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- Ελληνικά
Announcement of the Legal Service of the Republic in relation to the Orders of the Minister of Health for preventing the spread of Covid-19
The Supreme Court ruled that it was the Orders made by the Minister of Health under the Infectious Diseases Act (prescribing measures to prevent the spread of the Covid-19 coronavirus) that were lawful and lawfully made by the Minister of Health, under the authority of the Council of Ministers, issued these Orders.
This very important decision of the Supreme Court, which was unanimous and issued on 4 March 2024, is an outgrowth of the examination of a citizen's appeal in relation to the constitutionality and legality of Ordinance (No. 12) of the Infectious Diseases Act, which summarily provided, inter alia, for the prohibition of mass and other events, and the mandatory use of a protective face mask for all persons aged 12 years and over. The appeal was against a decision of the District Court in relation to the charges the citizen faced, namely for not wearing a protective mask and for participating in a protest event in 2021 in contravention of an Order of the Minister of Health. For these two charges the citizen was found guilty by the District Court and was fined a total fine of 450 euros for both offences.
The substantive question that the Supreme Court was asked to answer, given that there was interference with the citizen's rights to freedom of expression and freedom of peaceful assembly, was whether this interference was constitutionally lawful, pursued a legitimate aim and was necessary in a democratic society as a permissible restriction under articles of the Constitution of the Republic and the European Convention on Human Rights (ECHR), and whether the same or a similar result could be achieved by less stringent measures.
The following important points emerge from the judgment of the Supreme Court. As the Court stated, the possibility of limiting the rights to freedom of assembly and freedom of expression "despite their unquestionable value and strong protection, the very Articles that enshrine these individual rights at the same time relativise them, making it possible, above all, to place restrictions on them. But restrictions must be prescribed by law and are necessary measures in a democratic society for the protection of particularly important goods, including public health." [*]Although the restriction of human rights was lawful in accordance with the principle of proportionality, the Supreme Court acquitted the citizen on the charge of participating in a protest because, according to the judgment, the requirement of proportionality entails the obligation to apply the measures in a consistent and systematic manner. In the Court's view, the fact that a number of measures conditionally permitted the activities of persons in enclosed places, such as the gathering of worshippers in places of religious worship and the operation of, inter alia, gyms, cinemas, hairdressing salons and tattoo parlours, demonstrated a lack of consistency in the application of the measures. [*]The Supreme Court upheld the conviction by the trial court for the non-use of the mandatory protective mask, since the non-use of the mask was proportionate to the intended purpose. The Supreme Court fined the citizen EUR 300 for the charge of not using a protective mask, having previously annulled the total penalty of EUR 450 imposed for both charges by the District Court. [*]The Orders constitute independent acts, the violation of which constitutes a criminal offence. [*]All the Decrees were issued in response to the urgent need to deal with the pandemic. [*]Although the legislative power of the Republic is exercised by the Chamber of Deputies, the Constitution does not prevent the delegation of legislative power from the Chamber to other organs of the Republic. In the present case, the Parliament, through the amendments to the Dialysis Act, authorised the Council of Ministers to take immediate measures to protect the citizens of the Republic.
[*]The Decrees issued under the Anti-Diarrhoea Law were held by the Court to be an act of an executive nature [I.E. "DEMONSTRATING THE PREDOMINANTLY EXECUTIVE NATURE OF THE MEASURES AND DID NOT ALLOW FOR 'IN-DEPTH INTERNAL DISCUSSIONS, IN PARTICULAR WITH THE PARTICIPATION OF PARLIAMENT'"] and therefore, lawfully the Council of Ministers delegated the power to issue them to the Minister of Health. Interestingly, the Court's typical reference is:
"All these elements ringing the executive nature of the measures taken have now, with the pandemic, acquired a new, unprecedented dimension. The situation should be monitored on a daily basis, with a high level of expertise and on the basis of current scientific knowledge. Measures should have been taken in an immediate and dynamic manner, just as the pandemic threatened humanity. We conclude that this was a case of the exercise of executive power, under the authority of the House of Representatives, to carry out the purposes of the law and the immediate, in this case, need of the people."
On behalf of the Attorney General of the Republic, the case was handled by the Lawyer of the Republic I, Mr. Vassilis Bissas.
(MΛ)
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