After the Romanian Constitutional Court declared as unconstitutional certain provisions of the law on healthcare reform regulating the quarantine and the compulsory isolation measures, the legislative vacuum in this area was covered by Law no. 136/2020 on the establishment of measures in the field of public health in situations of epidemiological and biological risk (“ Law 136/2020” ) ."> COVID-19 « Back
The law regarding the quarantine and isolation measures
After the Romanian Constitutional Court declared as unconstitutional certain provisions of the law on healthcare reform regulating the quarantine and the compulsory isolation measures, the legislative vacuum in this area was covered by Law no. 136/2020 on the establishment of measures in the field of public health in situations of epidemiological and biological risk (“ Law 136/2020” ) . After many controversies raised in the Parliament, the law, published on Saturday - July 18, 2020 - in the Official Gazette, will enter into force on July 21, 2020. In the absence of a complaint addressed to the Romanian Constitutional Court by the People's Advocate regarding an exception of unconstitutionality and such exception is admitted, the law will produce its effects and will constitute the legal basis for the application of the disputed restrictive measures.
1. Situations to which Law 136/2020 applies
Law 136/2020 currently outlines the legal framework for the application of quarantine and isolation measures in situations with high epidemiological risk, enlisting the cases that would justify taking such measures. Needless to say, in the case of the COVID-19 pandemic, we find ourselves in the situations described by law, but the scope is intended to be a wider one, and the normative act in question is intended to be an applicable tool also in future situations of risk, not only during the present pandemic. Thus, art. 6 of the law expressly provides which are the situations of epidemiological and biological risk that justify the application of quarantine and isolation measures, namely:
Also, the complete list of infectious diseases for which the isolation of persons at their home will be applicable will be subsequently established by Government Decision.
2. The quarantine and the isolation measures, in light of Law 136/2020
Quarantine and isolation receive new definitions under the new regime. Thus, quarantine is regulated as a precautionary measure, which consists in separating persons suspected of being infected or carrying a highly pathogenic agent from other persons, in spaces specially designated by the authorities, at home or at the location declared by the quarantined person. Quarantine applies to (i) people returning from areas with a high epidemiological risk, or (ii) people who have come into direct contact with at least one person confirmed to be infected. One of the changes made by the Parliament concerns the fact that the quarantine measure is imposed, on an individual basis, by a reasoned decision of the Public Health District Authority and will specify, inter alia, the duration of the measure and the applicable legal remedies. Being an administrative act issued by a public authority, the decision to establish the quarantine measure can be challenged in an administrative court, by filing a complaint to the competent court of first instance.
Isolation, on the other hand, is a measure which consists in the separation of persons affected by the disease or persons bearing the highly pathogenic infectious agent, whether or not they have symptoms. The isolation will take place at home, at the location declared by the isolated person, in a health unit or at an alternative location attached to it. Isolation will be ordered based on the consent of the infected person, or otherwise, by a reasoned decision of the Public Health District Authority. Similar to the quarantine measure, isolation is also applicable by means of an individual decision, which will contain, among other information, the extent of the measure and the applicable legal remedies. This decision could also be challenged in the competent court, namely the court of first instance in the district where the isolation of the concerned person takes place, as detailed below.
The measure of isolation always starts in a health institution or an alternative location attached to it, in order for the necessary examinations to be performed. The measure will be applied until the results for examinations are received, without exceeding a 48-hour period. Subsequently, based on the results of the examinations, the doctor may recommend the extension of the isolation measure if the risk of transmitting the infectious disease is maintained. The measure thus instituted will cease when the sick person is considered cured on the basis of the examinations performed, or when the doctor considers that the risk of transmitting the disease no longer exists.
According to the new law, both quarantine and isolation are measures that will be applied individually, separately for each suspected/confirmed person, and not collectively. However, the possibility to apply the quarantine measure will be decided by a decision of the National Committee for Emergency Situations (CNSU), at the proposal of the Technical-Scientific Support Group on the Management of Highly Contagious Diseases in Romania. In situations where the risk is imminent, the quarantine can be set up even by order issued by the head of the Department for Emergency Situations (DSU). The order thus issued will have to be validated by the National Committee for Emergency Situations within maximum 48 hours.
The law also provides for the possibility of establishing a zonal quarantine, as well as the competent bodies in this regard.
It should be noted that the modalities of application of the measures regarding both quarantine and isolation may be, according to the law, established by order of the relevant minister, at the proposal of the National Institute of Public Health.
3. Failure to comply with the required measures
Quarantine and isolation are compulsory measures that may be imposed even without the consent of the concerned person. If the person refuses the quarantine measure or violates it, the doctor or, as the case may be, the control bodies, will recommend quarantine in a special space designated by the authorities, and the representative of the Public Health District Authority will decide, within 8 hours from the moment he/she receives the information, the mandatory application of that measure if there is an imminent risk of community transmission. If the isolation measure is refused or violated, the doctor or the control body, as the case may be, shall immediately notify the Public Health District Authority, which shall confirm or deny the isolation measure in a health institution or an alternative unit attached to it. The decision will be issued no later than 2 hours after the representative receives the information.
In addition to the sanction provided by Law 136/2020, we appreciate that non-compliance with the quarantine or isolation measure creates an imminent risk of disease and slows down the prevention or control of infectious diseases. Thus, the fact of non-complying may constitute the crime of thwarting the fight against diseases (art. 352 of the Criminal Code), and if it resulted in the spread of such a disease (art. 352 para. (2) of the Criminal Code), the risk to which they are subject is one that exceeds the scope of fines, the sanctions applicable in this case by the criminal investigation bodies being imprisonment for up to 5 years.
4. Procedural provisions
In order to challenge the acts establishing and applying the quarantine and isolation measures, Law 136/2020 provided for a regime derogating from the general rules applicable to administrative litigation. Thus, according to art. 15, normative acts (such as the CNSU Decision, the order of the head of DSU) can be challenged by any injured person in his right or in a legitimate interest with an action for annulment, within a maximum of 5 days from the publication of the respective act or from the date of acknowledgment. The competent court will be the administrative and fiscal contentious section of the court of appeal located within the headquarters of the issuing authority. In order to challenge those acts, the law states that it is not mandatory to comply with the prior procedure.
Law 136/2020 also provides for a derogating procedure for challenging individual administrative acts, namely the individual decisions for the application of the quarantine or isolation measure. Thus, the documents by which the mentioned measures were applied will be challenged in the courts of first instance (in Romanian “judecătorii”), within a very short term, of maximum 24 hours from the communication, and the court resolution is executive and shall be appealed within 2 days from communication. In the case of isolation ordered for a maximum of 48 hours, based on art. 8 para. (3), the decision issued by the court is final.