Criminal liability of political decision-makers : a comparative perspective 978-3-319-52051-3, 3319520512, 978-3-319-52050-6

Table of contents :
Front Matter ....Pages i-xi
Front Matter ....Pages 1-1
Introduction: Comparing the Criminal Liability of Political Decision-Makers on the Basis of a Concrete Case (Frank Zimmermann)....Pages 3-6
The Case to Be Analysed (Frank Zimmermann)....Pages 7-10
Criminal Liability of Political Decision-Makers in Belgium (Wendy De Bondt)....Pages 11-33
Criminal Liability of Political Decision-Makers in Finland (Dan Helenius)....Pages 35-62
Criminal Liability of Political Decision-Makers in France (Guillaume Chetard)....Pages 63-90
Criminal Liability of Political Decision-Makers in Germany (Frank Zimmermann)....Pages 91-118
Criminal Liability of Political Decision-Makers in Greece (Athina Giannakoula)....Pages 119-139
Criminal Liability of Political Decision-Makers in Italy (Federica Iovene, Nicola Recchia)....Pages 141-166
Criminal Liability of Political Decision-Makers in the Netherlands (Willem Geelhoed)....Pages 167-191
Criminal Liability of Political Decision-Makers in Norway (Annika Suominen)....Pages 193-223
Criminal Liability of Political Decision-Makers in Spain (Manuel Maroto Calatayud)....Pages 225-251
Front Matter ....Pages 253-253
A Comparative Analysis of Criminal Laws Protecting Public Budgets: Can Bad Political Decisions Be Criminalised? (Frank Zimmermann)....Pages 255-264
Criminal Responsibility of Political Decision-Makers and Bribery-Related Offences: A Brief Comparative Analysis of Some Prominent Aspects (Manuel Maroto Calatayud)....Pages 265-280
A Comparative Analysis of Special Sanctions Applicable to Political Decision-Makers (Dan Helenius)....Pages 281-291
A Comparative Analysis of National Provisions Granting Immunity to Politicians (Federica Iovene)....Pages 293-301
Comparing Special Procedural Rules for the Prosecution of Politicians: A Blessing or a Curse? (Annika Suominen)....Pages 303-314
Corruption as Disloyalty? (Gabriel Pérez Barberá)....Pages 315-322
Political Decision-Making and the Phenomenon of Elite Corruption (Bernd Heinrich)....Pages 323-334
Ill-Motivated Criminal Proceedings as a Means in the Political Arena? (Athina Giannakoula)....Pages 335-342
Can Politicians Shield Themselves Against Criminal Liability By Means of Law Reform? (Nicola Recchia)....Pages 343-350
Criminal Liability of Political Decision-Makers in Time of Crisis (Petter Asp)....Pages 351-355
Criminal Law and the Financial Crisis: The Proceedings Against Iceland’s Former Prime Minister Geir H. Haarde (Ragnheiður Bragadóttir)....Pages 357-368
Prosecutorial Discretion in the Netherlands: An Advantage for Politicians? (Willem Geelhoed)....Pages 369-381
The Politics of Political Hate Speech in Belgium (Wendy De Bondt)....Pages 383-397
Criminal Liability for Accidents in France: Is Corporate Criminal Liability of Public Entities the Solution? (Guillaume Chetard)....Pages 399-408

Citation preview

Frank Zimmermann Editor

Criminal Liability of Political Decision-Makers A Comparative Perspective

Criminal Liability of Political Decision-Makers

Frank Zimmermann Editor

Criminal Liability of Political Decision-Makers A Comparative Perspective

Editor Frank Zimmermann Faculty of Law Ludwig-Maximilians-Universita¨t Mu¨nchen Munich, Germany

ISBN 978-3-319-52050-6 ISBN 978-3-319-52051-3 DOI 10.1007/978-3-319-52051-3

(eBook)

Library of Congress Control Number: 2017951131 © Springer International Publishing AG 2017 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, express or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. Printed on acid-free paper This Springer imprint is published by Springer Nature The registered company is Springer International Publishing AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Preface

In modern states, persons holding a public office are no more than ordinary citizens. Therefore, their activities must—as a matter of principle—be subject to full judicial control. At the same time, democratically legitimated decision-makers must also have some discretion in exercising their functions. Otherwise, false allegations regarding offences committed in office might easily be abused to discredit political opponents. This is the fundamental conflict that the contributions in the present volume seek to investigate. They originate from a comparative criminal law project that was conducted from 2014 to 2016 at the Ludwig-Maximilians-Universita¨t München and generously funded by the LMUexcellent programme. The book is composed of two major parts. The first part consists of a comparative case study in which nine European countries are represented. It examines (1) the criminal liability for political decisions that affect public budgets, (2) bribery offences in the context of political decision-making, as well as (3) safeguards against politically motivated criminal proceedings (e.g., immunities and special courts or procedural rules). The project group was composed of the following colleagues, who also wrote the country reports: Wendy De Bondt (Belgium), Dan Helenius (Finland), Guillaume Chetard (France), Frank Zimmermann (Germany), Athina Giannakoula (Greece), Federica Iovene and Nicola Recchia (Italy), Willem Geelhoed (the Netherlands), Annika Suominen (Norway) and Manuel Maroto Calatayud (Spain). The second part of the book reassembles contributions from the final conference that concluded the comparative project. In the first five papers of that section, members of the project group draw conclusions from the country reports. They address the application of offences protecting public budgets to political decisions (Frank Zimmermann), bribery in the context of political decisions (Manuel Maroto Calatayud), special criminal sanctions against politicians (Dan Helenius), immunities (Federica Iovene) and special courts for proceedings against politicians (Annika Suominen). The other contributions do not restrain themselves to a presentation of the comparative project but discuss the interplay between criminal law and politics from a broader perspective. They include papers written by members of v

vi

Preface

the project group, but we also feel very honoured that several internationally renowned experts of criminal law and procedure accepted our invitation to share their views on the matter: Gabriel Pe´rez Barbera´ (Argentina) elaborates on disloyalty as the core element of corruption offences. Bernd Heinrich (Germany) addresses the topic of elite corruption. Athina Giannakoula examines whether ill-motivated criminal proceedings might become a tool in the political arena, whereas Nicola Recchia looks at the other side of the coin and asks whether politicians can shield themselves from criminal liability. Petter Asp (Sweden) adds some general thoughts on the criminal liability of political decision-makers in times of crisis. Finally, some legal systems show particularities or specific developments concerning the criminal liability of politicians: Ragnheiður Bragado´ttir (Iceland) provides us with detailed information on the criminal trial against Iceland’s former Prime Minister, Geir Haarde, who was convicted a few years ago for his reaction (or lack of reaction) to the financial crisis in Iceland. Wendy De Bondt addresses the role of hate speech offences in the context of political debates in Belgium. Willem Geelhoed casts a look at the Dutch prosecutorial system, which is characterised by a high degree of discretion, and examines how it works with regard to politicians. Last, not least, Guillaume Chetard explains what role the criminal liability of public entities for accidents plays in the French legal system. When a comparative project that lasted for 3 years is finally completed with a publication like the present one, this is the result of many persons’ work and support. Therefore, the following acknowledgements need to be made. In the first place, I want to thank the members of the project group for their outstanding commitment and the friendships that developed from our cooperation (and also for their patience when they were asked to answer lengthy questions and explain their legal systems to a foreigner). Furthermore, my earnest thanks go to everybody who enriched the project’s final conference and/or this book with their contributions. Apart from the persons already mentioned, this goes particularly to Christoph Burchard, who did not only give a most inspiring presentation but also has supported me a lot during the last years. Of course, the conference also greatly benefited from the fact that excellent experts chaired the panels, namely Bernd Schünemann, Petra Wittig, Pedro Caeiro and Maria Kaiafa-Gbandi. The entire project could not have been implemented without the enduring support and advice offered by my great teacher and friend, Helmut Satzger. Also, many members of his team at the LMU München selflessly helped preparing the final conference, especially Annika Mette and (in alphabetical order) Julia Fünfgeld, Laura Funke, Lorca´n Hyde, Philipp Kellner, Johannes Kleinhenz, Benedikt Linder, Laura Neumann, Florian Ruhs, Lorenz Seidl, Maximilian Seuß, Isabel Vicarı´a Barker and Jan Wiebers. Last, not least, two persons have probably contributed more than anybody else to this project because they were not only deeply involved in the research carried out but also managed the organisation of the final conference, as well as the preparatory workshops, and helped me cope with administrative tasks: Simon Deuring

Preface

vii

sacrificed much more time and gave much more scientific input than I could ever have expected from a law student. Finally, my most important aide from the very beginning of the project until its end was Juliane Abel. No matter how difficult or cumbersome the tasks were, she was simply brilliant. Without her, this book would not exist. Munich, Germany July 2017

Frank Zimmermann

Contents

Part I

Comparative Case Study: Country Reports

Introduction: Comparing the Criminal Liability of Political Decision-Makers on the Basis of a Concrete Case . . . . . . . . . . . . . . . . . Frank Zimmermann

3

The Case to Be Analysed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Frank Zimmermann

7

Criminal Liability of Political Decision-Makers in Belgium . . . . . . . . . . Wendy De Bondt

11

Criminal Liability of Political Decision-Makers in Finland . . . . . . . . . . Dan Helenius

35

Criminal Liability of Political Decision-Makers in France . . . . . . . . . . . Guillaume Chetard

63

Criminal Liability of Political Decision-Makers in Germany . . . . . . . . . Frank Zimmermann

91

Criminal Liability of Political Decision-Makers in Greece . . . . . . . . . . . 119 Athina Giannakoula Criminal Liability of Political Decision-Makers in Italy . . . . . . . . . . . . . 141 Federica Iovene and Nicola Recchia Criminal Liability of Political Decision-Makers in the Netherlands . . . . 167 Willem Geelhoed Criminal Liability of Political Decision-Makers in Norway . . . . . . . . . . 193 Annika Suominen Criminal Liability of Political Decision-Makers in Spain . . . . . . . . . . . . 225 Manuel Maroto Calatayud ix

x

Part II

Contents

Conclusions from the Country Reports and Further Thoughts on the Interplay of Criminal Law and Politics

A Comparative Analysis of Criminal Laws Protecting Public Budgets: Can Bad Political Decisions Be Criminalised? . . . . . . . . . . . . . . . . . . . . 255 Frank Zimmermann Criminal Responsibility of Political Decision-Makers and Bribery-Related Offences: A Brief Comparative Analysis of Some Prominent Aspects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265 Manuel Maroto Calatayud A Comparative Analysis of Special Sanctions Applicable to Political Decision-Makers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 281 Dan Helenius A Comparative Analysis of National Provisions Granting Immunity to Politicians . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 293 Federica Iovene Comparing Special Procedural Rules for the Prosecution of Politicians: A Blessing or a Curse? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 303 Annika Suominen Corruption as Disloyalty? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 315 Gabriel Pe´rez Barbera´ Political Decision-Making and the Phenomenon of Elite Corruption . . . 323 Bernd Heinrich Ill-Motivated Criminal Proceedings as a Means in the Political Arena? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 335 Athina Giannakoula Can Politicians Shield Themselves Against Criminal Liability By Means of Law Reform? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 343 Nicola Recchia Criminal Liability of Political Decision-Makers in Time of Crisis . . . . . 351 Petter Asp Criminal Law and the Financial Crisis: The Proceedings Against Iceland’s Former Prime Minister Geir H. Haarde . . . . . . . . . . . . . . . . . 357 Ragnheiður Bragado´ttir Prosecutorial Discretion in the Netherlands: An Advantage for Politicians? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 369 Willem Geelhoed

Contents

xi

The Politics of Political Hate Speech in Belgium . . . . . . . . . . . . . . . . . . 383 Wendy De Bondt Criminal Liability for Accidents in France: Is Corporate Criminal Liability of Public Entities the Solution? . . . . . . . . . . . . . . . . . . . . . . . . 399 Guillaume Chetard

Part I

Comparative Case Study: Country Reports

Introduction: Comparing the Criminal Liability of Political Decision-Makers on the Basis of a Concrete Case Frank Zimmermann

I. Why Analyse the Criminal Liability of Political Decision-Makers at All? The topic of the present volume may appear rather unusual for an academic study. Indeed, political decision-makers normally do not appear as specific group of offenders in criminal law projects. The situation may be different with regard to persons who simply abuse their political position for private benefit (for instance, by spending public money for themselves). But as far as politicians exercise a public mandate and take decisions that have negative consequences, their responsibility is normally a political one or, at the most, a matter for public or civil law (for instance, when a citizen seeks compensation for a loss). In criminal law, by contrast, we are more used to discussing problems that are related to public officials in general. So why this special focus on the criminal liability of political decisionmakers? First, they are the ones who take the most important decisions, which can entail far-reaching consequences for our societies. Therefore, it often seems unsatisfactory when only their subordinates—i.e., public officials executing their decisions—can be held responsible in criminal proceedings. Second, more recent developments seem to imply that political decisions might become subject to more detailed scrutiny by criminal courts. In this regard, we do not have to point to highly problematic cases such as the conviction of former Ukrainian Prime Minister Tymoshenko for exceeding her authority when signing a contract with Russia on gas imports1: in Iceland, former Prime Minister Geir Harde was

1 See ECtHR, Tymoshenko v. Ukraine, 30 April 2013, application no. 49872/11. On this case and others see H. Satzger/F. Zimmermann/M. Eibach, European Criminal Law Review 4 (2014), 91 et seq. (part 1) and 248 et seq. (part. 2).

F. Zimmermann (*) Ludwig-Maximilians-Universita¨t München, Munich, Germany e-mail: [email protected] © Springer International Publishing AG 2017 F. Zimmermann (ed.), Criminal Liability of Political Decision-Makers, DOI 10.1007/978-3-319-52051-3_1

3

4

F. Zimmermann

convicted for the way he dealt with the evolving financial crisis in 2008.2 Further examples can be found in Germany, where the former Prime Minister of BadenWürttemberg, Stefan Mappus, was prosecuted for buying the Land shares of an energy supplier at an exaggerated price.3 Also, the former Minister of Finance of Rheinland-Pfalz, Ingolf Deubel, had trouble with the judicial authorities and even was convicted in first instance for a high-risk deal concerning the conversion of the former Formula 1 race course ‘Nürburgring’ into a leisure park.4

II. The Scope of the Comparative Project Against this background, the present study is dedicated to the criminal liability of politicians who act in exercise of powers conferred upon them through democratic election. As far as substantive criminal law is concerned, we put our focus on offences protecting public budgets because almost every political decision can be said to have effects on these budgets—directly or indirectly. Consequently, provisions of criminal law aimed at preventing the waste of taxpayers’ money could, potentially, allow for a very broad interference of the judiciary with political decisions. A second set of criminal offences, whose relevance for politicians has already been examined in much greater detail, are those involving illicit influence on the process of decision-making, namely as far as bribery and conflict of interest are concerned. Furthermore, some jurisdictions provide for special criminal sanctions that are particularly important when politicians are involved, in that they result in a removal from office or a loss of democratic rights. As mentioned above, a possible liability of politicians for decisions taken in the exercise of their public functions may also open the door to an abuse of the criminal law. Therefore, safeguards against politically motivated criminal proceedings obviously had to be part of the present study. These safeguards can be both substantive and procedural in nature and include, as the most prominent example, immunities of parliamentarians or (at least in some legal systems) other public officials. Finally, some countries have put in place special proceedings and/or courts when highranking politicians shall be prosecuted.

III. Some Methodological Remarks Traditionally, comparative criminal law studies build upon a questionnaire that shall be answered for every country represented. For the present project, however, it was decided to follow a slightly different path, and this made the comparative study 2

For details, see R. Bragad
ottir’s contribution in Part II of this volume. See the German country report in Part I of the present volume. 4 See the German country report in Part I of the present volume. 3

Introduction: Comparing the Criminal Liability of Political Decision-Makers. . .

5

somewhat experimental: here, a—hypothetical—concrete case should be the point of departure. The reason for choosing this method was mainly that the criminal law relevance of political decisions so far is a rather ‘undiscovered’ topic of academic research. A comparative project therefore had to avoid confusion about the study’s scope from the outset (of course, this does not imply that this method is suitable only for that type of questions): whereas in a project comparing homicide or theft offences it is easy to get an idea of what relevant cases would look like, this does not hold true for the field chosen here. Political decisions can turn out to be bad ones for various reasons, but the project mainly aimed at analysing such decisions that waste taxpayers’ money. Furthermore, the main focus was not on cases where politicians abuse their position to pursue personal interests but on decisions taken in the exercise of a public office. And finally, an orientation debate among the participants revealed that it would not be possible to limit the study to a certain category of offences because the legal systems represented in the group differed too much. For all these reasons, the project group drafted a case involving a major infrastructure project (a bridge—the entire case with all additional information is to be found right after this introduction). This was considered a particularly typical and telling example of a political decision with huge effects on the public budget. However, it was not easy to come up with a case that made sense in all legal systems. This was due to the fact that the topic involves not only questions of criminal law and procedure but also questions of public law, in particular constitutional law, municipality law and public procurement law. When it can already be said that the constituent elements of criminal offences vary to a considerable extent in this area, this applies all the more to these matters of public law: questions such as who is competent to decide on a certain project, to what extent municipalities enjoy the right to self-government and at which points in the decision-making process democratically legitimated politicians come into play are answered differently in every country. And in federal systems like Germany, things get even more complicated because the legal situation may vary between the single states. Obviously, it was impossible to comprehensively address all these very specific issues in a criminal law context. From a methodological point of view, this made it necessary to draft the case in a rather flexible way: – Most importantly, the person whose criminal liability was to be analysed (M) should, in principle, be any politician who would be competent to take such decisions in the respective country, irrespectively of his/her precise position as minister, mayor, member of a municipality council, etc. However, the project primarily aimed at examining the tensions between criminal liability and democratic responsibility. Therefore, it was agreed that only persons who either have been elected democratically or—like a minister—are directly responsible to a democratically elected body (like the Parliament) should be considered political decision-makers in the sense of the present study. In particular, this excluded persons who do hold a public office but only act as subordinates, as well as persons who merely have a prominent position in a political party.

6

F. Zimmermann

– Depending on the politician’s position, also his/her possibilities of influencing the decision would be different: a member of a municipality council could participate in the council’s joint decision. A mayor or a minister, by contrast, could possibly take the decision themselves or heavily influence the competent persons. – Finally, the decision in favour of the infrastructure measure might turn out to be a bad one for different reasons. Also in this regard, the case was kept flexible: participants were asked to consider not only the situation that the bridge would cost too much but also that it would be entirely useless or merely oversized. In addition, further guidelines for the solution of the case intended to avoid misunderstandings and to make sure that the country reports would follow a certain structure and thus be comparable. As far as substantive law is concerned, the national reports should explain which offences could apply and what their constituent elements are. Still, there was a risk that a comparable case would simply fall outside the scope of criminal offences in some countries. If, therefore, additional requirements would have to be met for an offence to be applicable, the country reports should illustrate which ones. Following the deliberations during the first meeting of the project group, which revealed that some more specific questions might be of interest because they seemed to be answered differently, we finally included a limited number of precise questions. To sum it up, the method used here could therefore be characterised as a case-based comparison that was supplemented by general guidelines and—to a limited extent—with more detailed questions. What should not be neglected, of course, is that in a field of research where the details are very complex and the background in the analysed legal systems is presumably quite different, a particularly intense coordination is required. The members of the project group therefore met for three preparatory workshops and were in permanent contact, especially during the final stage of writing the country reports. Frank Zimmermann is post-doctoral research fellow at the chair of Prof. Dr. Helmut Satzger, Ludwig-Maximilians-Universita¨t München.

The Case to Be Analysed Frank Zimmermann

Part 1 In the city of C, there is a public debate about whether a bridge should be built in order to connect two parts of C that are separated by a river. Supporters argue that this bridge is necessary due to the traffic situation. Others criticise the high costs, think that the bridge would be oversized or even deny completely that it would be of any help. However, the bridge is also a prestigious project for M, who is politically responsible for the decision because he is the responsible government minister/the mayor of C/a municipality council member of C/(. . .). Therefore, M decides/ participates in the council’s decision/uses his influence to foster the decision to have the bridge built. In doing so, M is fully aware of the fact that the project—in view of the financial situation of C and its uncertain success—is questionable. Indeed, the decision taken by M turns out to be a bad one because the bridge is very expensive/oversized/completely useless.

Part 2 Later it is revealed that M had a personal interest in the decision to have the bridge built because he was offered a benefit/was one of the partners of a potential contractor.

F. Zimmermann (*) Ludwig-Maximilians-Universita¨t München, Munich, Germany e-mail: [email protected] © Springer International Publishing AG 2017 F. Zimmermann (ed.), Criminal Liability of Political Decision-Makers, DOI 10.1007/978-3-319-52051-3_2

7

8

F. Zimmermann

Guidelines for the Country Reports Preliminary Remarks Please consider the following aspects that might be necessary to understand why your legal system would deal with the case in one way or another: – Please explain briefly your state’s administrative structure: who would be competent to take such decisions? – What is the delimitation of administrative vs. legislative activities and competences, in particular are municipality councils regarded as legislative bodies? – Which are the relevant bases in constitutional law? – If appropriate, please also outline briefly basic concepts of criminal liability in your jurisdiction, for instance whether your legal system provides for corporate liability.

Comparative Case Study Part 1: Criminal Liability for Bad Political Decisions Which offences could apply in this case, and what are their constituent elements? Please focus primarily on the decision to have the bridge built as such, less on the choice of a contractor. If additional conditions would have to be met for an offence to be applicable, please illustrate which ones. Does it, in this context, make a difference why the decision turns out to be a bad one (too expensive/oversized/ useless)?

Part 2: Criminal Liability for Pursuit of Personal Interests Which offences are applicable in this part of the case, and what are their constituent elements (especially regarding bribery and conflict of interest)? Please give particular attention to the following questions: – Do your country’s bribery offences distinguish between public officials in general, members of Parliament and other political decision-makers? – Does it make a difference at which point in time the benefit is offered, e.g. when M is still a candidate? – Can campaign funding or the mere perspective of being re-elected constitute a benefit in the sense of the relevant offences? – Is there a requirement of an unlawful benefit/illicit bargain or another possibility to restrict liability?

The Case to Be Analysed

9

Special Sanctions Applicable to Politicians Are there sanctions that differ from regular sanctions and that are of relevance for political decision-makers, e.g. the loss of the right to be elected, dismissal from office or the issuance of a warning? Do they already apply when trial is still pending?

Immunities and Other Limitations of Criminal Liability If such distinction exists in your country, please distinguish between immunities resulting in an exemption from punishment (e.g., a ‘free speech and vote clause’) and such that merely hinder the initiation of proceedings (e.g., the requirement to have investigative measures permitted by a parliamentary committee). With regard to immunities, please take into account the following questions: – Who enjoys immunity (members of Parliament, members of municipality councils, etc.)? – Which acts are covered (only those performed in Parliament or also others)? – Can the immunity be waived, and does it last once the person left his/her position? – Are there exceptions? – Do special remedies exist in cases where judicial authorities do not respect immunities (particularly a constitutional complaint)? As regards ‘other limitations’, please indicate whether general grounds for justification or defences, such as necessity, have ever been used in order to limit the criminal liability of political decision-makers.

Special Courts and Special Procedural Requirements Are regular or special courts competent to try (at least some) political decisionmakers? Do special proceedings or the regular code of criminal procedure apply? Are there particular safeguards in place, especially to avoid politically motivated (non-)prosecution?

10

F. Zimmermann

Further Particularities in Proceedings Against Political Decision-Makers Are there any other procedural obstacles that are often relevant in proceedings against politicians (e.g., a special permission when a member of Parliament shall be heard as a witness)?

Criminal Liability of Political Decision-Makers in Belgium Wendy De Bondt

I. Preliminary Remarks Questions on the criminal liability of political decision-makers for decisions relating to the construction of a bridge are almost automatically qualified as ‘an opinion expressed within the exercise of the duties of the political decision maker’ in the sense of the constitutional inviolability provisions. After all, no member of either House (be it federal1 or regional2) or minister (be it federal3 or regional4) or secretaries of State5 (be it federal6 or regional7) can be prosecuted or be the subject of any investigation with regard to opinions expressed and votes cast by him in the exercise of his duties.8 However, a correct interpretation of the case presented and the possible implications of behaviour or acts of the political decision-makers involved are not so self-evident. Firstly, not all political decision-makers can benefit from the protection of the constitutional inviolability provisions. The

1

Art. 58 Const. Art. 120 Const. 3 Art. 101 Const. 4 Art. 128 Const. 5 The protection only applies to ministers and secretaries of State (staatssecretaris). This means governmental commissioners (regeringscommissaris) and royal commissioners (koninklijke commissarissen) cannot benefit from these constitutional provisions. 6 Art. 104 Const. 7 Art. 126 Const. 8 Legal Service of the Federal Parliament, The Parliamentary Inviolability, May 2015. 2

W. De Bondt (*) Ghent University, Ghent, Belgium e-mail: [email protected] © Springer International Publishing AG 2017 F. Zimmermann (ed.), Criminal Liability of Political Decision-Makers, DOI 10.1007/978-3-319-52051-3_3

11

12

W. De Bondt

provisions only apply to federal and regional level political decision-makers, as a result of which it becomes relevant to assess which decisions relating to the building of a bridge are taken at which political level. It can already be mentioned that important decisions are taken at levels where decision-makers cannot benefit from the inviolability provisions. Secondly, depending on the nature of the manipulation of the decision to build a bridge, the behaviour or act may or may not be considered ‘in the exercise of their duties’. Surely, political decision-makers will not be protected by the inviolability provisions for offences such as bribery, forgery of documents or abuse of trust. It is therefore important to understand the decision-making structure and the nature of possible undue influence of the decision to build a bridge in order to understand to what extent political decision-makers can be criminally liable.

1. Division of Tasks: Relevant Decision-Makers at All Three Levels of the Belgian State Structure The final decision to award a contract to build a bridge in the city of C could be either a simple decision of, e.g., the Flemish Minister of Public Works (top level: regions) or a collegial decision of the college of the mayor and aldermen (lowest level: cities). In any event, the build-up to that decision is relatively complex and combines decisions and possible influences at all three state levels: regions, provinces and cities. The complexity is due to a Decree adopted at the level of the Flemish Region in 19969 deciding that spacial structure plans and spacial execution plans should be drawn up at all three levels to be used as a general framework embodying the long-term vision for public development and that individual public procurement contracts for works should fit within the frameworks of those plans. According to Art. 2.1.1 of the Flemish Code on Spacial Planning (FCSP) (Vlaamse Codex Ruimtelijke Ordening), a spacial structure plan is a policy document that provides the framework for the spacial structural development. It is a long-term policy plan regarding further development, aiming to achieve better cohesion in the preparation, adoption and execution of decisions regarding spacial planning. Spacial structure plans should be drawn up at three different levels: the level of the regions, the level of the provinces and the level of the communes. According to Art. 2.2.2 FCSP, a spacial execution plan contains, among others, a graphical plan indicating the affected areas and the associated planning requirements for the destination, the device and/or the management and, where applicable,

9

Decree 24 July 1996 regarding the spacial planning of Flanders—Decreet 24 juli 1996 houdende de ruimtelijke planning van Vlaanderen.

Criminal Liability of Political Decision-Makers in Belgium

13

the standards set out in Art. 4.2.4 of the Decree of March 27, 2009, relating to land and property policy. Spacial execution plans should be drawn up at three different levels: the level of the regions, the level of the provinces and the level of the communes.10 Given that spacial execution plans contain concrete descriptions of the works to be completed with planning requirements and construction instructions, these plans are more interesting as they are far more influential regarding the end result. The case of the Antwerp Oosterweelverbinding comes to that testimony. The Oosterweelverbinding is a proposed construction project intended to complete the Antwerp Ring Road and, in doing so, aims at improving access to the city of Antwerp, as well as to the port, to relieve traffic congestion on the Antwerp Ring Road and to reduce ‘rat running’ commuter traffic in the larger urban area. To that end, the Flemish Government, when adopting the Flemish Spacial Execution Plan in 2006, included a delineation of the area in which a double-deck bridge should be built. The double-deck bridge turned out to be a prestige project aimed at becoming a signature bridge for the Antwerp Skyline. The Flemish Spacial Execution Plan did not refer to an alternative of a single-deck bridge, let alone a tunnel as an alternative to achieve the same goals. Following the adoption of the Flemish Spacial Execution Plan and the start of the public procurement procedures in view of executing the plan, a lot of criticisms were raised up to the point where the Flemish Government was forced to revise the Flemish Spacial Execution Plan. Several initiatives of interest groups and consultancy firms have landed the Flemish Government with a complex myriad of possible alternatives. The Antwerp Oosterweelverbinding clearly demonstrates the impact that decisions included in the Flemish Spacial Execution Plan can have. Therefore, the adoption of the spacial execution plans is far more interesting for the case. In light thereof, it is relevant to look into the architecture and functioning of the political decision-making at the three different state levels in order to understand the extent to which undue influence can be executed. Belgium has a relatively complex structure with, generally speaking, three relevant levels of power.

Art. 2.2.1. § 1. Er worden ruimtelijke uitvoeringsplannen op de volgende niveaus opgemaakt: 1 gewestelijke ruimtelijke uitvoeringsplannen voor een deel of delen van het grondgebied van het Gewest; 2 provinciale ruimtelijke uitvoeringsplannen voor een deel of delen van het grondgebied van de provincie; 3 gemeentelijke ruimtelijke uitvoeringsplannen voor een deel of delen van het grondgebied van de gemeente. 10

14

W. De Bondt

a) Regional Decision-Making Firstly, at the top level, there are three structures that legally are at equal footing: the Belgian Federal State,11 the communities12 and the regions.13 The Flemish Code on Spacial Planning indicates the Flemish Government as the most relevant decision-maker. Following Art. 2.1.3 FCSP, it is the Flemish Government that takes the initiative to draw up the regional spacial structure plan and adopts a first draft thereof. After an intense consultation procedure that can take up to 240 days, the Flemish Government finally adopts the RSSP.14 Taking into account the intense consultation procedure that precedes the adoption thereof, it is argued that the Spatial Structure Plan Flanders is a scientifically founded vision of how we in Flanders deal with our limited space to get the greatest possible spatial quality. It has been in force since 1997 as a framework for spatial planning. The master plan proposes that we intensify the protection of the remaining open space and upgrade cities so that they are pleasant places to live. This vision is elaborated on along four pillars: urban areas, rural area, economic areas and line infrastructure.

The consecutive governments have endorsed, revised and updated the plan when deemed necessary. The last revision of the plan dates back to 2010–2011. This means that the first step in the construction of a bridge is taken at the Flemish

11

The federal State has powers related to public interest in the Belgian territory meaning it has powers related to the public finances, the army, the judicial system, social security, foreign affairs as well as substantial parts of public health and home affairs. 12 The communities have powers related to the citizens in their territory, in the widest meaning of the term, meaning they have powers related to culture (theatre, libraries, audiovisual media, etc.), education, the use of languages and matters relating to the individual which concern on the one hand health policy (curative and preventive medicine) and on the other hand assistance to individuals (protection of youth, social welfare, aid to families, immigrant assistance services, etc.). 13 The regions have powers in the fields that are connected to their territory in the widest meaning of the term, meaning that they have powers related to economy, employment, agriculture, water policy, housing, public works, energy, transport (except Belgian Railways), the environment, town and country planning, nature conservation, credit, foreign trade, supervision of the provinces, communes and intercommunal utility companies. 14 Art. 2.1.3. FCSP: § 1. The Flemish Government decides on the drafting of a Spacial Structure Plan and takes the necessary measures to prepare an initial draft. § 2. The Flemish Government decides on the adoption of the preliminary version of the Spacial Structure Plan, having obtained the advice of the strategic advise board. § 3. The Flemish Government submits the initial draft of the Spacial Structure Plan to a public assessment. The assessment is carried out in light of the rules and regulations set up by the Flemish Government. § 4. Citizen consultation § 5 Comments and reservations should be in at the latest after a 90 day term has passed. § 6 After that, the Flemish Government reports on the consultation period to the strategic advisory board, the Socio-Economic Council of Flanders and the Environmental- and Nature councils.

Criminal Liability of Political Decision-Makers in Belgium

15

regional level, by a decision of the Flemish Government on the content of the spacial structure plan. With this plan, a clear vision is expressed regarding the commitments towards and vision regarding the searching for and finding of solutions for a number of structural problems, such as road safety and public transport.15 One of the central pillars of the plan is the anticipation to the expected growth of mobility and ensuring new roads, water and train infrastructure.16 Any decision regarding public planning and construction should fit into the overarching regional spacial structure plan of Flanders. The RSSP-Flanders does not make any binding decisions regarding the infrastructures but includes guiding information as to which problems should be tackled with priority. In light thereof, the RSSP-Flanders contains, e.g., a list of roads and connections that suffer from traffic jams that influence the economic growth of the region.17 Furthermore, the Flemish Government as a whole is responsible for the drafting18 and adopting19 of the initial version of the regional spacial execution plan. Following an extensive advise and consultation procedure (including the Flemish Parliament), the Flemish Government is responsible for the adoption of the final version of the regional spacial execution plan.20 According to our law on public procurement, the Flemish minister is competent to take decisions in procurement cases, meaning that no collegial decision of the entire Flemish Government is required to make a procurement decision.21 This means that at the top level, the regions are the most important decisionmaking structure, within which the Flemish Parliament, the Flemish Government and the Minister of Public Works play a decisive role. The Flemish Parliament consists of 124 members of Parliament. The Government of the Flemish Region exercises the executive power and consists of a maximum of ten ministers, and one minister-president, among which is the Flemish Minister of Public Works.

b) Provincial Decision-Making Secondly, at the middle level, there are the provinces.22 Depending on the powers they use, they are under the supervision of the federal State, the communities or the regions. 15

Regional Spacial Sructure Plan Flanders—Ruimtelijk Structuurplan Vlaanderen p. 12. Regional Spacial Sructure Plan Flanders—Ruimtelijk Structuurplan Vlaanderen p. 15. 17 Regional Spacial Sructure Plan Flanders—Ruimtelijk Structuurplan Vlaanderen p. 97. 18 Art. 2.2.6. § 1. FCSP. 19 Art. 2.2.7. § 1. FCSP. 20 Art. 2.2.7. § 7. FCSP. 21 Law 15 June 2006—Law on public procurement and government contracts for the execution of work, delivery and services. Wet 15 JUNI 2006.—Wet overheidsopdrachten en bepaalde opdrachten voor werken, leveringen en diensten, B.S. 15 February 2007, 7355. 22 Although the added value of the provinces in our state structure has been contested for quite a while, the provinces still have extensive powers. They have a shared right to initiative in fields of education, social and cultural infrastructures, preventive medicine and social policy. They also 16

16

W. De Bondt

The permanent delegation takes the initiative to draw up a provincial spacial structure plan. It is, however, the provincial council that will adopt the first draft thereof and will—after an intense consultation procedure—adopt the final PSSP. Mirroring the possible time lapse at the regional level, hereto a (slightly shorter) period of 210 days is foreseen.23 The permanent delegation takes the initiative to draw up a provincial spacial execution plan.24 It is, however, the provincial council that will adopt the first draft thereof and will—after an intense consultation procedure—adopt the final PSSP.25 This means that at the middle level, the provincial council and the permanent delegation are the relevant political decision-makers. The members of the provincial council (Provincieraad) are directly elected for a 6-year term. The provincial council takes decisions of a general nature, votes on provincial regulations and draws up the budget for the province. The provincial council appoints the six members of the permanent delegation (Bestendige Deputatie) from its ranks. The permanent delegation is responsible for the day-to-day running of provincial business. Among other things, it has the power to grant licences for the operation of industrial, craft, commercial and agricultural premises that entail risks or are harmful and that need to be regulated. The permanent deputation executes the resolutions of the provincial council and ensures day-to-day management. It is chaired by the governor. The governor (Provinciegouverneur) is not elected; he is appointed or dismissed by the King, under the responsibility of the Minister for the Home Department. The provincial governor has a range of powers relating to security and public order. He organises, for example, the co-ordination of relief campaigns in the event of large disasters.

c) Communal Decision-Making Thirdly, at the bottom of the Belgian State structure, there are the communes/cities, which is the level of administration that is closest to the citizens. Mirroring the provinces, communes are under the supervision of—depending on the powers they use—the federal State, the communities or the regions. The communal council takes the initiative to draw up a communal spacial structure plan.26 It is, however, the college of mayor and aldermen that will adopt the first draft thereof and will—after an intense consultation procedure—adopt the

deal with e.g. the environment, with highways and waterways, the economy, transport, public works, housing and use of official languages. Taking into account their tasks, the provinces at this middle level are relevant to the case. 23 Art. 2.1.9. FCSP. 24 Art. 2.2.9. § 1. FCSP. 25 Art. 2.2.10. FCSP. 26 Following Art. 2.1.15. FCSP.

Criminal Liability of Political Decision-Makers in Belgium

17

final CSSP.27 Mirroring the possible time lapse at the provincial level, hereto a period of 210 days is foreseen.28 The college of mayor and aldermen takes the initiative to draw up a communal spacial execution plan.29 It is, however, the communal council that will adopt the first draft thereof and will—after an intense consultation procedure—adopt the final PSSP.30 This means that at communal level, the communal council (Gemeenteraad) and the college of mayor and aldermen (College van Burgemeester en Schepenen) are the relevant decision-makers. Mirroring the members of the provincial council, the members of the communal council are directly elected for a 6-year term. The communal council takes decisions of a general nature, votes on communal regulations and draws up the budget for the commune/city. The council elects the aldermen who, together with the mayor, form the college of mayor and aldermen, which is responsible for the day-to-day running of communal business, (sometimes) prepares and executes the decisions of the communal council. It is chaired by the mayor.

2. Different Types of Undue Influence a) Influence Resulting in a Bad Decision Undue influence that results in a bad decision being taken can take place in both the phase of the drafting of the spacial plans as well as in the phase of the awarding of the building contract. Two types of spacial plans are drawn up to constitute the framework within which the decision to build a bridge is taken. Firstly, the spacial structure plan is a policy plan that in rather general terms contains the long-term vision regarding the further development of an area. Taking into account the relatively minute impact that the manipulation of these general overarching views on future spacial planning can have on the selection of projects such as the building of an individual bridge, the relevance of these plans and the adoption thereof is rather limited. It is more interesting to focus on the spacial execution plans, for they contain more specific information and structural requirements. Taking into account the significant impact that these overarching execution plans have on future building projects, the relevance of these plans and the adoption thereof is important to the case. Several offences might come into play with regard to the drafting of these spacial plans as a political decision-maker can influence the content of the plans by influencing the documentation used and the consultation procedures organised to substantiate and

27

Art. 2.1.16. FCSP. Art. 2.1.17. FCSP. 29 Art. 2.2.13. § 1. FCSP. 30 Art. 2.2.14. § 1. FCSP. 28

18

W. De Bondt

support the final decisions. The political decision-maker can contact a consultancy firm or other private actor responsible for the drawing up of the reports and advisory opinions that are used as documentation to substantiate and support political decision-making. This behaviour would constitute ‘active private bribery’. Furthermore, the political decision-maker can seek recourse to acts of ‘active public bribery’ whereby he bribes the other decision-makers to follow his preferences. Taking account of the position of the initiating political decision-maker, this behaviour may amount not only to bribery but also to ‘abuse of power’. The most vulnerable step in the lead-up to the bridge being built is the procedure governing the granting of the building contract. With regard to the decision on the award of the contract to the favoured candidate, too, undue influence may constitute not only bribery but also ‘undue interfering with the award of a contract’ as a separate offence. Both unduly influencing the content of the spacial plans as well as interfering with the award of a contract can result in the wasting of a significant amount of tax money. As waste of money is one of the constituent elements of abuse of trust, this offence too might be applicable to the case. The four offences linked to undue influence resulting in a bad decision are therefore (a) active private bribery, (b) active public bribery (abuse of power), (c) undue interference with the award of a contract and (d) abuse of trust.

b) Influence Motivated by Personal Gain In addition to the general undue influence that leads to a bad decision being taken, undue influence can also be motivated by personal gain. Here, too, personal gain can come into play both in the phase of drafting the spacial plans as well as in the phase of awarding the building contract. In the phase of drafting the spacial plans, the political decision-maker can decide to counterfeit documentation that is used to support and substantiate the final decision. Because the constituent elements as listed in the Belgian Criminal Code require that counterfeiting is done with the intent of creating a gain either for oneself or for a third party, this offence type will only be discussed in the second part of the comparative case. In analogy to that reasoning also, favouritism will only be discussed on the second part. Favouritism does not come into play only in the phase of the award of the building contract. Already in the phase of drafting the spacial plans, favouritism can play a role. The choice to require the building of a double-deck bridge and the technical specifications included therein may favour one or more players over others. According to the Belgian criminal justice system, however, favouritism only amounts to a criminal offence if it is linked to the acceptance of a bribe and therefore a personal advantage. Favouritism without a bribe does not amount to a criminal offence. This explains why favouritism, as well as the other types of passive public bribery, is only discussed in the second part of the comparative case. Finally, the offence of conflict of interest will be discussed.

Criminal Liability of Political Decision-Makers in Belgium

19

The three additional offences linked to undue influence for personal gain are therefore (a) counterfeiting documents, (b) passive public bribery and (c) conflict of interest.

II. Comparative Case Study 1. Part 1: Criminal Liability for Bad Political Decisions a) Active Private Bribery With regard to the drafting of these spacial plans, a political decision-maker can influence the content of the plans by influencing the documentation used and the consultation procedures organised to substantiate and support the final decisions. The political decision-maker can contact a consultancy firm or other private actor responsible for the drawing up of the reports and advisory opinions that are used as documentation to substantiate and support political decision-making. This behaviour would constitute ‘active private bribery’.

aa) Legal Provisions Article 504bis § 2 CC provides that active private corruption is done either directly or indirectly through intermediaries’ offer or promise to a person who is a director or manager of a legal person, agent or representative of a legal entity or a natural person of an advantage of any kind, either for himself or for a third party without the knowledge and without the authorisation of, as appropriate, the board of directors or the general assembly, the principal or employer, to ensure that this persons performs or refrains from performing a task in the execution of his function. Article 504ter CC provides that he who commits private bribery shall be subject to imprisonment for 6 months up to 2 years and a fine of 100 [euros] to 100,000 [euros] or one of these penalties alone. If there is a corruption pact because the offer is accepted, the penalty is augmented to imprisonment for 6 months to 3 years and a fine of 100 [euros] to 50,000 [euros] or one of these penalties alone.

bb) Clarification in Case Law To influence the decision-making process, a person wanting to ensure that the prestigious project gets preference can seek recourse to bribing a consultancy firm or another private party. The interpretation and application of the provision of private bribery mirror the interpretation and application of public bribery detailed underneath the next heading. Therefore, no additional clarifications relevant to the case are deemed necessary.

