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Archive for July, 2017

Cuban legal system: socialist legality: welfare of society ahead of individual rights

Cuba

Debra Evanson is regarded as the leading American authority on the Cuban legal system. She has published widely in this area. She describes herself as a critical supporter of the Cuban Revolution.

The following material should not be seen as an uncritical analysis of the Cuban system, nor as an acceptance of its practical effects. The Cuban system is analysed as an expressly socialist legal system which gives deep insight into the English capitalist system.

Evanson’s work has been described by contemporary academics as a penetrating analysis of  how law and society interact in a revolutionary setting. Her views include the following:

  • Cuba is described as a democratic-centralist state organized according to a Marxist-Leninist model. The Supreme Court of Cuba is the country’s highest judicial branch of government and also operates as a court of last resort for appeals from lower courts.
  • Cuba is divided into 14 provinces and numerous municipalities. Provincial courts deal with serious crimes, civil matters including divorce, and appeals from municipal courts. Municipal courts are courts of first instance for less serious crimes and civil matters.
  • The Cuban legal system reflects Cuba’s historical status as a Spanish colony. It is a civil law country with an emphasis on written codes rather than judicial precedent as sources of law. The inquisitorial system of criminal procedure is similar to that of France and Spain.

 

Aspects of the Cuban system

  • Husbands are legally obliged to share equally in household chores and child rearing.
  • Mortgage payments are set at a maximum of 10 percent of salary.
  • Personal injury lawsuits are rare.
  • Lay judges, chosen from the workplace, sit alongside traditional judges at trials.
  • The welfare of society is put ahead of individual rights.
  • In balancing social good with individual interests, the emphasis is on collective welfare. There is a deep sense of community.
  • In 1994, a severe economic crisis resulted from the collapse of the Soviet bloc. One consequence of this was that it was thought that more lawyers were needed. New areas of law have been developed, including tax, trademark registration, a new labour code, consumer rights, an updated contract, a new criminal code and bankruptcy.
  • The Cuban revolution of 1959 was based on humanistic and egalitarian aims. These included gender and race equality, the redistribution of wealth, land reform and the realisation of social and economic rights to housing, health care and education.
  • The legal system was of minor relevance to these aims. During the early part of the Castro regime, law comprised a large number of decrees made by the revolutionary leadership.
  • In 1976 a new Constitution came into force, together with new codes dealing with, for example, the legal profession, the judicial system, employment law and criminal justice. Legislation came to be seen as a primary instrument for social change.
  • The central, general aim of the revolution has been the creation of a system of economic well-being founded on the equitable distribution of resources. Achievements in universal free education, health care and equality are now regarded in Cuba as fundamental rights. It is generally recognised that individual freedoms have been subordinated to these collective aims. It is clear that those who oppose the socialist system are subject to limitations on their freedom of expression and association.
  • The question of human rights in Cuba can only be properly considered in the context of the fact that the United States has continuously attempted to undermine and destabilise Cuba’s government. These attempts have included an invasion, assassination attempts, an economic embargo and travel restrictions.

 

The origins of Cuban law

American and Spanish colonialism have had a significant influence on Cuban law. For example, the Spanish Penal Code was in force until 1979 and the Spanish Civil Code until 1987. Slavery was not abolished in Cuba until 1886.

Before the Revolution, Cuba was notorious as a haven for organised crime controlled from the US.

After the Revolution, law was made by the post-revolutionary Council of Ministers. Early legislation included agrarian reform and nationalisation. Revolutionary Tribunals and people’s courts were created.

 

The Cuban concept of socialist legality

  • Law must establish the basis for social stability and create the conditions for social development.
  • Socialist legality includes the value system according to which laws are evaluated and amended, as well as the method by which the state governs society.
  • Socialist Constitutions are dynamic agents in the evolution of communism.
  • This can be contrasted with capitalist Constitutions which preserve the status quo.

