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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Read the untranslated law here: http://app.parlamento.pt/webutils/docs/doc.pdf?path=6148523063446f764c3246795a5868774d546f334e7a67774c336470626d6c7561574e7059585270646d467a4c316776644756346447397a4c334277624445794f4331594c6d527659773d3d&fich=ppl128-X.doc&Inline=false

1 PROPOSAL of law No. 128/X justification taking into account the development of the legal framework of the rail sector at Community level, it has become clear that given the train accidents should, in the interests of safety, be subject to investigation for investigation of its causes and thus prevent your repetition, and should the results be made public. Other accidents and incidents can be important precursors to serious accidents and should also be investigated on the safety, whenever necessary. The safety investigation should be kept separate from the judicial inquiry on the same accident or incident and have access to evidence and witnesses. Must be carried out by a permanent body, independent of other actors in the rail sector and to work to avoid any conflicts of interest and any possible involvement in the causes of the occurrences investigated, and its investigations be carried out with the greatest possible transparency. The commonly known as the ' railway package II ', integrates a set of directives, including the Directive 2004/49/EC of the European Parliament and of the Council of 29 April 2004 on the safety of the community's railways, which includes provisions relating to matters of investigation of railway accidents and incidents, requiring them to be regulated in particular, the skills and methodologies to be applied by the body responsible for investigating rail accidents and incidents – the Office of security and Investigation of Railway Accidents. However, given that the competencies to assign the responsibility for the technical research GISAF could be liable to interfere with individual rights, freedoms and guarantees, and given the provisions of paragraph d) of paragraph 1 of article 165 of the Constitution of the Portuguese Republic, understand the Government be required to obtain Parliament's authorization to legislate on these matters.

So: 2 pursuant to d) of paragraph 1 of article 197 of the Constitution, the Government presents to the Assembly of the Republic the following proposal of law: Article 1 subject-matter is granted the Government permission to legislate on the prevention and investigation of railway accidents and incidents, to the extent that the jurisdiction to assign the responsibility for its technical investigation of the Office of security and Investigation of Railway Accidents (GISAF) are likely to interfere with the exercise of individual rights, freedoms and guarantees.

Article 2 the present legislative authorization visa, in the context of transposition of Directive No. 2004/49/EC of the European Parliament and of the Council of 29 April 2004 on the safety of the community's railways, confer upon the responsible for technical investigations as referred to in the previous article, powers that allow such investigations, without prejudice to any criminal investigation, arising with the speed and effectiveness of results necessary for the detection of causes of accidents or incidents and prevention your rail future, with a view to the prevention of accidents.

Article 3 extension Ordinance to be approved under this legislative authorization will define the following competencies of researchers responsible for the technical investigation of the GISAF: the immediate lifting of) evidence and controlled collection of debris, or components for examination or analysis purposes unless otherwise judicial authority; 3 (b)) to investigate all the circumstances in which the accident or incident, including those that may not be directly related, but I understand they are of particular importance for the safety of the route; c) ask the competent judicial authority the forensics reports of crew members who have died in the crash or died later as a result of this, as well as the examinations and the results of sampling carried out on people involved in the operation of the rolling stock and the bodies of victims; d) order the blood alcohol testing or drug screening on people involved in the accident, and the refusal of qualified disobedience a crime under the criminal law; e) Request to the judicial authorities or police identification of witnesses heard by those; f) Transmit to the judicial authorities elements which are requested; g) Request to the judicial authorities or police, without prejudice of the judicial research, conservation, custody and surveillance and debris, and the authorisation to carry out as soon as possible the examinations and studies necessary for persons and materials of any kind, related to the accident; h) Hear testimonials of people involved and witnesses of accidents or incidents, and may notify them in writing to attend, under penalty of disobedience, in case of no-show. I) Access, in the exercise of its powers, as soon as possible:-The site of the accident or incident as well as to the rolling stock involved, the infrastructure and traffic control installations and signalling;
-A listing of evidence and controlled removal of wreckage, infrastructure installations or components for examination or analysis purposes;
-The contents of the recorders and equipment for recording of verbal messages and the operation of the signalling system and traffic control, providing for the possibility of the use of such content;
-The results of examination of the bodies of victims; 4-the results of the tests carried out to staff and other railway staff involved in the accident or incident.

Article 4 term legislative authorization granted by this law lasts for 120 days.