20

W. De Bondt

b) Active Public Bribery (Abuse of Power) With regard to the drafting of these spacial plans, a political decision-maker can influence the content of the plans by influencing the documentation used and the consultation procedures organised to substantiate and support the final decisions. The political decision-maker can seek recourse to acts of ‘active public bribery’ whereby he bribes the other decision-makers to follow his preferences. Taking account of the position of the initiating political decision-maker, this behaviour may amount not only to bribery but also to ‘abuse of power’.

aa) Legal Provisions Article 246 § 2 CC provides that active bribery is done either directly or through intermediaries making a person who exercises a public function an offer, a promise or an advantage of any kind for himself or for a third party to ensure that any of the acts referred to in Art. 247 takes place. This means that a person holding public office—just like any other person—can bribe another person holding public office. For the case, this means that—especially in the consultation phase linked to the drawing up of spacial execution plans—other persons holding public office can be bribed to ensure that the advice they provide fits with the overall preference of the person concerned. Article 247 § 2 CC clarifies that when the bribe consists of making the person in public office do something that constitutes a wrongful act following the execution of his office or withholding from his official duties, the penalty shall be imprisonment for a duration of 6 months up to 2 years and a fine of 100 euros up to 25,000 euros. When the act or withholding is executed, the penalty shall be imprisonment for a duration of 6 months up to 5 years and a fine of 100 euros up to 75,000 euros. This provision can come into play when the bribe relates to making sure that another consulted public body either advices to include or endorses the inclusion of, e.g., a bridge scenario in the spacial execution plans rather than including a (e.g., less costly) tunnel scenario. Article 247 § 3 CC clarifies that when the bribe consists of making the person in public office commit a crime in the execution of his office, the penalty shall be imprisonment for a duration of 3 months up to 3 years and a fine of 100 euros up to 50,000 euros. This provision can come into play when the bribe relates to, e.g., the forging of recommendations included in the studies intended to advise the decisionmakers when opting to include either a bridge or a tunnel scenario in the spacial execution plans. Finally, Art. 247 § 4 CC clarifies that when the bribe relates to abusing the (perceived) power of the person executing a public office to influence another person in a public office to either commit a wrongful act or withhold from his official duties, the penalty shall be imprisonment for a duration of 6 months up to 1 year and a fine of 100 euros up to 10,000 euros. When the office is actually abused

Criminal Liability of Political Decision-Makers in Belgium

21

to influence another person in public office, the penalty shall be imprisonment for a duration of 6 months up to 3 years and a fine of 100 euros up to 50,000 euros.

bb) Clarification in Case Law Scope ratione personae—the profile of the person committing the active bribery is not relevant for the application of the criminal law provisions. Only the profile of the person being bribed is relevant. It is generally accepted that also persons holding public office can commit the crime of active bribery.31 Before the legislative change of 10 February 1999, the provisions referred to public officials. Case law clarified that ministers,32 the mayor,33 elected officials, such as the members of the regional Parliaments and governments,34 fell within that scope. However, there were some doubts as to the persons that where included, especially in light of the growing trend to task also private organisations with the execution of government tasks. Since the legislative change, reference is made to persons holding or executing a public office. In doing so, it has become clearer that all persons linked to a public office, regardless of the labelling of their position, would fall within the scope of the bribery provisions.35 There is no doubt that all persons involved in the decision-making chain in the lead-up to the building of a bridge are included in the scope ratione personae of the bribery provisions. Act—active corruption can consist of both offering a bribe as well as agreeing to provide an advantage following a request or suggestion of a person holding a public office. The question arises as to when a person falls within the scope of the bribery provisions. More specifically, the question arises whether the offering of a bribe suffices or whether offering a bribe only becomes problematic when the offer has been accepted or only when the act involved was committed. With the legislative change of 10 February 1999, the deliberate choice was made to make punishability independent from the existence of a corruption pact. It is irrelevant whether the bribe was accepted or the act was committed. Attempts—in Belgian criminal law, crimes are categorised into three types. Crimes of the first, highest type automatically include the criminalisation of attempts. It is not required for those provisions to explicitly refer to the punishability of attempted crimes. The general rules automatically apply. Crimes of the second type, such as bribery, require attempts to be explicitly penalised to make the rules regarding attempted crimes applicable. Given that the bribery provisions make no mention of attempts, attempted active bribery is not punishable in Belgian

31

A. De Nauw, Inleiding tot het Bijzonder Strafrecht, 2005 (Kluwer, New York), p. 64. Cass. 5 April 1996, R.D.P. 1996, p. 634. 33 Cass. 19 April 1983, Arr. Cass. 1982-83, p. 985. 34 Cass. 2 October 1961, Pas. 1962, I, p. 137. 35 Gedr. st. Senaat 1997-98, nr. 107/5, p. 13; Gedr. st. Kamer, 1997-98, nr. 1664/3, p. 5 and 13. See also A. De Nauw, Corruption et marches public. Des dispositions nouvelles. Rev. dr. ULB, 1998, p. 107-122. 32

22

W. De Bondt

criminal law. With respect to crimes of the third type, attemps are usually left unpunished.

c) Undue Interference with the Award of a Contract The most vulnerable step in the lead-up to the bridge being built is the procedure governing the granting of the building contract. With regard to the decision on the award of the contract to the favoured candidate too, undue influence may constitute not only bribery (when trying to influence other decision-makers) but also ‘undue interfering with the award of a contract’ as a separate offence (when, e.g., manipulating the scoring system).

aa) Legal Provisions Article 314 CC provides that he who disturbs [. . .] the awarding of a contract to a company [. . .] either by force or threat or by gifts or promises or any other fraudulent means shall be punished with imprisonment of 15 days up to 6 months and a fine of 100 [euros] up to 3000 [euros].

bb) Clarification in Case Law There is very little case law on this particular provision of our Criminal Code. However, it seems as though this provision may come into play regarding this case. The possibility to impose the undue choice for the prestigious bridge project is not limited to the drawing up of the spacial execution plans but can also relate to the awarding of the contract to one specific building company. In light thereof, the room for manoeuvring in public procurement regulations becomes highly relevant. Even though the awarding of public contracts is highly regulated, there is always some discretionary power for the contracting authority in light of the qualitative evaluation criteria of the bidders. According to Belgian Public Procurement Law, the qualitative analysis includes an appreciation of the technical and professional qualities of the bidders, taking into account their know-how, their efficiency, their experience their and reliability.36 Similarly, the educational background and professional qualifications of the bidder and the executive staff may be taken into account.37 The question arises to what extent the manipulation of the scoring on 36

Art. 68 Royal Decree of 5 July 2011 governing public procurement procedures in the traditional sectors, Koninklijk Besluit van 5 juli 2011. betreffende de plaatsing van overheidsopdrachten in klassieke sectoren, B.S. 9 August 2011, p. 44862. 37 Art. 69 Royal Decree of 5 July 2011 governing public procurement procedures in the traditional sectors, Koninklijk Besluit van 5 juli 2011. betreffende de plaatsing van overheidsopdrachten in klassieke sectoren, B.S. 9 August 2011, p. 44862.

Criminal Liability of Political Decision-Makers in Belgium

23

those items with a view to ensuring that the preferred prestigious project is awarded the contract would amount to an offence. The procurement regulations do not make an explicit reference to criminal law provisions, but it might be argued that undue manipulation of the scoring would not only amount to the nullity of the award contract but would also amount to the act of ‘interfering with the awarding of contracts’ as mentioned in Art. 314 CC. Compared to the other offences elaborated above, the sanction level of this offence is significantly lower, which may not correspond to the general feeling of punishability of the behaviour to ensure the integrity of public procurement procedures.

d) Abuse of Trust Both unduly influencing the content of the spacial plans as well as interfering with the award of a contract can result in the wasting of a significant amount of tax money. As waste of money is one of the constituent elements of abuse of trust, this offence too might be applicable to the case.

aa) Legal Provision Article 491 CC provides that he who at the expense of another person’s goods, money [. . .], which are handed over to him under obligation either to return them or to use them for a specific purpose, deceptively obscures or wastes them shall be punished by imprisonment from 1 month to 5 years and a fine of 26 [euros] to 500 [euros].

bb) Clarification in Case Law Transfer—abuse of trust presupposes that the goods or money was transferred willingly by the injured party.38 No physical interaction between both parties39 or a transfer in cash40 is required. Arguing that the budget available for spacial planning was transferred by the citizens and that the choice to go for an option that is more costly than an alternative negatively impacts on a society’s budget, which is entrusted by citizens to decision-makers to use in their best interests, the deliberate choice to go for a bridge might result in the provisions on abuse of trust coming into play. Wasting—the crime of abuse of trust can be committed in one of two ways: either by deceptively obscuring the goods or money or by wasting the money due to

38

Cass. 29 April 1986, Arr. Cass. 1985-86, p. 1169. Cass. 4 December 1997, Pass. 2007, p. 2216. 40 Cass. 9 April 1992, R.W. 1991-1992, p. 461. 39

24

W. De Bondt

reckless or useless spending.41 The crime is committed as soon as the person involved is no longer in the position to return the funds or use them for another purpose.42 This means that there should be a legal obligation to use the funds for an inacceptable purpose. This could create a complexity for the case. The mere inclusion of the more expensive bridge option in the spacial execution plan in itself does not constitute a legal obligation to spend the money in that way. Some additional steps and decisions are required. The execution of the spacial execution plans requires the setting up of a public procurement procedure and the actual granting of the contract. This seems to mean that the crime can only be committed when the granting of the contact has taken place. Questions arise as to the responsibility of the actors that come into play in this procurement context and more specifically whether the contracting authorities bare responsibility to scrutinise the guidelines included in the spacial execution plans. This is particularly interesting, given that the contracting authorities are part of the consultation procedure preceding the adoption of the spacial execution plans. As part of the consultation procedure of spacial execution plans at, e.g., regional level, the authorities and decisionmaking bodies of the provincial and communal levels are consulted. Disadvantage—interestingly, the crime of abuse of trust requires that there is only a potential disadvantage and does not require actual disadvantage to be demonstrated.43 Intent—a specific intent is required for the crime of abuse of trust to be committed. It is required that the act was committed deceitfully44; it is, however, not required that the person involved intended to cause financial damage.45 In light thereof, it is required that the person holding public office would deceitfully include the bridge option in the spacial execution plan even though there would be a better alternative. The nature of that being ‘better’ is irrelevant. It could be better for the environment, for the economy, for the general well-being of the community or for the budget. There is no requirement that the deceit is directly linked to the budget to be able to place the act within the scope of abuse of trust. Attempts—in Belgian criminal law, crimes are categorised into three types. Crimes of the first, highest type automatically include the criminalisation of attempts. It is not required for those provisions to explicitly refer to the punishability of attempted crimes. The general rules automatically apply. Crimes of the second type, such as abuse of trust, require attempts to be explicitly included in the Criminal Code to make the rules regarding attempted crimes applicable. Given that the abuse of trust provisions make no mention of attempts, attempted abuse of trust is not punishable in Belgian criminal law. With respect to crimes of the third type, attemps are usually left unpunished.

41

Antwerp, 7 September 2000, R.W. 2002-2003. Cass. 27 October 2010, Arr. Cass. 2010, p. 2638. 43 Cass. 11 July 1938, Pass. 1938, I, p. 266. 44 Cass. 8 September 1998. Arr. cass. 1998, p. 866. 45 Lie`ge 7 May 2004, Jour. Proc. 2008/483, p. 24. 42

Criminal Liability of Political Decision-Makers in Belgium

25

2. Part 2: Criminal Liability for Pursuit of Personal Interests a) Counterfeiting Documents In the phase of drafting the spacial plans, the political decision-maker can decide to counterfeit documentation that is used to support and substantiate the final decision.

aa) Legal Provisions Article 193 CC provides that counterfeiting documents committed with either a fraudulent intent or the intent to cause harm are punished in accordance with the following provisions. Article 196 CC provides that with imprisonment of 5 up to 10 years are punished [. . .] all persons who counterfeit [. . .] private documents either by false signatures or by counterfeiting or falsification of documents or signatures; by adding postfactum agreements, decisions, commitments or debt in the documents; either by adding or by falsifying clauses, declarations or facts that the documents intend to establish. Article 197 CC provides that those who knowingly use the counterfeit documents are punished as if they are the perpetrators of the counterfeit themselves.

bb) Clarification in Case Law Protected documents—the report including the advice of, e.g., consultancy firms regarding the best possible options to solve traffic-related problems would not constitute official documents governed by the first series of provisions related to counterfeiting of documents. These reports constitute private documents in the meaning of Art. 196 CC. To be a ‘protected document’ in the sense of that provision, it suffices that the document can be considered evidence of what it states.46 In this context, the report undoubtedly qualifies as a document evidencing the advice of the consultancy firm. False declarations of facts—the very general formulation of what counterfeiting can entail allows a very broad interpretation and application of this provision. Should the person interested in the prestigious project alter the findings and/or recommendations included in the expert report, this would undoubtedly constitute an act within the scope of the provisions of counterfeiting documents. Intent—counterfeiting of documents requires a specific intent. It is required that the person act with the intent to commit fraud or the intent to harm. While the intent to harm will be difficult to establish in the current case, the intent to commit fraud will be easier to establish. The prestige linked to the personally preferred option 46

Cass. 16 December 1997, Arr. Cass 1997, p. 1372.

26

W. De Bondt

will have led the person involved to commit the counterfeiting. However, that in itself will not suffice; it needs to be established that the counterfeiting has awarded either himself or a third person an undue advantage.47 Such an undue advantage relates to an advantage that one would not have had without the counterfeiting taking place.48 The question arises as to what could constitute this undue advantage. Reference can be made to either the prestige for the person involved—which may be difficult to prove—or the undue advantage of building companies specialising in bridges (as opposed to building companies specialising in tunnels). To be able to establish this last disadvantage, the claimant would have to substantiate that the counterfeiting of the document results in a decision that creates such undue advantage, differently put, to prove that without the counterfeit document, a different political decision would have been taken that would have a different impact on the positions of both types of building companies. In practice, the burden of proof might be challenging but should not prevent successful prosecution. Disadvantage—interestingly, the crime of abuse of trust requires that there is only a potential disadvantage and does not require actual disadvantage to be demonstrated.49 Use of counterfeit documents—in addition to the criminalisation of counterfeiting documents, the use of counterfeit documents is also criminalised. Provided that the person(s) involved are aware of the counterfeit, those persons will be sanctioned as if they were the counterfeiters themselves. Attempts—in Belgian criminal law, crimes are categorised into three types. Crimes of the first, highest type automatically include the criminalisation of attempts. It is not required for those provisions to explicitly refer to the punishability of attempted crimes. The general rules automatically apply. Given that counterfeiting is a crime of this first type, the attempted counterfeit will be punishable in Belgian criminal law. Attempted counterfeits of this nature will be punishable with an imprisonment of 1 month to 5 years.

b) Passive Public Bribery Already in the phase of drafting the spacial plans, the political decision-maker may be influenced by bribes offered and possibly accepted. The choice to require the building of a double deck bridge and the technical specifications included therein may favour one or more players over others. According to the Belgian criminal justice system, however, favouritism only amounts to a criminal offence if it is linked to the acceptance of a bribe and therefore a personal advantage. As detailed below, our bribery provisions make a distinction along the kind of intervention or

47

Cass. 22 February 1977, Arr. Cass. 1977, p. 682; Cass. 9 February 1982, Arr. Cass. 1981982, p. 760. 48 Corr. Charleroi 25 October 1984, J.T. 1984, p. 652. 49 Cass. 18 March 1975, Arr. Cass. 1975, p. 807.

Criminal Liability of Political Decision-Makers in Belgium

27

withholding that is required from the person holding public office. One of the situations listed is the committing of a wrongful act in the context of the execution of public office.50 It has been accepted that favouritism can constitute such a wrongful act.51 However, the applicability of this provision is dependent on the bribe related to it. Only when the favouritism is conducted in the context of requesting or accepting a bribe, the person holding public office would place himself within the scope ratione materiae of this provision. Favouritism without a bribe, merely because of a personal preference such as the prestige of having an iconic double deck bridge as part of the skyline of your city, would not fall within that scope.

aa) Legal Provisions Four provisions are relevant to the case: the general provision on passive bribery (Art. 246 § 1), the aggravating circumstance of conducting a wrongful act (Art. 247 § 2), the aggravating circumstance of committing a crime (Art. 247 § 3) and the situation where the bribe relates to (ab)using influence (Art. 247 § 4). Firstly, Art. 246 CC: Passive bribery exists when a person in public office, be it direct or via a middle man, for himself or for a third party, requests or accepts an offer, a promise or a benefit of whatever nature, with a view to conducting one of the things included in Art. 247 CC.

This provision provides the general framework for the passive bribery provisions. Secondly, Art. 247 § 2 CC clarifies that when the bribe consists of making the person in public office do something that constitutes a wrongful act following the execution of his office or withholding from his official duties, the penalty shall be imprisonment for a duration of 6 months up to 2 years and a fine of 100 euros up to 25,000 euros. When the act or withholding is executed, the penalty shall be imprisonment for a duration of 6 months up to 5 years and a fine of 100 euros up to 75,000 euros. This provision can come into play when the bribe relates to the inclusion of, e.g., a bridge scenario in the spacial execution plans rather than including a (e.g., less costly) tunnel scenario. It is generally accepted that favouritism can constitute a wrongful act.52 Thirdly, Art. 247 § 3 CC clarifies that when the bribe consists of making the person in public office commit a crime in the execution of his office, the penalty shall be imprisonment for a duration of 3 months up to 3 years and a fine of 100 euros up to 50,000 euros. This provision can come into play when the bribe Art. 247 § 2 CC—related to the situation where the bribe consists of making the person in public office do something that constitutes a wrongful act following the execution of his office or withholding from his official duties. 51 Cass. 23 December 1998, Arr. Cass. 1998 p. 1166. 52 Cass. 23 December 1998, Arr. Cass. 1998 p. 1166. 50

28

W. De Bondt

relates to, e.g., the forging of recommendations included in the studies intended to advise the decision-makers when opting to include either a bridge or a tunnel scenario in the Spacial Execution Plans. Fourthly and finally, Art. 247 § 4 CC clarifies that when the bribe relates to abusing the (perceived) power of the person executing a public office to influence another person in a public office to either commit a wrongful act or withhold from his official duties, the penalty shall be imprisonment for a duration of 6 months up to 1 year and a fine of 100 euros up to 10,000 euros. When the office is actually abused to influence another person in public office, the penalty shall be imprisonment for a duration of 6 months up to 3 years and a fine of 100 euros up to 50,000 euros.

bb) Clarification in Case Law Scope ratione personae—see above (comment regarding the scope ratione personae of active public bribery). Act—passive corruption can consist of both accepting as well as asking for a bribe. The question arises as to when a person falls within the scope of the bribery provisions. More specifically, the question arises whether the accepting of a bribe suffices or whether accepting a bribe only becomes problematic when the act or omission sought has taken place. The formulation of the bribery provisions leaves no doubt that the acceptance of a bribe, even without the intention to ever go into committing the act or omission, is criminalised. The actual committing of the act or omission is listed as a possible aggravating circumstance. This means that the concept of a corruption pact, i.e. a mutual understanding between both parties involved, is not required for behaviour to fall within the scope of the bribery provisions.53 Intent—given that the ratio underlying the bribery provisions is to target the venality of persons holding or executing a public office, the intent of the persons bribing is completely irrelevant. As to the intent of the persons holding or executing a public office, no specific intent is required. Knowingly accepting or asking for a bribe suffices. Attempts—in Belgian criminal law, crimes are categorised into three types. Crimes of the first, highest type automatically include the criminalisation of attempts. It is not required for those provisions to explicitly refer to the punishability of attempted crimes. The general rules automatically apply. Crimes of the second type, such as bribery, require attempts to be explicitly penalised to make the rules regarding attempted crimes applicable. Given that the bribery provisions make no mention of attempts, attempted bribery is not punishable in Belgian criminal law. With respect to crimes of the third type, attemps are usually left unpunished.

53

Gedr. St. Senaat 1997-1998, nr. 107/4, p. 9 and 10.

Criminal Liability of Political Decision-Makers in Belgium

29

c) Conflict of Interest Finally, a conflict of interest may arise where the political decision-maker may go for the option that is most beneficial to his personal situation.

aa) Legal Provision Article 8 of the law governing the granting of public works contracts stipulates that Without prejudice to other prohibitions arising from a law, decree, ordinance, regulation or statute, it is not allowed for any official, public authority figure or any other person linked to the awarding authority, to, directly or indirectly, interfere with the first placement and the execution of a contract should that involvement either personally or through an intermediary, amount to a situation of conflict of interest with a candidate or tenderer. § 2. These conflicts of interest are presumed to exist 1  when the officer, public authority figure or the natural person referred to in § 1, has a bond either by blood or marriage [. . .] with one of the candidates or tenderers or any other natural person exercising on behalf of one of them a directorship or management authority; 2  if the officer, public authority figure or the natural person referred to in § 1 either himself or through an intermediary is the owner, co-owner or an active partner of one of the candidates or tendering companies [. . .] § 3. If the officer or public official, the natural person or legal entity referred to in § 1, be it through an intermediary, holds one or more shares or stocks worth at least five percent of the share capital of one of the candidates or tendering companies, he is obliged to inform the contracting authority thereof.54

Article 22 of the Royal Decree further clarifies that such notification should be done in writing.55 In the context of this obligation, it has been argued that omitting this notification duty would amount to the interference with the granting of public works contracts as developed in Art. 314 CC.56 As elaborated above, this provision stipulates that he who disturbs the allocating of ownership or lease of movable or immovable property, the awarding of a contract to a company, the ensuring of the freedom of bidding or registration, either by force or threat or by gifts or promises or any other fraudulent means, shall be punished with imprisonment of 15 days to 6 months and a fine of 100 [euros] to 3000 [euros]. 54

Art. 6 Law of 15 June 2006 governing the award of government contracts regarding work, supplies or services—Wet 15 JUNI 2006. betreffende overheidsopdrachten en bepaalde opdrachten voor werken, leveringen en diensten, B.S. 15 February 2007, p. 7355. 55 Art. 22 Royal Decree of 5 July 2011 governing public procurement procedures in the traditional sectors, Koninklijk Besluit van 5 juli 2011. betreffende de plaatsing van overheidsopdrachten in klassieke sectoren, B.S. 9 August 2011, p. 44862. 56 Report to the King on the provisions of Royal Decree of 5 July 2011 governing public procurement procedures in the traditional sectors—Verslag aan de Koning over de bepalingen van het Koninklijk Besluit van 5 juli 2011. betreffende de plaatsing van overheidsopdrachten in klassieke sectoren.

30

W. De Bondt

bb) Clarification in Case Law As indicated above, there is very little case law on this particular provision of our Criminal Code.

III. Immunities and Other Limitations of Criminal Liability 1. Inviolability or Immunity? The criminal liability of political decision-makers is governed by the rules on inviolability and immunity. The question arises whether in the situations discussed inviolability or immunity applies. The rules on inviolability provide that no member of either House (be it federal57 or regional58) or minister (be it federal59 or regional60) or secretaries of State61 (be it federal62 or regional63) can be prosecuted or be the subject of any investigation with regard to opinions expressed and votes cast by him in the exercise of his duties.64 The inviolability included in this provision is an absolute permanent and limited protection, meaning that acts within the execution of duties can never be subject to prosecution.65 The protection cannot be waved or lifted. However, given that the possible offences related to the drawing up and adopting of the spacial plans or the interference with the award of contracts as discussed above would exceed the normal exercise of the duties, the constitutional inviolability provisions may not apply. The political decision-makers might only be able to benefit from the rules on immunities. The constitution stipulates that except in the case of a flagrant offence, no member of either House (be it federal66 or regional67) may, during a session and in criminal matters, be directly referred or summoned before a court or be arrested,

57

Art. 58 Const. Art. 120 Const. 59 Art. 101 Const. 60 Art. 128 Const. 61 The protection only applies to ministers and secretaries of State (staatssecretaris). This means governmental commissioners (regeringscommissaris) and royal commissioners (koninklijke commissarissen) cannot benefit from these constitutional provisions. 62 Art. 104 Const. 63 Art. 126 Const. 64 Legal Service of the Federal Parliament, The Parliamentary Inviolability, May 2015. 65 C. Van Den Wyngaert, Strafrecht en Strafprocesrecht in Hoofdlijnen, 2014 (Maklu, Antwerpen), p. 802. 66 Art. 59 Const. 67 Art. 120 Const. 58

Criminal Liability of Political Decision-Makers in Belgium

31

except with the authorisation of the House of which he is a member.68 Except in the case of a flagrant offence, coercive measures requiring the intervention of a judge cannot, during a session and in criminal matters, be instituted against a member of either House, except by the first President of the appeal court at the request of the competent judge. This decision is to be communicated to the President of the House concerned. All searches or seizures executed by virtue of the preceding paragraph can be performed only in the presence of the President of the House concerned or a member appointed by him. The immunity included in this provision is relative, temporary and unlimited, meaning that the immunity can be lifted provided that a specific procedure thereto is followed, that the immunity will seize to have effect once the term in office had ended and that the immunity relates to any possible offence committed.69 The prosecution of possible offences discussed above would fall within this regime.

2. Limitations Ratione Personae Not all political decision-makers can benefit from the protection of the rules on inviolability and immunity. A distinction should be made according to the level and function of the political decision-maker.

a) Top-Level Members of Parliament Members of the Flemish Parliament enjoy the immunities listed in Arts. 58 and 59 Const. Originally, the protection provided for by Art. 58 Const. only applied to the members of the federal Parliament. However, following the laws governing the institutional restructuring of our federal State, Art. 120 Const. now clearly states that also members of community and regional Parliaments enjoy the immunities governed by Arts. 58 and 59 Const.

b) Top-Level Ministers Members of the Flemish Government, however, cannot enjoy similar immunities. The constitution clearly stipulates that members of a community or regional government are tried exclusively by the appeal court for offences they have allegedly committed in the exercise of their duties. The same rule applies in the case of offences allegedly committed by members of a community or regional government outside the exercise of their duties and for which they are tried during

68 69

Art. 103 Const. explains that these immunities do not apply to ministers. C. Van Den Wyngaert (note 65), p. 803.

32

W. De Bondt

the exercise of their duties. As the case may be, Arts. 120 and 59 are not applicable.70

c) Middle- and Local-Level Decision-Makers Contrary to members of the federal Parliament, members of the provincial councils enjoy no immunities or privileges. They remain subject to the normal criminal procedural laws should they have committed offences in the context of the decision relating to the public works contract to build a bridge. Members of provincial councils are even criminally liable for acts committed in the execution of their duties. Similarly, there is no protection regime for the members of the permanent deputation. Mirroring the position of members of the provincial councils, members of the communal councils enjoy no immunities or privileges. They remain subject to the normal criminal procedural laws should they have committed offences in the context of the decision relating to the public works contract to build a bridge. Members of communal councils are even criminally liable for acts committed in the execution of their duties. This means that—mirroring the vulnerability of the members of the provincial council—members of communal councils can, e.g., be prosecuted for slander and defamation. Similarly, the mayor and aldermen are criminally liable for the decisions they take and the effect that bad decisions may have. There have been a number of controversial cases in Belgium where either the mayor71 or the college of mayor and aldermen72 was involved in criminal procedures.

IV. Special Courts and Special Procedural Requirements 1. Top-Level Members of Parliament For our members of Parliament, no special procedure is introduced. The normal courts retain their competence to prosecute members of Parliament.

70

Art. 125 Const. In 2006 the Mayor of Damme was prosecuted following a road traffic accident that allegedly occurred because of a poor designed intersection in his city. 72 In 2011 the College of Mayor and Aldermen of Kortenberg were prosecuted for involuntary injury of a small child that had an accident at a local playground. 71

Criminal Liability of Political Decision-Makers in Belgium

33

2. Top-Level Ministers Article 125 Const. provides that members of a community or regional government are tried exclusively by the appeal court for offences they have allegedly committed in the exercise of their duties. The same rule applies in the case of offences allegedly committed by members of a community or regional government outside the exercise of their duties and for which they are tried during the exercise of their duties. As the case may be, Arts. 120 and 59 Const. are not applicable. The law determines the manner of proceeding against them, both when they are prosecuted and when they are tried. The law designates the appeal court that has jurisdiction, which sits in banc, and specifies its composition. The judgments of the appeal court can be appealed to the united chambers of the Supreme Court, which does not pronounce on the merits of the case. Only the public prosecutor to the appeal court having jurisdiction may institute and lead criminal proceedings against a member of a community or of a regional government. Authorisation by the Parliament of the community or region, each one for matters of its concern, is required for any public prosecutor’s request to refer the member concerned to a particular court or to discharge him, for his direct summons before the appeal court and, except in a case of a flagrant offence, for his arrest. The law determines the procedure to be followed when Arts. 103 and 125 Const. are both applicable and when there is a double application of Art. 125 Const. Pardon may be granted to a member of a community or regional government convicted in accordance with the first paragraph only upon request by the community or regional Parliament concerned. The law determines in which cases and in accordance with which rules injured parties may bring a civil action. The laws referred to in the present article must be adopted by a majority as described in Art. 4, last paragraph Const.

3. Middle- and Local-Level Decision-Makers For the members of provincial councils, permanent deputations, communal councils, colleges of mayor and aldermen, no special procedures are introduced. The normal courts retain their competence to prosecute these political decision-makers. Wendy De Bondt is Professor of Criminal Law at the Ghent University.

Criminal Liability of Political Decision-Makers in Finland Dan Helenius

I. Preliminary Remarks 1. Decision-Making in Municipalities and the Structure of Municipalities According to sec. 121(1) of the Finnish Constitution (731/1999 – Const.), Finland is divided into municipalities, whose administration is based on self-government.1 As of 2015, Finland has 317 municipalities, 107 of which are cities.2 A municipality may use the designation ‘town’ or ‘city’ if it considers that the requirements for an urban community are met. Self-government implies that municipalities are entitled to decide on their internal matters and govern themselves. Municipalities are in practice tasked with providing their inhabitants with basic services, which include, e.g., infrastructure and land use. The activities of a municipality are directed through political decision-making. The highest decision-making organ is the municipal council. Members of the municipal council are elected through local municipality elections by the municipality’s residents for a 4-year term (Local Government Act (410/2015), sec. 15). The municipal council is a multi-member body that makes decisions collectively through majority voting. It does not have legislative powers but rather belongs to the executive branch. The council decides on matters related to the activities of the municipality, unless the decision-making has been delegated to the municipal executive. 1

Unofficial English translations of most of the statutes referred to in this report can be found at http://finlex.fi/en/laki/kaannokset/. 2 H. Harjula/K. Pr€ att€ al€ a, Kuntalaki – Tausta ja tulkinnat 2015 (Talentum, Helsinki), p. 5. D. Helenius (*) University of Helsinki, Helsinki, Finland e-mail: [email protected] © Springer International Publishing AG 2017 F. Zimmermann (ed.), Criminal Liability of Political Decision-Makers, DOI 10.1007/978-3-319-52051-3_4

35

36

D. Helenius

The council elects the members of the municipal executive that has a central position within the municipality. In practice, the majority of the members of the municipal executive are also members of the municipal council. The municipal executive is responsible for the municipality’s administration and financial management and for the preparation and implementation of the municipal council’s decisions and for overseeing the legality of these. Individual decisions are also prepared in specialised municipal boards. The political management of the municipal executive is tasked to the chairperson of the executive. The chairperson of the municipal executive shall manage the political collaboration required for the municipal executive’s duties to be carried out. It is not easy to define what such ‘political collaboration’ includes, but the idea is to distinguish the chairperson’s position as a political leader from the position of a professional leader, which is primarily assigned to a municipal chief executive. Political collaboration may include discussions with the political parties and keeping contact with the municipality’s residents and companies prior to municipal council meetings.3 The day-to-day management of a municipality’s activities, administration and finances can be handled either by a chief executive or a mayor, who are both subordinated to the municipal executive. Both are elected by the municipal council (but it is also possible to decide that a mayor is elected through direct elections). The chief executive is primarily a municipal official, while the mayor is an elected official. Most commonly, this management is appointed to a chief executive. He or she may be elected for either an indefinite or a fixed period and has a public-service employment relationship with the municipality. The position of the chief executive has traditionally been strong in the Finnish municipalities. The chief executive not only is a professional leader but also has an important role in the municipality’s political management, together with the elected officials.4 He or she also acts as presenting official in the municipal executive and is responsible for the preparation of matters to be decided in the municipal executive.5 Instead of a chief executive, the municipality may be managed by a mayor. This model was made possible through a legal reform in 2006 and emphasises the political leadership and the significance of political responsibility. The mayor handles the tasks of both the chief executive and the chairperson of the municipal executive. However, as of 2014, only two municipalities have decided to adopt a mayoral model. The trend rather seems to be to strengthen the political management position of the chairperson of the municipal executive while maintaining the position of the chief executive as a professional leader.6

3

Harjula/Pr€ att€ al€ a (note 2), p. 344. Harjula/Pr€ att€ al€ a (note 2), p. 331. 5 Harjula/Pr€ att€ al€ a (note 2), p. 344. 6 Harjula/Pr€ att€ al€ a (note 2), p. 364. 4

Criminal Liability of Political Decision-Makers in Finland

37

2. Criminal Liability for Public Officials Criminal liability for public officials is based on a separate system for ‘offences in office’. These offences are found in Chapter (Ch.) 40 of the Finnish Criminal Code (39/1889, CC). The basis for this system can be derived from the Constitution. According to sec. 2(3) Const., the exercise of public powers shall be based on law and the law shall be strictly observed in all public activity. According to sec. 118, civil servants are responsible for the lawfulness of their official actions. They are also responsible for a decision made by an official multi-member body that they have supported as one of its members. One of the ideas behind the Finnish system is that only those acts and omissions should be punished as offences in office that can be regarded as particularly reprehensible as regards the society or the citizens or that have not otherwise been criminalised in order to secure the due course of official activity.7 The provisions in Ch. 40 CC primarily mention ‘public officials’ as possible offenders. The concept of ‘public official’ is, however, a legal technical term since the provisions also apply to other persons acting in official functions. Therefore, it is not possible to examine the criminal liability of political decision-makers without examining the provisions on offences in office. According to Ch. 40, sec. 12(1), the provisions in Ch. 40 also apply to persons holding a position of trust. Chapter 40, sec. 11(2) in turn defines the concept of ‘person holding a position of trust’. This includes, inter alia, members of a municipal council and any other member of a popularly elected representative body of a public body and members of a public body or institution, such as the Government and the municipal executive. Thus, it is clear that persons elected to a position of trust within a municipality, such as members of the municipal council and the municipal executive, can be held liable for offences in office in accordance with Ch. 40 CC. This is also clear from sec. 85(1) in the Local Government Act, according to which ‘When performing their duties, elected officials are subject to liability for acts in office and are subject to the provisions of the Criminal Code concerning offences in office’. Members of Parliament, on the other hand, do not have official responsibility when acting in their parliamentary mandate. The fact that members of Parliament have been left outside the scope of application of the provisions on offences in office emphasises their strong position. The accountability of members of Parliament in their function is primarily based on political accountability, implying that they will not be re-elected if they lose the trust of their voters.8 Generally, the legislative activities of members of Parliament are not regarded as very sensitive to such external influence that should be prevented. Even though ‘acceptance of a bribe as a member of Parliament’ is punishable according to Ch. 40, sec. 4 CC, 7

P. Viljanen, Virkarikokset, in: Fra¨nde et al. (eds.), Keskeiset rikokset 2014 (Edita, Helsinki), p. 797. 8 I. Rautio, RL 40: Virkarikokset ja julkisyhteis€on ty€ontekija¨n rikokset, in: Lappi-Seppa¨la¨ (ed.), Rikosoikeus, 2013 (Talentum Media Oy, Helsinki), p. 1119.

38

D. Helenius

members of Parliament are not equated to public officials, and the other provisions in Ch. 40 do not apply to members of Parliament.

II. Comparative Case Study In our case study, it seems appropriate to assume that M is either a member of a municipal council, the chairperson of a municipal executive or the chief executive (or mayor) of the municipality. The provisions in Ch. 40 CC apply to all of these persons, although the requirements for criminal liability may vary between them. However, it should be noted that a decision such as the one in our case is made either by the municipal council or the municipal executive, both of which are multimember bodies that make collegial decisions. Accordingly, it seems difficult to find a situation where M would hold a position where he is solely responsible for the decision.

1. Part 1: Criminal Liability for Bad Political Decisions a) Abuse of Public Office All offences in office in a way entail a kind of abuse of public office. The concept has, however, also been given a specific meaning since it is included as separate penal provision in the Criminal Code9: Ch. 40, sec. 7 CC – Abuse of public office (1) If a public official, in order to obtain benefit for himself or herself or for another or in order to cause detriment or loss to another 1. violates his or her official duty, based on the provisions or regulations to be followed in official functions, when participating in decision-making or in the preparation thereof or when using public authority in his or her other official functions, or 2. misuses his or her office in respect of a person who is under his or her command or immediate supervision, he or she shall be sentenced for abuse of public office to a fine or to imprisonment for at most two years. (2) The public official may also be sentenced to dismissal if the offence indicates that he or she is manifestly unfit for his or her duties.

9

Viljanen (note 7), p. 841. Ch. 40, sec. 8 CC also provides an aggravated form of abuse of public office that requires inter alia that ‘considerable benefit is sought’ or that ‘the offence is committed in a particularly methodical or unscrupulous manner’.

Criminal Liability of Political Decision-Makers in Finland

39

aa) In Order to Obtain Benefit or Cause Detriment or Loss For the provision on ‘abuse of public office’ to apply, the offender first of all has to act ‘in order to obtain benefit for himself or herself or for another or in order to cause detriment or loss to another’. The offender does not necessarily have to obtain any benefit or cause any detriment or loss. The constituent elements are fulfilled also when, for instance, benefit or loss does not come about because a decision is overturned through an appeal. In a way, the act is criminalised already at the stage of preparation.10 The provision does not place any qualitative requirements on the benefit. It does not have to be financial; neither does it have to be illegal.11 Likewise, the detriment or loss that is caused does not have to be of a certain quality, e.g. financial. Already waste of time or having to appeal an incorrect decision can be regarded as a detriment.

bb) Official Duties ‘Abuse of public office’ requires that the public official violates his or her official duty, based on the ‘provisions or regulations’ to be followed in official functions. The intended provisions and regulations do not appear directly from the penal provision but have to be found elsewhere. According to the preparatory works, the provision does not encompass such duties that are only based on ‘good governance’ or ‘proper management of public duties’. These general principles are too imprecise with regard to the principle of legality.12 The fact that the official duties have to be based on provisions or regulations does not, however, require that the duty as such is described in a provision or regulation. Often, the more exact content of a duty has to be derived from a provision or regulation.13 Also, decisions and regulations of a lower legislative level can come into question. According to, e.g. sec. 14(1) of the Act on civil servants (750/1994), a public official ‘shall comply with regulations on staff management and supervision’. This obligation concerns, e.g., standing orders and internal regulations and guidelines.14 Also, Ch. 4, sec. 17 of the Act on municipal officials (304/2003) states that officials shall follow all relevant provisions and regulations. These provisions and regulations may be found in, e.g., general acts on public procurement, but municipalities also have their own internal ordinances on, e.g., public procurement and budgetary compliance.

10

Viljanen (note 7), p. 841. Viljanen (note 7), p. 842. 12 Government Bill HE 58/1988 vp, p. 65 and Rautio (note 8), p. 1129. 13 P. Viljanen, Virkarikokset ja julkisyhteis€on ty€ontekija¨n rikokset, 1990 (Lakimiesliiton kustannus, Helsinki), p. 334. 14 Rautio (note 8), pp. 1129–1130. 11

40

D. Helenius

The legislation that directs the conduct of public officials often contains rather broad obligations. For instance, sec. 14(1) of the Act on civil servants provides that a public official ‘shall perform his or her duties appropriately and without delay’. According to sec. 14(2) of the same Act, a public official ‘shall behave in the way required by his or her station and duties’. When assessing general obligations, also established administrative practice should be taken into consideration in addition to detailed provisions.15 For instance, the requirement of appropriate performance of official duties according to established practice requires a sufficient degree of diligence and effectiveness. However, the requirement that the official duties must be based on provisions or regulations, together with the principle of legality, restricts the possibility of basing criminal liability on provisions of a too general character. It is not sufficient that the provision or regulation only gives some kind of reference to the content of an official duty.16 The most far-reaching interpretations can be accepted in situations where there is an established and accepted practice that an official duty shall be taken care of in a certain way. In case law, rather strict demands have been put on the preciseness of provisions and regulations that determine official duties. Attention should, inter alia, be attached to the precision with which the duty in question can be described. For instance, a public official’s behavioural duties cannot be described in detail with regard to every single situation, while a public official’s performance duties can usually be indicated rather explicitly through provisions and regulations.17 In one case from the Supreme Court, the chief executive of a municipality in preparing a land-for-land exchange had not properly looked into the servitudes that were directed at the acquired real estate, which had caused detriment to the municipality.18 According to the court, a diligent preparation of the exchange in question, as well as the interests of the municipality, would have required the chief executive, as the person responsible for the project, to investigate any financial servitudes directed at the real estate that the municipality was about to acquire. According to the relevant municipal ordinance, the chief executive was to follow all official regulations of the municipality and take care that all matters presented to the municipal executive were prepared diligently. The official regulations of the municipality also stated that officials shall avoid everything that is against the interest of the municipality. The question then was whether the chief executive’s duty to investigate any servitudes directed at real estate that was to be acquired by the municipality appeared with sufficient precision from the ordinance and official regulations of the municipality as to act as a basis for criminal liability. According to the court, the provision in question did not define the official duties of the chief executive with sufficient preciseness and also seemed to entail that any behaviour to

15

Government Bill HE 58/1988 vp, p. 65 and Rautio (note 8), p. 1130. Rautio (note 8), p. 1130. 17 Rautio (note 8), p. 1131 and Viljanen (note 7), p. 846. 18 Supreme Court judgment KKO 1998:41. 16

Criminal Liability of Political Decision-Makers in Finland

41

the detriment of the municipality could in principle give rise to criminal liability. With regard especially to the principle of legality, the Supreme Court asserted that the chief executive could not be held criminally liable for his negligence.19 Public officials also enjoy certain discretion when applying legislation or other regulations that govern their decision-making. This can include the right to decide what is appropriate in a matter or provisions that require interpretation in regard to an individual case. Decisions that are made by a public official within the limits of his or her discretionary powers should not be regarded as contrary to his or her official duties.20 Even a decision that, in light of presented justifications, can be regarded as a bad one does not necessarily indicate that the decision-maker has violated his or her official duties. Persons holding a position of trust (such as members of a municipal council) that are referred to in Ch. 40, sec. 11(1.2) CC usually do not have similar broadly described official duties as administrative public officials. Consequently, they are subjected to a more limited criminal liability than administrative public officials.21

cc) Participation in Decision-Making or Preparation Thereof Abuse of public office further requires that the act is committed ‘when participating in decision-making or in the preparation thereof or when using public authority’. Participating in decision-making concerns situations where the public official is the sole decision-maker or decision-making by two or more public officials, e.g. as a college. Also, a public official that presents a matter is regarded as taking part in the decision-making. Since the provision does not require that detriment or loss is caused, also a public official whose position loses in a voting situation can be held liable.22 The provision also applies to preparation of decision-making. This expands the criminal liability also to activities that cannot unequivocally be regarded as decision-making, as well as preparatory actions that are not part of the actual decision-making. Preparatory actions do not in themselves include decision-making but lay the ground for decision-making. Such actions can include collecting research material and analyses. Preparatory actions and acquiring of information that is necessary for the decision-making in practice have an essential or decisive significance for the outcome. For instance, a person tasked with preparing a matter who gives wrongful data or other information can decisively influence the decisionmaking.23

19

Viljanen (note 7), p. 844 thus draws the conclusion that sec. 14(1) of the Act on civil servants is too vague as to function as a basis for criminal liability due to official duties. 20 Rautio (note 8), p. 1132. 21 Rautio (note 8), p. 1133. 22 Rautio (note 8), p. 1134. 23 Rautio (note 8), p. 1135; Viljanen, p. 851 (note 7).