 

Key elements of “socialist legality”

  • An emphasis on substantive rather than judicial measures of justice.
  • The use of law as a pro-active tool for socialist development.
  • Limited use of formal legal mechanisms for the resolution of private disputes.
  • The use of informal “social courts” to resolve, for example, housing and labour disputes.
  • Direct citizen involvement in judicial and crime control processes.
  • State-organised law collectives to provide free or low-cost legal services.

Commentators have analysed legal developments in post-revolutionary Cuba according to four phases:

  • From 1959 (the year of the revolution) to the early 1970s: a period of revolutionary experimentation, for example the creation of People’s Courts without the involvement of the legal profession.
  • From the early 1970s: a phase of institutionalization, for example the creation of a new Constitution, the development of a hierarchical and more formal court system and the creation of bufetes colectivos.
  • The mid 1980s: a “rectification” phase including a new penal code.
  • The “special period” of severe economic crisis following the collapse of the Soviet bloc.

Crossrail tunnel: worker crushed to death by wet concrete: company fined £1 million +

Crossrail contractor fined £1,065,000 after three incidents including death of worker

Health and Safety Executive v Bam Ferrovial Kier (2017) Southwark Crown Court, July 28

Statutory reference: regulation 10 of the Work at Height Regulations 2005 (WAH) and regulation 22 of the Construction (Design and Management) Regulations 2007 (CDM).

The facts

  • In March 2014 Rene Tkacik, from Slovakia, was working on a team enlarging the Crossrail tunnel by removing tings of the pilot tunnel and spraying walls with wet concrete. A section of the roof collapsed and Tkacik was crushed to death by wet concrete,
  • In January 2015 Ian Hughes was collecting equipment from inside a tunnel when he was struck by a reversing excavator. He suffered serious injuries.
  • Also in January 2015 Alex Vizitiu, who was part of a team spraying liquid concrete, was cleaning pipes which supplied the concrete. One of the pipes was disconnected and he was struck with pressurized water and concrete debris. He suffered serious injuries.
  • There had been a failure to provide a safe system of work, a failure to properly maintain the excavator which reversed into Hughes, and a failure to enforce exclusion zones.

The decision

Bam Ferrovial Kier was fined £300,000 under regulation 10 of WAH and £765,000 for offences under regulation 22 of CDM.

The HSE Head of Operations commented that all three workers were taking part in one of the most important and challenging infrastructure projects of trhe decade. It was the company’s duty to protect its dedicated and highly-skilled workforce.


Worker killed in unsupported wall collapse

Death of worker in wall collapse: £20,000 fine

Health and Safety Executive v Mike Neesam & Son Ltd (2017) Peterlee magistrates’ court, July 26

Statutory reference: s.2 of the Health and Safety at Work, etc., Act 1974 (HSWA).

The facts

  • Steven Radcliffe, an employee of Mike Neesam & Son Ltd, was working on a toilet refurbishment project at a farm in County Durham.
  • He attempted to walk out of a shallow trench when he was struck and crushed by a collapsing wall which weighed 2.2 tonnes. He suffered fatal injuries.
  • The company had failed to take appropriate measures to prevent structures from collapsing. The wall was left unsupported at the time of the incident and put workers at risk of harm.

The decision

The company was fined £20,000 plus £5900 costs and was ordered to pay a victim surcharge of £120.


Ex turpi causa non oritur actio: Latin maxims alive and well in Scottish court

HEALTH AND SAFETY

Ex turpi causa non oritur actio:  “from a dishonourable cause an action does not arise”

Case  D Geddes (Contractors) Ltd v Neil Johnson Health & Safety Services Ltd [2017] CSON 42, Scottish Outer House

Facts DG Ltd, a quarry operator, was fined £200,000 for a breach of the Quarries Regulations 1999. A worker had been killed at DG Ltd’s quarry when a lorry was reversed into a feed hopper. The HSE had decided that a bund, which was intended to prevent such incidents, was ineffective. DG Ltd had engaged N as a health and safety adviser. N had carried out regular inspections and had provided reports. DG Ltd sought to recover £200,000 from N on the basis that an ordinarily competent health and safety adviser, exercising ordinary skill and care, would have advised that the bund was defective. If DG Ltd had been advised of this, it would have taken steps to rectify the defects before the incident and prosecution. N argued, as a preliminary point, ex turpi cause non oritur actio – DG Ltd could not recover a penalty imposed upon it for its own criminal act.

