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Authorizes The Government To Legislate On The Prevention And Investigation Of Railway Accidents And Incidents As The Competencies To Assign The Responsibility For Its Technical Investigation Are Likely To Interfere With The Exercise

Original Language Title: Autoriza o Governo a legislar em matéria de prevenção e investigação de acidentes e incidentes ferroviários na medida em que as competências a atribuir aos responsáveis pela respectiva investigação técnica sejam susceptíveis de interferir com o exercício

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PROPOSED LAW NO. 128 /X

Exhibition of Motives

Taking into account the development of the legal framework of the railway sector, the

community level, it has become established that the railway accidents should, in a

safety perspective, be the subject of inquiry for enquiries of its causes and

so prevent their repetition, and the results should be made public. Other

accidents and incidents can be important percursors of serious accidents, owing

be also the subject of an investigation into the safety, where necessary.

The safety survey should remain separate from the judicial inquiry into the

even accident or incident and have access to evidence and witnesses. Must be carried out

by a permanent body, independent of other actors in the sector

rail and to work so as to avoid any conflicts of interest and any

possible involvement in the causes of the occurrences investigated, owing to their

investigations to be carried out with the greatest possible transparency.

The comummind designated "Railway Package II", integrates a set of directives

community, from among which stands out the Directive No 2004 /49/CE of Parliament

European and of the Council of April 29, 2004 on the security of the

railway of the community, to which it includes provisions on the subjects of

investigation of accidents and railway incidents, requiring them to be regulated,

notably, the skills and methodologies to be applied by the responsible body

by the investigation of accidents and railway incidents-the Research Office of

Safety and Railway Accidents. However, taking into account that the skills

assigning those responsible for the technical research of the GISAF could be

likely to interfere with rights, freedoms and individual guarantees, and given the

provisions of the paragraph d) of Article 165 (1) of the Constitution of the Portuguese Republic,

understood the Government to be required to obtain from the Assembly of the Republic authorization to

legislate in such matters.

Thus:

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Under the terms of the paragraph d) of Article 197 (1) of the Constitution, the Government presents to the

Assembly of the Republic the following proposal for a law:

Article 1.

Subject

The Government is granted permission to legislate in the matter of prevention and

investigation of accidents and railway incidents, in so far as the skills to

assign to those responsible for the respective technical investigation of the Cabinet of

Safety and Railway Accidents (GISAF) research are likely to

interfere with the exercise of rights, freedoms and individual guarantees.

Article 2.

Sense

The present legislative authorisation aims, in the framework of the transposition of the Directive

n. 2004 /49/CE, of the European Parliament and of the Council of April 29, 2004, concerning

to the safety of the community's railways, confer those responsible for the

technical investigations referred to in the previous article, powers that allow such

investigations, without prejudice to possible criminal investigation, proceed with the

speed and effectiveness of results necessary for the detection of causes of accidents or

railway incidents and their future prevention, with a view to preventing the

railway sinister.

Article 3.

Extension

The decree-law to be adopted under the present legislative authorization shall define the

following competencies of researchers responsible for technical research of the

GISAF:

a) Carry out the immediate lifting of the evidence and the controlled collection of

debris or components for the purposes of examination or analysis, unless decision of

judicial authority to the contrary;

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b) Investigate all the circumstances in which the accident or incident occurred,

including those that may not be directly to him connected, but that if

understand to be of particular importance for the safety of the pathway;

c) Request the competent judicial authority the reports of the autopsies of the

members of the crew who have passed away in the accident or come to deceased

subsequently as a consequence of this, as well as the examinations and the results

of the sampling of samples, carried out in the persons involved in the operation of the

rolling stock and the bodies of the victims;

d) Order the fulfillment of alcohol tests or screening of narcotics

in the people involved in the accident, the refusal being considered a crime of

qualified disobedience under the terms of the criminal law;

e) Request the judicial or police authorities to identify the witnesses

already heard by those;

f) Transmit to the judicial authorities the elements that are requested of it;

g) Request to the judicial or police authorities, without prejudice to the investigation

judicial, the conservation, custody and surveillance of the site and wreckage, and the

authorization to carry out the examinations and studies as soon as possible

necessary for the people and material traces of any kind,

related to the accident;

h) Hear testimony from people involved and from witnesses of accidents or

incidents, and may notify them in writing to appear, under penalty of

disobedience, in the event of unwarranted non-comparency.

