Under the special conditions we are experiencing – health crisis and state of emergency – the Government has recently decided to amend the Criminal Code by emergency ordinance, in order to criminalize previously qualified acts as contraventions.

Thus, the Emergency Ordinance no. 28 of 18 March 2020 for amending and completing Law no. 286/2009 on the Criminal Code was adopted by the Government in the meeting last week and was published on Friday, 20 March 2020, in the Official Journal no. 228/2020.

In view of the evolution of the epidemiological situation at national and international level determined by the spread of the new coronavirus SARS-CoV-2, as well as the declaration of the pandemic by the World Health Organization, on 11.03.2020, the Romanian Government reacted criminally, preferring to ignore the results of the 2019 referendum and urgently amend the Criminal Code.

The rationale seems to be that since the beginning of this month, an increasing number of people have not stated that they come from areas affected by the new epidemic or that they are infected with coronavirus and / or break the rules regarding self-isolation or quarantine. Thus, the lack of urgent measures to limit the SARS-CoV-2 coronavirus infection would undermine some basic rights of citizens, such as the right to life and the right to health.

These facts are particularly serious in the context of a pandemic. Moreover, according to scientific studies conducted by the World Health Organization, a patient diagnosed with SARS-CoV-2 can infect another 1.4 – 2.5 persons, in the case of human transmission. an interval of 4.4 – 7.5 days between the onset of symptomatology in the first person and the onset in the infected person.

More and more drastic measures are being taken across Europe to try to prevent the spread of SARS-CoV-2 coronavirus. For example, in France the minimum fine for violation of the new restrictions is 135 euros. If a French citizen commits an offense within the next 15 days, a fine of 1,500 euros will be chosen. In case of committing four offenses within 30 days the fine will amount to 3,700 euros or, in the worst case, the French citizen will be sentenced to 6 months in prison. As a measure to limit the spread of the coronavirus pandemic, Germany has partially closed its borders with Denmark, France, Luxembourg, Austria and Switzerland. And British Prime Minister Boris Johnson has announced increased protection measures, inviting his fellow citizens to work from home, if possible. In Switzerland, the country that decreed the state of emergency, also closed restaurants and bars until April 19. Spain and Portugal have decided, in turn, to suspend all cross-border train or plane travel by April 15.

In Romania, the Romanian authorities consider that an intervention is required including in the legislative plan of the criminal law, by increasing, on one hand, the penalties for the already incriminated acts, but also by incriminating new acts such as the non-observance of the hospitalization or quarantine provisions, respectively the distinct incrimination and harsh sanction of those who, by their deeds, cause the infection of other persons, seriously affecting the health or causing the death of one or more persons.

Thus, article 326 of the Criminal Code has been amended and now has the following content:

Art. 326. False statements

(1) Inappropriate declaration of the truth, made to a person from the ones provided in art. 175 or to a unit in which it operates in order to produce a legal consequence, for itself or for another, when, according to the law or the circumstances, the declaration made serves to produce that consequence, is punished by imprisonment from 6 months to 2 years or with a fine.

(2) The deed mentioned in paragraph (1), committed to conceal the existence of a risk regarding the infection with an infectious contagious disease, shall be punished with imprisonment from one to 5 years or with a fine.

Thus, persons who give untrue statements or who ignore the truth statement, in the context of completing a statement according to art. 326 paragraph (1) of the Penal Code, in connection with the infection with CODVID-19, risk to be punished more severely.

The modification of the crime of false statements represents a major point of interest in the context of the issue of the Military Ordinance no. 3/2020, which provides that both in the case of trips in the professional interest and in the case of the trips in the personal interest it is necessary to complete a declaration on your own responsibility. This must necessarily include personal data: name, first name, date of birth, address of the place where the person actually lives, whether or not it is identical to the one mentioned in the identity document, the place (s) of travel and the reason for moving, according to the model statement issued by the Government of Romania updated on 26.03.2020. In contrast, the failure to hold a declaration on its own responsibility constitutes a contravention and is sanctioned with a contravention fine from 100 lei to 5,000 lei.

In the same context and by the same normative act, the art. 352 from the Criminal Code was modified and currently has the following content:

Art. 352. Dismissal of disease control

(1) Failure to comply with the quarantine or hospitalization measures ordered to prevent or control infectious diseases shall be punished by imprisonment from 6 months to 3 years or with a fine.

(2) Failure to comply with the measures regarding the prevention or control of infectious diseases, if the act has resulted in the spread of infectious diseases, if the act has resulted in the spread of such disease, shall be punished with imprisonment from one to 5 years.

(3) The transmission, by any means, of an infectious contagious disease by a person who knows that he suffers from this disease shall be punished with imprisonment from 2 to 7 years and the prohibition of the exercise of some rights.

(4) If the deed provided in par. (2) is guilty, the punishment is imprisonment from 6 months to 3 years or the fine.

(5) If by the facts provided in par. (1) and para. (2) the personal injury of one or more persons occurred, the punishment is the imprisonment from 2 to 7 years and the prohibition of the exercise of some rights.

(6) If by the facts provided in par. (1) and para. (2) the death of one or more persons occurred, the punishment is the imprisonment of 5 to 12 years and the prohibition of the exercise of certain rights.