Seen and approved by the Council of Ministers of 15 March 2007 the Prime Minister the Minister of Parliamentary Affairs Minister Presidency 5


Rail accidents can have disastrous consequences and raise concerns from the public, with regard to the performance and the safety of the rail system. Consequently, all these accidents should, in the interests of safety, be subject to investigation for investigation of its causes and thus prevent your repetition and its results be made public. Other accidents and incidents can be important precursors to serious accidents and should also be investigated on the safety, whenever necessary. The safety investigation should be kept separate from the judicial inquiry on the same accident or incident and have access to evidence and witnesses. Must be carried out by a permanent body, independent of actors in the rail sector and to work to avoid any conflicts of interest and any possible involvement in the causes of the occurrences investigated. In particular, your functional independence should not be affected, even if you are associated to a national security authority or a national regulatory entity of railways for organisational and legal structure purposes. Its investigations should be carried out with the greatest possible transparency. For each occurrence the investigation body should develop the procedures necessary to meet the immediate and underlying causes of the accident/incident. The investigation reports, findings and recommendations provide crucial information for the future improvement of railway safety must be made available to the public at Community level and the safety recommendations should be met by the recipients. The commonly known as the ' railway package II ', integrates a set of Community directives transposed into the internal legal order by decree-laws No. _ _ _/_ _ _, _ _ _, _ _ _/_ _ _, of _ _ _, and _ _ _/_ _ _, _ _ _. The aforementioned Decree-Law No. ____/____, carried out the partial transpose Directive 2004/49/EC of the European Parliament and of the Council of 29 April 2004 on the safety of the community's railways, leaving for a later time specifying the skills and methodologies in the promotion of surveys and research on rail accidents and incidents. Thus, the Government believes that the actions to be taken in this context are fundamental and necessary for the establishment of a framework for prevention and safety on railway network and therefore, it is important to proceed with the implementation of the remaining part of the 6 that Directive No. 2004/49/EC, in particular with regard to skills and methodologies to be applied by the body responsible for investigating rail accidents and incidents , consecrating the principle of your independence in relation to other actors in the rail sector, in particular railway regulatory entities, entities responsible for safety, operators and managers of the railway infrastructure.

So: the use of legislative authorization granted by law no _ _ _/_ _ _ _ _ _, and in accordance with point (b)) of paragraph 1 of article 198 of the Constitution, the Government decrees the following: Article 1 subject-matter this decree-law transposing partially to the internal legal order the Directive 2004/49/EC of the European Parliament and of the Council of 29 April 2004 concerning the safety of the community's railways and amending Council Directive 95/18/EC on the allocation of railway infrastructure capacity, the levying of charges for the use of railway infrastructure and safety certification (railway safety directive).

Article 2 Definitions 1-for the purposes of this Decree-Law: (a)) ' responsible for investigation ', the person responsible for the organisation, conduct and control of an investigation; b) ' Accident ' means a sudden, unwanted or involuntary event, or a chain of events of this nature with harmful consequences; c) ' serious accident ' means any rail under collision or derailment of trains has therefore, at least one dead, or five or more serious injuries or significant damage in the rolling stock, the infrastructure or the environment, and any other similar accident with manifest impact on railway safety regulation or the management of safety; 7 d) ' significant damage ' means damage whose cost can be immediately evaluated by the body responsible for the investigation of at least EUR 2 million; e) ' Incident ' means any occurrence, other than accident or serious accident, associated with the railway and exploitation affecting the safety of operation; f) ' Investigation ' means a process conducted for the prevention of accidents and incidents, which includes the gathering and analysis of information, the extraction of conclusions, including the determination of causes and, when appropriate, formulate recommendations on safety; g) ' Causes ' means actions, omissions, events or conditions, or your combination, which led to the accident or incident; h) ' agency ' means the European Railway Agency, the Community Agency for railway safety and interoperability of the railways. 2-for the purposes of paragraph 1 (b)) and c) of the preceding paragraph, the accidents are divided into the following categories: a) Collisions; b) Derailments; c) accidents at level crossings; d) accidents involving persons caused by rolling stock in motion; and) fires and f) others.

