Filenews 9 February 2021 - by Despina Psyllaou
There is disagreement among lawyers about the decision to hold a rapid test on a weekly basis by employees. This is not a simple question, they note in "F". Some describe the measure as unconstitutional, extortional and coercive. Others see it as milder compared to other measures such as lockdown.
In particular, the lawyer Evangelos Purgouridis stressed to "F" that "forcing a healthy citizen to undergo a medical act, which violates his right to his physical integrity, as guaranteed in Article 7 of the Constitution, as well as to undergo a medical procedure - a medical test - without his free consent, violates beyond Article 7 of the Constitution and provisions of the European Treaties , which we have adopted in Cyprus by law. Which provisions require, like any person, before undergoing a medical procedure to know what the consequences and consequences are if any, what kind of test it is subjected to and to give its free consent. You can't do a medical procedure on someone without their consent. The citizen is being blackmailed. Legally this is a classic case of illegal coercion'.
The lawyer and president of the Cyprus Bar Association, Christos Clerides, said in a social media post: "Mandatory rapid testing with Minister's Decrees is both illegal and unconstitutional." At the same time, in a second post he noted: "No restriction of an individual right may be imposed by Ministerial Decree. It's not a law, even if the law gives power. Such restrictions may only be imposed by law or regulations. The passage by the House of this restriction is required", and explains: "Interventions in individual rights are permitted only by Law, not by Decrees under law. That's why the Constitution allows restrictions only by law."
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For his part, the lawyer Achilleas Emilianidis noted to "F" that "clearly there is a restriction here on the right to privacy enshrined in the Constitution and the European Convention on Human Rights (ECHR). The Oviedo Convention also requires consent for medical acts. However, the test here does not pierce the body, nor does it transfer organisms to it. The question is whether the restriction is legitimate and proportionate. In the present case, there is no direct obligation in the sense that one interferes with the body against the will of another, but indirectly in the sense that sanctions are imposed in the event of non-compliance. The first would be unacceptable, while the second could be allowed in the knowledge that there is necessity and proportionality in a democratic society. It is obvious that there is a legitimate objective, namely the protection of public health and the protection of the rights of third parties."
The state, he continues, also has an obligation to protect the rights of third parties. 'Therefore, the crucial thing is proportionality. The State is obliged to seek milder solutions compared to extreme restrictions and I certainly consider that mass testing is a milder and more transparent approach compared to lockdowns or other similar restrictions that have been applied in recent times."
A. Dimitriadis: "For the school I would be in the opinion of being tested"
"The deeper question is whether these decrees issued in relation to the mandatory weekly check can be considered invalid because they are contrary to provisions of the Constitution or the European Convention on Human Rights. If they are contrary to the Constitution or the Convention, then they are obviously invalid and people should not follow them," the lawyer Achilleas Dimitriadis notes in "F".
Rights need to be balanced, he stresses. 'On the one hand, the individual right to object to interference with privacy and dignity and, on the other hand, the general right to the protection of public health'. Depending on the case there is this balance, he notes and explains: "That is, depending on the profession. It's a difficult answer. It depends on the profession and the circumstances. If we're talking about a school or a place with a lot of people, I'd be more in the opinion that there should be tests.""
