KMU-Magazin No. 09, September 2022 Construction law: when is it criminal?
Anyone who intentionally or negligently violates the recognized rules of construction engineering during the management, execution or demolition of a structure may be liable to prosecution. For this reason, those managing and executing construction must always be aware of the risks they are taking.
The recognized rules of construction are not compiled in a comprehensive decree. Rather, they result from various sources of law and many rules. The rules and regulations originate from both public and private organizations, such as Suva or the Swiss Society of Engineers and Architects (SIA). Punishable violations of the rules of construction, on the other hand, are centrally regulated in Art. 229 of the Swiss Penal Code (StGB).
Possible criminal liability
Criminal law uses the term "structure" to cover any structural or technical installation connected to the ground. Thus, all types of buildings and civil engineering structures, such as houses, roads, elevators and even pipelines, are considered structures. Scaffolding and machinery are also included as auxiliary structures of buildings. “Demolition" does not only include forcible destruction, but also staged dismantling or only partial dismantling.
In principle, any person who is active in a managerial capacity or otherwise in the execution of a construction or demolition work can be punished if he or she disregards the recognized rules of construction and thereby endangers the life and limb of others. At the same time, not every person working on a construction site can be prosecuted in the same way for the violations of the rules of construction committed there. The decisive factor is whether compliance with the rules of construction falls within the individual area of responsibility of the potential perpetrator. In particular, the architect in charge of construction, the engineer in charge of construction, the construction manager or the master builder can be considered as the perpetrator.
Depending on the constellation on site, however, the construction worker or the craftsman may also be liable to prosecution. In principle, the building owner without professional knowledge does not belong to the circle of offenders of Art. 229 StGB, but his or her responsibility in the context of the management or execution of the building must be examined in each individual case.
The criminal liability of a person then also depends on the extent to which the violation of the recognized rules of construction specifically endangers the life or limb of a person. The danger does not necessarily have to relate to persons working on the construction site, but can also affect suppliers, neighbors or uninvolved third parties such as passersby, guests or customers.
In practice, there is a tendency for Art. 229 SCC to be invoked only when the danger to a person has already materialized - i.e. life and limb have been harmed. This is due to the fact that it can be very difficult to identify and prove a concrete danger. In addition, the provision of evidence is often associated with considerable effort. As a result, Art. 229 StGB is applied with restraint.
The perpetrator must endanger the life and limb of a person intentionally, i.e. with knowledge and will, or at least negligently. Endangerment is negligent if a person fails to consider the consequences of his or her conduct due to carelessness in breach of duty or fails to take them into account. The perpetrator is basically careless in breach of duty if he does not exercise the necessary caution that may be required of him, for example, due to his professional position or the task he has assumed.
Special role of the planner
The potential criminal liability of the planner - namely architects and engineers - depends significantly on their involvement in the construction. According to Art. 229 StGB, only those who act unlawfully in the management or execution of a structure are liable to prosecution. Accordingly, Art. 229 StGB does not sanction the endangerment as a consequence of mere planning errors. However, this by no means leads to a free ride under criminal law.
Planning errors can also lead to criminal liability in other ways. For example, if a railing planned too low without supplementary safety precautions ultimately leads to a person being injured or killed. In this case constellation, the planner could possibly be prosecuted for negligent bodily injury (Art. 125 StGB) or negligent homicide (Art. 117 StGB). If the planner has also taken over the construction management in addition to the planning, Art. 229 as well as Art. 117 or Art. 125 StGB may come into play.
Violation of the rules
Particularly in the renovation of structures, conflicts can arise between the client's ideas and the recognized rules of construction. In practice, for example, old window railings of a house to be renovated often no longer comply with the standards applicable today. At the same time, for aesthetic reasons, the building owner does not want the craftsmen to install protective devices to make the old window railings comply with the applicable standards. Without an appropriate adaptation of the railing, it can pose a danger to life and limb of the building owner or third parties. Neither aesthetic nor purely economic reasons can justify this danger.
Even a contractual agreement with the building owner or a "warning", i.e. a written notice to the building owner that the building does not comply with the rules of construction and that responsibility for any resulting consequences is rejected, does not guarantee immunity from prosecution. A contractual agreement or warning applies exclusively between the parties and cannot have any exempting effect vis-à-vis third parties. Furthermore, it cannot be ruled out that a balancing of interests may make the interest in the contractual protection of the commissioned person take a back seat to the protection of the building owner. In short: even with a warning, criminal liability for a violation of the rules of construction cannot be excluded.
Should the client nevertheless insist on an execution that violates the rules of construction, the commissioned person must consider terminating the contract for good cause. This possibility exists in particular if the important reason is based on reproachable conduct on the part of the client. This is likely to be the case if the client insists that the contracted building is to be erected regardless of the danger to life and limb and contrary to the recognized rules of construction.
Other legal consequences
It should not be forgotten that a deviation from the rules of construction is often not only relevant under criminal law, but can also result in liability under private law. In particular, a deliberate deviation from the rules of construction can lead to an exclusion of insurance benefits. At the same time, public building and planning law must be observed. For example, Section 40 (1) of the Planning and Building Ordinance of the Canton of Lucerne states that buildings and facilities must be constructed and maintained in accordance with the recognized rules of technology for earthquake safety.
Failure to comply with public law regulations may result in non-approval, demolition or a fine. In summary, those involved in building are well advised to know and follow the recognized rules of construction.
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