42

D. Helenius

dd) Intent Since abuse of public office requires that the public official commit a relevant act ‘in order to obtain benefit’ or ‘in order to cause detriment or loss’, this entails dolus determinatus intent, i.e. that the offender has done something with a certain purpose. The provision does not require that the offender actually succeed in obtaining benefit or causing detriment or loss. On the other hand, the fact that he or she obtains benefit or causes detriment or loss is not sufficient in itself, if the required intent cannot be proven.24

b) Violation of Official Duty ‘Abuse of public office’ requires that official duties are violated in order to obtain benefit or in order to cause detriment or loss. The Criminal Code also prescribes criminal liability for violations of official duties in cases where no benefit was intended to be obtained or no detriment or loss was intended to be caused: Ch. 40, sec. 9 CC – Violation of official duty (1) If a public official, when acting in his or her office, intentionally in a manner other than provided above in this chapter or in chapter 11, section 9(a), violates his or her official duty based on the provisions or regulations to be followed in official functions, and the act, when assessed as a whole, taking into consideration its detrimental and harmful effect and the other circumstances connected with the act, is not petty, he or she shall be sentenced for violation of official duty to a fine or to imprisonment for at most one year. (2) The public official may also be sentenced to dismissal if he or she is guilty of the offence referred to in subsection 1 by continuously or essentially acting in violation of his or her official duties, and the offence indicates that he or she is manifestly unfit for his or her duties.

The provisions on violation of official duty are never by themselves sufficient bases for criminal liability. They are only penal provisions, and the norms upon which the public official’s official duty is based always have to be found elsewhere.25 The concept of ‘official duty’ is described above in relation to ‘abuse of public office’. Chapter 40, sec. 9 concerns violations of official duties when the public official acts in ‘his or her office’. The concept of acting while ‘in office’ should be understood in a broad sense. An act or omission that causes official duties to be handled wrongly or in an inappropriate manner should principally be regarded as having been done ‘in office’. Liability requires that the act or omission has a factual connection to the performance of official duties. In principle, the requirement of acting while ‘in office’ is not bound to the place of office or office hours. A public official can also take decisions or make comments that are part of his or her office outside of the place of office and even in situations connected to his or her private 24 25

Rautio (note 8), p. 1137. Viljanen (note 7), p. 862.

Criminal Liability of Political Decision-Makers in Finland

43

life (this concerns especially police officers, judges and higher state officials).26 In regard to persons holding a position of trust (e.g., within a municipality), acts ‘in office’ should correspondingly be understood as acts in relation to a position of trust. According to the provision, petty violations of official duty are not punishable. An act is deemed petty if it, taking into consideration the harmfulness and detriment of the act, as well as other circumstances pertaining to the act, is considered petty when assessed as whole.27 For instance, violations of such regulations of procedure that are not of significant relevance to the proper management of the office can be regarded as petty. Whether or not other types of sanctions are applicable can also be taken into consideration.28 In legal practice, significance has been given, e.g., to repeated errors and their amount, as well as whether or not detriment or loss was caused by them. Relevance has also been given to how significantly the act endangers the confidence in the due course of public actions. The Supreme Court (KKO 2000:40) has, e.g., regarded receiving of benefits in violation of sec. 15 of the Act on civil servants as a violation of official duty, even though the acts did not amount to ‘bribery violation’ (see further part 2).29 According to said section, a public official may not demand, accept or receive a financial or other benefit if it can weaken the confidence in the public official or an authority. Bribery violation requires that a gift or benefit is ‘conducive to weakening confidence in the impartiality of the actions of authorities’, while sec. 15 of the Act on civil servants only requires that it can weaken the confidence in the public official or an authority.

c) Negligent Violation of Official Duty In addition to ‘violation of official duty’, which requires intent, official duties can also be violated through negligent behaviour: Ch. 40, sec. 10 CC – Negligent violation of official duty If a public official, when acting in his or her office, through carelessness in a manner other than that referred to in section 5, subsection 2, violates his or her official duty based on the provisions or regulations to be followed in official functions, and the act, when assessed as a whole, taking into consideration its detrimental and harmful effect and the other circumstances connected with the act, is not petty, he or she shall be sentenced for negligent violation of official duties to a warning or to a fine.

Negligence implies that the offender has not followed the care and caution required by the circumstances and thereby acted in violation of his or her official duties.30 According to the general provision on criminal negligence in Ch. 3, sec.

26

Rautio (note 8), p. 1133; Viljanen (note 7), p. 847. Government Bill HE 58/1988 vp, p. 65 and Rautio (note 8), p. 1140. 28 Legal Committee Report LaVM 7/1989 vp, p. 2 and Rautio (note 8), p. 1140. 29 Rautio (note 8), p. 1141. 30 Rautio (note 8), p. 1141. 27

44

D. Helenius

7 CC: ‘The conduct of a person is negligent if he or she violates the duty to take care called for in the circumstances and required of him or her, even though he or she could have complied with it.’ The limits of a public official’s duty to care are determined based on the provisions and regulations upon which his or her official duty is based. This has already been discussed above in relation to ‘abuse of public office’. Negligence can, therefore, manifest itself in different ways, e.g. through neglecting of tasks or omitting them, by not adhering to time limits or through erroneous performance of duties, e.g. clearly wrongful application of legal provisions.31 The subsidiarity of the provisions on ‘violation of official duty’ and ‘negligent violation of official duty’ entails that they, in a way, extend the scope of application of bribery offences and abuse of public office. Especially, the application of the provisions on bribery offences is often limited by the offender’s lack of intent or the offender’s intent being restricted to circumstances that are sufficient to fulfil the requirement of intent as to violation of official duties but not accepting of a bribe or abuse of public office. As regards the punishability for offences in office, this subsidiary applicability is important and shows that the duties placed on public officials are quite broad.32 For instance, sec. 15 of the Act on civil servants prohibits a public official from demanding, accepting or receiving a financial or other benefit if it can weaken the confidence in the public official or an authority. Violating this prohibition does not nearly always lead to charges for ‘accepting of a bribe’. The lack of intent required by the provision on accepting of a bribe or the lack of other necessary elements often leads to charges being brought for ‘violation of official duty’ or, even more often, negligent ‘violation of official duty’.33 In practice, most of the sentences for offences in office are imposed for negligent violation of official duty.34

d) Conclusion All the provisions discussed above require that a public official (including persons holding a position of trust) has violated his or her official duties. In our case, it therefore has to be possible to point out a violation of such an official duty in order to hold M criminally liable.35

31

Rautio (note 8), p. 1142. Rautio (note 8), p. 1142. 33 Rautio (note 8), p. 1142. See also Viljanen (note 7), p. 861. 34 Viljanen (note 7), p. 857. 35 It can also be mentioned that the Finnish CC includes a provision on ‘misuse of a position of trust’ (Ch. 36, sec. 5) according to which a person assigned with the management of the financial or legal affairs of another, who misuses his or her position of trust (1) by undertaking an act to which he or she has no right or (2) by neglecting his or her function in full or in part and in this way causes loss to the person whose affairs he or she should manage, is sentenced for misuse of a position of trust. However, according to my knowledge this provision has never been applied in the context in question here. 32

Criminal Liability of Political Decision-Makers in Finland

45

If M was a member of the municipal council or municipal executive, he could in principle be held liable since also collegiate decision-making can bring about criminal liability. A decision such as the one in question would most likely not be taken by a single political decision-maker, but it would have to be proven that the collegially made decision is in violation of official duties. It is also possible that M could have influenced the decision-making if he is the chief executive of the municipality, who is also tasked with preparing matters for decision-making. M can very well violate his duties, e.g. by intentionally giving false information or withholding information and thereby causing the bridge to be built. However, in light of the Supreme Court’s case law referred to above, if the final decision was only based on M’s insufficient preparation of the matter (e.g., not researching possible costs and benefits sufficiently), it would seem questionable whether he can be deemed to have violated his official duties. Also, the fact that the decision to build the bridge is a matter of discretion (if M was not in fact certain that the bridge would prove unbeneficial) could entail that no official duties have been violated. The conclusion could be different if M has clearly violated municipal ordinances or regulations on, e.g., public procurement or budgetary compliance or if there was established and accepted practice that the matter should have been prepared in a certain way. Accordingly, it can be concluded that it seems difficult to hold a political decision-maker criminally liable simply for ‘bad’ decision-making to the detriment of a municipality if it is not possible to point to a sufficiently precisely defined official duty that has been violated.

2. Part 2: Criminal Liability for Pursuit of Personal Interests a) Acceptance of a Bribe If M was offered money or another benefit by the contractor in order to have the bridge built, the offence that would primarily come into question is the following provision: Ch. 40, sec. 1 CC – Acceptance of a bribe (1) If a public official, for his or her actions while in service, for himself or herself or for another, 1. asks for a gift or other unlawful benefit or otherwise takes an initiative in order to receive such a benefit, 2. accepts a gift or other benefit which influences, which is intended to influence or which is conducive to influencing him or her in said actions, or 3. agrees to the gift or other benefit referred to in paragraph (2) or to a promise or offer thereof, he or she shall be sentenced for acceptance of a bribe to a fine or to imprisonment for at most two years. (2) A public official shall be sentenced for acceptance of a bribe also if for his or her actions while in service he or she agrees to the giving of the gift or other benefit referred to in subsection 1(2) to another or to a promise or offer thereof. (3) A public official may also be sentenced to dismissal if the offence demonstrates that he or she is manifestly unfit for his or her duties.

46

D. Helenius

aa) On the Definition of Bribes The purpose behind bribery offences is to protect official duties from all types of inappropriate influences.36 The common term ‘bribe’, according to the Finnish criminal provisions on bribery offences, implies either a ‘gift’ or other ‘(unlawful) benefit’. A bribe is always some form of benefit. This entails that the position of the receiver has to, at least temporarily, be better than before.37 In order for a bribery offence to be at hand (Ch. 40, secs. 1–3 CC), the bribe does not have to consist of money; it can also be some other type of ‘benefit’ (e.g., an honorary title or a promotion). It does not necessarily have to be of any monetary value either. In principle, all benefits that can be used to influence or that are conducive to influencing the activity of a public official may be regarded as bribes.38 Even in cases where a benefit has a monetary value, it is not possible to give a specific lowest value for the unlawfulness of the benefit. However, receiving of cash should already in principle be regarded as suspicious, unless there is some kind of legal basis for it. In order for a benefit to be a bribe, it does not have to be specified as to its quantity or quality. Already a vague offering of ‘money’ can be regarded as a bribe.39 The question of how to define a benefit’s ‘unlawfulness’ is not completely clear. As a starting point, it is clear that a benefit that is given or taken in order for a public official to act in breach of his or her duties must be regarded as unlawful. But it is not always easy to prove the effects of a benefit or the intentions behind it. Therefore, also accepting a benefit that is ‘conducive’ to influencing a public official in his or her duties has been criminalised. The requirement of ‘conduciveness’ implies a so-called abstract endangerment offence, which is based on a ‘typical case’ thinking. It is not required that danger actually arises, but the actions in question typically have to be such that they result in danger.40 This entails that the benefit in question typically has to be such as to undermine the trust in the public official acting in a lawful and an impartial manner.41 The lawfulness of a benefit may also be assessed based on whether or not it was necessary for the performance of official duties. Public officials who are tasked with handling public relations can be required to take part in certain events (e.g., dinners) that include benefits. Also, the question of how customary the offering of the benefit in question is will affect the assessment. For instance, customary birthday gifts can be accepted, even though the receiver has performed duties that affect the giver.42

36

Viljanen (note 7), p. 819. Viljanen (note 7), p. 810. 38 Government Bill HE 6/1997 vp, p. 86. 39 Viljanen (note 7), p. 811. 40 D. Fr€ ande, Allma¨n straffra¨tt, 2012 (Forum Iuris, Helsingfors), pp. 85–87. 41 Viljanen (note 7), p. 812. 42 Rautio (note 8), p. 1111. 37

Criminal Liability of Political Decision-Makers in Finland

47

bb) Actions While in Service Acceptance of a bribe also requires that the benefit has been accepted by the public official ‘for his or her actions while in service’. This entails that the benefit has to be connected to the public official’s possibilities to act in his or her position of service.43 The benefit does not have to be directed at a certain action. Neither does the public official have to hold a certain position, e.g. a position that includes a power of decision. The constituent elements do not require that the public official actually uses his or her possibilities to influence. According to legal doctrine, also bribes given afterwards amount to a punishable offence since they can also be conducive to influencing the public official in his or her future actions.44 This also lessens evidentiary problems as it can be hard to prove at which point in time the bribe was given.

cc) Alternative Actions Acceptance of a bribe can be fulfilled through different alternative actions45: first, through asking for or otherwise taking an initiative in order to receive a bribe. This implies that the initiative is taken one-sidedly by the public official and does not necessarily require that the other party agrees to the bribe. Second is through accepting a bribe (which influences, is intended to influence or is conducive to influencing the public official). This requires a common understanding between both parties, which means that the public official is not liable if he was not aware of the bribe. Third is through agreeing to a bribe or to a promise thereof. In this case, the initial initiative is taken solely by the party who offers the bribe. For the public official to be exonerated from liability, this might require active measures to indicate that he or she is not willing to accept the bribe. According to the second paragraph of the section, accepting of a bribe is also at hand even though the bribe is not given directly to the public official but given to another person, under the condition that the public official, for his or her actions while in service, agrees to a bribe being given, promised or offered to another (e.g., a political party). In this case, the public official has to be aware of the bribe, while the person who is benefitted by the bribe does not necessarily have to be aware of it.46

43

Viljanen (note 7), p. 814. Viljanen (note 7), p. 816. 45 Viljanen (note 7), pp. 817 et seq. 46 Viljanen (note 7), p. 820. 44

48

D. Helenius

dd) Campaign Support Campaign support for candidates in a municipality election is allowed in accordance with the Act on a Candidate’s Election Funding (273/2009). Funding given to a candidate in accordance with the provisions in the said Act is primarily not regarded as bribery. However, if the candidate violates the provisions on, e.g., the limits of allowed funding and disclosure of received funding, liability for bribery violation is possible. This, however, requires that the candidate is either already a member of the municipal council or in fact elected.

b) Bribery Violation The Criminal Code also contains a lesser form of bribery offence47: Ch. 40, sec. 3 CC – Bribery violation If a public official, for himself or herself or for another 1. asks for a gift or other unlawful benefit or otherwise takes an initiative in order to receive such a benefit, or 2. accepts or agrees to a gift or other benefit or agrees to a promise or offer of such a gift or other benefit so that the actions are conducive to weakening confidence in the impartiality of the actions of authorities, he or she shall be sentenced, if the act is not punishable as the acceptance of a bribe or aggravated acceptance of a bribe, for a bribery violation to a fine or to imprisonment for at most six months.

aa) Distinction Between Bribery Violation and Acceptance of a Bribe The distinction between ‘bribery violation’ and ‘acceptance of a bribe’ is in some aspects rather vague. While ‘acceptance of a bribe’ requires that the bribe is conducive to influencing the public official in his or her actions while in service, ‘bribery violation’ only requires that the actions of the public official are conducive to weakening confidence in the impartiality of the actions of authorities. In practice, it is difficult to distinguish between these two requirements.48 The essential difference between ‘acceptance of a bribe’ and ‘bribery violation’ is, however, that the latter offence does not require that the bribe is explicitly connected to the public official’s actions while in service. Since the provision requires that the actions of the public official are conducive to weakening the confidence in the impartiality of the actions of authorities, there obviously has to be some form of connection, but this connection does not have to be very strict. For 47

Ch. 40, sec. 2 also prescribes an aggravated form of acceptance of a bribe. The offence is aggravated inter alia if the public official stipulates the bribe as a condition for his or her actions or it is his or her intention, because of the gift or benefit, to act in a manner contrary to his or her duties or if the gift or benefit is of significant value. 48 Viljanen (note 7), p. 824.

Criminal Liability of Political Decision-Makers in Finland

49

instance, a public official should, even as a private person, not engage in business relations with a company with which he or she is simultaneously negotiating a large entrepreneurial or procurement contract as a representative for a public sector entity.49 The requirement of the actions being conducive to weakening confidence in the impartiality of the actions of authorities again entails an abstract endangerment offence. The actions of the public official do not actually have to weaken the confidence in the impartiality of the actions of authorities; it is sufficient that the actions are of a type that usually weakens such confidence. This assessment should primarily be made from the perspective of a standard citizen.50 The provision on bribery violation is intended to prevent public officials from acting in a way that is conducive to raising suspicions about inappropriate influences in regard to actions of authorities. According to the Supreme Court, when a public official is offered gifts or other benefits, he or she should carefully assess the circumstances in regard to whether or not accepting them might endanger the confidence in the impartiality of the actions of authorities.51 A public official should be especially careful with accepting gift-natured benefits when he or she is tasked with preparing and deciding on a public authority’s procurement deals and the benefit is given by a company that is offering the public authority services or goods that the procurement is directed at. The threshold for the types of benefits that may be acceptable can be somewhat higher if the public official in question is tasked with handling the public authority’s public relations, in which case the accepting of customary hospitality is usually a part of his or her tasks. But even then, he or she should keep in mind that a company seldom offers hospitality without expecting something in return.52 When accepting gift-natured benefits, a public official should pay attention first of all to the intention behind the offered benefits. If the public official suspects that the offeror’s intent is to inappropriately influence the actions of authorities, he or she should refrain from accepting the benefit. The public official should also assess what kind of impression accepting the benefit might give to an outsider. In practice, the distinction between ‘acceptance of a bribe’ and ‘bribery violation’ seems somewhat blurred, and the courts seem to have applied the provision on ‘bribery violation’ also in cases where the constituent elements of ‘acceptance of a bribe’ are met. Even though the value of the benefit should in principle not be decisive, it would seem that in practice the decisive factor for applying the provision on bribery violation has often been the insignificant value of the benefit.53

49

Viljanen (note 7), p. 824. Viljanen (note 7), p. 828. 51 KKO 2006:37. 52 Viljanen (note 7), p. 826. 53 T. Mansikka, Suhdetoiminta harvoin lahjontaa? – Lahjusrikokset lainvalmisteluaineiston ja ennakkotapausten valossa, Defensor Legis 2/2013, p. 193. 50

50

D. Helenius

bb) Intent All bribery offences require intent; negligent acts of bribery are not criminalised (cf., however, the discussion above on ‘negligent violation of official duty’). Usually, the highest grade of intention is at hand: The public official is fully aware that he or she is receiving a bribe. But also the lowest grade of intention, i.e. dolus eventualis, could be applied. According to the Criminal Code and legal practice, the lowest form of criminal intent in Finnish criminal law requires that the offender considered a certain consequence as a ‘quite probable’ result of his or her actions or considered it quite probable that a certain criminally relevant circumstance was at hand.54 ‘Quite probable’ entails a simple probability assessment, i.e. the offender has to perceive it as more probable that a certain result will ensue than that it will not ensue or that the existence of a certain circumstance is more probable than its non-existence. As regards bribery offences, the Supreme Court has asserted that the offender’s intent also has to cover the ‘conduciveness’ requirement. Concerning bribery violation, this entails that the offender must at least consider it quite probable that an offered benefit is due to his or her official duties and that his or her actions are quite probably conducive to weakening the confidence in the impartiality of the actions of authorities.55 Consequently, in our case, it is quite possible that M could be held liable for either acceptance of a bribe or bribery violation if the benefit he was offered can be deemed unlawful and the other additionally required elements are also fulfilled.

c) Acceptance of a Bribe as a Member of Parliament The normal provisions on bribery offences do not apply to members of Parliament. However, the Criminal Code contains a separate penal provision on this matter56: Ch. 40, sec. 4 CC – Acceptance of a bribe as a Member of Parliament (1) If a member of Parliament, for himself or herself or for another 1. requests a gift or other unlawful benefit or otherwise takes an initiative in order to receive such a benefit, or

54

Fr€ ande (note 40), pp. 110 et seq. KKO 2006:37. Critical to this interpretation J. Tapani/M. Tolvanen, KKO 2006:37 ja rikosoikeuden yleisten oppien ihmemaa, Lakimies 5/2006, p. 841 and Viljanen (note 7), p. 830. They argue that the conduciveness requirement should only be regarded as an objective liability requirement that does not have to be covered by the offender’s intent. The offender’s intent can only be required to cover the nature of an offered benefit (e.g. that the benefit has a certain value), while the requirement of conduciveness should only be assessed from an objective outsider’s perspective. 56 Ch. 40, sec. 4 a also prescribes an aggravated form of acceptance of a bribe as a member of Parliament. The provision applies inter alia if the member of Parliament stipulates the gift or benefit as a condition for his or her actions or the value of the gift or benefit is considerable. 55

Criminal Liability of Political Decision-Makers in Finland

51

2. accepts or agrees to accept a gift or other unlawful benefit that is to be deemed to be other than customary hospitality or agrees to a promise or offer of such a gift or other benefit in order to act in his or her parliamentary mandate in a certain manner or for the achievement of a certain goal or as a reward for such action, and the act is conducive towards clearly undermining confidence in the independence of the exercise of the parliamentary mandate, he or she shall be sentenced for acceptance of a bribe as a member of Parliament to a fine or to imprisonment for at most two years. (2) Political campaign financing in accordance with the Act on a Candidate’s Election Funding given to a candidate is not deemed to be the giving of a bribe to a member of Parliament, unless its purpose is to circumvent subsection 1.

aa) Gifts and Unlawful Benefits It is characteristic for members of Parliament that they promise to promote the goals of different groups (such as political parties and interest groups), and financial support given by such groups should as such not be regarded as reprehensible. The tasks of a member of Parliament require close contacts with groups that support him or her, as well as becoming acquainted with the activities of different organisations and companies. Contacts with business enterprises, which might be unsuitable for public officials, do not necessarily endanger a member’s appropriate functioning in his or her tasks.57 Gifts and benefits that amount to customary hospitality are not unlawful. Customary hospitality implies that which is regarded as acceptable and appropriate for a member of Parliament, taking into consideration his or her position and tasks and the relation to the person offering the benefit. For example, ornaments or clothes that a member of Parliament receives as a gift in relation to collaboration visits are customary hospitality if the value of the gift is not significant. However, receiving of cash cannot be regarded as customary hospitality.58

bb) Candidates in Parliamentary Elections Only members of Parliament can be liable for ‘acceptance of a bribe as a member of Parliament’. Persons who are only candidates in an election and striving to become elected cannot be held liable, unless they are already members of Parliament.59

57

Rautio (note 8), p. 1119. Government Bill HE 79/2010 vp, p. 43. 59 Government Bill HE 79/2010 vp, p. 43. 58

52

D. Helenius

cc) Alternative Actions Acceptance of a bribe as a member of Parliament can essentially be committed in the same ways as ‘acceptance of a bribe’ with regard to public officials (requesting, taking initiative, accepting or agreeing to accept). Additionally, this must also be done in order to act in a certain manner or for the achievement of a certain goal or as a reward for such action. Acting in a certain manner can, e.g., refer to voting on or addressing a certain matter. Acting for the achievement of a certain goal can relate to a certain question being decided in a certain way or to acting in accordance with a certain policy agenda.60 The phrase ‘as a reward for such action’ in turn entails that also accepting or requesting a benefit in return for actions that have already taken place can be assessed as bribery. Often, a gift given afterwards will inevitably have effects that extend to the future.61

dd) Conduciveness Requirement Acceptance of a bribe as a member of Parliament requires that the act is conducive towards clearly undermining confidence in the independence of the exercise of the parliamentary mandate. The concept of ‘clearly undermining’ implies on the one hand that irregularities that have a less significant impact on the confidence should not be punishable and on the other hand that the undermining of confidence must be rather probable. The requirement of ‘conduciveness’ means that it is not necessary to show that confidence has actually been undermined in the concrete case. Rather, the conduct must to its nature be such that it is justified to expect that it in general will undermine confidence in the independence of the exercise of the parliamentary mandate.62

ee) Campaign Financing The relation between bribery offences in regard to members of Parliament and campaign financing is also regulated through the Act on a Candidate’s Election Funding. The goal of the said Act is to increase the openness of campaign financing and to give information on a candidate’s connections.63 Customary campaign financing, where the candidate is supported due to his political views, is not intended to be punished as a bribery offence. The objective of the provisions on bribery offences is to safeguard the integrity of decision-making and not the appropriateness of campaign financing. If a candidate, for instance,

60

Goverrnment Bill HE 79/2010 vp, p. 36. Goverrnment Bill HE 79/2010 vp, p. 38. 62 Goverrnment Bill HE 79/2010 vp, pp. 18–19. 63 Goverrnment Bill HE 79/2010 vp, p. 41. 61

Criminal Liability of Political Decision-Makers in Finland

53

promises one of his or her campaign donors to defend certain values that are important for the donor, giving and accepting of donations is acceptable. On the other hand, it is clear that an unlawful benefit received in connection to campaign financing does not make the benefit lawful even though it is reported as part of the campaign financing.64 Thus, political campaign financing is permitted unless its purpose is to circumvent the bribery provisions. If, however, campaign financing is not in conformity with the provisions of the Act on a Candidate’s Election Funding, e.g. in regard to the prescribed maximum amount of a contribution, or if the contribution has not been disclosed within the prescribed time period, the contribution shall in principle be regarded as inappropriate and may in the most serious cases also amount to bribery.65 Circumvention of the bribery provisions could, e.g., occur in situations where funding that is given to a member of Parliament was never intended for campaign expenses, but this is stated in order to avoid criminal liability.66 Also, the fact that the recipient of funding attempts to conceal the true amount of received funding, or its origin, may be taken into consideration.67 In the present case, it seems improbable that a member of Parliament would be in a position to influence the building of the bridge. However, it cannot be excluded that a member of Parliament could, e.g., be offered a benefit in order to vote on a certain legal proposal that would have an influence on municipal matters.

d) Conflict of Interests: Other Offences Provisions that are to be followed in official functions also concern ‘grounds for disqualification’ according to secs. 27–28 of the Administrative Procedure Act (434/2003).68 An official shall not participate in the consideration of a matter or be present during such consideration if he or she is disqualified. An official shall be disqualified, inter alia, if ‘particular benefit from the decision of the matter is foreseen for him or her’ or if ‘his or her impartiality is compromised for another special reason’. ‘Particular benefit’ implies a quantitative requirement, i.e. the benefit must be of economic significance or otherwise significant. This can be the case, e.g., if a public official who is preparing a public procurement deal owns shares in one of the bidding companies or if he or she owns real estate, the price of which might be affected by a construction project. Lesser benefits usually fall outside the provision’s scope of application, but the situation nevertheless has to be assessed as a whole.69

64

Rautio (note 8), p. 1120. Goverrnment Bill HE 79/2010 vp, p. 19. 66 Goverrnment Bill HE 79/2010 vp, p. 42. 67 Supreme Court judgment KKO 2016:39. 68 Supreme Court judgment KKO 2016:39 and Viljanen (note 7), p. 858. 69 O. M€ aenp€ aa€, Hallinto-oikeus, 2013 (Sanoma Pro Oy, Helsinki) p. 393. 65

54

D. Helenius

It can also be mentioned that, as regards members of the Government, sec. 63 (2) Const. requires that ministers shall ‘without delay after being appointed, present to the Parliament an account of his or her commercial activities, shareholdings and other significant assets, as well as of any duties outside the official duties of a minister and of other interests which may be of relevance when his or her performance as a member of the Government is being evaluated’. The objective of the provision is to enable the control of a minister’s actions and prevent the influence of outside connections on his or her actions. The obligation to report any outside connections also makes it possible to take into account any incompetence due to the likelihood of bias. In our case, if M as partner of a potential contractor can foresee particular benefit from the decision on the matter (or his impartiality is otherwise compromised), he would be disqualified from taking part in the decision-making. He would then have to disqualify himself from the whole procedure. If M omits to do this, the case could be deemed a ‘violation of official duty’ or ‘negligent violation of official duty’. If M strives to attain a financial benefit or other benefit from the project, the case could also be regarded as ‘abuse of public office’ (see part 1).

III. Special Sanctions Applicable to Politicians Offences in office differ from other penal provisions in the Criminal Code in regard to the available sanctions. In addition to a fine and imprisonment, possible sanctions include ‘warning’ and ‘dismissal from office’.70 A warning in accordance with Ch. 6, sec. 1(3) CC is a special sanction for public officials that is imposed by a court. A warning can only be imposed for ‘negligent violation of official duty’ according to Ch. 40, sec. 10 CC. It is intended as a more lenient criminal sanction than a fine. An administrative warning is also possible in accordance with sec. 24 of the Act on civil servants (750/1994). The Chancellor of Justice and the Parliamentary Ombudsman can also give a public official a remark, which is not regarded as a criminal sanction (Act on the Chancellor of Justice (193/2000), sec. 6 and Ordinance of the Parliamentary Ombudsman, sec. 10). Chapter 2 CC prescribes two different types of dismissal from office: general dismissal (sec. 10) and limited dismissal (sec. 7). Chapter 2, sec. 10 is a general provision on dismissal from office. According to it, a public official, a person holding a position of trust or a person who exercises public authority who is sentenced to life imprisonment shall also be dismissed from office. He or she shall be dismissed also if he or she is sentenced to imprisonment for a fixed period that is at least 2 years, unless the court deems that the offence does not demonstrate that he or she is unsuitable to serve as a public official or to attend to a public function. If a person referred to above is sentenced for an intentional offence to imprisonment for a period that is less than 2 years, he or she may at the

70

Rautio (note 8), p. 1104.

Criminal Liability of Political Decision-Makers in Finland

55

same time be dismissed from office if the offence demonstrates that he or she is apparently unsuitable to serve as a public official or to attend to the public function. In this regard, however, members of a municipal council enjoy a special status.71 Members of a representative body of a public entity who have been elected in a general election cannot be dismissed from office by virtue of this section but can only be dismissed due to an offence in office. Limited dismissal from office in accordance with Ch. 2, sec. 7 entails the loss of the office or public position in which the offence was committed. Limited dismissal is only possible when it is mentioned in a criminal provision, and it can only be imposed for an offence in office. In regard to more serious offences in office, dismissal is usually an unconditional sanction (e.g., for ‘aggravated abuse of public office’). As regards more lenient offences in office (e.g., ‘violation of official duties’), the dismissal is left to the court’s discretionary assessment of whether the offence indicates that the public official is manifestly unfit for his or her duties. If the public official has transferred from the office in which the offence was committed to another corresponding office, dismissal from office also includes this office. However, if the public official is no longer in office (or not in a corresponding office) when the judgment is given, dismissal is not possible. Neither is it possible to impose an alternative sanction instead of it. This is not affected by whether or not the public official has resigned from the office or whether his or her service has ended due to administrative measures.72 Dismissal from office in regard to persons holding a position of trust (e.g., a member of a municipal council) correspondingly implies dismissal from the position of trust in question. In principle, dismissal from a position of trust does not prevent the person from being re-elected to the same position in the following municipality elections. Accordingly, it is not possible to dismiss a member of the municipal council from his or her position of trust if he or she has been re-elected after committing an offence.73 This correspondingly also applies to dismissal from office more generally. Dismissal only concerns the current office of the offender but is not permanent, i.e. the offender is not prohibited from acting as a public official in the future.

IV. Immunities and Other Limitations of Criminal Liability In general, politicians in Finland are not granted any special immunity. However, the threshold for bringing of charges is in some cases higher than normal, which entails that it can in fact be harder to prosecute political decision-makers than ‘normal’ offenders (see infra V.). 71

Rautio (note 8), p. 1106. Rautio (note 8), p. 1105. 73 Rautio (note 8), p. 1106. 72

56

D. Helenius

Members of parliament do, however, enjoy a limited immunity. Section 30 Const. concerns ‘parliamentary immunity’: A Representative shall not be prevented from carrying out his or her duties as a Representative. A Representative shall not be charged in a court of law nor be deprived of liberty owing to opinions expressed by the Representative in the Parliament or owing to conduct in the consideration of a matter, unless the Parliament has consented to the same by a decision supported by at least five sixths of the votes cast. If a Representative has been arrested or detained, the Speaker of the Parliament shall immediately be notified of this. A Representative shall not be arrested or detained before the commencement of a trial without the consent of the Parliament, unless he or she is for substantial reasons suspected of having committed a crime for which the minimum punishment is imprisonment for at least six months.

The provision on immunity is not intended as a separate privilege in comparison to other citizens. Due to historical reasons, the provision is mainly intended to ensure that a representative’s functions and his or her freedom of speech are not improperly restricted through official measures.74 The provision sets a higher threshold for the use of coercive measures than is normally the case according to the Act on Coercive Measures (806/2011) in order to secure the freedom of action of representatives. The purpose of the provision is to guarantee that a representative is not disturbed in the performance of his or her duties.75 Bringing of charges against a representative due to opinions expressed by the representative in the Parliament or owing to conduct in the consideration of a matter (e.g., voting) has a higher threshold than usual; it requires that at least five-sixths of the Parliament vote in favour. This entails that larger parties can in principle prevent their members from being charged and deprived of their liberty.76 The scope of the immunity afforded to representatives is restricted to ‘opinions expressed by the Representative in the Parliament’ and ‘conduct in the consideration of a matter’. The restriction on the bringing of charges only concerns acts (addresses, letters, voting) that are directly related to the representative’s duties and participation in decision-making in plenary sessions, committees and other parliamentary organs. It is somewhat unclear whether the immunity also extends to situations outside of Parliament (e.g., official trips abroad). Since the provision refers to acts ‘in the Parliament’, they should arguably not be applied to such situations.77 Although not an immunity per se, it can also be noted that the President of the Republic shall not be called as a witness and cannot be forced to witness against his or her will (Ch. 17, sec. 32 of the Code of Judicial Procedure (4/1734)).

74

I. Saraviita, Perustuslaki, 2011 (Talentum, Helsinki), p. 348. Saraviita (note 74), pp. 348–349. 76 Saraviita (note 74), p. 349. 77 Saraviita (note 74), p. 351. 75

Criminal Liability of Political Decision-Makers in Finland

57

V. Special Courts and Special Procedural Requirements Special procedures pertaining to political decision-makers are governed by several legal acts. On the municipal level, procedural provisions are found in the Local Government Act. Also, constitutional provisions afford certain groups of persons exceptions from the normal criminal procedure and the general grounds for criminal liability. These include the President of the Republic, members of the Government (ministers) and members of Parliament (representatives).

1. Municipalities The municipal executive primarily supervises the lawfulness of the municipal council’s actions. According to sec. 96 of the Local Government Act: ‘If the local executive deems that a local council decision was made out of sequence or that the local council has exceeded its authority or that a decision is otherwise unlawful, the local executive must not put the decision into effect. The matter must then be brought for reconsideration by the municipal council without delay.’ However, it should also be noted that members of the municipal executive are usually also members of the municipal council, which essentially means that the municipal council to a large extent governs the legality of its own actions. The provision concerning supervision in sec. 96 concerns decisions by the municipal council, and the council is a multi-member organ. Section 85(2–3) concerns ‘Wrongful acts in a position of trust’ and thus relates to individual members’ actions preceding a judgment. According to the provision: If there is probable cause to suspect that an elected official has, in a position of trust, committed an offence in office or otherwise acted contrary to his or her obligations, the municipal executive must demand an explanation from the party concerned and, if necessary, notify the municipal council of the matter. If an offence in office has manifestly been committed, a report of an offence shall be completed without delay. [. . .] The municipal council may suspend an elected official for the duration of the investigation or legal proceedings. Before the local council meets, the council’s chairperson may make an interim decision concerning suspension. A suspension decision may be put into effect immediately.

Section 86 of the Local Government Act concerns ‘Criminal acts outside a position of trust’. The provision firstly provides that If an elected official is charged with a crime where the nature of the crime or the way in which it was perpetrated suggest that the official cannot attend to his or her position of trust in the required manner, the municipal council may suspend the elected official for the duration of the legal proceedings. A suspension decision may be put into effect immediately.

A decision on suspension according to sec. 86 can thus be made when charges are brought, while suspension in accordance with sec. 85 concerning acts in a

58

D. Helenius

position of trust is possible already at an earlier stage, when the ‘investigation’ is initiated. Section 86 further provides that ‘If an elected official is sentenced to at least six months in prison under a legally valid judgement after being elected, the local council may remove him or her from the position of trust. The decision shall take effect immediately.’ Consequently, it is possible that a member of a municipal council can be removed from his or her position of trust also in cases where dismissal from office is not possible according to the provisions of the Criminal Code (cf. supra III). Section 34 of the Local Government Act concerns ‘Removal of elected officials before the end of their term’. It states: (1) The municipal council may remove the elected officials it has elected to a decisionmaking body of the municipality or of a joint municipal authority or to a joint municipal decision-making body before the end of their term if all or some of them do not enjoy the confidence of the council. A removal decision shall apply to all the elected officials of the decision-making body. [. . .] (3) The municipal council may remove the mayor and deputy mayor before the end of their term if they do not enjoy the confidence of the council. (4) The matter shall be initiated at the proposal of the municipal executive or if at least a quarter of municipal councillors submit an initiative to this effect.

Section 43 concerns the ‘Dismissal of the chief executive or transfer to other duties’. According to the provision: (1) A municipal council may dismiss the chief executive or transfer him or her to other duties if the chief executive no longer enjoys the confidence of the council. (2) The matter shall be initiated at the proposal of the municipal executive or if at least a quarter of municipal councillors submit an initiative to this effect. When the matter is being prepared, the chief executive must be notified of the basis for the loss of confidence and must be given an opportunity to be heard. (3) For the decision referred to in subsection 1 above to be taken, it must be supported by two thirds of all the municipal councillors. The decision can be put into effect immediately. The chief executive can be relieved of his or her duties at the same time.

The dismissal of a chief executive should be based not only on political but also on legal considerations. The legal protection of the chief executive requires that the grounds for dismissal are clearly stated and that he or she is given the opportunity to be heard.78 The dismissal must have justified reasons and should not be done only to ‘get rid of’ the chief executive.79 Lack of confidence is not sufficient as such, but the dismissal must also be due to substantial and sufficient reasons, e.g. deficient leadership skills, defective preparation of council or executive matters or deficient management of the municipalities’ interests.80 The same essentially also applies in case of removal of elected officials.81

78

See Government Bill HE 192/1994 vp, p. 88. Government Bill HE 72/2002 vp, p. 55. 80 Harjula/Pr€ att€ al€ a (note 2), pp. 358–359. 81 Harjula/Pr€ att€ al€ a (note 2), p. 313. 79

Criminal Liability of Political Decision-Makers in Finland

59

2. President of the Republic, Government and Parliament As regards the prosecution of certain higher officials, it should first of all be noted that the Constitution provides a separate forum with exclusive competence to handle criminal charges. According to sec. 101 Const., the High Court of Impeachment deals with charges brought against a member of the Government, the Chancellor of Justice, the Parliamentary Ombudsman and a member of the Supreme Court or the Supreme Administrative Court for unlawful conduct in office.82 The High Court of Impeachment consists of the President of the Supreme Court, presiding, and the President of the Supreme Administrative Court; the three most senior-ranking Presidents of the Courts of Appeal; and five members elected by the Parliament for a term of 4 years. The President of the Republic enjoys a certain protection from prosecution. Section 113 Const. concerns the ‘Criminal liability of the President of the Republic’: If the Chancellor of Justice, the Ombudsman or the Government deem that the President of the Republic is guilty of treason or high treason, or a crime against humanity, the matter shall be communicated to the Parliament. In this event, if the Parliament, by three fourths of the votes cast, decides that charges are to be brought, the Prosecutor-General shall prosecute the President in the High Court of Impeachment and the President shall abstain from office for the duration of the proceedings. In other cases, no charges shall be brought for the official acts of the President.

A decision on the bringing of charges against the President at the High Court of Impeachment is made by the Parliament. If the Parliament, by three-fourths of the votes cast, decides that charges are to be brought, the Prosecutor-General acts as prosecutor. The Prosecutor-General does not have normal discretion in the matter since the decision to prosecute is made by the Parliament. The matter is prepared in the Constitutional Law Committee of the Parliament, which gives its reasoned opinion on the matter.83 Section 114 Const. concerns the ‘Prosecution of Ministers’: A charge against a Member of the Government for unlawful conduct in office is heard by the High Court of Impeachment, as provided in more detail by an Act. The decision to bring a charge is made by the Parliament, after having obtained an opinion from the Constitutional Law Committee concerning the unlawfulness of the actions of the Minister. Before the Parliament decides to bring charges or not it shall allow the Minister an opportunity to give an explanation. When considering a matter of this kind the Committee shall have a quorum when all of its members are present. A Member of the Government is prosecuted by the Prosecutor-General.

A charge against a minister at the High Court of Impeachment can only be brought following a special procedure where the Parliament as a political organ has

82

Since its establishment in 1922, the High Court of Impeachment has only convened four times: in 1933, 1953, 1961 and 1993. 83 Saraviita (note 74), p. 941.

60

D. Helenius

a central role as decision-maker.84 According to sec. 60(2) Const., ‘ministers are responsible before the Parliament for their actions in office’. The effectiveness of this supervisory function requires that the Parliament is able to genuinely supervise the actions of ministers and on its own initiative initiate an investigation into the lawfulness of a minister’s actions and refer the matter to an independent court. The Constitutional Law Committee gives the Parliament an ‘opinion concerning the unlawfulness of the actions of the minister’. This opinion is not intended to be a precise indictment, even when the Committee considers that a minister has acted unlawfully.85 The opinion of the Committee does not legally prevent the Parliament from deciding either to bring charges or not to bring charges contrary to the Committee’s opinion. Even though the Committee is of the opinion that the requirements for charges to be brought are not met, it has in practice nevertheless deemed it appropriate to direct socio-political critique at ministers in its opinion for, e.g., careless behaviour.86 Section 115 Const. concerns the ‘Initiation of a matter concerning the legal responsibility of a Minister’: An inquiry into the lawfulness of the official acts of a Minister may be initiated in the Constitutional Law Committee on the basis of: 1. A notification submitted to the Constitutional Law Committee by the Chancellor of Justice or the Ombudsman; 2. A petition signed by at least ten Representatives; or 3. A request for an inquiry addressed to the Constitutional Law Committee by another Committee of the Parliament. The Constitutional Law Committee may open an inquiry into the lawfulness of the official acts of a Minister also on its own initiative.

