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Imposition of Administrative Sanctions for Negligent Damage to Heat Networks and Fuel Lines (Gas Pipelines): Issues of Qualification and Subjects of Jurisdiction
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Imposition of Administrative Sanctions for Negligent Damage to Heat Networks and Fuel Lines (Gas Pipelines): Issues of Qualification and Subjects of Jurisdiction
Annotation
PII
S231243500026211-0-1
DOI
10.18254/S231243500026186-2
Publication type
Article
Status
Published
Authors
Maria M. Ismagilova 
Affiliation: Gazprom Transgaz Chaykovsky, LLC
Address: Russian Federation, Chaykovsky
Edition
Issue 2
Pages
97-104
Abstract

Security of the state associated with safe operation of fuel pipelines, oil pipelines, petroleum product pipelines, gas pipelines and guarantees of protection of health, protection of the environment, protection of lawful economic interests of individuals and legal entities, the society and the state depends on actions of officials in charge of bringing to the administrative liability for illegal actions related to damaging of heat networks, fuel pipelines (gas pipelines). The article reviews features of qualification of an administrative offense for negligent damaging of heat networks, fuel pipelines (gas pipelines). The study points out that the administrative offense laws need to be amended by exclusion of powers of police officers to make protocols under the reviewed article and leaving such powers exclusively in the jurisdiction of employees of the federal executive authority that performs the federal state supervision in the industrial safety sphere provided that such employees have the right to review an administrative offense case under Article 9.10 of the Administrative Offense Code of the Russian Federation, which is confirmed by the judicial practice and their qualification.