Article 3 scope of application 1-this decree-law applies to the technical investigation of railway accidents and incidents occurring in the national territory, whose competence is, pursuant to Decree-Law No. _ _ _ _ _ _ _ _ _, _ _ _ _ _ _ _ _ _, of the Office of Security and investigation of Railway Accidents, hereinafter referred to as GISAF. 2-When it is not possible to determine in which Member State the accident or incident, or even occur in a facility situated at the border or the border fits the GISAF, in conjunction with the investigation agencies involved, determine which of them will lead the investigation, or if the same will be carried out in cooperation. 8 3-in the cases referred to in the preceding paragraph, when the direction of research is committed to GISAF have this duty to participate in research and share their results. 4-When occurring in the national territory accidents or incidents involving companies established or licensed in other Member States, should the GISAF invite the competent bodies of the Member States to participate in the investigation.


Article 4 obligation to perform research 1-Any major accident occurred in the rail system covered by article 3 shall be the subject of a technical research with the aim of increasing rail safety and prevent accidents. 2-in addition to the major accidents, the GISAF can investigate accidents and incidents that, in different circumstances, could have led to serious accidents, including technical failures of the structural subsystems or of interoperability constituents of the trans-European high-speed rail systems or conventional. 3-it is up to the GISAF decide on the holding of an inquiry the accident or incident referred to in the preceding paragraph, and should be taken into account in your decision: a) the seriousness of the accident or incident; b) If the occurrence is part of a series of accidents or incidents relevant to the system in your whole; c) the impact of the accident or incident in rail safety at Community level; d) requests from infrastructure managers, railway undertakings or of mobility and land transport, I. P., hereinafter referred to as DMV. 4-technical research referred to in paragraphs 1 and 2 should be conducted independently of other items that may be promoted by several entities, not aiming the establishment of guilt or liability.

9 Article 5 1-Research Commission for the investigation of accidents and incidents, the director of the GISAF means an investigator in charge of the investigation. 2-the director of the GISAF can, if such becomes necessary, and on a proposal of the ILC, designate technical investigators, constituting a Committee of inquiry, under the guidance of the ILC. 3-the ILC, in the performance of their duties, can establish contacts that become necessary with any authority and its agents, as well as Exchange information and receive the collaboration of agencies and public or private entities, whatever your nationality. 4-In case of impediment of the ILC appointed, or in exceptional cases where the effectiveness of the investigation justifies it, can the director of GISAF appoint another investigator responsible for your replacement.

Article 6 powers of the ILC 1-the investigator responsible shall: a) Determine the actions necessary to research technique; b) communicate to the competent judicial authority the occurrence of the accident; c) ensure that the technical investigation is conducted in accordance with the standards and recommended practices by the European Commission and the European Railway Agency established by Regulation No 881/2004, of 29 April, the European Parliament and of the Council establishing the European Railway Agency; d) Make immediate lifting of clues and collect debris controlled or components for examination or analysis purposes unless otherwise judicial authority; and) Investigate all the circumstances in which the accident or incident, including those that may not be directly related, but I understand they are of particular importance for the safety of the route; f) Propose to the director of GISAF collaboration with foreign research organisations of accidents or other specialized agencies; 10 g) Requesting the competent judicial authority the forensics reports of crew members who have died in the crash or died later as a result of this, as well as the examinations and the results of sampling carried out on people involved in the operation of the rolling stock and the bodies of victims; h) shall be the alcohol tests or drug screening on people involved in the accident, and the refusal of qualified disobedience a crime under the criminal law; I) Request to the judicial authorities or police identification of witnesses heard by those; j) Request to the authorities and civil protection officers monitoring the operations as collateral security of persons and property; l) Transmit to the judicial authorities elements which are requested; m) Request to the Institute of meteorology the preparation of status report and weather weather information available at the time of the accident or incident; n) ask the DMV all information that it has on infrastructure, personnel, material, operators and rail procedures with interest to the investigation, including those relating to certificates and licenses, as well as any relevant railway information; the) Request to the judicial authorities or police, without prejudice of the judicial research, conservation, custody and surveillance and debris, and the authorisation to carry out as soon as possible the examinations and studies necessary for persons and materials of any kind, related to the accident; p) Hear testimonials of people involved and witnesses of accidents or incidents, and may notify them in writing to attend, under penalty of disobedience, in case of no-show unjustified; q) request the infrastructure manager and the railway undertaking reports on the State of infrastructure and of rolling stock, respectively, whose information is considered relevant for the purposes of the investigation. 2-The entities referred to in the preceding paragraph shall provide the investigator in charge of the information referred to. 11 3-If the investigator responsible to find, in the course of the technical investigation, evidence of criminal offence punishable, it must proceed to your complaint immediately.

