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Is there a risk for companies to be exposed to criminal investigations for non-complying with the measures implemented by the authorities?
Following the accelerated spread of COVID-19, the President of Romania declared the state of emergency for a period of 30 days as of 16 March 2020, which was afterwards extended until 15 may. The regulation enforced compliance with the measures taken by the authorities to prevent and stop the spread of COVID-19, which immediately led to the opening of more than 200 criminal investigations by the national criminal investigation bodies. Our article warns about how non-compliance with the measures implemented by the authorities may affect the companies from a criminal law perspective.
Following the accelerated spread of COVID-19, the President of Romania declared the state of emergency for a period of 30 days as of 16 March 2020. According to the latest press statements this will most likely be extended by an additional thirty days term.
One of the first measures announced by the Romanian prime minister was the tightening of the criminal laws regarding the offenses of spreading the infectious diseases. The purpose of adopting the new regulation was to enforce compliance with the measures taken by the authorities to prevent and stop the spread of COVID-19.
In recent weeks the national criminal investigation bodies have announced the opening of more than 200 criminal investigations.
The main crime pursued is the Preventing the fighting of diseases that incriminates the failure to comply with the measures taken for the prevention and combating of infectious and contagious diseases, if this resulted in the spreading of the disease.
Pursuant to Article 135 of the Criminal Code, the legal entities shall have criminal liability for offenses committed in relation to the performance of their object of activity or in their interest or their behalf. The criminal liability of legal entities does not exclude the criminal liability of the individual(s) participating in the commission of the same offense.
Which are the implications for companies who do not comply with obligations established by the authorities?
Although the main legislative changes concern the facts committed by natural persons who, for example, do not comply with the quarantine or isolation measures, the offense provided in Article 352 par. (2) of the Criminal Code also incriminates the acts committed by legal entities that do not comply with the obligations established by the authorities.
For a company to be liable, the following conditions must be met:
1. The failure to comply with a pre-existing obligation or with measures ordered by public authorities in order to prevent or combat spreading of Coronavirus (such as the obligation of all companies to provide all the materials intended for personal hygiene, to disinfect frequently door locks and other exposed areas, like conference tables). The mandatory measures ordered by the authorities are established by the military ordinances or the emergency ordinances of the government . So far, the Ministry of Labor has issued a series of recommendations but not all of them mandatory for companies. The breach of the recommendations cannot trigger the criminal liability of legal entities;
2. the breach of measures results in the infection of at least one person with COVID -19 virus.
The penalties applicable to legal entities breach the criminal law provisions include fines and other ancillary measures such as: the suspension of the activity or of one of the activities performed by the legal entity for a term between three months and three years or the closure of working points of the legal entity for a term between three months and three years or in worse case scenarios even the winding-up of the legal entities.
If a legal entity is held liable for Preventing the fighting of diseases as indicated in Article 352 par. (2) of the Criminal Code, the court can sentence the legal entity to a fine of up to 300,000 euros.
In case the preventing of fighting of diseases offence is committed involuntary, the fine can be established to a maximum of approx. 185,000 euros.
Also, the companies can be held liable for the offences regarding labor health and safety rules, such as the Failure to take labor health and safety measures if an employee is infected with COVID-19 following non-compliance with the labor protection measures. For instance if a company does not comply with the measures imposed by the authorities regarding the avoidance of the spread of COVID-19 and as a result of these non-compliance a client of the company is infected with COVID-19, the company will be criminally liable for the crime of preventing the fighting of diseases. If this non-compliance has the consequence of creating an imminent danger for infecting the company’s employees with COVID-19 during the course of their professional activity, the company will be criminally liable also for the offense of Failure to take labor health and safety measures.
In order to avoid criminal investigations regarding this matter, the companies should develop a contingency and business continuity plan for an outbreak in the communities where their business operates, taking into consideration the guidance published by the World Health Organization.
Companies need to remain alerted and take note of and effectively implement the measures decided by the public authorities on an almost daily basis.