Balance of justice as determining factor

The spread of the covid-19 pandemic, and the need to halt it, have resulted in an incredibly different world. The new reality comprises various restrictive measures imposed by national governments. The imposition of these measures has, undoubtedly, triggered significant and controversial discussions among lawyers, doctors and other health practitioners, as well as ordinary people whose everyday lives and businesses have been affected significantly. Although those issues and questions have been discussed extensively on several levels, to date the judicial judgments on the matter are limited.


In Cyprus, this new reality has materialised through the periodic issue of numerous decrees by the minister of health, pursuant to the Quarantine Law (Cap 260). One such decree was recently challenged before the Nicosia District Court. The government decree contested concerned the obligation of citizens to show a "safe pass" before entering specific premises listed in the decree, such as shopping centres, churches and hotels. A safe pass is granted if one or more of the following conditions are met:

  • a citizen possesses a negative polymerase chain reaction (PCR) or antigen test, performed a maximum of 72 hours previously;
  • a vaccination certificate of at least one dose, provided that the vaccination took place a minimum of three weeks previously; or
  • evidence of being no longer contagious if the citizen was diagnosed with covid-19 within the past six months.

Along with filing civil action, the claimants alleging breach of their core constitutional rights also requested that an interim relief be issued in the form of interlocutory injunctions pursuant to section 32 of the Courts of Justice Law (CJL) (14/1960).

The purpose of the injunctive relief sought was twofold:

  • to prohibit, among other things, the defendants and any Cyprus officers from forcing the claimants to produce the safe pass to:
    • move freely between particular places; and
    • freely practise their profession; and
  • to prohibit such parties from forcing the claimants to disclose personal data and to undergo vaccination or PCR or antigen testing.

The Court hearing the application issued its judgment(1) while applying the well-established conditions under section 32 of the CJL – namely, that:

  • a serious question arises to be tried at the hearing;
  • there appears to be a probability that the plaintiff is entitled to relief; and
  • unless an order is issued, it will be difficult or impossible to do complete justice at a later stage.

Nevertheless, for the first time since the start of the pandemic, a Cypriot court was called on to balance the constitutional validity of restrictive measures against sensitive issues, touching upon core individual rights protected by the Constitution.

In interim applications of this nature, the courts will not reach conclusions or make final findings on the substance of the dispute. Nevertheless, the Court examined, on a preliminary basis, the allegations advanced by the claimants in order to conclude whether the criteria of section 32 of the CJL had been met. In this context, the Court made some extremely interesting interim findings.


The claimants' arguments were essentially divided into two categories. One was based on an assertion that compulsory vaccination was effectively imposed by a government decree. The other category was the fact that they were forced to undergo PCR or antigen testing. It was the claimants' position that both provisions of the government decree interfered with their constitutional rights as well as their right to have their personal data protected.

Compulsory vaccination
The Court considered the claimants' claim that among the provisions of the government decree was the introduction of compulsory vaccination. On that point, the Court found that the wording of the government decree did not, and could not, support the claimants' position. Nothing was provided therein which rendered vaccination compulsory. The Court further highlighted that no evidence had been brought to support the case that the provisions of the government decree rendered vaccination a compulsory act.

Interfering with the right to have personal data protected
The Court looked at the claimants' argument that the provisions of the government decree interfered with their right to have their personal data protected. The Court referred to the relevant regulation regarding the processing of personal data and the free movement of such data. It was noted that no evidence was brought by the claimants to support the contention that compliance with the government decree would directly or indirectly constitute the unlawful processing of personal data.

Interfering with constitutional rights
The Court's analysis was then devoted exclusively to whether there was sufficient evidence supporting the claimants' contention that their constitutional rights had been infringed. Their assertion that the government decree infringed their constitutional rights relied on the fact that, in complying with the decree, they were being forced to undertake medical examinations and, in particular, to undergo PCR or antigen tests.


The Court, while considering this matter, cited and followed Carlo Boffa v San Marino,(2) a judgment delivered by the European Court of Human Rights (ECHR). The case concerned the compulsory vaccination against Hepatitis B, and according to the ECHR, compulsory vaccination did not constitute interference with the right of a person to physical integrity, to conscience and religion or to freedom of thought.

Being guided by that judgment, the Court found, considering that an important act such as the compulsory vaccination of a person was not considered by the ECHR as being an act that interferes with a person's rights, that medical examinations such as a rapid test were a "secondary matter" (as described by the Court) and could not constitute interference with such rights.

