REPORTS
Legal provision terminates criminal proceedings against elected officials and local government employees
Article 67 of Law 4735/2020 provided for the lifting of the criminal responsibility of elected officials and employees of local government organizations for payments that took place before 31.7.2019 and which were undertaken on the basis of audits by the competent financial control bodies. Any existing criminal or disciplinary prosecutions against these persons are also definitively terminated.
This article was introduced for voting through the submission of a parliamentary amendment (see pages 68-69 of the parliamentary minutes) and was voted for by the MPs of the New Democracy, SYRIZA and KKE parties (see votes in Parliamentary Amendment 489/48 as amended on page 116 of the parliamentary minutes).
As this amendment does not appear to be accompanied by a Regulatory Impact Analysis (i.e. the document outlining the need for the regulation, and examining the economic, social and other consequences), the purpose of this provision is only described in the explanatory memorandum to the amendment, according to which: “It is not in accordance with the principle of legal certainty to prosecute elected officials and employees… who in good faith have ordered and paid these expenses with the assurance of their legality by competent financial control bodies” (see p.68-69 of the minutes of the Parliament).
It is worth mentioning that in this specific sitting of Parliament, no other presentation or positioning took place on the content of this provision (see the absence of any reference to the issue in the parliamentary minutes as well as in the 12-10-2020 article from thepressproject.gr).
A few days later, however, questions and concerns began to emerge about the purpose it served and about the consequences that such a general, vague and broad provision for the removal of criminal, disciplinary and financial responsibilities could have.
There were also general concerns about the constitutionality of this provision as it was considered that it effectively grants amnesty, in violation of article 47 par. 4 of the Constitution and that it constitutes an intervention of the legislature in affairs of the judiciary, in violation of the principle of separation of powers (see 1, 2). Press reports have even mentioned specific persons and cases that benefit from this “amnesty” (see, 1, 2, 3).
On 16-10-2021, in response to the above, the Ministry of the Interior issued a press release in which, although it stated that this provision is “transparent and clear”, went on to explain that the framework of application of the provision explicitly excludes cases concerning deceit by the perpetrators. On 21-10-2020, the Ministry of the Interior issued a further press release, stating that an explanatory amendment submitted by the Ministry of the Interior to a bill from the Ministry of Justice, clarifies to whom the amendment applies.
On 5-11-2020, law 4745/2020 was voted into law, with article 93 specifying that article 67 of law 4735/2020 applies exclusively to cases that concern audits by the Financial Control Services and which were deemed legal before their payment by the Local Authorities, unless the persons falling within the scope of the above article acted fraudulently.
Commenting on the content of this provision, the Scientific Service of the Parliament concluded that the proposed Article 68 does not apply retroactively to acts carried out before its entry into force (see pages 27-28 of the report).
It is clear, therefore, that even after the addition of this provision, the concerns expressed above have not been allayed, as reflected in the debate in Parliament (see pages 12, 40, 60, of the parliamentary minutes of 5 November) and in the press (1, 2).
In a state governed by the rule of law, the enactment of new legislation must take place in compliance with constitutional provisions, principles and values.
Article 67 of Law 4735/2020 provided for the removal of criminal responsibility for elected officials and the employees of local government organizations as well as their release from criminal, disciplinary and financial responsibilities in cases that concern payments that took place before 31.7. 2019 and which were carried out on the basis of audits.
The generality and vagueness of this provision; the indefinite period covered by this “exemption”; the possible contradiction of the provision with the constitutional provisions that establish the principle of separation of powers and provide for the impossibility of granting amnesty for common crimes through legislation, as well as reports that certain persons are favored by this provision, are some of the “problematic elements” of this article.
The further provisions of article 93 of law 4745/2020 have not effectively allayed the above concerns.
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