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 violations against economy and public health, the law provides for and punishes as a crime of hoarding, those who, taking advantage of a general shortage or with prejudice to the regular supply of the market, of essentials or essential goods or even of raw materials used in their production, such as medicines, masks, or disinfectant products, refuse to sell or hide the provisions, to the detriment of consumers who need these goods, as well as the behaviour of the purchaser who disproportionately buys essential goods.

In this context, speculative conducts, whereby goods are marketed at prices higher than those which would result from natural and free competition; and fraudulent advertising, whereby unjustified profit is sought, in particular as regards fake medical procedures for cure, are also punished.

Non-compliance with the rules regarding the closure of services, hygiene and safety, priority attendance, religious celebrations and other worship events, provided for in Presidential Decree 09/20, may also be punished for a crime of disobedience under criminal law.

 

Can a person be arrested if he violates the rules on self-isolation laid down in Presidential Decree No. 09/20 and regulated in Decree-Law No. 51/20?

Failure to respect isolation and confinement rules constitutes a crime of aggravated disobedience, punishable under Presidential Decree No. 09/20 and regulated in Decree-Law No. 51/20, the upper and lower thresholds of the penalties being aggravated by one third, and may lead to immediate arrest.

 

Can an infected person be punished if they infect someone?

Yes, if contamination is malicious or if, at least, the infected person anticipates that they could infect others through their behaviour. Although the Criminal Code does not define the crime of spreading contagious disease, the conduct of someone who is infected and, knowingly, intentionally infects others, may be included in the crimes of bodily harm, homicide and poisoning.  

 

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 would enable 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 its entry into force and never in relation to situations that occurred at an earlier time.

 

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.