(7) If by the deed provided in par. (3) the bodily injury of one or more persons occurred, the punishment is the imprisonment of 3 to 10 years and the prohibition of the exercise of some rights, and if the death of one or more 3 persons took place, the punishment is the imprisonment from 7 to 15 years and prohibiting the exercise of certain rights.

(8) If by the deed provided in par. (4) the bodily injury of one or more persons occurred, the punishment is the imprisonment of one to 5 years and the prohibition of the exercise of rights, and if the death of one or more persons occurred, the punishment is the imprisonment of 2 to 7 years and prohibition of the exercise of rights.

(9) Attempt to the offense provided in par. (3) shall be punished.

(10) Quarantine means the restriction of activities and the separation from other persons, in specially designed spaces, of the sick or suspicious persons, in a way that prevents the possible spread of the infection or contamination.

In translation, the first paragraph of the incrimination rule establishes that the non-observance of any quarantine or regulated hospitalization measure, by any person, regardless of whether it has caused the consequences or not, will be punished by imprisonment or fine.

Paragraph two was amended only regarding the tightening of the sanctioning treatment, without providing for the penalty of the criminal fine.

In the version provided in the next paragraph, the person who knows that he is infected with COVID-19 is severely punished if he infects another person with good knowledge. This aggravated form which presupposes the existence of the intentional element must be proved by the criminal investigation bodies in order to be retained. At the same time, it is the only variant of the crime that has sanctioned the attempt. Attempt, according to art. 32 of the Penal Code consists in the execution of the intention to commit a crime, an execution that was interrupted or did not produce its effect.

Paragraph four sanctions the non-compliance with the measures regarding the prevention or control of infectious contagious diseases. Guilt is the form of guilt that sanctions the deed of the one who foresees the result of his deed, but does not accept it, considering that it will not occur or the deed of the one who does not foresee the result of his deed, though he should and could have foreseen it.

If the acts provided for in the first two paragraphs are followed by personal injury caused to one or more persons, the punishment will be deprivation of liberty between 2 and 7 years, together with the complete punishment of the prohibition of the exercise of rights. Personal injury is the crime that sanctions the unreasonable consequences of the injuries and other violence, namely: infirmity, traumatic injuries that required more than 90 days of medical care, serious and permanent cosmetic damage, abortion and endangering the life of a people.

Following the recent changes made by emergency ordinance, after article 352 a new article is introduced, art. 352¹ Criminal Code, with the following content:

Article 352¹. Failure to disclose information

The omission of the person to disclose to medical professionals or to other persons among those provided in art. 175 or to a unit in which they carry out essential information regarding the possibility of contacting an infected person with an infectious disease is punishable by imprisonment from 6 months to 3 years or with a fine.

Therefore, when citizens find out that a known person is declared infected with a contagious disease, they must make a retrospective raid and check if they have come into contact with it lately, and if they have done so they have the duty to declare this to the medical professionals or to any public officials, or to the unit in which they operate. Otherwise, they risk being sentenced to up tp 3 years in prison to which an additional up to 2 years can be added, according to the sanctioning regime applicable during the state of emergency.

We allow to draw attention to the fact that the modification of the Criminal Code by emergency ordinance, during the state of emergency, represents a dangerous precedent, since we are not talking about limited provisions in time as application, but about valid provisions and after the cessation of the state of emergency.

According to the rules regarding the application of the criminal law in time, the tightening of the penalties brought by the modification of the Criminal Code will not apply to the persons already investigated for trying to avoid quarantine and isolation. They will apply the legal provisions in force at the time of committing the deed. Therefore, the new amendments in the field of criminal law will apply to citizens who, after the publication of the Emergency Ordinance no. 28 of March 18 in the Official Journal will refuse to comply with the mandatory legal provisions.

Finally, we will point out that according to the Criminal Code, any crime, whether it is included in the Penal Code or in another law, committed during the state of emergency can be punished in aggravated regime, which means that: at the penalty provided by law for the respective offense will be able to add up to 2 years imprisonment.

According to art. 77 lit. g) from the Criminal Code, the commission of the crime by a person who took advantage of the situation caused by a calamity, the state of siege or the state of emergency constitutes a general aggravating circumstance. The sanctioning treatment provided by art. 78 of the Criminal Code, namely: a penalty up to a special maximum may be applied, which, if considered unintentional, in the case of imprisonment, an increase of up to 2 years may be added, which may not exceed one third of this maximum , and in the case of a fine, a maximum of one third of the special maximum may be applied.

An example can be edifying in this regard: in the case of the offense of defeating the above mentioned diseases committed in the variant par. (7) last sentence: the transmission, by any means, of an infectious contagious disease by a person who knows that he suffers from this disease, if the death of a person has occurred, is punished with a maximum of 17 years imprisonment (15 years imprisonment in the form basic, to which is added the 2-year increase in retention of aggravating circumstance).

Therefore, according to the Legislative Guide regarding the penalties applicable to offenses committed during the state of emergency, available online at http://legislatie.just.ro/, there is a total lack of tolerance towards the commission of crimes that could accentuate the health crisis. As a result, the final motto is: “Follow the law or you will feel the law”.

This material was prepared for the website of Costaș, Negru & Asociații by Ms. Diana Ioana Badiu.