i) Access, in the exercise of your competences, with the greatest possible brevity:

-To the site of the accident or incident, as well as to the rolling stock

involved, the infrastructure in question and the traffic control facilities

and of the signage;

-A listing of evidence, proceeding to the controlled removal of rubble

of the facilities or components of the infrastructure for the purpose of examination or

analysis;

-To the contents of the registration apparatus and the on-board equipment for

recording of verbal messages and the operation of the signalling system

and traffic control, predicting the possibility of the use of those

contents;

-To the results of the examination of the bodies of the victims;

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-To the results of examinations made to the staff on board and other staff

railway involved in the accident or incident.

Article 4.

Deadline

The legislative authorization granted by this Law shall be for the duration of 120 days.

Seen and approved in Council of Ministers of March 15, 2007

The Prime Minister

The Minister of the Presidency

The Minister of Parliamentary Affairs

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Rail accidents can have disastrous consequences and raise concerns,

to the public, regarding the performance and safety of the railway system.

Consequently, all such accidents should, in a safety perspective, be

object of inquiry to ascertain their causes and thus prevent their repetition,

owing to their results being made public. Other accidents and incidents may

be important percursors of serious accidents, and shall also be the subject of

survey on safety, where necessary.

The safety survey should remain separate from the judicial inquiry into the

even accident or incident and have access to evidence and witnesses. Must be carried out

by a permanent body, independent of actors in the railway sector and

that works in such a way as to avoid any conflicts of interest and any possible

involvement in the causes of the occurrences investigated. In particular, its

functional independence should not be affected, even if it is associated with a

national security authority or a national regulator of the ways-

of-iron for organizational and legal structure effects. Their investigations should

be carried out with the greatest possible transparency.

By each occurrence, the body of inquiry shall develop the procedures

necessary to find the immediate and underlying causes of the accident / incident. The

survey reports, the findings and the recommendations they provide

information crucial for the future improvement of rail safety should be

placed at the disposal of the public at the community level and the recommendations in matter

of security should be complied with by the recipients.

The comummind designated "Railway Package II", integrates a set of directives

community, transposed into the internal legal order by the Decrees-Leis n. ___/___,

of ___, n ___/___, of ___, and n. ___/___, of ___.

The aforementioned Decree-Law n ____/____, proceeded to the partial transposition of the Directive

n. 2004 /49/CE, of the European Parliament and of the Council of April 29, 2004, concerning

to the safety of the community's railways, leaving for subsequent time to

specification of competencies and methodologies in office of promotion of surveys and

research on accidents and rail incidents.

Thus, the Government understands that the actions to be developed in this framework are key and

necessary for the institution of a circulation prevention and safety framework in the

rail network, so it is important to carry out the transposition of the remaining part of the

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has cited Directive No 2004 /49/CE, in particular with respect to competences and

methodologies to be applied by the body responsible for the investigation of accidents and

railway incidents, enshrining the principle of their independence in relation to the

other actors of the rail sector, particularly regulatory bodies

railway, security-responsible entities, operators and managers of the infra-

railway structure.

Thus:

In the use of the legislative authorization granted by the Law No ___/___ de___, and pursuant to the

point ( b) of Article 198 (1) of the Constitution, the Government decrees the following:

Article 1.

Subject

The present decree-law partially transposes to the internal legal order the Directive

n. 2004 /49/CE, of the European Parliament and of the Council of April 29, 2004, concerning

to the safety of the railways of the Community, and amending Directive n.

95 /18/CE of the Council, concerning the allocation of capacity of the railway infrastructure,

to the application of rates of use of railway infrastructure and certification of

safety (Directive on railway safety).

Article 2.

