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COVID-19’s criminal and regulatory aspects

22 de March de 2020


The Interministerial Ordinance No. 5 of March 17, 2020, issued by the Brazilian Ministries of Health and Justice and Public Security, established the compulsory nature of the measures provided by Federal Law No. 13,979, enacted to confront the current public health emergency. Such legislation, by its turn, provides measures to combat the public health emergency caused by COVID-19 and was regulated by the Ordinance No. 356/2020 of the Ministry of Health.

But how does it relates to my business?

First of all, a brief disclaimer (as all lawyer loves to say) that ordinances are not laws. In fact, ordinances are hierarchically inferior and subordinated to laws in terms of it effectiveness and content. In other words, we are not referring to a new law, but the regulation of obligations that have already been stipulated in a previous law, in this case Federal Law No. 13,979 itself.

In this emergency legislative scenario, new administrative, civil and criminal obligations are imposed on the business affairs.

Among other measures to combat the COVID-19 emergency established by Federal Law No. 13,979/2020, which require scientific evidence and strategic health information to be properly enforced by the authorities, we highlight the following: (i) requisition of private assets and services, upon subsequent and fair compensation; and (ii) the exceptional and temporary authorization to import products subjected to sanitary surveillance without registration with the Brazilian Health Regulatory Agency (Anvisa), in case such products are registered by a foreign sanitary authority and provided for in an act of the Ministry of Health.

It is worth mentioning that the Interministerial Ordinance No. 5/2020, as well as Ordinance No. 356/2020 and Federal Law No. 13,979/2020 do not establish which penalties would be subject to those who fail to comply with their rules. Such acts only establish that the offenders will be civilly, administratively and criminally liable.

From a regulatory perspective, it is possible to find answers regarding administrative liability in Federal Law No. 6,437/1977, which constitutes the infractions to the federal health legislation and establishes the applicable penalties. Failure to comply with the rules destined to combat COVID-19 could frame the offender in the legally provided conduct of “noncompliance with acts enacted by the competent sanitary authorities aiming at the application of the pertinent legislation”, among other conducts that lead to lighter penalties, detailed further below.

Once the conduct is properly identified, the sanitary authority may apply the following penalties, alternatively or cumulatively: (i) warning; (ii) seizure; (iii) destruction and/or interdiction of the product; (iv) suspension of sale and/or manufacture of the product; (v) cancellation of the products’  registration; (vi) partial or total interdiction of the establishment; (vii) cancellation of the authorization to operate the company; (viii) cancellation of the operating license of the establishment; (ix) prohibition of advertising; and (x) fine, which may range between BRL 2,000 to BRL 1.5 million, depending on the severity of the infraction.

Furthermore, the Interministerial Ordinance No. 5/2020 determines that, in case the misconduct negatively affects the finances of the Brazilian Unified Health System (SUS), the Brazilian Office of the Attorney General of the Federal Government may adopt measures against the offenders to repair it, without prejudice of any other claims filed by affected individuals.

It must be remembered that, from a criminal analysis, no company can be held accountable for a crime (except for environmental crimes). Individuals representing the company, however, can be held criminally accountable if it is proven that they had knowledge and willfulness to engage in criminal conduct or, in any way, gave cause to a crime. Hence, the criminal liability in Brazil is individual, personal and non-transferable.

Therefore, if a medical order, whether of quarantine or isolation, is ignored, the individual who failed may be held accountable for the crimes of contempt towards officials (article no. 330 of the Brazilian Criminal Code) or violation of a preventive health-care measure (article no. 268 of the Brazilian Criminal Code), unless the conduct constitutes a more serious offense, such as the case of an epidemic (article 267).

Nevertheless, the imprisonment of individuals is an exceptional and extreme measure and will not occur for every crime. As the first two aforementioned crimes are considered by the Brazilian legal framework less serious offenses (once their maximum imprisonment penalty is inferior to two years), those who perpetrate such crimes may submit to alternative measures. In the case, the ordinance itself already indicates that such measures would be: signature of the commitment to attend the acts of the process and to comply with the measures established in article 3rd of the Law No. 13,979 (isolation, quarantine, and performance of exams).

These new provisions enacted in light of the COVID-19’s pandemic represent the coercive power of the State, legally foreseen, to enforce positive behaviors in its population in order to protect the public health.

For more information, please address to:

Ludmilla Groch

ludmilla.groch@lefosse.com

Tel.: (+55) 11 3024 6464

Eduardo Carvalhaes

eduardo.carvalhaes@lefosse.com

Tel.: (+55) 11 3024 6310