Filenews 17 July 2021 - by Nicoletta Kourousi
The position that the legality of SafePass, as applied since 9 July in Cyprus, is strongly disputed by the Assistant Professor of the Department of Law of Frederick University, specializing in European Law and Personal Data Law, Dr. Konstantinos Kouroupis.
In contrast to the Privacy Commissioner's argument, she first said that medical information is sensitive personal data, adding that under national and European law it is forbidden to process it. He went on to explain that personal data may be processed when certain conditions are met, such as serving the public interest in fighting diseases, noting that it must be proportionate and necessary in a society.
In this case, he argued, the legality of the control of SafePass by business leaders is controversial, explaining that a business owner cannot have competent state authority. He pointed out that once premises and businesses become responsible for checking the certificate in question, under the legislation they are called 'privacy officers'. This implies, as he said, that a number of questions should be answered, such as what the obligations of the person responsible are, where this data is stored and for how long, while at the same time the rights of subjects arising from the legislation (e.g. the right to information and access to personal data) should also be clarified.
He argued that therefore, even if we accept that there is a legal basis, the question of proportionality is highly controversial, underlining that the framework of the decree is incomplete.
He also pointed out that since this decree, like the previous ones, has not passed through the House, its legitimacy therefore suffers, making it clear that the provisions of a decree cannot conflict with the Constitution, but also with European and international conventions.
Dr Kouroupis also stressed that European legislation on the European Digital Certificate Covid-19explicitly stipulates that it cannot lead to a distinction between citizens, nor be a criterion for the exercise of other fundamental rights and freedoms, such as the right of movement. In this way, he argued, a policy of indirect compulsory vaccination is pursued by the State, which is contrary to the Oviedo Convention. It is worth noting that Article 5 of the Convention provides for the following: 'Health intervention may take place only after the person concerned has given his or her free consent, upon prior notification. That person shall be duly informed in advance of the purpose and nature of the operation and of the consequences and risks involved. The person concerned may freely and at any time withdraw his consent'.
With regard to the latter, he explained that we could accept the mandatory vaccination for very limited groups, such as health workers, and this under consideration of the proportionality criterion and after weighing public and personal interest.
More generally, as Dr Kouroupis explained, it is necessary for the State to provide rather than impose and respect the principles of legality, proportionality and necessity.
The professor expressed concern that we are on a path of catalysing constitutional rights and freedoms. As regards how citizens can secure their rights, Dr Kouroupis noted that they could appeal to the local courts and the European Court of Human Rights, and also referred to court decisions taken in Belgium, Germany and the Netherlands, according to which traffic restrictions were ruled unconstitutional.
