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Christiana Stilianidou
Legal provision terminates criminal proceedings against elected officials and local government employees
25 • 10 • 2020

Article 67 of Law 4735/2020 releases elected officials and employees of local government organizations from their criminal, disciplinary and financial responsibilities, and also terminates any proceedings that have been initiated against them for cases concerning payments that took place before July 2019 and that were undertaken on the basis of audits by financial control bodies. The general and indefinite character of the specific provision as well as its dubious constitutionality provoked various concerns, which remain unresolved even after the adoption of further provisions by Article 93 of Law 4745/2020, which attempted (unsuccessfully) to reduce the scope of Article 67.

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).

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.

 

  1. Gennimata (President of the Movement for Change party) requested the withdrawal  of the provision on the basis that it provided general amnesty to historical scandals in Local Government Organizations. New Democracy MP F. Pipili expressed her opposition to the content of the amendment, while K. Tzavaras (New Democracy MP), responding to a question about the controversial provision in a radio interview, opined that the intervention of the Legislature in decisions already taken by the Judiciary, was problematic (for more, see 1, 2, 3, 4).

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).

Where is the problem with the rule of law?

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.

Christiana Stilianidou
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