Του Γιάννου Γεωργιάδη
Δικηγόρος και Νομικός Σύμβουλος
The recent restrictive measures besides being illegal violate substantial constitutional rights, European law, international and European conventions on the protection of human rights and children's rights as well as being in full contradiction with the relevant resolutions of the Council of Europe.
The measures restrict the right of unvaccinated citizens even if they have a negative certificate including children over 12 years of age from entering catering establishments , cafes nightclubs Cyprus is also bound by the provisions of the Charter of Fundamental Rights of the European Union. According to Chapter 1 of the Charter Article 1 "Human dignity is inviolable. It must be respected and protected."
According to Article 3 of the Charter every person has the right to physical integrity and in particular in medical and biological matters "the free and informed consent of the person concerned must be respected"
Also under Article 5 of the International Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine known as the Oviedo Convention which Cyprus has signed and adopted by law no intervention in the field of health may be carried out without the free and informed consent of the person concerned. It further provides that appropriate information must be given beforehand on the purpose, nature, possible consequences and risks of the intervention. According to Article 6, in the case of minors, the decision is taken by their legal guardians but the opinion of the child, depending on his or her age, is also taken into account. According to article 16 no research shall be carried out on persons without the approval of the competent scientific group of bioethics and without the free and informed consent of the person subjected to research.
It is evident that in Cyprus the decrees of the Minister, apart from being illegal because they have not been approved by the Parliament as provided for in article 3(1) of Law 99/89, are contrary to the above provisions.
In addition, they conflict with Article 28 of the Constitution which gives the right to equal protection and treatment of all citizens as well as the right to enjoy all their rights and freedoms without any discrimination, direct or indirect. This right is also protected by Chapter 3 Articles 20 and 21 of the Charter of Fundamental Rights of the European Union.
What is particularly important according to the relatively recent European Union Regulation 2021/953 of 14 June 2021 which is directly applicable in the Member States and was made in order to facilitate the free movement of citizens during the COVID pandemic -19 it is explicitly provided in paragraph 6 of the Preamble that any restrictions on human rights for public health purposes should be implemented in the Member States. Also based on paragraph 20, the issuance of certificates under the Regulation should not lead to discrimination on the basis of holding a particular category of certificate. According to paragraph 36 of the Regulation:
"It is necessary to prevent discrimination, direct or indirect, against persons who have not been vaccinated, for example on medical grounds, because they do not belong to the target group for which the COVID-19 vaccine is currently administered or authorised, such as children, or because they have not yet had the opportunity to be vaccinated or have chosen not to do so. Consequently, the possession of a vaccination certificate, or the possession of a vaccination certificate indicating a vaccine against COVID-19, should not be a condition for the exercise of the right of free movement or for the use of cross-border passenger transport services, for example air, rail, bus, ferry or any other means of transport. Moreover, this Regulation cannot be interpreted as establishing a right or obligation to vaccinate.
It is clear from the above provisions of the European Regulation that the restrictions concerning the prohibition of unvaccinated citizens in restaurants, cafes, leisure centres, sports centres, weddings, baptisms, receptions, etc. are disproportionate, dramatically affect fundamental freedoms , the social life of citizens and are discriminatory in violation of the above laws.
Also they are contrary to the resolutions of the Parliamentary Assembly of the Council of Europe 2361 dated 11 January 2021 and 2383 dated 7 June 2021 which was mentioned in the previous resolution. The resolutions are binding and even it seems that Nikos Tornaritis MP of the Democratic Rally who was present at the Assembly cast a positive vote for Cyprus.
According to paragraph 7.3.1 of resolution 2361 the member countries of the Council of Europe committed that their citizens will be informed that vaccines are not compulsory and no one will be pressured politically, socially or otherwise to be vaccinated if they do not wish to be vaccinated. Also according to paragraph 7.3.2 the member states including Cyprus should ensure that no discrimination is created against citizens who decide not to vaccinate because of health or simply because they do not wish to do so i.e. as provided by the European Union Regulation 2021/953 to which I have referred above. Council of Europe Resolution 2383 adopted in June 2021 repeats and reinforces Resolution 2361. Paragraph 10 of the resolution stresses that any serious restrictions on human freedoms where the element of choice is removed then vaccination becomes compulsory and is therefore illegal.
It is also important to mention that the need for faithful observance of the provisions of the Oviedo Convention is illustrated by Article 4(1) of the Cyprus Penal Code Law 31(III)/2021 according to which "The prohibited acts or omissions of the Convention constitute offences under this law". According to paragraph 2 of article 4, the violations of the relevant articles mentioned above are punishable by imprisonment of up to 5 years and a fine of up to 10000 euros.
The paradox is that while the state for two years now through the Minister of Health and the advisory group have been systematically breaking the law and as I have discussed above in relation to the distinction between vaccinated and unvaccinated they have acted against all the above laws, International Conventions, European Regulations and Council of Europe Resolutions, no one has been punished while we see completely law abiding citizens, and scientists being dragged through the courts and branded for actions based on illegal decrees.
It is a given that states should protect the public health of citizens and their safety but this should be done within the limits of legality and always with respect for human rights regardless of any expediency, always assessing the actual facts and the risks they face. In this case, these limits have been far exceeded in such a way that the sense of justice has been lost and rightly causes strong reactions and indiscipline from many citizens.
I believe that the State should comply without delay with the applicable legislation, international conventions and European law as well as with the resolutions of the Council of Europe and immediately cancel all these illegal, disproportionate measures that cause discrimination and inconvenience to citizens and children, so that normality is restored, in order to ensure that the situation is normal.
Cyprus Times
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