Topic: Online

If by 15 May 2020 the main rule was clear and quite sharp: ‘#STAYHOME’, as of 16 May, things are no longer so clear.

We know that we will no longer fill out an affidavit to go out for a run and we are also preparing our face masks’ and visors’ stocks to wear indoors, but it is not clear how we will return to the office, how office and business meetings will look like, how future transactions will be concluded and, briefly, how business and everyday life can be brought back to a point close to the one before the coronavirus pandemic.

Nevertheless, we believe that this grey area can be clarified with a set of measures which we anticipate to be very useful starting with day zero after the emergency state end.

1. Back to the office – measures for a safe transition from work from home to work from the office.

In this respect, several recommendation measures have already been developed at both national and European levels.

However, the practical measures to be taken into account by employers with regard to the employees’ return to the office should be customized according to the activity type and the internal organisation of each employer, including, among others:

• Repositioning of desks in such a way as to comply with the rules of social distancing.
• Where the office space or surface does not allow, it is recommended to develop a schedule for working in shifts at the office in order to avoid the presence of a large number of employees in a limited space at the same time. The schedule may be organised in hourly or weekly intervals, with the recommendation for the spaces to be thoroughly sanitized between the shifts of employees.
• The work from home measure could be removed gradually, depending on the evolution of the new coronavirus cases, with a regular increase in the presence of employees at the office from week to week.
• Providing employees with adequate means of protection: face masks, gloves, visors, disinfectant solutions.

2. Back on site – measures to restart the activity of employees who perform work on site

• The implementation by the employer of permanently functional call centre / video centre systems in order to attempt, in the first phase and to the extent possible, to remotely remedy / analyse the functioning of certain systems. The system could be similar to those of online medical consultations currently adopted by certain private medical networks.
• Regarding the employees for which going on site will prove to be necessary, it is mandatory for the employer to provide them with adequate means of protection: face masks, gloves, visors, disinfectant solutions.

3. Conclusion of transactions during post-coronavirus period

• It would be prudent for the transaction negotiations and business meetings to be kept, for a period, in the form of video conferences on online platforms.
• Regarding the conclusion of transactions and their signing before the public notary, a first remedy to minimize risks and human contact is for the parties to present themselves separately before the public notary, at pre-set times.
• In addition, for projects requiring long-term negotiations, documentation preparation or other preliminary steps, the parties could, in a first phase, conclude promises for the transfer of rights in rem (under private signature) instead of the actual transfer deeds, and the conclusion of the deeds under notarized form will take place at a subsequent stage.

4. Ongoing contractual relations

• If the state of emergency period was mainly focused on requests for postponing / suspension of contractual obligations, we anticipate that the post-coronavirus period will have a strong component represented by renegotiations and contractual adjustments based on exact figures and consequences, as the contractual partners will have a clear record of the business fluctuations during the state of emergency.
• We anticipate that the companies in the horeca field shall have a strong argument – they will have a well-founded negotiating point based on the financial statements from March – May period and will be able to guide the negotiations for the post-coronavirus period, when it is expected for the reactivation of business in this area to take place at a very slow pace.
• At the same time, however, regarding the companies that have had an intense activity during the state of emergency – e.g. courier companies, disinfectants’ producers, etc. – it is expected that any initiatives to renegotiate agreements will be more difficult in the absence of financial results reflecting significant decreases.

5. Cash vs card

• Romania does not hold a leading position in the number of card payments per capita, but certainly the coronavirus pandemic and all hygiene rules are now a much stronger argument in favour of using cards and opting for contactless payments.
• We anticipate an ascending trend in this area, thus requiring the alignment of all merchants, regardless of their field, with the card payment systems, as well as the permanent adjustment and refinement of online transaction and payment processing systems.