Definitions

1-For the purposes of this decree-law, it is understood by:

a) "Responsible for the survey", the person responsible for the organisation, driving

and control of an enquiry;

b) "Accident", a sudden, unwanted or involuntary event, or a

chain of events of that nature with damaging consequences;

c) "Serious accident in the railway scope", any collision, or derailment of

trains that have as a result, at the very least, one killed, or five or more

serious injuries, or significant damage to the rolling stock, in the infrastructure

or in the environment and any other similar accident with manifest impact on the

railway safety regulations or in the management of safety;

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d) "Significant damage", understand damage whose cost can be immediately

assessed by the body responsible for the survey in a total of at least

two million euros;

e) "Incident", any occurrence, distinct from accident or serious accident,

associated with the railway holding and which affects the safety of the holding;

f) "Survey", the process carried out with a view to preventing accidents and

incidents, which includes the collection and analysis of information, the extraction of

conclusions, including the determination of the causes and, where appropriate, the

formulation of safety recommendations;

g) "Causes", the actions, omissions, events or conditions, or their combination, which

conducted the accident or incident;

h) "Agency", the European Railway Agency, community agency for the

railway safety and the interoperability of the railways.

2-For the purposes of the b) and c) from the previous number, the accidents are divided into the

following categories:

a) Collisions;

b) Derailments;

c) Accidents at level crossings;

d) Accidents with persons caused by moving material in motion;

e) Fires and

f) Others.

Article 3.

Scope of application

1-The present decree-law applies to the technical investigation of accidents and incidents

railway which takes place on national territory, the competence of which is, under the terms of the

Decree-Law n _________, of _________, of the Research Office of

Safety and Railway Accidents, henceforth designated by GISAF.

2-When it is not possible to determine in which Member State the accident occurred or

incident, or the same occurs in an installation located at the border or along the

border rests with the GISAF, in articulation with the enquiry bodies

involved, determine which of them will drive the investigation, or whether the same will be

carried out in cooperation.

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3-In cases provided for in the preceding paragraph, when the direction of research is not

committed to the GISAF has this a duty to participate in the research and share its

results.

4-When they occur on national territory accidents or incidents involving

companies established or licensed in other Member States, shall owe the GISAF

invite the competent bodies of those Member States to participate in the

research.

Article 4.

Mandatory to carry out the research

1-Any major accident that occurred in the railway system covered by Article 3.

must be the subject of a technical investigation with the aim of increasing the

rail safety and prevent accidents.

2-In addition to the serious accidents, the GISAF can investigate accidents and incidents which,

under different circumstances, they could have led to serious accidents, including

technical deficiencies of the structural character subsystems or components of

interoperability of high-speed trans-European rail systems or

conventional.

3-It is up to the GISAF to decide on the conduct of an accident or incident inquiry

of the type referred to in the preceding paragraph, and shall take into account in its decision:

a) The severity of the accident or incident;

b) Whether the occurrence is part of a series of accidents or relevant incidents to

the system as a whole;

c) The impact of the accident or incident on railway safety at the level

community;

d) The requests of the infrastructure managers, railway companies or the

Institute of Mobility and Terrestrial Transport, I. P., henceforth designated

by IMTT.

4-A technical research provided for in paragraphs 1 and 2 should be conducted independently

of others that come forward to be promoted by diverse entities, not having by

purpose the clearance of culpas or the determination of responsibilities.

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Article 5.

Commission of research

1-For the investigation of accidents and incidents, the director of the GISAF designates a

investigator responsible for the investigation.

2-The director of the GISAF may, if this becomes necessary, and by proposal of the

responsible investigator, designate technical researchers, constituting a

investigative committee, under the guidance of the responsible researcher.

3-The responsible researcher, in the performance of his duties, may establish the

contacts that become necessary with any authority and its agents, thus

how to exchange information and receive the collaboration of organisms and entities

public or private, whatever your nationality.

4-In the event of an impediment of the responsible researcher appointed, or in cases

exceptional in which the effectiveness of the investigation justifies it, can the director of the GISAF

appoint another responsible investigator in its replacement.

Article 6.

