IV.1. International Experience in Imposing Sanctions for Quarantine Violations

Under the influence of the coronavirus pandemic, quarantine restrictions have been reflected in the legal regulation of most countries. Of course, depending on the initial conditions of the spread and the severity of the threat, the measures taken vary according to the scale and severity of the penalties. Consider the main examples with the caveat that the size and limits of sanctions for violating quarantine abroad may change as the epidemiological situation improves or worsens.

We are all accustomed to hearing terms like “quarantine,” “isolation,” and “social distancing.” Sometimes, they are interchanged, which is not correct. Even though these measures pursue the same goal-to slow down the transmission of diseases-they are different in nature:

(i) Isolation is the separation of patients to prevent or limit further transmission of infection.

(ii) Quarantine is the restriction of the movement of healthy people who may be carriers of the virus, usually for the period of incubation until symptoms or a positive test for the disease appear (after which they will be isolated).

(iii) Social distancing is a range of actions, varying from collective to individual behavior, aimed at reducing contact between people-this includes actions such as closing schools, banning large gatherings, and encouraging people to increase their physical distance from each other.

(iv) Lockdown is a colloquial term for some or all of the previous terms but is usually understood as a legal regime severely restricting the movement of citizens.

Since China imposed a quarantine in Hubei province in January 2020, many other states have followed suit by imposing certain quarantine and/or social distancing measures. These actions range from issuing general guidelines and rules advising people to restrict social interaction to strict binding orders for confinement at home. Measures have been taken both in large geographic areas (for example, China’s massive quarantine for 57 million people in Hubei province) and in smaller ones (for example, the “containment zone” in New Rochelle, New York, in the USA). In the United States, quarantine measures of varying degrees of strictness covered 200 million people in 21 states (^{Mervosh, Lu & Swales, 2020}).

As a result, to comply with quarantine measures, many states have turned to criminal law to enforce some of these public health measures in their response to Covid-19.

Thus, the most severe measures of influence for violating quarantine conditions were introduced by the Chinese government: imprisonment for up to ten years, and for those infected for refusing treatment, isolation, infecting others, the death penalty (Ukrinform, 2020).

The experience of Italy shows that moderate fines are not enough to encourage quarantine restrictions-the responsibility increased abruptly as the situation worsened. In total, as of April 1, 2020, in Italy, a person with a confirmed SARS-CoV-2 infection was threatened with a fine of 4,000 euros or imprisonment for one to five years in case of a quarantine violation. There were also sanctions for violating curfews, being on the street without an explanatory note, leaving the boundaries of the place of residence without urgency, and only on receipt of personal responsibility. The consequences of non-compliance with quarantine also include a 30-day ban on “any activity,” as well as confiscation of the vehicle. The consequences were not long in coming, and more than 40,000 people were charged by the authorities with violating quarantine rules (^{Tondo, 2020}).

In Germany, the legal basis for liability for violation of quarantine conditions is the law on protection against infectious diseases. It is based on this legal act that restrictions on the rights of individuals related to freedom of movement, public assembly, or personal inviolability are possible. Persons who have become ill or have reasonable grounds to believe that they have been infected with the Coronavirus should undergo 14 days of self-isolation at home. In the case of deteriorating health, hospitalization is provided. The amount of the fine provided by German criminal liability laws is calculated by the court taking into account the level of material security of the guilty person, which can range from 150 to 25,000 euros in fines. Imprisonment for up to two years is also envisaged. In the case of infection of another person with Coronavirus as a result of a deliberate violation of quarantine restrictions in Germany, criminal liability in the form of imprisonment for up to five years is provided (^{Perepadia, 2020}).

Finland and Lithuania will not apply expulsions and administrative penalties to foreign nationals whose legal stay has expired during the pandemic and who have not been able to leave their territory voluntarily. In Lithuania, fines are imposed for violating quarantine conditions: from 500 to 1,500 euros for individuals; from 1500 to 6000 euros for legal entities (^{Chizhik, 2020}).

In Turkey, a fine of USD 130 is imposed for violating the requirements for wearing protective masks.

The Israeli authorities have also taken strict measures, even against ultra-religious communities. Similar to the world practice of counteracting the spread of Coronavirus, it was forbidden to move more than 100 m from the place of residence (^{Dmytruk, 2020}). As a result, there are 86 criminal cases in the first month of the restrictions (^{Ron, 2020}).