6. Free time

• Access to this kind of activities – e.g. cinema, theatre, concerts, sports competitions, etc. – will most likely not be granted in the next period, as the rules of social distancing will probably remain in force for a significant period of time. Most likely, this sector will also require the implementation of certain measures such as: maintaining empty seats between spectators, stricter measures to sanitize the halls and also having temperature-measuring devices, in order to limit, as much as possible, the risks of infection. Regarding the temperature measuring process, it should be noted that, in so far as the visitor’s first and last name are not processed/stored in any way in this process, the temperature values do not constitute by themselves personal data within the meaning of the GDPR (they represent anonymised data). Thus, even if we are talking about sensitive medical data, the latter cannot lead to the actual identification of the data subject, therefore such measure is in line with the provisions of data protection legislation.
• Insofar as outdoor sports competitions are concerned, we believe that they will be reactivated before those in enclosed spaces, but most likely in a different structure and with a limited number of people.

This pandemic will bring massive changes in business, consumer strategy and everyday life. But the right choices and the right set of measures will contribute to an easy and safe transition to the “new” normal, as well as avoiding, to a large extent, the inherent risks in the coronavirus pandemic.

Context

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.

Sanctions

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.

Recommendations

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.

Who is obliged to provide medical equipment? Can medical personnel refuse to provide health care? Is the resignation of medical personnel allowed during the pandemic period? These are the questions increasingly discussed during the pandemic.

The short answers to these questions would be:

• public health unit
• no, with some exceptions
• yes, with some observations

The public’s interest in these subjects is natural given the COVID-19 pandemic, as well as the fact that on 12 April 2020, 812 cases of infection with SARS-CoV-2 virus of the medical personnel were reported in Romania and several medical personnel submitted their resignations. One of the main causes of infection with the new SARS-CoV-2 virus within medical personnel is the lack of appropriate personal protection equipment.

Therefore, the natural questions that arise in this situation and which we will address are:

• what are the legal implications of the SARS-CoV-2 virus infection of the medical personnel?
• can medical personnel refuse to provide healthcare?
• can medical personnel resign during the state of emergency?

COVID – 19 – professional disease?

Most qualified doctors and all resident doctors carry out medical activities in the public health system and/or in the private system under an employment agreement[1]. This implies that, in their case, the provisions of the Labour Code and Law No. 319/2006 on occupational safety and health are applicable.

According to the Labour Code, the employee (in this case the medical personnel) is entitled to safety and health at work. Collaterally, the employer (in this case, the public health unit employing medical and health care personnel) is obliged to ensure the health of employees under all aspects related to the provided activities, including the obligation to ensure all employees in case of accidents at work and professional diseases[2].

One of the ways in which the employer fulfils this obligation is to provide individual protection equipment[3] and new personal protection equipment in the event of degradation or loss of protection
qualities. This obligation of health units is also stipulated in the Collective Labour Agreement[4], which establishes that protection equipment is provided compulsory by the employer in the quantity and quality necessary to ensure adequate healthcare. For example, the rule related to the equipping of SMURD staff[5] expressly establishes that items of special protection equipment are provided free of charge by the employer[6].

Moreover, to consider that the obligation of public health units has been fulfilled, the equipment must be suitable for the work particularly performed by medical personnel.

By the Order of the Ministry of Health No. 555/2020[7] the recommendations have been established for the use of personal protection equipment in the context of the COVID-19 pandemic, depending on the ward, type of personnel and type of activity. For example, the equipment of medical personnel performing aerosol-generating procedures for COVID-19 patients consists of standard or equivalent N95 or FFP2 mask, single-use robe over which apron/combination is placed, gloves, eye protection. Failure by the employer to observe this obligation may lead to an accident resulting in death or injury to the body of the employee who may take the form of a professional disease or accident at
work.

Professional disease means: the condition that occurs because of the exercise of a job or profession, caused by physical chemical or biological harmful agents characteristic of the workplace, as well as by the overuse of various organs or systems of the body, in the process of work (s.n.). Infection of a healthcare professional with SARS-CoV-2 virus in the workplace is a case of professional disease[8], which attracts the incidence of specific legal provisions.