It can be noted that the Chancellor of Justice is generally charged with supervising the lawfulness of the official acts of the Government and the President of the Republic (sec. 112 Const.). The requirement of at least 10 representatives signing a petition to commence an inquiry is aimed at eliminating politically motivated petitions. On the other hand, this minimum limit should not make the threshold for a petition so high as to factually prevent unlawful acts of ministers from being investigated. Other committees should only resort to a request for an inquiry when there is reasonable ground to suspect that a minister has committed an unlawful act. They are not entitled to inquire into the unlawfulness of an act on their own, but the matter must always be referred to the Constitutional Law Committee.87 Section 116 Const. further concerns the ‘Preconditions for the prosecution of a Minister’:

84

Rautio (note 8), p. 1146. Saraviita (note 74), p. 943. 86 Saraviita (note 74), p. 945. 87 Saraviita (note 74), p. 951. 85

Criminal Liability of Political Decision-Makers in Finland

61

A decision to bring charges against a Member of the Government may be made if he or she has, intentionally or through gross negligence, essentially contravened his or her duties as a Minister or otherwise acted clearly unlawfully in office.

Bringing of charges against a minister is dependent upon a separate threshold for prosecution. Section 116 is not intended as a penal provision (although it does contain substantive requirements) but concerns ‘preconditions for prosecution’. The assessment of the unlawfulness of a minister’s action must be done in light of the penal provisions on ‘offences in office’ in Ch. 40 CC (see supra I.1). According to Ch. 40, sec. 11(2), these provisions also apply to members of the Government. The requirements for bringing of charges against a minister are considered important in order to guarantee the functioning of the political system and the Government. The presumption is that charges are not brought against a minister for lesser procedural mistakes. The heightened threshold is also intended to prevent the bringing of charges without reason or for primarily political reasons. It is, however, not intended to protect individual ministers but rather the functional prerequisites of the Government as a whole.88 The substantive requirements for bringing of charges against a minister are firstly that he or she has either acted intentionally or through gross negligence. This means, inter alia, that a minister cannot be prosecuted for ‘negligent violation of official duty’ (Ch. 40, sec. 10 CC) if his or her negligence is only deemed to be of a ‘normal’ form. For instance, in 2011, the Constitutional Law Committee asserted that the former Prime Minister was guilty of ‘negligent violation of official duty’ for having taken part in a decision-making that he was disqualified from. However, the Committee decided that charges could not be brought since his behaviour had not been ‘grossly’ negligent.89 Bringing of charges further requires that a minister has ‘essentially contravened his or her duties’. Thus, a process cannot be initiated if a minister has only contravened his or her duties to a lesser degree. Charges can also be brought if a minister has ‘otherwise acted clearly unlawfully in office’. This in turn entails a higher evidentiary threshold as regards the consideration of charges.90 As regards members of Parliament, the normal provisions on dismissal from office do not apply. Instead, corresponding provisions are found in the Constitution. Section 28 concerns ‘Suspension of the office of a Representative and release or dismissal from office’: If a person elected as a Representative has been sentenced by an enforceable judgment to imprisonment for an intentional offence or to a punishment for an electoral offence, the Parliament may inquire whether he or she can be allowed to continue to serve as a Representative. If the offence is such that the accused does not command the trust and respect necessary for the office of a Representative, the Parliament may, after having

88

Saraviita (note 74), p. 954. Constitutional Law Committee report PeVM 10/2010 vp. 90 Saraviita (note 74), p. 955. 89

62

D. Helenius obtained the opinion of the Constitutional Law Committee, declare the office of the Representative terminated by a decision supported by at least two thirds of the votes cast.

In order to safeguard the legitimacy and authority of the Parliament, the provision enables the Parliament to decide whether a representative who has been sentenced by an enforceable judgment to imprisonment for an intentional offence or to a punishment for an electoral offence should be allowed to continue as a member of Parliament. If the offence shows that the representative does not command the necessary trust and respect, his or her representative position can be terminated. The Constitutional Law Committee gives its opinion on whether these requirements are met, and the Parliament decides on the matter. The decision cannot be appealed.91 The wording of the provision does not unequivocally state whether it only applies to judgments given after parliamentary elections. However, it would seem clear that it can only be applied in situations where the requirements are met after an election (i.e., ‘a person elected . . . has been sentenced’). Apparently, the intention is that only the voters should assess which significance should be given to judgments given before an election and that the provision does not apply in these situations.92 The wording of the provision also seems to indicate that the legal effects of an enforceable judgment are restricted to the electoral period during which it is given. In other words, a sentence does not permanently prevent a person from acting as a member of Parliament, and neither does a decision by the Parliament to terminate the office of the representative.93 The special procedures discussed above in effect also act as a sort of safeguard against politically motivated prosecution. Also, Finnish prosecutors are essentially independent and cannot be ordered to initiate or to not initiate a prosecution by a higher prosecutor. However, in accordance with sec. 10(2) of the Act on the Prosecution Service (439/2011), the Prosecutor-General may take over a case from a subordinate prosecutor or assign a subordinate prosecutor to a case where the Prosecutor-General has decided a charge is to be brought. In addition, the Prosecutor-General may assign a case to a subordinate prosecutor for consideration of possible charges. It should also be noted that most offences fall under the prosecutor’s exclusive right to bring charges, which entails that a private party can only bring charges after a decision by the prosecutor not to bring charges. Dan Helenius is University lecturer at the University of Helsinki.

91

Saraviita (note 74), p. 336. Saraviita (note 74), p. 338. 93 Saraviita (note 74), p. 338. 92

Criminal Liability of Political Decision-Makers in France Guillaume Chetard

I. Preliminary Remarks 1. Two Types of Administrative Authorities: Who Are the Political Decision-Makers? A few introductory words might be needed on who exactly is to be called a ‘political decision-maker’ in our case. In French administrative law, there are two main categories of local authorities: territorial communities (collectivite´s territoriales) and local State administrations (administrations d’Etat). The former include, among others, municipalities, and the latter include, also among others, the prefects (Pre´fets). Each of them holds important decision-making powers on local administration and policing, and thus both may be called ‘public decision-makers’ in a broad sense. The difference is that State administrations, such as prefects, are subordinate agents of the central State: they are civil servants, are not elected, and they don’t hold any autonomous competence independently from the local execution of national policies. They are merely charged with exerting the State’s competence on a local level. On the contrary, although they too are administrative bodies, territorial communities are not subordinate to the State: they are ‘self-governing’ (one might rather say ‘self-administered’), and their decision-making organs are elected councils. Article 72 of the French Constitution (Const.) provides:

Most cases cited in this contribution can be accessed by entering their case number at http:// legifrance.gouv.fr/initRechJuriJudi.do. G. Chetard (*) Universite´ de Strasbourg, Strasbourg, France e-mail: [email protected] © Springer International Publishing AG 2017 F. Zimmermann (ed.), Criminal Liability of Political Decision-Makers, DOI 10.1007/978-3-319-52051-3_5

63

64

G. Chetard The territorial communities of the Republic shall be the [communes], the [de´partements], the [re´gions], [and] the special-status communities and the overseas territorial communities to which article 74 applies. Any other territorial community created, if need be, to replace one or more communities provided for by this paragraph shall be created by statute. Territorial communities may take decisions in all matters arising under powers that can best be exercised at their level. In the conditions provided for by statute, these communities shall be self-governing through elected councils and shall have power to make regulations for matters coming within their jurisdiction.1

With this self-administration competence comes a budget that is also independently managed by the territorial community, as provided for under Art. 72-2 Const.: Territorial communities shall enjoy revenue of which they may dispose freely in the conditions determined by statute. They may receive all or part of the proceeds of taxes of all kinds. They may be authorised by statute to determine the basis of assessment and the rates thereof, within the limits set by such statutes. Tax revenue and other own revenue of territorial communities shall, for each category of territorial community, represent a decisive share of their revenue.

As a consequence, I will leave aside the criminal liability of State administrations, especially that of prefects: although their criminal liability may be engaged due to a wrongful use of their public decision-making competence, I will consider them to be mere public administrators and not political decision-makers in a narrow sense.2

2. Decision-Making in Territorial Communities: Who Decides What? Several layers of competence are distributed between territorial communities based on their geographical area of jurisdiction and the scope of, e.g., an infrastructure project they may have to decide on. As a consequence, depending on the location and size of the bridge in our case, its funding might fall under the jurisdiction of one or several communes (municipalities), de´partements (counties) or re´gions, or any combination of the above. However, the basic principles regarding the functioning of these public bodies are very similar. All of them are governed by an elected council, which holds the main decision-making power. The council elects among its

1

Constitution du 4 octobre 1958: http://www.conseil-constitutionnel.fr/conseil-constitutionnel/ francais/la-constitution/la-constitution-du-4-octobre-1958/texte-integral-de-la-constitution-du-4octobre-1958-en-vigueur.5074.html; official translation available at http://www.conseilconstitutionnel.fr/conseil-constitutionnel/english/constitution/constitution-of-4-october-1958. 25742.html. 2 The case of mayors is slightly particular, as they are both presidents of their community’s council and a local State authority. See part 1 of my paper on criminal liability for accidents (in this volume, last chapter of part II) for more precisions.

Criminal Liability of Political Decision-Makers in France

65

members a council president (or, for communes, a mayor), who then represents the territorial community, presides over the council’s deliberations and supervises the execution of its decisions. This means that the president or mayor is, first and foremost, an executive agent of the council and not a decision-maker strictly speaking. Thus, in most cases, the personal liability of a mayor or of a council president may be engaged, not because of their own decision-making but either for wrongfully executing the council’s decisions or for abusing their presidency in a decision-making procedure.

3. Criminal Liability of Council Members for Collective Deliberations There is, in principle, no collective criminal liability for taking part in an illegal deliberation of a public body in French criminal law. The current state of the law is mainly based on two judgements of the Cour de Cassation regarding discrimination cases.3 In the first case, a municipal council had refused to provide two nursery schools with ‘any supplies, except heating’ because the number of children ‘from foreign nationalities’ in the classes was judged excessive by the council members. However, the Cour de Cassation judged that, as this decision had been taken by a collegial organ, it could not be imputed to the individual liability of the voters. The second judgement brought an important exception to this rule. Another municipal council had decided to grant a one-time allowance to any inhabitants who were having a baby, under the condition that at least one of the parents must either be French or have the nationality of an EU country. This time, however, the Cour de Cassation approved the conviction of two individual members of the council. One of them was a deputy of the mayor: he was the project’s rapporteur before the council and the one who had opened the voting procedure. Also convicted was the mayor who, although she was not present at the council’s meeting when the decision was taken, had endorsed it and publicly presented herself as its originator. The Cour de Cassation considered that, ‘independently from the vote of the municipal council’s deliberation’, both of them had ‘personally participated in the offence’. Thus, although a council member may not be criminally liable for their mere vote in an illegal decision, the initiators of that decision, without whom it could not have been taken, may be held personally responsible for it.4 The main grounds for that solution seems to be the principle of personal liability: one may not be

Cour de Cassation, Chambre criminelle (Crim.), case n
97-81653, 11 May 1999 (Bulletin des arreˆts de la Chambre criminelle (Bull. Crim.), 1999, n
93); Crim., case n
01-85650, 17 December 2002 (Bull. Crim. 2002, n
227). 4 See, in particular, Y. Mayaud, De´libe´ration colle´giale et responsabilite´ personnelle du maire
a propos d’une prime discriminatoire de naissance, Revue de science criminelle et de droit pe´nal compare´ (RSC) 2003, p. 556. 3

66

G. Chetard

convicted for the votes of others, although one may be convicted for knowingly enticing others into taking an illegal decision. One may also refer to the principle of territorial self-administration: in a way, collective decisions in territorial councils are ‘more’ political (more democratic) than, for instance, decisions taken by a mayor: the council is the deliberative organ, which decides on the local policies, whereas the mayor or president is an executive arm and is entrusted with limited powers in order to perform their duties. Thus, self-administered local democracy would justify a less stringent form of control in favour of collective decisionmaking. Moreover, the corporate criminal liability of territorial communities has been admitted in French law since the reform of the French Code Pe´nal (Penal Code— PC) came into force on 1 March 1994. One might intuitively admit that, for a given illegal act, only two criminal liabilities could be engaged: that of the legal person that adopted the act and that of the council member who took the initiative to propose it.5 From a more historical viewpoint, it should be noted that the self-administration of territorial communities is still quite recent in the French system. Until 1982, a prefect had a duty to control the legality of any acts of the territorial bodies under their jurisdiction, and they could directly annul an illegal act without prior judicial review. This administrative review system still exists nowadays. However, the prefect may now only transmit an illegal act to the competent administrative court, and they cannot annul it themselves any more. The idea remains, however, that the territorial communities’ decisions are to be reviewed primarily by administrative authorities and administrative judges, with the criminal courts only playing a subsidiary role. Thus, criminal liability will mainly intervene, not to rectify the wrongness or badness of a decision in itself, which is the duty of the administrative courts, but rather in reaction to a fraud or a misappropriation of a public decisionmaking procedure for private interests. This idea, which is somehow coherent with the traditional French conception of criminal law being mostly private law, will permeate through the following developments.

II. Comparative Case Study 1. Part 1: Criminal Liability for Bad Political Decisions Two offences are provided for in the Penal Code to punish public decision-makers who misuse of their power: purloining of public property (Art. 432-15) and favouritism (Art. 432-14).

5

It has been argued (Mayaud, note 4), however, that territorial communities may not be prosecuted at all for collective decisions, as local democracy is an undelegable activity. On this point, see my contribution on criminal liability for accidents in this volume.

Criminal Liability of Political Decision-Makers in France

67

a) Purloining of Public Property Under Art. 432-15 PC6: The destruction, misappropriation or purloining of a document or security, of private or public funds, papers, documents or securities representing such funds, or of any other object entrusted to him [as part of their functions], [when] committed by [a] person holding public authority or discharging a public service mission, a public accountant, a public depositary or any of his subordinates, is punished by [a maximum of] ten years’ imprisonment and a fine of [up to € 1.000.000, the amount of which may be increased up to a maximum of twice the worth of the benefit that was produced by the offence]. Attempt to commit the [de´lit] referred to under the previous paragraph is subject to the same penalties.

Three constitutive elements may be distinguished: the offence may only be committed by a person entering one of the listed categories; that person must have been entrusted with public property as part of their functions, which they must then have destroyed, purloined or misappropriated; and they must have done so intentionally.7

aa) Personal Scope of Art. 432-15 Purloining of public property may only be committed by ‘a person holding public authority or discharging a public service mission, a public accountant, a public depositary or any of his subordinates’. As we are focusing on the criminal liability of decision-makers, only the two first categories will be of interest for us. Both were inserted into the Penal Code as part of the 1994 reform, to replace and clarify the former notion of ‘public servant’; both are conceived quite broadly in case law, although the exact criteria are not entirely clear.8

6 All excerpts from the French Penal Code were taken from the official translation available at http://www.legifrance.gouv.fr/affichCode.do?cidTexte¼LEGITEXT000006070719& dateTexte¼20060701, with minor modifications from my part (between brackets), such as updating the currency or taking into account more recent reforms. 7 On a side note, purloining of public property may be considered a special case of breach of trust, a broader offence provided for under Art. 314-1 PC. Breach of trust consists in the purloining, destruction or misappropriation of goods, titles (...) by a person who has been entrusted with them in order to give them back or make a determined use of them beforehand. Art. 432-15 applies when, additionally, the purloining is committed by a person abusing their public function. Otherwise, the constitutive elements in the two offences are very similar. 8 See S. Corioland, Responsabilite´ pe´nale des personnes publiques (I—Infractions non intentionnelles), in: Re´pertoire Dalloz de droit pe´nal et de proce´dure pe´nale, §§ 26-34. M. Wagner, Le droit pe´nal spe´cial et les fonctions publiques: une illustration des affres de la pe´nalisation
a outrance, RSC 2011, p. 37.

68

G. Chetard

A person is ‘holding public authority’ if they have ‘a decision-making power based on the part of public authority that is provided to them by their functions’.9 This includes the President of the Republic,10 ministers,11 prefects12 and, of course, police officers,13 among others. Also included in this category are mayors and their deputies14 as they run their municipality’s executive branch. The same can be said of presidents of the elected councils in de´partements and re´gions and their deputies. However, other members in a territorial community’s council, although they are elected, are not considered to hold public authority: their decision-making power is merely deliberative and does not allow them, for instance, to issue a direct order to other members of the local administration. This also excludes members of Parliament from the first category. However, these elected decision-makers could be considered as being ‘discharging a public service mission’, in that the ends of their mandate is to serve the public interest. This broader category includes any person charged with ‘any public service, either temporarily or permanently, either voluntarily or under the command of the authorities’.15 Thus, basically any political decision-maker may enter the scope of Art. 432-15, given that the offence is committed in their duties.

bb) Objective Element: The Act of Purloining Entrusted Property There is purloining of public property only if the agent has been entrusted with that property as part of their functions and then destroys, purloins or misappropriates that property. Article 432-15 protects both corporeal and incorporeal goods, so it does not matter whether the offender literally had a hold on the purloined goods or they were merely entrusted with the power to manage them. For instance, a mayor or a territorial community council’s president is charged with executing and managing the community’s spending after the corresponding operations have been authorised by the council. Thus, that mayor or council president may be convicted of purloining if they abuse that power and carry out unauthorised expenses.16

Colcombet, parliamentary report n
2244, vol. 1: Expose´ ge´ne´ral. Examen des articles, 1991, Assemble´e nationale, p. 124. Masson, parliamentary report n
274, Rapport pre´sente´ au nom de la commission des lois portant sur la loi portant re´forme des dispositions du code pe´nal relatives
a la re´pression des crimes et de´lits contre la nation, l’E´tat et la paix publique, p. 77. 10 Crim., case of 15 January 1904 (Bull. Crim., 1904, n
209). 11 Cour d’Appel d’Aix-en-Provence, 6 November 1903 (Droit pe´nal, 2/1904, n
162). 12 Crim., case of 15 February 1902 (Bull. Crim., 1902, n
75). 13 Crim., case of 18 June 1969 (Bull. Crim., 1969, n
203). 14 Crim., case of 17 November 1944 (Bull. Crim., 1944, n
182). 15 Colcombet (note 9), p. 124. However, other articles in the Penal Code also provide for a third category, consisting in persons who are ‘holding a public electoral mandate’. The case-law has not yet determined whether the same public functions may belong both to ‘public service’ and to ‘public electoral mandate’ at the same time (in which case, Art. 432-15 may apply to members of Parliament and of public councils), or whether these categories are mutually exclusive. 16 Crim., case n
99-88139, 18 October 2000 (Bull. Crim., 2000, n
301). 9

Criminal Liability of Political Decision-Makers in France

69

What about council members? Is a territorial community’s council merely entrusted with the community’s funds, or does the principle of self-administration mean that they may use those funds as they see fit? It may be difficult to give a definitive, unambiguous answer as council members cannot be held criminally liable for their mere individual votes in a collegial decision (see supra I.3.). However, at least two situations may be considered. First, there is a somewhat flexible limitation on the kinds of spending a given territorial community may undertake: an operation will be illegal if it is not linked to the local public interest. However, the legislator has not defined the notion of ‘local public interest’, and the administrative judges appreciate it on a case-by-case basis.17 Moreover, that hypothesis, to my knowledge, has never led to a criminal conviction yet. A second, more stringent limit to the budgetary autonomy of territorial communities is that of mandatory spending,18 which must be included in the community’s budget, either because a statute provides so19 or because it corresponds to debts that are due for payment. A situation may then arise where a community’s budget provides for the credits corresponding to a mandatory spending, but the council, or one of its committees, then decides to allocate those credits to a different operation. For instance, between 1995 and 1997, the Conseil Ge´ne´ral (elected council governing a de´partement) of Southern Corsica had provided for the credits related to the funding of the minimum revenue benefit, a mandatory spending. However, the council’s competent committee then decided to distribute those funds to professional football clubs and players. The president of the council was then convicted of purloining because he had ‘personally participated in the attribution of those credits’.20 However, it should be noted that he was convicted not only for having initiated the Committee’s decision, for which he was rapporteur, but also for having carried out that spending as head of the De´partement’s executive. It is not entirely clear whether the solution would have been the same had he been a mere council member without executive power. What are the consequences in our case study? Article 432-15 PC is not about whether money has been spent well or about whether a given project, such as a bridge, makes sense on any grounds. The question is rather: did money go where it was supposed to be going? Thus, the decision to have C-City bridge built may ground a purloining conviction only in two situations: either because the mayor has signed the building contract or order or has paid for the construction without prior

17 J.-L. Albert, Chapitre 2 (Folio n
72)—Les bases constitutionnelles du droit financier local, in: Encyclope´die Dalloz des collectivite´s territoriales, n
36 et seq. 18 See L. Saidj, Chapitre 2 (Folio n
7142)—Le controˆle budge´taire, in: Encyclope´die Dalloz des collectivite´s territoriales, n
400 et seq. 19 For instance, in the case of a municipality’s budget, see Code Ge´ne´ral des Collectivite´s Territoriales (General Code of Territorial Collectivities) Art. L. 2321-2. 20 Crim., case n
05-81151, 4 May 2006 (Bull. Crim., 2006, n
119).

70

G. Chetard

agreement of the elected council or because the construction has been at least partially funded with credits that were supposed to fund a mandatory spending.

cc) Subjective Element: The Intent to Purloin The main penalty for purloining is imprisonment and a fine, which means that it is an offence of intermediate gravity, a de´lit.21 As a consequence, it is in principle an intentional offence.22 Intent, here, shall be understood as a dolus generalis: the mere awareness and wilfulness to perform the forbidden act are sufficient to engage one’s criminal liability. It does not matter, a contrario, whether the offender intended to harm the community’s interests or what their mobiles were.23 It does not matter either whether they knew this specific behaviour to be criminally prohibited. Thus, this element will seldom, if ever, be missing in concrete cases, provided the actus reus is indeed present: one can hardly imagine a mayor deciding to fund a given project against their council’s vote and then arguing that they were unaware of the council’s opposition or a budget’s rapporteur presenting their project, unaware that they misdirected the funds from a mandatory spending to a different operation. . .

b) Favouritism Under Art. 432-14 PC: [A]ny person holding public authority or discharging a public service mission or holding a public electoral mandate or acting as a representative, administrator or agent of the State, territorial bodies, public corporations, mixed economy companies of national interest discharging a public service mission and local mixed economy companies, or any person acting on behalf of any of the above-mentioned bodies, who obtains or attempts to obtain for others an unjustified advantage by an act breaching the statutory or regulatory provisions designed to ensure freedom of access and equality for candidates in respect of tenders for public service and public service [concessions, is punished by a maximum of two years’ imprisonment and a fine of € 200.000, the amount of which may be increased up to a maximum of twice the worth of the benefit that was produced by the offence].

21

Art. 111-1 PC establishes three categories of offences: crimes, de´lits and contraventions. Crimes are the offences of the highest gravity, whereas contraventions are of the lowest gravity and are in principle defined and punished by government regulations. The distinguishing criterion is the maximal penalty provided for the offence. 22 Art. 121-3(1) PC provides: Il n’y a point de crime ou de de´lit sans intention de le commettre. (There is no crime or de´lit in the absence of an intent to commit it.) The following paragraphs state that a de´lit may be committed without intent when the law states so. 23 See J. Pradel/A. Varinard, Les grands arreˆts du droit pe´nal ge´ne´ral, 12th ed. 2012 (Dalloz, Paris), pp. 595 et seq.

Criminal Liability of Political Decision-Makers in France

71

In a nutshell, favouritism consists in violating the legal provisions protecting the fairness of public procurement procedures. Just like purloining of public property, this offence is provided for in Book IV of the Penal Code: offences against the Nation, the State and the public peace and not in Book III: offences against property. This means that the main legally protected interest, here, is not the right of the candidates to fair competition, but rather public procurement itself, as a way to provide public bodies with the optimal available services. I am unsure whether favouritism could apply to our case: all I can do is speculate, through observation of the way the constitutive elements are currently interpreted by courts. Under Art. 432-14, four conditions must be met: the actor’s functions must correspond to at least one of the listed categories; the act of favouritism must be committed in a procurement procedure; it must consist in providing or attempting to provide one of the candidates with an undue advantage by violating specific legal provisions; and the actor must have intended to do so.

aa) Personal Scope of Art. 432-14 Due to the nature of favouritism, it may be committed from a very wide range of personal positions. An offender may provide a competitor with an undue advantage, even though they have no decision-making powers in the relevant procedure: for instance, the disclosure of confidential information could be such an advantage (see infra II.1.b)cc)). Thus, the legislator has provided for quite an extensive field of application. We do not need to worry about every single item in the list here. For what matters to our case study, a political decision-maker will ex hypothesi be either ‘holding public authority’, ‘discharging a public service mission’ or ‘holding a public electoral mandate’,24 as we saw above (supra II.1.a)aa)). Thus, the mayor, any of their deputies or any other member of the municipality’s council could commit favouritism.

bb) Substantive Scope of Art. 432-14 The offence’s substantive scope is a complicated matter. Article 432-14 formerly referred to marche´s publics and de´le´gations de service public, two different types of public contracts, covering most cases. However, that excluded several other important legal methods for procurement, such as public–private partnerships.25 Also

24

The contents of this last category are uncertain, as the two former ones, when combined, seem to cover it entirely; see Corioland (note 8), § 34; contra: H. Matsopoulou, Marche´s publics.—Liberte´ d’acce`s et e´galite´ des candidats, in: JurisClasseur Pe´nal Code, n
20, §§ 9-11. 25 J. Be´noit, Responsabilite´ pe´nale des e´lus—Favoritisme et prise ille´gale d’inte´reˆt, in: Encyclope´die Dalloz des collectivite´s locales, n
12092, §§ 201-225.

72

G. Chetard

excluded from Art. 432-14 were concessions de travaux publics (public works concessions), in which a private contractor carries out a construction project for a public person and is granted the right to exploit the works as payment (e.g., by collecting a toll). The article’s field of application was completed by two recent reforms. An ordinance of 23 July 2015 first assimilated all public-private partnerships to ‘marche´s publics’ (i.e. public tenders). A law of 9 December 2016 then modified Art. 432-14 PC by substituting the wider expression ‘contrats de concession’ to the former ‘de´le´gations de service public’. Thus, favouritism may or may not apply to our case study, depending on the time and kind of contract that is being signed between by C-City and its contractor. The exact reason for the former limiting wording is unclear, and it may simply have been due to clumsy legal craftsmanship.26

cc) Objective Element: Violating Equality or Fairness Between Candidates According to Art. 432-14, favouritism consists in ‘obtain[ing] or attempt[ing] to obtain for others an unjustified advantage by an act breaching the statutory or regulatory provisions designed to ensure freedom of access and equality’ between candidates to public tenders. The way this element is interpreted makes it a bit redundant: in many cases, the Cour de Cassation admitted that the ‘unjustified advantage’ element consisted in the mere fact that a contractor was chosen in an irregular procedure.27 Thus, favouritism could be committed even in cases when the defendant argued that, given the circumstance, the contractor was really the only potential contestant to begin with, and thus there was no one else against whom they could have been advantaged.28 According to Jean Be´noit, this leads to a risk ‘of transforming the favouritism offence into an offence of violating the rules on the making of public tenders and public delegations’.29 Nevertheless, the consequence relative to the case of C-City is that the decision-makers might be prosecuted under charges of favouritism if they pushed the project in a way that made the procurement procedure irregular. They could have done so in a wide variety of ways as the French Code des Marche´s Publics abounds with relevant provisions. I would like to point out one

26 Ordonnance n
2015-899 du 23 juillet 2015, Relative aux marche´s publics (Journal officiel de la Re´publique Franc¸aise, 24 July 2015); Loi n
2016-1691 du 9 de´cembre 2016 relative a
la transparence, a
la lutte contre la corruption et a
la modernisation de la vie e´conomique (Journal officiel de la Re´publique Franc¸aise, 10 December 2010). 27 For instance: Crim., case n
02-80699, 11 December 2002. See Be´noit (note 25), §§ 255-256; Matsopoulou (note 24), § 17; J. Lasserre-Capdeville, Favoritisme, in: Re´pertoire Dalloz de droit pe´nal et de proce´dure pe´nale, §§ 73-75. 28 Crim., case n
08-80589, 10 September 2008. 29 Be´noit (note 25), § 237.

Criminal Liability of Political Decision-Makers in France

73

specific hypothesis. After a call to offers has been emitted, Arts. 52 and 53 of the Code des Marche´s Publics determine how the best offer shall be selected and which candidacies and offers must be rejected as inadmissible. In a case of 17 October 2007, a mayor had wilfully omitted to eliminate an inadmissible candidacy. The candidate was selected to pass the tender, although it should not have been admitted to compete in the first place. The Cour de Cassation then approved of the mayor’s being convicted of favouritism.30 Under Art. 53, inadmissible offers are those that are ‘inappropriate’, ‘irregular’ or ‘unacceptable’. In particular, one of the cases in which an offer is to be considered unacceptable is if it would be too costly to be funded by the public body’s provisional credits regarding the tender. In other words, an offer must be rejected if its costs grossly exceed what the municipal budget may afford. I have no further cases into which to ground my reasoning here, but with everything above taken into account, we may emit a hypothesis: in the case of C-City, if it appeared, during the public procurement procedure, that the building of a bridge would grossly exceed budget and the mayor pushed that project nonetheless or if a prestigious yet over-expensive offer was preferred above other, reasonable ones, then the mayor could be found guilty of favouritism for not having discarded an unacceptable offer.

dd) Subjective Element The main penalty for favouritism is imprisonment and a fine, which means that it is a de´lit. As a consequence, intent is required as a constitutive element. However, no dolus specialis is required: it does not matter whether the actor intended to give an advantage to one of the contestants. Instead, it suffices that they knowingly accomplished an act in breach of provisions protecting free access and equality of candidates in public procurement procedures.31 Moreover, the courts frequently take into account the actor’s functions and position to judge that they could not ignore their own behaviour’s illegality.32 That shrinking of the intentional part in favouritism is severely criticised among French authors due to the distance it takes from the letter of Art. 432-14.33 In our case, it is also one of the reasons why it would be conceivable that the mayor of C-City could be convicted for pushing an over-expensive bridge project: because Art. 432-14 PC is so broadly applied, it may cover situations that a priori do not resemble favouritism that much.

Crim., case n
06-87566, 17 October 2007 (Bull. Crim., 2007, n
248). Crim., case n
03-83396 of 14 January 2004 (Bull. Crim., 2004, n
11); Crim., case n
05-83898 of 14 December 2005 (Bull. Crim., 2005, n
333); Crim., case n
11-82854 of 14 December 2011. 32 For instance: Crim., case n
03-83474 of 15 December 2004; Crim., case n
07-88373 of 25 June 2008 (Bull. Crim., 2008, n
261). 33 Lasserre-Capdeville (note 26), § 106; Be´noit (note 25), § 262; Corioland (note 8), § 308. 30 31

74

G. Chetard

2. Part 2: Criminal Liability for Pursuit of Personal Interests Two incriminations will be of interest for us here: passive corruption and illegal taking, receiving or keeping of an interest.

a) Bribery Offence: Passive Corruption Under Art. 432-11 PC: The direct or indirect request or acceptance without right and at any time of offers, promises, donations, gifts or advantages, [for oneself or for others], when done by a person holding public authority or discharging a public service mission, or by a person holding a public electoral mandate, is punished by [a maximum of] ten years’ imprisonment and a fine of [up to € 1.000.000, the amount of which may be increased to a maximum of twice the worth of the benefit that was produced by the offence] where it is committed: 1
to carry out[, for having carried out,] to abstain from carrying out [, or for having abstained from carrying out,] an act relating to his office, duty, or mandate, or facilitated by his office, duty or mandate; 2
or to abuse his real or alleged influence with a view to obtaining from any public body or administration any distinction, employment, contract or any other favourable decision.

Although Art. 432-11 incriminates both passive corruption and traffic of influence, I will only present the former offence. There are several remarkable points about the way corruption is apprehended by the Penal Code: it only applies to public agents as another article incriminates passive corruption of private decisionmakers; the offence consists in the receiving of a bribe, not the carrying out of a tainted act; being the passive side of a corruption pact, it is not constituted in the absence of a corrupter.

aa) Personal Scope of Art. 432-11 Article 432-11 incriminates the corruption of ‘a person holding public authority or discharging a public service mission, or by a person holding a public electoral mandate’. As it was noted above (see II.1.a)aa)), this includes basically any and all political decision-makers, whether or not they were elected (like a minister or a State secretary34). A mayor,35 a member of a municipal council36 or a member or president of another territorial council all hold a public electoral mandate and are either holding public authority or discharging a public service mission, if not both. Article 432-11, a contrario, does not apply when the corrupt agent is not a public person: in these cases, Arts. 445-1 to 445-4 (corruption of persons not holding a public function) may be of relevance instead. Moreover, other incriminations are

Crim., case of 24 February 1893 (Bull. Crim., 1893, n
49). Crim., case n
97-82527, 18 June 1998. 36 Crim., case n
09-86280, 16 June 2010. 34 35

Criminal Liability of Political Decision-Makers in France

75

provided for judiciary corruption (Art. 434-9 et seq.) and for corruption of an international public agent (Art. 435-1 et seq.).

bb) The Request or Acceptance of a Bribe (1) Nature of the Bribe and Campaign Funding Passive corruption consists, for a public person, in requesting or accepting a bribe, which may consist in any sort of offer, promise, donation, gift or advantage. This broad wording includes bribes of very various natures, such as money, goods, better pricing on services37 or even the promise of sexual intercourse.38 However, the advantage must be at least partially objective: it cannot consist in the mere satisfaction of the corrupt agent’s feelings. For instance, in a case of 14 October 1975, a civil servant had menaced to exclude a company from all public tenders under his supervision, unless that company’s manager fired a specific employee, which the civil servant personally loathed. The Cour de Cassation approved of the appeal judges’ ‘refus[al] to assimilate the request of a subjective advantage such as ‘the satisfaction of hatred’ to the request of offers, promises, donations or gifts’.39 The precise distinction between an objective advantage and a subjective advantage has not been clearly delimited; I suggest that we may infer that an advantage is subjective when its worth is strictly relative to a person’s inner value-judgements. Under that perspective, campaign funding, or another form of increase in a politician’s chances to be re-elected, could constitute objective advantages. (Their worth does not seem, at least, more ‘subjective’ than the perspective of sexual intercourse. . .) Nevertheless, the key constitutive act in passive corruption is the request or acceptance of an advantage. On the other hand, it is immaterial to the incrimination whether the act aimed at by the corrupter was actually carried out in the end40 or whether the corrupt agent obtained the advantage they requested or were promised.41 (2) Time of the Bribery and Corruption of a Candidate This also means that the time span of the offence depends on when the bribe is requested or accepted. So, in theory, based on Art. 432-11’s wording, the

Crim., case n
63-93181, 6 February 1968 (Bull. Crim., 1968, n
37). Tribunal pour enfants de Sarreguemines, 11 May 1967 (Jurisclasseur pe´riodique—La semaine juridique (JCP), II/1968, n
15359). 39 Crim., case n
74-90895, 14 October 1975 (Bull. Crim., 1975, n
214). However, this judgement was made prior to the adoption of the current Penal Code, which added ‘advantages’ to the list, so it could be discussed whether the exclusion still holds under Art. 432-11. 40 Crim., case n
88-83417, 12 December 1989 (Bull. Crim., 1989, n
474); Crim., case n
94-80204, 9 November 1995 (Bull. Crim., 1995, n
346). 41 Crim., case n
94-84204, 9 November 1995 (Bull. Crim., 1995, n
346); Crim., case n
96-82286, 20 March 1997 (Bull. Crim., 1997, n
117). 37 38

76

G. Chetard

precondition—that the actor must be holding a public function—must coincide in time with that request or acceptance. In other words, it is required that the agent already be holding a public function when they request or accept the bribe. Thus, a mere candidate to a mandate or a position could not commit this offence if they were bribed in exchange for their promise that, should they be elected or nominated, they would use their office in a certain way. Once the corrupt candidate enters office, they could then hold their promise without risking prosecution as Art. 432-11 only prohibits bribery itself. Would this reasoning hold before the courts? A similar question has been answered in case law, regarding the limitation period for prosecution. It is consistently admitted that the starting point of that period is not the day when the bribe was first offered or requested but the last time when either the corrupter or corrupt agent acted in execution of the corruption pact. The reason, according to the Cour de Cassation, is that ‘although the de´lit of corruption is an instantaneous offence that is constituted with the beginning of the corruption pact between corrupter and corrupt, it [the de´lit] is renewed with each execution of the said pact, as long as the fraudulent agreement binding corrupter and corrupt has existed’.42 However, in the relevant cases, the offence was already entirely constituted, and the ‘renewal’ by execution only came in handy to push further the limitation period. But if a candidate was bought and then took the decisions that were asked of them without receiving any further counterpart, there would simply not be any primary criminal act to renew. Would the Cour de Cassation nevertheless extend its jurisprudence to such situations? It remains to be seen, although such an extension would be, in my opinion, quite clearly contra legem. This brings us back to the question of campaign funding. Could a politician commit passive corruption if they received a campaign-funding bribe in exchange for their promise to act in a determined way . . . during their next mandate? In this situation, the corrupted agent is already holding public functions when the bribery occurs, but they are not, strictly speaking, being bribed to carry out an act relating to their current office. However, Art. 432-12 also applies to acts that are merely ‘facilitated by’ a corrupt agent’s functions. As a consequence, it may apply to agents who promise or carry out acts that they are legally incompetent to take.43 But this is yet a different situation, and it may hardly be predicted what the Cour de Cassation would decide. As a conclusion, I believe that one of the reasons why those questions have yet to be answered is that the majority of these problematic cases would fall under other provisions: either favouritism or conflict of interest might apply to most (if not all) of these ‘sub-corruption’ cases. Nonetheless, one may take corrupt decisions

Crim., case n
09-87292, 16 June 2011. See also Crim, case n
96-83698, 27 October 1997 (Bull. Crim., 1997, n
352); Crim., case n
03-82589, 8 October 2003 (Bull. Crim., 2003, n
185); Crim., case n
05-82265, 29 June 2005 (Bull. Crim., 2005, n
05-82265). 43 Crim., case of 17 November 1955 (Bull. Crim., 1955, n
494); Crim., case n
96-83171, 3 June 1997. 42

Criminal Liability of Political Decision-Makers in France

77

without violating any provisions regarding fairness of public procurement procedures (see supra II.1.a)), and holding a present that has been given in the past might not qualify as the illegal ‘keeping of an interest’ in the sense of Art. 432-12 (see infra II.2.b)).

cc) Duration of the Corruption Pact French criminal law takes quite literally the idea that passive corruption and active corruption are two sides of the same coin. The corrupter’s behaviour is being incriminated under a separate provision,44 and the mere request for a bribe is punishable, even if that bribe was not agreed on. Thus, it is immaterial to the offence of passive corruption whether the (active) corrupter is convicted, or even identified at all.45 Yet there must at least be a potential corrupter, and the bribe must hold a minimal link with the foreseen act or omission: the offence consists in requesting or receiving something from someone else as payment, not in merely being personally interested in one’s own decision-making powers. The question arose, under a former version of the text, whether there was corruption when a bribe was requested or given as remuneration after the related act had been carried out or omitted. The classic answer in case law was that ‘corruption is constituted, only if the agreement passed between the corrupter and the corrupt has preceded the act or omission which it was designed to remunerate’.46 Thus, a civil servant who first provided a person with a service and then asked for a bribe as remuneration for their help was not committing that offence,47 although they could be convicted if the circumstances clearly showed that the corruption agreement was anterior to its execution by either party.48 This situation was rectified by two laws of 30 June 200049 and of 17 May 2011.50 These Acts wrote in Art. 432-11 that the request or acceptance of the bribe may happen ‘at any time’ and that it may also be ‘for having carried out’ or ‘refrained from carrying out’ the related act. Thus, chronology does not seem to matter any more, provided the meaning of the bribe may be inferred from the circumstances in which it was requested or offered.

44

Penal Code, Art. 433-1. Crim., case of 4 November 1948 (Bull. Crim., 1948, n
250). 46 Crim., case of 19 February 1953 (Bull. Crim., 1953, n
59). 47 Crim., case n
85-93952 of 14 May 1986 (Bull. Crim., 1986, n
163). 48 Crim., case n
96-82509 of 16 December 1997 (Bull. Crim., 1997, n
428). 49 Loi n
2000-295 du 30 juin 2000, relative a
la limitation du cumul des mandats e´lectoraux et des fonctions et a
leurs conditions d’exercice. 50 Loi n
2011-525 du 17 mai 2011, de simplification et d’ame´lioration de la qualite´ du droit. 45

78

G. Chetard

b) Conflict of Interest: Unlawful Taking of Interest The offence of unlawful taking of interest is provided for under Arts. 432-12 and 432-13 PC. Article 432-12 forbids conflict of interests during office or mandate and basically applies to any person holding public functions. On the other hand, Art. 432-13 forbids conflict of interest even after one’s functions have come to an end, but only for members of the administration and in a limited number of cases.

aa) Conflict of Interest with Current Functions Article 432-12 (1) PC provides: The taking, receiving or keeping of any interest in a business or business operation, either directly or indirectly, by a person holding public authority or discharging a public service mission, or by a person holding a public electoral mandate who at the time in question has the duty of ensuring, in whole or in part, its supervision, management, liquidation or payment, is punished by [a maximum of] five years’ imprisonment and a fine of [up to € 500.000, the amount of which may be increased up to a maximum of twice the worth of the benefit that was produced by the offence].

Paragraphs 2 through 5 provide for minor exceptions, in municipalities counting less than 3500 inhabitants, allowing members of the municipal council to make limited transactions with the territorial community. I will leave those aside as they are barely relevant to our case study, if at all. Conflict of interest during office requires three constitutive elements: an interest in a decision or operation, the actor’s taking part in that decision and their doing so knowingly. (1) First Objective Element: ‘Any Interest’ Article 432-12 forbids taking, receiving or keeping an interest of ‘any kind’ (un inte´reˆt quelconque), ‘either directly or indirectly’. In case law, this means that the interest may be ‘either material or moral’51 and that the offence consists in ‘the mere abuse of office independently from the research of a profit or of any other personal advantage’.52 In the same order of idea, ‘Art. 432-12 PC does not require that the interest taken by the indicted person be in contradiction with the interest of the municipality’.53 Thus, the offence may be committed ‘even though it results in neither a profit for the actors, nor a damage for the community’.54 What is protected is the public’s trust in political decision-making.

