Filenews 27 July 2021
The Court's application for a ban on the use of masks and SafePass fell into limbo.
In a Twitter post, Attorney General George Savvides noted that the request of 103 citizens was rejected by the Court requesting a temporary decree banning the State from requiring SafePass to enter various venues and mandatory use of a mask.
It is worth noting that the Court also ordered the applicants to pay the costs of the proceedings.
The reasons for the decision:
The interim application registered by 103 citizens of the Republic was rejected in its entirety by the Nicosia District Court, through which they applied for six provisional decrees prohibiting the imposition and obligation, inter alia, of the presentation of a negative examination for Covid-19 disease or the possession of a vaccination certificate or proof of disease, as a condition for entry and/or presence in various places (SafePass), as well as the mandatory use of a mask.
The Court also ruled that the procedure for issuing the Decrees was perfectly legal and that the power granted to the Minister of Health to issue them was in accordance with the Constitution and the legislation in force.
According to a notice from the Legal Service, the Court states in its judgment that the applicants have no visible chance of success in their action, rejecting their position of unconstitutionality and illegality of the Decrees of the Minister of Health.
The main points of the judgment are:
The contested measures do not infringe the right to life, to a decent living and do not constitute inhuman or degrading treatment.
There is no question of a ban on entry into the Republic; the conditions laid down for the exercise of that right do not in any way constitute a breach of that right.
The right to freedom, freedom of movement, private and family life, freedom of thought, conscience and religion, education, peaceful assembly, the exercise of a profession may be subject to restrictions on grounds of public health, as was done, in this case, by the imposition of measures by the Minister of Health and the adoption of relevant Decrees.
The state has a positive obligation, according to the Constitution, to protect the right to life and physical integrity. The measures taken are part of the effort to protect society as a whole.
With the measures taken, vaccination is not compulsory. In any event, however, according to ECtHR rulings, compulsory vaccination does not infringe the right to life, personal freedom and security, private and family life and freedom of thought, conscience and religion.
The testimony provided by the Republic, such as the recommendations of the World Health Organisation, the European Centre for Disease Prevention and Control, the Advisory Epidemiological Committee, is the prevailing scientific view and contradicts the testimony provided by the Applicants.
The protection of the health of all citizens was in favour of not issuing the requested decrees.
The Court held that it could not impede or restrict or interfere with the way in which the powers and decisions of the executive are exercised and, in particular, the way in which government and/or health policy is defined and implemented with regard to how to deal with the pandemic, as this would constitute an infringement of the principle of separation of powers.
The Court ordered the Applicants to pay the legal costs of the application.
The Attorney General was represented in the Court by lawyers Theanos Mavromoustakis, Elli Florentzos, Penelope Charalambous and Christos Alexandros.
Appeal
An appeal to the Supreme Court, against the court's decision rejecting the request of 103 citizens, who were asking for a temporary prohibition order in the state to require SafePass to enter various venues and mandatory use of a mask, is expected to be brought by the 103 applicants.
The applicants' lawyer, Yannos Georgiadis, is convinced that there is a good chance that the court's interim decision will be overturned at the appeal stage, which will soon be registered before three judges in the Court of Appeal.
It notes that the preparation of the documents in the main case is progressing rapidly with the hearing of the main case, where the substance will be decided after an evaluation of all the scientific evidence, while stressing that the failure to issue the provisional decree does not in any way affect or determine the outcome of the main case, nor does it prevent the applicants from re-registering another application for a provisional decree if appropriate.
Mr Georgiadis initially points out that 'the Court of Justice today has decided that it is not justified at this stage to issue a provisional order suspending safepass and other measures, specifying that through this interim decision the court does not at this stage make any findings on the substance of the issues at issue in the action, namely the violation of the human rights of the plaintiffs and the damage caused by the , due to negligence in relation to the measures, which will be examined at the hearing of the case, by presenting scientific and other testimony from both sides for evaluation, as was the case in the German case of a court of first instance, where a decision was finally given to annul the measures in schools, which required rapid testing, masks and distance retention'.
It adds that "we have studied in detail the court's decision and consider that there are several reasons justifying the registration of an appeal to the supreme court", noting the following:
"The main ground of appeal is the court's legal error in relation to the manifest illegality in the adoption of restrictive measures and the misinterpretation of Cypriot law. The Minister is always based on Article 6 of the Infectious Disease Act, which provides for the adoption of restrictive measures for the purposes of the law and not decrees. Article 6A of the same law provides for the adoption of decrees only for the purpose of amending the technical annexes to the law or regulations adopted under it and not for the purposes of imposing restrictive measures, which is done on the basis of Article 6 on which the Minister is based. The right conferred by Article 3 of Law 23/62 on the Council of Ministers to authorise the Minister of Health to exercise the powers conferred on the Council by Article 6 of the Law means that this should be exercised in accordance with Cypriot law."
It then states that 'the court seems to be aware that, firstly, no article of the Law on Infectious Diseases authorises the Council of Ministers to issue decrees for the purposes of that law, so it cannot authorise something which itself has no power to do and secondly that any regulations for which it has the power to adopt should necessarily be put before the House for approval of something which has not been done'.
In his argument, he also notes that 'the court also appears to be under legal error in relation to the interpretation of Article 54 (g) of the Constitution, on which the Minister is not based anyway and which generally provides, inter alia, for the possibility of the executive 'issuing regulatory and implementing decrees as the laws define'. , i.e. it escapes the court's attention that the executive may issue decrees under Article 54 of the Constitution only if this is provided for in a relevant law and only as defined by that law. Since Article 6 of the Infectious Disease Act provides only for the adoption of regulations which should be approved by the House as an explanation above and no other law of democracy gives the Minister the power to issue such decrees except in cases where you declare the State a state of emergency under Article 183 of the Constitution as defined there which has not been done.'
It goes on to state that 'in view of the above decrees issued by the Minister are unlawful and the Council of Ministers could not authorise the Minister of Health to do acts which the Council of Ministers itself did not have powers to do by law'.
It goes on to point out that 'on the basis of what I have said above I believe that if the court correctly interpreted the legislation it would come to the safe conclusion that this is a manifest illegality and on this basis in my opinion it is justified to issue the provisional order suspending the measures until the case is heard and I believe that there is a good chance that the court's interim decision will be overturned at the appeal stage which we will soon register before three Judges at the Court of Appeal'.
"In the meantime, we are proceeding with the preparation of the documents in the main case so that we can proceed quickly with the hearing of the main case where the substance will be decided after an evaluation of all the scientific testimony. Failure to issue the provisional decree does not in any way affect or determine the outcome of the main case, nor does it prevent the applicants from re-registering another application for a provisional decree if appropriate," it concludes.
