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30.06
2020

Non-compliance with measures for the prophylaxis, prevention and/or control of epidemic diseases, if this endangered public healthNon-compliance with measures for the prophylaxis, prevention and/or control of epidemic diseases, if this endangered public health

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On 30 June 2020, the Court delivered a Judgment on the constitutional review of Article 761 para. (1) of the Contravention Code (Judgement no. 18 of 30.06.2020).

The Court analyzed the applications in the light of Articles 20, 22 and 46, in conjunction with Articles 1 para. (3), 23 para. (2) and 54 para. (2) of the Constitution.

In order to assess whether the contested provisions comply with the constitutional standards, the Court examined them under two aspects: a) the compliance with the requirements of the law and b) the compliance with the principle of individualization of the penalty.

 a) On the compliance with the requirements of the law

On the compliance with the foreseeable requirement the Court noted that Article 761 para. (1) of the Contravention Code is a reference rule. It cannot be viewed in isolation, but in conjunction with other applicable normative acts.

In this regard, the Court noted that there are several acts establishing measures for the prophylaxis, prevention and/or control of epidemic diseases. Moreover, these measures may be adopted in the case of several epidemic diseases, including the coronavirus pandemic (COVID-19).

The Court therefore emphasized that the measures referred to in Article 761 para. (1) of the Contravention Code are established according to the nature and evolution of the epidemic disease, the rules of prophylaxis and the methods of treatment of each epidemic disease. In this respect, the Court noted that the ascertaining agents must prove and the courts must verify in each particular case by which actions/omissions the person endangered public health.

In this regard, the Court noted that Article 761 para. (1) of the Contravention Code provides for the endangerment of public health as a sine qua non condition for committing the contravention. The lack of establishing a danger to public health results in the non-meeting of the objective side as a constituent element of the contravention.

Therefore, the Court stressed that the provisions of Article 761 para. (1) of the Contravention Code, "non-compliance with measures for the prophylaxis, prevention and / or control of epidemic diseases, if it endangered public health" are accessible and foreseeable, from the perspective of the lawfulness of the substantial criminal law (nullum crimen, nulla poena sine lege).

b) On the compliance with the principle of individualization of the penalty of Article 761 para. (1) of the Contravention Code

The Court held that the Parliament cannot regulate a penalty in a way to deprive the court of the possibility of individualizing it effectively and reasonably. By limiting the role of the courts, it lacks the guarantees of the right to a fair trial, guaranteed by Articles 20 of the Constitution and 6 of the European Convention.

In this respect, the Court has ruled that not only a fixed penalty set by the legislator, but also a relatively small difference between the minimum and the maximum limit of the penalty, depending on the harmful act and the multitude of factual means of committing it, are likely to affect the right to a fair trial, by restricting the jurisdiction of the courts to exercise its full jurisdiction over the individualization and opportunity of the penalty.

Therefore, the Court stressed out the a relatively small difference between the minimum of 450 conventional units and the maximum of 500 conventional units of a penalty limits does not give the courts the opportunity to assess the proportionality of the penalty applied in relation to the offence and the circumstances of the case, in order to ensure a fair balance between the aim pursued and the means, and that the means used do not restrict the rights of the person more than necessary to achieve these aims.

Moreover, the Court pointed out that in the case of a legal person the fine can be set from 1000 conventional units to 1500 conventional units. Therefore, the Court noted that the margin between the minimum and maximum limit is 500 conventional units, which allows the courts to individualize the penalty according to the committed offense. The Court also held that factual means to commit the harmful act by a legal entity are not so varied as for individuals.

Therefore, the Court found that the text “from 450” in Article 761 para. (1) of the Contravention Code is unconstitutional.

The Court has ruled that, in order to enforce this judgment, until the modifications of the legal framework, for non-compliance with measures for the prophylaxis, prevention and/or control of epidemic diseases, if it endangered public health, a fine from the minimum limit, established by Article 34 para. (2) of the Contravention Code, up to the maximum limit of 500 conventional units, provided by Article 761 para. (1) of the Contravention Code shall be imposed to the individual.

 
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