Crim., case n
Crim., case n
53 Crim., case n
54 Crim., case n
51 52

98-81796, 29 September 1999 (Bull. Crim., 1999, n
202). 99-86871, 21 June 2000 (Bull. Crim., 2000, n
239). 07-84288, 19 March 2008 (Bull. Crim., 2008, n
69). 08-82068, 22 October 2008 (Bull. Crim., 2008, n
212).

Criminal Liability of Political Decision-Makers in France

79

In reality, the field of incrimination is narrower. Saying that the taken interest may be an indirect and moral one mostly means that public decision-makers must not take part in decisions that might affect either themselves or any person to whom they are personally related, for instance their children,55 children-in-law,56 spouses,57 or siblings;58 the companies that they run59 either de jure or de facto60 or for which they work;61 the non-profit associations in which they hold presidency;62 and so on. In all cases, even when the decision-makers themselves did not personally have a material, economical interest in the consequences, they were related to someone who did. Thus, the relevant interests were ‘moral’ only in the sense that the actors’ decision was potentially beneficial to their relatives instead of themselves. This is the main difference from the field of application of Art. 432-13, which only regards the parts in an enterprise that are taken by the decision-maker themselves (see below). Consequently, there would most certainly be conflict of interest if the decisionmaker had a share in the beneficiary’s company (for instance, in our case study, if they were a partner of the contractor). On the other hand, it seems to me that the mere pursuit of personal prestige would not be enough to constitute a ‘moral interest’ in the sense of this article as it would be insufficiently linked to the question of to whom the decision concretely and directly benefits. The same could probably be said about the perspective of being re-elected. What, now, about a decision-maker who would have received bribes when they were merely running for office? Would they commit an unlawful keeping of an interest if they took part in decisions that concerned the provider of the bribes? In my opinion, the answer would depend on the circumstances regarding the bribe itself. The decision-maker would have an indirect, material interest to the decision if the bribe consisted of shares in the provider’s company and if that company then benefited from the relevant decisions. The decision-maker might also have an indirect, moral interest to the decision if the bribe was of a nature or importance that implied a special relationship between the provider and the receiver (for instance, if it was not only a form of payment but also a significant token of trust, friendship, gratefulness . . .). I am more sceptical about the case in which the bribe would merely consist in a payment in advance: in this case, the bribe receiver would not be related to the

Crim., case n
99-86871, 21 June 2000 (Bull. Crim., 2000, n
239); Crim., case n
03-85697, 9 February 2005 (Bull. Crim., 2005, n
48). 56 Crim., case n
98-81796, 29 September 1999 (Bull. Crim., 1999, n
202). 57 Crim., case n
03-80660, 19 November 2003. 58 Ibid. 59 Crim., case n
99-86871, 21 June 2000 (Bull. Crim., 2000, n
239). 60 Crim., case n
95-80592, 25 June 1996 (Bull. Crim., 1996, n
273). 61 Cour d’Appel de Toulouse, 7 October 1999 (Recueil Dalloz (D.), 2000, Informations rapides (IR) n
66). 62 Crim., case n
08-82068, 22 October 2008 (Bull. Crim., 2008, n
212). 55

80

G. Chetard

decision’s beneficiary in a narrow sense. Moreover, the advantage in which the bribe consists would not be, causally and chronologically speaking, resulting from the decision. Would the courts judge that the public agent’s relief from their ‘moral’ debt to their briber or the chance to avoid reprisal constitute a sufficient moral interest as to Art. 432-12? Although such an interpretation would make sense, the lack of comparable precedent makes it hard to predict what would be decided. (2) Second Objective Element: The Torn Decision Situations of conflict may arise at two different points in time. In the first hypothesis, for which Art. 432-12 provides, the decision-maker is taking part in a decision to which they are currently interested. It is not required, however, that the actor be the one to take the final decision, as long as they could at least have an influence on it, even if that influence merely consisted in preparatory work, such as the drafting of a proposal63 or the preliminary treatment of an inquiry.64 This also applies, a fortiori, to members of a territorial council, when they take part in a collegial deliberation in which they hold a private interest.65 In all of those cases, the offence is committed by the actor’s mere taking part in the decision, even if the foreseen operation did not succeed afterwards.66 Thus, the public function holder must either refrain from taking part in the decision or forfeit their conflicting interest beforehand. (3) Subjective Element: The Intent to Take an Unlawful Interest The main penalty for unlawful taking of interest is imprisonment and a fine. Thus, it is a de´lit and, as the law does not provide otherwise, an intentional offence. The relevant intent, however, is a mere dolus generalis: no fraudulent intent is required to characterise conflict of interest, provided the agent knowingly took part in a decision in which they had a private interest.67 Moreover, the Cour de Cassation also judged, in a case, that the defendants had an obligation ‘to verify the regularity of the commitments they took for themselves or for the municipality’.68 As for other offences described above, the subjective element will in almost all cases be present, provided the objective elements are characterised. Crim., case n
96-83990, 22 September 1998; Crim., case n
99-84054, 14 June 2000 (Bull. Crim., 2000, n
221). 64 Crim., case n
01-86024, 27 February 2002 (Bull. Crim., 2002, n
48). 65 Crim., case n
98-80726, 19 May 1999 (Bull. Crim., 1999, n
101); Crim., case n
07-80220, 14 November 2007 (Bull. Crim., 2007 n
279). 66 Crim., case n
75-91045, 19 December 1975 (Bull. Crim., 1975, n
279); Crim., case n
00-81167, 21 February 2001 (Bull. Crim., 2001, n
46). 67 Crim., case of 28 May 1957 (Bull. Crim., 1957, n
447); Crim., case n
75-91045, 19 December 1975 (Bull. Crim., 1975, n
279); Crim., case n
02-81581, 27 November 2002 (Bull. Crim., 2002, n
213). 68 Crim., case n
95-80592, 25 June 1996 (Bull. Crim., 1996, n
273). 63

Criminal Liability of Political Decision-Makers in France

81

bb) Conflict of Interest with Former Functions Article 432-13 provides for the taking of interests committed by a former public function holder69: An offence punished by [a maximum of] two years’ imprisonment and a fine of [up to € 200.000, the amount of which may be increased up to a maximum of twice the worth of the benefit that was produced by the offence,] is committed by any person who, in his [former] capacity as a member of the Government, a holder of a local function of the executive, a civil servant or agent or official of a public administration, and specifically by reason of his office, [had been] entrusted with the supervision or control of any private undertaking, with the conclusion of contracts of any type with a private enterprise, or with the drafting of recommendations regarding such contracts, [and] who, by services, advice or investment, takes or receives any part in such an enterprise, before the expiry of a period of five years following the end of his office. The same penalties apply to any participation through work, advice or investment in a private undertaking which owns 30 per cent or more of the capital in one of the undertakings referred to in the previous paragraph, or which has concluded a contract carrying legal or de facto exclusivity with such an enterprise.

Paragraphs 3 through 5 establish special rules for specific situations such as listed shares or mixed economy societies, but we should focus on the core of the article. The article’s meaning will be much less of a problem than that of Art. 432-12 as its constitutive elements are more precisely, and more restrictively, defined. I will only emit two short remarks. First, Art. 432-13 does not apply to all political decision-makers: it does not refer to the usual triad of public authority, public service and public mandate. Instead, the text aims at preventing conflict of interest for current or former members of the administration. In fact, it almost expressly excludes the members of deliberative organs of territorial communities. The main protected interest is the administration’s respectability rather than the cleanness of political decision-making. Second, all kinds of interests do not matter under this article. In particular, the decision-makers’ relatives are of no concern under Art. 432-13. What matters here is only that the decision-maker themselves participate in the enterprise’s activities. However, it is not required that this participation be remunerated or beneficial to the agent in any way.

III. Special Sanctions Applicable to Politicians There are, strictly speaking, no special sanctions that would only be applicable to politicians in French criminal law. However, the Penal Code provides for some sanctions that may play that kind of role, such as forfeiture of the right to vote or to

This offence is commonly called pantouflage in French, which literally means ‘slippering’ (wanting to stay comfortable in one’s old slippers).

69

82

G. Chetard

be elected or the prohibition from holding a public office. Article 131-26 PC provides: Forfeiture of civic, civil and family rights covers: 1
the right to vote; 2
the right to be elected; 3
the right to hold a judicial office, or to give an expert opinion before a court, or to represent or assist a party before a court of law; 4
the right to make a witness statement in court other than a simple declaration; 5
the right to be tutor or curator; this prohibition does not preclude the right to become a tutor or a curator of one’s own children, after obtaining the guardianship judge’s approval, and after having heard the family council. Forfeiture of civic, civil and family rights may not exceed a maximum period of ten years in the case of a sentence imposed for a [crime] and a maximum period of five years in the case of a sentence imposed for a [de´lit]. The court may impose forfeiture of all or part of these rights. The forfeiture of the right to vote or to be elected imposed pursuant to the present article also entails the prohibition or incapacity to hold public office.

An interesting addition was made by a law of 11 October 2013.70 This new Art. 131-26-1 provides: In cases provided for by law, and by derogation to the seventh paragraph of article 131-26, the ineligibility mentioned under 2
of the same article may be imposed for a maximum duration of ten years against a person who was a member of the Government or who was holding a public electoral mandate when the facts occurred.

Finally, Art. 131-27-1(1) and (3) provides: Where it is incurred as an additional penalty for a [crime] or a [de´lit], the prohibition to exercise a public office or a professional or social activity is either permanent or temporary. In the latter case, the prohibition may not exceed a term of five years. This prohibition may not be enforced against the discharge of an electoral mandate or union stewardship. Nor is it applicable for a press [de´lit].

Thus, ineligibility, forfeiture of the right to vote or prohibition from exercising a public office is applicable whenever any of them is provided for as additional penalties for a given offence. This is the case for every offence I presented above in Part 2 (Art. 432-17 PC). Moreover, for these offences, the law of 9 December 2016 added a special provision in Art. 432-17 PC, making the ineligibility penalty mandatory, unless the sentencing judges take a specially motivated decision justifying why, in regard to the circumstances surrounding the offence and the offender’s profile, the ineligibility should not apply. It may also be noticed that a penalty such as ineligibility is provided for not as an independent, special sanction but as part, among others, of a wider panel of prohibitions, from which the judges may pick and choose depending on the case’s specificities. In principle, the French legislator mainly distinguishes between offences via their ‘main’ penalties (such as imprisonment or fines) and usually accompanies those with a very wide range of ‘additional’ sanctions, serving mostly preventive aims, and which may be combined to properly apprehend the specificities in each offender’s file. Thus, penalties

70

Loi n
2013-907 du 11 octobre 2013, relative a
la transparence de la vie publique.

Criminal Liability of Political Decision-Makers in France

83

such as the forfeiture of civil, civic and family rights, which include ineligibility and forfeiture of voting rights, are featured virtually everywhere in the Penal Code.71 Consequently, the difference from a given offence to another is not which additional sanctions are provided for but rather which ones are the most frequently imposed by judges. However, this is a very hard comparison to establish based on commonly available data as the yearly sentencing statistics published by the French Ministry of Justice lack sufficient analytic precision. On a side note, a few crimes in the Penal Code are still considered to be ‘political offences’, but they are unrelated to the kind of case we are dealing with: ‘political offences’ are crimes against the State or the political order, such as sabotage (Art. 411-9 PC) or the illegal delivering of weaponry to a foreign power (Art. 411-3 PC). The distinction between political and common crimes, however, tends to disappear as only a few procedure-related specificities remain.

IV. Immunities and Other Limitations of Criminal Liability Two special immunities for political decision-makers are provided for in the French Constitution. One protects the President of the Republic; the second protects members of Parliament. On the other hand, members of the Government are not protected by any immunities, although they benefit from a privilege of jurisdiction (see infra V.).

1. Part 1: The President of the Republic The liability of the President of the Republic was the object of a constitutional reform in 200772 as the previous state of the law was quite problematic. I will quickly present both the former system and the current one.

a) The Presidential Immunity(?) Before 2007 Before the 2007 reform, Art. 68 Const. read: The President of the Republic is responsible of the acts accomplished in the exercise of his functions only in case of high treason. He may only be indicted by both Chambers of the Parliament, voting an identical decree by a public vote to the absolute majority of their members; he is judged by the [Haute Cour de Justice].

71

See the listings established by X. Pin, Interdiction des droits civiques, civils et de famille, in: JurisClasseur Pe´nal Code, Art. 131-26, n
14-16. 72 Loi constitutionnelle n
2007-238 du 23 fe´vrier 2007, portant modification du titre IX de la Constitution.

84

G. Chetard

This very imprecise wording was the cause of unsolvable questions. For instance, the nature of the liability in front of the Haute Cour de Justice was uncertain: was it a merely political liability, a criminal one or both? This first problem arose from the lack of a definition of ‘high treason’ as the Penal Code only incriminates ‘treason’ simpliciter. For some authors, ‘high treason’ simply meant ‘treason, when it is committed by the President of the Republic’, while others thought this difference in wording gave the Haute Cour de Justice competence to establish the definition itself as such extreme acts would fall out of the reach of even the basic principles of criminal law. Last, but not least, it was unsure whether the Haute Cour de Justice’s competence covered all and any acts committed by the President in the exercise of their functions or only those that constituted high treason and, thus, whether Art. 68 provided for a functional immunity, a privilege of jurisdiction or both. Even the supreme courts disagreed on the matter. In 1999, the Conseil Constitutionnel ruled that France could not ratify the Rome Statute of the International Criminal Court without a prior constitutional reform as the ICC’s jurisdiction would not be compatible with Art. 68 Const.73 The Conseil judged that [I]t results from article 68 of the Constitution that the President of the Republic, for the acts accomplished in the exercise of his functions and except in the case of high treason, benefits from an immunity; moreover, during his functions, his criminal liability may only ground an indictment before the Haute Cour de Justice, under the conditions provided for by the same article.74

The resulting solution was, thus, that the President benefited both from an immunity (for any acts committed in the exercise of their functions) and from a privilege of jurisdiction before the Haute Cour de Justice (for acts committed either before the beginning of their mandate or outside of the exercise of the presidential functions). However, the Cour de Cassation ruled otherwise in 2001, in a case regarding Mr. Jacques Chirac’s mandate as the mayor of Paris before he was elected President of the Republic in 1995. Mr. Chirac was suspected of having committed several offences at that time, mainly purloining of public property, by ordering or allowing the creation of fictitious municipal jobs, the salaries of which actually benefited employees of his political party. As he was the sitting President when suspicions arose, the question came up at the beginning of the inquiry whether the ordinary criminal jurisdictions were competent to enquire and judge the case. The Cour de Cassation decided: [A]rticle 68 of the Constitution shall be interpreted as meaning that, being directly elected by the people to ensure, notably, the regular functioning of the public powers and the continuity of the State, the President of the Republic may not, during the duration of their mandate, be indicted, prosecuted, or judged before an ordinary criminal jurisdiction. They

A constitutional reform then added a new Art. 53-2 in the Constitution, which provides that ‘The Republic may recognise the jurisdiction of the International Criminal Court in the conditions provided for by the treaty signed on 18 july 1998’. 74 Conseil constitutionnel (Cons. Const.), decision n
98-408 DC, 22 January 1999, Traite´ portant statut de la Cour pe´nale internationale (Journal officiel de la Re´publique franc¸aise (JORF), 24 January 1999, p. 1317). 73

Criminal Liability of Political Decision-Makers in France

85

are not any more subject to the obligation to appear before a jurisdiction as a witness [. . .], given this obligation may be enforced by the public force and is criminally sanctioned. The Haute Cour de Justice being only competent to know of acts of high treason committed by the President of the Republic in the exercise of their functions, prosecutions regarding all other acts may not be carried before the ordinary courts during the presidential mandate, and the limitation period for prosecution is then suspended.75

This shows a very different interpretation, where the President’s immunity is strictly functional and the Haute Cour de Justice’s competence only covers acts of high treason, while all other offences (before mandate or exterior to the presidential functions) may be prosecuted before ordinary courts after the presidential term has ended. This conflict of interpretation was only the last and most visible symptom of Art. 68’s lack of clarity. Thus, shortly after he was re-elected in 2002, President Jacques Chirac mandated a committee to elaborate proposals for a reform of the criminal status of the Chief of State. That committee’s report76 then gave birth to the current state of the law.

b) The Presidential Immunity Since 2007 Since the constitutional reform of 23 February 2007, the criminal law status of the President of the Republic has been ruled by Arts. 67 and 68 Const.: Article 67 Const. The President of the Republic shall incur no liability by reason of acts carried out in his official capacity, subject to the provisions of Articles 53-2 and 68 hereof. Throughout his term of office the President shall not be required to testify before any French Court of law or Administrative authority and shall not be the object of any civil proceedings, nor of any preferring of charges, prosecution or investigatory measures. All limitation periods shall be suspended for the duration of said term of office. All actions and proceedings thus stayed may be reactivated or brought against the President one month after the end of his term of office. Article 68, paragraph 1 Const. The President of the Republic shall not be removed from office during the term thereof on any grounds other than a breach of his duties patently incompatible with his continuing in office. Such removal from office shall be proclaimed by Parliament sitting as the Haute cour.

The following paragraphs provide for the basic conditions, procedure and delays under which the Haute Cour shall be sitting. The 2007 reform clarified the President’s status, even though some uncertainties remain. On the one hand, the reference to ‘high treason’ was abandoned, and the

Cour de Cassation, Assemble´e Ple´nie`re (Cass. Ass. Ple´n.), case n
01-84922, 10 October 2001 (Bulletin des arreˆts de l’assemble´e ple´nie`re de la Cour de Cassation (Bull. A.P.), 2001, n
11; Bull. Crim., 2001, n
206). 76 See P. Avril, Rapport de la Commission de re´flexion sur le statut pe´nal du Pre´sident de la Re´publique, 2002 (La documentation franc¸aise), http://www.ladocumentationfrancaise.fr/rap ports-publics/024000635/index.shtml. 75

86

G. Chetard

Haute Cour’s area of jurisdiction is clearly about the President’s political responsibility: the only sanction the Haute Cour may impose is removal from office, and the related fault is a breach of duties patently incompatible with the continuation of the office. Moreover, the Haute Cour itself is not a separate institution but a special sitting of the Parliament. On the other hand, the reform confirms that the ordinary courts remain competent regarding acts the President did not carry out ‘in their official [presidential] capacity’ (en cette qualite´). Before the ordinary courts, the President is only protected against proceedings that might include an element of coercion, and that protection only holds as long as the presidential functions themselves. Moreover, a reference to Art. 53-2, which allows the Republic to ratify the Statute of the International Criminal Court, means that, in application of the Statute, the President could also be compelled to appear before the ICC, even during their office. Thus, the current status of the President consists in a double protection: a personal immunity consisting in an irresponsibility for all acts they carry on in their quality of President and an inviolability suspending all judicial procedures that might trouble the exercise of their functions, regarding all acts they carried out either prior to or outside of their mandate. The competence of the Haute Cour is both a manifestation of and an exception to that double protection. It is entirely conceivable that a President of the Republic, who would have committed unacceptable acts, would first be removed from office by the Haute Cour due to these acts’ incompatibility with the continuation of their office and then would be prosecuted under the criminal qualification of the same acts. Yet the question remains: which kinds of acts are to be considered exterior to the quality, capacity or functions of the President? The new wording of Art. 67—en cette qualite´—had never been used before. When the Constitution or legislation distinguished between in-office offences and out-of-office or against-office offences, the usual wording was either durant ses fonctions (during their office), a
l’occasion de ses fonctions (at the occasion of their office) or dans l’exercice de ses fonctions (in the exercise of their office). The case law was quite clear regarding how these nuances should be interpreted, in particular regarding the liability of members of the Government (see below). But with that new wording, a different line of distinction ought to be determined.77 One case might be of help. It is related to abnormalities in the Presidency’s official accounts between 2007 and 2010. Allegedly, during that period, over 9 million euros had been paid to a small number of private contractors, which conducted opinion polls on the popularity of Mr. Sarkozy’s decisions and leadership and which were all tightly linked to his close advisers among the presidential staff. The procedure is still pending, but the question of immunities came into play as early as 2011. Some of the concerned advisers were indicted under charges of favouritism, and the Cour d’Appel of Paris judged that the President’s immunity

77 See M.-L. Rassat, Du statut dit ‘pe´nal’ du Pre´sident de la Re´publique (Droit Pe´nal (Dr. Pe´nal), 2007, Etude n
8.

Criminal Liability of Political Decision-Makers in France

87

should also benefit their close collaborators, in order to effectively protect the President’s activities against judicial harassment and potentially coercive investigations.78 The Cour de Cassation then quashed that decision, judging that ‘no constitutional, statutory, or conventional provisions provide for the criminal immunity, or irresponsibility, of members of the President of the Republic’s cabinet’.79 What is interesting here, apart from the confirmation that the immunity is indeed personal and limited to the President themselves, is that the Cour d’Appel’s motives referred to the presidential irresponsibility, though it was not discussed (and has not been discussed since) whether that irresponsibility should apply to begin with. It seems that it was just commonly accepted that the massive purchase of opinion polls regarding the popularity of presidential decisions is indeed an act that could be carried out by the President, and not an act exterior to their functions, even though that purchase was made in a way that grossly breached the basic rules of public tender procedure. Thus, although we still do not really know which acts committed during a mandate could lead to the conviction of a former President, we at least know which ones may not. Apparently, mere abuses of the office, where the decision in its nature could in principle be taken by the President in their legal capacity and where that decision does not go directly against the institution itself, are covered by the presidential irresponsibility. But it remains yet to be seen whether any kinds of abuse of office may lead to a conviction at all.

2. Part 2: Members of Parliament Members of Parliament benefit from a double protection. On one hand, a limited immunity protects them against prosecution for their opinions and votes in Parliament. On the other hand, an inviolability protects them against legal coercion. Both are provided for under Art. 26 Const.: No Member of Parliament shall be prosecuted, researched, arrested, detained or tried in respect of opinions expressed or votes cast in the performance of his official duties. No Member of Parliament shall be arrested for a [crime] or [de´lit], nor shall he be subjected to any other custodial or semi-custodial measure, without the authorization of the Bureau of the House of which he is a member. Such authorization shall not be required in the case of a [crime] or other [de´lit] committed flagrante delicto or when a conviction has become final. The detention, subjecting to custodial or semi-custodial measures, or prosecution of a Member of Parliament shall be suspended for the duration of the session if the House of which he is a member so requires. The House concerned shall meet as of right for additional sittings in order to permit the application of the foregoing paragraph should circumstances so require.

Cour d’Appel de Paris, Chambre de l’Instruction, Poˆle 7, case n
2011/02333. See O. Beaud, L’extension de l’immunite´ pe´nale aux collaborateurs du pre´sident. Un retour
a la raison d’Etat? (Recueil Dalloz (D.), 2011, p. 2946). 79 Crim., case n
12-81043, 19 December 2012 (Bull. Crim., 2012, 285). 78

88

G. Chetard

Paragraphs 2 through 4, which provide for the inviolability, do not require much commentary. Paragraph 1 is a bit more vague because it implicitly refers to another, older text, which is still in force today: the statute of 29 July 1881 on the freedom of the press. Under Art. 41 (1) of that text: No legal proceedings shall ensue from the speeches made inside of the National Assembly or the Senate, nor from the reports or from any other documents that are printed by order of either of those assemblies.

Thus, the opinions and votes that are covered by the immunity are only those made in Parliament. It does not protect, for instance, a member of Parliament who commits a contempt of court when they are speaking in a radio show.80 In the same way, a member of Parliament who is being interviewed by a journalist may be prosecuted if they repeat part of a homophobic speech they made earlier in an official debate in the National Assembly.81 One could sum up by saying that this immunity only aims at preserving the freedom of the parliamentary debates themselves: it shall not serve as a guarantee of impunity for all political speeches held by the representatives and senators.

V. Special Courts and Special Procedural Requirements As we saw above (IV.1.b)), a special court called the Haute Cour is competent to remove the President of the Republic from office should they commit acts that would be patently incompatible with the continuation of their mandate. As the Haute Cour’s competence mostly regards political responsibility, I will not present it any further. Another special court will be of interest for us here: the Cour de Justice de la Re´publique. It was created by a constitutional reform of 27 July 1993.82 Prior to that reform, the Haute Cour de Justice was competent not only to judge the President of the Republic in cases of high treason but also to judge members of the Government for crimes and de´lits committed in the exercise of their office. In reality, the procedural and political requirements for the Haute Cour de Justice to be called into session were so heavy that this privilege of jurisdiction virtually amounted to an immunity. That second area of jurisdiction was then entrusted to the Cour de Justice de la Re´publique when it was created in 1993. The relevant provisions are Arts. 68-1 to 68-3 Const.: Article 68-1 Const. Members of the Government shall be criminally liable for acts performed in the [exercise] of their office and classified as [crimes] or [de´lits] at the time they were committed. They shall be tried by the [Cour de Justice de la Re´publique].

Crim., case n
87-80931, 7 March 1988 (Bull. Crim., 1988, n
113). Crim., case n
07-83398, 12 November 2008 (Bull. Crim., 2008, 229). 82 Loi constitutionnelle n
93-952 du 27 juillet 1993 portant re´vision de la Constitution du 4 octobre 1958 et modifiant ses titres VIII, IX, X et XVIII (JORF n
172, 28 July 1993, p. 10600). 80 81

Criminal Liability of Political Decision-Makers in France

89

The [Cour de Justice de la Re´publique] shall be bound by such definition of [crimes] and [de´lits] and such determination of penalties as are laid down by statute. Article 68-2 Const. The [Cour de Justice de la Re´publique] shall consist of fifteen members: twelve Members of Parliament, elected in equal number from among their ranks by the National Assembly and the Senate after each general or partial renewal by election of these Houses, and three judges of the Cour de Cassation, one of whom shall preside over the [Cour de Justice de la Re´publique]. Any person claiming to be a victim of a [crime] or [de´lit] committed by a Member of the Government in the [exercise] of his office may lodge a complaint with a Petitions Committee. This Committee shall order the case to be either closed or forwarded to the Chief Public Prosecutor at the Cour de Cassation for referral to the [Cour de Justice de la Re´publique]. The Chief Public Prosecutor at the Cour de Cassation may also make a referral ex officio to the Cour de Justice de la Re´publique with the assent of the Petitions Committee. An Institutional Act shall determine the manner in which this article is to be implemented.

Article 68-3 provides that the above provisions shall apply to acts committed before they came into force. The members of the Government’s privilege of jurisdiction only applies to offences committed ‘in the exercise’ of their functions. The Cour de Cassation considers that such is the case if the offence holds a direct link with the definition and management of the Nation’s policies and of the affairs of the State.83 On the contrary, it is not sufficient that the agent was a member of the Government by the time of the offence or that the offence was facilitated by the office they were holding. For instance, in a case of 13 December 2000, it was judged that a former Minister of Justice, who was suspected of having abused his administrative and political influence to entice others into committing favouritism, was to be prosecuted before ordinary courts.84 The current criminal status of members of the Government is facing heavy criticism. On one hand, as they are not elected and, thus, are not representatives of the people, ministers, just as any other members of the administration, may be held responsible for any acts they commit during their office, and they may be subject to any ordinary legal limitations or deprivations of liberty. The privilege of jurisdiction may thus appear as a proper protection against judicial harassment. On the other hand, the Cour de Justice de la Re´publique’s nature is uncertain— half-judiciary, half-political—and, from a procedural viewpoint, it appears to be inefficient for plaintiffs, when compared to the advantages offered by the ordinary courts. Although the court’s members are a high-majority members of Parliament, the prosecution is initiated by a common decision of, on one side, the Chief Public Prosecutor at the Cour de Cassation and, on the other side, a Petitions Committee that is composed exclusively of members of the Cour de Cassation, the Conseil d’Etat and the Cour des Comptes. Additionally, decisions made by the Cour de Justice de la Re´publique may be referred to the Cour de Cassation. 83 84

Crim., case n
99-86307, 16 February 2000 (Bull. Crim., 2000, n
72). Crim., case n
00-82617, 13 December 2000 (Bull. Crim., 2000, n
375).

90

G. Chetard

Regarding efficiency, actual prosecutions before the Cour de Justice de la Re´publique rarely occur, and they even more rarely lead to a conviction.85 Additionally, victims may not file a constitution de partie civile and become a party to the procedure, whereas Art. 2 et seq. Code de Proce´dure Pe´nale allow them to do so before the ordinary criminal courts.86 As a consequence, most authors and practitioners hold that the privilege of jurisdiction benefiting members of the Government should simply be removed from the Constitution and that the ordinary courts should be competent to know of their criminal liability.87 A reform project had even been presented to Parliament in 2013,88 and the new Government which came into power after the 2017 presidential elections has manifested their intention to abolish the privilege of jurisdiction.89 Guillaume Chetard is attache´ temporaire d’enseignement et de recherche at Universite´ de Strasbourg (France).

‘Between its creation and 2012, the Petitions Committee received 1124 complaints from individuals, among which it examined 1115, and 1082 did not lead to prosecution (97% of the examined complaints)’, M. Le Fur, Rapport sur le projet de loi de finances pour 2015, Annexe no 36: mission “Pouvoirs publics”, 9 October 2014, (http://www.assemblee-nationale.fr//14/budget/ plf2015/b2260-tIII-a36.asp#P2347_149066). 86 In that case, the criminal jurisdiction will be competent to judge both on criminal and civil law grounds, i.e. both on guilt, on sentencing, and on damages, in a single procedure. 87 See, for an overview, C. Guerin-Bargues, Cour de Justice de la Re´publique: pour qui sonne le glas? (Jus Politicum, 11/2013—juspoliticum.fr). 88 Projet de loi constitutionnelle relatif a
la responsabilite´ juridictionnelle du Pre´sident de la Re´ publique et des membres du Gouvernement (Document parlementaire n
813, registered at the Assemble´e Nationale Presidency on 14 March 2013). 89 French Ministry of Justice, Moralisation de la vie publique: pour redonner confiance dans la vie de´mocratique!, 1st June 2017 (http://www.presse.justice.gouv.fr/dossiers-de-presse-10097/archivesdes-dossiers-de-presse-de-2017-12860/moralisation-de-la-vie-publique-30574.html). 85

Criminal Liability of Political Decision-Makers in Germany Frank Zimmermann

I. Preliminary Remarks 1. Constitutional Background: Federal Structure of the German State At least in German law, it is impossible to assess the criminal law relevance of political decisions without having said a few words about the constitutional background. This is because the Grundgesetz (Federal Constitution—Const.) defines Germany as a federal state. Thus, it is necessary to distinguish between competences of the federation and competences of the states (L€ ander). In first instance, this applies to the legislative branch: the Constitution provides a (relatively broad) enumeration of legislative competences that is conferred upon the federation (see Arts. 73, 74 Const.). Criminal law, for instance, is one of the matters basically attributed to the federal level (Art. 74(1) no. 1 Const.).1 For all areas not falling within one of these categories, the L€ ander shall have legislative competence (Art. 70(1) Const.). However, the situation becomes somewhat more complex when one takes into account the executive branch: the German Constitution provides that also in the areas falling under the federal legislative competence, the L€ ander shall be responsible for the execution of the (federal) laws (Art. 83 Const.).

1 Several exceptions exist, particularly where criminal law provisions build upon behavioural norms laid down in the states’ laws. For instance, several aspects of the press law as well as the law regulating the right to assemble belong to the legislative competence of the states. Therefore, many (if not all) states have adopted provisions imposing criminal sanctions for breaches of these laws.

F. Zimmermann (*) Ludwig-Maximilians-Universita¨t München, Munich, Germany e-mail: [email protected] © Springer International Publishing AG 2017 F. Zimmermann (ed.), Criminal Liability of Political Decision-Makers, DOI 10.1007/978-3-319-52051-3_6

91

92

F. Zimmermann

Besides the federal and the state levels, the Grundgesetz also mentions municipalities and counties as a third (local) level of governance and guarantees their right to self-government: Art. 28 Const. (1) (. . .) In each Land, county and municipality the people shall be represented by a body chosen in general, direct, free, equal and secret elections. (...) (2) Municipalities must be guaranteed the right to regulate all local affairs on their own responsibility, within the limits prescribed by the laws. (...) The guarantee of selfgovernment shall extend to the bases of financial autonomy; (...).

All details, however, are regulated by the laws of the L€ ander. These details include, for instance, the delimitation of competences between the municipality council and the mayor, as well as how municipality councils take their decisions. Some L€ ander—among them Bavaria—have even established a further level of local governance, the so-called districts (which comprehend several counties). Leaving aside this diversity regarding the constitutional and administrative structures of the different L€ ander, there is one important aspect that they all have in common: the entire local level of government belongs to the executive branch. Thus, municipality and county councils are not regarded as legislative bodies, even though they have the competence to adopt so-called regulations (Verordnungen) and by-laws (Satzungen) and thus to establish binding rules on their territory. But this presupposes that such competence was delegated to the local community by means of a statutory law. Generally speaking, regulations and by-laws can therefore only concretise parliamentary laws. Furthermore, they are subject to legal supervision by the respective Land’s authorities. As a consequence, they do not qualify as laws in a formal sense, and their adoption is not considered a legislative process. Admittedly, this understanding is probably not shared by the majority of citizens who rather see those municipality and county councils as ‘local parliaments’ because their members—as well as the mayor and the county’s head of administration—are appointed through general elections. Still, this aspect is of great importance when it comes to the question whether members of these local councils have immunity when they participate in the decision-making process of their respective institution (see infra IV.2.).

2. Competences in a Comparable Scenario: Who Takes Such Decisions? This being said, the question of who would take a decision on whether to build the bridge in our case depends upon many aspects, most importantly the type of street that the bridge would belong to: as a matter of principle, the federation is competent to decide whether a new federal motorway or federal highway shall be built. But

Criminal Liability of Political Decision-Makers in Germany

93

since the L€ ander administer these federal streets, they (i.e., the competent ministry of the respective Land) often have quite a dominant role when it comes to building measures. In practice, this means that the federal ministry merely exercises a control function, and only significant building measures need to be authorised by it. When a bridge shall be built, the project is regarded as significant when the building costs are expected to exceed three million euros at the moment.2 For all streets that do not qualify as federal motorways or federal highways, it is basically the respective Land and thus normally this Land’s responsible ministry that will take the decision. However, building measures concerning only streets within a municipality fall into the competence of that municipality, and streets connecting different municipalities within a county fall into the competence of that county. Therefore, decisions on these measures will normally be taken by the municipality or county council (either in plenary or in a special commission, depending upon the importance of the project). That the mayor or the head of a council’s administration takes such decisions themselves will normally remain a rather theoretical possibility because their competences are limited to urgent measures and measures of minor relevance (see, for example, Art. 37(1) and (3) of the Bavarian Municipality Code — Gemeindeordnung).

II. Comparative Case Study 1. Part 1: Criminal Liability for Bad Political Decisions Unlike in other jurisdictions, there is no general statutory offence for misconduct in office or abuse of office in German criminal law. Despite various proposals for reform,3 Germany does not have a special offence for the waste of public money either. What the former German Strafgesetzbuch (Penal Code—PC) did contain was an offence covering the abuse of an official position in order to commit an act of coercion. But that provision was abolished in 1941/1942. It is not clear whether the abolition was influenced by Nazi ideology, but since the provision would not have covered the relevant behaviour in our case anyway (because an element of threat or force is lacking), this matter shall not be analysed in further detail.

2 This information was provided by staff of the competent ministry, who referred to the so-called Richtlinien zum Planungsprozess und f€ ur die einheitliche Gestaltung von Entwurfsunterlagen im Straßenbau. 3 For some recent proposals see B. Sch€ unemann, Unverzichtbare Gesetzgebungsmaßnahmen zur Beka¨mpfung der Haushaltsuntreue und der Verschwendung € offentlicher Mittel, 2011, pp. 40 et seq.; A. Coenen, Die Strafbarkeit von Verst€oßen gegen das Haushaltsrecht bei der Bewirtschaftung € offentlicher Mittel, 2000 (Dissertation, K€oln).

94

F. Zimmermann

a) ‘Embezzlement and Abuse of Trust’, § 266(1) PC Since there are no more specific offences, § 266(1) PC is the only provision that applies to the decision-making as such. According to the English translation provided by the Federal Ministry of Justice, this provision defines the offence of ‘embezzlement and abuse of trust’. However, this translation of the German word ‘Untreue’ may be somewhat misleading because at least the term ‘embezzlement’ is well-known in Anglo-American criminal law and therefore creates the impression that § 266(1) PC has the same meaning. However, this is not necessarily the case.4 The provision reads5: (1) Whosoever abuses the power accorded him by statute, by commission of a public authority or legal transaction to dispose of assets of another or to make binding agreements for another, or violates his duty to safeguard the property interests of another incumbent upon him by reason of statute, commission of a public authority, legal transaction or fiduciary relationship, and thereby causes damage to the person, whose property interests he was responsible for, shall be liable to imprisonment not exceeding five years or a fine.

Obviously, it is not the primary aim of this provision to tackle misconduct in office as it is not a constituent element of the offence that the perpetrator acts in his/her capacity as public official (pursuant to § 266(2) read in conjunction with § 263(3) no. 4 PC, this is merely an aggravating circumstance). Apart from that, the offence description is certainly not easy to understand—not even in the original German version. But it is generally accepted that it contains two slightly different alternatives. According to the prevailing opinion, the second alternative (which begins with the underlined ‘or’ in the quotation above) is the more general one.6 Its specific element is the ‘violation of a duty to safeguard the property interests of another’, which could more adequately be described as a fiduciary duty resulting from a special relationship of trust. The first alternative of the offence, by contrast, is considered the more special one. It additionally presupposes that the perpetrator had the power to make binding agreements on behalf of somebody else and abused this power. This means that the trustee must have violated his/her duties in the internal relationship with the trustor but did act within his/her power in the external relationship with the partner of the agreement. Therefore, the agreement must be

§ 266(1) PC neither requires fraudulent behaviour, nor ‘lawful possession’ in a strict sense; it is sufficient that the perpetrator has the possibility to access the assets because they were entrusted to him/her. T. Weigend, in: Heller/Dubber (eds.), The Handbook of Comparative Criminal Law, 2011, p. 279, suggests ‘violation of trust’ as alternative translation; M. Dubber/T. H€ ornle, Criminal Law. A Comparative Approach, 2014, p. 98 use the term ‘disloyalty’. 5 A slightly different translation of the provision is suggested by Dubber/H€ ornle (note 4), p. 98. 6 T. Fischer, Strafgesetzbuch, 63rd ed. 2016 (Beck, München), § 266/6a; U. Kindh€ auser, in: Kindha¨user/Neumann/Paeffgen (eds.), Strafgesetzbuch, 4th ed. 2013 (Nomos, Baden-Baden), § 266/26. 4

Criminal Liability of Political Decision-Makers in Germany

95

binding for the trustor, which requires it to be valid in terms of civil law.7 Assume, for instance, that S is an authorised signatory of enterprise X and therefore can make binding agreements for X. If S abuses this position to rent a hotel room during a private trip on account of X, the rental contract concluded between X (represented by S) and the hotel is valid under German civil law. This is a typical case where the first alternative of § 266(1) PC comes into play. However, both alternatives share the same core: the perpetrator must have caused the trustor ‘damage’, which means more precisely a monetary loss,8 and he/she must have acted intentionally. On the one hand, this means that § 266(1) PC can only cover a part of the bad decisions that politicians take—only those that have negative consequences for the budget of the respective entity. On the other, it illustrates that prosecuting politicians for ‘embezzlement and abuse of trust’ when they have taken bad decisions is no more than a makeshift solution in order to compensate the lack of a more specific statutory offence. This being said, the following paragraphs will be dedicated to some particular problems that can arise when § 266(1) PC is applied to political decision-makers for having wasted public money. aa) First Alternative of § 266(1) PC: Binding Agreement Since the first alternative of § 266(1) PC presupposes an agreement that is legally binding for the trustor, it is difficult to imagine a situation where already the decision as such entails criminal liability. If, for instance, the municipality council votes in favour of the building measure in our case, this is still a purely internal decision. If the mayor, who is at least in most of the L€ ander the legal representative of the municipality and executes the council’s decisions, signs a contract with a building company, the question is whether he/she is entitled to do so: if yes (because the council voted in favour of the project), the mayor does not exceed the powers conferred upon him/her. If not (because the council voted against the project or only gave the permission to sign a cheaper contract), it is highly disputed whether the mayor’s signature results in a binding agreement.9 This is probably the reason why—so far—no conviction of a politician ever seems to have been based explicitly on the first alternative of § 266(1) PC.

7 F. Saliger, in: Satzger/Schluckebier/Widmaier (eds.), Strafgesetzbuch, 3rd ed. 2017 (Heymanns, K€oln), § 266/21 with further references; with some differences B. Sch€ unemann, in: Von Laufhütte/ Rissing-van Saan/Tiedemann (eds.), Leipziger Kommentar zum Strafgesetzbuch, vol. 9/1, 12th ed. 2012 (De Gruyter, Berlin/New York), § 266/47 et seq. 8 This term is used by Weigend (note 4), p. 279; for details, see infra II.1.a)cc). 9 According to the jurisprudence of Bavarian administrative courts the mayor’s signature does not result in a binding agreement—see for example Bayerischer Verwaltungsgerichtshof, 4 CS 11.2047, 20 October 2011, § 7 (BayVbl 2012, 341). For an overview, see U. Becker/D. ¨ ffentliches Recht in Bayern, 6th ed. 2015 (Beck, München), Heckmann/B. Kempen/G. Manssen, O p. 121 with further references in footnote 109.