Keywords
energy law, public law relations, administrative liability, administrative offense, heat networks, fuel pipelines, gas pipelines
Received
17.02.2023
Date of publication
27.06.2023
Number of purchasers
10
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98
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1 Issues of safe operation of heat networks, fuel pipelines (pneumatic pipelines, oil pipelines, petroleum product pipelines, gas pipelines) and guarantees of safety of life and health of the population, property, etc. are brought to the forefront in the reviewed legal relations [1].
2 Safety of heat networks, fuel pipelines is of great significance under the conditions of martial law [2].
3 Besides, Decree of the President of the Russian Federation No. 1173 of November 23, 1995 On Measures of Supporting Stable Functioning of Facilities Ensuring Security of the State notes that for the purposes of stable functioning of such facilities, avoidance of situations posing a threat to fulfillment of imposed tasks, any restriction or termination of provision of fuel and energy resources (electric and heat energy, gas and water), provision of communications and utility services to military units, institutions, enterprises and organizations of federal executive authorities stipulating military service are considered actions violating security of the state; moreover, the Government of the Russian Federation was instructed to take urgent measures to avoid any restriction or termination of provision of fuel and energy resources (electric and heat energy, gas and water), provision of communications and utility services to military units, institutions, enterprises and organizations of federal executive authorities and federal government authorities stipulating military service.
4 It is worth mentioning that the reviewed administrative offense elements are relevant for the modern laws and serve as a guarantor of protection of interests of the society, safety of property of energy facilities; these circumstances confirm the inclusion of Article 18.11. Negligent Damaging of Heat Networks, Fuel Pipelines in the draft Administrative Offense Code of the Russian Federation prepared by the Ministry of Justice of Russia (project ID 02/04/05-20/00102447, not submitted to the State Duma of the Federal Assembly of the Russian Federation, text as of May 29, 2020).
5 An administrative offense committed under Article 9.10 of the Administrative Offense Code of the Russian Federation causes public danger and damage to property in the form of losses.
6 In accordance with Art. 15 of the Civil Code of the Russian Federation, a person whose right has been violated may request full compensation of incurred losses unless the law or the agreement stipulate compensation of losses in a smaller amount. Losses are understood as expenses incurred or need to be incurred by the person whose right has been violated to recover the violated right, property loss or damage (actual damage) and lost earnings such person would have received under normal conditions of civil transactions had the right not been violated (lost profits). If the person violating the right generated any income as a result, the person whose right is violated may request compensation of lost profits at least in the amount of such income, along with other losses.
7 Let us review the following court cases as examples.
8 Thus, on December 18, 2019, about 11.15 a.m., the defendant was performing earthworks in the protected gas pipeline zone located at , the excavator bucket damaged the subsurface polyethylene high-pressure gas pipeline (WP = 0.6 MPa, DN = 63 mm) resulting in accidental natural gas release into the atmosphere. The works in the protected zone were performed based on the agreement of August 27, 2019, between the defendant and Gorelektroset, JSC, on construction of a cable line from distribution transformer substation 101 located at: to the input switching device located at: .
9 The claimant was forced to carry out an investigation and incur financial expenses (losses) to eliminate accident consequences as the owner of the damaged subsurface polyethylene high-pressure gas pipeline (WP = 0.6 MPa, DN = 63 mm), which is confirmed by the case files.
10 Following the results of the investigation, on February 10, 2020, there was made a certificate of technical investigation of reasons for an incident at a hazardous industrial facility that took place on December 18, 2019.
11 The defendant was acknowledged guilty of an administrative offense stipulated by Article 9.10 of the Administrative Offense Code of the Russian Federation by Resolution on Imposition of Administrative Punishment No. 20/21-2020 of March 31, 2020, made by the state inspector of the Federal Environmental, Industrial and Nuclear Supervision Service of Russia.
12 As a result of the performed actions, the damage compensation amounted to RUB 250,608.03.
13 In a different case, the courts found that on May 24, 2019, at 12 p.m., there was received emergency request No. 00638 from excavator-loader operator of the Institution S.V. Nadymov about the smell of gas in the Proletarsky alley, near building No. 11 in Kudymkar.
14 The claimant's emergency response team that arrived at the site found a disruption of the smooth and safe operation of a gas supply system facility (damaged gas pipeline) as a result of defendant's actions that performed earthworks in the protected zone, the emergency response team localized and remedied the accident. In particular, the damaged section of the gas distribution pipeline was disconnected by closing gas shut-off No. 157 DU-100, gas release from the damaged gas distribution pipeline resulting in termination of gas supply to 74 private houses.
