In light of the “emergency situation” related to the outbreak of the coronavirus pandemic in Cyprus, the government activated the provisions of an outdated law, with the purpose of providing the Minister of Health with the power to issue decrees, by which he is able to, inter alia, determine the ways and reasons according to which Cypriot citizens may commute.
The prohibition of unnecessary movements was implemented from the 24th of March, in accordance with the provisions of the Regulatory Administrative Act 117/2020.
Subsequently, with the coming into force of the Regulatory Administrative Act 152/2020, from 13 April until 4 May, at 5:59 a.m., citizens without permission to commute due to work were only permitted one movement by exception, after following the SMS process, or the handwritten completion of Form B for persons above 65 years of age.
From 4 May at 6:00 a.m., with the Regulatory Administrative Act 183/2020, a significant relaxation of the movement prohibition measures occurred, since citizens are now entitled to three daily movements and the complete prohibition of movement except for reasons of “inescapable need” was pushed from 9:00 p.m. to 10:00 p.m. In parallel, from 4 May, most businesses of the retail industry are permitted to reopen, as a first step of the gradual return to normality. Furthermore, from 21 May, the SMS process and Form B are expected to be fully withdrawn.
Nevertheless, it is a fact that the situation in place from 13 April until 4 May constituted the most significant restriction of the right of movement in the history of the Republic of Cyprus in time of peace.
The analysis that follows below mainly concerns the legal regime as applied for the period from 13 April to 4 May, and the content of this article may be useful regarding complaints and criminal charges in relation to the above period, as well as in case there is a new wave of coronavirus spread in the autumn, and a return to the restrictive regime that was in place up to now.
The “new reality” created during the period from 13 April to 4 May indicates, beyond the creativity of Cypriot citizens in finding excuses for their movements, the inherent problems that relate to the ambiguities in the content of the decrees of the Minister of Health issued with the Regulatory Administrative Act 152/2020, which may likely lead to a violation of article 12 of the Constitution. We note that, corresponding ambiguities are also observed in the legal framework of the Regulatory Administrative Act 183/2020.
Article 12 of the Constitution
The 1st paragraph of article 12 of the Constitution embodies the ‘nullum crimen, nulla poena sine lege’ principle, which provides that only the law may define a crime and determine the punishment.
In Kokkinakis v. Greece[1] the ECHR highlighted that article 7(1) of the ECHR, which is almost identical to article 12(1) of the Constitution, is not limited to prohibiting the retrospective application of criminal law against a person charged. It also incorporates, in general, the principle that criminal law cannot be subject to wide interpretation against a person charged, for example, mutatis mutandis. As a result, a wrongful act must be defined with clarity by the law. This term is satisfied where a person may know from the wording of the relevant provision and, if necessary, with the assistance of judicial interpretation thereof, which acts and omissions will render them liable.”[2]
In Kafkaris v Cyprus[3], it was decided that a violation of article 7(1) of the ECHR had occurred, since at the time the Applicant committed the wrongful act, the relevant Cypriot legislation in its entirety was not worded with sufficient clarity in order to permit the Applicant to determine, even with the appropriate advice, to the extent reasonable under the circumstances, the field of application of “lifetime imprisonment” and the manner of its execution.
From the above, it is obvious that simply the mere existence of a criminal act in law is not sufficient for compliance with the ‘nullum crimen, nulla poena sine lege’ principle. The quality of the legislative act in question must be assessed in order to find whether it is worded in a way that permits the citizen to know, at least with appropriate legal advice, whether a specific act or omission is a wrongful act, and which is the penalty it entails.
Therefore, a law describing both the penalty and the wrongdoing in a general and vague manner cannot be considered constitutional. Besides, it must not be forgotten that vague and “flexible” criminal laws are cherished in dictatorial regimes.[4]
It is clarified, however, that as clear as a criminal provision may be, there is unavoidably the element of judicial interpretation. The fact that there will be cases in which it is not clear how the facts of the case fall within the field of application of a criminal law, do not make the criminal law incompatible with the provisions of article 12(1) of the Constitution and article 7(1) of the ECHR, given that the criminally punishable conduct is clear in the majority of cases.[5]
The “criminal act of unnecessary movement”
According to article 7 of the Quarantine Law, as amended by the Law 31(Ι)/2020, whoever violates the decrees issued on the basis of the Quarantine Law is guilty of offence.