Article 7 right of access


1-in the exercise of its powers, the investigator in charge must be provided as soon as possible: to) access to accident or incident as well as rolling stock involved, the infrastructure and traffic control installations and signalling; (b)) the right to receive an immediate listing of evidence and controlled removal of wreckage of the facilities or infrastructure components for examination or analysis purposes; c) Access and use the contents of the recorders and equipment for recording of verbal messages and the operation of the signalling system and traffic control; d) access to the results of examination of the bodies of victims; and) access to the results of the tests carried out to staff and other railway staff involved in the accident or incident; f) opportunity to question the railway staff involved and other witnesses; g) access to any relevant information or registration held by the infrastructure manager, the railway undertakings involved and the safety authority; h) access the occurrence reports drawn up by bodies of firefighters or other protective agents and help. 2-the investigator responsible, local access and facilities relevant to the exercise of its powers, must be properly identified through photo card or other appropriate credential.

12 article 8 Notification of the accident or incident 1-Are all notifiable accidents and incidents recorded in the Portuguese territory, comprising: a) serious accidents within; b) accidents at level crossings; c) Occurrences involving trains carrying dangerous goods; d) cases that fall in a series of accidents or incidents relevant to the railway system in your all. 2-the obligation of notification of the accident or incident for the railway undertaking, infrastructure manager and railway to the DMV. 3-the notification of accidents, as well as accidents or incidents of the types referred to in paragraph 1 (b)) d) of paragraph 1, shall be made to GISAF within 6 hours after your occurrence and the remainder within 48 hours; 4-police and military authorities should notify the GISAF accidents and incidents to occur or have occurred that have occurred under your jurisdiction. 5-the crew or, in your unavailability, the rail operator involved in the accident or incident, shall draw up a report, containing the facts, conditions and circumstances related to the accident or incident. 6-in case of physical or mental incapacitation, the personnel must make your statement as soon as their physical or mental condition allows.

Article 9 confidentiality Duty 1-GISAF may not disclose the documents contained in the technical research process, unless the competent judicial authority, to your request. 2-these documents are listed in the final report only when they are necessary to the analysis of the accident or incident. 3-the parts of the documents that are not relevant to the analysis are not disclosed. 13 4-the ILC and technical researchers, in particular, and, more generally, all staff of GISAF are, in case of the existence of parallel criminal proceedings, subject to the secrecy of Justice with respect to all the facts that have come to your knowledge by virtue of collaboration with the judicial authority, without prejudice to include such facts as they have to prepare reports and to disseminate these reports.

Article 10 conduct of investigation 1-During the investigation, and in so far as this does not disturb the normal development, the GISAF should keep informed all interested parties. 2-before the preparation of the report referred to in the following article is held the prior hearing of the parties concerned, which must be included in the final report.

Article 11 reports and 1 communications-the ILC should prepare reports whose form depends on the type or severity of the accident or incident, where included in the objectives of the investigation and, where appropriate, safety recommendations, and should follow the structure set out in the annex to this decree-law and which is an integral part. 2-it is the researcher responsible for drawing up the final report, in accordance with the practices and standards contained in the annex referred to in the preceding paragraph. 3-the report shall protect the anonymity of those involved in the accident or incident. 4-it is the director of GISAF approve the report, give it to the Member of the Government that depends on and subsequently promote your submission to the authorities and entities involved and the European Railway Agency, as well as all stakeholders who can benefit from their conclusions in terms of safety, without prejudice to article 9 14 5-the GISAF must publish the final report shortly after the end of all the steps necessary for the investigation, within a maximum period of 12 months from the date of the accident.

Article 12 1 safety recommendations-The safety recommendations must be communicated to the European Railway Agency and all interested parties that may benefit them. 2-A safety recommendation shall in no case, presumption of blame or liability for an accident or incident. 3-the national authorities who are the recommendations proposed in the final report shall inform the GISAF, within 30 days, of the measures taken or planned.

Article 13 reopening of the investigation in the case of new facts or evidence are relevant during the period of 10 years, after approval of the final report, the GISAF should reopen the investigation.

Article 14 protection of documentation the documentation concerning the preserved GISAF technical research for a period of 10 years, counted from the date of approval of the final report or, if there is a reopening of the investigation, from the date of approval of the report due to the reopening.

Article 15 liability for costs with the technical examinations


1-the costs of technical examinations which become necessary in the investigation are the responsibility of the infrastructure manager or from the operator, depending on the nature of the technical expertise required. 15 2-When the GISAF, for the sake of progress in the investigation, have to assume the payment of the costs referred to in the preceding paragraph, it is repaid by the infrastructure manager or the operator, as the case may be, of the sums paid. 3-the infrastructure manager or the operator, as the case may be, shall be notified by the GISAF to make the refund referred to in the preceding paragraph within 90 days from the date of notification.

