COVID-19 Symposium: The Use of Criminal Sanctions in COVID-19 Responses – Enforcement of Public Health Measures, Part II

[Nina Sun is the Deputy Director and Global Health and Human Rights & Assistant Clinical Professor at the Dornsife School of Public Health, Drexel University  and Livio Zilli is a Senior Legal Adviser & UN Representative at the International Commission of Jurists.]

Overview of Criminalization related to Violations of Public Health Measures

Responses to the new coronavirus have escalated at a rapid rate, with States using a variety of public health interventions, including policy and legal tools, with the stated aim of trying to control COVID-19. We have all become accustomed to hearing terms such as ‘quarantine’, ‘lockdown’, ‘isolation’ and ‘social distancing’ – at times, seemingly interchangeably – to refer to some of the steps taken. While sharing the same goal – to slow disease transmission – these are distinct, albeit interrelated, measures:

• Isolation – separation of sick individuals, with the aim of preventing or limiting onward transmission.
• Quarantine – restriction of movement of healthy people who may have been exposed to the virus, usually for the incubation period prior to symptoms or a positive test for the illness (at which point they would be put in isolation).
• Social Distancing – a range of activities, from community-based to individual behaviour, to reduce contact among people – this includes actions such as closing schools, prohibiting large gatherings and encouraging people to increase physical distance between each other.
• Lockdown – colloquial term with no specific public health definition, which has been used to refer to some or all of the preceding terms, but is generally understood as severely restricting movement.

Since China imposed its quarantine of Hubei province in January 2020, many other States have followed suit, enacting some type of quarantine and/or social distancing measures. These actions range from issuing guidelines advising people to limit social interaction to strict, mandatory orders for home confinement. Measures have been enacted in both large geographic areas (e.g., China’s mass quarantine of 57 million people in Hubei province) and smaller ones (e.g., the ‘containment zone’ in New Rochelle, NY, in the US). In the US, as of March 26, at least 200 million people in 21 states, 47 counties and 14 cities were being urged to stay at home.

Some States have turned to the criminal law to enforce some of these public health measures in their COVID-19 responses. Notably, Italy – currently under a national quarantine – has reportedly charged more than 40,000 individuals for violating its quarantine rules. Norway, which announced partial quarantine measures for the country on 12 March, confirmed that fines or jail time would apply for individuals who violate quarantine or isolation rules. Similarly, Argentina announced that any person who does not follow mandatory isolation or quarantine rules could face imprisonment from six months to two years. Bulgaria’s district Prosecutor’s Offices are taking forward at least seven cases of individuals accused of violating quarantine rules – if convicted, they may be forced to pay a fine ranging from 10,000 to 50,000 leva (approximately US$ 5500 to US$ 27,600), or face up to five years’ imprisonment. In the United Arab Emirates, which has imposed a 14-day quarantine for any person entering into the country, the attorney general noted that individuals who violate the quarantine requirement commit a ‘punishable crime’. In Israel, police have opened 86 criminal investigations into quarantine violations. Canada’s Minister of Health recently announced that the country would use all of its powers under its Federal Quarantine Act to control COVID-19, including criminal penalties. Since the enhanced community quarantine in the Philippines was announced in mid-March, police have arrested hundreds of people on various charges, including violations of quarantine and social distancing measures.

Analysis

The role of criminal law in enforcing public health measures must be limited, based on scientific evidence and comply with human rights. An analogous area from which to draw ‘lessons learned’ when assessing the appropriateness of using the criminal law to enforce public health measures in the COVID-19 response is tuberculosis (TB).

Although TB is a contagious disease, it is curable with detection and proper treatment. Nevertheless, there may be a need to isolate a person with active TB to prevent further transmission. Effective responses to TB, like other contagious diseases, rely on voluntary, autonomous and informed decision-making for prevention, treatment and care. In most cases, people with active TB voluntarily adhere to the prescribed treatment. Even for people who may be initially reluctant to agree to isolation, patient engagement, counseling and social support will generally resolve the situation.

Global health and international human rights norms caution that, in most circumstances, involuntary isolation ‘infringes an individual’s rights to liberty of movement, freedom of association, and to be free from arbitrary detention’. However, public health and human rights standards cater for the rare instances necessitating involuntary isolation and treatment of people with TB. As the WHO has stated, in cases where people with TB do not adhere to treatment, ‘or are unwilling or unable to comply with infection control measures … the interests of other members of the community may justify efforts to isolate the patient involuntarily’.

But, under international human rights law and standards, as reflected in the Siracusa Principles, resort to deprivation of liberty must be provided for and carried out in accordance with the law; directed toward a legitimate objective  (with due regard to the WHO guidance when public health is the legitimate aim being pursued); strictly necessary in a democratic society; the least intrusive and restrictive means available; neither arbitrary nor discriminatory in application; of limited duration; and subject to review, including before a judicial or quasi-judicial body. These same standards should be applied to the use of criminal law to enforce COVID-19-related public health measures.

The WHO, as well as other key public health experts and actors, have highlighted the importance of voluntary, non-coercive measures in addressing infectious diseases.  Community-level activities – such as appropriate, rights-aligned quarantine and social distancing measures – can be more effective for compliance with public health interventions in the COVID-19 response than the threat of criminal sanctions. Clear, transparent and consistent public health communications can help persuade people to comply with public health measures. Provision of support services, fulfillment of basic needs (e.g., food, water), as well as financial, social and psychosocial support, can also strengthen compliance. Moreover, should sanctions to address the consequences of non-compliance be needed, States may impose administrative or civil fines, provided that they are implemented in a manner that is consistent with human rights.

Red Flags for Future Use of Criminal Law in the Context of Public Health

When countries use criminal law, as they are doing now in their COVID-19 responses, they are using the most coercive tool at their disposal. History shows that when extraordinary powers are introduced in connection with situations qualified as ‘emergencies threatening the life of the nation’ (whether in good or bad faith) they have an uncanny way of seeping into the ordinary legislative and policy framework. For example, in 2015, France introduced extraordinary measures in response to the terrorist attacks in Paris – these measures have now found their way into le droit commun, ordinary legislation. Extraordinary powers, therefore, are normalized. In the criminal justice and public health contexts, the misuse and overly broad use of criminal law in public health emergencies set a concerning precedent for how the penal law may be used after the crisis subsides.

Creating an Enabling Environment for COVID-19 Responses

Instead of focusing on criminal measures, countries should concentrate their efforts on enacting effective, evidence- and rights-based interventions in their COVID-19 responses. This includes transparent and clear public health messaging; widespread, accessible testing; provision of support services, especially for vulnerable or marginalized populations; and, as a last resort, involuntary isolation and quarantine measures, coupled with due process safeguards to ensure compliance with international law. It is key to remember that there is no pandemic exemption to respecting, protecting and fulfilling human rights.