The freedom of movement of persons is considered to be a human rights concept according to EU legislation, while the US Constitution recognizes it as a fundamental constitutional right, as stated primarily by the “Privileges and Immunities Clause”. While the right is enshrined in article 45 of the Charter of Fundamental Rights of the European Union, it is directly attributed to every EU citizen by article 21 of the Treaty on the Functioning of the European Union, while the Commission newly sealed it with the Directive 2004/38/EC. In a concern to protect the freedom of movement, and without any prejudice to the protection of the public health, the governments have decided to open their boarders again after successfully flattening the curve of an unprecedented pandemic.
The return to normality though, is subject to certain rules and regulations that have been established for the well-being and safety of the population. Such regulations concern all sectors, including tourism, as the Commission has laid out specific health guidelines for the adoption of new hygiene rules and higher sterilization standards, for the protection of public health across the European Union.
In the Republic of Cyprus, since the beginning of the Pandemic, the Law on Infectious Diseases got into application again, as amended for the second time due to the occasion, also known as the “Quarantine Law”. The Law has been applied until now, setting up the rules and regulations within the territory of the Republic, for the protection of the public health and for the the avoidance of a potential spread of the disease.
In accordance with the provisions of Article 190 of the Penal Code, Chapter 154 of the Republic of Cyprus, entitled “Negligence for the Dissemination of Life-threatening Diseases”, ” any person who unlawfully or negligently does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease, dangerous to life, is guilty of misdemeanor”. In other words, a physical person who, by their acts or omissions, may endanger the lives of others, as a result of the spread of a disease, is liable of misconduct, provided that the individual was aware of the disease or its’ possible spread by their act or omission. In the case of the Covid-19 Pandemic, which has been officially recognized by the World Health Organization definitely fulfills the requirements for the application of the provisions of this Law, for the engagement of criminal liability of an individual.
More concretely, the components of such an offense are the following:
i) The presence of a life-threatening disease that can be spread out;
ii) The element of knowledge or belief of the perpetrator that he may be carrier of the disease in question;
iii) The unlawful or negligent action or omission of the perpetrator.
The Negligence for the spread of life-threatening diseases, and the relevant general provisions of the Penal Code, are aimed to safeguard the public health and the general public’s well being. In other words, this type of offense constitutes a crime of risk and not of effect, as the purpose of Article 190 aims to prevent the threat instead of curing it. With regards to the sentence, the offender is charged with misdemeanor and may be charged either with imprisonment which cannot exceed a time period of two years, either with a fine, or with both sentences combined.
The main legal basis of a defense line is founded on the element of awareness. If an individual is aware of the existence of the disease and the possibility of spreading that disease to others, that individual may be held liable of the consequences and thus be tried and charged with negligence and misdemeanor. However, in case an individual has no knowledge of being a disease carrier and does not in any case suspect being in such a situation, after contact with diagnosed disease carriers, such a physical person cannot be held liable of such an offense. Furthermore, it is important to strike out that under the common law, the qualification of the life-threatening disease as infectious and/or contagious is irrelevant to the spread of it into the population or the liability.
With regards to legal persons, restaurants, airline companies or even hotel and/or accommodation establishments, those must in every case comply with all the EU measures, rules and regulations, as well hygiene protocols, in order to keep their clients and visitors safe. In terms of defense, the lawful compliance to all the mandatory regulations constitutes a satisfactory legal base. Therefore, in case of a possible infected client and/or visitor, the relevant establishment or company must follow the protocols, as set by the EU Commission and the national governmental organs, place the subject into quarantine and fulfill all the necessary requirements of distancing and tests, as well as collaborate with specialized doctors, in order to protect the rest of the individuals that may have been in contact with the infected person.
The present article is for informational purposes only and does not, under any circumstances, constitute legal advice. For further information on the subject, please visit our website and/or contact Arsen Theofanidis LLC.
Nika Kalifatidou
Advocate – Legal Consultant
Arsen Theofanidis LLC