A practitioner advising on public order charges arising from a COVID-19 protest in Cyprus now has a clear answer from the Supreme Court: a conviction for participating in a peaceful demonstration during the April 2021 lockdown cannot stand if the decree that banned it simultaneously allowed gyms, cinemas, tattoo parlors, and churches to operate under conditions. The protest charge was disproportionate. The conviction was quashed.
The Charge and the Decree
The appellant, Michalakas Varnakidis, was convicted at first instance of two offences arising from events in April 2021: participating in a mass gathering in violation of the applicable COVID-19 decree, and failing to wear a protective mask.
The governing instrument was Quarantine (Measures to Prevent the Spread of COVID-19) Decree (No. 12) of 2021 (ΚΔΠ 142/2021), issued by the Minister of Health, in force from 1 April to 26 April 2021. The Decree imposed a blanket prohibition on mass events, gatherings, demonstrations, and any similar events in both public and private spaces, backed by criminal sanction.
Cyprus was then in the grip of a serious outbreak. In the period from 11 to 29 March 2021, there had been 6,495 confirmed cases; daily hospitalisations stood at 180 to 210; 18 deaths had been recorded. The public health justification for emergency measures was not in question.
What was in question was whether this particular measure — a total criminal ban on peaceful assembly — could survive scrutiny when the same Decree was prepared to let people meet in churches (up to 50 persons), attend cinemas and theatres (up to 50 persons), use gyms and dance studios, and visit tattoo parlors and beauty centres, all under Ministry of Health guidelines.
The Delegation Question: Executive Power Without Parliament
The appellant's first line of attack was structural. The Decree was made by the Minister of Health on the basis of a delegation chain, without parliamentary approval for each individual measure. He argued this exceeded lawful executive authority.
The Supreme Court (Criminal Division, Second Instance) rejected this ground in Ποινική Έφεση Αρ. 67/22, 4 March 2024, judges Τ.Θ. Οικονόμου, Λ. Δημητριάδου-Ανδρέου, Στ. Χατζηγιάννη, holding that the delegation chain was legally sound.
The court also noted Parliament's active role in supporting the regime. By Law 31(I)/2020 of 27 March 2020 and subsequently Law 72(I)/2020, Parliament had amended the Quarantine Law to clarify the scope of decrees and regulations and had raised the maximum penalties to €50,000 and one year imprisonment. Parliament knew the framework and reinforced it. Legislation was therefore not bypassed; it was the foundation.
This point has cross-border resonance. The ECtHR Chamber in CGAS v. Switzerland, App. No. 21881/20, 15 March 2022, similarly accepted that COVID urgency justified executive action without full parliamentary approval. (The Grand Chamber's ruling of 22 November 2023 rejected the case on procedural grounds — lack of victim status under Article 34 ECHR and non-exhaustion of domestic remedies under Article 35 ECHR — leaving the Section's proportionality reasoning persuasive but not binding.)
The delegation point will matter to practitioners in other common law jurisdictions with similar enabling statutes. Where the legislature has both conferred emergency powers and subsequently amended the empowering Act in a supportive direction, the argument that individual decrees required fresh parliamentary authorisation is unlikely to succeed.
Where the Decree Failed: Tattoo Parlors vs. Peaceful Assembly
The acquittal turned not on the existence of emergency power, but on how it was used.
Article 21 of the Cyprus Constitution protects the right of peaceful assembly. The same right is protected by Article 11 ECHR, Article 20.1 of the Universal Declaration of Human Rights, Articles 20 and 21 of the International Covenant on Civil and Political Rights (ratified by Cyprus via Law 14/1969), and Article 12 of the EU Charter of Fundamental Rights. Any restriction must be proportionate.
The Decree imposed an absolute prohibition on peaceful protests, with criminal consequences. At the same time it permitted:
- Churches: up to 50 persons under Ministry of Health guidelines
- Cinemas and theatres: up to 50 persons
- Gyms and dance schools: permitted under conditions
- Tattoo parlors and beauty centres: permitted under Ministry guidelines
No justification was offered in the Decree for treating peaceful public protest differently from these activities. The Decree did not explain why a gathering of up to 50 socially distanced demonstrators posed a materially greater public health risk than a gym class or a tattooing session in an enclosed space.
The ECtHR's Grand Chamber judgment in Kudrevičius and Others v. Lithuania, App. No. 37553/05, 15 October 2015, para. 146 provides the framing principle: a peaceful demonstration should not in principle be subject to criminal sanction. A criminal penalty requires a compelling justification that less severe measures could not meet. Applying that principle, the court examined the spectrum of possible responses and found that less restrictive alternatives — maximum headcount limits, distancing requirements, conditional permissions analogous to those applied to churches or cinemas — had been available and were not considered.