Competences of the researcher responsible

1-The responsible researcher competes:

a) Determine the actions necessary for technical research;

b) Communicating to the competent judicial authority the occurrence of the accident;

c) Ensuring that technical research is conducted in accordance with the standards and

practices recommended by the European Commission and the Railway Agency

European, created by Regulation No 881/2004 of April 29, of Parliament

European and of the Council, which institutes the European Railway Agency;

d) Carry out the immediate lifting of the evidence and the controlled collection of

debris or components for the purposes of examination or analysis, unless decision of

judicial authority to the contrary;

e) Investigate all the circumstances in which the accident or incident occurred,

including those that may not be directly to him connected, but that if

understand to be of particular importance for the safety of the pathway;

f) To propose to the director of the GISAF the collaboration of foreign organizations of

investigation of accidents or other specialized organizations;

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g) Requisition to the competent judicial authority the reports of the autopsies of the

members of the crew who have passed away in the accident or come to deceased

subsequently as a consequence of this, as well as the examinations and the results

of the sampling of samples, carried out in the persons involved in the operation of the

rolling stock and the bodies of the victims;

h) Sending out tests of alcohol or screening of narcotics in the

people involved in the accident, the refusal being considered a crime of

qualified disobedience under the terms of the criminal law;

i) Request the judicial or police authorities to identify the witnesses

already heard by those;

j) Request the authorities and agents of civil protection to follow up on

operations as a guarantee of the safety of persons and goods;

l) Transmit to the judicial authorities the elements that are requested of it;

m) Request to the Institute of Meteorology the preparation of report of the situation

meteorological and meteorological information available at the time of the accident

or incident;

n) Request the IMTT all the information that this one possesses about infrastructure,

personnel, material, operators and railway procedures with an interest to

research, including those relating to certificates and licences, as well as any

relevant railway information;

o) Request to the judicial or police authorities, without prejudice to the investigation

judicial, the conservation, custody and surveillance of the site and wreckage, and the

authorization to carry out the examinations and studies as soon as possible

necessary for the people and material traces of any kind,

related to the accident;

p) Hear testimony from people involved and from witnesses of accidents or

incidents, and may notify them in writing to appear, under penalty of

disobedience, in the event of unwarranted non-comparency;

q) Request to the infrastructure manager and railway operators reports

on the state of the infrastructure and rolling stock, respectively, whose

information is considered relevant for the purposes of the investigation.

2-The entities mentioned in the preceding paragraph shall provide the researcher

responsible the information referred to.

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3-If the responsible researcher finds, in the course of the technical investigation,

passable evidence of criminal offence, should proceed to its immediate complaint.

Article 7.

Right of access

1-In the exercise of your competences, the responsible researcher shall be provided,

with the greatest possible brevity:

a) Access to the site of the accident or incident, as well as rolling stock

involved, the infrastructure in question and the traffic control and control facilities

signalling;

b) The right to immediately receive a listing of evidence and to proceed to

controlled removal of wreckage from the facilities or components of the infra-

structure for the purpose of examination or analysis;

c) Access and possibility of the use of the contents of the registration apparatus and the

on-board equipment for registration of verbal messages and operation

of the system of signalling and traffic control;

d) Access to the results of the examination of the bodies of the victims;

e) Access to the results of examinations made to the staff on board and other

railway personnel involved in the accident or incident;

f) Opportunity to question the railway staff involved and others

witnesses;

g) Access to any relevant information or registration in the possession of the manager of the infra

structure, the railway companies involved and the authority responsible for the

security;

h) Access to reports of occurrences drawn up by the bodies of firefighters or

other protection and relief agents.

2-The researcher responsible, in the access to the relevant places and facilities for the

exercise of your skills, you must find yourself properly identified,

through card with photography or other suitable credential.

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Article 8.

Notification of accident or incident

1-Are of mandatory notification all accidents and incidents verified in the

Portuguese territory, comprising:

a) Serious accidents in the railway scope;

b) Accidents at level crossings;

c) Occurrences involving trains carrying hazardous materials;

d) Occurrences that have been instilled in a series of accidents or relevant incidents

for the railway system as a whole.

2-A The obligation of the notification of the accident or incident competes with the operator

railway, the manager of the railway infrastructure and the IMTT.

3-A notification of major accidents, as well as that of accidents or incidents of the types

referred to in points b) a d) of paragraph 1, shall be made to GISAF within six hours

after its occurrence and the remaining ones within 48 hours;

4-Police and military authorities must notify the GISAF of accidents and

incidents the occurrence of which have occurred or which have occurred under his

jurisdiction.