According to the Regulatory Administrative Act 152/2020 and the Regulatory Administrative Act 183/2020 (the Decrees of the Minister of Health), the movement by exception of citizens must be conducted in accordance with the provisions of Form B, and by obtaining permission by sending an SMS text to the number 8998, except for persons above 65 years of age, where the handwritten completion of Form B is permitted. We note that Form B is attached as an Annex in the Decrees of the Minister of Health and constitutes part of the regulations.
The movement of persons by exception, in accordance with the provisions of Form B, as previously applied and as applies today, is justified on 7+1 reasons. In points 1 to 7 of Form B, specific reasons are provided which correspond to the respective exceptions provided in the decrees of the Minister of Health. Point 8 of Form B provides that movement is permitted for any other purpose (which is not mentioned expressly in the decree of the Minister of Health and Form B) which may be justified on the basis of the movement prohibition measures.
The issue with point 8 of Form B is that no specific guidelines are provided in the decrees of the Minister of Health as to what could be justified on the basis of the movement prohibition measures.
Which is therefore the criterion on the basis of which one could determine whether their movement are justified on the basis of point 8?
The nature of the cases where movement is permitted on the basis of point 8 of Form B, remains undefined. In practice, the citizen, when their reason for movement does not fall under points 1 to 7 of Form B, would send a message to 8998, without stating their reason for movement, and receive the reply “APPOVED 8 […] FOR A REASONABLE PERIOD OF TIME” without knowing if their movement would be considered as justified by the Police officer who will conduct the investigation, in case there is one. Even if the citizen seeks legal advice as to the legality of their movement, it cannot be said with certainty that they may know to a reasonable extent under the circumstances whether they will be charged for violating the movement prohibition measures.
Another problematic part of Form B, as it applied until 4 May, was in point 6, which stated that physical exercise was permitted, but in neighbouring areas of the residence, without again determining which areas are considered neighbouring to the residence on the basis of the decree.
The fact that each police officer is called to determine within which areas someone could move for exercise or whether a reason for movement, on the basis of point 8 of Form B is legal or not, acting in essence as “quasi-legislator and/or Judge”, creates an unbalanced situation and, possibly, the conditions for the issuance or not of fines and the filing of charges in an arbitrary way and in accordance with the personal opinions and experiences of each police officer. It is clarified that the above are mentioned simply for purposes of discussion, since up to the present moment, the Police seems to execute its work with prudence and responsibility.
It is a fact that with the last Decree of the Minister of Health (Regulatory Administrative Act 183/2020), which will continue to apply until new measures are announced, the restriction in relation to the neighbouring areas has been withdrawn. Furthermore, the reopening of the majority of retail businesses and the addition of certain provisions as to new activities permitted, such as the movement to a church for prayer and the movement from one city to another for the purpose of swimming, unavoidably will lead to a more “flexible” regime and a limitation of the ability to police citizens.
Unavoidably, however, for an indeterminate and likely large number of movements, which arise from the daily needs of each person, and which are ostensibly covered by point 8 of Form B, there is no certainty as to when they are justified or when a wrongful act is committed on the basis of the Decrees of the Minister of Health. Given the above, in case that, in the course of a criminal procedure for the violation of the Decrees of the Minister of Health (and article 7 of the Quarantine Law), a matter of the violation of article 12(1) of the Constitution arises, one cannot exclude the possibility that it will be decided that the ‘nullum crimen, nulla poena sine lege’ principle is violated, due to the quality of the legislative framework.
For more information please visit our website microsite on Criminal Law, Extraditions and European Arrest Warrants or contact Mr Charis Andreou at This email address is being protected from spambots. You need JavaScript enabled to view it..
[1] ECtHR, Kokkinakis v. Greece, No. 14307/88, 25/05/1993, para. 52
[2] Textbook of Andreas Nicolas Loizou, Constitution of the Republic of Cyprus, 2001, p. 80.
[3] ECtHR, Kafkaris v. Cyprus, No. 21906 [CG], 12/02/2008 para. 150
[4] Textbook of Dr. Costa Paraskeva, Cypriot Constitutional Law-Fundamental Rights & Freedoms (Legal Library Athens, 2015), p.179 {Reference to Dagtoglou, P.Α., Constitutional Law, Rights of the Individual, (4th ed, Sakkoula Publications, Athens-Thessaloniki, 2012), p 271}
[5] ECtHR Cantoni v. France, No 17862/91, 11/11/1996, para 32
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