Venice Commission - Observatory on emergency situations
www.venice.coe.int
Disclaimer: this information was gathered by the Secretariat of the Venice Commission on the basis of contributions by the members of the Venice Commission, and complemented with information available from various open sources (academic articles, legal blogs, official information web-sites etc.).
Every effort was made to provide accurate and up-to-date information. For further details please visit our page on COVID-19 and emergency measures taken by the member States: https://www.venice.coe.int/WebForms/pages/?p=02_EmergencyPowersObservatory&lang=EN
1. Are there specific provisions in the constitution of your country applicable to emergency situations (war and/or other public emergency threatening the life of the nation)?
Article 183 of of the Constitution of Cyprus contains a detailed regulations on the state of emergency, which has however never been triggered or proclaimed. More specifically, a Proclamation of Emergency can be made “in case of war or other public danger threatening the life of the Republic or any part thereof” giving the Council of Ministers the power to suspend specific provisions of the Constitution. This article allows the Council of Ministers to proclaim a state of emergency in the event of war or another public occurrence that endangers the life of the Republic or any part of it. The president and/or vice president can veto the proclamation of the state of emergency within 48 hours of its announcement. The proclamation is also submitted to the House of Representatives for ratification; if rejected, it is deprived of any effect ex nunc, if approved it is promulgated on publication in the official Gazette of the Republic. The state of emergency cannot last more than two months, unless prolonged by the House of Representatives. During the state of emergency, the Council of Ministers can take strictly necessary measures (ordinances with the force of law) that are also subject to veto by the president and/or vice president (Article183(7)). These ordinances cease to have effect at the end of the period of emergency at the latest. Article 183(2) requires the proclamation of emergency to indicate the articles of the Constitution that may be suspended during the emergency.
2. Do organic/constitutional or ordinary laws regulating the state of emergency exist in your country?
Article 183 of the Constitution does not specifically mention public health as justification for proclaiming an emergency.
3. Do organic or ordinary laws on health risks or other public emergency exist in your country?
Yes, it is reulgated by the Quarantine Law of 1932 (see Q2)
4. Was a state of emergency declared in your country due to the Covid-19 pandemic? By what authority and for how long?
The Quarantine Law od 1932 empowers the governor (i.e. now the government) to declare an area as an infected area and therefore to adopt measures necessary to tackle the public health emergency.
5. Was the declaration subject and submitted to parliamentary approval (if it was taken by the executive)?
Νο - there was not formal declaration under the Constitution, but the powers given to the executive by the 1932 Quarantine law have been used.While according to the Cypriot Constitution the proclamation of an emergency is subject to the parliamentary scrutiny of the House of Representatives, which must ratify it by a simple majority (Article 78) and of the president and the vice president, who may exercise their right of veto within 48 hours of the Proclamation (Article 183(1)), in practice, the measures adopted to tackle the coronavirus pandemic were predominantly, if not exclusively, the result of the exercise of executive power.
6. Was the declaration subject and submitted to judicial review? Was it found justiciable?
Νο. There was not declaration, in the constitutional meaning, so there was nothing to subject to judicial review. The Government used powers given by the 1932 Quarantene Law.
7. Are derogations to human rights possible in emergency situations under national law? What are the circumstances and criteria required in order to trigger an exception? Was a derogation under Article 15 ECHR or under any other international instrument made? Does national law prohibit derogation from certain rights even in emergency situations? Is there an explicit requirement that derogations should be proportionate, that is limited to the extent strictly required by the exigencies of the situation, in duration, circumstance and scope?
Article 183(2) requires the proclamation of emergency to indicate the articles of the Constitution that may be suspended during the emergency. This might include for instance the right to liberty, to free movement within Cyprus, to the inviolability of the home, to secrecy of correspondence, to State of emergency in the coronavirus pandemic, to compensation upon requisition of property, to strike, and even to life (Article 7), if death is inflicted by a permissible act of war.
8. Which human rights have been limited/derogated from in your country, in the context of the Covid-19 pandemic?
From 24 March, by means of a comprehensive decree, several restrictions were introduced in the provinces of Lefkosia, Lemesos, Larnaka, Ammochostos and Pafos, notably: limitation to the freedom of movement with only defined exceptions (e.g. journeys for work or health, physical exercise or other identified reasons), closure of markets and bazars, prohibition to attend any place of worship and of some traditional Easter celebrations (lighting of bonfires), closure of retail businesses with strictly defined exceptions (e.g. orthopaedic and optic material, food, pharmacies, laboratories dealing with industrial gases, vehicle reparation, dry cleaners, pet shops, etc.).
9. If a declaration of state of emergency was not made, did the Executive enjoy additional powers under the ordinary legislation on health risks or another public emergency? Did it decide to impose exceptional restrictions on human rights based on these laws?
Overall, the Republic of Cyprus has enacted and implemented special coronavirus protection protocols in line with the guidance and direction of its Government, the EU institutions and agencies, and the WHO. These include deferring all non-essential international travel to and from the island and imposing self-isolation and quarantine recommendations. These measures were enacted through decrees, laws, regulations and/or other acts. In times of emergency certain measures taken directly by the executive are viewed as ‘Acts of Government’ that may escape certain fundamental democratic and/or constitutional mechanisms of scrutiny and control, while the Parliament plays a subordinate role.