Decision      1. There was no authority for the proposition that recovery of a loss consisting of a criminal penalty or the consequences of a criminal sanction was necessarily excluded by the ex turpi causa principle.

  1. Intentional wrongdoing on the part of the claimant was not the only basis upon which a right of recovery of criminal penalties might be excluded. It could also be excluded by negligence.
  2. The case could proceed.

Charity law: an industry in itself

Charity law

This is an industry in itself. Charity law is a massive subject in its own right, overlapping significantly with company law, trusts law and tax law. The basic motivator of the charity law industry is tax avoidance.

The role of charity law as an element of the traditional legal system, and as a commodity, is illustrated by the cost of charity law textbooks, for example:

Picarda, Law and Practice Relating to Charities: £395

Luxton, Law of Charities £225

Charity Market Monitor £370

Leadership in Nonprofit Organizations A Reference Handbook £230

Top 3000 Charities  £304

 

Charity law reflects the institutionalisation of philanthropy as part of the edifice of English property law. The complexity of charity law, and its close relationship with tax and company law, reflects an increasing reliance on “charity” as the gains made by the welfare state are rolled back.

English charities are granted fiscal privileges by the law. These privileges are not universal but are granted to selected charities, for example Eton College, the British Goat Society and the British Society of Dowsers. Charitable status may be withheld from organisations aimed at changing the law.

The key to understanding the true role of charity law is that it provides for tax exemptions. As with most other issues surrounding the English legal system, the answer is money.

Charity, it has been commented, involves the expectation of gratitude and admiration for the giver and the stigmatising status for the receiver of being a beggar. These concepts have no place in relationships based on social and economic rights rather than vague moral obligations on the part of the haves towards the have-nots.

 

Theoretical approaches to charitable work by lawyers are ambivalent, to say the least. For example, in October 2006 the President of the International Bar Association, writing in The Lawyer, made the following points:

  • Many countries do not have the benefit of the rule of law.
  • The effects of this can be measured in a lack of certainty for investment.
  • This commercial reality conspires to prevent the economic fillip which these countries so badly need.
  • Internationally focused pro bono work can advance the rule of law.
  • There is a need to emphasise more strongly the nexus between respect for the rule of law and the benign investment climate which it necessarily presents to the international community.
  • Social and economic stability is a prerequisite for the attraction of investment.
  • The legal profession can do much to help countries construct the framework of the rule of law and help to bring about an environment in which international investors can bring a much-needed injection of capital.

These statements can be seen as an overtly expressed link between pro bono, profit-making and successful capitalism.


Apprentice seriously injured in workplace fall: company fined £20,000

Fall from height: serious injuries: £20,000 fine

Health and Safety Executive v Bespoke Bodies Ltd (2017) Liverpool magistrates’ court, July 14

Statutory reference: regulation 3 of the Management of Health and Safety at Work Regulations 1999 (MHSWR) and s.2 of the Health and Safety at Work, etc., Act 1974 (HSWA).

Bespoke Bodies Ltd, a coach fabricating company, has been fined following an incident in which an apprentice fell through a roof.

The facts

·        In April 2016 a 25 year old apprentice was working at the company’s site in Warrington. He was cleaning valley gutters on a workshop roof.

·        He stepped back onto a fragile skylight and fell 30 feet to the ground. He suffered three fractured ribs and a ruptured spleen.

·        The company had not properly supervised work at height and had failed to identify the risks associated with working at height and on fragile surfaces.

The decision

The company was fined £20,000 plus £3300 costs under regulation 3 of MHSWR and s.2, HSWA.

An HSE inspector commented after the case that falls from height remain one of the most common causes of work related injuries and the risks of working at height are well known.


