The Court of Appeals has overturned a first-instance conviction for participating in a mass demonstration during the pandemic, ruling that authorities failed to maintain proportionality in restricting constitutional rights.
The three-judge panel acquitted a citizen who was convicted for violating health regulations by joining a protest on 31 May 2020 against government immigration policy, specifically regarding the detention of asylum seekers at Pournara Reception Centre.
Appeals court finds disproportionate restriction of constitutional rights
The court determined that whilst other universal prohibition measures had been lifted and restaurants, cafeterias, hotels and taverns were permitted to operate under conditions, participation in demonstrations remained absolutely prohibited.
The citizen had admitted participating in the mass demonstration, which constituted a protest march that began at Eleftheria Square, passed through the Interior Ministry and returned to Eleftheria Square to express disagreement with the government’s immigration policy under then-Interior Minister Nicos Nouris.
At first instance, the appellant challenged the constitutionality of the decree, which stated: “Mass or any other events, gatherings, parades, concerts in public and private spaces, outdoor festivals, as well as football and other sporting events are prohibited.”
Judges criticise absolute ban on mass gatherings
The court found that the first-instance court correctly concluded that the disputed decree restricted the appellant’s rights of peaceful assembly and free expression. However, during the critical examination of the necessity and proportionality of restrictions, the court adopted the position of Dr Tsioutis, an epidemiology professor and member of the Scientific Advisory Committee.
The court rejected the expert’s reasoning that mass gatherings were among the last measures to be lifted because permitting them would not justify other less restrictive measures such as limitations on church services, individual or group exercise, shop operations and general economic activity.
“The reasoning was flawed because the question should have been posed inversely,” the court stated. “Given that other activities mentioned by Mr Tsioutis were permitted, subject to conditions or guidelines, the question was why mass gatherings could not receive similar treatment rather than being absolutely prohibited.”
The Appeals Court rejected the first-instance court’s position that the citizen failed to prove the burden of proportionality regarding the restrictive measure.
“The relevant burden regarding demonstration of proportionality belonged to the Prosecuting Authority,” the judges concluded. “There was obvious lack of consistent treatment and failure to provide adequate and convincing explanations that measures were restricted to the absolutely necessary degree, with no other milder measures available.”
The court ruled that violation of the proportionality principle determined the appeal’s outcome, cancelling both the conviction and imposed penalty.