By Nicolas Tsardellis
The President announced yesterday afternoon new measures taken by the Council of Ministers to limit the spread of Covid-19.
Τhe extension of the measures to restrict entry into the Republic has spurred several reactions, as these affect thousands of Cypriot students who will remain stranded abroad. Last Friday night it was announced that entry into the Republic would be allowed only to Cypriot citizens, legal residents, Europeans and other citizens working in the Republic and students. However, due to the continuing increase in numbers, and in an attempt to control its spread, it was on Sunday decided to extend the restriction on entry to these categories as well, unless those seeking entry provide a medical certificate of a negative coronavirus test from a certified medical centre abroad. Simply put, anyone who does not hold such a certificate will not be allowed into the Republic.
How legal is the above decision with regards to Cypriot citizens?
Despite the absence of Supreme Court case law on this matter, it seems to me that this is an unconstitutional decision, in view of the provisions of Article 14 of the Constitution that “No citizen shall be prohibited from entering the Republic nor shall be exiled under any circumstances”.
It is to be emphasised that the right conferred by Article 14 is absolute. There are no exceptions to it, and no derogation is allowed. Consequently, the restriction of that right cannot be justified even on the basis of public health safety, although the confinement within Cyprus may be allowed under Article 11.2(e) of the Constitution.
The Constitution is the supreme law of the Republic which is, of course, to be read in the light of European Union law. It is to be noted that the latter does not in any way bear directly on the matter. Therefore, a provision in any law, regulations or administrative decisions contrary to Article 14 of the Constitution must be considered unconstitutional. It follows that, section 8 of the Aliens and Immigration Law (Cap. 105) as amended, which provides for the restriction of entry into the Republic by Cypriot nationals falling within any of the categories listed under section 6(1) (f), (g), (h) and (i), falls necessarily foul of article 14 of the Constitution. It is to be observed in any event that, despite the fact that section 6 (1)(c) of the Aliens and Immigration Law refers to contagious diseases as a reason for restricting entry to the Republic, the said section 8 does not admit of any restriction to entry of Cypriot citizens on the basis of the said section 6(1)(c).
It is clear that we are witnessing and experiencing situations which are both unprecedented and critical. The Government is obviously entitled and, in fact, duty bound to take strict measures to protect the public. But the Rule of Law under the Constitution must, nonetheless, be respected at all times.
Nicolas Tsardellis is a partner at Elias Neocleous & Co LLC