Despre (im)posibilitatea reținerii infracțiunii de zădărnicire a combaterii bolilor în cazul persoanelor infectate cu SARS-CoV-2 care au refuzat internarea în perioada stării de urgență
On the (im)possibility of retaining the criminal offence of thwarting disease control in the case of persons infected with SARS-CoV-2 who refused hospitalization during the state of emergency

Summary/Abstract: During the state of emergency both some press articles and the official communiques of the prosecutor’s offices mentioned the criminal investigation in the case of persons who, being confirmed as infected with SARS-CoV-2, refused to be hospitalized. The present study does not aim to provide a classic analysis of the crime of thwarting disease control, but is limited to trying to find an answer to the question of whether it is possible to retain this criminal offence in the case of infected persons who refuse hospitalization. As such, this paper discusses the current Romanian legislation and concludes that, having regard to both the provisions of the Protocol for the treatment of SARS-CoV-2 virus infection and the systematic interpretation of the legal framework, since the Minister of Health enacted only measures to prevent and manage the emergency generated by the pandemic, as well as the obligation to diagnose the symptomatic persons, the measure of hospitalization cannot result exclusively from the unilateral will of the doctor, in reality the will of the latter playing no role, but must derive from the law in order to impose itself on both the patient and the doctor. Therefore it cannot be retained the crime of thwarting disease control in the case of infected persons who refused to be hospitalized. Following the end of the state of emergency, the Romanian Constitutional Court ruled on the constitutionality of the provisions that allowed the Minister of Health to impose the measure of involuntary hospitalization in the case of persons infected with SARS-CoV-2. The declaration of unconstitutionality does not change in any way the relevance of the above conclusions as our analysis was not contingent to the result of the constitutionality review, but it will not be possible to retain the criminal offence of thwarting disease control in the case of persons infected with SARS-CoV-2 who refused hospitalization during the state of emergency, even assuming that – hypothetically – the courts would consider that there was compulsory a hospitalization that burdened the infected persons.

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