On 7-12-2021 at 21:55 an overdue and irrelevant amendment was submitted by the Ministry of Justice. Article 5 of this amendment amends and adds new content to paragraph 9 of Article 16 of law 4714/2020. Law 4714/2020 established the Out-of-Court Tax Dispute Resolution Committee and defined terms of limited immunity for its members. The 2021 amendment adds to the conditions that must be met for criminal proceedings to be brought against the category of persons defined in the legislation, such as the addition of the requirement for a request from the President of the National Transparency Authority to initiate criminal proceedings. Two paragraphs are also added to Article 16, which provide that the freedom from criminal and civil liability established in paragraph 9, (for a reasoned opinion, suggestion, proposal or decision made or omitted in the performance of their duties, except in cases explicitly mentioned in the provision,) and the further conditions that must be met for the initiation of criminal proceedings, are now extended to the members of all relevant Committees and Directorates, (including the President and the members of the Committee for the Administrative Settlement of Tax Disputes of Article 70A of law 2238/1994.)
The explanatory memorandum accompanying the provisions refers to the need to optimize the legal framework of the newly established Out-of-Court Tax Dispute Resolution Committee, and the need to extend the regulations to other such bodies involved in resolving administrative disputes, for reasons of equal treatment. Furthermore, the memorandum explains, the provisions aim to solve any problems of interpretation regarding the scope of civil and criminal liability of the Presidents and members of these bodies, as unfounded complaints can make their work very difficult and undermine efficiency. By adding to the conditions that must be met for criminal proceedings to be initiated, it is considered that these persons are further safeguarded from the risk of unfounded complaints.
At this point it is worth mentioning that no specific reference is made to the purpose initially served by paragraph 9 of Article 16 of law 4714/2020, either in the explanatory memorandum that accompanies this law (see specifically p. 9, which refers only to the purpose served by the establishment of the Committee, and p. 12, which merely repeats the content of paragraph 9) nor in the Regulatory Impact Assessment (see in particular pages 8, 15, 22, 29, 31, 35-36, 38-40 where again only the objectives of the establishment of this committee are mentioned), nor in the context of the discussion of the bill in Parliament.
The specific amendment was voted for only by the MPs of the ruling party (see p. 83 of the minutes of Parliament). It raises concerns both because of the way in which it was introduced for a vote, and because of its substantive content. This is because in this case a) the principles of good legislation were not observed (being that the amendment was both submitted late, and was irrelevant in content to the main bill), and b) the prior introduction of criminal immunity for specific groups was done on grounds that are of dubious legitimacy and constitutionality (see more here). During the debate in Parliament, it was argued that this provision would “ensure criminal immunity” and “conceal amnesty” (see page 75 of the parliamentary minutes and specifically the position of KKE and SYRIZA opposition MPs).
Furthermore, the requirement of a request from the National Transparency Authority to initiate or continue criminal proceedings (although it is not the only case in which this is a requirement) could be construed as an illegal restriction of judicial power, or as a challenge to the principle of the separation of powers, especially when cases pending before the courts are involved.
According to an article in the newspaper Efimerida ton Syntakton, a few days after the adoption of this amendment, an order was issued by the Athens Council for Criminal Procedure concerning an investigation into the actions of public officials, including members of the Committee in question.
The particular timing of the adoption of the measures in question raises serious concerns as to the purposes that this provision ultimately serves, as it may mask an attempt to interfere in the work of the judiciary in a particular case, and ultimately may have been voted into legislation for a different purpose than the one it is supposed to serve.
Furthermore, according to reports in the press, the Committee for the Administrative Settlement of Tax Disputes of Article 70A seems to have been criticized extensively in the past (see 1, 2) and appears to have been dissolved (see paragraph 11, Article 26 of law 4223/2013, which provides for the termination of the provisions of law 2238/1994).
The observance of the principles of good legislation and the separation of powers constitute basic elements of the rule of law. Laws that impose restrictions on the constitutionally guaranteed exercise of judicial power must meet certain conditions, such as serving specific public interest purposes and not unduly restricting the scope of judicial power. Finally, the delegation of “judicial” powers to administrative bodies must always be undertaken with caution, as it may run counter to the principle of the separation of powers.
In this case, through an overdue and irrelevant amendment, a type of criminal immunity is extended both in scope and in application, adding to the conditions that must be met for criminal proceedings to be brought against a category of persons, and extending these protections to other groups.
Although it is legitimate for the state to try to protect civil servants from false accusations and the obstruction of their work, the vote on this provision takes place at a time when a specific case is pending before the courts which concerns civil servants that fall into the exact category of persons protected under this new legislation. This situation can only raise concerns, as it may be considered as concealing interference in the work of the judiciary.
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