The purpose of this memorandum is to summarize and clarify - on the basis of the recent legislative measures - on the one hand the possible consequences deriving from the breach of the containment measures introduced by the Government to stem the epidemiological phenomenon caused by the COVID-19 virus, and on the other hand the impact that this emergency legislation necessarily has (and will have) on criminal proceedings.
We will provide a general outline both on the current framework of criminal and administrative sanctions to ensure compliance with the provisions adopted, and on the measures, in the field of justice, to ensure compliance with procedural deadlines and proper holding of hearings.
Article 4 of Decree Law No. 19 of 25 March 2020 - specifically entitled “Sanctions and controls” - provides for administrative and criminal sanctions against those who are responsible for breaches of the containment measures, which have been recently updated by the D.P.C.M. (Decree of the President of the Council of Ministers) of 26 April 2020.
It is necessary to make a first distinction depending on whether or not the offender is a subject already recognized as positive to COVID-19:
The aforementioned sanction will be increased by up to 1/3 in the case of breaches committed using a vehicle. The fine will be reduced by 30% if payment is made within 5 days of notification or service taking place. Moreover, the fine will be doubled in case of repeated violations.
In the alternative:
In addition, the various emergency measures, besides providing for containment measures and related sanctions against natural persons, have, as is well known, placed restrictions on certain activities.
This line has been followed, with some flexibility, also by the most recent measure dated 26 April 2020, which still maintains the accessory administrative sanction of the closure of business or activity from 5 to 30 days - already contemplated by Decree Law No. 19 of 25 March 2020 - for those failing to comply with the measures. The sanction in question can also be applied provisionally, when finding the violation, for a period not exceeding 5 days, which will be subsequently deducted from the administrative sanction finally imposed. In case of multiple violations, the sanction at issue will be applied to the maximum extent.
With regard to the measures most recently adopted, the D.P.C.M. of 26 April 2020 essentially remained along the lines of the previous legislation.
Indeed, to date, cinemas, theatres, amusement arcades, bingo halls, discos and similar establishments continue to remain closed; nothing has changed also for gyms, sports centres, swimming pools, wellness and spa centres, schools, kindergartens and ski resorts. Banking, financial and insurance services are guaranteed at all times, subject to compliance with health and hygiene regulations.
With regard to retail trade, meaning both small shops and medium and large scale retailers, the latest decree has listed once again in the specific “Annex 1” the activities considered as essential and thus not subject to suspension, which almost entirely coincide with those indicated in the previous measures. Commercial establishments included in the list are, however, required to ensure distancing, regulated entry and to reduce dwell times to a minimum.
On the other hand, there are some novelties in the catering sector, where in addition to home delivery - already permitted by law - take-away catering will be allowed, subject, of course, to compliance with hygiene and health regulations and maintaining a social distance of one metre, in addition to the prohibition of consumption inside and lingering outside the premises.
Finally, with particular regard to production and commercial activities, Article 2 of the new measure refers to its Annex No. 3 for a list of all activities exempt from the general obligation of suspension on the entire national territory. Nonetheless, said activities are required to comply with the various “anti – COVID” protocols signed and attached to the measure, under penalty of suspension of the activity until safety conditions are restored. Suspended activities may still be organized through remote and agile working. It is important to point out that activities that are about to reopen on 4 May may carry out all pre-reopening requirements already from 27 April.
With regard to professional activities, Article 1, paragraph 1, letter ii), of the D.P.C.M. of 26 April 2020, following exactly what was stated in the previous legislation, has recommended that:
a) the maximum use of agile working methods be implemented for activities that can be carried out at home or at a distance;
b) paid holidays and paid leave for employees as well as the other instruments provided for by collective bargaining agreements be encouraged;
c) anti-infection safety protocols be put in place and, where it is not possible to respect the interpersonal distance of one metre as the main containment measure, individual protection devices be adopted;
d) workplace sanitation be encouraged, also using forms of social shock absorbers for this purpose.
So, there is no suspension in professional activities, but simple recommendations aimed at avoiding risks of infection.
Before the entry into force of Legislative Decree No. 19 of 25 March 2020, those who failed to comply with the Authority’s measures by breaching the restrictions were punishable, without distinction, according to Article 650 of the Italian Criminal Code, with imprisonment for up to three months or a fine of up to €206.00. This was without prejudice to the accessory administrative sanction for economic activities. The issuance of the abovementioned measure has introduced the “decriminalization” of the breach of containment measures, except in the case of persons who have tested positive for the virus and breached quarantine, now subject to the criminal sanctions indicated above; indeed, Article 4, paragraph 1, of the aforementioned decree provides that Article 650 of the Italian Criminal Code is not applicable in such case and that the administrative sanctions already outlined in the previous paragraph shall apply. Consequently, the following conclusions can be drawn:
Due to the rapid succession of emergency regulations, it is necessary to clarify which are the current rules on compliance with procedural deadlines and postponement/holding of hearings in criminal matters.
N.B.: The extension of the suspension of deadlines and the postponement of hearings until 11 May 2020 shall not apply to proceedings in which the deadlines provided for by Article 304 of the Italian Code of Criminal Procedure expire in the six months following the date of 11 May 2020, pursuant to Article 36, paragraph 2, of Decree Law of 8 April 2020.
will be suspended for said additional period, but in any case not later than 30 June.
In addition to said tools, the DGSIA of the Ministry of Justice has also provided for the use of applications such as “TEAMS” and “SKYPE FOR BUSINESS”.
In the case of hearings that can be held upon request, the Court of Milan has indicated that the request for the hearing to be held must be lodged by the accused or their defendants within 5 days before the date of the hearing in order to make arrangements for the remote participation of the accused.
To avoid the risk of infection, hearings of oral arguments will be held in camera.
This article is for information purposes only and is not, and cannot be intended as, a professional opinion on the topics dealt with. For further information please contact your counsel or send an email to Roberta Guaineri.