96

F. Zimmermann

bb) Second Alternative of § 266(1) PC: Violation of a Fiduciary Duty A crucial element of the second10 alternative of § 266(1) PC is the violation of a fiduciary duty. A general duty of loyalty does not suffice. Rather, it must be an obligation aiming specifically at the protection of the trustor’s property interests, and this duty must have a certain weight.11 Furthermore, in order to come to a conviction, the court will have to establish that this duty required the accused to take his/her own responsible decisions.12 When these principles are applied to political decision-makers, the most problematic question is whether their position is one that specifically obliges them to protect public property interests. It is generally accepted that this is the case at least in respect of ministers and mayors, who are responsible for the budget of their administrative units.13 Whether also members of a municipality council have such a fiduciary duty is to a certain extent debated,14 and this applies all the more to members of a federal or state parliament.15 It has been argued that their main obligation is to represent the people and not to protect taxpayers’ money.16 This reasoning is probably more convincing with regard to members of Parliament because they act as the state’s sovereign. Members of municipality and county councils, by contrast, do not exercise legislative functions (see supra I.1.). And it is part of the duties conferred upon them by statute to use the respective entity’s money carefully. Therefore, it is submitted that at least members of municipality and county councils do have a fiduciary duty as required in § 266(1) PC.17 If M in our case is a minister, mayor or member of the municipality council, he is therefore bound by a fiduciary duty. Whether he breached this duty then depends on whether he respected the general budget principles. For instance, the principle of cost-effectiveness18 obliges public authorities to pursue their goals in the most

10

According to the prevailing opinion the violation of a fiduciary duty is also required in the first alternative of § 266(1) PC, see A. Dierlamm, in: Joecks/Miebach (eds.), Münchener Kommentar zum Strafgesetzbuch, vol. 5, 2nd ed. 2014 (Beck, München), § 266/40 with further references. 11 Bundesverfassungsgericht (Federal Constitutional Court—BVerfG from here onwards) 2 BvR 2259/08, 23 June 2010, § 108 (BVerfGE 126, 170 et seq.); Fischer (note 6), § 266/21. 12 W. Perron, in: Sch€onke/Schr€oder, Strafgesetzbuch, 29th ed. 2014 (Beck, München), § 266/23b. 13 Bundesgerichtshof (Federal Court of Justice—BGH from here onwards) 5 StR 494/98, 17 February 1999, § 9 et seq. (BGHSt 44, 376 et seq.); 3 StR 17/15, 26 November 2015, § 78 (BGHSt 61, 48 et seq.); Saliger (note 7), § 266/14. 14 Dierlamm (note 10), § 266/109; W. Nettesheim, Bayerische Verwaltungsbla¨tter 1989, p. 161 (164); U. Weber, Bayerische Verwaltungsbla¨tter 1989, p. 166 (168). 15 Perron (note 12), § 266/26. 16 Dierlamm (note 10), § 266/109; T. Soyka, Juristische Ausbildung 2011, p. 566 (568). A different approach is to be chosen when a member of Parliament is responsible for his/her own budget (to buy things that are needed for the work in Parliament); see Sch€ unemann (note 7), § 266/127. 17 H. Hinrichs, Zur Untreuestrafbarkeit gemeindlicher Vertreter, 2011 (Kovacˇ, Hamburg), pp. 79 et seq.; Perron (note 12), § 266/25; Weber (note 14), p. 166 (168). 18 See for example Art. 7 of the Bavarian Financial Regulation (Bayerische Haushaltsordnung).

Criminal Liability of Political Decision-Makers in Germany

97

efficient way possible. Yet it does not say anything about which goals are to be pursued19 and, thus, would not apply to the decision to build the bridge at all (if question). It is important, however, for the question how to pursue a certain goal (how question) and would be violated if M used his influence to make sure that a certain contractor was awarded the project although a second offer of similar quality would have been cheaper. By contrast, the principle that costs may only be incurred when they are necessary20 does already govern the if question: should it turn out that the bridge is useless and that M promoted the project only for his personal prestige, he would be considered to have violated his fiduciary duty. The same applies (with regard to the how question) if M failed to take measures that could have prevented unnecessary costs. cc) Both Alternatives of § 266(1) PC: Causation of Damage In view of political decisions, the most problematic element of § 266(1) PC is probably the damage requirement, which both alternatives of the statutory offence establish. Even so, it is at least generally accepted that also damage caused to public budgets is in principle covered by the provision.21 (1) Difficulties in Determining Causality If M is a member of the municipality council and does not take the decision to build the bridge alone, already the link of causality required by § 266(1) PC between the violation of the fiduciary’s duties and the occurrence of damage may be difficult to ascertain: whether a causality relationship exists between an act and a certain effect is usually determined by means of a ‘but-for’ or conditio sine qua non test in German criminal law.22 It says that an act is to be regarded the cause of an effect if that effect would not have occurred in the same form had the act not been performed.23 This formula comes to its limits, however, when there is a big majority for the project in the council. Then it does not make a difference if a single member votes ‘no’ or abstains from the decision. In German legal doctrine, there is thus an ongoing discussion about how to construe causality in that situation.

BGH 3 StR 17/15, 26 November 2015, § 82; L. Rojas, Grundprobleme der Haushaltsuntreue, 2011 (Nomos, Baden-Baden), p. 144. 20 See for example Art. 6 of the Bavarian Financial Regulation (Bayerische Haushaltsordnung). 21 Saliger (note 7), § 266/94. 22 BGH 2 StR 391/51, 28 September 1951, § 10 (BGHSt 1, 332 et seq.); J. Wessels/W. Beulke/H. Satzger, Strafrecht Allgemeiner Teil, 46th ed. 2016 (Müller, Heidelberg), § 217 et seq. The former Ad€ aquanztheorie, by contrast, considered an act to be the cause of an effect if it had increased the possibility of that effect to occur, see J. v. Kries, Zeitschrift für die gesamte Strafrechtswissenschaft, vol. 9 (1889), pp. 528, 531 et seq.; R. Maurach/H. Zipf, Strafrecht Allgemeiner Teil, vol. 1, 7th ed. 1987 (Müller, Heidelberg), § 18/30 et seq. 23 Wessels/Beulke/Satzger (note 22), § 218. 19

98

F. Zimmermann

Without going into details—this would exceed the scope of the present study—it can be said that the solution is widely accepted nevertheless: a member who votes in favour of the project will be deemed to have caused the consequences that this decision produces.24 (2) ‘Negative Balance Test’ and ‘Damage Through Risk’ Doctrine As mentioned earlier, the damage requirement presupposes a monetary loss, whose occurrence is usually determined by comparing the economic value of the trustor’s assets before and after the respective act: if the balance is zero or even positive, the damage requirement is not fulfilled. If the balance is negative, damage has occurred.25 In our case, it is thus decisive whether the consequence of the decision is that the competent entity has to pay more than it gets in return, in other words, if the amount paid exceeds the economic value of the bridge. Against this background, the point in time when the causation of damage shall be examined becomes very important. In the moment when the political decision is taken, the competent authority—normally—has not paid a single euro, yet. However, that does not per se preclude criminal liability for ‘embezzlement and abuse of trust’: in order to establish that damage has been caused, it shall suffice—in principle—that an asset belonging to the trustor was put at risk.26 The underlying rationale is that this alone can already reduce its economic value. This concept of ‘damage through risk’ may become easier to understand if one imagines an accountant, who would not rate a risky asset with its nominal value anymore. Still, this presupposes that the risk of an actual loss is very concrete and not just a mere possibility; it must be ‘virtually certain to occur’.27 But even if it was clear in our case that the bridge would never have a value that balances the price paid for it, the political decision in favour of the project would normally still be part of a purely internal process. Then the decision alone could not be said to have resulted in a binding agreement with a third party, causing a sufficiently concrete risk of monetary loss for the municipality. It is not impossible to imagine situations where the solution would be different, though. An example could be the case that a valid agreement between the municipality and a contractor has already been concluded but was made subject to the condition precedent that the municipality council give its final consent to the measure. So far, it can be concluded that due to its damage requirement, § 266(1) PC is normally of less relevance for the political decision in favour of a project as such (the if question). This applies all the more since it will usually be very complicated

BGH 2 StR 549/89, 6 July 1990, § 59 et seq. (BGHSt 37, 106 et seq.); C. Roxin, Strafrecht Allgemeiner Teil, vol. 1, 4th ed. 2006 (Beck, München), § 11/19. 25 Sch€ unemann (note 7), § 266/168; this test is refused by G. Wolf, Strafbarkeit der rechtswidrigen Verwendung € offentlicher Mittel, 1998 (Klostermann, Frankfurt a.M.), pp. 53 et seq. 26 BGH 5 StR 354/07, 2 April 2008, § 26 (BGHSt 52, 182 et seq.); Perron (note 12), § 266/45. 27 Weigend (note 4), p. 279. 24

Criminal Liability of Political Decision-Makers in Germany

99

to assess the economic value of an infrastructure measure. Rather, this offence will have to be considered with regard to the more technical questions of how the project shall be financed and implemented. For instance, it could be assumed that damage in the sense of § 266(1) PC has been caused if, in the case at hand, a certain contractor was awarded the project although a second one would have built the bridge for a lower price. That this ‘negative balance test’ can actually be used in cases involving politicians and public budgets is illustrated by the criminal proceedings against the former finance minister of the Land Rheinland-Pfalz, Ingolf Deubel. Together with rather dubious partners, he had involved the Land in a risky project that was aimed at transforming the former Formula 1 race course ‘Nürburgring’ into a leisure park. Since this project turned out to be a real fiasco and Mr. Deubel had concluded contracts of suretyship that may oblige the Land to pay millions of euros, he was convicted of ‘embezzlement and abuse of trust’ by the competent Regional Court in Koblenz.28 However, his appeal—which was even supported by the Federal Public Prosecutor General—resulted in the partial annulment of the judgment. According to the Federal Court of Justice, the Regional Court will have to substantiate in further detail that the accused caused the Land a sufficiently concrete risk of monetary loss in a new trial.29 (3) Non-monetary Compensation Assuming that a negative balance can be established, there are still circumstances in which the damage requirement in § 266 PC is not fulfilled. The reason is that it may be in the trustor’s interest that money is spent without getting an economic equivalent in return. This is of particular relevance when public funds are used to finance subsidies or social welfare. From a purely economic point of view, these payments would mostly30 result in a negative balance because they reduce the trustor’s property without monetary compensation. Obviously, an additional criterion is necessary in such circumstances: expenditures of that kind are considered to fall within the scope of § 266 PC if they fail to achieve the intended (and socially approved) purpose.31 Such is the case if, for instance, money that a company has reserved for charity is used for a staff dinner. According to some authors, this ‘failed purpose approach’ shall apply to an even greater extent with regard to public funds, namely always when officials spend money for a different purpose than the

28

Further counts concerned undue payments and other irregularities in the context of the project finances. In the worst case, the obligations of the Land may amount to 330 million euros, see BGH 3 StR 17/15, 26 November 2015, § 45. 29 BGH 3 StR 17/15, 26 November 2015, § 50 et seq. 30 If the recipient is entitled to the payment, however, an economic compensation can be seen in the fact that the state’s obligation ceases to exist once it has been fulfilled. 31 Perron (note 12), § 266/43; Saliger (note 7), § 266/94.

100

F. Zimmermann

one to which it was originally dedicated.32 In the case at hand, a (partly) non-monetary compensation may come into play, for instance, when a more expensive bridge construction is chosen for environmental reasons, maybe in order to protect the breeding ground of an endangered fish species. (4) The ‘Individual Damage’ Doctrine In most cases, however, it will be impossible to prove that a public measure was not worth the money paid for it or that funds were not used in accordance with their purpose. Nevertheless, the political decision may have got the respective entity into serious difficulties. For such cases, a broader understanding of the damage requirement in § 266(1) PC could present a solution: it is basically accepted in German criminal law that the causation of damage can also be established by taking into account the individual value of an asset for the trustor. To illustrate this, our above example only needs to be slightly amended. Assume that S is once again an authorised signatory of enterprise X. This time, he is on a business trip. Instead of choosing an ordinary hotel room (what internal guidelines of X would require him to do), he rents the presidential suite of a five-star hotel at a fair price of 4000 euros per night. In this case, the balance of the transaction is zero: X (represented by S) is granted the use of the presidential suite and thus an adequate compensation for the rental payment. However, a particularly luxurious accommodation of S is of no worth for the enterprise at all. Therefore, the extra costs would be considered as damage in the terms of § 266(1) PC.33 However, this broad interpretation entails certain problems. This is because the individual usefulness (or uselessness) of an asset is not strictly speaking an economic category. Thus, this concept departs to a certain extent from the classical understanding of § 266(1) PC, according to which the provision shall only protect the trustor’s property against illegal reduction. At least, a wide application of the ‘individual damage’ doctrine would, by contrast, result in punishing any use of assets that does not correspond to the trustor’s expectations. Then the violation of a fiduciary duty would ultimately suffice to establish criminal liability—a result that would hardly be consistent with the fact that § 266(1) PC requires actual economic damage to have occurred.34 Does, for instance, our authorised signatory S commit this offence if he buys a machine from a producer that is banned by internal guidelines of enterprise X, say for strategic reasons? As long as X really needs the machine and the price negotiated by S is reasonable, the mere fact that X did not want to buy from that particular producer can hardly fulfil the damage requirement. Therefore, a decision by the Federal Court of Justice dating from 1961 established

Saliger (note 7), § 266/96; Perron (note 12), § 266/44; see also Wolf (note 25), pp. 104 et seq. Compare Saliger (note 7), § 266/63. 34 See, in a different context, BVerfG 2 BvR 2259/08, 23 June 2010, § 108 (BVerfGE 126, 170 et seq.); the relevance of this decision for the ‘individual damage’ doctrine is further examined infra II.1.a)cc)(5). 32 33

Criminal Liability of Political Decision-Makers in Germany

101

additional requirements: in such circumstances, a relevant damage occurs (only) if the act got the trustor into financial difficulties, forced him to take high-interest loans or diminished his economic potential to a large extent.35 In 1997, the Federal Court of Justice transferred these principles to a case in which a public budget had been affected. It repeated that § 266(1) PC exclusively aims at protecting the trustor’s property. Therefore, the fact that a decision is not in line with rules for the use of public money (for instance, because it is taken by someone who is not competent for that type of decision36) could not result in criminal liability under this provision. Rather, the application of the ‘individual damage’ doctrine to public budgets presupposed that due to exceeding the budget, taking out an economically significant loan becomes necessary, the possibility of the legislator37 to dispose of its resources is seriously affected and, particularly, that the legislator’s possibilities for political action are thus curtailed.38

(5) Restrictions Required by the Federal Constitutional Court Notwithstanding these limitations, the ‘individual damage’ doctrine and the concept of ‘damage through risk’ paved the way towards a very broad interpretation of the damage requirement. These tendencies provoked an intense discussion in the literature. Many commentators argued that particularly the ‘damage through risk’ approach resulted in an analogous application of § 266(1) PC to cases that were not covered by the wording of the provision anymore and that they thus violated the principle of legality.39 In 2010, the Federal Constitutional Court partly followed this reasoning and called for restrictions to maintain the constitutionality of § 266 (1) PC.40 Particularly, it pointed out that this concept must not diminish the limitations of criminal liability defined in the law: the fact that the accused put the trustor’s property at risk could only be considered a causation of damage in the terms of § 266(1) PC if this ‘damage through risk’ could indeed be measured in monetary terms. But interestingly, the Federal Constitutional Court did not raise major concerns against the ‘individual damage concept’ in a subsequent decision. That case is of great relevance for the present study because it involved misconduct of a politician in office: a former mayor had been sentenced to 2 years’ imprisonment (which had been suspended on probation) because he had, during his time in office, taken out more loans for his municipality than he had been permitted to by the local council—

BGH 4 StR 166/61, 16 August 1961, §§ 13, 18, 19 (BGHSt 16, 321 et seq). This was a fraud case, but the damage requirement of fraud is considered identical to the one of § 266(1) PC. 36 This reasoning is sharply criticised by Sch€ unemann (note 3), pp. 42 et seq. 37 The case concerned damage caused to the budget of a Land; put more generally the BGH addresses the possibility of a public entity to dispose of its resources. 38 BGH 1 StR 273/97, 4 November 1997, § 24 (BGHSt 43, 293 et seq.). 39 See for example Dierlamm (note 10), § 266/3; Sch€ unemann (note 7), § 266/24 et seq. 40 BVerfG 2 BvR 2259/08, 23 June 2010, § 68 et seq. (BVerfGE 126, 170 et seq.). 35

102

F. Zimmermann

at peak more than twice as many.41 The Federal Court of Justice upheld his conviction and considered the damage to be the interest that the municipality had to pay on the loans. It did not accept the accused’s defence that these loans had been necessary to comply with the municipality’s duties and beyond that had corresponded to market standards. The Federal Constitutional Court, by contrast, pointed out that the municipality did get something in return for the interest rates: the possibility to spend money that it actually did not have. Therefore, it held that an obligation to pay a market standard interest rate is usually compensated by the gain in liquidity and thus does not in itself suffice to justify a conviction for ‘embezzlement and abuse of trust’.42 However, the Federal Constitutional Court did not ban the ‘individual damage’ doctrine as such. Quite the opposite, it explained that in the case at hand, the decision to take out loans (and pay interest in return) might be considered economically worthless for the affected municipality—and thus the causation of ‘individual damage’—due to its budget situation.43 It also gave criminal courts some guidance for comparable cases in the future: they will need to substantiate that the loan was used to finance measures that were economically inappropriate, for instance because they worsened the situation of a municipality that already was in financial straits.44 Thus, the Federal Constitutional Court essentially upheld the principles established in the prior jurisprudence of criminal courts, including the Federal Court of Justice. Against this background, a decision on an infrastructure measure as in our case can—at least as a matter of principle—be regarded as having caused ‘individual damage’ to the respective public entity if the project turns out to be grossly oversized or completely useless. The same applies if the project is financed with loans that—in view of the entity’s precarious financial situation—are clearly economically inappropriate.

dd) Both Alternatives: Mental Element (Dolus Eventualis) The perpetrator must have acted intentionally (§ 15 PC), i.e. with dolus eventualis, in respect of all objective elements of the offence. Thus, a conviction for ‘embezzlement’ is not possible when he/she with regard to one of the elements acted only negligently. However, this distinction sounds clearer than it is: according to wellestablished jurisprudence, as well as the prevailing opinion in the literature, dolus eventualis in an ‘embezzlement’ case requires that the perpetrator (1) did foresee the possibility that the relevant act would violate his/her fiduciary duty and cause the trustor a monetary loss and (2) accepted that risk.45 By contrast, it would—

41

BGH 1 StR 592/10, 13 April 2011 (NStZ 2011, 520 et seq.). BVerfG 2 BvR 1235/11, 1 November 2012, § 22 (NJW 2013, 365 et seq.). 43 BVerfG 2 BvR 1235/11, 1 November 2012, § 23 et seq. (NJW 2013, 365 et seq.). 44 BVerfG 2 BvR 1235/11, 1 November 2012, § 26 (NJW 2013, 365 et seq.). 45 BGH 1 StR 185/01, 15 November 2001, § 79 (BGHSt 47, 148 et seq.); Perron (note 12), § 266/49; Kindh€ auser (note 6), § 266/122. 42

Criminal Liability of Political Decision-Makers in Germany

103

according to a common formula—be regarded as mere negligence when the perpetrator was confident that no damage would occur.46 It is therefore evident that, in many cases, it can be a promising defence strategy to claim that a politician charged with ‘embezzlement’ expected that his/her decision would turn out to be a good one. This can be illustrated by another recent example: in 2012, criminal proceedings were initiated against the former prime minister of the Land Baden-Württemberg, Stefan Mappus. He had arranged a deal in which the Land bought back some 45% of the shares of an energy supplier (EnBW) at a price of 4.7 billion euros. It was criticised that he had without any good reason insisted in a hasty implementation of the bargain and thus had prevented its thorough assessment. Furthermore, the fact that he had not even informed the Parliament of the deal was declared a violation of the Land’s Constitution by the Baden-Württemberg Constitutional Court. Since the price paid for the shares later was considered exaggerate, Mr. Mappus was presumed to have caused the Land damage of at least 840 million euros. Nevertheless, criminal proceedings were terminated because it could not be proven that he had acted with dolus eventualis as to the causation of damage. If in our case M was aware of the fact that the bridge was oversized or useless and nevertheless promoted the project, he would be considered to have acted with dolus eventualis. That will suffice to convict him for ‘embezzlement and abuse of trust’. In reality, however, this can turn out to be quite difficult: even when it can be established on an objective level (1) that the monetary value of the bridge was smaller than the price paid for it or (2) that the prerequisites of the ‘individual damage’ doctrine are met, the mental element of § 266(1) PC will often be hard to prove. Particularly in the case of controversial projects whose pros and cons are subject to lively debate, a politician’s defence that he/she was convinced of the measure’s positive effects may thus be successful. Nevertheless, a certain risk remains that a politician’s criminal liability will also depend on a criminal court’s assessment of his/her decision.

b) Other Offences There are, of course, other offences that might come into play in situations similar to the one in our case. The most important one of them is fraud (§ 263(1) PC). This offence requires an act of deception, of which at least the case of M gives no clear hint. It should be noted, however, that such deception can also be committed by omission if the perpetrator had a duty to inform somebody else (e.g., in our case, other members of the municipality council) of certain facts that he/she had knowledge of. But even if this should be proven, criminal liability would ultimately be based on the act of deception, not on the decision as such. Furthermore, § 263 (1) PC—just like § 266(1) PC—presupposes the causation of damage. In that regard, quite similar problems as the ones discussed above will arise.

46

Roxin (note 24), § 12/23.

104

F. Zimmermann

2. Part 2: Criminal Liability for Pursuit of Personal Interests In German criminal law, there is no statutory offence that generally47 penalises conduct that constitutes a conflict of interest, for instance when M in our case is a partner of a potential contractor. Provisions of public law do exclude biased members of a municipality council from the decision-making process.48 But the member’s failure to disclose a conflict of interest and participation in the decisionmaking does not as such entail criminal liability. Nevertheless, the solution of our case might be slightly different: in such circumstances, it would probably be easier to establish that M acted with the intent to cause damage to the public budget and thus apply § 266(1) PC. If it turns out that M took a decision or exercised his influence in order to obtain a personal benefit, the focus will be on bribery offences. Before we start examining their constituent elements, it needs to be clarified that German criminal law does not rely upon one general provision covering all situations in which bribes are offered or accepted. Rather, the Penal Code differentiates between several offences by the person who is offered the benefit or accepts it. a) Bribery in the Public Sector: § 331 PC et seq. When a public building project is concerned, the taking or giving of a benefit will normally qualify as bribery in the public sector (involving public officials), which is generally dealt with by § 331 PC et seq. Under which circumstances M would risk punishment is defined by § 331(1) and § 332(1) PC: § 331 PC – Taking bribes (1) A public official or a person entrusted with special public service functions who demands, allows himself to be promised or accepts a benefit for himself or for a third person for the discharge of an official duty shall be liable to imprisonment not exceeding three years or a fine. § 332 PC – Taking bribes meant as an incentive to violating one’s official duties (1) A public official or person entrusted with special public service functions who demands, allows himself to be promised or accepts a benefit for himself or for a third person in return for the fact that he performed or will in the future perform an official act and thereby violated or will violate his official duties shall be liable to imprisonment from six months to five years. In less serious cases the penalty shall be imprisonment not exceeding three years or a fine. The attempt shall be punishable.

Hence, there are significant parallels between the two provisions in that they both address the same group of persons (mainly public officials) and require that a person belonging to that group must have demanded, allowed himself to be promised or accepted a benefit. Furthermore, that benefit must in some way be

§ 356 PC applies only to an attorney who, in breach of his duty, serves both parties in the same legal matter. 48 See, for instance, Art. 49 of the Bavarian Municipality Code (Gemeindeordnung). 47

Criminal Liability of Political Decision-Makers in Germany

105

related to the person’s conduct in office. Finally, it follows from the general provision in § 15 PC that the person must at least have acted with dolus eventualis with regard to the objective elements of the respective offence (see already supra II.1.a)dd)). Against this background, some more specific questions that can arise in our case need to be addressed in further detail.

aa) Persons Covered by the Offences: Public Officials One of the key elements of these offences is that the perpetrator must be a public official.49 This term is defined in § 11(1) no. 2 PC: ‘public official’ means any of the following if under German law they (a) are civil servants or judges, (b) otherwise carry out public official functions or (c) have otherwise been appointed to perform public administrative services regardless of the organisational form chosen to fulfil such duties at an authority or other agency or have been commissioned to do so; (. . .).50

As far as politicians are concerned, different categories need to be distinguished: mayors as well as chief executives of a county are officially appointed civil servants51 and therefore fall under (a). All members of a federal or state government do not have that status and therefore are said to ‘otherwise carry out public official functions’ in the sense of (b).52 The classification of two groups, however, causes bigger problems: members of Parliament and members of municipality or county councils. They can only fall under (c). The key element of that provision is the performance of public administrative services, which usually involves the exercise of public authority. This alternative is therefore clearly directed at the executive branch. It is thus generally accepted that persons exercising legislative powers do not belong to the category of public officials (exceptions may apply where they exercise specific functions of administrative character within the respective institution, such as the president of the Bundestag).53 As seen above, members of

49

In order to not exceed the framework of this case study, only public officials under German law are addressed here. But it is important to note that since a legislative reform in November 2015 §§ 331, 332 PC et seq. no longer cover only German but also European public officials (defined in § 11(1) no. 2a PC) and in some cases even foreign public officials (§ 335a PC). 50 The translation of § 11(1) no. 2(c) PC provided by the Federal Ministry of Justice is slightly different (‘have otherwise been appointed to serve with a public authority or other agency or have been commissioned to perform public administrative services regardless of the organisational form chosen to fulfil such duties’). The version used here shall make clear that the performance of public administrative services is the common element of all sub-categories. 51 See, for instance, Art. 1(2) of the Bavarian Act on Elected Civil Servants on the Local Level (Gesetz u€ber kommunale Wahlbeamte und Wahlbeamtinnen). 52 Fischer (note 6), § 11/16. 53 H. Satzger, in: Satzger/Schluckebier/Widmaier (eds.), Strafgesetzbuch, 3rd ed. 2017 (Heymanns, K€ oln), § 11/28.

106

F. Zimmermann

municipality and county councils belong to the executive branch. Therefore, they could in principle fall under (c). However, the Federal Court of Justice held a few years ago that they do not.54 According to that decision, the performance of ‘public administrative services’ presupposes an organisational integration into the respective authority and implies a certain structure of subordination. Members of a municipality or county council, by contrast, shall exercise their mandate freely and are not subject to orders or instructions. Although these bodies are considered part of the executive branch, their members are hence no public officials. For our case, this means that criminal liability for bribery offences pursuant to § 331 PC et seq. can only exist if M is a mayor or (federal or state) minister. As § 331 PC et seq. presuppose that the person who takes or is given a benefit holds a public office, they do not apply to candidates. This may lead to strange results: a mayor who is running for re-election would be criminally liable if he/she during the electoral campaign accepted a benefit with regard to the future performance of official acts. His/her opponent, being just a candidate and not yet a public official, would go unpunished for the acceptance of the same benefit. In its first decision that dealt with the question, the Federal Court of Justice pointed out that this could hardly be reconciled with the constitutional guarantee that all candidates shall have equal chances in an election. Therefore, it indicated that under very limited circumstances, § 331 PC et seq. need to be restricted to avoid such discrimination.55 The judges held that a benefit offered to support merely the mayor’s general political placement was not illegal, whereas it would be covered by § 331 PC et seq. if the mayor declared his willingness to take a concrete decision in favour of the donor after his re-election.56 A few years later, a second decision of the Federal Court of Justice (in the same case) further clarified—some say restricted57—this approach: the parties of the bargain do not necessarily have to anticipate a concrete official act. Rather, it shall suffice for a conviction if (1) they both assume that the public official will be concerned with some project of the donor in the future and (2) the bargain creates the impression that the benefit is meant to influence his decision.58 Of course, this does not fully eliminate the problem because, under these circumstances, a candidate who already is a public official can still be punished, whereas his opponent who does not hold that special position cannot. This, however, is considered a consequence of the legislator’s decision to impose special duties on public officials.59 Besides, it is the aim of bribery offences to avoid every suspicion that public administration can be corrupted. Thus, only cases where such impression cannot reasonably arise shall

BGH 5 StR 453/05, 9 May 2006, § 22 et seq. (NJW 2006, 2050 et seq.). BGH 3 StR 301/03, 28 October 2004, § 39 et seq. (NJW 2004, 3569 et seq.). 56 BGH 3 StR 301/03, 28 October 2004, § 47 (NJW 2004, 3569 et seq.). 57 See H. Rosenau, in: Satzger/Schluckebier/Widmaier (eds.), Strafgesetzbuch, 3rd ed. 2017 (Heymanns, K€ oln), § 331/45. 58 BGH 3 StR 212/07, 28 August 2007, § 18 (NJW 2007, 3446 et seq.). 59 BGH 3 StR 301/03, 28 October 2004, § 48 (NJW 2004, 3569 et seq.). 54 55

Criminal Liability of Political Decision-Makers in Germany

107

not be covered.60 In particular, the Federal Court of Justice gave a hint that this restriction will typically be relevant only for small campaign donations.61 Finally, some provisions of the Political Parties Act (Parteiengesetz) should not be neglected: § 25(2) forbids political parties to accept donations under certain circumstances. In particular, no. 7 of that provision excludes donations that are made in expectation of or in exchange for a specific economic or political benefit— no matter whether the recipient qualifies as public official or is only a candidate. If this prohibition is not respected, the party will have to pay a fine (three times as high as the donation, § 31c), which in turn can make the party’s representative liable for ‘embezzlement and abuse of trust’, § 266 PC.62 If additional requirements are fulfilled, also a special statutory offence (§ 31d Political Parties Act) may apply.

bb) The Requirement of an (Undue) Benefit German criminal law does in no way limit the types of relevant benefits. This is because not particular types of benefits but the exchange of a benefit and an act in performance of public duties are deemed illegal. Accordingly, § 331 PC et seq. cover both tangible and intangible benefits, as well as benefits for a third person. The latter do not only include benefits for political parties, but (at least as a matter of principle) also for public entities.63 Whether a benefit in the terms of § 331 PC et seq. has been offered or obtained can be more difficult to determine, however, if the beneficiary was entitled to it by virtue of a contract. This can be illustrated with a case decided by the Federal Court of Justice in 201164: a photographer had offered a school (not the headmaster personally) ‘sponsoring’ if he was hired to take photographs of all classes. The judges rightly pointed out that the mere existence of a contract cannot exclude criminal liability; otherwise, all bribery offences could be easily circumvented. Instead, they basically considered already the conclusion of the contract to be a benefit in the sense of § 331 PC et seq.65 That approach, however, would have undesirable consequences where the law allows or even encourages public officials to enter into agreements with private individuals (as is the case with third-party funding for research projects at universities). Therefore, the Federal Court of Justice applied an additional test and asked whether all legal requirements (which will normally have their origin in public law and can be manifold66) for the BGH 3 StR 301/03, 28 October 2004, § 47 (NJW 2004, 3569 et seq.); 3 StR 212/07, 28 August 2007, § 18 (NJW 2007, 3446 et seq.). 61 BGH 3 StR 212/07, 28 August 2007, §§ 15, 22 (NJW 2007, 3446 et seq.). 62 BGH 3 StR 265/14, 11 December 2014, § 37 et seq. (BGHSt 60, 94 et seq.). 63 M. Korte, in: Joecks/Miebach (eds.), Münchener Kommentar zum Strafgesetzbuch, vol. 5, 2nd ed. 2014 (Beck, München), § 331/78, 80. 64 BGH 3 StR 492/10, 26 May 2011 (wistra 2011, 391 et seq.). 65 BGH 3 StR 492/10, 26 May 2011, § 20 (wistra 2011, 391 et seq.); see also G. Heine/J. Eisele, in: Sch€ onke/Schr€ oder, Strafgesetzbuch, 29th ed. 2014 (Beck, München), § 331/17 with further references. 66 This solution is therefore criticised as over-criminalising, see Rosenau (note 57), § 331/44. 60

108

F. Zimmermann

respective arrangement had been respected.67 Some authors argue that the question of whether a legitimate reason for the offering or obtaining of the benefit existed should rather be addressed in the context of the ‘corrupt agreement’ criterion.68 This, however, will usually not lead to different results. cc) The Requirement of a ‘Corrupt Agreement’ (Unrechtsvereinbarung) The wording of § 331(1) PC (i.e., ‘benefit . . . for the discharge of public duties’) demonstrates the requirement of a connection between the granting of a benefit and the performance of public duties. § 332(1) PC puts this even clearer—there the benefit must be obtained ‘in return for’ the performance of an official act. This relationship of do ut des, which is a constituent element of all bribery offences, is commonly referred to as ‘corrupt agreement’ (Unrechtsvereinbarung) in German criminal law. It requires that both donor and public official are well aware of the connection between the benefit and the performance of the official act; thus, the benefit is granted precisely in exchange for something the public official does.69 What is important to note is that the requirement of a corrupt agreement is not identical in the different bribery provisions. Thus, it is mainly this element’s specific prerequisites that shape the character of the single offences. (1) Taking Bribes, § 331(1) PC For the offence of taking bribes, § 331(1) PC, it is sufficient that the benefit is somehow linked to the discharge of public duties. Whereas the former version of the provision (in force until 1997) required a connection with the performance of a specific official act, the corrupt agreement for this type of bribery can thus be a very general one today. As a consequence, the current version of § 331 PC even covers benefits that are merely aimed at gaining the public official’s favour (‘grooming’ or ‘sweetening’), without demanding anything particular in return.70 Furthermore, it does not matter whether the corrupt agreement refers to a discharge of public duties in the past or in the future:71 both alternatives are covered by § 331 PC.72 If the benefit is granted for the future, the existence of a corrupt agreement between the donor and the public official is sufficient for a conviction. Whether an official act will actually be performed or whether the public official is really willing to do

BGH 3 StR 492/10, 26 May 2011, § 22 (wistra 2011, 391 et seq.); 1 StR 372/01, 23 May 2002, § 47 (BGHSt 47, 295 et seq.). 68 See for example Korte (note 63), § 331/73. 69 Fischer (note 6), § 331/23. 70 Rosenau (note 57), § 331/29. 71 In contrast, § 335a PC only covers future performances of an official act. 72 Heine/Eisele (note 65), § 331/30. 67

Criminal Liability of Political Decision-Makers in Germany

109

something for the donor is irrelevant.73 This clearly shows that § 331(1) PC aims to prevent even an appearance of corruptibility.74 Likewise, § 331 PC does not distinguish between official acts in accordance with or contrary to the public official’s duties. The decisive element is merely that a benefit is linked to state activities. The prevailing opinion has appreciated the reform that loosened the requirements for a corrupt agreement in § 331(1) PC, especially because it lowered the burden of proof.75 Under the former version of the provision, it was often difficult for prosecution authorities to prove that the benefit was granted in return for a specific official act. At the same time, broadening the scope of the offence led to difficulties in the distinction between lawful behaviour and unlawful corruption. This is especially the case in ‘grey areas’ like sponsoring, third-party funding and donations to political parties, thus areas that politicians are frequently concerned with. What is more, third-party funding and party donations are not just allowed but actually highly desirable. In order to prevent too far-reaching criminalisation, the requirement of a corrupt agreement therefore needs to be interpreted carefully. Most importantly, an agreement is commonly regarded as lawful if the granted benefit is socially appropriate. This concerns especially small benefits granted by courtesy or considered conventional (e.g., low-value donations on the occasion of a jubilee).76 Beyond this generally accepted limitation, however, a systematic approach for a reasonable restriction of the statutory offence does not exist. Instead, jurisprudence and doctrine have developed specific criteria for different categories of cases. Some of the most important ones have already been mentioned: when the Federal Court of Justice allowed campaign donations that merely aim at supporting the beneficiary’s general political placement, it actually denied the existence of a corrupt agreement.77 The same is true with regard to cases of sponsoring (the school photographer example78) and third-party funding79: if all legal requirements for that particular agreement between a public official and a private individual are met, it can hardly be considered corrupt. Even though the Federal Court of Justice did not expressly link § 331(1) PC to the provisions of the Political Parties Act in its abovementioned decision, it can thus be concluded that donations in conformity with that Act—and particularly its § 25(2) no. 7—will never be considered an act of bribery.

73

C. Sowada, in: Laufhütte/Rissing-van Saan/Tiedemann (eds.), Leipziger Kommentar zum Strafgesetzbuch, vol. 13, 12th ed. 2009 (De Gruyter, Berlin/New York), § 331/61. 74 Rosenau (note 57), § 331/31. 75 Heine/Eisele (note 65), § 331/7; L. Kuhlen, in: Kindha¨user/Neumann/Paeffgen (eds.), Strafgesetzbuch, 4th ed. 2013 (Nomos, Baden-Baden), § 331/75. 76 Korte (note 63), § 331/110. 77 Supra II.2.a)aa). The Court did not take a stand with regard to the question of whether this restriction is to be derived from the Grundgesetz or whether it follows from § 331 PC and its requirement of a corrupt agreement itself; see BGH 3 StR 212/07, 28 August 2007, § 15 (NJW 2007, 3446 et seq.). 78 Supra II.2.a)bb). 79 BGH 1 StR 372/01, 23 May 2002 (BGHSt 47, 295 et seq.).

110

F. Zimmermann

In our case, however, the prerequisite of a corrupt agreement would most likely be fulfilled: if it can be established that M allowed himself to be promised a benefit that was linked to the decision on the building project and thus to the performance of his official duties, this will suffice for a conviction pursuant to § 331(1) PC. As long as the agreement with the donor was directed towards that particular decision, this could not be considered as support for his general political placement. Thus, the restriction for campaign donations would not apply according to the criteria established by the Federal Court of Justice. The solution would be different, though, if M was only a candidate at the point in time when he was offered the benefit: then § 331 PC et seq. would not apply to him. (2) Taking Bribes Meant as an Incentive to Violating One’s Official Duties, § 332 (1) PC As in our case the benefit can be assumed to be linked to the decision on the building project, also the more specific statutory offence of § 332 PC may apply. Unlike § 331 PC, it presupposes that (1) the benefit is linked to the performance of a specific official act and that (2) this act constitutes a violation of the public official’s duties. Hence, the corrupt agreement in § 332(1) PC needs to be much more precise and directed towards official misconduct. As a consequence, there is no similarly urgent need to limit the scope of the offence as is the case with § 331(1) PC. Thus, the restrictions developed for the latter provision do not apply here. In particular, a campaign donation offered in exchange for a violation of official duties does not merely support the recipient’s general political placement, and an agreement that envisages misconduct in office can never be socially appropriate.80 When examining whether the public official complied with his/her duties or not, one has to distinguish between discretionary acts on the one hand and the situation where he/she was legally bound to perform an act (or refrain from it) on the other (see § 332(3) PC): if an act of the latter kind is concerned, the public official will be considered to have violated his duties if the outcome is incompatible with the applicable rules of public law.81 For discretionary measures, § 332(3) provides that it shall suffice for criminal liability that the public official allowed himself to be influenced by the benefit in his decision taking—no matter whether the resulting act itself can be criticised.82 Political decisions, for instance on infrastructure projects as in our case, are normally characterised by a high level of discretion. As long as it can be established that M’s decision to have the bridge built was actually influenced by the offer of a benefit, he can therefore not claim that it is all in all reasonable, and a conviction based on § 332(1) PC is possible.

80

Such an agreement jeopardises the integrity of the public sector. However, an act is only deemed socially appropriate if the protective purpose of the relevant provision is not affected—see for example Roxin (note 24), § 10/40; Korte (note 63), § 331/11. 81 BGH 1 StR 541/01, 23 October 2002 § 39 (BGHSt 48, 44 et seq.); Fischer (note 6), § 332/8. 82 BGH 1 StR 541/01, 23 October 2002, § 39 (BGHSt 48, 44 et seq.) with further references.

Criminal Liability of Political Decision-Makers in Germany

111

b) Corruption of Persons Holding a Democratic Mandate, § 108e PC As a consequence of the narrow definition in § 11(1) no. 2 PC, many persons holding a democratic mandate do not qualify as public officials. However, acts of bribery committed by or against mandate holders are covered by § 108e PC. The only time this provision was significantly amended was as recently as in 2014, mainly in order to comply with obligations under international law.83 It goes without saying that many questions as to the interpretation of this quite new provision are still heavily disputed and awaiting a definite answer. The following remarks can therefore only present a preliminary assessment. The new provision expressly applies to members of Parliament (no matter if on federal, state or EU level), as well as members of municipality and county councils who demand, allow themselves to be promised or accept certain types of benefits. If in our case M is a member of the municipality council, § 108e PC and not § 331 PC et seq. will therefore have to be examined. Although the structure of § 108e PC is very similar to the one of the bribery offences described above, there are also important differences.

aa) The Requirement of an Undue Benefit As a starting point, § 108e PC follows the same (broad) approach as § 331 PC et seq. with regard to the benefit requirement. But unlike them, it explicitly requires the benefit to be undue. Subsection 4 of the provision even provides a non-exhaustive negative list of benefits that shall never be relevant: a political mandate or function, as well as a donation given in conformity with the applicable laws. Thus, a benefit consisting merely in support for the electoral campaign will not entail criminal liability as long as the legal prerequisites are respected. In that regard, reference can once again be made to the provisions of the Political Parties Act, which prohibit the acceptance of certain donations84 and establish formal requirements that shall primarily ensure transparency.85 Apart from that, § 108e(4) PC generally states that a benefit shall not be considered undue if it was accepted by the mandate holder in accordance with regulations applicable to him. These primarily include codes of conduct for members of Parliament established by the German Bundestag and the L€ ander parliaments.86 In the legislative process, the opinion was expressed that a benefit should not qualify as undue either if its acceptance is consistent with

83

The amendment is based on the UN Convention against Corruption; see also H. Satzger, Juristische Ausbildung 2014, pp. 1022 et seq. 84 § 25(2) Political Parties Act, see supra II.2.a)aa) and cc)(1). 85 In particular, donations exceeding 10.000 € must be reported to the president of the Bundestag, see § 25(3) Political Parties Act. 86 R. Francuski, H€ ochstrichterliche Rechtsprechung zum Strafrecht 2014, p. 220 (226).

