Are there any behaviours which, within the context of a public health epidemiological crisis, could be punishable under criminal law? And under administrative offense law?

  • Within the context of a public health epidemiological crisis during which some assets are considered to be very important to prevent and fight the disease, anti-economic and public health infringements are of particular relevance.
  • Among the catalogue of crimes aimed at repressing anti-economic and public health offences, the law provides for and punishes as a crime the acquisition of essential goods, such as basic food items, as rice, dairy products, flours or food for children up to 3 years, in a situation of notorious scarcity or at the expense of the regular supply of the market, in an amount manifestly disproportionate to their needs for supply or for the normal renewal of their stocks. In this context, speculative conduct, whereby essential goods or services are marketed for prices higher than those permitted by the legal systems to which they are subject, and fraudulent advertising, whereby unjustified profit is sought, in particular as regards false medical treatments, are also punishable.

Can an infected person be punished if they infect someone?

  • Intentional contagion, or at least the prediction of the possibility of contagion, may assume criminal relevance. Although the Criminal Code does not define the crime of spreading contagious disease, it allows to punish conducts of this nature in which, through an act of malicious spread of the disease, serious harm is done to the physical integrity of the person or even to his life through the crime of bodily harm.

Can a company or any officer be held liable for failing to adopt preventive measures arising from the authorities' guidelines, namely as regards public health?

  • Yes. Liability may arise from failure to comply with the general duty of assistance laid down by law, according to which, in a situation of public disaster or common danger, the aid necessary to remove the danger, either by personal action or by promoting aid, must be provided.
    Another cause of liability could be failure to comply with or to obey the preventive measures decreed by the authorities, to the extent that it is subsequently demonstrated that such failure contributed to the spread of the disease.

The company or its officers may also be charged with a crime of disobedience, which must be expressly imposed in order of the authority or legislative act in the other cases. Can a company repudiate its regulatory regulations during the epidemiological crisis?

  • Usually no, unless there is legislation to the contrary. 
    It should be noted, however, that the general principles of exclusion of guilt provided for in sanctioning legislation, namely exculpatory need and indulgent obedience, remain in force and can be invoked. 
    In the event of any situation where, for pressing reasons, it is not possible to comply with the regulatory obligations or guidelines of the authorities, it is advisable to preserve all documentation and information that enables proving the lawfulness of the failure to comply or delay in complying with the obligation or order.

Are the criminalization and aggravation of sanctions determined by legislative instrument during the epidemiological crisis applicable to ongoing cases or to acts committed before the crisis?

  • No. Criminal law does not apply retroactively, which means that the criminalization or the creation of administrative offenses during the epidemiological crisis is only possible after the relevant effective date and can never apply to events predating such effective date.

And decriminalization?

  • Situations created in the crisis, with a view to not punishing certain events in which in normal circumstances they would be punished (e.g. submission of expired declarations) are only valid for the period expressly stipulated in the law creating the derogation regime and cannot be claimed outside this circumstance.

 

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This information is being updated on a regular basis.

All information contained herein  and all opinions expressed are of a general nature and are not intended to substitute recourse to expert legal advice for the resolution of real cases.