Are there any behaviors which, within the context of a public health epidemiological crisis, could be punishable under criminal 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 medicines, masks, or disinfectant products, 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 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.

On the other hand, the breach of legal provisions regulating market organization is punishable, namely with regard to the constitution of minimum reserves and storage capacity - especially relevant in a crisis context.

In general terms, the breach of the legitimate orders of the authorities, constitutes a crime when certain conditions have been met. Within this context, it is important to take into consideration the specific crime of disobedience, resulting from the breach of the provisions of the law establishing the state of emergency, the declaration of the state of emergency and the implementation of this declaration.

The diplomas that execute and regulate some aspects of the state of emergency have expressly reinforced the possibility that some behaviors constitute a crime of disobedience. The penalties applicable to acts of disobedience or resistance against legitimate orders of the competent entities, in a situation of alert, contingency, or calamity, are aggravated by one third in their minimum and maximum limits, therefore being punishable with up to one year and four months of jail time, or fine up to € 75.000,00 

 

What are the consequences of non-compliance with the duties established in the diplomas which declare the state of emergency, or situations of alertness, contingency and / or calamity?

Under the Civil Protection Law, the competent bodies may, depending on the nature of the events to be prevented or faced and the severity and extent of their current or expected effects, declare the situation of alert, contingency or calamity, throughout the intertie of the national territory, or in any part of it.

In the current situations of alert, contingency and calamity, a series of obligations have been imposed, namely in terms of restrictions on access to stores, services, public buildings, means of transportations and use of masks and visors.

In particular, there have been enacted the following duties, binding both on natural and legal persons:

i)               to observe the rules of occupation, permanence, physical distance and prior appointment in places open to the public, namely restaurant and other similar establishments;

ii)             to use mask or visor, for access or permanence in commercial or service spaces or stores, in public buildings, educational establishments and day care centers, theatres, exhibition halls, films or the like, and in collective means of transportation;

iii)            to suspend access to restaurants or drinks establishments that have spaces for dancing, or where people usually dance;

iv)            to comply with the opening hours of stores or other establishments destined to the provision of services defined in the declaration of the state of emergency or of the respective alert, contingency or calamity situations;

v)               not to hold celebrations or other events that imply the gathering of people beyond the maximum limit set under the declaration of the state of emergency or the respective alert, contingency or calamity situations;

vi)             to comply with the rules for the supply, sale and consumption of alcoholic beverages, defined in the declaration of the respective alert, contingency or calamity situations;

vii)            to comply with the rules regarding maximum capacity limits for land, river and sea public transportation;

viii)          to comply with the rules applicable to the restriction, suspension or closure of activities or separation of people who are not sick, means of transport and goods.

Non-compliance with the duties established in the declaration of the situation of alert, contingency or calamity constitutes an infraction sanctioned with fine from € 100.00 to € 500.00 in the case of natural persons and from € 1 000.00 to € 10 000.00 in the case of legal persons.

Non-compliance with the applicable rules may further result in the temporary closure of the establishment and the suspension of any activities, as well as the dispersion of people gathered in a number greater than permitted.

Failure to comply with air traffic and body temperature control measures by airline companies or by the entities responsible for the management of the respective airports, regarding passengers arriving in Portugal, is sanctioned as follows:

i)               For each passenger boarding without presenting proof of a negative laboratory test for Covid-19, carried out within the 72 hours prior to the time of departure, with a fine of € 500.00 to € 5000.00;

ii)             In case of non-compliance with the obligation to screen the body temperature of passengers arriving in Portugal, with a fine of € 2000.00 to € 3000.00.

Negligence is also punishable, in which case the maximum and minimum amounts of the fine are reduced by 50%.

 

Can an infected person be punished if they infect someone?

Yes, if contagion is malicious or if, at least, the infected person anticipates that they could infect other through their behavior. The Penal Code provides for a crime of spreading contagious disease, which can be applied if someone who is infected and, having knowledge of it, violates public health prevention guidelines, with the aim of infecting others. Companies, as corporate persons, could also be punished for this crime.

 

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 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 will be automatic in a state of emergency and will have to 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 conflict of duties, 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.

 

 

__________________________

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.