In an excellent legally thorough article on waivers of immunity, Amazon’s Supreme Court honorary deputy prosecutor, Georgios Skiadaresis, forcefully “reminds” the constitutional principles that must govern them in order to protect parliamentarians from “sham politically motivated complaints by the executive, by their political opponents, and by malicious third parties“.
In the article-intervention, posted on dikastiko.gr on the occasion of the recent collective lifting of the immunity of MPs and former ministers, Mr. Skiadaressis, after analyzing one by one the relevant provisions that must apply, underlines: “The prosecutor who submits documentary evidence for the waiver of a Member’s immunity, it is not necessary for him to have previously carried out an exhaustive collection of the existing evidence, but it is not sufficient that the evidence is incomplete, weak, weakened, contradictory or unilaterally incriminating,that is to say, without ‘all-round’ examination, as far as possible, of the essential parameters and factors of the case, so that every possibility for the further procedural course of the case remains completely unclear and unclear, in a manner which clearly does not implement the aforementioned established procedural indications and requirements.
On the contrary, the competent prosecutor should have gathered the necessary, substantial, critical, sufficiently cross-checked, evidence, which will provide the expectation on reasonable probability that after the requested permission to initiate criminal proceedings, sufficient evidence for it, if not already constituted, will develop into nuanced or serious or sufficient evidence for an indictment at the hearing, and that it may yet, at subsequent procedural stages, become capable of being further strengthened by creating a forensic conviction of guilt.”
At the same time, he makes it clear thateven the risk of a statute of limitations on an offence cannot be a reason to waive immunity if the necessary evidence has not been gathered, because then we will be led to an acquittal which will leave in its wake “only negative noise and choking powder in public affairs”, and he elaborates: “Submission during the procedure for the waiver of parliamentary immunity of incomplete evidence as described above is not justified even by the risk of the case being time-barred, because the necessary evidence not collected initially for this reason should be collected at the next procedural stage (l.(e.g. the main inquiry or preliminary investigation), in which case the time necessary for this would be wasted anyway and, at the same time, valuable time would be lost in the collection of crucial evidence in view of the constant risk of its deterioration or even disappearance. Moreover, if permission is granted by Parliament and the case is ultimately referred to the hearing with incomplete evidence, in order to prevent the limitation period from being interrupted, then the outcome of the case is predetermined and cannot be anything other than acquittal’.
Mr. Skiadaresis does not fail to mention the great importance and value of the preliminary examination, which was recently added to our legal arsenal, as he underlines: “The objectives are to “safeguard the personality of citizens from pre-trial lawsuits and petitions”, as well as to achieve “serious relief” of the judicial workload in the pre-trial and hearing stages. Its importance lies in the fact that its conduct does not have the one-sided consequence of leading to criminal prosecution, but the public prosecutor may, after its conclusion, if there are no sufficient grounds for prosecution, file the complaint or report or dismiss the complaint as aforesaid. In this way, on the one hand, inappropriate criminal prosecutions and the suffering of innocent citizens (“famous” and not) who are unjustly lying in the position of the accused are avoided, and on the other hand, the unnecessary involvement of the judicial authorities, which also weakens the investigation of serious crimes“.
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