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Misdemeanors During and Related to the State of Emergency Proclaimed Due to the Epidemic of the COVID19

Misdemeanors During and Related to the State of Emergency Proclaimed Due to the Epidemic of the COVID19

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Like many other states throughout the World, the Republic of Serbia (henceforth: the Republic) has proclaimed the state of emergency due to the epidemic of the infectious disease COVID-19 on the whole territory of the Republic (henceforth: the State of Emergency) by rendering the Decision on Proclamation of the State of Emergency.

This decision was rendered on 15 March 2020 and entered into force on the same day. Further, on 19 March 2020 the authorities rendered the Order on Proclamation of the Epidemic of the disease COVID-19 which also entered into force on the same day and in accordance with which the epidemic of major importance has been proclaimed (henceforth: the Epidemic). In relation to the State of Emergency and due to the Epidemic, the competent authorities of the Republic have rendered several relevant regulations, decisions, conclusions and orders. Some of the mentioned acts are rendered on the basis or in relation to the Law on Protection of People from Infectious Diseases, whereas the others prescribe special misdemeanors for certain behaviors, i.e. for breaking the rules prescribed in them or not acting in accordance with them.

Unlike the misdemeanors prescribed in the Law on Protection of People from Infectious Diseases, the ones which are prescribed in general acts rendered during and in relation to the State of Emergency apply only to the delinquent behavior during and in relation to the State of Emergency and Epidemic. After the Epidemic and the State of Emergency is revoked, the behavior in question will not be punishable. We believe that it is useful to present misdemeanors which are, in accordance with our opinion, likely to be committed during and in relation to the State of Emergency, i.e. both the ones prescribed in the acts rendered in relation to the Epidemic and the State of Emergency, as well as the relevant misdemeanors prescribed in the Law on Protection of People from Infectious Diseases.

Special Misdemeanors prescribed in the general acts rendered during and in relation to the Epidemic and the State of Emergency

On 15 March 2020, the Government has rendered and the President countersigned the Regulation on the Measures during the State of Emergency (henceforth: the Regulation on Measures) which entered into force on the same day. The said regulation has been amended several times, namely on 19, 20, 21, 27 and 28 March 2020. Article 1 of the Regulation on Measures prescribes special measures related to deviation from human rights and the rights of minorities prescribed in the Constitution during the State of Emergency. Among other measures, the article 2a of the Regulation on Measures stipulates that takeoff and landing is forbidden on all airports on the territory of the Republic to all aircrafts conducting international transport of passengers for the purpose of preventing the import and spread of the infectious diseases.

The Regulation on Measures further stipulates that the ban in question does not apply to the aircrafts transporting cargo and posts, search and rescue aircrafts, flights conducted for humanitarian purposes and emergency medical treatment, technical landing of the aircrafts registered in the Serbian Aircraft Registry, emergency landing, state aircrafts and special purpose aircrafts. The article 4v of the Regulation on Measures prescribes the special misdemeanor for the legal person and the responsible person in the legal person if they execute or allow takeoff or landing of the aircraft conducting international transport of passengers contrary to the article 4a of the said regulation.

The Regulation on Measures prescribes the penalty ranging from EUR 1,000,000.00 to EUR 2,000,000.00 in the RSD countervalue for the legal person and from EUR 50,000.00 to EUR 150,000.00 in the RSD countervalue for the responsible person in the legal person. The Regulation on Measures further prescribes that the imposed sentence does not affect the compensation that the Republic, through its air traffic authorities, may claim from the legal person who commits this misdemeanor.

In article 4b the Regulation on Measures stipulates several measures related to ground traffic. Namely, it prescribes that for the purpose of prevention of spread of infectious diseases the public transportation of passengers in buses is forbidden, with exception to the special transportation organized by the businesses solely for the purpose of the execution of work tasks by the employees. Further, the Regulation on Measures prescribed the ban on all international and domestic rail and water traffic for passenger transport. The article 4g of the Regulation on Measures prescribes the special misdemeanor for the legal person and the responsible person in the legal person if they conduct intercity transport of passengers in buses, i.e. if they conduct international or domestic railway or water traffic for the purpose of passenger transport.