5-The staff on board or, in its unavailability, the railway operator involved

in the accident or incident, they must immediately draw up a report of the occurrence,

containing the facts, conditions and circumstances relating to the accident or

incident.

6-In the case of physical or mental incapacitation, the elements of the on-board personnel shall

make your statement as soon as the respective physical or mental condition allows it.

Article 9.

Duty of secrecy

1-GISAF cannot disclose the constant documents of the investigation process

technique, save to the competent judicial authority, at your request.

2-The said documents are listed in the final report only when they are

necessary for the analysis of the accident or incident.

3-The parts of the documents that are not relevant for the analysis are not

disclosed.

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4-The responsible researcher and the technical researchers, in particular, and, in a manner

general, all GISAF personnel are, in case of existence of criminal proceedings

parallel, subject to the secrecy of justice in respect of all the facts that have

coming to your knowledge by virtue of collaboration with the judicial authority,

without prejudice to the fact that they may include such facts in the reports they have to draw up

and of whether they can disseminate such reports.

Article 10.

Conduct of research

1-During the investigation, and to the extent that this does not disturb the normal

development of the same, the GISAF must keep informed all parties

interested.

2-Prior to the elaboration of the report referred to in the following article is carried out

prior hearing of the interested parties, which must appear in the final report.

Article 11.

Reports and communications

1-The responsible researcher must prepare reports whose form depends on the type or

gravity of the accident or incident, where they build the objectives of the survey and, if

for the case, safety recommendations, and should follow the structure

enunciated in the annex to the present decree-law and that it forms an integral part.

2-Compete to the responsible researcher to draw up the final report, in compliance

with the practices and standards contained in the Annex referred to in the preceding paragraph.

3-The report should protect the anonymity of the people involved in the accident or

incident.

4-Compete to the Director of the GISAF homologate the report, give it to know the member

of the Government that it depends on and, subsequently, promote its submission to the

authorities and entities involved and for the European Railway Agency, well

as to all those interested who can benefit from their findings in matter

of security, without prejudice to the provisions of Article 9.

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5-GISAF must publish the final report, soon after the end of all the representations

necessary for the investigation, within a maximum of 12 months from the date of the

accident.

Article 12.

Safety recommendations

1-Safety recommendations must be communicated to the Railway Agency

European and to all those interested who can benefit from them.

2-A safety recommendation does not constitute, in any case, presumption of guilt

or of liability, regarding an accident or incident.

3-The national entities to whom the recommendations proposed in the report are addressed

final inform the GISAF, within 30 days, of the measures taken or provided for.

Article 13.

Reopening of research

In the event that new facts or relevant evidence arise during the period of 10 years,

decorated after the homologation of the final report, the GISAF is expected to reopen the investigation.

Article 14.

Preservation of documentation

The GISAF retains the documentation concerning technical research by the deadline of 10

years, counted from the date of approval of the final report or, if any

reopening of the investigation, as of the date of approval of the report arising from the

reopening.

Article 15.

Responsibility for costs with technical periings

1-The costs arising from the technical perientations that become necessary in the framework

of the survey are the responsibility of the infrastructure manager or the operator,

depending on the nature of the technical peritage requested.

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2-When the GISAF, for reasons of progress of the survey, has to assume the

payment of the costs referred to in the preceding paragraph, is reimbursed by the manager of the

infrastructure or by the operator, as the case may be, of the amounts paid.

3-The infrastructure manager or the operator, as the case may be, is notified by the

GISAF to make the refund provided for in the preceding paragraph within 90 days a

count of the date of the notification.

Article 16.

Counter-ordering

1-A violation of the provisions of paragraphs 1, 2 and 3 of Article 8, constitutes counterordinance

punishable with fine of € 1 000.00 a € 3 750.00, when you apply for the natural person,

and from € 2 to 500.00 a € 15 000.00, when you apply to the legal person.

2-When it comes to an incident that is qualified as serious, under the terms of paragraph 2

of Article 4 of this decree-law, the limits referred to in the preceding paragraph shall be

reduced to half.