15 The reasons for the gas supply system accident were investigated based on the state standard GOST R 54983-2012 . The National Standard of the Russian Federation. Gas Distribution Systems. Gas Consumption Networks. General Operating Requirements. Operating Documentation (approved and enacted by Order of the Federal Agency on Technical Regulation and Metrology No. 299-st of September 13, 2012). It was established in the course of the investigation that the defendant was performing earthworks in the protected zone of the gas distribution network at a depth of more than 0.3 m without any approval from the operating company and damaged the gas distribution pipeline (certificate of technical investigation of incident reasons).
16 The Head of the Institution was brought to the administrative liability under Article 9.10 of the Administrative Offense Code of the Russian Federation by the Federal Environmental, Industrial and Nuclear Supervision Service.
17 Referring to the fact that the actions of the Institution resulted in caused damage, the Company filed a claim to the commercial court for compensation of losses in the amount of RUB 871,090.14; the judicial authority satisfied the claim in full [3].
18 Such accidents are caused by various circumstances, e.g., by the fact that heat networks are hidden under the surface and that the entity performing works has no detailed information on the location of such networks [4].
19 It should be noted that the practice under Article 9.10 of the Administrative Offense Code of the Russian Federation is among the most difficult ones as the jurisdiction authority often needs special knowledge about technically complicated energy facilities at case initiation and review. The positive result of case proceedings largely depends on the experience of the official taking part in the administrative offense proceedings. That's why owners of energy facilities need to attract qualified personnel (legal counsels) as correctness of understanding of all case circumstances by court and consequently the case review result directly depends on their expertise. This implies knowledge about the administrative liability concept and the reviewed administrative offense elements as well as the authorities of officials having jurisdiction over initiation and review of cases of this category.
20 The administrative liability is a legal liability type expressed in imposition of administrative punishment on an offender by a body or official that has the respective authorities. The administrative liability is applicable to acts less dangerous for the society than crimes [5].
21 The administrative law only acknowledges imposition of an administrative punishment as the administrative liability although there are multiple administrative coercion measures (inspection, requisition, detention, seizure, etc.). Consequently, the administrative liability is application of administrative law sanctions, imposition of administrative punishments by the authorized body or official to individuals and legal entities that have committed an offense [6].
22 The aggregate of legally consolidated administrative offense attributes constitutes a complicated set of facts being the only ground for the administrative liability of an offender. However, the aggregate of administrative offense attributes and the set of facts are not identical concepts.
23 The administrative law theory interprets the constituent elements of an administrative offense as the unity of objective and subjective attributes established by the Administrative Offense Code of the Russian Federation that characterize a specific socially dangerous act as an administrative offense. As an example, one can name administrative offenses infringing upon the health of the population; offenses in the environmental protection sphere; industry, construction and power generation [7].
24 Thus, four components characterize the administrative offenses elements under Article 9.10 of the Administrative Offense Code of the Russian Federation: object, objective aspect, subject, subjective aspect.
25 Objects of an illegal infringement stipulated by Article 9.10 of the Administrative Offense Code of the Russian Federation are safety of operation of heat networks and fuel pipelines (gas pipelines) as well as life and health of citizens and safety of property as the damage (in particular, to oil pipelines and gas pipelines) can result in fire, explosion, fatalities and other grave consequences [8].
26 The objective aspect of the offenses under consideration lies in damage to heat networks, fuel pipelines and their equipment. Damage in this case means making them partially unusable. As a result of damage to the objects named in the disposition of Article 9.10 of the Administrative Offense Code of the Russian Federation, they lose some of their target functions and stop conforming to the operational reliability requirements set by safety rules of the oil and gas energy industry.
27 The specific actions resulting in the damage to fuel networks and fuel pipelines (construction, assembly, repair, road, agricultural or other works) are not important for qualification of the reviewed offense.
28 It is enough to establish the fact of damage to heat networks, fuel pipelines and their equipment, oil, gas spillage and other consequences of this offense to get all constituent elements of the offense stipulated by Article 9.10 of the Administrative Offense Code of the Russian Federation. [9] Presence or absence of negative consequences of illegal actions do not affect qualification of the act. Thus, the indicated constituent entities of an administrative offense are formal.