The Regulation on Measures prescribes the penalty ranging from RSD 1,000,000.00 to RSD 2,000,000.00 for the legal person and from RSD 50,000.00 to RSD 150,000.00 for the responsible person in the legal person. Special misdemeanor is also prescribed for the natural persons or entrepreneurs who conduct international or domestic transport of passengers by water. The Regulation on Measures prescribes the penalty for this misdemeanor ranging from RSD 50,000.00 to RSD 150,000.00 for a natural person and from RSD 300,000.00 to RSD 1,000,000.00 for an entrepreneur. On 22 March 2020 the Government of the Republic of Serbia has rendered the Regulation on limiting the retail price of protective equipment during the state of emergency due to the disease Covid-19 caused by the virus SARS-CoV-2 (henceforth: the Regulation on Prices of Protective Equipment).

This regulation limits the retail prices of the protective equipment – masks (henceforth: the Protective Equipment) during the State of Emergency and is related to the Protective Equipment distributed by the Republic Health Insurance Fund to the business entities for the purpose of timely and equal market supply.

In accordance with the article 2 of the Regulation on Prices of the Protective Equipment, after receiving an order from an entity that conducts distribution of the Protective Equipment, the Republic Health Insurance Fund provides the said entity with at least 50,000.00 pieces of the Protective Equipment.

In accordance with the article 2 paragraph 2 of the Regulation on Prices of Protective Equipment, the legal entity that conducts distribution is obliged to provide the Republic Health Insurance Fund with the list of retail stores that sell the Protective Equipment and to whom it plans to distribute the Protective Equipment. If the information presented in accordance with the article 2 paragraph 2 of the Regulation on Prices of Protective Equipment is false, in accordance with the article 5 of the said regulation the legal entity will be penalized in the amount ranging from RSD 300,000.00 to RSD 2,000,000.00, whereas the responsible person within the legal entity will be penalized in the amount ranging from RSD 50,000.00 to RSD 150,000.00. In accordance with the article 3 of the Regulation on Prices of the Protective Equipment, the maximum price for the Protective Equipment acquired under this regulation is RSD 120.00 per piece, including VAT.

Further, the article 4 of the same regulation prescribes that entities conducting retail sale of the Protective Equipment may sell up to 10 pieces of the Protective Equipment to a single person-the final costumer during one purchase, notwithstanding whether this person acquires the Protective Equipment for himself/herself or for a legal entity. The Regulation on Prices of the Protective Equipment prescribes the penalties for acting in violation of its articles 3 and 4 for natural persons, entrepreneurs, legal entities and responsible persons within legal entities. The prescribed penalty for a legal entity ranges from RSD 300,000.00 to RSD 2,000,000.00, for entrepreneurs from RSD 300.000,00 to RSD 2,000,000.00 and for natural persons and responsible persons in legal entities from RSD 50,000.00 to RSD 150,000.00.

When it comes to everyday life, the measures that attract most attention from the media are the ones imposed in the Order on Restriction and Prohibition of Movement of Persons on the Territory of the Republic of Serbia which was rendered by the Minster of Interior with consent of the Minister of Health on 18 March 2020 (henceforth: the Order). This order entered into force on the same day and has been amended twice, namely on 21 and 22 March 2020.

The measures related to the restriction and prohibition of movement are imposed for the purpose of suppression and prevention of spread of COVID-19 and protection of the people from this infectious disease. The article 1 of the Order prescribes the prohibition of movement in public places, i.e. outside apartments, spaces and objects for living, spaces for living within the apartment buildings and outside household (yards) to:

• All persons older than 65 years in settlements with more than 5,000 residents;

• All persons older than 70 years in settlements with up to 5,000 residents.

