Christiana Stilianidou
Law 4855/2021 and its amendments
10 • 10 • 2021

The Ministry of Justice drafts and submits a bill dealing with amendments to the Penal Code and the Code of Criminal Procedure. The title of this bill was changed 3 times during the period between the beginning of the consultation process, until it was passed into law. This fact indicates that the law contains provisions unrelated to the main object of the law. The Ministry of Justice also submitted to Parliament three amendments which regulate issues, some of which are related, and some not, to the main object of the law. In this way the rules of good legislation are directly or indirectly circumvented. Finally, an article in one of these amendments allows for the posting of judicial officers to the Deputy Prime Minister, which has provoked reactions as it raises concerns about the purpose of such a provision.

Α. Generally, on good legislation

1.On October 8, 2021, the consultation process was completed for the bill entitled “Amendments to the Penal Code and the Code of Criminal Procedure”, which consists of 164 articles and was drafted by the Ministry of Justice. On 1-11-2021, the same bill was introduced into Parliament, now having the title “Amendments to the Criminal Code and the Code of Criminal Procedure, other provisions of the Ministry of Justice,” and consisting of 174 articles. This bill is passed as law 4855/2021, with the title “Amendments to the Penal Code, the Code of Criminal Procedure and other urgent provisions,” consisting of more than 203 articles.

The words “other provisions” and “other urgent provisions” contained in the last two titles make it clear that in these legislative texts there are also provisions that deviate from the main object of the law. In this way, however, the requirements of Article 74 of the Constitution and Article 85 of the Rules of Procedure of the Parliament, as analyzed and specified on pages 18, 19, 24, 77 of the Manual of Legislative Drafting Methodology (which require the bills not to contain provisions that are unrelated to each other) are ignored. Also, the principles of good legislation, as they are reflected in Article 58 of law 4622/2019, are violated. As the manual states: “Reference to ‘other provisions’ which is common practice when the bill contains provisions unrelated to its main regulatory object, should be avoided because it causes ambiguity, and therefore runs counter to the principles of effectiveness and accessibility as principles of good legislation.” In addition, the final title of the law indicates that irrelevant amendments were tabled and passed, also in violation of the provisions. (see Article 74 of the Constitution, Articles 87, 88 and 101 of the Rules of Procedure of the Parliament, as they are analyzed and specialized on pages 4, 18, 63, 70-71, 77-78 of the Manual of Legislative Drafting Methodology) which define the more specific conditions with which an amendment is introduced for voting, but also the content that it must have.)

2.On 9-11-2021 at 20:10, the Ministry of Justice submitted amendment 1130/95/9-11-2021 proposing the amendment of article 269 of the Code of Criminal Procedure (CCP). Amendment 1132/97/9-11-2021 was submitted by the same Ministry on 9-11-2021 at 20:52, containing 4 articles seeking amendments to articles of the Penal Code and the Penal Code Procedure. On 9-11-2021 at 22:00, the Ministry of Justice submitted the amendment-addition 1133/98/9-11-2021 entitled “Regulations on matters within the competence of the Ministry of Justice” the content of which is discussed below:

Β.On amendment 1133/98/9-11-2021 and the possibility of the secondment of judicial officers to the Deputy Prime Minister.

Amendment 1133/98/9-11-2021 contains 9 articles, is 8 pages long, and is divided into two chapters. The first chapter contains 2 articles related to changes in the Code of Civil Procedure. Extensive changes to this code took place just one month earlier with law 4842/2021. The second chapter of the amendment contains 7 articles that regulate issues related to the European Public Prosecutor’s Office, the secondment and employment of judicial officers, the redistribution of judicial posts, restrictions on the right of resignation of judicial officers and the right to appear before the Special Court. It becomes clear, then, that the provisions of this amendment are irrelevant both to each other and to the main object of the bill, which in turn violates the rules of good legislation concerning amendments, as mentioned above. In addition to the issues related to good legislation, the substantive content of Article 5 of this amendment, which provides for the possibility of seconding judicial officials to the Deputy Prime Minister, raises concerns. The Union of Judges and Prosecutors describe this provision as “new and unthinkable”, in a statement, emphasizing that it has no justifiable basis, since the Deputy Prime Minister can not be considered to have duties similar to the Ministry of Justice which might justify assistance in legislative work.

The fact that this secondment will take place for reasons related to the “execution of legislative work, as well as related duties and training of judicial officers” raises even greater concerns about the expediency of the provision, as the Union of Judges and Prosecutors has repeatedly denounced the exclusion of judicial associations from the legislative process.

It is noted that the Head of Justice of SYRIZA, Xanthopoulos, (1, 2) states that this amendment has serious constitutional problems as it creates an extra-institutional method of conducting administrative and judicial affairs, and raises issues around the violation of the separation of powers as well as the independence of judicial officials

Where is the problem with the rule of law?

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. In this case, the rules and principles of good legislation have either been directly violated or have been sidelined.

The deviation of the individual articles from the main object of the bill as well as the sheer number of amendments tabled by the Ministry of Justice, are some of the problematic points.

More substantive issues also arise as to the expediency of the provision which makes it possible to second judicial officers to the Deputy Prime Minister, as it raises concerns about the separation of powers and may violate the independence of judicial officers.

Christiana Stilianidou
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