approval of the methodology for determining the calculated values of fire risk in buildings, structures and fire compartments of various classes of functional fire danger").

In conditions of uncertainty of the decision-making procedure by employees of the state fire supervision in relation to certain violations of mandatory fire safety requirements, the need for expert confirmation of the alleged danger of the identified violations is seen by the authors of this article as the most legitimate way to solve the problematic issue under consideration. This conclusion is confirmed by judicial practice (see, for example: decision of the Furmanovsky City Court of the Ivanovo Region of November 14, 2018 in case No. 2-328/2018; decision of the Presidium of the Moscow Regional Court of July 5, 2017 No. 355 in case No. 44g‑193/2017), including decisions of the Supreme Court of the Russian Federation (see, for example: definition of the Judicial Board for Civil Cases of the Supreme Court of the Russian Federation dated April 23, 2019 No. 83‑KG18‑18; definition of the Judicial Board for Criminal Cases of the Supreme Court of the Russian Federation dated March 1, 2022 No. 117-UD21-4-K4).

An analysis of the current legal acts shows that the existing legislation does not provide for a legal mechanism by which the state inspector for fire supervision has the opportunity to substantiate with an expert opinion the conclusion about the presence (absence) of a threat to human life and health at a supervised facility in order to coordinate the conduct of an unscheduled control (supervisory) event, as well as for the lawful application of administrative measures.

As a result of the conducted research, it is proposed to make the following changes:

1) to the Federal Law "On Fire Safety":

– add the title of Article 61 with the words "and on violations of fire safety requirements";

– to supplement article 61 with part two of the following content:

"Officials of the federal executive authority authorized to solve problems in the field of fire safety, when considering appeals related to violations of fire safety requirements, have the right to take measures within their competence to prevent the threat of harm to human life and health, as well as the threat of harm (damage) to legally protected values, including by conducting an unscheduled control (supervisory) event, with mandatory confirmation of its validity in a state forensic expert institution.".

2) The Federal Law "On State Control (Supervision) and Municipal Control in the Russian Federation" should be supplemented with Article 66 with paragraph 14 as follows:

"14. If, as a result of the refusal of the prosecutor's office to coordinate the conduct of an unscheduled control (supervisory) event, mandatory requirements were violated that led to death or harm to human health, destruction or damage to property, the prosecutor who made the decision to refuse to conduct an unscheduled control (supervisory) event bears criminal or administrative responsibility along with the persons guilty of violating the relevant requirements.";

3) add paragraph 2 of Article 4 of the Federal Law "On the Prosecutor's Office of the Russian Federation" with the fifth paragraph of the following content:

"assist federal executive authorities authorized to exercise state control (supervision) in carrying out control (supervisory) measures by them."

The proposed measures, in our opinion, will allow officials of the state fire supervision of the Ministry of Emergency Situations of Russia to effectively exercise their powers to curb violations of fire safety requirements that may cause harm to the life and health of citizens and (or) material damage.