Article 2 of the Order prescribes prohibition to all persons to leave the apartments, spaces and objects for living, spaces for living within the apartment buildings and households (yards) from 5 PM to 5 AM on working days. On Saturdays the said prohibition lasts from 5 PM to 3 AM and on Sundays from 3 PM to 5 AM. The described prohibitions do not apply to licensed healthcare workers, Ministry of Interior, Ministry of Defense, state security services and Serbian Army officers on duty, persons with the special movement certificate issued by the Ministry of Interior, Serbian and foreign crew members of the vehicles, cargo ships, trains and aircrafts which are conducting international and domestic land, water and air transport and, finally, persons who are in urgent need of medical care with maximum two persons in escort.

The article 5 of the Order prescribes that non-compliance with the cited provisions implies criminal responsibility in accordance with the Criminal Law, as well as responsibility for misdemeanor in accordance with the Regulation on Misdemeanor for Violating the Order on Restriction and Prohibition of Movement of Persons on the Territory of the Republic of Serbia Rendered by the Minister of Interior (henceforth: the Regulation on Misdemeanor). The Regulation on Misdemeanor was rendered on 21 March 2020 and entered into force on the same day.

It is stipulated in the article 1 of the Regulation on Misdemeanor that the person who violates the prohibition prescribed in the articles 1 and 2 of the Order shall be penalized in the amount of RSD 50,000.00 to RSD 150,000.00. Further, the article 2 of the said regulation prescribes that misdemeanor proceedings can be initiated and finalized even if the criminal procedure for the same violation has been initiated or is in progress, notwithstanding the limitation from the article 8 paragraph 3 of the Law on Misdemeanors.

The above mentioned article 8 paragraph 3 of the Law on Misdemeanors stipulates that the misdemeanor procedure cannot be initiated if the perpetrator has been found guilty for the same illegal act in the criminal procedure. Further the cited article prescribes that if such procedure has already been initiated, it cannot be continued or finalized. The cited article 2 of the Regulation on Misdemeanor represents a clear example of deviation from the human rights granted by the Constitution. Such deviation is allowed during the proclaimed State of Emergency in accordance with the article 200 of the Constitution.

The deviation in question is related to the right granted in the article 34 paragraph 4 of the Constitution, which stipulates that no person may be prosecuted or sentenced for a criminal offence for which he has been acquitted or convicted by a final judgement, for which the charges have been rejected or criminal proceedings dismissed by final judgement, nor may court ruling be altered to the detriment of a person charged with criminal offence by extraordinary legal remedy. The same prohibition is applicable to all other proceedings conducted for any other act punishable by law. Therefore, if a person commits the misdemeanor prescribed in the Regulation on Misdemeanor, he/ she can be prosecuted and sentenced both in criminal and in the misdemeanor proceeding for the violation prescribed in the said regulation.

Some of the Misdemeanors Prescribed in the Law on Protection of People from Infectious Diseases

As it was already said in the beginning, the Law on Protection of People from Infectious Diseases also prescribes several misdemeanors for violations, i.e. for not acting in accordance with this law. Since the law in question prescribes various types of misdemeanors, we will hereby describe only the ones which we believe to be the most likely to be committed during the State of Emergency and Epidemic.

We have all been informed by the media that certain individuals are violating quarantine imposed in accordance with the Order on Organizing and Implementation of Quarantine (henceforth: the Order on Quarantine) which was rendered on 16 March 2020 by the Minister of Health and entered into force on the next day. The Order on Quarantine is directly related to the Decision on Declaring the Disease COVID-19 Caused by the Virus SARS-CoV-2, an Infectious Disease (henceforth: the Decision on COVID-19) which was rendered by the Government on 10 March 2020, entered into force on the same day and amended on 11, 13, 14, 15, 16, 18, 19, 20, 21, 27 and 28 March 2020.

