Romania: COVID-19: The new False Statements offence and how not to become a nation of criminals

Starting 23 March 2020, became applicable the measure imposed through the Military Ordinance no. 2/2020 on measures for preventing the spread of COVID – 19 according to which, between the hours 22:00 – 06:00, Romanian citizens may leave their houses only for:

• travel for professional interest, including from the domicile to the place(s) of professional activity and back;
• travel for the acquisition of goods that cover the basic needs of individuals and pets, as well as goods necessary for performing the professional activity;
• travel for medical care that cannot be delayed or provided remotely;
• travel for justified reasons, such as caring / accompanying the child, assisting elderly, sick or people with disabilities, or death of a family member;
• short trips, near the house / household, related to individual physical activity and pets needs.

Although initially the measure was just a recommendation as regards travels between 06:00 – 22:00 for the above reasons, the Military Ordinance no. 3/2020 (effective since 25 March 202), the restriction was extended for the entire day and a few new reasons were added:

• travel for blood donation to the blood transfusion centres;
• travel for humanitarian or voluntary purposes;
• travel for agricultural activities;
• travel of agricultural producers for the marketing of agri-food products.

At the same time, new restrictions were added for people who have reached the age of 65 who may now leave their houses – for some of the reasons shown – only between 11:00 and 13:00.

Both in case of travelling for professional interest, and in case of travelling for personal interest, it is necessary for the persons who are outside their houses to have a own liability statement in order to prove the reason for their travel.

The purpose of the own liability statement is to alert the declarant on the importance of its content, on the reality that this statement must express, especially considering the purpose for which the obligation of its drafting was established.

One of the elements included in the statement model made publicly available is the one according to which the person who drafts and signs it knows the provisions of art. 326 Criminal code (on false statements) and of art. 352 Criminal Code (on compromising the fight against diseases).

Since the latter offence has been intensely debated lately, we now draw attention to the false statements offence that can be easily committed under the current circumstances, especially given the lately reluctance of Romanians to follow the authorities recommendations meant for stopping the spread of COVID – 19 virus.

According to the legal text, the false statements offence consists in the false statement of the truth, made to a person among those provided in art. 175 or to a unit in which that person performs his/her activity in order to produce a legal consequence, for himself/herself or for another, when, according to the law or the circumstances, the statement serves to produce that consequence and is punished with imprisonment from 6 months to 2 years or with a criminal fine.

A few days ago, through the Government Emergency Ordinance 28/2020, the minimum limit of the imprisonment penalty for the basic form of the offence (which was previously of 3 months imprisonment) was increased and a new form of incrimination was introduced, which consists in the false statement of the truth, made to a person from the ones provided in art. 175 or to a unit in which that person performs his/her activity, committed to conceal the existence of a risk regarding the infection with an infectious contagious disease which is now punished with imprisonment from 1 to 5 years or a criminal fine.

If the aggravated form of the offence has been designed to hold responsible (and to sanction more severely) the persons who enter the territory of Romania and falsely state before the authorities regarding the areas they came from or they have transited and / or the persons who do not declare or declare falsely any coronavirus symptoms they have, the offense having in such cases an express purpose – hiding the existence of a risk regarding the infection with an infectious-contagious disease – the basic form of the offence will now be relevant for absolutely all Romanian citizens that may be held criminally responsible, who travel outside their house under the mentioned conditions.

Thus, the offence can be easily committed by any person who chooses to alter the truth contained in the own liability statement and presents it to the authorities competent to request it.

For example, in case a person leaves the house for a purpose other than those explicitly listed by law, but drafts a statement in which he/she uses one of those cases and presents it to the competent authority in order to justify the travel, that person commits the false statements offense.

Or, another way of committing the offence is by including in the content of the statement only one of the reasons provided by law, with the travel actually extends to other purposes provided by law or not, in the sense of partially altering the truth.

Incorrect statement of the truth regarding any of the other elements contained in the statement – like place where the declarant lives, hours or places between which the person travels – can also trigger criminal liability for the false statements offence , therefore committing it can take various forms.

The sanctioning of such a criminal act is justified, on the other hand, by the value protected through its incrimination – public trust – which represents the nucleus of social relations and the guarantee that everything will develop under predictable conditions.

What is also interesting is the sanction applicable in case a person travels outside the house without however presenting an own liability statement. In this respect, the Military Ordinance 2/2020 provides that breach of the first emergency measures provided in art. 1 -7 triggers disciplinary, civil, contraventional or criminal liability, as per the provisions of the Government Emergency Ordinance no. 1/1999 on the regime of the state of siege and the regime of the state of emergency. We note in this respect that, by corroborating art. 27, 28 and 9 of Government Emergency Ordinance no. 1/1999, the breach of the obligation to comply with and apply all the established measures specific to the established state of emergency represents a contravention and is sanctioned with the contraventional fine from RON 100 to RON 5,000. Therefore, if the false statement remains a criminal offence and is punished by imprisonment or criminal fine, the lack of the own liability statement is only sanctioned contraventionally.

Moreover, since the statement must have a written form (completed in advance), we cannot help wonder to what extent such statement can be drafted by people who do not know or cannot write (which in Romania nowadays is unfortunately not a rare case).

To conclude, although the own liability statement is apparently a simple instrument, it will be necessary to pay greater attention to its drafting, since by corroborating the multitude of specific ways of committing the false statements offence with the very large number of people who have the obligation to draft the own liability statement, one can easily reach an „epidemic” of criminal files at national level.

And we do not think that one more is needed. Solving and coping with the Covid 19 one should take us sufficient time, at least for now.