Cyprus, Administrative Court, 16 April 2020, Case No. 301/2020
Case overview
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General Summary
The present interim procedure was started in the context of the recourse no. 301/2020. With this procedure, the applicant was seeking the issue of injunctive/interim relief by the Court, through which the enforcement of the administrative act which was published as a regulatory one with no. 101/2020 would be suspended in relation to its provision contained in paragraph 2 (a) of the Regulation regarding the restrictions imposed, under which from 6 p.m. of 16 March 2020 until 30 April 2020 at 12 midnight, only those persons who were eligible to enter the Republic of Cyprus and who presented a Medical Certificate of examination of the Covid-19 by authorized labs would be allowed to enter the Republic of Cyprus. The suspension was requested by the applicant until the full trial of the recourse with the above number and title or for as long as the Honorable Court deems fair and reasonable and/or until 30/4/2020. The Court based its argumentation on its jurisdiction to issue interim injunctions pending the adjudication and termination of a recourse, which was exercised sparingly and only in cases when it was established that there was manifest wrongdoing in the contested decision or irreparable damage to the claimant in the case that the requested order would not be issued. The Court taking into consideration the overall content and meaning of the regulatory administrative act 101/2020, decided that this act has regulatory character. Finally, the Court concluded that the application could not proceed, since it was directed against a non-enforceable administrative act and therefore, was inadmissible. Thus, the present interim procedure in the framework of the aforementioned application must be rejected.
Facts of the case
The present interim procedure was started in the context of the recourse no. 301/2020. With this procedure, the applicant was seeking the issue of injunctive/interim relief by the Court, through which the enforcement of the administrative act which was published as regulatory one with no. 101/2020 would be suspended in relation to its provision contained in paragraph 2 (a) of the Regulation regarding the restrictions imposed, under which from 6 p.m. of 16 March 2020 until 30 April 2020 at 12 midnight, only those persons who were eligible to enter the Republic of Cyprus and who presented a Medical Certificate of examination of the Covid-19 by authorized labs, would be allowed to enter the Republic of Cyprus. The suspension was requested by the applicant until the full trial of the recourse with the above number and title or for as long as the Honorable Court deems fair and reasonable and/or until 30/4/2020. As far as the applicant was concerned, she was a third-year student at the Leeds College of Music in the city of Leeds, England and resided in an apartment there, when the COVID-19 outbreak occurred in March 2020. The applicant tried to return back to Cyprus, which, however, was ultimately not possible in view of the ever-changing circumstances and the failure of the applicant to provide the required documents. Accordingly, the applicant planned an air trip to Cyprus on both 19.3.2020 and 20.3.2020, but she was not able to obtain the required medical certificate, because no medical center in the UK was providing such a certificate. Furthermore, her efforts for the issuance of the relevant certificate continued, while only on 25.3.2020 the government of Great Britain announced the start of the relevant diagnostic tests. Finally, for the reasons explained, it was not possible to obtain the required medical certificate.
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Claimant(s)
Private individualDefendant(s)
Public
Type of procedure
Reasoning of the deciding body
First, the Court based its argumentation on its jurisdiction to issue interim injunctions pending the adjudication and termination of a recourse, which was exercised sparingly and only in cases when it was established that there was manifest wrongdoing in the contested decision or irreparable damage to the claimant in the case that the requested order was not issued. The principles regulating the examination of an interim relief in the sphere of the review jurisdiction (‘αναθεωρητική δικαιοδοσία’) of the Court have been repeatedly explained in decisions of the Supreme Court. The Court also examined the regulatory administrative act no. 101/2020 and specifically paragraph 2, which contained the measures that were necessarily taken with the purpose of preventing the spread of the virus. Special mention was given to paragraph 2 (a), regarding the restrictions imposed, under which from 6 p.m. of 16 March 2020 until 30 April 2020 at 12 midnight, only those persons who were eligible to enter the Republic of Cyprus and who presented a Medical Certificate of examination of the Covid-19 by authorized labs would be allowed to enter the Republic of Cyprus. The Court, thus, taking into consideration the overall content and meaning of the regulatory administrative act 101/2020, beyond the aforementioned specific provision, decided that this act had regulatory character. Particularly, as regards the provision of paragraph 2 (a), it was clear that it established through an objective, general and impersonal manner, a rule binding on the present and the future, which was considered a rule of law. From the very nature and conceptual content of the rule contained in this provision, and regardless of whether it had the characteristics of an executive administrative act (‘exécutoire’, ‘εκτελεστή διοικητική πράξη’), its generality was clear; consequently, its applicability in general, indefinite and/or impersonal cases, which either already existed or would exist in the future, if the specific conditions of the rule were met, was also clear. Therefore, the provision in question and the respective regulatory act in its entirety constituted a rule of law, which had general application and was not restricted only to current cases, but it had future application as well. The view adopted by the Court was strongly supported by the previous national case law.
