Cyprus, Supreme Court of Cyprus, 31 July 2020, Antoniou v. Police
Deciding body (English)
Deciding body (Original)
Type of body
Type of Court (material scope)
Type of jurisdiction
Type of Court (territorial scope)
Further areas addressed
Outcome of the decision
Link to the full text of the decision
A Cypriot citizen violated the national lockdown that was in place during March 2020 in order to stop the spread of the Covid-19 over the island of Cyprus. More specifically, the man was stopped/detained as he was driving his car to visit his girlfriend without having in his possession the necessary certification, to be able to be excluded from the prohibition of movement during the lockdown. The police arrested accordingly the Defendant/Appellant who violated the Infection Law related to measures to stop the spread of Covid-19 pandemic.
The Court of first instance found the Appellant guilty and imposed a 45-day prison sentence.
The Supreme Court of Cypress responded to two main grounds of appeal in connection with the findings of the Court of first instance. The first one concerned the conviction of the Defendant/Appellant and the second one was related to the nature and the magnitude of the sentence which was imposed on the Defendant/Appellant.
The Supreme Court rejected the part of the appeal related to the conviction and overruled the court of first instance with regard to the 45 day prison sentence imposed.
Facts of the case
After an ordinary check made by the police, it was found that the Defendant/Appellant, was driving his car in Deryneia [Famagusta District], while he not in the possession of a suitable certificate of movement therefore violated the regulatory act of the Infection Law (Cap 260) related to measures to stop the spread of Covid-19 during the pandemic. The police officer who checked the Defendant/Appellant, informed him accordingly about the crime he was committing. Afterwards, the police officer arrested the Defendant/Appellant for violating the national lockdown that was in place from 24th of March 2020 to 13th of April of the same year, and, more specifically, for movement without a legitimate reason, according to the provisions of the aforementioned regulatory act.
The Court of first instance found the Appellant guilty to the above charge and sentence him to 45 days of prison. However, the Defendant/Appellant did not serve his full sentence. During the initial stages of the present Appeal, the President of the Republic of Cyprus, exercising his constitutional right (Article 53.4 of the Constitution), pardoned the Defendant/Appellant by suspending his sentence. The Defendant/Appellant was released after 2 days in prision. However, the aforementioned given pardon did not expunge the previously imposed sentence, which still constituted a part of the Defendant/s/Appellant’s criminal record and his imprisonment was imposed as a sentence.
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Type of procedure
Reasoning of the deciding body
The Supreme Court responded to two main grounds of appeal in connection with the findings of the Court of first instance. The first one concerns the conviction of the Defenant/Appellant as such and the other one is related with the nature and the magnitude of the prison sentence which was imposed on the Defendant/Appellant.
The Supreme Court replied to the allegations made by the Defendant/Appellant, i.e., that the Court of first instance found him guilty for an offence which did not exist, violating the fundamental legal doctrine, nullum crimen, nulla poena sine lege, and, in this case the Defendant/Appellant having indeed been convicted of a crime which did not exist in law, then, despite the fact that the issue was not raised at first instance, the Court must annul the sentence. However, the Supreme Court held that, this is not the case and what is at stake is a formal or even substantial handicap of the indictment, therefore it is inappropriate for the Defendant/Appellant to raise the point at this very late stage of the proceedings.
In relation to the first ground of appeal, the Supreme Court found that the relevant State regulations established a crime. They prohibited unnecessary movements, which were identified in contrast to the cases of exhaustively defined movements that were exempted from the essentially general prohibition. Nevertheless, it was not enough that the movement was covered by some of the exceptions to be legal. The person moving had to, without prejudice to paragraph 2 (a), bring with him/her "an identity card or a passport with additional proof, when requested by the competent authorities". The Supreme Court also clarified that the possession of an "identity card or passport with additional proof" did not make the movement legal automatically. The primary requirement was that the movement fall within one of the exceptions.
As far as the second ground of appeal was concerned, the Supreme Court noted that to review whether the sentence imposed was manifestly excessive, it should examine the circumstances which were before the Court of first instance when deciding. The Court then mentioned that it was within its judicial knowledge the situation prevailing when the Court of first instance was called to decide on the Defendant’s/Appellant’s sentence. The element of general deterrence was strong and appellate Court Justices agreed with the approach adopted by the Court of first instance that in order to play their important role in society, but also to send the right message, the court of first instance had to impose, under certain circumstances, strict and deterrent sentences.
In the context of imposing a deterrent sentence, although to a lesser extent, the factor of individualization at sentencing should not be ignored by a court in order to reflect important individual characteristics relating to the offence and the offender. It was held that the Court of first instance did not have before it all the necessary evidence in order to form a clear picture of the Defendant’s/Appellant’s case and determine an appropriate sentence.
Moreover, the Court mentioned that the process of deciding on the sentence for a particular case constitutes a multidimensional judicial task. Hence, it is crucial when the Court considers the imposition of an imprisonment as a sentence for offences where such sentence is not normally imposed, according to the law, for the court to have all the evidence.
Additionally, the Supreme Court Judges pointed out that intervention by the Supreme Court is possible only where the contested sentence, objectively judged, is either manifestly insufficient or manifestly excessive. In addition, in cases where an error of principle is found.
Conclusions of the deciding body
First, regarding the conviction of the Defendant/Appellant by the Court of first instance, it was held that any movement in violation of the respective regulations of the regulatory act constituted a criminal offence, under Article 7 of the Infection Law (Cap 260) and was punishable by imprisonment for up to six months or even a fine.
Concerning the second ground of appeal, the Supreme Court ruled that imprisonment was the last resort choice for punishment. It was imposed only where any other punishment would undoubtedly be inappropriate and insufficient. Imprisonment was not inevitable in this case. While prison sentences may, depending on the circumstances that sometimes prevailed or may prevail in the future and depending on the illegal activity, be or become necessary for the protection of public health, the circumstances of the present case did not necessitate imprisonment. A fine could have been imposed on the Defendant/Appellant, which would have been sufficient to punish the Defendant/Appellant and to act as a deterrent to the public. The choice of imprisonment, was a manifestly wrong choice, making the sentence imposed on the Defendant/Appellant manifestly excessive therefore requiring the intervention of the Supreme Court. As a result, the 45-day prison sentence imposed on the Defendant//Appellant was set aside.
All in all, the part of the present appeal related to the conviction was rejected, whereas, the decision of the Court of first instance concerning the sentence imposed, i.e., the imprisonment for 45 days, was overruled, with the appeal succeeding in this direction.
Fundamental Right(s) involved
- Freedom of association, Public gathering, Assembly
- Freedom of movement of people, goods and capital
- Right to health (inc. right to vaccination, right to access to reproductive health)
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
General principle applied
- Rule of law
- Due process
- State of emergency or necessity