The offence of spreading coronavirus
From what point exactly is the spreading of COVID-19 a criminal offence? Is it only intentional spreading that is punishable or is negligence also a criminal offence? What is at stake? What are the aggravating circumstances and when do the penalties increase? And can these criminal offences also be committed by a legal entity?
The Government of the Czech Republic adopted, as a part of emergency measures due to health threat, Regulation No. 75/2000 Coll., amending, with effect from 13 March 2020, Government Regulation No. 453/2009 Coll., which, for the purposes of the Criminal Code, stipulates what are considered to be contagious human diseases, contagious animal diseases, contagious plant diseases and pests arising from plants. With this amendment, “COVID-19” has been added to Schedule 1 as one of the contagious human diseases. What does this addition mean?
Primarily, an offense is punishable only if its criminality was stipulated by law before it was committed. The Government's amendment therefore has fundamental effect only into the future and will not apply to the conduct of persons prior to its effectiveness, unless the conduct would be of benefit to the offender, which can hardly be expected. From 13 March 2020, however, it is necessary to count on the existence of a crime of spreading the contagious human disease COVID-19, for which not only natural but also legal persons(entities) can be prosecuted.
Specifically, the Criminal Code stipulates (section 152) that anyone who intentionally causes or increases the risk of introducing or spreading an infectious human disease will be punished by imprisonment for six months to 3 years, a ban on activity or confiscation of assets. If an act was committed by an organized group of persons, or occurred at a time of threat to the State, during a state of war, natural disaster or other matter seriously threatening life, public order or property (which may currently include a declared state of emergency), or would violate an important obligation imposed by law (e.g. mandated quarantine imposed under the Health Protection Act) or resulting from the offender's employment, profession, status or function, or would cause serious injury, the penalty is increased from to 2 to 8 years. An even higher rate of 3 to 10 years is to be expected if the offender would cause serious injury to at least two persons or even death. If the deaths of more than two people were caused, a twelve-year sentence would be possible. And beware, even the mere preparation of the intentional spread of COVID-19 is also a criminal act.
The requirements of the crime of spreading a contagious disease are also met also by merely causing a threat to people, and the number of people will play an indisputable role in assessing aggravating circumstances. It is therefore a so-called threatening offense and it is not necessary for it to actually happen (in our case the transmission of COVID-19 infection). If this happens and the crime will cause serious injury or death, it will affect the level of the penalty. But what actually will constitute an attempt/threat? An attempt is an act directly aimed at completing a crime but which does not occur. Thus, an attempt to spread COVID-19 could occur under certain circumstances (in particular a careful assessment of the offender's intention and behavior, but also the very illegality and social harmfulness) of a person who intends to cause or increase the risk of introducing or spreading a contagious disease amongst people and behaves accordingly, even if an actual threat/endangerment did not ultimately take place.
The Criminal Code penalizes not only those who do so intentionally, but also those who through negligence spread a contagious disease. There are two levels of negligence, which vary depending on whether the person knew that he or she could cause a certain consequence, but without reasonable consideration thereof, relied on the assumption that it would not occur (deliberate negligence) or did not know that he or she could cause the consequence, although given the circumstances and with regard to personal circumstances he or she should have and could have known thereof (unconscious negligence). However, gross negligence is comparable to intention. Intention is divided into direct and indirect. Direct intention (in simplified terms) is involved if the offender wanted to commit the crime. In the case of indirect intent, the offender knows what effect he or she can cause by his or her conduct and is aware of it if he or she causes it.
The Criminal Code stipulates (section 153) that anyone who negligently causes or increases the risk of the introduction or spread of an infectious human disease will be punished by imprisonment for up to one year. If such an offense were committed by the offender at a time of threat to the state or other event seriously endangering the life or health of people, public order or property (i.e. as stated above, for example at the time of declared state of emergency) or violated an important obligation imposed by law (this could be ordered quarantine or isolation), or it would cause severe personal injury, it could be punishable by a term of imprisonment of six months to three years. The offender may be punished more severely if he or she causes death or as a result of a breach of important obligations set forth by law causes a serious impact on health; if such acts would grossly violate public health laws, the applicable punishment would be between 2 and 8 years. The offender would be most severely punished if he or she caused the death of at least two persons for grossly violating the health protection regulations (on the basis of which is issued for example the decision on quarantine). In such case, imprisonment could be imposed for 3 to 10 years.
The law enforcement authorities have already publicly stated that crimes committed during the state of emergency will always be assessed at a stricter penalty level. Not to mention the violation of ordered quarantines! And what about legal entities? Can they be guilty of the spread of COVID-19?
As of 1 December 2016, the Act on Criminal Liability of Legal Persons and Proceedings Against Them (“ZoTOPO”) is based on the concept that a legal person is criminally liable for offenses listed in the Criminal Code, except for those listed under section 7 of the ZoTOPO. In other words, for a criminal offense not listed in Section 7 of the ZoTOP, a legal entity may be held liable. The deliberate spread of infectious human disease (section 152 of the Criminal Code) or the spread of infectious human disease due to negligence (section 153 of the Criminal Code) is not set forth in section 7 of the ZoTOPO. Thus, a legal entity may be liable for both of these offenses, as well as being liable for, for example, intentional or negligent serious bodily harm or a general threat. A legal person cannot be sentenced to imprisonment, therefore, in the case of the offense of spreading a contagious human disease, only the penalty of disqualification or confiscation of assets would be considered.
ZoTOPO is based on the principle of simultaneous and independent liability of natural and legal persons. What does this actually mean? If a natural person who so committed it is responsible for a certain act, it may be imputed to the legal person at the same time. In practice, this means that if, for example, a company executive (commercial director, employee or other person referred to in section 8 of the ZoTOPO) commits a criminal offense in the course of its activity or in its interest, not only he or she but also the company can be prosecuted. However, ZoTOPO cannot be applied to non-legal entities. Legal entities are business corporations, cooperatives or associations. On the contrary, they are not e.g. trust funds or natural persons doing business. Self-employed persons are criminally liable solely as natural persons under the Criminal Code. Regions or municipalities are also excluded from the scope of ZoTOP if they exercise public authority or the Czech Republic; however, the participation of such entities in a legal person does not exclude the criminal liability of such a legal person. A legal entity may be exonerated if it can prove that it has taken effective and effective measures to prevent crime (e.g. a compliance program).
If we consider whether the failure to wear a protective face mask could be considered a crime of spreading a contagious disease, it must be stated that it is primarily an offense under the Crisis Act (breach of the obligation imposed by an emergency measure), in respect of which a fine may be imposed on natural persons of up to CZK 2,000,000. If the person then has a positive viral level of which he or she knows about and has been instructed accordingly, or if he or she exhibits symptoms of COVID-19, then the offense of not wearing a mask or breaching quarantine or other risky behavior would without doubt certainly be on the table.