As the employer is liable for damage caused to victims of accidents at work or professional diseases, to the extent to which the damage is not fully covered by the state social security benefits, the infection of a medical personnel with the SARS-CoV-2 virus as a result of the provision of professional activity under improper conditions (e.g. without adequate personal protection equipment), entails the pecuniary liability of the public health unit for damage caused by professional disease (e.g. hospital expenses, compensation for temporary incapacity for work, covering the costs of treatment).

Can medical personnel refuse to provide healthcare?

Another issue addressed during this period is whether medical personnel can or cannot refuse to provide healthcare.

According to the legal provisions[9], the doctor or nurse is obliged to provide medical care/healthcare to a person if they have accepted them as a patient in advance. The doctor, nurse/midwife, employees of an institution providing medical services, are obliged to provide medical assistance to the patient who has the right to receive medical assistance within the institution, in accordance with the legal regulations.

The relationship between the patient and the doctor can be interrupted only in the following situations:

1. the moment the disease is cured;
2. by the patient;
3. by the doctor in the following situations:
   • when the patient is sent to another doctor, providing all the medical data obtained, which justifies the assistance of another doctor with increased competence;
   • the patient manifests a hostile and/or irreverent attitude towards the

Therefore, the doctor or nurse cannot refuse to provide medical care to patients suspected or infected with the SARS-CoV-2 virus on the grounds that there is a risk of infection.

The obligation to provide medical assistance was also reiterated in Article 4 of the Order of the Ministry of Health No. 555/2020, according to which: all health units in the public and private systems are obliged to provide medical care to all patients […]. Refusal to provide medical care may result in the liability of medical personnel on three levels:

• disciplinary liability pursuant to Article 450 of Law No. 95/2006;
• civil liability for damage arising from non-compliance with the obligation to provide healthcare, pursuant to Article 653 para. (3) of Law No 95/2006;
• criminal liability, with respect to this type of liability, we note that we have not identified a special offence with such a material element. However, we cannot rule out that certain facts may be classified as abuse or negligence at work.

However, medical personnel are not held liable for harm caused to patients in the exercise of the profession when they are due to working conditions, insufficient equipment for diagnosis and treatment, nosocomial infections, side effects, complications and generally accepted risks of the methods.

Therefore, although medical personnel cannot refuse to provide medical care on the grounds that there is a risk of infection, they are not responsible for harm or prejudice caused to patients due to working conditions, insufficient equipment or nosocomial infections (e.g. SARS-CoV-2 virus).

Can medical personnel resign during a state of emergency?

Resignation is a unilateral act of will of the employee (in the given case of the doctor/medical assistant) who, by written notification, communicates to the employer (medical unit) the termination of the individual labour agreement after the expiry of a period of notice.

Does the medical unit have the right to refuse resignation? No, according to the provisions of the Labour Code[10] and the Collective Labour Agreement[11] the employer is obliged to register the resignation. The employer’s refusal to register the resignation entitles the employee to prove it by any means of proof.

Moreover, the employee may resign without prior notice in accordance with Article 81 para. (8) of the Labour Code if the employer fails to fulfil the obligations under the individual labour agreement, or as I have outlined above, one of the obligations of the employer is to ensure safety and health at work.

However, the right of medical personnel to resign without prior notice pursuant to Article 81 (1) para. (8) of the Labour Code was substantially affected/censored by the Decree of the President of Romania No. 240/2020 on the extension of the state of emergency in Romania. 

 The decree stipulates that art. 81 para. (8) of the Labour Code, which regulates the employee’s right to resign without notice if the employer does not comply with its obligations under the individual labour agreement, does not apply, inter alia, to staff in health or social care units during the state of emergency. Moreover, Decree No. 240/2020 also brings changes on the manner of running of the notice period, in case of resignations already submitted. Therefore, since the entry into force of Decree no. 240/2020 (15 April 2020), the notice periods do not start to run, and if they have started to run, they are suspended for the entire duration of the state of emergency.