In the United Arab Emirates, which has introduced a 14-day quarantine for anyone entering the country, the attorney general noted that those who violate quarantine requirements are committing a “punishable crime” (^{Turak, 2020}).

In Qatar, fines for violating quarantine restrictions or burying rules in a Covid-19 pandemic are up to USD 55,000. Imprisonment for up to three years is also provided (Word and Deed, How to fine for violating quarantine rules in Ukraine and other countries, 2020).

The Indian authorities, by imposing quarantine, provided administrative penalties for violations, the amount and limits of which vary from state to state, as well as imprisonment for a term of one to three years (^{Navrotska, 2020}).

Since tightening community quarantines in the Philippines (in mid-March), police have arrested hundreds of people on a variety of charges, including quarantine violations and social distancing measures.

Likewise, Argentina announced that anyone who fails to comply with mandatory isolation or quarantine rules will face a prison sentence from six months to two years (^{Alcoba, 2020}).

Thus, we can see that across the globe, states have used criminal law and the power of law enforcement agencies. But when countries use criminal law, as they do now in their response to Covid-19, they are using the most brutal tool at their disposal. History recalls that when emergency powers are introduced in connection with situations that qualify as “emergencies that threaten the life of the nation” (good faith or bad faith is another matter), they have an odd way of penetrating the usual legal and political framework. So, from the latest examples, we can recall the 2001 Patriotic Act in the United States, which endowed the special services with a wide range of powers, including wiretapping of all citizens of the country, in the name of the good goal of combating terrorism. The act was canceled only in 2015 in connection with numerous scandals of published leaks. In the same 2015, France has already introduced emergency measures in response to the terrorist attacks in Paris-now these measures are reflected in national legislation permanently. Thus, emergency powers are normalized.

In the context of criminal justice and public health, the abuse and overuse of criminal law in public health emergencies set an alarming precedent for how criminal law can be used after the crisis has subsided.

The role of criminal law in enforcing public health measures should be limited based on scientific evidence and respect for human rights. Tuberculosis is a similar area from which valuable lessons can be learned in assessing the feasibility of using criminal law to enforce public health responses to Covid-19 (^{Sun & Zilli, 2020}).

Although tuberculosis is a serious contagious disease, it can be cured if it is detected and treated promptly. However, it may be necessary to isolate a person with open tuberculosis to prevent further transmission. Effective responses to tuberculosis, like other communicable diseases, depend on voluntary and informed decision-making for prevention, treatment, and care. In most cases, people with open-ended tuberculosis voluntarily adhere to treatment. Even for people who were initially reluctant to accept isolation, patient involvement, counseling, and social support usually resolve the situation positively.

International health and human rights standards warn that, in most circumstances, forced isolation “violates the human rights to freedom of movement, freedom of association, and freedom from arbitrary detention.” However, public health and human rights standards take into account the rare occasions when involuntary isolation and treatment of people with tuberculosis is required. In cases where people with tuberculosis do not adhere to treatment, the World Health Organization (2017) said, «either they are unwilling or unable to comply with infection control measures (…) the interests of other members of the community may justify efforts to force isolation of the patient.»

But according to international human rights norms and standards, as reflected in the Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights (1985), deprivation of liberty should be:

- provided for and implemented only under the law;

- aimed at achieving a legitimate aim (with due regard to World Health Organization recommendations when public health is a legitimate aim);

- extremely necessary;

- the least severe and restrictive means should be used;

- be not arbitrary and non-discriminatory in the application;

- limited in duration; and,

- subject to review, including by the judicial authority.

We believe these same standards should apply to the use of criminal law to enforce public health measures related to Covid-19. Community-based measures, such as appropriate human rights-based quarantines and social distancing measures, may be more effective in complying with public health responses to Covid-19 than the threat of criminal sanctions. Clear, transparent, and consistent public health communications can help convince people to comply with public health measures. The provision of supportive services, meeting basic needs (e.g. food, water), and financial, social, and psychosocial support can also contribute to compliance. Moreover, if sanctions are required to address the consequences of non-compliance, states may primarily use administrative fines, provided they are applied in a manner that is consistent with human rights.