Serious crush injuries from trailer load: company fined £100,000

Crush injuries: haulage company fined £100,000

Health and Safety Executive v Maxi Haulage Limited (2017) Warwick Crown Court, July 10

Statutory reference: s.2 of the Health and Safety at Work, etc., Act 1974 (HSWA)

Maxi Haulage Limited has been fined following an incident in which a trailer load fell onto a worker.

The facts

·        In February 2015 an employee of the company was working at its site in Warwick. A piece of metal which weighed 28kg and was six metres long fell from the tope of a double-decked trailer and struck him on the head. He suffered life-changing injuries including a fractured skull.

·        The site had not implemented systems and procedures for the unloading of trailers. Workers had not been properly informed about pedestrian and vehicle segregation rules.

The decision

The company was fined £100,000 plus £53,000 costs under s.2 of HSWA.

An HSE inspector commented after the case that the incident could easily have been prevented by simply implementing suitable control measures and safe working practices. The company had identified and implemented the necessary measures after the event.


Hospital patient death: inadequate training: NHS Trust fined £1million

United Lincolnshire Hospitals NHS Trust fined £1million after death of patient

Health and Safety Executive v United Lincolnshire Hospitals NHS Trust (2017) Lincoln Crown Court, July 19

Statutory reference: s. 3 of the Health and Safety at Work, etc., Act 1974 (HSWA)

The facts

·        In April 2012 John Biggadike, a patient at The Pilgrim Hospital in Lincoln, died from internal injuries after falling onto an exposed metal post on a standing aid hoist which staff were using to support him.

·        The kneepad on the hoist had been incorrectly removed. This left the metal post exposed.

·        The Trust did not have systems for training and monitoring the way in which staff used the hoist. Unsafe practices had developed.

The Trust was fined £1 million plus £160,000 costs for a breach of s.3, HSWA, for failing to ensure the health and safety of non-employees.

A spokesperson for the HSE is reported to have commented after the case that if staff had received effective training and monitoring in the use of the hoist, the death could have been avoided. 


Hand Arm Vibration Syndrome: company fined £120,000

Hand Arm Vibration Syndrome: £120,000 fine

Health and Safety Executive v Newfield Fabrications Co Ltd (2017) Manchester and Salford magistrates’ court, July 11

Statutory reference: regulations 6 and 8 of the Control of Vibration at Work Regulations 2005 (CVWR).

Newfield Fabrications Co Ltd, an engineering company, has been fined for failing to control the risk to employees using hand held power tools from HAVS (Hand Arm Vibration Syndrome).

The facts

  • An HSE investigation discovered that during 2015 a welder who had been working for Newfield for a number of years had been told to work on a job which involved a significant amount of grinding and polishing.
  • The worker began to experience numbness and tingling in his hand. he asked to change with another worker but was told to carry on.
  • Some weeks later another welder suffered similar symptoms from using similar tools.
  • The company had failed to ensure that risks to its employees from exposure were adequately controlled. It had also failed to ensure that employees were given sufficient information, instruction and training on the effects of working with vibrating hand tools.

The decision

The company was fined £120,000 plus £7200 under regulations 6 and 8 of CVWR>


Explosion at chemical company’s site: £1.2 million fine

Explosion at chemicals company site: £1.2 million fine

Health and Safety Executive v Industrial Chemicals Ltd (2017) Chelmsford Crown Court, July 7

Statutory reference: regulation 4 of the Control of Major Hazards Regulations 1999 (CMHR).

Industrial Chemicals Ltd has been fined following an explosion at its site in West Thurrock.

The facts

·        In September 2013 a newly installed hydrochloric acid burner exploded, causing significant damage at the site.Two workers suffered minor injuries.

·        In an attempt to address risks from chlorine, the company had routed vent gas containing mostly hydrogen to the site’s emergency scrubber where it came into contact with oxygen or chlorine which exploded when it came into contact with an ignition source.

The decision

The company was fined £1.2 million plus £35,000 costs under regulation 4 of CMHR>