10 April, 2020
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Criminal law during a pandemic – the criminal code is the basis, but also the limit of a criminal act

The Criminal Code protects society from socially dangerous behavior but, in line with the principles of legal certainty and the rule of law, also protects suspects from the state. That second aspect of criminal justice, alarmed during the current state of emergency, deserves a front and center analysis.

Theory holds that criminal statutes are a kind of Magna Carta Libertatum[1] of criminal law. This means that unless all the facts included in the specific legal incrimination have materialized, no one can be convicted, or charged, with the crime. The Criminal Code is not only the “Holy Bible” of public prosecutors but also of suspects. Leaving aside for now the question of whether awareness of this exists in the media, we have analyzed case law and legislation.

When the High Judicial Council’s Conclusion on the Work of the Courts was announced after the state of emergency in Serbia was declared, criminal offenses whose processing is considered exigent in extraordinary circumstances were highlighted. These include illegal trade, failure to comply with health regulations during an epidemic, and transmission of an infectious disease. Also, trials are being heard in cases involving crimes committed in relation to the state of emergency, which includes the crime of causing panic and disorder can be brought.

As the state of emergency continues and the number of suspects for these crimes increases, the question of respect for the most important principle of criminal law, the principles of legality as well as the constitutional principles of the rule of law, legal certainty in criminal law, the right to equal protection of rights and the prohibition of discrimination have arisen.

 

Prescribing prohibited acts in law as an element of the general concept of a criminal act

During arrest and indictment for the crime of causing panic and disorder, the question of the existence of an element of some prohibited acts in the law has been raised for some of the acts that have been subsumed under this crime. Specifically, this crime entails the creating or reporting false news or allegations. Therefore, it is firstly necessary that the allegations are incorrect. However, for such crime to exist, it is necessary that specifically stipulated effect occurred, which is (alternatively) (i) causing panic, (ii) severe disruption of public order, or (iii) a significant disruption to the implementation of public authorities’ measures and decisions. The consequence must be existing and realized (therefore a possible effect isn’t relevant).

In this respect, if the published news is accurate, regardless of whether any of the effects have occurred, there is no criminal offense because the element of impermissibility of such actions has not been prescribed by the law. The same applies to the publication of fake news if the effects did not occur. Therefore, such actions are not prescribed by the law as forbidden. If the courts were to find otherwise,  there would be a violation of the principle of legality, the principle of legal certainty in criminal law, and also violation of the no punishment without the law principle of the European Convention on Human Rights (“Convention“).

The normative aspect of the consequence, precisely when it comes to the act of causing panic and disorder, was highlighted in national case law – the Appellate Court in Kragujevac. In order find the defendant guilty for committing the crime of causing panic and disorder, it is necessary to prove and explain the existence of the consequence of that act, which is to cause panic in the form of serious disruption to the public, and therefore it is not sufficient to merely state that the defendant caused panic and severely disrupted public order if no explanation is given as to how the consequence materialized[2].

The European Court of Human Rights (“European Court”), by way of its case law, further refined the principle of legality otherwise proclaimed with the first article of the Criminal Code of the Republic of Serbia.

The Court held that Article 7 of the Convention (No punishment without law) also implies that criminal statutes must not be extensively construed to an accused’s detriment. From this principle, it follows that a criminal act must be clearly defined in law. Individuals need to know, on the basis of the text of a specific provision, which behavior will make them criminally responsible (case of Cantoni v. France, paragraph 29).

When it is said that a punishment can only be by virtue of the law, the law does not refer to the mere existence of a particular provision, but it is also necessary that the certain qualitative requirements are met. These requirements concern, inter alia, the predictability of punishment for certain conduct and the related definition of a specific criminal act (case of Del Río Prada v. Spain, paragraph 91).

When it comes to the criminal act of failure to comply with health regulations during an epidemic, the extensive legal formulation itself can also call into question the quality of predictability in the law. The Criminal Code stipulates that whoever, during an epidemic, fails to act pursuant to regulations, decisions or orders setting forth measures to prevent or combat that epidemic, shall be punished. This is therefore a blanket criminal act, which means that individuals from other relevant regulations than the Criminal Code will find out which conduct they will be punished for. The large number of such regulations and measures, which are rendered and repealed from day to day, can jeopardize legal certainty and the ability of the public to predict which behavior is punishable.

Also, in order to protect the principle of legality, in the case of this criminal act, it is necessary to determine in particular which decisions of the public authorities fall under the measures to combat an epidemic. For example, the disputed Conclusion of the Government of Serbia (previously discussed in our article https://www.coronavirus.geciclaw.com/government-invalidated-its-conclusion-on-centralizing-publication-of-information-about-the-current-state-and-consequences-of-the-covid-19-spread/), which centralized the publication of information on a pandemic solely through the Crisis Staff, proclaimed the publication of information as a measure of protection against disease. If the Conclusion had not been repealed after one day of application, the question would be whether then the publication of accurate news might be deemed as failure to comply with health regulations during an epidemic, considering that, as we explained above, providing accurate information cannot be classed as the crime of causing panic and disorder. Hence, blanket acts like this can certainly jeopardize the principles of legality and predictability in law. In a situation where the work of Parliament is suspended and regulations are being rendered and withdrawn day by day, this danger is compounded.

However, in such extensive descriptions of criminal acts such as failure to comply with health regulations during an epidemic, special care must be taken to ensure that there are no major differences in judgments handed down covering similar facts. Despite case law not being a source of law in Serbia, courts cannot hastily refuse to consider other judgments in similar cases, because it is possible that their judgments may not endure the scrutiny of higher instance courts. This crime is made even more pervasive by the fact that (unlike the spread of panic and disorder), no specific consequence is stipulated, but an accused will be punished for the abstract danger itself. If drastically different judgments appear, namely, if regulations are applied haphazardly to the same or similar facts, the case-law of the Constitutional Court could serve as a guideline for the courts of appeal. Namely, the Constitutional Court of the Republic of Serbia stated that a violation of the right to legal certainty occurs when different decisional practices of the highest instance courts put individuals, who are in the same factual and legal situation, in an unequal position[3].

 

[1] Drakić (2015) O nastanku mera bezbednosti kao krivičnih sankcija; Anali Pravnog fakulteta u Beogradu; Vol. 63, br. 1

[2] Ruling of the Appellate Court in Kragujevac Kž1 2081/2010 dated November 5, 2010

[3] Constitutional Court Ruling Už 1948/2014 dated November 24, 2017