On 27th July 2021, the Nicosia District Court (P.D.J. E. Efraim) issued its interim judgment in a civil claim brought before the Cyprus Courts on issues relating to the application of the restrictive measures imposed across Cyprus as a means of combating the spread of COVID-19 (claim number 1322/2021 of Nicosia District Court).
The claim was brought by 103 citizens of Cyprus, including minors represented by their custodians, against the Attorney General of the Republic of Cyprus, the Minister of Health of the Republic and the members of the Government’s Epidemiological Advisory Committee.
By an interim application, the applicants sought the issuance of an interim order – injunction disengaging them from the obligation to be submitted to COVID-19 tests or present a vaccination certificate or proof of recovery from COVID-19 as a condition for their entry and presence in various places within the Republic, the obligation to use a mask in indoor or outdoor areas, as well as the restriction of movement (curfew) to the extent imposed, among others, as per the government’s decisions and relevant decrees issued. The applicants also sought an injunction suspending the effect of all decrees issued by the government on the ground that these are discriminatory, they interfere with the right to free movement and other human rights and that they lack approval by the Parliament, whereas they also sought a mandatory order of the Court that any potential future decrees issued, be issued only following approval of the Parliament.
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.
Having assessed the legislative preconditions for the issuance of interim orders, the Court found that the first precondition of section 32 of the Courts of Justice Law, Law 14/1960, i.e. whether a serious matter to be tried is disclosed, was indeed met. The Court found that a prima facie case was disclosed by the applicants, who sought damages and other remedies for acts of the authorities that are seen by the applicants as negligent or in breach of a statutory duty or otherwise, thus disclosing a plausible cause of action.
With regards to the second precondition, i.e. whether there is a probability that the applicants will succeed in their main claim and will be entitled to a remedy, the Court was not satisfied that the applicants met this condition. By reference to European Court of Human Rights (ECtHR) case law and by making particular reference to the recent case, Vavricka and others v. The Czech Republic, Application No. 47621/13, dated 8/4/2021, which discusses issues of legitimacy, necessity and proportionality in the context of compulsory vaccination of minors, it is concluded that the measures at stake did not violate Article 8 of the European Convention of Human Rights, neither the measures challenged in the claim appear to be related to or have an impact on the right to life itself or the right to a dignified life or that the measures imposed led to torture or inhumane or degrading treatment.
It is worth noting that the Court pointed out that health policy issues fall within the margin of assessment of the local authorities of the Member States which are in a better position to evaluate social needs and that where there is differentiation between Member States, this margin is wider. Regarding the applicants’ position that the measures imposed allegedly violate individual freedoms and constitutional rights, the Court concluded that it is a legal issue which shall be decided by the Court at the substantive hearing of the case and not at the hearing of an interim application where the merits of the case are not assessed as a matter of principle.
The Court further pointed out that public health is a ground which may justify the imposition of restrictions and interventions in the exercise of constitutional rights. The question before the Court at this intermediate stage was whether, on the basis of the material adduced, there is a prima facie case of unconstitutionality of the decrees issued. The Court concluded that, to the extent assessed for purposes of the interim judgment, the measures imposed did not exceed the restrictions that would be justified under the Constitution in the face of a situation that is internationally recognized and treated as a pandemic.
In terms of separation of powers, as enshrined by the Constitution itself, the Court also highlighted that the judiciary does not have the power to prohibit the executive from carrying out its duties. As to the issuance of the decrees themselves and their compulsory nature without the need to be approved by the Parliament, by reference to a judgment of the Supreme Court of Cyprus, Holy Archbishopric of Cyprus and others v Republic (1990) 3(Β) Α.Α.D. 1175, the Court held that the Minister of Health was authorized by law by the Council of Ministers to issue such decrees, valid as of the date of their publication in the Official Gazette, without the requirement for Parliamentary approval.
Moreover, the Court ruled that neither the third precondition for the issuance of an injunction was satisfied, i.e. whether it will be impossible for justice to be done at a later stage, as the appropriate remedy for the claimants is a potential declaration of unconstitutionality and the award of monetary compensation.
As to the exercise of its discretionary power, the Court concluded that the balance of convenience clearly lied towards the continuation of the validity of the measures, which distinctly aims at the protection of public health and the society as a whole.
Delay in the submission of the application was also a factor taken into consideration by the Court, which ordered service of the application and did not issue any order on an ex-parte basis, as requested by the applicants.
This judgment marks the first Cyprus civil judgment on the particular matter. It is of particular interest as to the approach of the judiciary on the applicability and constitutionality of the measures imposed, intended to protect the wider public from the spread of COVID-19. It is noted, however, that the assessment made was limited for purposes of issuance of an interim judgment of the Court on the application before it, and it remains to be seen whether the claim will be heard on its merits and whether other claims against the government will follow, potentially on other grounds, that will require further and more detailed assessment by the Cyprus Courts.
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