Is this a measure that does not affect the very substance of the right to resign as the preamble of Decree no. 240/2020 claims that would not do?

We believe that the answer is a negative one especially in cases where employers – hospitals – cannot provide the necessary means of protection of medical personnel. In particular, the individual labour agreement for the medical personnel who submitted their resignation and who were on notice at the time of the entry into force of Decree no. 240/2020 will cease only after the end of the state of emergency and the fulfilment of the suspended notice period.

In view of the principle of non-retroactivity of the law, Decree No. 240/2020 will not have any effect on individual labour agreements which have ceased because of the resignation of medical personnel and for which (i) there has been no notice period (according to Article 81 para. (8) of the Labour Code) or (ii) the notice period shall be reached at the time of entry into force of Decree No. 240/2020. Therefore, from the moment of entry into force of Decree no. 240/2020, the medical personnel may resign, the notice period being suspended during the state of emergency, and the effects of the resignation, namely, the termination of the labour agreement, shall take place only after the end of the state of emergency and the fulfilment of the suspended notice.

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Notes:

[1] Art. 386 para. (3) and (4) of Law No 95/2006 on health reform

[2] Article 179 of the Labour Code

[3] Article 13 lit. r) of Law 319/2006 on health and safety at work

[4] Art. 85 of the Collective Labour Agreement at the Health Sector Level for the years 2019-2021, registered at the M.M.J.S.-D.D.S. under no. 1206 dated 4.11.2019 (“Collective Labour Agreement”)

[5] The norm regarding the equipment of the medical, paramedical and civil personnel within the mobile emergency, resuscitation and release services, as well as the rules for their application from 19.12.2008

[6] Art. 3 of the Norm regarding the equipment of the medical, paramedical and civil personnel within the mobile emergency, resuscitation and release services, as well as the rules for their application from 19.12.2008

[7] Order no. 555/2020 on the approval of the Plan of measures for the preparation of hospitals in the context of the coronavirus epidemic COVID-19, of the List of hospitals providing healthcare to patients tested positive for SARS-CoV-2 virus in phase I and phase II and the List with support hospitals for patients tested positive or suspected of having the SARS-CoV-2 virus

[8] See Annex no. 22 to the Methodological Norm for the application of the provisions of the Law on safety and health at work no. 319/2006 of 11 January 2006 in conjunction with the provisions of Directive 2000/54/EC

[9] Art. 663 of Law 95/2006 on healthcare reform

[10] Article 81 para. (2) of the Labour Code

[11] Article 64 para. (2) of the Collective Labour Agreement

Context

As a result of the COVID-19 pandemic, the activity of the courts has been severely affected. During this period, the digitization of justice is under intense discussion, as being the only solution not to obstruct justice and at the same time to respect the rules of public health, effectively protecting the participants in the act of justice.

Although orality is a fundamental concept of criminal justice, in exceptional situations such as the period of the state of emergency, we consider that conducting legal proceedings through digital platforms is a sustainable solution to ensure the trial of cases within a reasonable time.

Fair Trials Organisation recently published a Guide for Respecting the Right to a Fair Trial along the COVID-19 pandemic period.

Fair Trials acts as a centre of expertise in respecting the right to a fair trial, relying on experienced staff based in London, Brussels and Washington D.C., working in partnership with the best local experts in several regions.

It has been argued that, as a rule, defendants should be able to participate in court proceedings in person and it is often crucial to be physically present in the courtroom during the trial. The absence of defendants in the courtroom seriously undermines their ability to participate effectively in criminal justice proceedings and the exercise of the right to defence.

Even in these extreme and unusual situations, there should be a strong preference for court proceedings to be conducted in person to protect the rights of defendants.

Specifically, non-urgent criminal proceedings should not take place if the defendant cannot be physically brought to court for public health reasons. However, criminal justice systems must continue to function during this global health crisis, and courts will have to resort to remote hearings to deal with urgent issues and prevent an unprecedented delay in cases that could harm the effective administration of justice in the future.

