The COVID-19 pandemic brings to light penal and fine regulations that have hitherto led a shadowy existence. In particular, quarantine requirements and curfews and the punishability of violations thereof are currently under discussion. Companies and executives must also familiarize themselves with the provisions and official orders to avoid sanctions. Violations of curfews and requirements by authorities as well as quarantine violations are punishable by fines or even imprisonment. This applies not only to corona parties, but to any other violation of an requirements by authorities.
The legal basis for a curfew is Section 28(1) Protection against Infection Act. Accordingly, the competent authority takes the necessary protective measures, as far and as long as it is necessary to prevent the spread of transmissible diseases. As an example, the law mentions the observation of sick people, cases of suspected illnesses and of suspected infections, quarantine, and the ban of certain professional activities. As this is a non-exhaustive list of measures, curfews are also considered a necessary protective measure. It is left to the discretion of the authorities how these are specifically designed. This is then also the yardstick for the punishability of infringements (referred to as administrative accessoriness; see Szesny, in: AnwKomm-StGB, 3rd ed. 2020, before Sections 324 et seqq. [Environmental Criminal Law]).
Anyone who deliberately violates the order by the authorities for such a protective measure – quarantine, curfew, etc. – may be subject to punishment by fine or imprisonment for up to two years (Section 75(1) Protection against Infection Act). Prison sentences of between three months and five years may even be imposed if the violation spreads diseases or pathogens (Section 75(3) Protection against Infection Act). In the case of negligent infringements, prison sentences of up to one year are possible (Section 75(4) Protection against Infection Act).
While investigative procedures are currently being very much slowed down due to the corona pandemic, administrative offenses and crimes under the Protection against Infection Act will not become statute-barred until after three or even five years, leaving enough time for prosecution. Italy, which has been severely affected by COVID-19, and Switzerland are already rigorously pursuing violations of curfews and assembly bans.
The conditions and exceptions to curfews must also be carefully examined by employers. Obligating employees to appear at the workplace or permitting them to do so must be in accordance with orders by the authorities. Violations may result in sanctions not only for the employees but also for the employers. Employers may be liable under penal and the law relating to fines as abettors, aiders, or perpetrators of the breach of the curfew. Fines for the company will likely be ruled out, however, because quarantine and curfew are not obligations that affect the company as such or by which the company has been or should be enriched (Sections 130, 30 Act on Regulatory Offenses).
Violations of the obligation to report are also punishable by fines and possibly even criminal prosecution (Sections 6 and 7 Protection against Infection Act). Accordingly, the suspicion of a disease or certain diseases and the direct or indirect proof of certain pathogens are to be reported to the public health department. Among others, physicians and members of a medical and nursing profession are obligated to file such reports (Section 8 Protection against Infection Act). Violations of this obligation to report are punishable by fines of up to EUR 25,000. If physicians or other individuals obligated to file reports deliberately violate the obligation to report and thereby cause (further) spread of the disease or pathogen, prison sentences of up to five years may be imposed. The Protection against Infection Act also contains additional information and prevention provisions that are subject to fines.
These obligations are business-related obligations, the violation of which in companies – such as medical practices, nursing homes, etc. – may also lead to fines of up to EUR 10 million (Section 30 Act on Regulatory Offenses). Accordingly, the management bodies of medical or nursing companies must introduce appropriate measures to ensure that diseases and pathogens to be reported are detected and subsequently reported by their specialist staff.
Additional articles with important information are available on our topic page Coronavirus: What companies need to know now