REPORTS
Changes made to the candidate profile and appointment method of the President of the Anti-Money Laundering Authority
Amendment 866/55/21-4-2021 was submitted by the Ministry of Justice just the evening before parliament was due to vote on a bill regarding the code of conduct of judicial officers. Article 2 of the amendment sought changes to Article 47 of law 4557/2018, which concerns the President of the Anti-Money Laundering Authority.
The amendment was voted for only by members of the governing party, (see votes on p72 of the minutes,) and was ultimately passed as Article 236 of law 4798/2021, included in the chapter of the law concerning ‘other urgent provisions’. The provision was declared urgent and it was therefore considered appropriate for it to be passed as an amendment in an unrelated law, although this urgency could be seen as questionable, especially since two other pieces of legislation (4734/2020, 4816/2021 ) had been passed within the previous year adjusting anti-money laundering regulations.
The changes made in the amendment made it possible to elect an honorary (retired) prosecutor to the position of the President of the Anti-Money Laundering Authority. The candidate will now be selected by a joint decision of the Ministers of Finance and Justice following a proposal by the latter and an opinion of the Standing Committee on Institutions and Transparency of the Parliament. Simply put, the President of the Authority will now be elected by the Government, with all that entails for the effective assurance of the personal and operational independence of the head of an independent authority.
The personal independence of the head of an independent authority is supposed to be guaranteed by his/her appointment on the basis of a procedure that provides guarantees of impartial judgment. Prior to these changes, the selection of the Head of the Authority, who had to be a current prosecutor, was made by decision of the Supreme Judicial Council (see prior format in law 4557/2018), i.e. an organ of the judiciary that is independent of the government, a fact that provides the necessary guarantees (or at least more guarantees) of impartial judgment.
Two months after the adoption of this amendment, the term of office of the previous President of the Authority expired. The new President was only able to take this position because of the change made by the amendment (of course this is not to disparage or put into doubt the qualifications or the work of the President-elect, which is not in dispute). The justification given for these changes (see pages 5, 8, 21 of the amendment) is that retired prosecutors have the ability to make a decisive contribution to the work of the Authority by leveraging their experience and skills, and in order to contribute to the optimal staffing of the authority by expanding the circle of potential candidates. This explanation however, does not suffice to allay the concerns detailed above.
Apart from the fact that in this case the rules of good legislation provided by the Constitution, Articles 87, 88 and 101 of the Rules of Procedure of the Parliament and the Manual of the Legislative Drafting Methodology for amendments were not observed, its substantive content raises further concerns about the violation of the rule of law. For this reason, the reactions that were provoked were also intense. The opposition parties (see pages 5, 13, 31, 46, 51, 56, 63 of the minutes of the Parliament), requested the withdrawal of the amendment, referring, among other things, to a job description tailored to enable the hiring of a specific and predetermined candidate; an attempt to legitimize an (already taken) decision, the bypassing of the Supreme Judicial Council, the protection of the (image of) the independence of the Judiciary and in general an attempt to overthrow the independence of an independent authority. The Union of Judges and Prosecutors also called for the amendment to be withdrawn, citing its firm position that “judicial and prosecutorial officials should not hold any political or public office or position in an Independent Authority for two years after retirement,” and stating that “an end must be put to the logic of intertwining the vessels of state power,” which may affect both the essence and image of the independence of the judiciary.
As G. Peponis, Honorary Prosecutor of the Supreme Court remarks though, the issue of the independence of the judiciary isn’t limited to the expansion of the eligibility criteria to include retired prosecutors, but is more general. This is because if there really is a problem with the independence of the judiciary, then it concerns specific individuals (and not the judiciary as a whole) and, logically, this issue would have been in existence prior to a prosecutor’s retirement rather than occurring only when these individuals retire and receive their honorary title.
In a state governed by the rule of law, the government and the parliament must produce laws in adherence to both the Constitution and the Rules of Procedure of the Parliament, as well as the other rules that have been established to guarantee and promote good and transparent legislative practices.
The content of the provisions being voted on and the timing of these changes should also not raise any doubts or concerns as to the purpose that these changes serve.
In this case, however, both the formal procedure followed and the content of the provision itself have raised multiple issues/doubts at the level of the rule of law.
The change in the method of appointing the President of the Anti-Money Laundering Authority was processed through the submission of an amendment to the (irrelevant) bill for the Code of Conduct of Judicial Officers rather than being included in any of the bills related to the (relevant) issue of money laundering.
The President can now be an honorary prosecutor and will be elected by the government and not the Supreme Judicial Council. In this way the current President of the Authority was elected, just two months after the adoption of this amendment.
The reactions that took place in Parliament, as well as the announcement of the Union of Judges and Prosecutors, complete the picture of the problematic elements of this case.
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