John Sarmas: The Supreme Court is solely responsible for the renewal of the mandate of the European Public Prosecutor’s Office

The former chairman of the Council of State and acting prime minister in 2023, Ioannis Sarmas, spoke to Liberal.gr on a number of Justice issues.

In an interview with George Kakousis, he explains the low acceptance rates of the judiciary in society, explains the limits of the powers of the European Public Prosecutor and sees that the only useful change in the way the leadership of the judiciary is elected is to constitutionalise what is currently in place. He expresses his concern about the way in which political figures attribute malicious intentions to judicial officials and gives a legal interpretation of the reasons that led the Supreme Court prosecutor Mr P. Tzavela to the decision not to withdraw the wiretapping case from the file.

“Citizens’ confidence in the judicial institution appears low in the polls. The responsibility, however, lies not in the judicial manipulations themselves, but in the way they are interpreted by agents who systematically attribute malicious intentions to judicial officials whenever their decisions deviate from the dictates of these agents,” says Mr. Sharma.

And he continues: “Criminal law has become a tool of political debate. The accusations made – mainly against government officials – are being presented as unquestionable guilt. Thus, when no criminal prosecution is brought, the judge who acquitted is automatically identified with inadequate investigation or, worse, with complicity in evaded responsibility.”.

As for the decision of Supreme Court prosecutor K. Panagiotis Tzavela on not withdrawing the wiretapping case, which has provoked a heated debate, Mr. Sharmas evaluates it solely as a legal document, saying: “The criminal justice system does not start from an alleged guilt seeking its verification; it investigates the validity of accusations in the light of the presumption of innocence. This was the logic that the Supreme Court prosecutor seems to have followed in deciding not to lift the quasi-precedent of the original prosecution’s act to put the case on file.”

He notes that the relevant provision of the law grants the Supreme Court prosecutor “wide discretion. However, he has bound himself by setting specific criteria: that there be clear evidence of guilt – not speculation, suspicion or weak evidence – and that a real connection between the persons involved and the interceptions be proven.”

As Mr. Sharma explains at length, “By category of case, his judgment was as follows: some persons were merely software developers or partners in a company involved; others ran a company trading in data analysis software, but not Predator; a third person, whose prepaid card was used by an unknown third party for trivial purchases, was not shown to be connected to the case. Finally, the only new evidence related to the crime of espionage was found to be insufficient to establish relevant intent.”

In conclusion, and on this case, the respected and experienced jurist says that “Criminal Procedure is not meant for solving ‘mysteries’; although there are dark spots in the case, they could not be linked to specific persons to establish a charge against them and, consequently, a judicial investigation could not be conducted.”

When asked about the political nervousness about the legislative initiative to speed up the procedures for cases involving MPs, Mr. Sharma considers the need for such an initiative “indisputable” and explains: “There is a clear reason of public interest to clarify in a timely manner the charges against the representatives of the nation. The issue, however, is different: whether the Greek legislator can regulate the way in which the appointed European prosecutors exercise their duties.”

It describes in detail how “the EU Regulation on the European Public Prosecutor (Article 30) grants these prosecutors seven investigative powers – investigations, seizures, surveillance, etc.- which they exercise as EU bodies, without the possibility of their national curtailment, nor of course their replacement by a national body on the basis of a national provision. However, the procedures for taking these measures are governed by national law.

The crucial Article 35 states that the investigation is closed when the designated prosecutor “considers” that it has been completed. The word ”deems” is crucial: if the prosecutor deems that his investigation is incomplete, he is not entitled to terminate it, and the relevant oversight rests with the competent EU institution, which will assess whether the investigative task is being carried out properly and proportionately. Setting a deadline for completion, and especially by national legislation, can only be seen as a plea for a short completion.”

When asked about the investigations of the European Public Prosecutor’s Office and the fact that they are viewed critically by some, who believe that their partial management and sending them to Parliament creates issues of impressions and political hostage-taking of the persons under investigation, Ioannis Sarmas is clear: “The wider problem of easy and premature prosecution is real. The law does not require Greek prosecutors to make a written presumption of guilt with a heightened degree of certainty – a requirement that applies in France, Germany and the UK. Result: citizens, especially politicians, suffer onerous consequences, a blow to their dignity and privacy.”

Mr. Sharma also gave a response on the renewal of the mandate of the Greek European Public Prosecutors for five years even at the request of Laura Covesi, in a way that created the impression of a confrontation with the Greek government as to whose responsibility it is to renew their mandate.

“Three provisions of the EU Regulation on the European Public Prosecutor provide a clear answer. First, the mandate of the appointed prosecutors is five years and renewable. Second, they are appointed by the European Public Prosecutor’s Office on the proposal of the Member State concerned. Thirdly, for mainly European prosecutors – by contrast – the Regulation explicitly provides for the possibility of an extension of the mandate by the Council of the EU.

Since the Regulation distinguishes between ”extension” and ”renewal”, and does not provide for an extension for designated prosecutors, renewal constitutes a new appointment and must follow the same procedure as the initial one: a proposal by the Member State – in Greece, exclusively by the Supreme Judicial Council of the Aristotelian Supreme Court. Consequently, the European Public Prosecutor’s Office ought to have informed the Greek Minister of Justice in good time of the expiry of the term of office, so that he could initiate the procedure through the Supreme Court. The Supreme Court, sovereignly and without being bound by any expression of the European Public Prosecutor’s wishes, would decide on the appointment of new delegated prosecutors or the renewal of the term of office of those currently serving.”

And Mr. Sharma continues with three additional observations that he considers imperative: “First, this procedure is the established practice followed in other European institutions – it would be unthinkable for, for example, the European Court of Auditors or the Court of Justice of the EU to unilaterally renew the terms of office of their members. Second, the pendency of specific cases cannot be an independent reason for extending or renewing a mandate; at the end of a mandate, pending cases are handed over to the successor or redistributed. Thirdly, any disputes between the European Public Prosecutor’s Office and the national institutions must be resolved in a spirit of good faith cooperation, as required by EU law.”