In summary, instead of focusing on criminal measures, countries should focus on taking effective, evidence-based, and human rights-based responses to Covid-19. This includes:

the transparent and efficient functioning of public health;

extensive, accessible testing;

- material and psychological support, especially for vulnerable or marginalized groups of the population; and, as a last resort; and,

- involuntary isolation and quarantine measures, combined with due process safeguards to ensure compliance with international law.

The key point is that there are no exceptions to the pandemic in terms of respect, protection, and observance of human rights.

IV.2. National Legislation on the Implementation of Sanctions for Quarantine Violations

The Law of Ukraine n° 530-IX of March 17, 2020, amended the Criminal Code and the Code of Ukraine on Administrative Offenses. In particular, criminal liability under Art. 325 of the Criminal Code and the Code on Administrative Offenses were supplemented by Art. 44-3 “Violation of the rules on quarantine of people” of the following content: “Violation of the rules on quarantine of people, sanitary and hygienic, sanitary and anti-epidemic rules and regulations provided by the Law of Ukraine “On protection of the population from infectious diseases,” other legislation local governments on the fight against infectious diseases, entails the imposition of a fine on citizens from one to two thousand non-taxable minimum incomes and officials-from two to ten thousand non-taxable minimum incomes of citizens,” which at the time of writing is from 17,000 to 34,000 UAH for citizens, and from 34,000 to 170,000 UAH for officials (^{Lisova, 2020}).

So, first, consider the novella of administrative liability. The norm of Art. 44-3 of the Code on Administrative Offenses is blanket by its legal nature, which means that the conditions under which liability arises under this article are detailed in other regulations to which it refers.

One of them is the Law of Ukraine “On Protection of the population from infectious diseases” (2020), which defines the concept of quarantine. According to Art. 1, quarantine is “administrative and health measures used to prevent the spread of particularly dangerous infectious diseases.” Art. 29 of this source of legal regulation specifies the conditions for the introduction of quarantine in Ukraine. In particular, the authority of the Cabinet of Ministers to impose quarantine on the territory of Ukraine is established; the grounds, limits, and necessary measures related to this are established.

Acts of a normative nature are issued by the Cabinet of Ministers of Ukraine in the form of resolutions, following Part 2 of Art. 49 of the Law of Ukraine “On the Cabinet of Ministers of Ukraine” (2014). Article 117 of the Criminal Code states that such resolutions are binding. Given the above, on March 11, 2020, the Cabinet of Ministers of Ukraine adopted Resolution n° 211 “On prevention of the spread of acute respiratory disease Covid-19 caused by the coronavirus SARS-CoV-2,” according to which quarantine was established throughout Ukraine.

Thus, the various legislative acts are interrelated in the qualification of the offense under Art. 44-3 of the Code on Administrative Offenses “Violation of rules concerning the quarantine of people.”

As for the basis of administrative liability, there is a question of interpretation of the disposition of Art. 44-3 of the Code on Administrative Offenses in this part. Since Art. 42 of the Code on Administrative Offenses “Violation of sanitary norms,” the sanctions of which provide significantly lower fines for violations (from 17 to 340 UAH for citizens, and from 102 to 425 UAH for officials), also applies to violations of sanitary rules and regulations, but without mention quarantine, it is not entirely clear whether the sanction of Art. 44-3 of the Code on Administrative Offenses is applied in case of violation of the general sanitary and hygienic rules and norms if they do not concern measures of struggle against infectious diseases, including Covid-19, which are provided by law.

Assuming that the rules of Art. 42 and 44-3 of the Code on Administrative Offenses are correlated as general and special, it seems reasonable to apply the sanction of Art. 42 of the Code on Administrative Offenses in case of violation of the general sanitary rules and norms, and Art. 44-3 of the Code on Administrative Offenses-only in case of violation of sanitary rules and norms concerning measures of struggle against infectious diseases. From this point of view, it seems appropriate to remove the phrase “sanitary and hygienic” from the disposition, preferring “sanitary and anti-epidemic rules and regulations” and/or adding the phrase “anti-epidemic measures,” thus creating opportunities for better law enforcement. Otherwise, if we leave the authorities, which have the right to draw up protocols on administrative offenses, a wide space for interpretation of Art. 44-3 of the Code of Ukraine on Administrative Offenses, this may result in increased corruption risks in the exercise of their discretionary powers, selective or erroneous application of the law, as we shall see below (^{Kolos & Derkach, 2020}).