The order on quarantine orders the organization and implementation of quarantine for the purpose of suppression and preventing the spread of COVID-19. The quarantine measures include, inter alia, restriction of movement and mandatory medical examinations during the maximum incubation period to persons who have (likely) been exposed to COVID-19. The paras. 3, 4 and 5 of the Decision on COVID-19 prescribe that the persons who are infected with COVID-19/the persons with established presence of the virus SARS-CoV-2 must be isolated and treated in specially prepared objects, i.e. they are obliged to accept the isolation and treatment, as well as to act in accordance with the measures and instructions given by the competent doctor-epidemiologist.

It is further prescribed that if the infected person fails to act in accordance with everything said above, they will be forcedly isolated in the presence of the Ministry of Interior officer.

In relation to this, in the article 85 paragraph 1 item 5 the Law on Protection of People from Infectious Diseases prescribes penalty ranging from RSD 30,000.00 to RSD 150,000.00 for the persons not abiding by the measures related to quarantine. Further in relation to quarantine, the same law prescribes misdemeanor for the failure to put the object at disposal for the purpose of suppression of infectious disease if that object has been determined as quarantine by the Government. The prescribed penalties for the said misdemeanors range from RSD 50,000.00 to RSD 500,000.00 for legal entities, from RSD 30,000.00 to RSD 150,000.00 for the responsible persons in legal entities and from RSD 30,000.00 to RSD 150,000.00 for entrepreneurs.

We have also been informed by the media that certain individuals are hiding the symptoms of the disease and continue to engage in regular activities, by which actions they are endangering significant number of people. In relation to this, the previously cited article, in its items 1 and 9, prescribes the same penalty for failure to tell true and to give complete and accurate information during the epidemiologic examination, when such information is relevant for discovering the source of the disease and the ways of its transmission, i.e. for discovering, prevention and suppression of epidemic of such disease.

Same penalty is prescribed for the person who fails to undertake medical examination if such examination is necessary, or is infected with the disease or is its carrier, but fails to provide correct information or does not abide by the measures or instructions given by the competent institution or orders given by the doctor, especially in relation to prevention of spreading the disease. Finally, we consider that it is of importance for some individuals, legal entities and their responsible persons to be informed about their duty under the article 53 paragraph 1 item 4 of the Law on Protection of People from Infectious Diseases, which stipulates the obligatory participation of all legal entities, entrepreneurs and citizens in suppression of an infectious disease, which encompasses the use of objects, equipment and vehicles for this purpose.

Failure to act in accordance with the measures and failure to participate in infectious disease suppression is qualified as misdemeanor under the article 77 para 1 item 3 of the same law. The prescribed penalty ranges from RSD 50,000.00 to RSD 2,000,000.00 for legal entities, from RSD 30,000.00 to RSD 150,000.00 for responsible person in legal entity, from RSD 50,000.00 to RSD 500,000.00 for entrepreneurs and from RSD 20,000.00 to RSD 150,000.00 for natural persons. We hope that this information, which we tried to present in briefest form, will be of use to you in your work and life in general during the state of emergency.

We hope that we managed to clarify which actions may be punishable as misdemeanors during the State of Emergency and the Epidemic, as well as the duties of each and every one of us during this troubled period.

We believe that you already know, but we will use this opportunity to repeat that we remain at your disposal at these difficult times. We continue working for our clients and are available if you need any assistance or consultation.

By Jelena Milinovic, Partner, JPM Jankovic Popovic Mitic

JPM Jankovic Popovic Mitic at a Glance

JPM Jankovic Popovic Mitic is the leading law firm in Serbia, providing full service in Serbia and SEE region. Since 1991, we have been serving national and international clients from various industries in establishing, building and maintaining their business presence in Serbia and SEE. Our expertise, commitment, experience and the highest standard practice has been proven and recognized on the market. Our track record comprises numerous successfully completed landmark transactions in a developing and transitional economy. We are committed to finding solutions and providing flexibility of choice to our clients.

JPM is the founding member of Top-tier Legal Adriatic (TLA) a Vienna-based alliance of leading law firms operating in the Adriatic region. It is an association of independent business law firms with an excellent reputation obtained both locally and internationally, providing a full range of legal services to foreign and domestic clients hailing from various industries.

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