Are there behaviours which, in the context of an epidemiological public health crisis, have particular criminal relevance?

In the context of an epidemiological public health crisis, during which some assets are considered to be very important for preventing and combating disease, anti-economic and public health offences are of particular relevance.

The laws that implement and regulate some aspects of the state of emergency have expressly reinforced the possibility that some behaviour constitutes a crime of disobedience. For example, failure to comply with the obligation of mandatory confinement will fall within this type of crime.

 

Can an infected person be punished if he or she becomes infects others?

Yes. The Criminal Code provides for a crime of contagion of serious illness which shall be applied if someone commits an act by which he or she transmits or is likely to transmit to another person a serious illness, knowing or should know that he or she is infected.

 

Can a company or its manager be held responsible for not taking preventive measures as a result of guidelines from the authorities, in particular public health?

Yes. There may be liability arising from the failure to comply with the general duty of assistance provided for by law, under which, in a situation of public calamity, the necessary assistance must be provided to remove the danger.

Another cause of liability may be failure or non-compliance with the preventive measures decreed by the authorities, in so far as it is subsequently demonstrated that such failure contributed to the spread of the disease.

The company or its managers may also be charged with committing a crime of disobedience, which will be automatic in a state of emergency and will have to be expressly commented in order of the authority or normative act in the remaining cases.

 

Can a company fail to meet its regulatory obligations 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 fault provided for in sanctioning legislation, namely exculpatory need and conflict of duties, remain in force and can be invoked.

In the event of the occurrence 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 the documentation and information that allows proof of the legitimacy of the breach 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 proceedings or to acts committed before the crisis?

No. Criminal law has no retroactive application, which means that the criminalization or creation of misdemeanours during the epidemiological crisis is only possible after the respective entry into force and never in relation to situations that occurred at an earlier time.

 

What about 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.