Document No. 441-LP820 / 01-06-2021 of the Office of the Legal Adviser of the Legal Council of the State (NSC) at the Ministry of Immigration and Asylum, asks the heads of all services of the Ministry to inform their employees that “To safeguard the interests of the Greek state,… testifying in lawsuits against the Greek state, in favor of the other parties and to the detriment of the Greek state, constitutes a disciplinary misconduct and a criminal offense. The employees of the Ministry may only testify to substantiate the allegations of the Greek State, upon a written request from our office and after consultation with the relevant case handler. “
The disclosure of the content of the above document provoked a series of reactions, (see, among others, the announcement of ADEDY, 3-6-2021, the article from 3-6-2021 on the website press publica, the article from 3-6-2021 in the Efimerida ton Syntakton, the article from 7-6-2021 in Avgi and the article from 3-6-2021 on the website libre) as it was considered to be a breach of the rule of law and Article 25 of the Constitution. As a letter sent by the Greek Bar Association states, the general prohibition of testimony undermines the right to judicial protection, to the detriment of both citizens, and law, truth and justice. As pointed out by both the Hellenic Union for Human Rights and Giannis Tasopoulos, (a lawyer and a professor of public law at the University of Athens), this prohibition goes against the guidance laid down by the Legal Council of the State (Article 100A and Article 37 of n. 3086/2002 for the Legal Council of the State). Furthermore, the content of Article 22 paragraph 2 of law 3086/2002 is misinterpreted and distorted, with the obligation to testify turned into an obligation to testify only when it is in the interest of the state. (It is worth noting that in September 2021, Law 4831/2021 was passed, and the above objects are now regulated by this law in a relatively similar way (see Articles 26 and 28 of Law 4831 / 2021 and respectively Articles 37 and 22 of law 3086/2002)).
As they also point out, the document raises a variety of issues and conflicts with the law, including :
– the obligation of civil servants to comply with the Constitution and the laws / principles of legality (Articles 24 and 25 of the Civil Service Code),
– freedom of expression of civil servants (Article 45 of the Civil Service Code).
– the duty of impartiality and objectivity that must be observed by civil servants in the exercise of their duties (Articles 29 paragraph 3 and 103 paragraph 1 of the Constitution).
– the obligations of witnesses in court proceedings, and in particular the duty of testimony and the duty of truth (such as those provided for in Articles 209, 219 and 231 of the Code of Criminal Procedure, 408 of the Code of Civil Procedure, 182 and 184 of the Code of Civil Procedure),
– in general, the right to judicial protection (Article 20 paragraph 1 of the Constitution), in particular as regards the possibility of participating as a witness in the administration of justice (taking into account the fact that the right to testify is ultimately guaranteed in paragraph 3 of Article 26 of the Constitution)
– the fact that publicity, transparency, good administration and protected trust are the rule, while privacy and confidentiality are the exception (Article 26 paragraph 1 of the Civil Service Code) and therefore the prohibition of testimony must not be general and absolute but only be imposed in specific cases for reasons of public interest or confidentiality.
– the violation of general principles of administrative law which establish publicity and transparency, good administration and the protection of trust, equality and so on.
Following this criticism, the Legal Council of State published a press release stating that “the true and firm scientific position of the Legal Council of the State…is that civil servants are not prohibited from testifying as witnesses…,” and that in general officials of the Legal Council of State, “do not impose – nor could they impose – additional restrictions on officials concerning the permissibility or content of their testimony.” The press release also highlights the duty of confidentiality of civil servants. The Minister of Immigration and Asylum also made a statement in response, again referring to the duty of confidentiality of civil servants as well as underlining the independence of the Legal Council of State.
These reactions and clarifications, however, do not allay the concerns or problems that arise from document no. 441-LP820 / 2021 / 01-06-2021, and can only be considered as an attempt to justify an unjustified and illegal regulation.
In a state that adheres to the rule of law, witnesses in court, even employees of the state, cannot be restricted in their testimony and are bound by duties of truth first and foremost.
Penalising public officials for testifying against the interests of the Greek state, or restricting their ability to testify, is illegal and unconstitutional and is in conflict with a large number of laws and legal principles,as outlined in the main text.
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