In general, this administrative offense can be described as an illegal act or omission committed by an individual concerning public relations (rules and regulations) in the field of health care, in particular, those related to the quarantine of people (combating the spread of infectious diseases) (^{Valenko, 2020}).

From this definition we can distinguish such elements of the administrative offense as an objective party in the form of action (for example, violation of social distance over the allowable number of people in a certain area) (mass events, discos, competitions, etc.) or passenger traffic, prohibited catering establishments or other business entities, etc.) or inaction (absence of a protective mask on the face when visiting public places), the subject-a natural or official, the object-the rules and regulations for quarantine of people (^{Maslova, 2020}).

As for the procedural features of law enforcement Art. 44-3 of the Code of Administrative Offenses, then there are three problematic issues that courts face when considering a case of administrative liability for violation of quarantine:

(i) the protocol incorrectly states the essence of the administrative offense;

(ii) it is not accompanied by sufficient evidence; and,

(iii) it concerns a person who can not be held liable for the violation of Art. 44-3 of the Code of Administrative Offenses (^{Nechval, 2020}; ^{Zelena, 2020}).

For example, the decision of the Shevchenkivsky District Court of Kyiv from June 26, 2020, closed the proceedings in the case n° 761/10421/20 on bringing a person to administrative responsibility under Art. 44-3 of the Code of Administrative Offenses, based on the absence in its actions of an offense. In particular, it is noted that no photographic materials were added to the protocol, and it is not clear from the check attached to the case file and which could confirm the fact of prohibited trade in coffee under quarantine, under what name and price the goods were released and whether the fact of the sale took place at all.

On the whole two factors played a role in closing the proceedings in the case n° 201/4494/20, which was pending in the Zhovtnevy District Court of Dnipro. Thus, in the decision of June 11, 2020, the court found that the protocol on an administrative offense was drawn up against a person who is not the subject of liability for violation of Art. 44-3 of the Code of Administrative Offenses, which led to the conclusion that the wording of the essence of the administrative offense is incorrect.

Regarding criminal liability for violation of quarantine, Art. 325 of the Criminal Code “Violation of sanitary rules and regulations for the prevention of infectious diseases and mass poisoning” as amended by Law n° 530 stated the following:

«Violation of rules and regulations established to prevent epidemic and other infectious diseases and mass non-communicable diseases and combating them, if such actions have caused or knowingly could cause the spread of these diseases, shall be punishable by a fine of one thousand to three thousand non-taxable minimum incomes or arrest for up to six months, or restriction of liberty for up to three years. The same acts, if they caused death or other serious consequences, are punishable by imprisonment for a term of five to eight years».

Given the above, we can identify the following elements of the crime.

The object is public relations in the field of health care, in particular, rules and norms on counteracting the spread of infectious and mass non-communicable diseases.

The objective side is the violation of these rules if such criminal acts or omissions have caused or are known to cause the spread of the above diseases.

The subject can be described as a person who, under his or her official or professional responsibilities, must ensure compliance with sanitary and anti-epidemic rules and regulations to counteract the spread of infectious and mass non-communicable diseases. Such persons include employees of public authorities, local governments, officials of enterprises, institutions and organizations, etc.

The subjective side of the crime is guilt in the form of intent or negligence (^{Khimchenko & Thales, 2020}).

Thus, the conditions for mitigating or aggravating criminal liability are governed by Art. 65 - 69-1 of the Criminal Code of Ukraine and, in practice, would most likely be applied in a general manner. However, the problem is that not a single case has reached the court’s conviction, which we will consider further.

It is worth noting that this amendment to the criminal law was objectively and devastatingly criticized by the professional legal community immediately after it entered into force. This is due to the following factors.

First, it violates the principle of legal certainty, as it refers to a wide range of rules and regulations set out in other regulations relating to measures to combat and combat the spread of infectious and non-communicable diseases. Given that some of the quarantine restrictions can be considered unconstitutional, as no state of emergency has been imposed (On the legal regime of the state of emergency, 2000) and criminal liability has been imposed for violating them, this would most likely be considered an inadmissible violation of human rights in a higher international court instance.

