Article 38 of Law 4373/2016 provides that “The chairman and members of the Professional Sports Committee and the Hellenic National Council for Combating Doping (ESKAN), as well as the members of the Audit Boards of the General Secretariat of Sports, do not personally bear civil or criminal liability to third parties, and may not be questioned or prosecuted for an opinion, suggestion or the conclusion of an audit or an act that they performed in the course of their duties. These persons may be prosecuted only for defamation, insult or violation of confidentiality, and are liable to the Greek State for any acts or omissions committed out of malice or gross negligence.” The explanatory memorandum accompanying the law simply stated that the purpose of the provision is to “ensure the smooth exercise of their duties.”
According to the Scientific Service of the Parliament (see pp. 10-12 of their report) the provision of this “immunity” raises concerns because: a) it gives the members of these specific bodies a legal status similar to that enjoyed by the members of the constitutionally guaranteed independent authorities and the Legal Council of the state, i.e. bodies in which a specific and special regime applies and b) there is no specific reasoning that can justify the discriminatory treatment of these specific persons in relation to those in other state bodies (a reasoning that is necessary in cases where the principle of equality is involved).
Referring to the Supreme Court decision 1221/2014, the Scientific Service points out that this provision of non-responsibility constitutes unjustified favorable treatment and circumvents Article 4 of the Constitution, which guarantees not only the equality of Greek citizens before the law but also the equality of the law before them.
In addition to the principle of equality, the “privileged treatment” of certain persons/civil servants/administrative bodies (both in this and in other cases where the legislator has made similar arrangements), may violate other fundamental principles and rights, such as the right of citizens to judicial protection, the right to a fair trial and the right of access to justice, the principle of the separation of powers, or even the prohibition on granting amnesty for common crimes through legislation, as provided for in Article 47 paragraph 4 of the Constitution (for more on these issues see articles by Mylonopoulos and Tsiliki).
The article in question was amended in March 2019 by Article 58 of law 4603/2019 and now provides that “The chairmen, vice-Chairmen and members of the Standing Committee on Spectator Violence (D.E.A.B.), of ESCAN, and the First Instance Disciplinary Committee of paragraph 9.1.1 of Article 9 are not personally liable to third parties for acts or omissions performed in the context of their duties, as well as for the decisions they issue. They are responsible to the Greek State only for deceit and gross negligence.” Even with this wording, however, the concerns mentioned above (although limited to some extent), remain.
In a state governed by the rule of law, everyone is equal before the law, and the law applies to all citizens (except for specific and reasoned exceptions) in the same way.
Also, according to Article 26 of the Constitution, the judicial function is exercised by the courts, and for this reason legislation that establishes restrictions on the reach of judicial power must meet certain conditions, such as serving specific purposes of public interest and not unduly restricting judicial power.
In this case, the provision of legal immunity is established for the members and the chairmen of the Professional Sports Committee and the Hellenic National Council for Combating Doping (ESKAN), as well as the members of the Audit Boards of the General Secretariat of Sports.
The privileged treatment reserved by the legislator for this group of persons without a specific justification raises concerns, as in this way constitutional and supra-legislative principles and provisions, such as the principle of equality, the separation of powers and the right to judicial protection, may be brought into question.
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