29 It should be noted that in case of origination of any socially dangerous consequences as a result of performance of the said illegal actions by the guilty person, the performed act will be qualified as the crime stipulated by the Criminal Code of the Russian Federation.
30 Thus, the criminal liability under Art. 215.2 of the Criminal Code of the Russian Federation is stipulated for intentional damage to heat networks and fuel pipelines. The reviewed offense committed through negligence but resulting in damage on a large scale [10] or grave consequences can also be qualified as a crime stipulated by Art. 168 of the Criminal Code of the Russian Federation [11].
31 The subjective side of the act under consideration is expressed only in form of negligence.
32 In accordance with Part 2, Art. 2.2 of the Administrative Offense Code of the Russian Federation, an administrative offense is considered committed through negligence only if the offender foresaw the possibility of origination of harmful consequences of the act (inactivity) but counted on prevention of such consequences without any sufficient grounds or failed to foresee the possibility of origination of such consequences although should and could have foreseen them.
33 The commentaries to the Administrative Offense Code of the Russian Federation have earlier stated that bringing a legal entity to the administrative liability under the reviewed article is associated with inevitable conflicts as within the meaning of Part 2, Art. 2.2 of the Administrative Offense Code of the Russian Federation, the guilt can be qualified through negligence only with regards to an act committed by an individual.
34 Legal criteria for the establishment of attributes of guilt in an offense committed by a legal entity defined in Part 2, Art. 2.1 of the Administrative Offense Code of the Russian Federation do not stipulate identification of any mental attitude of the entity to the performed act [12].
35 Negligence lies in the fact that the guilty party as the subject of an administrative offense performs this or that act and does not understand its unlawfulness, but with due care, it should and could have foreseen the origination of unfavorable consequences for relations protected by administrative law.
36 Textbooks point out that the Administrative Offense Code of the Russian Federation has the only direct indication of the constituent elements of an administrative offense that stipulates negligence, this is Article 9.10. However, most constituent elements of administrative offenses have no direct indication of any specific form of guilt. In this case, the government authority or official that reviews an administrative offense case must do everything possible to establish the relation of the guilty party to the committed offense and impose fair punishment.
37 Thus, if the legal provision stipulates the possibility for two forms of guilt, negligent wrongdoing can serve as the basis for imposition of less severe punishment within the limits stipulated by sanctions for the specific constituent elements of an offense [13].
38 The sanctions part of the reviewed article states that citizens, officials and legal entities act as offense subjects.
39 In the course of case proceedings, the court or the authority having the respective jurisdiction should study all case circumstances to determine the subject of the liability for performance of illegal actions. Thus, based on the court files, gas pipelines were damaged during earthworks in protected zones through the fault of the excavator-loader operator [14] who violated the rules for performance of the respective works through negligence, and the official or legal entity should be brought to the administrative liability depending on who took the decision to perform the respective works in protected zones without the approval of the respective subject that owned gas pipelines and gas pipeline branches or held them on other lawful grounds [15].
40 Determination of the offense subject under the reviewed article is essential as the sanction constitutes an administrative fine in the amount of one thousand five hundred rubles for citizens. The fine for an official is three thousand rubles. The largest fine is stipulated for a legal entity and constitutes thirty thousand rubles.
41 When one reviews the subjects entitled to carry out proceedings in an administrative offense case under Article 9.10 of the Administrative Offense Code of the Russian Federation (in terms of damage to fuel pipelines, gas pipelines), it should be taken into account that the following authorities make protocols on administrative offenses in this case category: the federal executive authority that performs the federal state supervision in the industrial safety sphere (Art. 23.31); officials of internal affairs agencies (police) (Art. 28.3).
42 However, it is worth mentioning that the Administrative Offense Code of the Russian Federation does not list specific powers of officials of the Ministry of Internal Affairs of Russia to make protocols in administrative offense cases; such powers are fixed in Part 1 of Annex No. 1 to Order of the Ministry of Internal Affairs of Russia No. 685 of August 30, 2017 On Officials of the System of the Ministry of Internal Affairs of the Russian Federation Authorized to Make Administrative Offense Protocols and Perform Administrative Detention.
43 Thus, in accordance with Clause 1.4 of Annex No. 1 to Order of the Ministry of Internal Affairs of Russia No. 685 of August 30, 2017 On Officials of the System of the Ministry of Internal Affairs of the Russian Federation Authorized to Make Administrative Offense Protocols and Perform Administrative Detention, the Administrative Offense Code of the Russian Federation, the following officials are entitled to make administrative offense protocols taking into account the exercised powers:
44 in directorates (units, divisions) of the Ministry of Internal Affairs of the Russian Federation for districts, cities and other municipal structures including several municipal structures, directorates (units, divisions) of the Ministry of Internal Affairs of the Russian Federation on the part of territories of administrative centers of the constituent entities of the Russian Federation, directorates (units, divisions) of the Ministry of Internal Affairs of the Russian Federation for closed administrative territorial structures, facilities of critical importance and high-security facilities, directorates of internal affairs for administrative districts of the Chief Directorate of the Ministry of Internal Affairs of the Russian Federation for Moscow, Directorate of Internal Affairs at Moscow Metro of the Chief Directorate of the Ministry of Internal Affairs of the Russian Federation for Moscow, Directorate of the Ministry of Internal Affairs of the Russian Federation at the Baykonur Complex, Fourth Directorate of the Ministry of Internal Affairs of the Russian Federation, Directorate of Internal Affairs for Sochi of the Chief Directorate of the Ministry of Internal Affairs of the Russian Federation for the Krasnodar Territory:
45 directorate (unit, division) head; deputy directorate (unit) head - chief of police; deputy chief of police; head of police unit (division); deputy head of police unit (division); head of police station; criminal investigator;
46 officials of subdivisions of district police officers and subdivisions for the affairs of minors;
47 officials of subdivisions for fulfillment of administrative laws.
48 Besides, it should be noted that in accordance with Part 1, Art. 28.4 of the Administrative Offense Code of the Russian Federation, an administrative offense case under Article 9.10 of the Administrative Offense Code of the Russian Federation (in terms of damage to fuel pipelines, gas pipelines) can be initiated by a prosecutor, that is quite frequent in the activities of prosecutor's offices, for example: the prosecutor's office of the Anivsky district performed an inspection in the gas supply sphere and found that a municipal customer damaged the subsurface gas pipeline through negligence [16]; the prosecutor's office of the Leninsky district of Irkutsk identified violation at demolition of an apartment block on the Serafimovich street. Violations are found in the course of verification of fulfillment of federal industrial safety laws.
49 It turned out that a dweller of Irkutsk failed to make sure that an apartment block was disconnected from gas supply, started excavation works and damaged a gas supply pipeline. The regional prosecutor's office noted the attributes of an administrative offense stipulated by Art. 9.10 of the Administrative Offense Code of the Russian Federation in the citizen's actions (negligent damage to heat networks, fuel pipelines ( pneumatic pipelines , oxygen pipelines, oil pipelines, petroleum product pipelines, gas pipelines) or their equipment. Therefore, the prosecutor initiated an administrative offense case against the man, the case was transferred to the controlling authority to be reviewed on the merits [17]; a prosecutor of Karabash initiated two administrative cases under Article 9.10 of the Administrative Offense Code of the Russian Federation in the citizen's actions (negligent damage to heat networks, fuel pipelines) against legal entity Perestroyka, LLC, and official – foreman of Perestroyka, LLC [18].
50 We believe that case initiation under the reviewed article by a police officer and a prosecutor will be challenging as the officer and the prosecutor will come across the absence of any special knowledge in the energy sphere, which will affect the quality of tasks performed within the framework of administrative offense proceedings. We think that it is necessary to exclude the powers of police officers and prosecutors to make protocols under the reviewed article and leave such powers exclusively in the jurisdiction of employees of the federal executive authority that performs the federal state supervision in the industrial safety sphere provided that such employees have the right to review an administrative offense case under Article 9.10 of the Administrative Offense Code of the Russian Federation, which is confirmed by the judicial practice and their qualification consisting in knowledge of energy laws.
51 We can conclude that correct qualification under the reviewed constituent elements of an offense requires the jurisdiction authority to know qualification features, have special knowledge of regulations and rules (state standards) that govern gas supply relations (the federal law On Gas Supply in the Russian Federation; the resolution of the Government of the Russian Federation On Approval of Rules for Protection of Gas Distribution Networks, state standard GOST R 54983-2012 . The National Standard of the Russian Federation. Gas Distribution Systems. Gas Consumption Networks. General Operating Requirements et al.).
52 Efficient knowledge of provisions of the Administrative Offense Code of the Russian Federation, judicial practice will enable fulfillment of tasks of administrative offense laws on protection of health of citizens, protection of the environment, protection of lawful economic interests of individuals and legal entities, the society and the state from administrative offenses, prevention of administrative offenses.