Secondly, there are reasonable suspicions that when duplicating the composition of administrative and criminal liability under Art. 44-3 of the Code of Administrative Offenses and 325 of the Criminal Code, for an administrative offense an official provides for a larger fine (from 34 thousand to 170 thousand UAH) than for a criminal one (from 17 thousand to 51 thousand UAH).

Third, due to the difficulty of proving the existence of a causal link between a particular violation and the socially dangerous consequences of a case of this category, they would most likely be hopeless due to lack of evidence and inability to establish the corpus delicti, which would result in criminal proceedings.

Also, the meticulous attitude of lawyers deserved the wording “other serious consequences” in part two of the article, which in the opinion of the expert community is an evaluative judgment that would negatively affect the enforcement of this rule (^{Kolos & Derkach, 2020}).

Ironically, the Law “On Amendments to Certain Legislative Acts of Ukraine Aimed at Providing Additional Social and Economic Guarantees in Connection with the Spread of Coronavirus Disease (Covid-19)” n° 540-IX, Art. 325 as amended by Law n° 530-IX was limited to three months, until June 18, 2020, after which Art. 325 returned to its previous form, which made it impossible to apply criminal liability in the wording of the Law n° 530-IX in practice for the following reason (^{Novikova, 2020}).

According to Part 2 of Art. 4 of the Criminal Code, crime and punishment, as well as other criminal consequences of the act are determined by the law on criminal liability, which was in force at the time of the act. The exception to this rule, which is enshrined in Art. 58 of the Constitution of Ukraine and Part 1 of Art. 5 of the Criminal Code, is the retroactive effect of criminal law, which mitigates the criminal liability of a person.

Reduction of criminal liability occurs in the case of a reduction in its scope, which can occur, in particular, the abolition of the most severe of the alternative basic punishments and setting the maximum limit of the main punishment of the same type lower (^{Melnik & Havronyuk, 2010}).

Thus, from June 18, 2020, the punishment in the form of imprisonment as the most severe among the alternative basic punishments was abolished, and the maximum fine was reduced to UAH 1,700. As the previous version of Art. 325 of the Criminal Code provides for less severe criminal liability than the version of the Law n° 530-IX, there was a mitigation of criminal liability. Therefore, from June 18, 2020, this wording has a retroactive effect on crimes committed during the wording of the Law n° 530-IX, i.e. during March 17, 2020-June 17, 2020.

In this regard, the fine and imprisonment provided for in Art. 325 as amended by Law n° 530-IX will never be applied to violators.

We will note that because of the legal nuance connected with duration of action of the norm, criminal liability according to Art. 325 of the Criminal Code will be more profitable to bear from an economic point of view than administrative one under Art. 44-3 of the Code of Administrative Offenses, as the size of the sanctions for the latter, is much larger, which seems a bit unexpected when comparing the severity of administrative and criminal laws (^{Yasynska, 2020}).

In our opinion, legal inaccuracies could be eliminated by drawing up an article regulating criminal liability for violating quarantine rules, as follows: “Violation of rules and regulations established to prevent the spread of acute respiratory disease Covid-19 caused by SARS-CoV-2, a person with a confirmed diagnosis of Covid-19, if such actions have caused or may have caused the spread of the disease, shall be punished by a fine of three to ten thousand non-taxable minimum incomes or imprisonment for a term of five to eight years.

In total, the position of the legislator to use toughening of legal responsibility as a way to motivate the population to comply with quarantine measures is understandable, but it was carried out extremely inconsistently. For three months the law enforcement agencies were forced to draw up protocols on an administrative offense and initiate criminal cases, which will be lost in court. Ultimately, we consider this an ineffective way of spending taxpayers’ funds and a demotivating situation for law enforcement agencies.

The optimal solution would be to establish a small amount of money for administrative fines and direct organizational forces for impeccable execution. The population would quickly spread the news of an imminent fine for violating quarantine, and this money would replenish the fund to fight the infection. As for the criminal prosecution-to change the subjective side of the crime only to intent, which excludes criminal liability for a person who, through negligence, infected someone. This would allow us to focus only on really dangerous people because the deliberate spread of infection is already bioterrorism. And of course, we are against the “rollback” of the law after the quarantine, which neutralizes all actions to educate the correct model of behavior among the population. Anyone who committed an administrative offense or crime during quarantine should be punished accordingly.