Recommendations in this regard were made to the Government, the Parliamentary Committee on Human Rights and Interethnic Relations, the Parliamentary Committee on Social Protection, Health and Family. Mihail Cotorobai proposed to revise the provisions of the Article 761 of the Contravention Code, which stipulates the sanctioning of persons for non-compliance with measures for the prevention, prevention and control of epidemic diseases, so as to reduce the minimum amount of fines imposed on individuals and establish alternative sanctions.
Without questioning the need for effective measures to hold individuals and legal entities accountable for preventing and combating epidemic diseases, the People’s Advocate considers it imperative to ensure the proportionality between the means used and the purpose pursued. The People’s Advocate claims that the minimum amount of 22,500 MDL applicable to the natural person does not respect the principle of individualization of the contravention sanction and the principle of proportionality of the fine sanctions, as well as does not take into account the special vulnerability of the sanctioned persons (persons with disabilities, elderly people, persons without sources of livelihood, low income).
According to the People’s Advocate, the respective provisions are insufficiently clear and do not offer the ascertaining agent / court the possibility to apply the sanction depending on the real danger to public health / damage caused by the actions of the offender. This is because the minimum size set for individuals is very large and there are no alternatives for individualizing the sanction.
The People’s Advocate also notes that the very high fines applied to individuals and legal entities in the current conditions, related to the standard of living in the Republic of Moldova and the lower incomes of several categories of people during the state of emergency, could further contribute to poverty among vulnerable groups, worsening their standard of living. For some people the amount of the fine is very large even when it is paid within 3 days at half the amount set and will significantly affect the person’s financial situation. The fine is an even heavier burden in cases where it is applied to two or more people in a single household / family, whose income is reduced.
In order to support his arguments, the People’s Advocate referred to the jurisprudence of the Constitutional Court, the European Court of Human Rights, as well as, the recommendations of UN experts addressed to states in the fight against the COVID-19 pandemic in a recently developed guide “Emergency measures and COVID-19” [1].
“States must apply all exceptional measures in a humane manner, respecting the principle of proportionality when imposing sanctions for infringements and ensuring that sanctions are not imposed arbitrarily or discriminatory. Fines must be proportionate to the seriousness of the offense. In assessing the amount of fines, individual circumstances, including gender-specific impact, must be taken into account. This is particularly relevant for the unemployed or those who do not generate income due to emergency measures.”
In conclusion, the People’s Advocate considers that the minimum amount of the fine imposed on natural persons, without applying clear criteria for individualizing the sanction, affects the principle of individualization of the contravention sanction and the principle of proportionality of sanctions and may affect the right to property and decent living of fined persons. especially those belonging to vulnerable groups (people with disabilities, the elderly, people without a source of livelihood).
Therefore, the Ombudsman pleads for the improvement of art. 761 of the Contravention Code, including for reducing the amount of the minimum sanction for individuals and establishing alternative sanctions to the fine.
2020 04 30
Department for the Promotion of Human Rights
and Communication
Tel.: 060002656
Department for Public Policy and Law
Tel.: 060002644
[1] https://www.ohchr.org/Documents/Events/EmergencyMeasures_COVID19.pdf
