This article aims to conduct a brief analysis of the measures adopted in the criminal law field by the Romanian Government at a national level, following the World Health Organizations’ assessment of the COVID-19 spread as a pandemic, by focusing on the content of said measures, their grounds, as well as their potential effects. The article also refers to the potential applicability of specific preexisting legislation, under such circumstances.  

The impact generated by extraordinary circumstances, such as extreme natural phenomena, revolutions or uncontrollable rapid spreads of potentially fatal viruses is felt in numerous fields. Among the most obvious, one can think of the social and economical fields.

Such extraordinary circumstances can generate partial or even total obstructions of the activity of authorities with jurisdiction in the area of the social values’ protection against anti-legal actions. History has shown us that such circumstances can favor the implementation of preexisting criminal intentions in some cases or even the spontaneous commission of certain criminal offences, due to a large variety of factors, such as the meeting of one’s own fundamental needs, the lack of interest for the other citizens’ well-being or the wish the impress others.  

Given that the criminal law has both a preventive role, as well as a repressive one, the primary concern for any lawmaker during such times should be that of discouraging society’s members from committing criminal offences and applying proportional sanctions to those who take advantage of the society’s situation, already damaged by exceptional external factors.

Following the COVID-19 pandemic, the Government has decided to apply new measures in the criminal law field, alongside those adopted in the fiscal, social security and health fields. As such, Government Emergency Ordinance no. 28/2020 of 18.03.2020 was adopted. The measures taken by way of this normative act consist of:

• amendments brought to the content of art. 326 of the Criminal Code, on misrepresentation;
• amendments brought to the content of art. 352 of the Criminal Code, on thwarting of combating diseases;
• a new incrimination, provided by art. 352¹ of the Criminal Code, under the name of omission to provide certain information.

1             The necessity of the new measures

The grounds taken into consideration upon the adoption of G.E.O. no. 28/2020 are provided, naturally, in the preamble of the normative act. They represent an embodiment of the above in the situation which Romania is confronted with nowadays. Some of the grounds provided by the Government are:

• since the beginning of March, up to the present day, an increasing number of people which were quarantined or legally isolated in their residences, have breached their obligations to stay indoors;
• there are already 58 criminal investigations opened by 27 prosecutor’s offices around the country which refer to such criminal offences, whereas the number of potential victims is about 80.

2             The amendments brought to the misrepresentation

The old provision	The new provision
The declaration improper to the truth made in front of a person described by art. 175 or in front of an entity in which said persons conduct their activity, with the purpose to produce legal effects, for oneself or another, when, according to the law or circumstances, the declaration serves to produce said effects, is punishable by 3 months to 2 years of imprisonment or a criminal fine.	(1) The declaration improper to the truth made in front of a person described by art. 175 or in front of an entity in which said persons conduct their activity, with the purpose to produce legal effects, for oneself or another, when, according to the law or circumstances, the declaration serves to produce said effects, is punishable by 6 months to 2 years of imprisonment or a criminal fine.
	(2) The action provided under para. (1) committed to hide the existence of a risk regarding the infection with an infectious, contagious disease is punishable by one to 5 years of imprisonment or a criminal fine.

 

The analysis of the two texts requires some clarifications, along with the highlighting of the amendments:

• art. 175 of the Criminal Code, which is mentioned by the misrepresentation's definition, refers to public servants. It is essential for the declaration improper to the truth to be made in front of a public servant or in front of an entity in which a public servant conducts his/her activity. For example, in the eyes of the criminal law, the following are included in the public servant category: the police officer, the doctor having an individual labor agreement concluded with a healthcare institution of the public system, the public notary, the bailiff, the employee of a credit institution with fully private funds, which is authorized and under the supervision of the National Bank of Romania;
•  the minimum of the imprisonment sanction for the basic form of this criminal offence has been increased, from 3 months to 6 months;
• the new law provides an aggravated form of the criminal offence. Under the context of the COVID-19 pandemic, the social danger of misrepresentation is deemed as an increased one in the following circumstances: the perpetrator’s aim to hide the existence of the risk for him/her to be infected with an infectious, contagious disease, can have serious ramifications, such as the infecting of other people, in the absence of appropriate measures taken by the authorities, regarding the perpetrator. In the attempt to discourage such a behavior, the penalty for the aggravated form of misrepresentation has been set between the limits of 1-5 years of imprisonment, alternatively with the criminal fine;
• for example, prior to the changes brought by G.E.O. no. 28/2020, the breach of the obligation of all passengers from or who have recently traveled to the affected areas, to be allowed to remain in Romania, to fill out, in accordance with the truth, the questionnaire drawn up by the National Center of Supervision and Control of Transmissible Diseases, would have been sanctionable with imprisonment of 3 months up to 2 years or a criminal fine. Pursuant to the amendments, this action will be sanctionable with imprisonment of one to 5 years of imprisonment or a criminal fine;
• for a more accurate understanding of the gravity of an offence legally qualifiable under art. 326 para. (2) of the Criminal Code in the eyes of the Government, here are some offences punishable with similar sanctions: possession disorder, driving a vehicle under the influence of alcohol or other substances.

3             The amendments brought to the thwarting of combating diseases

The old provision	The new provision
(1) Not complying to the  prevention or combating measures of infectious, contagious diseases, if such an action resulted in the spread of such a disease, is punishable by 6 months to 2 years of imprisonment or a criminal fine.	(1) Not complying to quarantine measures or hospitalization imposed for the prevention or combating of infectious, contagious diseases, is punishable by 6 months to 3 years of imprisonment or a criminal fine.
(2) If the act provided by para. (1) is committed out of negligence, the punishment is of one to 6 months of imprisonment or a criminal fine.	(2) Not complying to the prevention or combating measures of infectious, contagious diseases, if such an action resulted in the spread of such a disease, is punishable by one to 5 years of imprisonment.
	(3) The transmission, through any means, of an infectious, contagious disease, by a person who knows that they are suffering from such a disease, is punishable by 2 to 7 years of imprisonment and the ban from exercising certain rights.
	(4) If the act provided under para. (2) is committed out of negligence, the punishment is of 6 months to 3 years of imprisonment or a criminal fine.
	(5)  If the acts provided under paras. (1) and (2) resulted in the bodily harm of one or more people, the punishment is of 2 to 7 years of imprisonment and the ban from exercising certain rights and if the death of one or more people occurred, the punishment is of 5 to 12 years of imprisonment and the ban from exercising certain rights.
	(6) If the act provided under para. (3) has resulted in the bodily harm of one or more persons, the punishment is of 3 to 10 years of imprisonment and the ban from exercising certain rights and if the death of one or more persons occurred, the punishment is of 7 to 15 years of imprisonment and the ban from exercising certain rights.
	(7) If the act provided under para. (4) resulted in the bodily harm of one or more people, the punishment is  of one to 5 years of imprisonment and the ban from exercising certain rights and if the death of one or more persons occurred, the punishment is of 2 to 7 years of imprisonment and the ban from exercising certain rights.
	(8) The attempt to commit the criminal offence provided under para. (3) is punishable.
	(9) Quarantine means the restriction of activities and the separation, in specially designed spaces, from other persons, of sick persons or persons who are suspected of being sick, in a manner able to prevent the potential spread of the infection or contamination.

The analysis of the two texts requires some clarifications, along with the highlighting of the amendments:

• the bodily harm consists of the act which resulted in: (i) an infirmity, (ii) traumatic injuries or the damage of one’s health which required more than 90 days of medical care for healing, (iii) a serious and permanent aesthetic damage, (iv) abortion, (v) the endangerment of one’s life;
• when an incrimination text does not refer to the form of guilt with which the act is committed, one can assume that the legislator had in mind the commission with intent [e.g. para. (1) of the new provision, above]. The commission of the incriminated act out of negligence is punishable only when the law expressly provides to this effect [e.g. para. (4) of the new provision, above, which incriminates the commission of the act provided by para. (2), out of negligence];
• the attempt consists of the carrying out of the intention to commit the criminal offence, when the activity was interrupted or did not produce the desired effects;
• the attempt is punishable only when the law provides as such and is not possible in the case of criminal offences committed out of negligence;
• under the provisions of para. (1), the omission to comply with quarantine of hospitalization measures imposed to prevent or combat infectious, contagious diseases, by itself, is punishable. No other effects are necessary (e.g. the transmission of the disease to another person);
• the basic form of the criminal offence, provided under para. (1) of the old form, respectively para. (2) of the new form, can be committed both by natural and legal persons (the latter requiring for the act to be committed during the carrying out of the object of activity, in the interest or in the name of the legal person, by an employee or a person holding a management position). The field of sanctionable acts is larger than the one provided under para. (1). For example, not complying to the isolation in the residence in order to fulfil job related activities can attract the criminal liability of the legal person. It is important to determine whether the management bodies foresaw/could have foreseen the outcome, given that the act can be committed out of negligence, according to para. (4) ;
• the offence provided under para. (3), unlike the first two paras., implies that the perpetrator is aware that he suffers from an infectious, contagious disease and intentionally transmits it;
• the new form of art. 352 of the Criminal Code incriminates the attempt for the form provided under para. (3);
• it is to be observed that the death of the person who caught the disease can imply a punishment of up to 15 years for the perpetrator, if the latter aimed for the victim to be infected or accepted this possibility. The incident of para. (6) implies that the perpetrator only aimed to infect the victim and that the death was a result of circumstances which were not taken into consideration, out of the perpetrator's negligence (e.g. a preexisting health condition of the victim, which the perpetrator new about, but hoped that would not have any implications).

4             A new incrimination

By way of G.E.O. no. 28/2020, art. 352¹ was introduced in the Criminal Code, incriminating “A person’s omission to reveal to medical staff or to other persons described under para. 175 or to an entity in which said persons conduct their activity, essential information regarding the possibility to have made contact with a person infected with an infectious, contagious disease”, being established that such an act is punishable by 6 months to 3 years of imprisonment or a criminal fine.

Art. 352¹ of the Criminal Code represents, to some extent, a particular form of the misrepresentation offence, adapted to the purpose of G.E.O. no. 28/2020, to encourage all persons to comply to prevention measures taken against the spread of the coronavirus.

On the other hand, the newly adopted aggravated form of misrepresentation incriminates the improper declaration committed to hide the existence of a risk regarding he infection with an infectious and contagious disease.

The resemblance between the two provisions could raise issues concerning the predictability of the law. We are in the presence of two resembling incriminations, provided by two different titles from the Special Part of the Criminal Code.

Whereas the incrimination of misrepresentation aims to protect social relations regarding the public trust in statements given in front of a public servant, the omission to provide certain information is part of the category of criminal offences against public safety and aims to protect the social relations regarding  public safety, under the aspect of compliance to measures on the prevention or combating infectious, contagious diseases.

Given that the preamble of the government emergency ordinance provides that it aims to ensure the compliance with the measures imposed by public authorities to protect public safety under the COVID-19 pandemic context, one must ask himself whether the adoption of the aggravated form of misrepresentation was appropriate or whether the incrimination of the omission to provide certain information would have sufficed, by establishing higher limits to the applicable punishment, in order to achieve the desired effect.

5             The potential applicability of aggravating circumstances

The General Part of the Criminal Code provides, among other aspects, the individualization criteria of applicable sanctions for those who commit criminal offences.

The aggravating circumstances are among these criteria. Art. 77 of the Criminal Code provides eight such circumstances which, if applicable, can attract the court’s possibility to apply the maximum penalty provided by the law for the committed offence or even the possibility to add 2 years to that maximum.

Art. 77 letter g) of the Criminal Code provides the “commission of the criminal offence by a person who took advantage of the situation generated by a calamity, state of siege or state of  emergency” among the aggravating circumstances.

Given that the President of Romania’s Decree no. 195/2020 has instituted the state of emergency on the Romanian territory, the judges of each criminal case regarding offences committed during the state of emergency will be called upon to determine whether the perpetrator took advantage of the state of emergency. The applicability of this aggravating circumstance is not limited by the law to a certain type of offence, meaning that the courts will have a broad discretion to determine the incidence, or not, of art. 77 letter g) of the Criminal Code.