On that basis, the Court found that there was insufficient evidence to indicate, at this interim stage, that the claimants' constitutional rights under article 7 (the right to physical integrity), article 18 (freedom of thought) and article 19 (freedom of speech and expression) had been infringed.

The Court also dismissed the claimants' argument that their rights under the following constitutional articles had been infringed:

  • article 8 – the right to not be subjected to torture, inhuman or degrading punishment or treatment; and
  • article 26 – the right to enter freely into any contract.

The Court noted that the wording used in the government decree said nothing about medical experiments or anything to that effect, meaning that the claimants' argument that they were forcibly subjected to an unsafe experiment was not supported by the wording provisions of the government decree.

As far as the right to equality under article 28 of the Constitution was concerned, the Court found that, once again, no evidence had been brought to indicate that the claimants had been subjected to unequal treatment because of the provisions of the government decree.

The Court examined the claimants' position that being forced to provide a negative PCR or antigen test in order to move freely or attend their workplace effectively amounted to a violation of their right:

  • to free movement (article 13);
  • of personal life (article 15);
  • of freedom of association (article 21); and
  • to practise a profession (article 25).

The Court considered the respondents' position that there was an overriding public interest to serve (ie, that of public health); therefore, the restrictive measures taken were necessary under the circumstances. However, the Court also opined that at this particular interim stage of the case, the claimants seemed to have brought sufficient evidence to show that there may have been an infringement of their rights under articles 13, 15, 21 and 25 of the Constitution.

Balance of justice as determining factor

Once the Court concluded that all three conditions of section 32 of the CJL had been satisfied, it proceeded to examine whether it would be just and reasonable to issue the requested orders. In this context, it was mentioned that the government decree had been issued to prevent the spread of covid-19 and that the government had an overriding obligation to protect public health.

In examining whether it was just and reasonable to issue the orders, the Court considered the claimants' constitutional rights in conjunction with the consequences that the orders may bring to them as well as to third parties. On this point, the Court underlined that constitutional rights are, in principle, not unlimited and can be subject to restrictions.

On the other hand, the Court considered the government's obligation to take measures to protect public health and public interest. However, the possibility of infringing the claimants' rights because of the obligation to perform PCR or antigen tests was also taken into account. The Court referred to the ECHR judgment in Vavricka a.o. v The Czech Republic,(3) which concerned the statutory duty of the vaccination of minors and the exclusion of children from preschool for refusal to comply with said duty.

The ECHR found that compulsory vaccination, as an involuntary medical intervention, represents an interference with the right to respect for private life. However, in that case, it was decided that this statutory obligation served a legitimate function – namely, the protection of public health and the rights of others. As such, it constituted a necessary limitation within a democratic society.

Following this judgment, the Court in the present case accepted that the protection of public health may justify the obligation to perform a PCR or antigen test, even if the claimants' constitutional rights may have been infringed. On the contrary, excluding the claimants from the provisions of the government decrees would have amounted to a breach of the purpose of such decrees and would have been contrary to public interest and the duty of Cypriot officials to protect public health.

The Court also highlighted that were the interim application to succeed, it would lead to the infringement of the presumption of the constitutionality of the laws. Such an outcome would reverse the status quo at the interim stage without a final finding as to whether the government decree infringed the claimants' constitutional rights. Therefore, the Court dismissed the application.


The primary aim and responsibility of a democratic society should be to secure a fair balance between public interest and individual rights. The ideal solution would be the reconciliation of the competing interests affected without jeopardising the health of others. In this respect, even in emergency situations, the rule of law must prevail and the restrictions should always be proportionate to the aim that they pursue.

The Court's reasoning depended on the effect that the requested exclusion would have on public health and interest. This is despite the fact that in its preliminary assessment, the Court commented that certain human rights may have been infringed.

Although this judgment may indicate the Cypriot courts' tendency to put public health above certain individual rights, this was an interim judgment issued by a first-instance court in the context of an application for injunctive relief. It is not a final judgment and it remains to be seen how the appellate court will rule on the facts of the case.

For further information on this topic please contact Christiana Pyrkotou or Aimilia Efstathiou at Elias Neocleous & Co LLC by telephone (+357 25 110 110) or email ([email protected] or [email protected]). The Elias Neocleous & Co LLC website can be accessed at www.neo.law.


(1) Judgment of the Nicosia District Court, Action 1498/2021, dated 9 July 2021.

(2) Application 26536/95.

(3) Application 47621/13, dated 8 April 2021.