Yes, a business and its responsible person may be liable for not abiding either the pre-existing or emergency regulations which have been imposed during the COVID-19 pandemic and especially during the state of emergency in Serbia. A breach of regulations, especially those regarding health and safety at work can lead to criminal liability.
Competent Prosecutor Office has full discretion to decide who will be prosecuted in criminal proceedings, including whether it will be the responsible person or/and its company. The criminal liability of a company is regulated by The Law on Liability of Legal Entities for Criminal Offences. The business will be responsible for the criminal offence committed by a responsible person who was acting within the scope of his/her tasks or powers with intent to acquire benefit(s) for the legal entity. The liability of the legal person exists if, the criminal offence which benefited the legal entity occurred due to the lack of supervision or control by the responsible person. However, the liability of the legal entity is based on the responsibility of the responsible person. If the responsible person was acting with intent, the legal entity may be liable for a criminal offence even if the criminal proceedings against the responsible person have been suspended or the charge has been dismissed.
The Serbian Criminal Code
The Serbian Criminal Code contains a penalty for the following relevant criminal offences:
- Failing to abide by the health regulations during an epidemic (Article 288 of the Criminal Code) - Whoever does not comply with regulations, decisions, or orders on measures that are set out during an epidemic of dangerous infectious diseases for its suppression or prevention, shall be punished by a fine or imprisonment for a term not exceeding three years.
- Transmitting infectious diseases (Article 249 of the Criminal Code) - Whoever does not act in accordance with regulations, decisions or orders for the suppression or prevention of infectious diseases, the result of which is that a contagious disease is transmitted, shall be punished by imprisonment for a term not exceeding three years.
Furthermore, the Criminal Code contains a criminal offence for Serious acts against human health (Criminal Code article 259) which provides a harsher penalty for certain criminal offences, including the above offence of “Transmitting infectious diseases” in cases where a consequence such as death has occurred.
Law on Health and Safety at Work
The Serbian Law on Health and Safety at Work ("Official Gazette of RS", Nos. 101/2005, 91/2015 and 113/2017 - other law) is of great importance and it is likely that many offences will be classified and penalised in accordance with this law. This law obliges the employer to implement all health and safety measures necessary and prescribed by the law, in order to provide a safe working environment for the employee and provides a fine for a failure to do so.
Emergency legislation
The Serbian Government declared a state of emergency on 15 March 2020 which was abolished on 7 May 2020. During this time many bylaws and decisions were enacted and they set out special health and safety measures and certain prohibitions.
It is likely that most offences and breaches of measures will be prosecuted as either of the two criminal offences or under the Law on Health and Safety at Work, but some measures do provide a penalty in the form of a fine:
- The Decree on Emergency Measures ("Official Gazette of RS", No. 31/2020, 36/2020, 38/2020 and 39/2020) prescribes domestic and international transport services including land, water and air travel during the state of emergency. Any company and [/ or?] the responsible person are to pay a prescribed fine if they allow or conduct transport while this activity is temporarily prohibited by this Decree.
- The second set of specific penalties stem from the Regulation limiting the retail price of protective equipment during the emergency caused by the COVID-19 disease which is caused by the SARS-CoV-2 virus ("Official Gazette of RS", No. 40/2020). Both the company and the responsible person will be fined if they breach this regulation.
- Finally, there is the Decree on Misdemeanour for Violation of the Order of the Minister of the Interior on Restriction and Prohibition of Movement of Persons in the Territory of the Republic of Serbia ("Official Gazette of RS", No. 39/2020). This Decree prescribes a fine to any person who violates the Order of the Minister regarding the prohibition of movement but it is not likely to affect companies.
Despite these few decisions which institute penalties, the question remains as to how offences committed during the COVID-19 pandemic may be classified.
It is likely that only serious offences will be prosecuted criminally and that the classification of the act is likely to vary on a case to case basis, depending in particular on the scale of the infringement and especially the consequences.
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