112

F. Zimmermann

parliamentary practices.87 In legal doctrine, however, this interpretation is criticised, the notion of ‘parliamentary practices’ being too vague and useless for a clear solution of individual cases.88 In the case at issue, there is no indication that the benefit that M received cannot be deemed undue. This would only be the case if the benefit was granted to M merely in support of an electoral campaign and not in return for the specific project of building the bridge.

bb) The Requirement of a Corrupt Agreement Like in the context of § 331 PC et seq., criminal liability pursuant to § 108e PC requires the existence of a corrupt agreement. This can be derived from the fact that the benefit needs to be demanded, obtained etc. ‘in return for performing or refraining from an act in exercise of the mandate by order or under direction’. (1) In Return for Performing or Refraining from an Act Firstly, there needs to be a consensus between the donor and the mandate holder that the benefit offered by the former shall be linked to an act performed by the latter. As the wording of § 108e PC corresponds to the one of § 332 PC, that corrupt agreement must be directed towards a specific act. Unlike in § 331(1) PC, the granting of benefits merely to gain the mandate holder’s favour (‘grooming’ or ‘sweetening’) is thus not covered by § 108e PC. Furthermore, it is clear that the German text of the provision exclusively refers to future acts.89 Subsequent rewards for an act performed in the past are therefore irrelevant for criminal liability. That persons holding a mandate in the sense of § 108e PC enjoy these privileges can be explained by the difference in status between them and public officials: whereas a public official is bound by his superiors’ instructions, a mandate holder is only obligated to his conscience (for members of the Bundestag, this is enshrined in Art. 38(1), second sentence Const.). Therefore, the mandate holder does not have to be objective but is allowed to represent special interest groups. Against this background, the narrower scope of § 108e PC is deemed reasonable.90

87

Bundestags-Drucksache (Parliamentary Document—BT-Drs. from here onwards) 18/476, p. 6. Satzger (note 83), p. 1028; E. Kempf, in: Lüderssen/Volk/Wahle (eds.), Festschrift für Wolf Schiller, 2014 (Nomos, Baden-Baden), p. 359 (365); M. Kubiciel/E. Hoven, Neue Kriminalpolitik 2014, p. 339 (352); Francuski (note 86), p. 228. 89 Fischer (note 6), § 108e/35. 90 Satzger (note 83), p. 1029. 88

Criminal Liability of Political Decision-Makers in Germany

113

(2) Act in Exercise of the Mandate Whilst the former version of §108e PC criminalised only the buying and selling of a vote, the current text of the provision sets a lower threshold: the act that is expected from the mandate holder in exchange for the benefit must be performed ‘in exercise of the mandate’. Besides voting in Parliament and its committees, this includes, for instance, promoting a proposal or opposing it by making a speech or writing a statement.91 It shall even suffice that this is done in a parliamentary group.92 What is decisive, though, is that the agreement between the donor and the mandate holder concerns a matter that is negotiated or discussed in Parliament (or one of the other bodies enumerated in § 108e PC).93 By contrast, the legislative materials show that cases where only the mandate holder’s reputation or contacts are exploited in order to influence a process beyond his/her competence do not fall under the provision.94 On this basis, mainly so-called trading in influence would be excluded from criminalisation. (3) By Order or Under Direction In addition, the corrupt agreement must envisage that the mandate holder perform an act (or refrain from doing so) ‘by order or under direction’. According to the legislative materials, such order or direction does not have to be legally binding in any way.95 Instead, this element shall be interpreted in the sense of a close causal relationship between the benefit on the one hand and the performance of an act in exercise of the mandate on the other. The mandate holder is thus not criminally liable for accepting a benefit that does not influence his/her decisions.96 In other words, § 108e PC establishes additional requirements for the element of a corrupt agreement: whereas in § 331 PC et seq. the existence of such bargain only requires that the benefit is received in return for the performance of an act (regardless of whether the act would have been performed anyway), § 108e PC presupposes that the mandate holder perform an act precisely because of the benefit.97 If in our case M is a member of the municipality council—so that only § 108e PC applies—he might therefore claim that his decision to have the bridge built was fully in line with his personal conviction and that, consequently, he was not influenced by the benefit. In that case, M could not be convicted on the basis of § 108e PC.

Fischer (note 6), § 108e/19; Kubiciel/Hoven (note 88), p. 345. BT-Drs. 18/476, p. 8. 93 BT-Drs. 18/607, p. 8. 94 BT-Drs. 18/607, p. 8. 95 BT-Drs. 18/476, p. 8. 96 BT-Drs. 18/607, p. 7. 97 Kubiciel/Hoven (note 88), p. 348. 91 92

114

F. Zimmermann

III. Special Sanctions Applicable to Politicians The German Penal Code provides for a possibility to deprive a convicted person of the ability to hold public office or be elected in public elections, see § 45 PC: (1) A person who has been sentenced for a felony to a term of imprisonment of not less than one year shall, for a period of five years, lose the ability to hold public office and be elected in public elections. (2) The court may deprive a convicted person of the ability indicated in subsection (1) above for a period of from two to five years if the law expressly so provides.

Whereas § 45(1) PC only applies to convictions for a felony (i.e., an offence with a minimum sanction of one year imprisonment, § 12(1) PC), § 45(2) PC extends this possibility to convictions for certain offences that are not felonies. However, this presupposes that the respective provision in the Penal Code provides for this special consequence of a conviction. Some examples relevant for politicians are: – § 108e(5) PC (bribing delegates); – § 108c read in conjunction with §§ 107 (disruption of an election process), 107a (falsification of election results), 108 (blackmailing voters) and 108b PC (bribing voters); – § 264(6) PC (subsidy fraud); as well as – § 358 read in conjunction with §§ 332 (taking bribes meant as an incentive to violate public duties) and 335 PC (aggravated cases of taking/giving bribes). Section 45b(1) PC allows the reinstatement of abilities lost pursuant to § 45 (1) and (2) if the loss has been in effect for half of its pronounced duration and if it can be expected that the convicted person will commit no further intentional offences.

IV. Immunities and Other Limitations of Criminal Liability 1. Immunity Ratione Persona and Ratione Materiae German law distinguishes between two types of immunities for members of Parliament: on the one hand, the Grundgesetz establishes what could be described as immunity rationae personae in its Art. 46(2). The provision establishes a procedural obstacle to prosecution of members of the federal Parliament. For members of state parliaments, similar provisions can be found in the different L€ ander constitutions. On the other hand, Art. 46(1) Const.—as well as § 36 PC and various provisions in the L€ ander constitutions—contains an immunity rationae materiae. It exempts members of Parliament from any form of legal responsibility for their votes cast (i.e., also their decisions taken), as well as for their speeches in Parliament. This is referred to as Indemnit€ at in German. These two types of immunity differ considerably both with regard to their scope and the underlying reasoning.

Criminal Liability of Political Decision-Makers in Germany

115

The immunity rationae personae has a wide scope of application since it covers all activities of members of Parliament: pursuant to Art. 46(2) Const., mandate holders may not be called to account or be arrested for any criminal offence, unless they are apprehended during its commission or the following day. This excludes already the initiation of criminal proceedings against members of Parliament and thus—all the more—investigative measures such as house searches or telephone tapping.98 However, this immunity can be waived by Parliament with the consequence that criminal investigations against the member concerned can be initiated.99 Moreover, it is limited in time as it holds only for the period of the mandate.100 Taken together, these two aspects clearly show that this type of immunity shall not protect the single individual but rather make sure that Parliament can operate free from outside interference.101 The immunity rationae materiae, by contrast, has a very limited scope as it only refers to votes, decisions and statements in Parliament (including its commissions). Activities outside, for instance speeches during electoral campaigns, are not protected. Moreover, Art. 46(1), second sentence Const. and § 36, second clause PC provide that this Indemnit€ at shall not apply to intentional defamations. However, it provides protection even beyond the end of the mandate, and it cannot be waived.102 This illustrates that Indemnit€ at is a guarantee of protection for the individual member of Parliament, who shall under no circumstances have to fear any personal legal consequences of his/her decisions.103 Besides members of the federal or a state parliament, also members of the Federal Convention104 and of the European Parliament105 enjoy both types of immunity. According to Art. 60(4) Const., the Federal President can claim immunity rationae personae as well.

98

See H. Klein, in: Maunz/Dürig (eds.), Grundgesetzkommentar (Beck, München), Art. 46/65 et seq. 99 H.-H. Trute, in: v. Münch/Schulte (eds.), Grundgesetz-Kommentar, 6th ed. 2012 (Beck, München), Art. 46/28 et seq. 100 N. Achterberg/M. Schulte, in: v. Mangoldt/Klein/Starck (eds.), Das Bonner Grundgesetz, 4th ed. 2000 (Vahlen, München), Art. 46/40. 101 H. Schulze-Fielitz, in: Dreier (ed.), Grundgesetz-Kommentar, vol. II, 3rd ed. 2015 (Mohr Siebeck, Tübingen), Art. 46/22. 102 W. Joecks, in: Joecks/Miebach (eds.), Münchener Kommentar zum Strafgesetzbuch, vol. 5, 2nd ed. 2014 (Beck, München), § 36/25. 103 Klein (note 98), Art. 46/31. 104 § 36 PC and § 7 of the Act on the Election of the Federal President (Bundespr€ asidentenwahlgesetz). The Federal Convention’s only task is the election of the Federal President. 105 See § 5 Act on German Members of the European Parliament (Europaabgeordnetengesetz).

116

F. Zimmermann

2. Members of County Councils and Ministers According to the prevailing opinion, however, these guarantees of immunity do not apply to members of municipality or county councils,106 who do not exercise legislative powers (see supra I.1.). Ultimately, this means that they bear a greater risk of being punished for their decisions than members of Parliament, although they do at least have a comparable democratic legitimation and most of them do not exercise this function professionally. Similarly, members of the federal or a state government (including the Federal Chancellor and the prime ministers of the L€ ander) belong to the executive branch. If they are not at the same time members of Parliament,107 they can therefore not rely on any type of immunity. This applies even when Parliament has delegated certain lawmaking powers upon them, as is frequently done nowadays—for instance when a minister is authorised to concretise a parliamentary law by means of a regulation.

3. Legal Remedies Against a Violation of Immunity Guarantees In order to ensure the effectiveness of the immunity guarantees, German law provides legal remedies against their infringement. Where a court of last resort108 did not respect the immunity rationae materiae (Indemnit€ at), the person concerned is entitled to lodge a constitutional complaint.109 Regarding the immunity rationae personae, the Federal Constitutional Court has decided that a mandate holder whose immunity was waived by Parliament is entitled to claim that this decision was influenced by extraneous and arbitrary motives.110 To this aim, he/she will have to sue Parliament in a special proceeding before the Federal Constitutional Court.111 Moreover, a mandate holder can lodge a constitutional complaint if

106

A. Hoyer, in: Wolter (ed.), Systematischer Kommentar zum Strafgesetzbuch (Carl Heymanns, K€oln), § 36/1; S. Magiera, in: Kahl/Waldhoff/Walter (eds.), Bonner Kommentar zum Grundgesetz (Müller, Heidelberg), Art. 46/49. 107 If they are, it needs to be assessed whether the respective decision was taken in their capacity as member of the Government or as member of Parliament; see Rosenau (note 57), § 36/3. 108 Against a decision of a lower court, the member of Parliament will have the usual right to appeal. 109 See Art. 93(1) no. 4a Const., § 90 Act on the Federal Constitutional Court (Bundesverfassungsgerichtsgesetz). 110 BVerfG 2 BvE 2/00, 17 December 2001, § 75 (BVerfGE 104, 310 et seq.). 111 Art. 93(1) no. 1 Const. and § 63 et seq. Act on the Federal Constitutional Court (Bundesverfassungsgerichtsgesetz); Magiera (note 106), Art. 46/134.

Criminal Liability of Political Decision-Makers in Germany

117

his/her immunity rationae personae was infringed by public authorities.112 Finally, evidence gathered during an investigative measure that would have required authorisation by Parliament cannot be used in trial if prosecution authorities acted without such permission.113

V. Special Courts and Procedural Particularities 1. Courts Competent to Try Politicians In Germany, ordinary courts are competent for trials against politicians, including members of Parliament and ministers. However, the accused’s prominence may have an influence on whether the public prosecutor decides to bring charges before the Local Court (Amtsgericht) or the Regional Court (Landgericht). This is because the division of courts’ competences is to some extent flexible. Usually, the expected sentence determines whether the case will be tried before the Local Court or the Regional Court. However, the public prosecutor can also decide to bring charges before the Regional Court only due to ‘the special significance of the case’; see § 24 (1) no. 3 of the Gerichtsverfassungsgesetz (Code of Court Organisation—CCO). Obviously, this provision gives room for interpretation, and it does not seem far-fetched to assume that proceedings against a high-profile politician would most likely be considered particularly significant. The consequence is mainly that the accused will lose one instance of appeal114: pursuant to § 333 of the German Strafprozessordnung (Code of Criminal Procedure—CCP), only an appeal on points of law is admissible against judgments of the Regional Court. Judgments handed down by a local court, by contrast, can be fully reviewed, i.e. also an appeal on the facts is possible. According to § 120b CCO, criminal proceedings involving § 108e PC are to be held before the Higher Regional Court in first instance. This exceptional competence is explained with the special public interest in corruption allegations involving elected public representatives. Therefore, the first-instance competence of the Higher Regional Court is supposed to guarantee that sufficiently experienced courts will deal with such crimes and lend necessary weight to pressing charges.115

BVerfG 2 BvR 969/14, 15 August 2014, § 26 (NJW 2014, 3085 et seq.). Schulze-Fielitz (note 101), Art. 46/41. 114 See F. Zimmermann, in: Fahl/Satzger/Swoboda (eds.), Festschrift für Werner Beulke, 2014 (Müller, Heidelberg), p. 1091 (1092 et seq.), with further references. 115 L. Meyer-Goßner, in: Meyer-Goßner/Schmitt, Strafprozessordnung, 59th ed. 2016 (Beck, München), § 120b GVG/1. 112 113

118

F. Zimmermann

2. Procedural Safeguards Relevant for Politicians As regards procedural safeguards that are of relevance for politicians (i.e., apart from immunities), only a few can be mentioned: when public officials shall be heard as witnesses in trial and their testimony would concern circumstances covered by their official obligation of secrecy, they normally need a permission to testify, § 54 (1) and (2) CCP. The Federal President can even refuse to testify if his testimony would be detrimental to the welfare of the federation or a Land, § 54(3) CCP. Under the same circumstances, § 96, first sentence CCP also restricts the possibilities of prosecution authorities to request submission of official files and documents. Pursuant to § 96, second sentence CCP, the same applies to documents held in custody of a member of the Bundestag or a Land’s parliament—regardless of the document’s importance. That shows that only the last-mentioned provision is intended to ensure that Parliament can operate, whereas the others seek to protect the state’s security.

3. German Particularity: Orders by Justice Ministers to Prosecution Authorities A last aspect that deserves being mentioned is that public prosecutors do not act autonomously in Germany. Pursuant to §§ 146 and 147 CCO, the (federal and state) justice ministers may give them orders on how to proceed in a particular case. In 2015, for instance, Federal Justice Minister Heiko Maas overruled Federal Prosecutor General Harald Range, who had decided to initiate investigations against an online journal for publishing state secrets.116 Of course, such orders themselves have to comply with the law, and apparently this possibility is not used frequently. Still, it creates the risk that a minister blocks proceedings to protect another politician (for instance, someone belonging to the same political party). Theoretically, a minister could even arrange for the initiation of proceedings against a political opponent. Although this can luckily be considered a rather hypothetical danger, the mere possibility of political intrusions has repeatedly given rise to harsh criticism.117 Frank Zimmermann is post-doctoral research fellow at the chair of Prof. Dr. Helmut Satzger, Ludwig-Maximilians-Universita¨t München.

116

For details see C. Trentmann, Zeitschrift für Internationale Strafrechtsdogmatik 2016, p. 130 et seq. 117 F. Zimmermann, in: Oglakcıoglu/Rückert/Schuhr (eds.), Axiome des nationalen und internationalen Strafverfahrensrechts, 2016 (Nomos, Baden-Baden), pp. 28 et seq.

Criminal Liability of Political Decision-Makers in Greece Athina Giannakoula

I. Preliminary Remarks Political decision-making, i.e. the decision-making involved in managing the issues of the community, is a special field of action from the perspective of the Greek criminal justice system. At an abstract level, the existence of special provisions and procedures can be explained mainly in the light of the gravity of the consequences of ‘bad’ political decisions and the significance of free political initiative for the functioning of democracy itself. These two factors are also indicative of the complexity of the subject since elements justifying the introduction of graver criminal liability coexist with features dictating the need to apply additional guarantees for political decision-makers. In order to better understand the analysis of the comparative case study presented below, it is important to become familiar with the fundamental rules governing the political decision-making in the Greek legal order. To be brief, the legislative competences are predominantly exercised by the Greek Parliament.1 The President of the Republic, as well as ministers and other administrative authorities, may issue regulatory acts when specific conditions set by the Greek Constitution (Const.) are met.2 In most common cases, presidential decrees are issued when necessary to execute statutes,3 while the administration acts within the context of 1

Art. 26(1) of the Greek Constitution (Const.). See translations in the official website of the Greek Parliament, http://www.hellenicparliament.gr/en/Vouli-ton-Ellinon/To-Politevma/Syn tagma/ (Accessed: 25 July 2016). 2 E. Velizelos, Mathimata syntagmatikou dikaiou, 1991 (Paratiritis, Thessaloniki), pp. 115-130. 3 Art. 43(1) Const. A. Giannakoula (*) National School of Judges of Greece, Thessaloniki, Greece Law Faculty, Aristotle University of Thessaloniki, Thessaloniki, Greece e-mail: [email protected] © Springer International Publishing AG 2017 F. Zimmermann (ed.), Criminal Liability of Political Decision-Makers, DOI 10.1007/978-3-319-52051-3_7

119

120

A. Giannakoula

the authorisation granted by a statute.4 The executive branch is essentially headed by the Government,5 which consists of the Prime Minister and the ministers.6 Ministers are jointly responsible for the general policies of the Government and individually responsible for their acts within their competence.7 The latter form of responsibility covers their criminal liability too since collective criminal liability is not compatible with the principles of law that apply in the Greek legal order.8 Moreover, Art. 86 Const. introduces provisions aimed at hindering ill-motivated prosecutions against current or former Government members and further at protecting political life and the operation of the State. On the other hand, the said article expressly prohibits the institution of special ministerial offences9; thus, ministers10 may become subjects of common criminal offences and, being public officials, of ‘offences related to service’. Pursuant to the principles of subsidiarity and of proximity,11 a significant part of the administration, elected by the Greek people, is given precedence over the Government when it comes to handling local affairs. More specifically, the municipalities and the regions, i.e. the local government agencies of the first degree and of the second degree respectively, enjoy administrative and financial independence,12 as well as the presumption of competence with reference to local affairs.13 However, the division of competences between the municipalities and the regions and

4

Art. 43(2) Const. Art. 26(2) Const. The President of the Republic has limited (and up to a point symbolic) powers. 6 Art. 81(1) Const. Any person that satisfies the constitutional prerequisites for entering the parliamentary elections may become a minister, regardless of being an elected member of Parliament or not – Velizelos (note 2), pp. 431-432, and Art. 81(2) and 55(1) Const. 7 Art. 85 Const. The political liability of the members of the Government amounts to them depending on the vote of trust of the Parliament – D. Tsatsos, Syntagmatiko Dikaio, tomos B’, Organosi kai leitourgia tis Politeias, 2nd ed. 1993 (Ant. N. Sakkoulas, Athens/Komotini), pp. 307-310; Velizelos (note 2), p. 435. 8 I. Manoledakis, in: Manoledakis/Paraskevopoulos (eds.), Encheiridio poinikou dikaiou, Geniko meros, 2nd ed. 2006 (Sakkoulas, Athens/Thessaloniki), p. 45. 9 The abolition of the special ministerial offences (‘violating the Constitution’, ‘harming the interests of the State’, etc.) was deemed necessary due to them being very problematic (namely in terms of the lex certa principle) and having minimum added value (if any) – I. Manoledakis, Provlimata apo tis ousiastikes poinikes diataxeis tou nomou peri efthynis ypourgon, in: Manoledakis/Venizelos (eds.), Poiniki efthyni ypourgon, Meionektimata tis ischyousas rythmisis – protaseis gia tin tropopoiisi tis, 1993 (Ant. N. Sakkoulas, Athens/Komotini), pp. 10-27; K. Zilemenos, I efthyni sti diacheirisi tis politikis exousias, 1989 (Afoi P. Sakkoulas, Athens), pp. 23-26, 60-66; I. E. Stamouli, I Poiniki Efthyni ton Melon tis Kyverniseos, 1990 (Nea Synora – A. A. Livani, Athens), pp. 26-61. 10 The term ‘ministers’ under Art. 86 Const. includes the Prime Minister, the ministers and the deputy ministers. 11 Art. 75(I) of statute 3463/2006; I. Makris, Efthyni organon OTA A’ vathmou kata tin ektelesi ton kathikondon tous, 2015 (Sakkoulas, Athens/Thessaloniki), pp. 60, 116. 12 Art. 102(2) Const. 13 Art. 102(1) Const. 5

Criminal Liability of Political Decision-Makers in Greece

121

the State is complicated and obscure, largely because the critical notion of ‘local affairs’ is rather vague,14 while the lists of competences included in the relevant legislation hardly lead to definite solutions. As far the operation of the local government agencies is concerned, decisions like the one examined in the comparative case study analysed below are taken by the municipality council15 or the regional council16 and executed by the mayor17 or the regional governor,18 respectively. Since the mayor, not being a member of the municipality council, attends its sessions without voting and is obliged to execute its decisions, it is explicitly provided that ‘[. . .] a mayor [. . .] has no civil, disciplinary or criminal liability for executing decisions that haven’t been withdrawn, invalidated or suspended’; based on the principle of proportionality, it is accepted that the same restriction should apply to all the executing authorities within the municipalities and the regions.19 M in our comparative case study could be criminally liable in any of the three versions mentioned.20

II. Comparative Case Study 1. Part 1: Criminal Liability for Bad Political Decisions The circumstances included in the first part of our case primarily appear to fall under the scope of Art. 390 of the Greek Poinikos Codikas (Penal Code—PC), which institutes the criminal offence of ‘Breach of trust’. However, in view of the recent case law of the Greek Supreme Civil and Criminal Court (Areios Pagos— 14

Tsatsos (note 7), pp. 405-409; Makris (note 11), pp. 59-62, 115-117 (according to the author, ‘local affairs’ do not include affairs that affect interests of the State or local needs that have to be regulated uniformly; the competences of a Municipality must concern assets connected to its territory). 15 Art. 93(1) of statute 3463/2006 and 65(1) of statute 3852/2010. 16 Art. 163 of statute 3852/2010. 17 Art. 86(1)(b) of statute 3463/2006 and Art. 58(1)(b) of statute 3852/2010. 18 Art. 159(1)(b) of statute 3852/2010. 19 Art. 86(4) of statute 3463/2006 and Art. 58(4) of statute 3852/2010; Makris (note 11), pp. 99, 268. 20 Focusing on the decision, M would most likely be liable as a member of a municipality council, or as a minister, because, in addition to the uncertainty of the criteria used to divide competences among the municipalities and the regions and the State, Art. 10(4) of statute 679/1977 provides that ‘projects of a national range’ are the ones characterised as such by the Minister of Infrastructure; hence, any project can be ‘national’ – e.g., there is a ministerial decision to characterise as of national level the repairs of the damages caused by an earthquake to the road network in the Municipality of Kefalonia (Official Gazette B 938/2014). M could also be liable as a mayor, especially for violating the procedures followed in the execution of the decision to have the bridge build.

122

A. Giannakoula

AP) on the subject, it is necessary to also examine the criminal offence of ‘Breach of trust related to service’ (Art. 256 PC), which, according to this (heavily criticised, one must add) case law, applies instead. Finally, attention is being paid to the broadly defined offence of ‘Breach of public duty’ (Art. 259 PC). a) Article 390 PC: ‘Breach of Trust’ Given the absence of an official translation of the Greek criminal code in English, this contribution uses the term ‘breach of trust’ when referring to the criminal offence described in Art. 390 PC.21 The latter reads: A person who knowingly diminishes another person’s property, of which, based on law or contract, he has custody or administration (total or partial or for a single act), is punishable with short-term imprisonment of at least three (3) months. If the property damage exceeds the amount of thirty thousand (30,000) euros, the perpetrator is punishable with long-term imprisonment of up to ten (10) years.

The central criticism expressed against Art. 390 PC concerns its elementary wording.22 The reason behind the problematic description of the punishable behaviour is that this offence was introduced for the purpose of covering the gaps left by other, more concise, provisions instituting property offences.23 As a result of its doubtful compatibility with the lex certa principle, the constituent elements cited in Art. 390 PC are supplemented with unwritten ones.

aa) The Subject of Breach of Trust The offence can be committed by a person who has custody or administration of another person’s property based on law or contract. In this context, it is particularly required that the subject has competence to perform legal acts (not just material ones), show initiative and make responsible decisions. Conversely, (only) a person lacking any margin of discretion is not to be considered a perpetrator of breach of trust. Therefore, and since the legal or contractual basis of the custody/

21 ‘Breach of trust’ translates almost accurately the term apistia (unfaithfulness, disloyalty) used by the Greek legislator. However, it should be noted that neither the Greek term nor its English translation express the fact that property damage is the central and defining concept of Art. 390 PC – A. Papadamakis, Ta periousiaka egklimata, Arthra 385-406 PC, 2000 (Sakkoulas, Athens/ Thessaloniki), p. 214; ‘misappropriation’ seems to be more indicative of the essence of the offence. 22 Papadamakis (note 21), pp. 214-215 (a criminal law provision citing only the harmful result provides little guarantee regarding the punishable act and its rationale); I. Anagnostopoulos, Zitimata apistias, Arthra 390 & 256 PC, 2nd ed. 2003 (Dikaio & Oikonomia P.N. Sakkoulas, Athens), p. 17. 23 Anagnostopoulos (note 22), p. 3; K. Papathanasiou, in: Charalambakis (ed.), Poinikos Kodikas – Tomos II, 2nd ed. 2014 (Nomiki Bibliothiki, Athens), p. 2075.

Criminal Liability of Political Decision-Makers in Greece

123

administration is (also) widely perceived,24 it is evident that the first condition of Art. 390 PC is met in the case of M (who administers public property).25

bb) The Objective Elements of the Punishable Behaviour (1) The Elements of the Act Despite the fact that Art. 390 PC does not define the elements of the punishable behaviour and simply refers to its effect, i.e. the harm caused to the third party’s property, it is commonly accepted that certain prerequisites must be satisfied in order to restrict the excessive broadness of the provision and express the concept of the offence. More specifically, it is necessary for the act of the subject to be an external (affecting the third party’s relationship with others) legal transaction that abuses the subject’s powers of representation, as these powers emanate from the internal relationship between the subject and the third party. In our case, M signing a contract to construct an expensive/oversized/useless bridge could seem to constitute such an act. However, according to the exact meaning of the above-mentioned prerequisites, the act must further amount to an obvious (doubt favours the subject) violation of the rules of diligent administration; subsequently, should the subject conform to these rules, his/her act will not be punished, even if it does harm the third party’s property.26 Although the rules of diligent administration are not always expressly determined, depending mostly on the source they derive from (law/contract/internal regulation of a legal entity/company guide/goals of the custody or the administration/general rules governing a certain type of custody or administration), in the field of public constructions they are defined in detail by law. As a result, if M complied with the rules prescribed namely in statute 4412/2016,

24

Actually acquiring custody or administration is sufficient, regardless of the legality of the contract. See comments in Anagnostopoulos (note 22), pp. 12-13; Papadamakis (note 21), pp. 221-222; C. Mylonopoulos, Poiniko dikaio, Eidiko meros, Ta egklimata kata tis idioktisias kai tis periousias (arthra 372-406 P.C.), 2nd ed. 2006 (Dikaio & Oikonomia P.N. Sakkoulas, Athens), pp. 628-629; also (indicatively) AP 619/80, Poinika Chronika (PoinChron) 1980, p. 768. 25 A. Kazanas, in: Kaiafa-Gbandi (scientific supervision), Oikonomiko egklima & diafthora sto dimosio tomea – tomos 1, 2014 (Dikaio & Oikonomia P.N. Sakkoulas, Athens), pp. 406-408 (and 381-382 where further quotations, on the special relationship between public servants – including ministers – and public property, which establishes the special mission of the former to safeguard the latter); Anagnostopoulos (note 22), pp. 8-17; Papadamakis (note 21), pp. 220-221; Mylonopoulos (note 24), pp. 626-630; Papathanasiou (note 23), pp. 2076-2078; also, AP 1511/ 2006, Poinikos Logos (PLogos) 2006, p. 1400. 26 N. Androulakis, I apistia – agrafon ousiodes systatikon tou egklimatos tis ‘apistias’ (arthr. 390 P. C.), PoinChron 1975, p. 161 (161-164); Anagnostopoulos (note 22), pp. 17-56; Kazanas (note 25), pp. 408-411; Mylonopoulos (note 24), pp. 630-641; Papadamakis (note 21), pp. 216-220, 223-225; Papathanasiou (note 23), pp. 2078-2083; A. Vomvas, I paravasi ton kanonon epimelous diacheirisis stin antikeimeniki ypostasi tou egklimatos tis apistias – Arthro 390 PC, Poiniki Dikaiosyni (PoinDik) 2010, p. 1042; I. Manoledakis, Gia ta antikeimenika oria tou egklimatos tis apistias, PoinChron 1984, p. 553 (553-554).

124

A. Giannakoula

he/she would most likely not be held criminally liable for breach of trust. On the other hand, an obvious violation could still be affirmed, if M acted in contradiction to the findings of the legal procedures he/she had applied or exceeded the limits of his/her powers of discretion (if he/she had any), by pushing aside, for example, a preliminary study reliably assessing the failure of the project. (2) The Harmful Effect As far as the harmful effect is concerned,27 the pecuniary loss required in Art. 390 PC is ascertained when the value of the represented property as a whole is diminished after the occurrence of the critical action or omission. Given that managing a person’s property is viewed as a dynamic process, it is common ground that, in order to avoid an early (and hence excessive) criminal law intervention, it is not necessary for the comparative assessment of the property’s value to take place immediately after the offensive behaviour; instead, it should take place when the effects on the property are unambiguous (it is possible for the court to form a substantiated opinion) and final (the appraisal follows the progress of the overall management plan). Moreover, the evaluation must include any gain produced by the perpetrator’s act. If the loss outweighs the gain, then there is definite damage to the third party’s property. If, however, the loss and the gain appear to be of the same value, one must examine whether the gain can in fact counterweight the loss; in this context, it is important to take into consideration the specific needs and pursuits in each case because gaining an asset that is completely useless to the third party is no counterbalance for his/her property loss.28 Consequently, if, in our example, the bridge is very expensive or oversized but its cost is proportionate to its actual value, then M has not damaged the property of C because the money spent has been substituted by the bridge. Nevertheless, M would be criminally liable if the bridge cost a lot more than what its real value as a construction is, or if the bridge is totally useless (not very likely to be accepted for a public project, though) or so excessively expensive, that the project has caused the financial downfall of the municipality. It must also be noted that harm could be detected even before the building of the bridge if, for instance, it was highly probable (almost certain) at the point when the decision was made that the bridge would be useless or that it would be left incomplete; under such circumstances, the danger to the property already suffices as damage.

27

For this, see Anagnostopoulos (note 22), pp. 56-76; Androulakis (note 26), pp. 165-170; Kazanas (note 25), pp. 411-412; Mylonopoulos (note 24), pp. 641-645; Papadamakis (note 21), pp. 225-227; Papathanasiou (note 23), pp. 2083-2084; N. Bitzilekis, O chronos os stoicheio diamorfosis tis zimias sta periousiaka adikimata, PoinChron 2002, p. 481 (481, 488); A. Liourdi, Diacheirisi (i epimeleia) xenis periousias kai apistia kat’ arthro 390 PC, PoinChron 1994, p. 719 (723-724); also, AP 930/2007, Plogos 2007, p. 650. 28 This essentially amounts to the ‘individual damage concept’; see Anagnostopoulos (note 22), pp. 75-76 (where reference to court decisions on the purchase of aeroplanes of a different type than the one needed and of a building whose interior was not suited for the functioning of a bank as needed).

Criminal Liability of Political Decision-Makers in Greece

125

cc) The Mental Element of the Punishable Behaviour According to the wording of Art. 390 PC, the perpetrator must have positive knowledge of all the objective elements of the criminal offence and accept the result of his/her act.29 This means that, among others, the subject must know for certain that he/she abuses his/her powers of representation and causes pecuniary loss to the third party. Replacing the more common and simpler demand for dolus eventualis (pursuant to which it used to be enough for the subject to foresee the possibility of causing property damage and accept the risk) was a choice that the Greek legislator made in 1993 that has been criticised by some30 (arguing that the provision is now rarely applied) and well received by others31 (for restricting the extremely broad scope of the offence). Against this background, M would have to have made his/her decision fully aware of the fact that the bridge would be completely useless or overpaid or incomplete. In total, it appears that this requirement, along with the one concerning the pecuniary loss, would be rather hard to satisfy. b) Article 256 PC: ‘Breach of Trust Related to Service’ Article 256 PC institutes a special form of breach of trust, whose scope is narrower than the one of Art. 390 PC in terms of the subject (public official), the object of the act (revenue) and the intent (pursue of personal benefit). Up until 2009, there was little doubt32 that, in general, the relevant acts of public officials are covered by Art. 390 PC when they concern expenses and Art. 256 PC when they concern revenue. In 2009, the AP basically rejected the application of Art. 390 in relation to public officials as subjects of breach of trust. This approach has been strongly criticised by the legal community for well-grounded reasons. However, in view of the decision’s status (decision of the AP’s plenary session), the circumstances of our comparative case study are examined under the special spectrum of Art. 256 PC as well.33 The latter reads: A public official who, in the determination, collection or management of taxes, duties, fee or other levies or any revenue, knowingly diminishes, for his own benefit or the benefit of

29

Anagnostopoulos (note 22), pp. 76-82; Kazanas (note 25), p. 412; Mylonopoulos (note 24), pp. 645-647; Papadamakis (note 21), pp. 227-229; Papathanasiou (note 23), p. 2085 (and AP 1000/1998, PoinChron 1999, p. 566). 30 E. Symeonidou-Kastanidou, I ‘kakourgimatopoiisi’ tou egklimatos tis apistias: politiki ritoreia kai astathis epistimonikos logos, PoinDik 2004, p. 636 (637); Papathanasiou (note 23), p. 2075. 31 Papadamakis (note 21), p. 227. 32 Indicatively, AP 1528/2005, PLogos 2005, p. 1363, and Kazanas (note 25), pp. 400-401, where further quotations. 33 For various of the issues presented in this subsection, see N. Bitzilekis, Poiniki prostasia tis dimosias periousias apo esoterikes prosvoles – ‘Diacheiristika’ egklimata peri tin periousia, PoinChron 2016, pp. 89-96.

126

A. Giannakoula

another, the public, municipal or community property or the property of a public entity, the administration of which is entrusted to him, is punishable: (a) with short-term imprisonment of at least six months; (b) if the reduction is of particularly great value, with shortterm imprisonment of at least two years; (c) with long-term imprisonment of up to ten years, if: (aa) the perpetrator used special techniques and the reduction of property is of particularly great value, higher than thirty thousand (30,000) euros as a whole, or (bb) the object of the act is of a total value greater than a hundred and twenty thousand (120,000) euros.

aa) The Subject of Breach of Trust Related to Service The offence can only be committed by a public official. Under Art. 13(a) PC34: A public official is a person lawfully assigned, even temporarily, with the exercise of public, municipal or community service or the service of any other public entity.

Subsequently, Art. 2(3) of statute 3126/2003 clarifies: Ministers are considered public officials in the sense of article 13(a) PC.

Besides being a public official, the subject of the offence of Art. 256 PC must be lawfully assigned with the administration of public property,35 with sufficient room to show initiative and to take responsible decisions. Hence, M could be the subject of breach of trust related to service.

bb) The Objective Elements of the Punishable Behaviour Diminishing the public, municipal (etc.) property in the process of the determination, collection or management of revenues constitutes a punishable behaviour under Art. 256 PC. Therefore, this special version of breach of trust specifically involves not increasing the public property and is essentially focused on an omission on behalf of the public official (the omission36 must further be unlawful, 34

See on the definition N. Bitzilekis, Ypiresiaka egklimata, Arthra 235-263a PC, 2nd ed. 2001 (Sakkoulas, Athens/Thessaloniki), pp. 76-95 (82, 83, 89 for ministers, mayors, city council members); Anagnostopoulos (note 22), pp. 100-101; Kazanas (note 25), pp. 376-382; T. Papakyriakou, To kathestos eidikis-afximenis efthynis ton dimosion ypallilon sto ischyon elliniko poiniko dikaio: vasika charaktiristika kai kritiki apotimisi, PoinDik 2009, p. 1126; A. Stoila, in: Charalambakis (ed.), Poinikos Kodikas – Tomos II, 2nd ed. 2014 (Nomiki Bibliothiki, Athens), pp. 504-508 (505-506 for ministers and mayors). 35 According to a divergent view, the assignment of the administration of public property is not required when it comes to public officials assigned with the determination or collection of revenue, as long as they have a satisfactory margin of discretion (see Bitzilekis (note 34), pp. 570-575, citing AP 1010/1984, PoinChron 1985, p. 158, etc.; criticism in Kazanas (note 25), pp. 420-422; Anagnostopoulos (note 22), pp. 103-104). 36 The omission is about not collecting fee (for example) or not collecting the proper amount of fee; in the second case, an action takes place as well (collecting a smaller amount of fee), but it is outweighed by the overall omission.

Criminal Liability of Political Decision-Makers in Greece

127

i.e. infringe the rules regulating the determination, collection or management of revenues or the general principles that apply with regard to service).37 Based on this accurate and, until recently, prevailing view, M cannot be the subject of breach of trust related to service since his/her actions clearly concern expenses. However, the 2/2009 judgement of the AP’s plenary session38 followed a different approach. In particular, it accepted that the three terms used in Art. 256 PC (determination, collection, management) form a system and express a time sequence: first come the ‘determination’ and the ‘collection’, which refer to revenues being incorporated into public property, and then comes the ‘management’, which refers to the decisions made by public officials as to using the incorporated revenues for the fulfilment of the needs and the objectives of the State. Thus, the ‘management of revenues’ inevitably covers expenses. In fact, if it did not, its citation in Art. 256 PC would be pointless because the ‘collection’ concludes the incorporation of revenues into public property. Moreover, it would be unfair for public officials to be punishable under different conditions depending on whether they manage revenues or expenses when as a result they diminish public property. Under such an interpretation, M could be the subject of breach of trust related to service. The choice between the general and the special versions of breach of trust is very important, given that the offence is more severely punished when related to service (as it harms two interests)39: Article 256 PC has always provided for short-term imprisonment of 6 months to 5 years; it has included two aggravated versions of the offence and has been linked to statute 1608/1950 regarding the embezzlers of public property40; Art. 390 PC, on the other hand, used to provide for short-term

37 Bitzilekis (note 34), pp. 575-581; Anagnostopoulos (note 22), p. 107; Kazanas (note 26), pp. 423-424; Stoila (note 34), pp. 508-511. 38 PoinDik 2009, p. 546. 39 Public property and the proper function of public service; regarding the protected interest, see Kazanas (note 25), pp. 383-387; Bitzilekis (note 34), pp. 521-526; Anagnostopoulos (note 22), p. 95; I. Manoledakis, To ennomo agatho os vasiki ennoia tou Poinikou Dikaiou, 1998 (Sakkoulas, Thessaloniki), pp. 314-323 (321). 40 Art. 1(1) of the statute 1608/1950 regarding the embezzlers of public property: ‘To the convicted for the offences of articles [. . .] 235, 236, 237, [. . .] (256), [. . .] of the Criminal Code, when the offence was committed against the State or a public entity or any entity of those cited in article 263A of the Criminal Code, and when the benefit achieved or pursued, or the damage caused or definitely threatened against the State or the entities mentioned above exceeds the amount of fifty million (50,000,000) drachmas, long-term imprisonment is imposed, and, if particularly aggravated circumstances occur, especially if the convicted person continued the commission of the offence for a long time or the object of the offence is of great value, life-long imprisonment is imposed. To the person convicted for the offence of article 256 PC, the provision applies only when the offence is committed against the State, the Local Government Agencies and public entities.’ The provision is mainly referring to offences affecting property (with the exception of the bribery offences that were added to the original list of Art. 1(1) in 1987, disrupting its consistency and causing significant problems); although it was adopted in 1950, in order to address urgent special needs of that time, it is still in force. It does not introduce new offences; instead, it increases the penalty for the ones included in the list when serious pecuniary loss occurs. The statute, being

128

A. Giannakoula

imprisonment of 10 days to 5 years, and it was only after 2004 that this range was replaced by the range of 3 months to 5 years and that aggravated circumstances were added. The arguments opposing the above-mentioned judgement are strong: dealing with acts concerning expenses under Art. 256 PC goes against its wording; the ‘management of revenues’ in Art. 256 PC is not without content when excluding expenses (as the AP claims), for the reason that some revenues are ‘determined’ (i.e. fixed by the State alone) and others are agreed upon (e.g., when selling or renting public property); even if it is unfair to apply different provisions for acts that produce the same effect, it is the legislator’s task to correct the problem41 and surely not the judge’s discretion to extend the letter of the law; and there are references (e.g., in Art. 406A(5) PC) showing that the general version of breach of trust can be committed by public officials as well. Finally, it should also be noted that if the AP had followed the prevailing view regarding the scope of Art. 256 PC and had applied Art. 390 PC, then that particular case would have been dismissed due to the statute of limitations.42

cc) The Mental Element of the Punishable Behaviour Similarly to Art. 390 PC, the subject of the offence of Art. 256 PC must have positive knowledge of all the objective elements of the criminal offence and accept the pecuniary loss he/she causes. In addition, the perpetrator must aim to obtain a benefit for himself/herself or for a third person; it is not necessary to actually achieve it, as long as it is substantiated that the he/she acted with this purpose. The benefit has to be pecuniary in nature and derive directly from the damage

the only one in the Greek legal order linking property offences to life-long imprisonment, is criticised for numerous reasons; among others (and most importantly in relation to our case), it is considered that the provision on the aggravated circumstances violates the lex certa principle, the principle of proportionality and the principle of equality and is thus unconstitutional and should be inactive – A. Zachariadis, N. 1608/1950, 1995 (Ant. N. Sakkoulas, Athens/Komotini); I. Anagnostopoulos, To elliniko dimosio kai oi katachrastes tou, PoinChron 1995, p. 882; L. Margaritis, O nomos 1608/1950 kai oi katachrastes dimosiou kai (para)trapezikou chrimatos, 2000 (Sakkoulas, Athens/Thessaloniki); Stoila (note 34), pp. 268-270. 41 There are views supporting that the offence of breach of trust with reference to revenues is indeed more grave (I. Anagnostopoulos, Apistia stin ypiresia (PC 256). Anoichta kai nea zitimata, PoinChron 2012, p. 3 (6)) and others that wonder about the opposite, and even consider that a breach of trust relating to expenses may cause more serious harm, since it is more difficult to recover expenses than uncollected revenues (see Papakyriakou (note 34), p. 1137). 42 For the arguments regarding specifically judgement 2/2009, see Kazanas (note 25), pp. 400-405; Anagnostopoulos (note 41), pp. 6-7; A. Zygouras, To egklima tis apistias kai i schesis tou pros to egklima tis apistias peri tin ypiresian, PoinChron 2009, p. 572; A. Papadamakis, Prosfates nomologiakes diakymanseis kai ermineftikes ektropes sta egklimata tis apatis kai tis apistias, PoinDik 2012, pp. 388-389; Stoila (note 34), pp. 511-513; generally on the issue of the scope of Art. 256 PC with respect to expenses see Bitzilekis (note 34), pp. 578-579; Anagnostopoulos (note 22), pp. 105-107; Papakyriakou (note 34), p. 1137; Mylonopoulos (note 24), pp. 629-630.