10. Are the possibilities for the Executive to derogate from the normal division of powers in emergency circumstances limited in duration, circumstance and scope?
The power of the executive to issue legislative acts in times of emergency is limited both in terms of content and of time : such acts relate to issues related to the exceptional and should not remain in force beyond the state of emergency. In other words, such measures are reviewed regularly based on needs and levels of emergency and are expected to undergo an adequate and robust proportionality test in due course, including through judicial scrutiny and exposure to the Rule of Law principles, especially if and when taken on the ground of emergency.
11. Were the sessions of parliament suspended during the Covid-19 pandemic? If so, for how long? Were specific rules on the functioning of parliament during the emergency adopted? By parliament or by the executive?
No, the sessions of parliament were not suspended during the Covid-19 pandemic. More specifically on 30th March 2020 the Cyprus Parliament issued Law 33(I)/2020 on the enforcement of emergency measures by financial organisations and supervisory authorities due to COVID-19 (the “Law”), the primary purpose of which is the protection and sustainability of the Cyprus financial system.
12. Were the judicial sessions of the Constitutional Court or court with equivalent jurisdiction and/or other courts be suspended during the Covid-19 pandemic? If so, for how long? Were specific rules on the functioning of these courts during the emergency adopted? By parliament or by the executive?
On 16 March 2020, the Supreme Court of Cyprus suspended the operation of the courts in the Republic of Cyprus in all instances until 30 April 2020 or until further notice, except for a certain categories of urgent criminal cases concerning detention periods or other urgent matters, as may be outlined in the relevant Regulations or where prior leave of the Court is obtained for the filing or the hearing of a matter within the said period. As such, trials scheduled were by default adjourned. The Court issued a relevant announcement specifying what might be heard regarding both criminal and civil cases leaving a margin of discretion to each court to decide whether an issue is extremely urgent or not.
13. Was legislation on the state of emergency or on the emergency amended or adopted to deal with the Covid-19 pandemic?
No, the Government used powers provided by the pre-existing legislation
14. Was this additional legislation subject to judicial review?
Not applicable - no new legislation
15. Was the state of emergency prolonged? For how long? Was the prolongation subject and submitted to parliamentary control? Was it subject and submitted to judicial review?
Not applicable - no declaration of the State of emergency
Cyprus
In past crises, Cyprus has relied on the doctrine of the state of necessity, developed in the Ibrahim case (1964), which offers a way round constitutional impasses created by the inability of the bi-communal system (Turkish and Greek), on which the Cypriot Constitution of 1960 was based, to function. The 'constitutional emergency' caused by the withdrawal of all Turkish Cypriots from state bodies prevented the state from functioning according to constitutional rules that required the presence of both communities. Therefore the doctrine of the state of necessity , recognised as a source of law, enabled a departure from constitutional requirements as to the composition of state bodies and organs in order to ensure the continuation of state functions.
On 10 March the Cypriot Government decided to 'go back in time' and use the March 1932 Quarantine Law, legislation dating back to colonial times, long before the entry into force of the 1960 Constitution. That was possible by virtue of Article 188(1) of the Constitution, which allows legislation predating the Constitution to continue to apply unless modified or repealed.
With its decision of 10 March 2020, the government delegated the special powers derived from the Quarantine law to the Ministry of Health for a period of six months. The Minister of Health was issuing decrees which contained most of the limitations related to the coronavirus crisis. - for example, see here. The ministry issued over 30 such decrees.
The role of the parliament has been qualified as that of an 'observer” that nonetheless can intervene in amending the relevant law, the Quarantine Law (being amenable to modifications/changes).
Article 33(1) of the Constitution also stipulates that fundamental rights and liberties cannot be limited beyond the Constitutional provisions relating to the state of emergency.
However, in 2020 those provisions were not usef, instead, the Government used the powers granted by the 1932 Quarantene Law.
From 11 March, schools in the province of Nicosia were closed, a measure subsequently extended to schools and educational establishments throughout the country.
On 28 February, the Council of Ministers decided to close the four check-points along the ceasefire line separating the Republic of Cyprus from the Turkish-controlled north of the island. A curfew was introduced on 31 March.
One measure raised some controversy: the Ministry of Health's decree of 15 March introduced a requirement for Cypriot citizens to show a medical certificate stating they were free of coronavirus infection in order to be allowed into the country. That measure, plus an obligation to quarantine for 14 days regardless, was strongly contested as it essentially prevented Cypriot citizens living abroad from returning home, as in some countries the medical tests required to obtain the certificate were not possible. It was contested by many that such measure ran counter to the Constitution, in particular Article 14, which states that 'no citizens shall be banished or excluded from the Republic under any circumstances'.
Two students submitted a request for an interim order of suspension to allow repatriation from abroad. The administrative court dismissed the claim, however, as concerning an act of government and therefore not subject to judicial review.
As of 21 May, the restrictive measures were gradually lifted, subject to guidelines issued by the competent authorities.