Criminal liability of ministers, Europe divided between immunity and rule of law
The European Public Prosecutor's Office's call for reform of the Greek system reopens the debate on justice, politics and equality before the law in Europe
by Silvia Martelli (Il Sole 24 Ore), Janine Louloudi (EfSyn, Greece), Beatriz Parera (El Confidencial, Spain), Simona Voicu (HotNews.ro, Romania) and Krasen Nikolov (Mediapool, Bulgaria)
In Europe, the criminal liability of ministers remains a rough terrain, where the principle of the rule of law clashes with constitutional architectures that, in many countries, continue to offer enhanced protection to members of the executive branch. European Prosecutor Laura Kövesi's request in October to the Greek government to revise the controversial 'law on the responsibility of ministers' has brought back to the centre of the debate a question that goes far beyond the borders of Athens: how equal are citizens before the law when it comes to political power?
The Greek case: when politics decides whether justice can act
In Greece, the criminal liability of members of the government is governed by Article 86 of the Constitution and Law 4622/2019, which regulate the organisation of the executive and the functioning of the central administration. The heart of the problem lies in the special procedure provided for offences committed by ministers and deputy ministers during the performance of their duties: only Parliament has the power to initiate a criminal prosecution, with a decision requiring an absolute majority of 151 MPs out of 300.
In other words, the judicial authority cannot proceed independently, not even to ascertain preliminary facts. Without the political green light, the investigation remains blocked. A system that, in practice, has produced an effect of almost total immunity, since the parliamentary majority tends to protect its exponents when in government and to invoke criminal liability only when in opposition.
According to Laura Kövesi, this mechanism not only violates the principle of separation of powers, but also comes into direct conflict with European law by preventing EPPO from investigating possible crimes involving EU funds. The implicit reference is to cases of great public importance, such as the Tempe train crash or potential irregularities in the management of EU resources. The result is an institutional paradox: ministers who, despite even serious allegations, hardly ever come before an ordinary court and, in many cases, are not even called upon to provide formal clarifications.
A fragmented European map
The Greek case is not an isolated one, but is part of an extremely heterogeneous European landscape. Each Member State has over time constructed its own balance between protection of the governmental function and criminal liability, with often very different outcomes.
