Covid-19 business criminal law and other issues in Serbia

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.

Yes, the responsible person in the company may be prosecuted under the Serbian Criminal Code for offences, by failing to abide by the health regulations during an epidemic and transmitting infectious diseases.

The responsible person could also be liable for a penalty of up to RSD 50.000 (EUR 420) under the Law on Health and Safety at Work ("Official Gazette of RS", Nos. 101/2005, 91/2015 and 113/2017 - other law). 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, the business can be forced to either pay a fine or be forced to dissolve in the worst case scenario (e.g. the penalty of dissolution of a legal entity may be imposed if the activity of the legal entity as a whole or to a significant extent was with the purpose of committing criminal offences).

The fine cannot be less than one hundred thousand dinars (approx. EUR 850) or more than five hundred million dinars (approx. EUR 4.3 million) and depends on the length of the jail time prescribed:

• from RSD 100,000 to RSD 1,000,000 or approx. EUR 850 to EUR 8,500 for criminal offences for which imprisonment of up to one year or a fine is prescribed;
• from RSD 1,000,000 to RSD 2,000,000 or approx. EUR 8,500 to EUR 17,000 for criminal offences for which imprisonment of up to three years is prescribed;
• from RSD 2,000,000 to RSD 5,000,000 or approx. EUR 17,000 to EUR 42,500 for criminal offences for which imprisonment of up to five years is prescribed;
• from RSD 5,000,000 to RSD 10,000,000 or approx. EUR 42,500 to EUR 85.000 for criminal offences for which imprisonment of up to eight years is prescribed;
• from RSD 10,000,000 to RSD 20,000,000 or approx. EUR 85,000 to EUR 170,000 for criminal offences for which imprisonment of up to ten years is prescribed;
• at least RSD 20,000,000 or approx. EUR 170,000 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 in the range of RSD 400,000 to RSD 1,000,000 or approx. EUR 3,400 to EUR 8,500 depending on the offence.

The responsible person can answer depending on the classification of the act and its consequences 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 RSD 20,000 to RSD 50,000 (Approx. EUR 170 to EUR 420). Furthermore, any employee who does not abide by the health regulations prescribed by the law and the employer (e.g. refuses to wear gloves and/or mask) will be liable under the Law on Health and Safety at Work for a misdemeanour offence. The potential fine for the employee ranges from RSD 10,000 to RSD 20,000 (Approx. EUR 85 to EUR 165)

Yes, prosecutors have so far prosecuted the Director of the Gerontology Institute in the city of Niš as well as director of the home for the elderly in the city of Negotin, both as responsible persons in those respective centers. In these two cases criminal charges were pressed under the Serbian Criminal Code.

Yes, the Government has declared that all companies which are able to do so should work from home and instituted much stricter measures relating to health and safety to all those essential business and services which have to/had to remain open.

Further special measures were instituted on 20 April 2020 as these were the conditions on which certain businesses were allowed to re-open. These measures remain, in their essence, unchanged and apply to all businesses which have been allowed to reopen and the list of those businesses is now on the rise.

These measures provide that all businesses which wish to operate must implement measures to ensure the safety of employees and the safety of users of services (e.g. (1) limited number of persons in the room, (2) mandatory disinfection of premises, floors, mobile phones, machines, tools and devices for work, (3) mandatory replacement of used paper, plastic or linen after a service is provided to each individual user, (4) the obligatory use of protective equipment, i.e. masks and gloves) and to that end, adopt a specific plan for the application of measures as an integral part of the risk assessment act issued in accordance with the law and regulations in the field of occupational safety and health. There are special measures which are even more restrictive for those businesses most at risk such as cafes and restaurants.

While the state of emergency ended on 7 May 2020 in Serbia, these measures largely remain in force and are still mandatory. Some are even more important due to the fact that all businesses are now allowed to reopen. It is clear that for the foreseeable future nearly all businesses will be the subject of health and safety measures instituted to prevent the spread of COVID-19. However, as the risk from COVID-19 is subject to change, so are the measures taken to combat it, especially for specific individual businesses and areas of industries. 

The civil 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 likely materialise under the Law on Contracts and Torts, and usually (but not necessarily) will be aimed at those companies and their responsible persons which have already been convicted of either the misdemeanour or criminal offence upon which, those companies will be liable for damages both material and immaterial to the affected employees, business partners or other persons.

Additional lawsuits might arise from different requests as well for example, under the Labour Law, regarding unlawful termination of employees who are suspected to have the virus, instead of giving them leave for treatment. These kinds of accusations have been in the news and if true, may give rise to lawsuits possibly even group claims.

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