The Proportionality Framework Applied
The proportionality analysis the court applied drew on both the ECtHR's Kudrevičius line and CJEU proportionality doctrine. The court's reasoning reflects the principle, visible in the CJEU's Nordic cases on restrictions to fundamental freedoms, that any restriction must be applied consistently and systematically, and that the prosecution must justify why less restrictive alternatives were not employed.
Three failures emerged from the proportionality review:
- The ban was absolute: no conditional permission, no safe harbour for small gatherings
- The state offered no justification for the asymmetry between assembly and the permitted activities
- Less restrictive alternatives (maximum headcount, social distancing, conditional permits) were demonstrably available because the Decree had already applied exactly those tools to churches, cinemas, and gyms
Where a state uses a graduated toolkit for some activities but reaches for a total prohibition for a constitutionally protected right without explanation, the proportionality test is not satisfied. The court held that the prosecution had not discharged the burden of demonstrating that the absolute ban on peaceful assembly was necessary and proportionate when measured against both the public health objective and the conditional permissions operating in parallel.
What This Means for Practitioners
The conviction for participating in a protest was quashed. The appellant was acquitted on that charge. The conviction for failing to wear a protective mask was upheld, and the original sentence was vacated with the case remitted for re-sentencing on the remaining mask charge alone.
For practitioners advising clients on charges arising from COVID-19 era enforcement, four consequences follow:
- A conviction for attending a peaceful demonstration during a period when the same decree conditionally permitted comparable social gatherings will be vulnerable to a proportionality challenge. The inconsistency in the decree is the key.
- The ECtHR principle that criminal sanctions for peaceful assembly require a compelling justification now has explicit endorsement from the Cyprus Supreme Court (Second Instance). Future charges arising from similar decree structures face a higher bar.
- The delegation chain analysis confirms that emergency ministerial decrees issued under Cap. 260 and Law 23/1962 are constitutionally sound provided Parliament has endorsed the underlying framework — defendants cannot challenge the authority to issue decrees, only their content.
- The mask charge survived. Courts will maintain a distinction between measures that restrict a constitutionally protected right absolutely (assembly) and measures that impose a condition on individual conduct in public (mask wearing). The latter face a considerably lower proportionality threshold.
Practitioners should also note the court's broader point about internal consistency. Any future emergency measure that seeks to restrict a fundamental right while leaving comparable activities conditionally open will need to articulate, in the instrument itself or its accompanying recitals, why the right receives more restrictive treatment. Silence on that asymmetry is, after this ruling, a proportionality failure waiting to happen.
Primary sources, not summaries. The full text of Ποινική Έφεση Αρ. 67/22 and the corpus of Cyprus emergency legislation is searchable at omnilaw.ai.
Frequently Asked Questions
Q: What exactly did the Cyprus Supreme Court decide in Ποινική Έφεση Αρ. 67/22?
A: The court partly allowed the criminal appeal of Michalakas Varnakidis, decided on 4 March 2024 by judges Τ.Θ. Οικονόμου, Λ. Δημητριάδου-Ανδρέου, and Στ. Χατζηγιάννη. It acquitted the appellant on the charge of participating in a mass gathering in violation of ΚΔΠ 142/2021, on the ground that the Decree's absolute ban on peaceful assembly was disproportionate and inconsistent with simultaneous conditional permissions for tattoo parlors, gyms, cinemas, and churches. The conviction for failing to wear a protective mask was upheld.
Q: Did the court find that Cyprus's COVID-19 decree regime was constitutionally unlawful?
A: No. The court upheld the legal basis for the decrees. The delegation from the Council of Ministers to the Minister of Health under Article 6, Quarantine Law Cap. 260 and Article 3(1) of Law 23/1962 was valid. Parliament had actively supported the framework through Laws 31(I)/2020 and 72(I)/2020. The ruling concerns the proportionality of one specific provision of one specific decree, not the constitutional validity of the emergency framework as a whole.
Q: What is the relevance of the Kudrevičius judgment to this ruling?
A: The ECtHR Grand Chamber in Kudrevičius and Others v. Lithuania, App. No. 37553/05, 15 October 2015, para. 146 established that peaceful demonstrations should not in principle be subject to criminal sanctions. The Cyprus Supreme Court applied this as a framing principle in its proportionality analysis: before a criminal penalty can be justified for peaceful assembly, the state must demonstrate that less restrictive alternatives could not have achieved the public health objective. The Decree's own conditional permissions for other activities showed that such alternatives existed.
Q: Does this ruling affect pending cases from COVID-19 enforcement in Cyprus?
A: It creates a strong argument for any defendant convicted of participation in a peaceful protest under a decree that simultaneously permitted comparable gatherings under conditions. The proportionality failure identified by the court is structural — it arises from the face of the Decree itself, not from the specific facts of the appellant's participation. Any conviction resting on the same Decree's assembly ban is potentially vulnerable to the same analysis. The mask charge holding is separate and is not affected.