It was argued that when determining whether a court hearing should take place remotely or not, the following factors should be considered, inter alia:

• the length of the delays and their likely impact on the defendants’ rights (especially if the defendant is in the pre-trial detention is likely to be extended);
• the nature of the hearing, inclusively:
  • the complexity of the case and the issue addressed;
  • the need to call witnesses; and
  • the likely impact of the hearing on the defendant’s rights (for example, whether it threatens the defendant’s deprivation of liberty).
• the availability and quality of equipment and systems used for communication between the court and the defendant; and
• the existence of deficiencies or other factors that could adversely affect the defendant’s ability to participate effectively in court proceedings.

In case there are strong justifications for the use of distance justice proceedings, distance hearings should only take place if there are adequate safeguards in place that do not affect the right to a fair trial.

The guide contains several recommendations on the following issues:

1. The right to be assisted by a lawyer:

A. For defendants deprived of their liberty

• All penitentiaries and detention facilities should have adequate facilities to ensure that all detainees have efficient and frequent access to telephones (and other permitted forms of distance communication). This measure may include upgrading or increasing the number of pieces of equipment to meet the increased demand.
• Prisons and places of detention should aim at making video conferencing facilities available to defendants.
• Confidentiality or defendant-lawyer communications should be strictly respected. Defendants should have access to secure spaces for confidential discussions, the defence strategy discussed with the lawyer should not come to the attention of prison auxiliaries or police. Communication channels should be secure so that calls cannot be intercepted or recorded.
• If there are restrictions on client-lawyer correspondence (including, for example, the frequency and duration of telephone calls), they should be significantly relaxed to compensate for the reduction in legal visits in person.
• The use of telephones (and other permitted forms of remote communication) should be made available free of charge to defendants when communicating with their lawyers.

B. Before, during and after the court hearing

• Defendants should be given sufficient time before, during and after court hearings to consult their lawyers.
• Courts should be provided with adequate facilities to allow confidential video conferencing or telephone calls between defence lawyers and defendants without time pressure. These could include separate court spaces with video conferencing equipment for lawyer-defendant discussions.
• Defendants must be given access to safe rooms or areas before, during and after hearings, where they can communicate with their lawyers in confidence.

2.  The right to participate effectively in legal proceedings

• If a defendant is not represented at a remote hearing, judges, prosecutors or court staff (as appropriate) should proactively assist the defendant to ensure that he or she has access to legal aid.
• Eligibility rules for legal aid should be reviewed to ensure that no defendant participating in remote court hearings is represented for financial reasons.
• The video equipment must simulate as authentically as possible the participation in the courtrooms. Defendants should be able to have a full view of the courtroom and be able to observe all participants present in the courtroom.
• Where distance hearings involve the submission or review of evidence, the defendant should be given access to facilities that allow him to inspect and present evidence during the hearing.
• Communication equipment and systems used for remote hearing should continuously provide decent sound and video quality.
• Hearings must be stopped if the connection is interrupted and continue only after the problem has been solved.
• Technical assistance should be readily available in courts and detention facilities to remedy defects affecting the quality and reliability of audio-visual communications.
• Defendants must be able to contact their lawyer in confidence during the proceedings to seek clarification or to receive instructions on the defence strategy.

3. Access to the case file

• Defendants and defence lawyers should be given access to case files in a way that allows defendants to exercise their right of defence effectively.
• Defendants must be given physical or electronic access to the case file free of charge.

4. Compliance with the presumption of innocence

• Defendants in detention should be presented in appropriate attire for court hearings and should be given access to facilities that allow them to wear appropriate attire.
• Defendants should be presented during video hearings with a neutral background, which does not suggest that they have been deprived of their liberty.

Conclusions

The digitization of criminal proceedings is a subject that should be under the scrutiny of public attention, regardless of the existence or not of the COVID-19 pandemic.