3-A attempt and neglect are punishable, being the limits of the fines referred to us

previous numbers reduced to half.

Article 17.

Competence

1-The processing of the counter-ordinations competes with GISAF and the application of the

fines to its director.

2-The revenues from the fines revert in 40% to the GISAF and the rest

for the State.

Article 18.

Entry into force

This decree-law shall come into force on the day following that of its publication.

Seen and approved in Council of Ministers

The Prime Minister

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The Minister of State and the Internal Administration

The Minister of State and Foreign Affairs

The Minister of State and Finance

The Minister of Justice

The Minister of Public Works, Transport and Communications

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ANNEX

Main content of the survey report on accidents and incidents

(as referred to in Article 11 (1))

1. Summary

The summary should include:

a) A brief description of the occurrence, with indication of the date, place and

consequences;

b) The direct causes and the factors that contributed to the occurrence as well as the

underlying causes determined by the survey;

c) The main recommendations and the respective recipients.

2. Immediate factors related to the occurrence

2.1 Occurrence:

, Date, exact time and location of the occurrence

Description of the events and the site of the accident, including the efforts

of rescue and emergency services,

Decision to open an enquiry, composition of the investigation team and investigations

realization of the survey.

2.2 Circumstances of the occurrence:

, Personnel and contractors involved, as well as other parties and witnesses

Trains and their composition, including the registration number of the present

implicated rolling stock, description of the infrastructure and the system of

signalling-types of pathways, lane-changing appliances, landlines,

signs, protection of trains,

, Means of communication

, Works carried out on the site or in the immediate vicinity

Activation of the railway emergency plan and the respective chain of

events,

Activation of the emergency plan of public rescue services, from the opposition

police and medical services and their respective chain of events.

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2.3 Deaths and bodily damage and materials:

, Passengers and third parties, personnel, including contractor contractors

, Goods, baggage and other goods

.Current material, infrastructure and ambient environment

2.4 External circumstances:

.atmospheric conditions and geographical references

3. Register of surveys

3.1 Summary of testimonials (subject to the protection of the identity of persons):

, Railway personnel, including contractor contractors

.Other witnesses

3.2 Safety management system:

, Organative framework and way the orders are given and executed against

, Requirements applicable to staff and how to apply them

, Rotinas applicable to internal audits and controls and their results

.Interface between the various actors present in the infrastructure

3.3 Standards and regulations:

, Standards and applicable national and national regulations

, Other standards, particularly operating standards, local instructions

requirements applicable to personnel, maintenance requirements and standards

applicable.

3.4 Health of rolling stock and technical installations:

Signalling and control system and control, including registration from a

automatic data recording apparatus,

, Infra infrastructure

, Apparatus communications equipment

Rolling stock, including registration from apparatus for recording equipment

automatic data automatic.

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3.5 Documentation on the system of operation:

, Measures adopted by the personnel for control and signalling of traffic

Exchange of verbal messages related to the occurrence, including arising

documentation coming from the records,

, Measures taken for the protection and safeguarding of the site of the occurrence

3.6 Homem/math/organization interface:

, Working Hours of the involved staff

, Circumstances of medical and personal order with influence on the occurrence

including existence of physical or psychological stress,

.Conception of equipment with impact on human-machine interface

3.7 Previous occurrences of a similar character.

4. Analysis and conclusions

4.1 Final report of the chain of events:

. (Conclusions on the occurrence, on the basis of the facts ascertained in section 3.

4.2 Debate:

Analysis of the facts ascertained in section 3) with the aim of drawing conclusions

on the causes of the occurrence and the performance of rescue services.

4.3 Conclusions:

Direct and immediate causes of the occurrence, including the factors that for it

contributed related to actions of the people involved or the

conditions of the rolling stock or the technical installations,

Underlying causes related to competences, procedures and procedures

maintenance,

Root causes related to the conditions of the regulatory framework and circumstances

application of the safety management system.

4.4 Supplementary observations:

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-Deficiencies and gaps established during the inquiry, but with no importance to

the findings on the causes.

5. Measures adopted

-Registration of the measures already taken or adopted as a result of the occurrence.

6. Recommendations