Mandatory tests branded unconstitutional

Mandatory rapid tests for all workplaces have been described as point-blank unconstitutional and breaching fundamental human rights and liberties by some prominent lawyers, while others say “it depends.”

“No limitation to individual rights can be imposed via ministerial decree. Such limitations may only be imposed by law or ordinances. Parliament must pass the limitation in question,” Head of the Bar Association Christos Clerides said, adding that the decrees are unlawful and unconstitutional.

He added: “Interference with individual rights is permissible only by law, and not via a decree issued by virtue of a law.”

It’s understood he was alluding to the fact that the health minister’s decrees on the various restrictions are being issues pursuant to the Quarantine Law.

Businesses employing up to three people must make sure all get tested every week. For businesses employing four to 10 people, at least four need to get tested weekly. For businesses with more than 10 employees, at least four or 20 per cent of them need to get tested, whichever is numerically greater.

The measure was instituted as the government eased restrictions last Monday, allowing certain businesses to reopen after a weeks-long blanket closure.

Health ministry and officials of other competent services will be carrying out intensified checks in businesses to make sure the mandatory rapid testing measure is observed.

The health ministry decree mandating rapid tests was published in the government gazette on January 28. It has no cutoff date.

Each business must draft a rotating schedule for testing their staff. Employers who do not, are liable to a €300 fine per employee who should have got tested for the week in question but wasn’t.

Where an employee is informed of the obligation to undergo a Covid-19 test, but does not comply, the employee is fined €300.

The schedule for ongoing workplace testing is not spelled out in the decree itself, but rather in a press release issued by the health ministry on the same day. Whereas the decree does say workers in the public and private sectors “shall be subjected to rapid antigen tests” – using the future continuous tense in the Greek – there’s no mention at all of the schedule.

If the press release represents an interpretation of the decree, and given that a press release is not a statutory instrument, that would make the workplace testing schedules formally invalid.

Mandatory testing is only the latest in a cascade of diktats rolled out by the health ministry, which some would dub oppressive and excessive.

Attorney Evangelos Pourgourides told daily Phileleftheros that forcing a healthy individual to undergo a medical procedure, violating their right to corporal integrity, or forcing someone to submit to a medical test without their consent, violates both article 7 of the constitution as well as European treaties to which Cyprus is a signatory.

“You can’t perform a medical procedure on someone without their consent. This is blackmail. Legally it’s a classic case of unlawful coercion,” Pourgourides said.

Article 7 of the constitution states: “Every person has the right to life and corporal integrity.” The remainder of the article cites no limitations to the latter.

Even if the mandatory testing decree were technically legal – voted through by parliament – questions could still be raised about its proportionality.

“Why should a healthy individual be forced to take the test? Is that proportionate?” Clerides asked.

In his mind, there’s no doubt the rapid test is an invasive procedure, violating a person’s bodily integrity.

He said if someone objects to taking the rapid test, he or she may refuse, get fined, decline to pay the fine, and go to court to argue that his or her rights were violated.

“I’m not giving out legal advice here,” he scrambled to clarify. “But that’s how it would play out. The matter needs to be decided in court.”

But attorney Achilleas Demetriades said it isn’t as clear-cut as to whether the ministerial decrees don’t carry the force of law simply because they haven’t got the nod from parliament.

“The decrees emanate from the Quarantine Law itself. Theoretically, the minister can tack onto the law any number of decrees. On the other hand, such decrees should not be indefinite.”

Demetriades added: “When it comes to matters like these, there’s no hard-and-fast rule. You need to consider the factual set-up under which you operate. In this case, it’s a balancing act between public health and personal liberties.

“For instance, would you send your kids to a school knowing that the teacher hasn’t been tested for the coronavirus?”

Then there arise matters of liability: “If an employer does not see to it that staff are tested, and one employee contracts the virus from another, is the employer then not liable for failure to protect?”

That said, each case is different.

“To give you an extreme contrast- is the teacher in a classroom the same as an employee who works in an office alone? Should they both be required to get tested?”

Associate Professor of Epidemiology and Public Health at the Open University of Cyprus Elpidoforos Soteriades agreed that compulsory tests are “not acceptable” as they contravene a number of national laws and international treaties regarding human rights.

These include the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine – an international legally binding instrument on the protection of human rights in the biomedical field.

“Not to mention that they [mandatory rapid tests] violate medical ethics deontology in forcing people to undergo a medical procedure by obtaining a biological specimen from the pharynx,” he said.

Getting down to brass tacks, the doctor said forced testing doesn’t appear to have an impact on controlling the transmission of a virus in the community.

“Mandatory testing isn’t supported by scientific studies. Moreover, mandatory tests go against the core principles and values of public health. There exist numerous studies showing that mandatory measures have adverse effects in the field of public health, and often lead to undesirable outcomes that have no effect on controlling the spread of infectious diseases – such as that they force people to either conceal their medical status or avoid the measures.

“And this in turn leads to flawed information and distorted data obtained by public health agencies.”