What crimes could passengers traveling on Covid-19 international flights commit?

by | Oct 28, 2020 | Articles | 0 comments

The Government issued Supreme Decree No. 157-2020-PCM, approving phase 4 of the resumption of economic activities of the country, decreeing the approval and implementation of the resumption of various activities, including international air transportation as of October 5, 2020.

Thus, on September 30, Ministerial Resolution N° 0642-2020-MTC/01 was published in the Official Gazette El Peruano, which approved the resumption of passenger transportation activities by air through international flights to sanitary destinations, restricting flights to a maximum duration of four hours, indicating as first destinations eleven cities in seven countries, specifically Chile (Santiago), Colombia (Bogota, Cali and Medellin), Bolivia (La Paz and Santa Cruz), Ecuador (Guayaquil and Quito), Uruguay (Montevideo), Paraguay (Asuncion) and Panama (Panama City).

A few days ago, the Government issued Ministerial Resolution N° 0727-2020-MTC/01, which modifies the annex of Ministerial Resolution N° 0642-2020- MTC/01, stating that from November it will be possible to travel additionally to ten more countries, United States (Los Angeles, New York, Orlando, Miami, Houston and Atlanta), Mexico (Mexico City and Cancun), Canada (Toronto), Cuba (Havana), Jamaica (Montego Bay), Dominican Republic (Punta Cana), Costa Rica (San Jose), El Salvador (San Salvador), Brazil (Rio de Janeiro, Sao Paulo, Brasilia, Porto Alegre and Foz do Iguaçu), Brazil (Rio de Janeiro, Sao Paulo, Brasilia, Porto Alegre and Foz do Iguaçu), Dominican Republic (Punta Cana), Costa Rica (San José), El Salvador (San Salvador), Brazil (Rio de Janeiro, Sao Paulo, Brasilia, Porto Alegre and Foz de Iguazú), Colombia (adding Cartagena) and Argentina (Buenos Aires, Rosario, Mendoza, Córdoba and Tucumán) when the latter country opens its borders, specifying that these flights must have a duration of eight hours and must follow the regulations in force to date.

It should be remembered that Ministerial Resolution No. 643-2020-MTC/01 approved the sectorial guidelines for the prevention of COVID-19 in the provision of air passenger transportation at international level, among which the passenger capacity was reduced, based on the HEPA (High Efficiency Particulate Air) filter system that eliminates 99.9% of any pathogenic agent (virus and bacteria) inside the aircraft every two or three minutes, thus minimizing the risk of contagion inside the aircrafts.

Following this line of ideas, international flights must comply with the sanitary guidelines that apply to all domestic flights, humanitarian flights and flights in general that have been operating during the pandemic, among which we can highlight the taking of temperature of all passengers and airline personnel; the respect of the social distance during the procedure at the airport, both in boarding and disembarking; the use of the mask and protector from the moment of entering the airport, the same that will be used during the entire flight; virtual check in; demanding some new requirements to the traveler, who must present his negative molecular test of COVID-19; and fill out 72 hours prior to the flight the “Electronic Affidavit of health and commitment to perform isolation or quarantine”. In the case that passengers arriving to Peru do not present symptoms, they will not have to comply with the quarantine, but if they present symptoms, they must comply with 14 days of mandatory isolation at home or lodging.

Among the requirements demanded from passengers, the most relevant will be the Negative Molecular Test of COVID-19, valid for 72 hours, being a mandatory requirement that will prove that the passenger does not have the coronavirus. The Minister of Health commented that the negative molecular test will be demanded for passengers travelling abroad as well as for those entering Peru.

Now, a problem arises regarding the term of validity of the negative molecular tests of passengers entering the country of destination. I n other countries, the term of validity of the molecular test may be different from the Peruvian term, as happened in the first flight from Chile, in which forty people could not board because of the validity of the molecular test. One of the national requirements was that the term of validity of the negative molecular test would be 72 hours prior to travel, but this term was not standardized with other countries. To the above mentioned, we must specify that Colombia extended the closing of its borders until November 1, 2020, so from next month, the cities of Bogota, Cali, Medellin and Cartagena will be enabled as possible destinations, however the destination of Argentina will be suspended until it opens its borders.

With this being said, we must warn of some possible crimes that passengers could commit with the intention of travelling in circumvention of such restrictions:

In regards to the question of what happens with the passenger who presents a false molecular test, the answer is clear; such passenger is committing a crime against the Public Faith, in the modality of falsification of documents. It is important to point out that in the case of a molecular test issued by the Ministry of Health, we would be dealing with the figure of falsification of a public document, whose penalty could be up to 10 years of imprisonment, in accordance with article 427 of the Penal Code.

In spite of this, some people, surely, will apply the misnamed “viveza criolla” to travel outside the country for various reasons, knowing that they are presenting false negative test certificates for COVID-19, exposing other passengers to contract the disease or die as a result of it, solely and exclusively because of their criminal conduct.

The hypothetical consequences of possible contagion and/or death of passengers can be verified in the next fifteen days after the date of travel, so who will assume criminal responsibility for a possible contagion of the disease or, in the worst case scenario, for the death of a passenger from COVID-19? Will it be the responsibility of the passenger who presented the false negative test certificate, of another passenger close to him who also failed to tell the truth, will the airline on which the passengers traveled be responsible? We will answer these questions.

When a passenger travels and it is proven that he/she presented a Molecular Test with a false “Negative” result of COVID-19, knowing that he/she was positive for coronavirus and lies in order to travel, obviously he/she will have criminal responsibility for infecting other passengers, committing the crime of propagation of dangerous or contagious diseases in the aggravated modality (art. 289 of the Penal Code), but if the infected passenger also dies, his/her conduct would be aggravated, corresponding to a penalty ranging from ten to twenty years of imprisonment.

Finally, we agree on the need to restart all phases of the resumption of the country’s economic activities, including international air passenger transport, but always ensuring the health safety of all Peruvians.