What does the guide that prosecutors have to define crimes say?

False messages on social networks about new infections or other “fake news” related to the coronavirus. To argue on the street having gone shopping without having a ticket. Disobeying directives of the security forces related to the respect of compulsory isolation.

These behaviors and others contained in a Guidance guide distributed in federal prosecutors offices across the country, are part of criminal charges that are made and will be made for crimes in the midst of the Covid-19 pandemic.

The Attorney General’s Office clarified in that document how to interpret the rules and what criteria separate the fine line between what is and not crime. For example, what is meant by a “close contact” link in relation to a person with a coronavirus or suspected of contagion and, therefore, forced to total quarantine as well as the patient. In many cases, the proponents of the criminal prosecution were urged to use common sense.

On the Internet, for example, prosecutors can infer that whoever viralizes a false message about a new contagion – “even more so where there are currently no officially registered cases” – or any other information about the pandemic acts with “deliberate knowledge” of the “social disorder” it can cause.

Also how it can affect the “peaceful life of society”.

For this reason, if this is suspected or proven, the accusers can impute by article 211 of the Penal Code that it represses with two to six years of prison to the one who “to instill a public fear or to provoke riots or disorders, make signs, give voices of alarm, threaten to commit a crime of common danger, or use other material means normally suitable to produce such effects. “

The legal figure protects public order, “understood as tranquility and social trust,” it was noted in the instructions.

To consider that there was a crime, Prosecutors do not need that there has been concrete damage, it is enough with the “potential or abstract danger” of a general nature, referring to social peace. Whoever transmits or generates the false information must have a “deliberate” knowledge of what can happen, in relation to the viralization and the result, even if they do not intervene directly in the latter.

To be a crime, “it is necessary that the action has created the possibility of alarm, of riot or of disorder, as a danger that has really existed.”

Keys to circulate

Since March 20, the preventive and compulsory social isolation has been in force by decree. The displacements were limited to what was strictly necessary, except for the regulated exceptions.

For example, whoever leaves their house to buy in neighborhood businesses should have the purchase ticket ready to show if it is intercepted on the way back. It also serves “any proof that proves the supply of those elements.”

The rule “does not set distance radii, time periods” for these outputs. For that reason, it was clarified to the prosecutors, in the accusations “logic and common sense must prevail.”

And an example is used: those who are caught “without justifiable reason” at a distance from their home “greater than the location of food supply centers, medicines or other supplies necessary for daily life” commit a crime.

Prosecutors find it difficult to prove the crime on these minimum allowed trips, especially on the way to the places of purchase.

Another conduct to accuse under Article 205 of the Penal Code is, according to the Attorney General, be surprised gathered in any social or recreational activity. This includes public roads, parks or squares.

The Attorney General clarified that citizens cannot be required to comply with the isolation at the address that appears on the DNI. The place where the person is on a “continuous” basis is considered “habitual residence”: it can be proved with a rental contract, going to the address or with services in his name.

Prosecutors must also consider that all the rules related to the health emergency “are dynamic” and are modified or supplemented according to the evolution of the situation. For this reason, the obligation to prove it falls on the citizens who invoke circulating because they are included in any of the exceptions of the decree.

Another chargeable crime is that of disobedience. It is committed if the recipient of an order issued by officials and linked to what is imposed in the decrees does “ignore”.

The order can come from the police, any other security force, Migrations, health authorities, among others.

In these cases, it is recommended to resort to article 239 of the Penal Code, which represses with imprisonment from 15 days to one year.

“The crime of disobedience consists in ignoring these officials who, in compliance with the mandate imposed by the DNU, compel society to respect the mandatory isolation. The orders of the police personnel and any other agency (DNM, health authorities , etc.) “warned the document.

Mandatory quarantine

At the time of the mandatory 14-day quarantine for infected persons, suspected cases, travelers who returned from abroad or their “close contacts”, prosecutors were recommended to use “common sense”.

This “indicates that, if you want to prevent the spread of a virus, close contact is any physical situation that, according to the indications of the national health authority and / or the WHO, is capable of generating COVID-19 transmission.”

In the case of travelers, the elementary test is the database of the National Directorate of Migrations. Many prosecutors access online consultation in real time through an agreement signed with the agency.

But these data reflect the last country prior to entering Argentina, without detailing whether it was a stopover or the place where the traveler stayed. That is why passport hijacking can be ordered to establish the route traveled since the pandemic was declared globally.

“The norm does not indicate where the isolation should be carried out (private home or another place). In this case, a common sense criterion should be applied, as it may be a different place from your usual home, but in which, to the extent of its possibilities have the least chance of infecting other people. ”

The most serious crime foreseen for the quarantine rape case is 202, with sentences of up to 15 years in prison for anyone who knowingly spreads a dangerous and contagious disease.

“This article could be applied at any time from the start of the pandemic, before and during the normative validity of DNU 260 and 297. In this regard, it should be borne in mind that, as of March 6 of this year, there were provisions of the Ministries of Health and Labor that recommended to the population arriving in the country from countries in which their virus had been isolated, “the guide recalled.

If after medical examinations the defendant is found to have Covid-19 then he is charged with this crime.

“If the test is positive, the most important thing will be to start treatment and comply with the mandatory isolation, depending on the severity, in a medical center or at home, but always guarded. In this case, you will have to wait for the virus to remit and that the person is recovered to investigate it and advance the process, “he decided.

If the accused of violating the quarantine had symptoms at the time of the incident or was in direct contact with a sick person or suspected case or with a traveler who returned from countries at risk, it will be understood that he acted intentionally.

“It would be difficult to argue that there was no knowledge about the chances of transmission of an affected person, or with compatible symptoms.”

Prosecutors also assess the “ability to generate harm.”

“In the case of COVID-19 we start from the assumption that it is a much more contagious virus than usual” so if it is proven that the person is sick or has compatible symptoms and is not isolated or internal, “the capacity of the hurt”.

Examples to accuse: if you knew about all this “moving on public transport, going to a warehouse or supermarket, you would not respect the basic preventive measures such as keeping minimum distance between people, covering your mouth with your elbow to sneeze or cough, no wearing a chinstrap, not washing your hands while on public roads, etc “.

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