Conclusions of the deciding body
The Court concluded that the application could not proceed, since it was directed against a non-enforceable administrative act and, therefore, was inadmissible. Thus, the present interim procedure in the framework of the aforementioned application must be rejected. The Court also ruled that the application must be rejected for the additional reason that the order in question constituted an act of the government, which, according to the well-established national case law, could not be questioned through the invocation of Article 146 of the Constitution of the Republic of Cyprus (giving the possibility of recourse against executive administrative act or decision), since this kind of acts could not be put under judicial review, due to the fundamental doctrine of the separation of powers. Despite the above conclusion, the Court expressed several comments on the merits of the application. Concerning the allegations of manifest illegality («έκδηλη παρανομία») made by the Applicant in relation to the violation of Article 14 of the Constitution of the Republic of Cyprus and the ultra vires character of the regulatory administrative act no. 101/2020 in relationship to Articles 6 (a), (b), (c) and (d) of the Inflection Law, it was held that manifest illegality did not exist in the present case, since such illegality did not emerge automatically, nor was it incomprehensible, according to the case law, and the issues raised could not be decided without balancing and judging the diametrically opposing positions which required further investigation. It should be mentioned that Article 14 of the Constitution of the Republic of Cyprus states that: “No citizen shall be banished or excluded from the Republic under any circumstances”. Consequently, in this case, the Court decided that it was not possible to rule out, without further investigation, the position and possibility that a legitimate, temporary restriction of a right was in place, which was lying in measures absolutely necessary for the protection of public health and human life. Whether it was permitted to regulate the exercise of the right to enter into the Republic of Cyprus provided by Article 14 of the Constitution was debatable. Nevertheless, it could be argued that the entrance of the Applicant into Cyprus was not prohibited, but there was a regulation of the exercise of this specific right, which was temporary, under the invocation of the exception of the protection of public health. The Applicant could enter Cyprus with the appropriate Medical Certificate. It could not be argued that any regulation of such entry right fell undoubtedly within the scope of the entry ban. The Court also expressed the view, without deciding on the matter, that, due to the special situation and the urgent need to protect public health, the exceptional and temporary restrictions on the right of entry into the country imposed through the regulatory act in question did not constitute, without a doubt, entry ban and that a different interpretation could lead to irrational results since the Republic a priori would automatically be deprived of any possibility to impose restrictions on the right of entry even on its citizen. In conclusion, the Court, on the basis of the nature of the administrative act in question, rejected the present application as groundless.
Fundamental Right(s) involved
- Freedom of movement of people, goods and capital
- Right to bodily integrity
- Right to good administration
- Right to health (inc. right to vaccination, right to access to reproductive health)
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
- Right to life and bodily integrity, Art. 7, Constitution of Cyprus
- Right to decent existence and social assistance, Art. 9, Constitution of Cyprus
- Freedom of movement and residence and temporarily or permanently leave the country, Art. 13, Constitution of Cyprus
- Right to enter the Republic of Cyprus, Art. 14, Constitution of Cyprus
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
General principle applied
- Rule of law
- Due process
- Effective (judicial) protection
- Proportionality
- Reasonableness
- State of emergency or necessity
Balancing techniques and principles (proportionality, reasonableness, others)
There was not any balancing technique applied, since the Court did not proceed to any final judgment in relation to the merits of the case, apart from some comments. The Court rejected the application on the basis of the nature of the administrative act in question.
Judicial dialogue
The Court referred to a decision of the Greek Council of State (Simvoulio tis Epikratias), Case No. 22/2007, in the context of the examination of the acts of government.