References

1. An Article-by-Article Commentary on the Administrative Offense Code of the Russian Federation / D.S. Velieva, A.S. Ermakova, Yu.V. Kapitanets et al. ; edited by E.G. Lipatov, S.E. Channov. Moscow : GrossMedia, ROSBUKH, 2008. 912 p. Accessed from the ConsultantPlus system.

2. Kuzmin V.A. A Commentary on Federal Constitutional Law No. 1-FKZ of January 30, 2002 On Martial Law (Article-by-Article) // ConsultantPlus reference legal system. 2010. Accessed from the ConsultantPlus system.

3. Judgment of the Commercial Court of the Kirov Region. Case No. А28-1224/2021. Kirov. April 25, 2022 // https://sudact.ru/arbitral/doc/5nkbPjXIoe1R/АРБИТРАЖНЫЙ СУД КИРОВСКОЙ ОБЛАСТИ.

4. Kulakov A. An Analysis of the Judicial Practice in Disputes between Business Entities and State Energy Supervision Authorities // Administrative Law. 2014. No. 3. P. 11–16.

5. Rossinsky B.V. Administrative Liability : course of lectures. Moscow : Norm, 2004. 448 p.

6. Administrative Law of the Russian Federation : textbook (2nd edition, revised and enlarged) (Popov L.L., Migachev Yu.I.) (publishing editor L.L. Popov) (RG-Press, 2019). Chapter 15. Accessed from the ConsultantPlus system.

7. Rossinsky B.V. Administrative Liability : course of lectures. Moscow : Norm, 2004. 448 p.

8. Administrative Offense Code of the Russian Federation. Chapters 1–10. An Article-by-Article Scientific and Practical Commentary / R.Ch. Bondarchuk, A.B. Verzhbitsky, V.A. Vinogradov et al. ; under the general editorship of B.V. Rossinsky. Moscow : Library of Russian Newspaper, 2014. Issue VII–VIII. 800 p. Accessed from the ConsultantPlus system.

9. Ruling of the Eighth Arbitration Court of Appeal No. 08АП-8674/2014 of September 23, 2014. Accessed from the ConsultantPlus system.

10. Large scale means that the property cost exceeds two hundred fifty thousand rubles, and especially large scale means one million rubles and more. See Clause 4 of the notes to Article 158 of the Criminal Code of the Russian Federation.

11. Morozova N.A. Intent and Negligence as Forms of Guilt of Legal Entities Committing an Administrative Offense // Arbitration and Civil Procedure. 2017. No. 11. P. 3–8.

12. Agapov A.B. An Article-by-Article Commentary on the Administrative Offense Code of the Russian Federation. Enlarged, with judicial practice files : In 2 books. 2nd edition, revised and enlarged. Moscow : Statute, 2004. Book 1. 829 p. Book 2. 876 p. Accessed from the ConsultantPlus system.

13. Zvonenko D.P., Malumov A.Yu., Malumov G.Yu. Administrative Law : textbook. Moscow : Justice Inform, 2007. 416 p. Accessed from the ConsultantPlus system.

14. See, e.g.: Ruling of the Supreme Court of the Russian Federation No. 309-ЭС22-5463 of May 11, 2022 in case No. А50П-787/2019; Judgment of the Commercial Court of the Kirov Region. Case No. А28-1224/2021. Kirov. April 25, 2022. Ibid.

15. Kulakov A. An Analysis of the Judicial Practice in Disputes between Business Entities and State Energy Supervision Authorities // Administrative Law. 2014. No. 3. P. 11–16.

16. The Prosecutor's Office Has Brought to Liability the Person Guilty of Damaging the Gas Pipeline in the Anivsky District. https://astv.ru/news/society/2023-03-10-prokuratura-privlekla-k-otvetstvennosti-vinovnika-v-povrezhdenii-gazoprovoda-v-anivskom-rajone.

17. A Citizen of Irkutsk Has Been Fined for Damaging a Gas Pipeline. https://ulanude.bezformata.com/listnews/irkutyanina-oshtrafovali-za-povrezhdenie/94789581/.

18. Persons Guilty of Damaging the Gas Pipeline in Karabash Will Be Brought to Liability. https://kr74-online.ru/25037-vinovnikov-povrezhdeniya-gazoprovoda-v-karabashe-privlekut-k-otvetstvennosti.

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