Cyprus, Nicosia District Court, 27 July 2021, No. 1322/2021
Case overview
Country
Case ID
Decision date
Deciding body (English)
Deciding body (Original)
Type of body
Type of Court (material scope)
Type of jurisdiction
Type of Court (territorial scope)
Instance
Area
Further areas addressed
- Private and family life
- Education
- Freedom to conduct a business
- Health and freedom of association/public gathering/religion
- Health, right to information and freedom of expression
Outcome of the decision
Link to the full text of the decision
General Summary
A group of plaintiffs (103) challenged 6 decrees on anti-Covid-19 measures issued by the government (i.e Minister of Health) on the grounds that they were illegal (Ordinances). The claim was issued against the Attorney General of the Republic of Cyprus, the Minister of Health and the members of the Government's Epidemiological Advisory Committee.
The plaintiffs sought the issuance of interim measures. They stated that the Ordinances were adopted without the approval of Parliament, and asked for their suspension until a final hearing by the Court. The Plaintiffs added that they suffered losses both financially (reduction of their income) and psychologically (movement within the State).
They stated that the laws in question violated, in a disproportionate and discriminatory manner, basic human rights enshrined in Articles 7-9, 11, 13-15, 18, 20, 21, 25 and 28 of the Constitution and in violation of European and International Conventions.
"The Court dismissed the application, which proceeded only against the Attorney General and the Minister of Health with the legal costs to be incurred by the applicants."
Facts of the case
Among the Plaintiffs there were minors represented by their custodians.
The contested decrees inter alia required the submission of a negative test for Covid-19, a vaccination certificate, or evidence of recovery from Covid-19 in order to enter various public places; imposed and / or compelled Plaintiffs to a mandatory curfew at certain hours, as well as imposed and / or obliged the Plaintiffs to use a mask indoors and / or outdoors where two or more persons were present.
According to section 32 of the Courts of Justice Law 14/1960, to justify the issuance of interim measures the Court must assess the fairness and reasonableness of the order, and ensure the following conditions have been met: (a) the existence of a serious issue for litigation; (b) that Plaintiffs have a reasonable chance of success; and © the impossibility to administer justice at a later stage unless an interim injunction is issued.
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Claimant(s)
Private collectiveDefendant(s)
Public
Type of procedure
Reasoning of the deciding body
Assessing the preconditions for the issuance of the interim orders, the Court examined a claim and stated that the Plaintiffs had disclosed serious issues for adjudication in their petitions which were found to be sufficient to meet the first precondition.
With regard to the second precondition, the Court recalled that according to Article 33 of the Constitution, the fundamental rights contained in Part II of the Constitution are subject only to the restrictions set out therein. Thus, constitutional right to liberty may be restricted to prevent communicable diseases; freedom of movement, respect for private and family life, freedom of thought, conscience and religion, education, peaceful assembly and the exercise of a profession may be subject to restrictions for reasons of public health. The Court emphasized the State's positive obligation to protect the right to life and physical integrity which meant that the contested measures were part of the effort to act, on the one hand, to protect public health, which fell within the recognized restrictions by the Constitution itself, and on the other hand, to guarantee the right to life and the protection of society as a whole.
The Court recalled the ECHR case of Vavricka and others v. the Czech Republic (Applications no. 47621/13 etc., dated 8.4.21), where the ECHR, in examining interference with the right to privacy (and family life) (Art. 8 of the ECHR), referred to such basic principles as legitimacy, necessity, and proportionality and stated that compulsory vaccination did not violate the rights of minors.
In assessing the contested measures, the Court stated that there was no evidence that vaccination was mandatory, only recommended (Resolution on COVID-19 vaccines of the Council of Europe adopted on January 27, 2021); the measures set forth in the Ordinances did not demonstrate that they went beyond the restrictions envisaged by the Constitution when taking international situation, i.e. the pandemic, into account.
The Court came to the conclusion that the Plaintiffs had failed to demonstrate the reasonable probability of success of their claim.
With regard to the third precondition, the Court stated that it was not satisfied, explaining that in a case on the violation of a constitutional right the violation must be proven and established by the Court.
Assessing the fairness and reasonableness of issuing an interim order, the Court stated that the State protects public health and society as a whole. The Court recalled that it has the power to examine the unconstitutionality/legality of the law, but not to prohibit the executive from enacting a law or a decision. It was confirmed that the request to suspend the laws, which were already expired, was weak; whereas with regard to future laws such a request was also impossible as their implementation was not clear.
With regard to the approval of the contested laws by Parliament, the Court noted that approval by the Parliament did not automatically guarantee that they did not violate constitutional rights. The Court noted that the defendants were empowered to take measures to protect public health and society as a whole.
Conclusions of the deciding body
The Court concluded that the conditions required for the issuance of the interim order were not met. The Court, at that stage, did not reach conclusions regarding the full examination of the factual and legal status of the case, which were to be carried out when examining the substance of the case. The claim was rejected.
Fundamental Right(s) involved
- Freedom of association, Public gathering, Assembly
- Freedom of expression
- Freedom of movement of people, goods and capital
- Freedom of religion
- Freedom to conduct a business
- Right to education
- Right to private and family life
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
- Right to liberty, Art. 11;
- Freedom of movement, Art. 13;
- Respect for private and family life, Art. 15;
- Freedom of thought, conscience and religion, Art. 18;
- Right to education, Art. 20;
- Peaceful assembly, Art. 21;
- Exercise profession, Art. 25 of the Constitution
- Right to privacy and family life, Art. 8 of the ECHR
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
- Health v. freedom of movement of persons
- Health v. freedom to conduct a business
- Health v. freedom of association / public gathering
- Health v. freedom of expression / right to information
- Health v. right to privacy (private and family life)
- Health v. right to education
- Health v. private life
Judicial dialogue
Reference to the ECHR court practice, ie. Vavricka and others v. the Czech Republic (Applications no. 47621/13 etc., dated 8.4.21)
Other notes
On general principles applied and balancing techniques see "Reasoning of the deciding court"