Article 16 administrative offences 1-the violation of the provisions of paragraphs 1, 2 and 3 of article 8, constitutes a misdemeanour punishable by a fine of € 1000.00 to € 3750.00, when applying a natural person, and € 2500.00 to € 15000.00, when applying the legal person. 2-in the case of an incident that is qualified as serious, in accordance with paragraph 2 of article 4 of this decree-law, the limits referred to in the preceding paragraph are halved. 3-the attempt and negligence is punishable, and the limits of the fines referred to in the preceding paragraphs halved.

Article 17 Jurisdiction 1-the processing of the GISAF offences and fines to your director. 2-revenue from fines accrue in 40% to GISAF and the rest to the State.

Article 18 entry into force this law shall enter into force on the day following your publication. Seen and approved by the Council of Ministers Prime Minister 16 State and Minister of Internal Affairs and State Minister for Foreign Affairs the Minister of State and finance the Minister of justice the Minister of public works, transport and communications 17 ANNEX main Content of report of investigation of accidents and incidents (referred to in paragraph 1 of article 11) 1. Abstract the abstract must include: a) A short description of the occurrence, with indication of the date, place and consequences; b) direct causes and factors contributing to occurrence as well as the underlying causes established by the investigation; (c)) the main recommendations and their recipients.

2. immediate Facts related to the occurrence: 2.1, Date, exact time and location of the occurrence ـ Description of events and the accident site including the efforts of rescue services and ـ emergency decision to open an investigation, team composition and ـ investigation investigation.

2.2 circumstances of occurrence:, staff and contractors involved and other parties and witnesses ـ Trains and their composition including the registration number of the ـ rolling stock involved, description of the infrastructure and signalling system-track types, turnouts, interlocking, signals, train protection, media, Works carried out on site ـ or nearby ـ activation of the railway emergency plan and its chain of events ـ , Activation of the emergency plan of the public rescue services, the police and ـ medical services and its chain of events.

18 2.3 Deaths and bodily harm and materials:, Passengers and third parties, staff, including contractors, Goods, luggage ـ and other goods ـ. Rolling stock, infrastructure and the environment 2.4 ـ external circumstances:. Weather conditions and geographical references ـ 3. Registration of surveys 3.1 Summary of testimonies (subject to the protection of identity of the persons):, railway staff, including contractors ـ. Other witnesses ـ 3.2: security management system, organizational Framework and how orders are given and carried out, requirements for the personal ـ and apply ـ, applicable Routines and controls internal audits and their results ـ. Interface between different actors present in ـ 3.3 infrastructure: standards and regulations, community and national rules and regulations applicable to other standards, notably ـ, operating rules, local instructions, staff requirements ـ, maintenance prescriptions and applicable standards.

3.4 operation of rolling stock and technical installations: signaling and system of command and control, including registration from automatic recorders ـ data, infrastructure ـ ـ communications equipment, rolling stock, including registration from automatic ـ recorders data.

19 3.5 operating system documentation: measures taken by the staff for traffic control and signalling ـ exchange of verbal messages in connection with the occurrence, including documentation from recordings, ـ, measures taken to protect and safeguard the site of the occurrence ـ 3.6 MMI/organization: staff working time involved ـ, order medical and personal Circumstances with influence on the occurrence, including existence of ـ physical or psychological tension , . Design of equipment with impact on man-machine interface ـ 3.7 previous Instances of similar nature.

4. analysis and conclusions 4.1 final report of the chain of events:. (Conclusions on the occurrence, based on the facts established in point 4.2 ـ Debate 3: analysis of the facts established in item 3) with the aim of drawing conclusions about the causes of ـ occurrence and the performance of the rescue services.

4.3 Findings: direct and immediate Causes of the occurrence including contributory factors to it-related stocks contributed ـ persons involved or the condition of rolling stock or technical installations, underlying causes relating to skills, procedures and maintenance ـ, root causes relating to the regulatory framework conditions and application of ـ safety management system.

4.4 additional Notes: 20-Deficiencies and shortcomings established during the investigation, but without relevance to the conclusions on causes.

5. Measures adopted-Record of measures already taken or adopted as a consequence of the occurrence.

6. recommendations