Cyprus, Supreme Court of Cyprus, 11 August 2020, No. 96/2020
Case overview
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General Summary
The Applicants have filed this application to the Supreme Court of Cyprus in order to issue the prerogative writ of certiorari. This writ purposed the annulment of the decision of the District Court of Famagusta, date 31/07/2020, which was issued in relation to Criminal Case No. 2275/2020 concerning the possible violation of COVID-19 related regulations in the operation of food service businesses, including restaurants. According to the Applicants, the aforementioned decision forced them to defend themselves against certain criminal offenses which, in their opinion, did not exist and they did not commit, founding their legal argumentation on the fundamental legal principle nullum crimen, nulla poena sine lege.
The Court has examined the present application and proceeded to the following legal argumentation in relation to its merits. Firstly, the Court has examined the conditions upon which a writ of certiorari could be issued. Next of, it has been supported that this specific power of the Supreme Court must be exercised in exceptional circumstances and it may not in any case circumvent the ordinary appeal procedure which served this purpose. Consequently, it has been concluded that these conditions have not been fulfilled in this case, as the applicants still have the chance to use the ordinary appeal procedure to question the findings of the Court of First Instance, i.e. whether the alleged criminal offenses exist or not. Consequently, the application has been rejected.
Having said that, the Court has decided that the question regarding the existence of the specific offense may be examined on the basis of the Regulations aimed at stopping the spread of COVID-19 pandemic across the country. The only available exceptions to the above rules were those exhaustively listed in the Regulations.
Facts of the case
The Applicants have submitted this application to the Supreme Court of Cyprus in order to issue the prerogative writ of certiorari, since the Supreme Court had exclusive jurisdiction to issue this kind of writ, which were historically founded on the common law origins of Cypriot legal system (the prerogative writ of certiorari constitutes the judicial review by the Supreme Court of a decision of a lower court or governmental officer). This writ purposed the annulment of the decision of the District Court of Famagusta of 31/07/2020, which was issued in relation to Criminal Case No. 2275/2020. This criminal case concerned the operation of a restaurant which was not serving its customers at table seats in violation of the Regulations aimed at stopping the spread of the COVID-19 pandemic across the country. Regarding this latter criminal case, a crowd of people at this restaurant was found to be dancing, consuming drinks, touching each other and not complying with the essential social distancing requirements. According to the Applicants, the aforementioned decision forced them to defend themselves against certain criminal offenses which, in their opinion, did not exist and they did not commit. Therefore, they have based their legal argumentation on the fundamental legal principle nullum crimen, nulla poena sine lege.
Despite the fact that the case was continued before the District Court of Famagusta with the submission of testimonies by the Defense and the Defense closed its case, the Applicants have suggested that the present Application for the issue of the prerogative writ could continue and the Court had the discretion to issue the requested writ.
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
The Court has examined the present application and proceeded to the following legal argumentation in relation to its merits. Firstly, the Court has examined the conditions upon which a writ of certiorari could be issued. In this context, it has been supported that this specific power of the Supreme Court must be exercised in exceptional circumstances and it must not in any case circumvent the ordinary appeal procedure which served this purpose. It has then been concluded that these conditions have not been fulfilled in this case, as the applicants still had the chance to use the ordinary appeal procedure to question the findings of the Court of First Instance, i.e. whether the alleged criminal offenses existed or not.
In addition, despite the fact that the application was rejected due to the aforementioned reasoning, the Court has also referred to the Infection Law-Cap 260 [Measures to stop the spread of the COVID-19 pandemic] and the relevant Regulations issued by the Ministry of Health of the Republic of Cyprus, and more specifically to the Regulation with no. 2.11, which was issued in relation to the above Law, through which the operation of food service businesses was regulated under specific conditions and guidelines of the Ministry of Health of the Republic of Cyprus. The above imposed obligations were the object of the criminal offenses which the applicants faced in relation to the procedure before the Court of First Instance. However, the Court did not provide any definite answer on the matter, since it was left to the Court of the First Instance or to the Appeal Court to decide on this question.
Conclusions of the deciding body
Having explained the above, the Court has concluded that the question regarding the existence of the specific offense may be examined on the basis of the Regulations issued by the Ministry of Health of the Republic of Cyprus aimed at stopping the spread of COVID-19 pandemic across the country. The only available exceptions to the above rules were those exhaustively listed in the Regulations.
Therefore, through the Infection Law-Cap 260 [Measures to stop the spread of COVID-19 pandemic] and the relevant Regulations issued by the Ministry of Health of the Republic of Cyprus, the suspension of, inter alia, the operation of "all businesses with food service activities with the exception of the services they offer or which will be able to offer home delivery" was adopted. Anything else was not allowed, until 20/05/2020, when restaurants were allowed to open, limited to serving the public at table seats, in accordance with the guidelines of the Ministry of Health. Any other activity may have been prohibited by the Regulations; any such activity in violation of the Regulations constituted a criminal offense under Article 7 of Cap. 260. As a result, the application has been rejected.
Fundamental Right(s) involved
- Freedom of association, Public gathering, Assembly
- Freedom to conduct a business
- Right to access to justice, to a fair trial and to jury trial
- Right to an effective remedy
- 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
- Health v. access to justice
- Health v. economic freedoms
- Health v. freedom to conduct a business
- Health v. freedom of association / public gathering
General principle applied
- Rule of law
- Due process
- Effective (judicial) protection
- Reasonableness
- State of emergency or necessity