We consider that the digitization of criminal proceedings represents a necessity and a normal approach in the evolution of the justice system. The initiative of the Bucharest Court to introduce the possibility of holding court hearings by videoconference is commendable. We support the steps of the courts in this direction, steps that must consider the conduct of the process in optimal technical conditions and at the same time respect for the rights of persons participating in judicial proceedings.

However, given the pioneering nature of the digitization of the justice system, voices in favour of the accelerated digitization of criminal proceedings must pay greater attention to respect for the rights of the defence and the right to a fair trial, regardless of the manner and circumstances of criminal proceedings.

 

 

One of the challenges of many real estate projects has been and remains that of access roads and the ways in which their construction and subsequent use may be legally transposed in the relation with the public authorities. Although they represent a constant requirement for any good real estate development, these aspects do not benefit from specific legal provisions, thus often depending on the creativity or interpretation of lawyers, but also on the availability of public authorities to find practical solutions in the absence of clear provisions in the legislation.

The scenario we are facing is usually the following: the investor wants to carry out a new project (retail, offices, residential, logistics, etc., any new project requiring access to the public road consistent to the volume of traffic it will generate) and, to do this, it must build the access road either on its land (which could also involve widening the public road with deceleration/acceleration lanes and/or a possible roundabout) or on the land of the local public authority (e.g. on a former exploitation road in the case of land in the extended built-up area).

However, the current legal provisions do not offer the investor a solution to ensure that, upon completion of works, the access road becomes a public road or, in the second case, to build on the town hall land. The discussion is based on the often willingness of investors to bear all costs for the construction of the access road, because they would not be otherwise able to develop their project from an urbanism point of view or to commercialize it in a satisfactory manner.

In absence of detailed legal provisions on the cooperation between the investor and the public authority for building such public roads at the costs of the investor, various mechanisms based on general legal provisions of the Civil Code or the Local Public Administration Law (now the Administrative Code) have been put into practice.

Roads built on the investor’s land

For a long period of time, the most common option for roads built on the investor’s land was that of donating the road to the local town hall after completion of construction works. However, since this requires both the approval of the donation through local council decision and the execution of the donation agreement (or acceptance of the donation) by the mayor, in many cases offers for road donation made by investors have not come to be actually accepted by the local authorities.

With a note that, in the case of donations to the state (e.g. in the case of roundabouts built on a National Road), the donation should be approved through a government decision.

An alternative mechanism proposed after the entry into force of the New Civil Code was the waiver by the investor of its ownership right in favour of the local authority through an authentic statement registered with the Land Book Office. However, neither this option automatically entails the transfer of the road to the local authority and its conversion into a public road, since the acquisition of ownership remains an option of the authority and a decision of the local council is needed to such end.

In absence of a viable option for giving the road a public road regime, some investors have decided to keep the ownership over the road (as well as its administration and maintenance) and assign it a private utility road regime open to public circulation.

Roads built on town hall land

Under this scenario, one of the mechanisms applied in practice is the conclusion of a joint-venture agreement between the local authority and the private investor under which the latter builds the entire road at its costs, and when the works are completed, the town hall makes the necessary formalities classifying the road as a public road. In an informal language, the investor “donates” the construction works and construction costs.

These joint-venture agreements do not benefit from a special legal framework and have been based on some general provisions of the Local Public Administration Law which do not expressly indicate that they may be applied also for the construction of public roads. Under these circumstances, some of the parties concerned (either investors or authorities) may be reluctant about the appropriateness of those joint-ventures, although on the merits in most cases the conclusion of those joint-venture agreements does not conceal anything unlawful or in bad faith and are based solely on the intention to legally regulate the construction of a public road on the costs of a private investor.

Under these circumstances, it is necessary for a special normative act to be enacted detailing the conditions under which investors may build such roads, at their cost, in a transparent, legal, and beneficial manner for both the private investor and the local community.

 

Until then, we welcome the initiative taken by some local authorities like the Cluj-Napoca City Council which regulated such scenarios through local council decisions – concerning, for example, the conditions under which private utility roads can be acquired by the city hall, becoming public roads.

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.