COVID-19: the criminal risks

newsalert 11032020

Prepared by Carlo Romano e Maurizio Foti

The epidemiological emergency due to the spread of COVID-19 and, in particular, the continuing increase of subjects resulting positive to the virus has led the Government to raise the alert state. Therefore, in order to counter and contain the spread of the COVID-19 virus, the Prime Minister’s Decree issued on March 9th, 2020 has extended the urgent measures introduced by art. 1 of the Prime Minister’s Decree issued on March 8th, 2020 to the entire national territory (among which,  the most restrictive measure is to forbid people to enter o leave the territories affected by the virus or to move within the same Regions, except for proven work needs, cases of need and health reasons, allowing, in any case, the return to their own domicile or residence). Furthermore, the same Decree prohibites any form of gathering of people in public places or places open to the public and, in addition, establishes the suspension of all sporting events and competitions of all types and disciplines.

1. The crime of non-compliance with the Autority measures

In order to enforce these measures (this task belongs to the territorially competent Autority), art. 4 of the Prime Minister’s Decree of March 8th, 2020 establishes that failure to comply with the containment measures is punished pursuant to art. 650 of the criminal code, unless the fact constitutes a more serious offense.

In particular, it is a culpable crime – in relation to which the subjective element of the commission is the mere guilty – that punishes anyone who doesn’t comply with a measure issued for reasons of justice, public security, public order or public hygiene, imposing detention up to three months or a fine up to Euro 206, unless the fact constitutes a more serious offense.

The same punishment is foreseen by the various ordinances issued by the Regions of the Central and Southern Italy – due to people coming from the mostly affected areas of the North of Italy and, so, to the effective risk of an uncontrolled entry of subjects potentially positive to the virus – which introduced, in their turn, some measures aimed at facing up the health emergency (as, for example, the obligation to report the entry into the Regional territory and to stay at home) punishing the violation of these rules pursuant to art. 650 of the criminal code.

2. The crime of false certification or declaration

In the light of the provisions issued by the latest Prime Minister’s Decrees, moving within the national territory or within the individual regions is only permitted in exceptional cases, as: proven working needs, cases of need, health reasons or the return to the domicile or the residence.

These circumstances must be certified by the individual, through an appropriate self-declaration.

Therefore, in case of mendacious declaration, the punishment is the imprisonment up to six years pursuant to art. 495 of the criminal code.

3. The crime of epidemic

According to the meaning credited by medical science, an epidemic represents any infectious or contagious disease capable of a rapid and imposing manifestation in the same context and in a specific territory, affecting a number of people capable of arousing a significant social alarm and a correlative danger for an indeterminate number of individuals, due to the propagation of its pathogenic germs. Pursuant to a well-known judgement issued by the United Chambers of the Supreme Court «the elements that characterize the crime of epidemic are … its uncontrollable diffusivity within a large number of people … the contagious and widespread nature of the virus, the chronologically limited duration of the phenomenon, since, otherwise, it would be endemic» (Cass. United Chambers, no. 576 of January 11th, 2008).

The crime at stake is foreseen by art. 438 of the criminal code, which punishes with life imprisonment anyone who intentionally causes an epidemic, disseminating the pathogenic germs.

Pursuant to art. 452 of the criminal code, which foresees the crime of epidemic characterized by a negligent nature, falling into the scope of negligent crimes against public health, the epidemic spread of the disease attributable to negligence, imprudence or inexperience (e.g. guilt) it is punished with imprisonment up to twelve years.

The possible configurability of the crime of culpable epidemic has let the Public Prosecutors conduct some investigations on the procedures adopted in some hospitals in order to prevent the risk of contagion of COVID-19 and initiate criminal proceedings against unknown individuals.

Therefore, it cannot be excluded that this offence occurs also in other cases resulting from the life style of each individual: for example, just think about the case of a citizen who, despite the fact of being positive to the virus (even if totally asymptomatic), puts the public health in danger by meeting other people in breach of the precautionary measure of quarantine provided by Prime Minister’s Decree.