Covid-19 business criminal law and other issues in Montenegro

Any businesses that are encompassed by the emergency measures issued by the government of Montenegro in relation to COVID-19 and which are required to close during the pandemic can be criminally liable for failing to comply with the restrictions. All businesses, whether covered by the COVID-19 measures or not, must comply with existing health and safety law and regulations, however, there is no criminal liability prescribed by the health and safety law.

The criminal liability of a company is regulated by The Law on Liability of Legal Entities for Criminal Offences. A company may be prosecuted under the Montenegrin Criminal Code for offences “failing to abide by the health regulations during an epidemic” and “transmitting infectious diseases”.

The business will be criminally liable, based on the responsibility of the responsible person. For example, the business will be responsible for a criminal offence if it benefited from the offence and:

• the offence was 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; or
• the offence occurred due to the lack of supervision or control by the responsible person.

If the responsible person was acting with intent, the business 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 Montenegrin Criminal Code

More notably, anyone who does not abide by these measures of Montenegrin Criminal Code ("Official Gazette of RCG", Nos. 70/2003, 13/2004 -and 47/2006 and "Official Gazette of CG", nos. 40/2008, 25/2010, 32/2011, 64/2011, 40/2013, 56/2013, 14/2015, 42/2015, 58/2015, 44/2017, 49/2018 and 3/2020) will commit the following offences:

• “Failure to comply with health regulations to control dangerous infectious diseases” (Article 287 states) - Whoever does not act in accordance with regulations, decisions, orders or directives which determine measures for the suppression or prevention of a dangerous contagious disease, shall be punished by a fine or imprisonment for a term not exceeding one year.
• “Transmission of dangerous infectious diseases” (Article 288 of the Criminal Code) - Whoever does not act in accordance with regulations, decisions, orders or directives for the suppression or prevention of a dangerous contagious disease, the result of which is that the disease is transmitted, shall be punished by imprisonment for a term not exceeding three years. The punishment for these crimes can be up to one year or three years of prison or monetary fine. However, if there are severe consequences arising from these crimes such as death then the punishment can go up to 12 years of prison:
  • Article 302, point 1 of the Criminal Code states that if, due to the act from Article 287, a person is seriously injured or his health is severely impaired, the perpetrator shall be punished by imprisonment for a term between one and eight years; and
  • Article 302, point 2 of the Criminal Code states that if, due to the act referred to in Article 287, one or more persons die, the perpetrator shall be punished by imprisonment for a term between two and twelve years.

Occupational Health and Safety Law

The Montenegrin Law on Health and Safety at Work ("Official Gazette of Montenegro", No. 34/2014 and 44/2018) implies a requirement to provide working conditions that do not lead to injuries at work, occupational diseases and work-related illnesses and that create preconditions for full physical and mental protection of employees. A company could also be liable for a penalty, but liability will depend on the infringement and the classification by the prosecutor or by an administrative authority in charge of filing complaints.

Emergency legislation

The emergency legislation in Montenegro allows for criminal prosecution of both individuals and companies in relation to the COVID-19 pandemic, however, these do not apply because the Montenegrin Government has not declared a state of emergency.

Instead, the Montenegrin Government has opted to approve sets of temporary measures which are designed to battle the pandemic. These measures are numerous and breach of any of them presents a criminal offence in the sense of the Montenegrin Criminal Code.

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. Like a company, the responsible person in the company may be prosecuted under the Montenegrin Criminal Code for offences of “failing to abide by the health regulations during an epidemic” and “transmitting infectious diseases”.

The responsible person within the company and the company could also be liable for a monetary fine (misdemeanour penalty) under the Law on Health and Safety at Work ("Official Gazette of Montenegro", No. 34/2014 and 44/2018). The liability will depend on the infringement and the classification by the prosecutor or by an administrative authority in charge of filing complaints.

Under the Law on Liability of Legal Entities for Criminal Offences, businesses may be sentenced to pay a fine. A penalty of dissolution of a legal entity may also be imposed if the activity of the legal entity as a whole or to a significant extent was centred on committing criminal offences.

The fine cannot be less than twice the amount of the damages or more than one hundred times the amount of the damages (i.e. in monetary terms, no less than EUR 1,000 and no higher than EUR 5,000,000) and depends on the length of the jail time prescribed:

• double to five times the amount of damage done or illegal property gain obtained or from EUR 1,000 to 10,000, for criminal offences for which imprisonment of up to one year or a fine is prescribed; 
• five to ten times the amount of damage done or illegal property gain obtained or from EUR 10,000 to 20,000, for criminal offences for which imprisonment of up to three years is prescribed; 
• ten to fifteen times the amount of damage caused or illegal property gain obtained or from EUR 20,000 to 50,000, for criminal offences for which imprisonment of up to five years is prescribed; 
• fifteen to twenty times the amount of damage done or illegal property gain obtained or from EUR 50,000 to 100,000, for criminal offences for which imprisonment of up to eight years is prescribed; 
• twenty to fifty times the amount of damage done or illegal property gain obtained or from EUR 100,000 to 200,000, for criminal offences for which imprisonment of up to ten years is prescribed; 
• at least fifty times the amount of damage done or illegal property gain obtained or at least EUR 200,000, for criminal offences for which imprisonment of more than ten years is prescribed.

Under the Law on Health and Safety at Work the company can be fined for a misdemeanour in the range of EUR 200 to EUR 15,000, depending on the offence.

The responsible person can answer depending on the classification of the act as follows:

• Under the Criminal code, a fine or up to 12 years in jail.
• Under the Law on Health and Safety at Work for a misdemeanour, a fine ranging from EUR 30 to EUR 4,000.

Yes, there have been a few prosecutions for businesses that were opening / operating, mostly in the field of hospitality, which were treated as misdemeanour offences.

The government has declared that all companies which are able to do so should work from home. Meanwhile, for essential business and services it has imposed stricter measures and they have to comply with recommendations of the Institute of Public Health.

On 30 April 2020, Montenegrin government allowed operation of businesses (textiles, footwear, technical goods, construction materials, craft shops, services, hairdressing and beauty salons, gyms and fitness centres, bookstores, dental offices, driving schools, rent-a-car services, museums and galleries, etc. ). Depending on the type of business, the Montenegrin government has imposed different set of rules regarding face masks and social distancing.

The lawsuits and claims must be founded on breach of a duty by the business or by its responsible person(s), whether established by the law, statute, contract or otherwise.

These claims will arise from the duty of damage compensation under the Law on Contracts and Torts. These claims will usually (but not necessarily) be aimed at those companies and their responsible persons which have been convicted of either the misdemeanour or criminal offence upon which, those companies will be liable for damages both material and possibly immaterial to the affected employees, business partners or to other persons.

Class-actions are not recognised by Montenegrin law, but group claims are possible.