The criminal liability of companies, company managers and members of the hierarchical line is actually often jeopardised in the event of industrial accidents and industrial traffic accidents. Despite the compensation provided by the insurance for industrial accidents, the public prosecutor’s offices are now systematically initiating criminal investigations when such accidents occur.
Besides, it should be borne in mind that in case of a deadly industrial traffic accident, a settlement with the public prosecutor’s office is out of the question. Article 216bis of the Code of Criminal Procedure excludes such settlement in case the facts have caused serious harm to physical integrity.
Industrial (traffic) accidents are not a rarity in Belgium. Within the private sector, their overall number is even increasing since 2016. In 2019, approximately 190,000 industrial (traffic) accidents were registered for the private and public sectors together, of which approximately 19,000 resulted in permanent injuries or permanent incapacity. About 200 of these accidents had a fatal outcome, which means that every three work days two deadly accidents take place.
If an ambulance is called after the industrial accident, the file will automatically end up with the competent public prosecutor's office. This can also be the case when the service of the Supervision on Well-being at Work must be notified immediately after a serious industrial accident.
The public prosecutor’s office decides autonomously whether or not to prosecute. This decision depends mainly on two things: the seriousness of the industrial accident and the elements that are gathered almost immediately after the accident. These include, among other things, statements made, findings established or a submitted detailed report.
Unfortunately, nothing can be changed about the seriousness of the industrial accident. The situation is somewhat different with regard to the data collected after the accident. It is recommended to give the possibly (actual or by virtue of their function) involved persons the necessary time, advice and help to use the period between the accident and any interrogation by the police/inspection to thoroughly prepare this interrogation, if necessary with the help of the legal department and/or their own lawyer. The drafting of the detailed report to be submitted must also be given the necessary care.
Such report is required in the case of a serious industrial accident and includes legally required sections such as the description of the place of the accident, the description of the circumstances in which it occurred, the established (primary, secondary and tertiary) causes of the accident, recommendations to prevent a repetition of the accident and an action plan. Extreme caution must be exercised in determining the causes and measures to be taken to prevent similar accidents from occurring in the future. Our experience shows that the detailed report in regards to the criminal liability discussion is apt to rebound like a boomerang and is used by the public prosecutor’s office against the persecuted legal and natural persons. For example, the suggested and planned actions are invoked to prove that the situation was previously not safe (enough). Since prosecutions often (also) occur because of the crime of unintentional assault and battery, a lack of caution or precaution – which is then (according to the public prosecutor) implicit in the proposed actions, which remedy this – is sufficient for the existence of the required wrongful conduct. Subsequent contrary evidence, regardless of its nature, is often dismissed by the courts as not credible.
It is therefore strongly recommended that for the drafting of the report not only people with the necessary technical knowledge or people of the prevention service are involved, but also people with a legal background. It is also best to immediately coordinate with the lawyer who will act in the event of any criminal prosecution.
Such foresight on the part of the company is always recommended and may prevent possible criminal prosecution of the company, its company managers and members of the hierarchical line.
Based on several years of experience in criminal (employment) law, risk management and the implementation of prevention and compliance programmes, our team can help you in this respect. The team can also assist you with the drafting of a roadmap for industrial accidents. Feel free to contact us if you have any further questions regarding this memo or if you need advice and assistance.