Criminal Liability of Political Decision-Makers in Greece

129

caused to the public property (e.g., not from a bribe).43 Against this background, it seems that M would not fulfil the conditions of Art. 256 PC after all. c) Article 259 PC: ‘Breach of Public Duty’ One of the final provisions of Chapter 12 PC (Offences related to service) prescribes the offence of breach of public duty, which bears two basic characteristics: (1) it has a very broad scope, and (2) it applies only if no other provision does with regard to the act it concerns. Article 259 PC reads: A public official, who intentionally violates the duties of his service, with the purpose of providing himself or a third person with an unlawful benefit or of harming the State or a third person, is punishable with short-term imprisonment of up to two years, if the act is not punishable under a different criminal law provision.

The constituent elements of the offence of Art. 259 PC are the following: – the subject of the offence must be a public official44; – the punishable act amounts to a specific action or omission related to service, taking place in the execution of public duties, in breach (direct violation/abuse of discretion) of a duty connected to the perpetrator’s work assignment in the service (not just any obligation he/she has as a public official)45; in addition, it must be objectively possible for such an act to directly (1) provide the perpetrator with a (pecuniary or other) unlawful benefit (i.e. a benefit that cannot be lawfully claimed and alters the perpetrator’s or a third person’s legal status, e.g. a promotion) or (2) harm certain legal interests of the State or of a third person (e.g., their property); – the subject must foresee the possibility that his/her act is in breach of his/her duties and accept the risk (dolus eventualis); further, the subject must commit the act aiming to provide a benefit or inflict damage. This restrictive approach on Art. 259 PC is quite necessary so as to ensure that the provision is compatible with the lex certa principle, that the criminal liability of public officials is not as wide as their disciplinary responsibility and that their punishable acts are linked not only to violating public duties but also to harming legal interests. Besides, the issues emanating from the provision’s very broad scope probably explain the fact that Art. 259 PC is the sole provision in the Greek criminal

43 Bitzilekis (note 34), pp. 582-583; Anagnostopoulos (note 22), p. 111; Kazanas (note 25), p. 424; Stoila (note 34), pp. 515-511. 44 See Stoila (note 34), pp. 569-570, for case law regarding mayors, regional governors and members of the respective councils. 45 Obligations such as to be on time or not to practice another profession are not critical. The duty must be connected to a specific act of public service and constitute the execution of such. The act breaching the duty must be an expression of state will and an enactment of state power (see indicatively AP 74/2013, PoinChron 2014, p. 202, and AP 148/2013, PoinChron 2014, p. 203).

130

A. Giannakoula

code containing a clause that excludes its application as long as another provision applies, and thus gives precedence even to less serious offences.46 Bearing in mind the above, it is obvious that, regarding our case, if M acted according to his/her duties, namely if M respected the rules on public constructions to the fullest, there would be no breach of duty; if there was a violation of such a rule,47 it would then have to be substantiated that M acted with the specific aim to obtain a benefit and that his/her act could objectively and directly provide one; however, boosting a politician’s prestige does not suffice as benefit in the sense of Art. 259 PC. Alternatively, it would have to be proven that M acted with the specific aim of causing damage to the State or to a third person and that his/her act could indeed achieve that; again, the circumstances of our case do not provide evidence for such a strong intention.

2. Part 2: Criminal Liability for Pursuit of Personal Interests a) Bribery Offences Corruption has been deemed as one of the factors that have contributed to the outbreak of the economic crisis in Greece. In 2014, in an effort to arm criminal law with the necessary ammunition for an enhanced fight against corruption, criminalisation in the field of bribery became almost as broad and as strict as it can get.48 On the whole, the relevant offences and the custodial penalty ranges provided for, respectively, are as follows: – passive (Art. 235(1) PC) and active bribery (Art. 236(1) PC) of public officials (1–5 years)49; – passive (Art. 235(2)(a) PC) and active bribery (Art. 236(2) PC) of public officials for acts violating their duties (5–10 years); 46

Bitzilekis (note 34), pp. 38-60; Stoila (note 34), pp. 562-582, where numerous case law examples; I. Giareni, Paravasi kathikondos: peitharchiki & poiniki proseggisi, 2012 (Nomiki Bibliothiki, Athens), pp. 59-98; M. Kaiafa-Gbandi, Ta apaitoumena antikeimenika kai ypokeimenika stoicheia tou egklimatos tis paravasis kathikondos, PoinDik 2001, p. 586; A. Papadamakis, Paratiriseis se AP 759/2001, PoinDik 2001, p. 813; L. Margaritis, Paravasi kathikondos (arthro. 259 PC) kai exopanepistimiaki drastiriotita (gnom.), PoinDik 2003, p. 417. 47 There could be breach of a duty not deriving from the legislation on constructions, e.g. of the mayor’s (general) obligation to make certain decisions and documents public for the citizens. 48 See similar comments even before the 2014 reform in 6th Conference of the Association of Hellenic Criminal Bar Association, I poiniki diacheirisi tis dorodokias – Dynatotites kai oria, 2013 (Nomiki Bibliothiki, Athens) and M. Kaiafa-Gbandi, Punishing Corruption in the Public and the Private Sector: The Legal Framework of the European Union in the International Scene and the Greek Legal Order, European Journal of Crime, Criminal Law and Criminal Justice 2012, p. 139. 49 Art. 235, 236, 237 PC are cited in the list of statute 1608/1050 (note 40), causing further controversy (A. Zachariadis, O nomos 1608/1950: provlimata ousiastikou poinikou dikaiou (MEROS B), Yperaspisi 1994, p. 668 (675-679); Margaritis (note 40), pp. 130-133).

Criminal Liability of Political Decision-Makers in Greece

131

– aggravated passive bribery of public officials (Art. 235(1)(b) PC, 5–10 years); – aggravated passive bribery of public officials for acts violating their duties (Art. 235(2)(b) PC, 5–10 years); – liability of public officials for requesting or accepting unlawful gifts not in view of a specific act (Art. 235(3) PC, 10 days to 5 years); – liability of public officials in head of a service for negligently permitting the commission of passive bribery offences (Art. 235(4) PC, 10 days to 5 years); – passive (Art. 237(1) PC) and active bribery (Art. 237(2) PC) of judicial officers (5–20 years); – passive (Art. 159(1) PC) and active bribery (Art. 159A(1) PC) of ministers,50 regional governors, vice-governors or mayors (5–20 years); – passive (Art. 159(2) PC) and active bribery (Art. 159A(1) PC) of members of Parliament, members of local government agency councils (etc.), for abstaining from vote, supporting a certain stand in view of a vote, or voting in a certain manner, with respect to a specific issue (5–20 years); – liability of persons taking decisions or exercising control within a business for negligently permitting a person under their authority to commit active bribery offences for the benefit of the business (Art. 236 (3), Art. 237(3), Art. 159A (2) PC; 10 days to 5 years); – trading in influence (Art. 237A PC, 1–5 years) – passive (Art. 237B(1) PC) and active bribery (Art. 237B(2) PC) in the private sector (1–5 years). In our case, M would fall under Art. 159(1) PC as a minister or a mayor and Art. 235(1) or (2) PC as a member of the municipality council. aa) Article 235 PC: ‘Passive Bribery of Public Officials’ The basic version of passive bribery is defined in Art. 235 PC as follows: 1. A public official who requests or receives, directly or through a third party, for himself or a third party, an unlawful benefit of any nature, or accepts the promise of such a benefit, in return for an action or omission, future or concluded, related to the execution of his duties, is punishable with short-term imprisonment of at least one year and a pecuniary penalty of 5,000 to 50,000 euros. If the perpetrator commits the act of the previous section as a profession or as a habit, or the unlawful benefit is of particularly great value, he is punishable with long-term imprisonment of up to ten years and a pecuniary penalty of 10,000 to 100,000 euros. 2. If the perpetrator’s action or omission prescribed above violates his duties, he is punishable with long-term imprisonment of up to ten years and a pecuniary penalty of 15,000 to 150,000 euros. If the perpetrator commits the act of the previous section as a profession or as a habit, or the unlawful benefit is of particularly great value, he is punishable with long-term imprisonment of up to fifteen years and a pecuniary penalty of 15,000 to 150,000 euros.

50

As defined in Art. 86 Const. (note 10).

132

A. Giannakoula

(1) The Subject of Passive Bribery The subject of the offence must be a public official. This term is exceptionally broad with regard to Art. 235(1) and (2) PC51 as it involves those included in Art. 13 (a) PC (which determines the general meaning of the term), Art. 263A(1) PC (which adds to the definition of the previous article in connection to a number of offences related to service) and Art. 263A(2) PC (which extends the relevant definition further especially for certain bribery offences). More specifically, Art. 263A PC reads: 1. For the implementation of articles 235, 236, 239, [. . .] 255, 256, [. . .], 259 [. . .], as public officials are also regarded those serving permanently or temporarily and under any capacity or relationship: (a) in enterprises or organisations owned by the State, local government agencies or public entities or private entities, which serve, through exclusive or privileged exploitation, the supply to the public of water, light, heat, power, or means of transport or communication or mass media, (b) in banks based in Greece according to law or their articles of association, (c) in private entities established by the State or by public entities or by legal entities mentioned in the previous sections, provided that the founding legal entities participate in their administration or, in cases of socie´te´s anonymes, in their capital or that the founding legal entities are responsible to execute state programs of financial reconstruction or development, (d) in institutions or organisations of the European Union, including the members of the European Commission and the members of the European Court of Justice and of the European Court of Auditors, and (e) in private entities which, according to the legislation in force, may receive grants or funding by the State, by public entities or by the banks cited above. 2. For the implementation of articles 235 paragraphs 1 and 2 and 236, as public officials are also regarded: a) functionaries or others serving under any contractual relationship in any public international or supranational organisation that Greece is a member of, as well as every person being granted the authority to act in the name of such an organisation, b) the members of the parliamentary assemblies of international or supranational organisations that Greece is a member of, c) those exercising judicial duties or serving as arbitrators in international courts whose jurisdiction is recognised by Greece, d) any person exercising a public function or service for a third country, including judges, jury and arbitrators, and e) the members of the parliaments and of the local government assemblies of third countries.

The purpose of Art. 263A PC is, on the one hand, to respond to the obligations that Greece has undertaken within the EU and other international organisations and, on the other hand, to follow the modern development of the State being substituted by private entities as far as satisfying the supply of public goods is concerned. As a result, the broad scope of the provision is considered to be justified, although not to its entirety and not without objections (regarding the provision’s wording and

51

The same goes for its counterpart, Art. 236(1) and (2) PC, prescribing the basic version of active bribery.

Criminal Liability of Political Decision-Makers in Greece

133

construction). In any case, it is necessary for a person to be assigned with a public duty and not just be employed by the entities mentioned.52 (2) The Agreement Bribery offences are evolved around an unlawful agreement regarding a specific act of public service. While the relationship between the citizens and the service is defined in a way that allows the fulfilment of the mission of the service, the unlawful agreement alters this relationship by replacing it with one that is based on benefit. Since an agreement presupposes the communication between two parties, the offence is committed when the message reaches the other party and its content is fully understood by that person. In contrast, it is not necessary for the benefit to be delivered or for the act of public service to be performed.53 Further, the agreement is punishable (under different sections) irrespective of its object being an act of public service that is contrary to the public servant’s (general or specific) duties or in accordance to those.54 Besides, it is possible for the agreement to take place before a person takes office, as long as it is confirmed afterwards, namely by performing the act that was agreed.55 (3) The Benefit The benefit exchanged for an act of public service may obviously be pecuniary in nature. Its value is not critical; what is needed is for the benefit to be required or received in breach of the public official’s duties and to actually be the reason for performing or promising to perform the act. The benefit may also be of any other nature, provided that it improves the legal status of the public official (e.g., a promotion, another act of public service, a newspaper article clearing a reputation, etc.). The benefit may concern a third party, but it must also reflect on the public official.56 Consequently, campaign funding may be a pecuniary benefit directed to the political party, but it apparently reflects on M as well. Similarly, the prospect of re-election can suffice as a non-pecuniary benefit, as long as the agreement is crucial to this respect.

52 Bitzilekis (note 34), pp. 92-104; Stoila (note 34), pp. 242-248; K. Chatzikostas, in: KaiafaGbandi (scientific supervision), Oikonomiko egklima & diafthora sto dimosio tomea – tomos 1, 2014 (Dikaio & Oikonomia P.N. Sakkoulas, Athens), pp. 376-381; S. Pavlou, I ‘dimosia periousia’ os pronomiakos stochos tou oikonomikou egklimatos: kathorismos tou (ennoiologikou) evrous tis kai anagki (diakrinousas?) prostasias tis, PoinChron 2011, p. 412 (417). 53 Bitzilekis (note 34), pp. 167-169, 183-189, 201-203. 54 Bitzilekis (note 34), pp. 196-199. 55 Bitzilekis (note 34), p. 209. 56 Bitzilekis (note 34), pp. 173-183, 189-191 (purely altruistic motives are excluded from the scope of the provision).

134

A. Giannakoula

(4) The Mental Element of the Punishable Behaviour Passive bribery must be covered by the subject’s dolus eventualis. Therefore, the public official must know, even as a probability, that he/she is a public official being bribed for an act of public service; he/she must also accept the agreement, wanting to benefit from it. The offence is committed even when the public official has no intention of actually performing the act that is the object of the unlawful agreement.57 bb) Art. 159 PC: ‘Passive Bribery of Political Officials’ 1. The Prime Minister, cabinet member, deputy minister, regional governor, vice-governor or mayor, who requests or receives, directly or through a third party, for himself or a third party, an unlawful benefit of any nature, or accepts the promise of such a benefit, in return for an action or omission, future or concluded, falling in the execution of their duties, is punishable with long-term imprisonment and a pecuniary penalty of 15,000 to 150,000 euros.

Article 159 PC institutes a special version of passive bribery, narrower in scope as to the subject of the offence and the object of the unlawful agreement, i.e. the act of public service. Regarding the latter, the slightly different wording of Art. 159 (1) PC in comparison to the one of Art. 235(1)(a) PC signifies that, when it comes to passive bribery of political officials, the act must amount to exercising public duty, while the general type of passive bribery refers to acts related to the execution of public duty and therefore also covers acts committed on the occasion of exercising public duty.58 Further, Art. 235 PC is consisted of several types of passive bribery offences; since the offence of Art. 159 PC is punishable with more severe penalties than any of these versions, it prevails over Art. 235 PC whenever its conditions are met. In conclusion, M’s criminal liability for bribery would be comparatively easier to substantiate.59

b) Conflict of Interests M being a partner of one of the possible contractors for the building of the bridge could give rise to the implementation of Art. 259 PC or perhaps of the following provisions.

57

Bitzilekis (note 34), pp. 206-207. Chatzikostas (note 52), pp. 624-625. 59 Such a development could also affect M’s liability under Art. 256 PC mentioned above, since aiming to unlawfully benefit a third party, i.e. the possible contractor offering M a bribe, is a critical notion in the context of this provision. The bribe, on the other hand, does not derive directly from the pecuniary loss of the State – Bitzilekis (note 34), p. 583. 58

Criminal Liability of Political Decision-Makers in Greece

135

aa) Article 262 of Statute 4412/2016 (Conflict of Interests) and Art. 254 PC (Concealment of Reason for Exception) A public official who has lawful reason to be exempted from a case and who knowingly conceals the fact and takes action in this case is punishable with short-term imprisonment of at least three months, if the concealment took place with the purpose of unlawfully benefiting himself or harming a third person.

For Art. 254 PC to apply, it is required that (1) a public official, as defined in Art. 13(a) PC (since Art. 254 PC is not included in the list of Art. 263A PC), (2) fails to disclose a lawful reason of exemption founded in a specific law provision and (3) performs the relevant act of public service, (4) definitely knowing the existence of the reason of exemption and (5) aiming to provide himself/herself with a benefit, pecuniary or not (improving his/her legal status) or to harm another person, (6) thus endangering the objectivity and the impartiality of the administration, regardless of the public official actually performing the said act unfairly.60 Against this background, it is important to note that statute 4281/2014 introduced a provision entitled ‘conflict of interests’ in the field of public contracts (Art. 45). That provision has been replaced by Art. 262 of statute 4281/2016, which cites (among others) that, in order to secure the fair treatment of all the economic players and to avoid the distortion of the competition, members of the staff of the contracting authority (which may be the State, a local authority, etc.) are obliged to announce any personal conflict of interests (e.g., their involvement in the administration or in the capital of a candidate contractor) as soon as they become aware of the conflict and abstain from further action regarding the procedure to award the contract; pursuant to such an announcement, a competent independent authority takes the appropriate measures, which may include the exemption of the person being in conflict from the procedure of awarding the contract. The provision makes the application of Art. 254 PC possible in the case of M; however, the implementation of the above-mentioned statutes has been problematic (the entering into force of their relevant sections has been postponed several times). Nonetheless, reasons for exemption in the sense of Art. 254 PC may derive from different sources.61

60

Bitzilekis (note 34), pp. 252-263. For example, in AP 1340/2005, PoinDik 2006, p. 718, Art. 254 PC is linked to Art. 82(1) of the presidential decree 611/1977, which establishes a public official’s obligation to abstain from resolving an issue in reference to which he/she or a person related to him/her have obvious interest (see respectively Art. 36 of statute). Similarly, according to Art. 99 of statute 3463/2006, a member of the municipality council must abstain from taking a decision or giving an opinion concerning an issue where he/she or a person related to him/her have pecuniary or ethical interest; see AP 2430/ 2008 (PoinChron 2009, p. 1251) regarding the application of Art. 99 in conjunction with Art. 254 PC. 61

136

A. Giannakoula

bb) Article 255 PC: ‘Unlawful Participation’ A public official who directly or indirectly, and especially by using a third party or with concealed acts, took part in an auction, a lease, a public sale or any other act in which he exercises his public duties is punishable with short-term imprisonment of up to two years and a pecuniary penalty.

Article 255 PC should also be examined, especially if the conditions of Art. 254 PC are not met. More specifically, for Art. 255 PC to apply, it is required that (1) a public official, as defined in Arts. 13(a) and 263A(1) PC, (2) has taken part (3) in an act of public service of transactional-pecuniary nature, (4) both as a public official exercising public duties and as a private party trading with the State (even through another natural or legal person), (5) endangering the objectivity and the impartiality of the administration (the latter condition is not met when, for example, there are no other candidates but the procedure was in fact open to everyone and it was feasible for more possible candidates to compete).62

III. Special Sanctions Applicable to Politicians First of all, in connection to the previous issue, Art. 57 Const. establishes grounds for forfeiting parliamentary office when a member of Parliament is participating in an enterprise handling public constructions.63 Further, Art. 263 PC introduces certain special provisions concerning public officials convicted for one of the offences of Chapter 12 PC; its first paragraph refers to the deprivation of political rights and the second one to confiscation.64,65 Art. 263(1) PC reads: To the public official sentenced to short-term imprisonment for one of the acts of articles 235 to 261, a deprivation of political rights for one (1) to five (5) years is imposed, unless the court decides otherwise with an especially justified opinion. More specifically, the disqualification of the liable person from its position or office, caused by the deprivation of political rights, occurs ipso jure as soon as the conviction becomes final [...].

Taking into consideration this special provision regarding public officials, the general provisions on the subject (Arts. 59–66 PC)66 and Art. 18 of statute 3126/ 62

Bitzilekis (note 34), pp. 263-269. See Art. 57 Const. 64 Art. 263(2) PC extends the special (and much stricter) rules of Art. 238 PC on confiscating bribes and bribe-related property to all the offences of Art. 239-261 PC, when the latter provide pecuniary benefits to the perpetrators (for example, in contrast to the general rules of Art. 76 PC, confiscation according to Art. 238 PC is compulsory to impose). Also, Arts. 5(5), 9(2) and 17(1) of statute 3126/ 2003, as revised in 2011, introduce stricter rules on freezing assets of the property of a minister who is being investigated for committing an offence that produces financial profit. 65 In cases of public property, statute 1608/1950 regarding the embezzlers of public property also applies, affecting the custodial penalties (notes 40 and 51). 66 Regarding those see E. Symeonidou-Kastanidou, in: Kaiafa-Gbandi/Bitzilekis/SymeonidouKastanidou, Dikaio ton poinikon kyroseon, 2008 (Nomiki Bibliothiki, Athens), pp. 54-62. 63

Criminal Liability of Political Decision-Makers in Greece

137

2003 regarding ministers,67 the following apply with regard to political decisionmakers: – a sentence of long-term imprisonment (e.g., for passive bribery of political officials or for aggravated breach of trust) entails the compulsory deprivation of political rights between 2 and 10 years (Art. 60 PC)68; – a sentence of short-term imprisonment for an offence of Chapter 12 PC (in our case, the basic versions of the ones defined in Arts. 235, 254, 255, 256, 259 PC) entails a respective deprivation between 1 and 5 years, unless the court decides differently with an especially justified judgement (Art. 263(1) PC); – a sentence of short-term imprisonment for an offence outside Chapter 12 PC (e.g., breach of trust under Art. 390 PC) leads to a deprivation between 1 and 5 years if the sentence amounts to a custodial penalty of at least 1 year and the punishable act either manifests the perpetrator’s ‘moral perversion’ or falls within the scope of Art. 81A PC, which introduces aggravated circumstances for any offence bearing ‘racist characteristics’ (Art. 61 PC); – if a minister is ‘convicted of a misdemeanour’ (sentenced to short-term imprisonment), the court is restricted from imposing a deprivation of political rights at all (Art. 18(1) of statute 3126/2003).69,70 Subsequently, Art. 63 PC on the ‘effect of the deprivation’ cites (among others) that the convicted person ‘definitely forfeits’ his/her elected office or position and, for a certain period of time, is prohibited from acquiring such office or position and further from voting or being elected in the elections for the Parliament or the local governments. Moreover, while Art. 64 PC lets the court decide whether, in cases of short-term imprisonment, the deprivation should only affect some political rights, Art. 263(1) PC clarifies that, regarding the offences it refers to, it is impossible not to impose a disqualification from public office. Furthermore, Art. 236 of statute 3852/2010 provides that members of the local government agencies forfeit their office ipso jure following a deprivation of their

67

As ministers are defined in Art. 86 Const. (note 10). When life-long imprisonment is imposed, the deprivation is permanent (Art. 59 PC), unless a restoration under Art. 66 PC takes place. 69 The legislative decree 802/1971, adopted by the dictatorship of 1967-1974, provided for a deprivation of political rights of ministers even twice as long as in common cases (10 years). That paternalistic notion was rejected as disproportionate (see A. N. Loverdos, I Poiniki Efthyni ton Melon tis Kyvernisis kai ton Yfypourgon sto Koinovouleftiko Politevma, 1995 (Ant. N. Sakkoulas, Athens), p. 155), thus expressing the view that the people are competent to decide on who should hold public office even in relation to political decision-makers convicted for misdemeanours (K. Chrysogonos, Syntagmatikes diastaseis tis poinikis efthynis ton melon tis kyvernisis kai ton yfypourgon, Yperaspisi 1997, p. 451 (483)). 70 The differential treatment of ministers includes the mandatory conversion of any short-term imprisonment sentence (up to five years) to a pecuniary penalty (Art. 18(2) of statute 3126/2003), when in general (Art. 82 § 1 PC) the conversion is mandatory only with regard to sentences of up to 1 year of imprisonment and conditional (although easily applied) with regard to sentences from 1 to 5 years of imprisonment (until 2012, the general rule with respect to conditional conversion basically affected sentences from one to three years). 68

138

A. Giannakoula

political rights or a final conviction for any felony or for an offence listed in the said provision (bribery, breach of trust, breach of public duty diminishing the municipality’s property, etc.). Prior to that time, the same subjects can be suspended from performing their duties, when a conviction for a misdemeanour can only be challenged in front of the AP or when there is a first-degree conviction for a felony (possible to be challenged with an appeal and later in front of the AP) or when there is just an indictment for a felony accompanied with restraining measures.71 For this provision to apply, the court decisions and the procedural acts just mentioned must take place after the subject takes office, regardless of the time of the commission of the offence.72

IV. Immunities and Other Limitations of Criminal Liability The ‘immunities’ granted by the Greek Constitution (Arts. 61–62) concern the members of Parliament and refer either to liability (anefthino) or to prosecution (akatadiokto). More specifically, on the one hand, Art. 61(1) provides that ‘a Member of Parliament shall not be prosecuted or in any way interrogated for an opinion expressed or a vote cast by him in the discharge of his parliamentary duties’.73 This guarantee covers acts directly linked to the function of being a member of Parliament; it is not limited to the period of time a person holds parliamentary office; it is not possible to lift, with the exception of the offence of sycophantic defamation (‘libel’—Art. 61(2)(a)); and it concerns any type of proceedings (criminal or other proceedings). On the other hand, according to Art. 62(1)(a), ‘during the parliamentary term the members of Parliament shall not be prosecuted, arrested, imprisoned or otherwise confined without prior leave granted by Parliament’. This guarantee covers any act of a member of Parliament that amounts to committing a criminal offence, with the exception of members of Parliament being caught in the act of committing a felony (Art. 62(4)); it is limited to the duration of the parliamentary term regardless of when the offences were committed (exceptionally, for ‘political crimes’ it lasts until the beginning of a new parliamentary term, i.e. it also covers the period of the elections—Art. 62(1)(b)); it is lifted when the Parliament decides so; and it only concerns criminal proceedings.74 71

See similar provisions in Art. 146 of statute 3463/2006 and Art. 149 of statute 3528/2007 (for public servants), and Art. 103 of the latter, according to which suspension is imposed also when the public official is arrested. 72 I. Theodorou, Ta organa dioikisis ton protovathmion OTA, 2002 (private edition, Thessaloniki), p. 83. 73 See also the third paragraph of the article: ‘A Member of Parliament shall not be liable to testify on information given to him or supplied by him in the course of the discharge of his duties, or on the persons who entrusted the information to him or to whom he supplied such information.’ 74 Tsatsos (note 7), pp. 253-257; Velizelos (note 2), pp. 391-398.

Criminal Liability of Political Decision-Makers in Greece

139

V. Special Courts and Special Procedural Requirements According to Art. 86(4) Const., the criminal offences (misdemeanours or felonies) committed by ministers75 in the execution of their duties are tried by a Special Court consisted of members of the two supreme courts of Greece, ‘Areios Pagos’ (the Supreme Civil and Criminal Court of Greece) and the ‘Council of State’ (the Supreme Administrative Court of Greece). The procedural details of such trials are regulated by Art. 86 Const. and further by statute 3126/2003. In order to avoid politically motivated prosecutions, as well as serious obstructions to government work and the criminalisation of political life, it is provided that it is necessary for the Parliament not only to initiate the criminal procedures against a minister (or a former minister) but also to perform the preliminary investigation on the case.

VI. Further Particularities in Proceedings Against Political Decision-Makers A significant feature of the proceedings against political decision-makers in Greece is the special, and additional, ‘prescription’ period76 cited in Art. 86(3)(e) Const. and in Art. 3(2) of statute 3126/2003. Aiming to put pressure on the Parliament for fast resolution of cases involving ministers, it has always been an object of controversy as it has been blamed both for allowing an excessive intervention of criminal justice in the political arena and for being unjustifiably lenient to ministers, depending on the political and socioeconomic conditions of each time.77 Athina Giannakoula is lecturer at the National School of Judges of Greece, Thessaloniki.

75

In the broad sense of the term (note 10). For the discussion on the legal nature of this limitation see L. Margaritis, Exaleipsi axiopoinou ypourgikou egklimatos kai nomimopoiisi esodon apo egklimatiki drastiriotita, in: Mantzoufas/ Margaritis/Symeonidou-Kastanidou, I poiniki efthyni ton Ypourgon, Dynatotites kai oria, 2014 (Nomiki Bibliothiki, Athens), p. 35, and ‘Ill-Motivated Criminal Proceedings as a Means in the Political Arena?’ in the present volume for further quotations. 77 P. Mantzoufas, I schesi politikis kai poinikis efthynis ton melon tis kyvernisis, in: Mantzoufas/ Margaritis/Symeonidou-Kastanidou, I poiniki efthyni ton Ypourgon, Dynatotites kai oria, 2014 (Nomiki Bibliothiki, Athens), p. 18. Regarding the rationale of establishing special provisions for ministers, see Loverdos (note 69), pp. 69-77, 107-120; L. Margaritis, Ypourgoi kai Yfypourgoi: pathitiki dorodokia kai nomimopoiisi esodon apo egklimatiki drastiriotita, PoinDik 2011, p. 490, where further quotations. 76

Criminal Liability of Political Decision-Makers in Italy Federica Iovene and Nicola Recchia

I. Preliminary Remarks 1. The Italian Administrative Structure The analysis of the case study must start from an overview of the Italian administrative system in order to explain at what administrative level the decisions are made and how higher-level politicians may influence decisions regarding the lower level. The reference is first of all to Art. 97(1) and Art. 118 of the Italian Costituzione (Constitution—Const.), which read as follows: Art. 97(1) Const. Public offices are organized according to law, so as to ensure efficiency and impartiality of administration.1 Art. 118 Const. Administrative functions are attributed to the Municipalities, unless they are attributed to the Provinces, Metropolitan Cities and Regions or to the State, pursuant to the principles of subsidiarity, differentiation and proportionality, to ensure their uniform implementation.

Sections I.1., IV., V. and VI. are Federica Iovene’s contribution; Sections I.2., II. and III. are Nicola Recchia’s contribution. 1

C. Casonato, J. Woelk (eds.), The Constitution of the Italian Republic, 2009 (University of Trento, Trento).

F. Iovene (*) Public Prosecutor’s Office, Bolzano, Italy e-mail: [email protected] N. Recchia (*) University of Ferrara, Ferrara, Italy e-mail: [email protected] © Springer International Publishing AG 2017 F. Zimmermann (ed.), Criminal Liability of Political Decision-Makers, DOI 10.1007/978-3-319-52051-3_8

141

142

F. Iovene and N. Recchia

Municipalities, Provinces and Metropolitan Cities carry out administrative functions of their own as well as the functions assigned to them by State or by regional legislation, according to their respective competences. State legislation shall provide for co-ordinated action between the State and the Regions in the subject matters defined in Article 117, paragraph 2 letters b) and h), and also provide for agreements and co-ordinated action in the field of cultural heritage preservation. The State, Regions, Metropolitan Cities, Provinces and Municipalities shall promote the autonomous initiatives of citizens, both as individuals and as members of associations, relating to activities of general interest, on the basis of the principle of subsidiarity.2

According to this constitutional model, the administrative power is a ‘spread’ power, which should be exercised at the lower level, the level closer to the citizens, namely at the municipality level, unless there are special needs for it to be allocated to a higher level (subsidiarity principle). Art. 120(2) of the Constitution states: Art. 120(2) Const. The Government can act for bodies of the Regions, Metropolitan Cities, Provinces and Municipalities if the latter fail to comply with international rules or treaties or European Union legislation, or in case of grave danger to public safety and security, or whenever such action is necessary to preserve legal or economic unity and in particular to guarantee the basic level of benefits relating to civil and social entitlements, regardless of the geographic boundaries within which local authorities operate. The law shall lay down the procedures to ensure that substituted powers are exercised in compliance with the principles of subsidiarity and of loyal co-operation.3

Applying this model to the case under analysis, it is necessary to distinguish between different situations: (a) Local administrators (mayor, municipality council members): the decision to build a bridge may likely be made at the lower administrative level, that is, at the municipality level. In this case, no special limitations of criminal liability apply, nor do particular procedural safeguards. Local politicians are subject to ordinary justice. It must be underlined, however, that the decision to build a bridge is an expression of discretionary power. Thus, the ordinary judge, according to the principle of separation of powers, will meet several limits in assessing whether it was a good decision or not. Furthermore, if the decision made causes public damage (i.e., if the bridge is useless and very expensive but is nonetheless built using public money), the local administration will respond in front of the Court of Accounts for the fiscal damage caused, but only in case of gross negligence. (b) National politicians—members of Parliament: members of Parliament may be taken into consideration only if, in the exercise of their function at national

2 3

Casonato/Woelk (note 1). Casonato/Woelk (note 1).

Criminal Liability of Political Decision-Makers in Italy

143

level, they influence the decision at local level. This is the case, for example, if the bridge to be built is of high financial impact and must therefore be authorised within the annual financial act, which is subject to Parliament’s approval. Moreover, it must be considered that, in case the municipality has no more than 20,000 inhabitants, a member of Parliament may also be mayor.4 In this case, immunities may come into consideration.5 (c) Ministers: ministers may be taken into consideration, in the case under analysis, when the decision to build a bridge, although taken at local level, involves questions and decisions at a higher political level, i.e. environmental authorisation, financing of the local government unit, public works planning, etc. (d) Candidates: in this hypothesis, no specific safeguards apply, nor do special proceedings. It is furthermore necessary to highlight another important feature of the Italian constitutional system, namely the so-called distinction between politics and administration within the administrative action. As a matter of fact, politicians are entitled to determine the abstract orientation of their office, whereas the public manager is responsible for the concrete management of the office itself.6 This organisational choice dates back to the reform of local authorities of 1990 (Art. 51 law no. 142/1990) and has then been extended to all public administrations in 1993 (Art. 3 legislative decree 29/1993), further amended in 1997 (law no. 127/1997); the present regulation is contained in Art. 4 legislative decree 165/2001. The rationale is twofold: on the one hand, the aim is to hinder the involvement of political bodies in administrative activities; on the other hand, the aim is to make the whole system more efficient and the public managers more responsible, similarly to what happens to the managers of private companies. In the field of criminal law, this distinction reduces the probability that a politician can directly and exclusively be held responsible for crimes that—like corruption and abuse of office—presuppose an administrative measure, i.e. the result of a complex administrative activity. To this extent, the politician may be held criminally responsible provided that it is possible to demonstrate that he/she did not merely—and so unlawfully—conduct his/her function of general and abstract orientation.

4 Art. 163 legislative decree 267/2000 (Testo Unico degli Enti Locali); Constitutional Court, 120, 3 June 2013. 5 See further infra IV. on immunities and other limitations of criminal liability. 6 E. Casetta, Manuale di diritto amministrativo, 2010 (Giuffre´, Milano), pp. 38 et seq. See also L. Pacifici, Riflessi penalistici del principio di separazione tra politica e amministrazione, 2014 (Jovene, Napoli).

144

F. Iovene and N. Recchia

2. Personal Quality in the Offences Against Public Administration The case at issue involves the analysis of several offences contained in the second chapter of the second book of the Italian Criminal Code (CC), concerning offences against the public administration. These are classified in the Italian doctrine as reati propri, i.e. offences that cannot be committed by anyone but only by persons with particular personal qualities, in this case persons having a particular relation with public administration. In fact, the offences that will be analysed can only be committed by either public officials or persons in charge of a public service, so that it may be useful to analyse in the first place the elements that the different offences have in common. These two personal qualities are both described by the Italian Criminal Code in Arts. 357 and 358, which read as follows: Art. 357 CC – Notion of public official With regard to criminal law, whoever performs public functions in the legislative, judicial or administrative sector shall be considered a public official. In this same regard, any administrative functions shall be considered to be public if they are governed by public law and administrative acts and characterised by the expression and manifestation or the exercise of the will of the public administration through authoritative powers or certification. Art. 358 CC – Notion of person in charge of a public service With regard to criminal law, whoever performs a public service for whatever purpose shall be considered to be in charge of a public service. Public service shall mean an activity that is governed in accordance with the same modalities as a public function, although in the absence of the power vested in the latter, and excluding the performance of simple ordinary tasks and exclusively manual work.

For the purpose of this analysis, it is not necessary to examine all the questions posed by these provisions,7 especially since it is clear that in the case at issue M would always fall within the definition provided by Art. 357, as member of Parliament, government minister, mayor or municipality council member. The definition of public official is in fact very broad and encompasses all the roles of political responsibility within parliamentary or administrative bodies and is even broader in the interpretation of the Italian jurisprudence. In the light of these provisions, it is also clear that the candidate is not a public official until the formal investiture, so that the Italian legislator has provided specific legislation for electoral campaigns, as will be later discussed.

7

Already the distinction in two different provisions has been highly criticised by the Italian doctrine, since it has caused the additional and very difficult problem of identifying the difference between the two norms (so-called internal limit) and then the even more difficult problem of the external limit of these two definitions. See for a detailed discussion of these questions V. Manes, Servizi pubblici e diritto Criminale, 2010 (Giappichelli, Torino), pp. 65 et seq.

Criminal Liability of Political Decision-Makers in Italy

145

II. Comparative Case Study 1. Part 1: Criminal Liability for Bad Political Decisions a) Abuse of office (Art. 323 CC) Considering the case provided, one should examine in the first place the offence of ‘Abuse of office’ (Art. 323 CC), which undoubtedly represents one of the most controversial offences in the history of the Italian Criminal Code and in the legal debate within the doctrine and the jurisprudence.8 In fact, the provision currently in force is the result of several interventions by the legislator: law no. 86/1990, which reformed the whole section of the offences against public administration committed by public officials and gave a completely new form to the offence at issue, which had remained intact since the entry into force of the Criminal Code in 1930; law no. 234/1997, which amended some key aspects of the provision, and law no. 190/2012, which simply increased the custodial sanction.9 It may be useful to give an unofficial translation of the provision: Art. 323 CC – Abuse of office Except when the fact constitutes a more serious offence, a public official or a person charged with a public service who, in the execution of his/her office or service, in breach of norms of law or regulation, or omitting to abstain in the presence of his/her own interest or of an interest of a close relative or in the other cases provided, intentionally procures to himself/herself or to others an unjust patrimonial advantage or causes to others unjust damage shall be sentenced to one to four years imprisonment. The punishment is increased in cases in which the advantage or the damage are particularly serious.

From the mere reading of the offence at issue, its numerous constituent elements emerge, so that it is obviously very difficult for the prosecution authority to prove all of them. It is not a secret that the reform of 1997 was mainly conceived in order to limit the scope of application of this offence, whose wide application by the courts had—in the view of the Italian Parliament—caused a deep interference of the judicial power with the discretionary exercise of the executive power.10 Each element of the offence should now be examined briefly in order to ascertain whether or not it is applicable to the case under analysis.

8

So among many scholars M. Romano, I delitti contro la pubblica amministrazione. I delitti dei pubblici ufficiali, 3rd ed. 2013 (Giuffre`, Milano), p. 296. 9 On the different offences of abuse of office in Italy see Romano (note 8), pp. 296 et seq. On the application of this offence before 1997 see, ex multis, V. Manes, Abuso d’ufficio e progetti di riforma: i limiti dell’attuale formulazione alla luce delle soluzioni proposte, Rivista italiana di diritto e procedura Criminale 1997, pp. 1203 et seq. 10 See again Romano (note 8), p. 298.

146

F. Iovene and N. Recchia

aa) The Quality of Public Official or Person Charged with Public Service As for the personal qualities required by the provision, we can refer to the description above (supra I.2.) and, as already said, M would certainly satisfy this element of the offence.

bb) In the Execution of His/Her Office or Service The second element required by the provision is that the act must have been performed in an official capacity—under the colour of office—hence this provision does not cover acts committed by a public official who is acting as a private person, beyond the exercise of his/her duties. It is not necessary to examine in depth this element and the relevant case law since it is uncontroversial in the case that the act committed by M satisfies this element.

cc) In Breach of Norms of Law or Regulation Much more controversial, not only in this case but also in Italian case law and in the legal doctrine, is how the element ‘in breach of norms of law or regulation’ should be interpreted. This element was introduced by the 1997 reform in order to define in a more precise and restrictive manner the scope of application of the offence; it is clear that the legislator aimed at confining the application of this provision to those cases in which the public official violated a specific written norm. Such interpretation of the offence would entail of course—as expected by the legislator—the impossibility to apply it to most of the cases in which this provision had been applied before the reform. More precisely, these are cases where a public official’s act does not breach a specific law, but still consists in an abuse of power, because the public official exercises power that was lawfully conferred upon him/her for a certain aim of public interest in order to pursue a private interest instead. As a consequence, the jurisprudence has attempted to find new argumentative patterns in order to broaden the provision’s scope of application. In particular, courts have repeatedly applied the offence of abuse of office to cases where ‘the violation of norms’ required by Art. 323 CC was not one involving a specific provision on the functioning of public administration or on the peculiar duties of each public official. Rather, a violation of the general principles of efficiency and impartiality of public administration, laid down in Art. 97 of the Italian Constitution, was considered sufficient. Therefore, the offence—according to the jurisprudence—now covers all the cases just outlined.11 11

See in the case law Corte di Cassazione, 23019, 29 May 2015; 155, 10 January 2012; 25162, 19 June 2008; 38965, 24 November 2006. Against this view the majority of the doctrine see, ex multis, Romano (note 8), p. 303; L. Stortoni, Delitti contro la pubblica amministrazione, in: Canestrari et al. (eds.), Diritto Criminale. Lineamenti di parte speciale, 2014 (Monduzzi, Bologna), pp. 196 et seq.

Criminal Liability of Political Decision-Makers in Italy

147

However, this interpretation on the part of the jurisprudence, which treats also an abuse of power as a breach of law, and more precisely as a violation of Art. 97 of the Constitution, has been highly criticised by the legal doctrine. In fact, it can result in a really complex mixture of objective and subjective elements of the offence, or better, in a complete replacement of the objective element with the subjective one, since the abuse of power is intrinsically built on the subjective aim that the public official pursues. This interpretation is even more problematic, according to the legal doctrine, in cases that necessarily imply a ‘personal’ interest. Such is undeniably the case for politicians, who can be presumed to have electoral and political considerations in mind when making an administrative decision. In order not to completely miss the legislator’s aim to define more precisely the objective elements of the offence, the legal doctrine suggests that, in order to prove the diversion of power from a public to a private interest, regard should be had to the objective consequences of the act and not only to the public official’s subjective intention.12 Coming now to the case at issue, it is arguable whether the activity of M would satisfy this element of the offence: it is not stated that M has breached any specific provision of law or regulation. Furthermore, it would be difficult to find the decision, at the time when it was taken, in breach of the general principles of efficiency and impartiality of public administration. This is due to the fact that the project was only considered questionable, whereas there was also public support for the bridge. Therefore, it can—at least prima facie—be considered useful. The discretionary decision taken by M involves, of course, a risk for the public administration, but this risk cannot be seen per se as a violation of the principle of efficiency since it would not be possible to ask public officials to act only in absence of any risk for the public administration. If, instead, it was clear from the beginning that the bridge would be useless or oversized or too expensive, the solution would be a different one because then one could easily find a breach of public procurement law (legislative decree 50/2016, in particular Art. 23, 5). However, even in this case it appears reasonable to assume that the administrative rather than the political body would be held responsible since it is not up to the latter to assess the pros and cons, as well as the legality, of the proposed project.

dd) The Unjust Patrimonial Advantage to Oneself or Others or the Unjust Damage to Others Proceeding to the last objective element of the offence, i.e. unjust patrimonial advantage or unjust damage, it is worth explaining the so-called requirement of ‘double injustice’ as construed by the jurisprudence and by the doctrine.13 The qualification of the patrimonial advantage or of the damage as ‘unjust’ presupposes

12

Stortoni (note 11), pp. 195 et seq. See Corte di Cassazione, 10133, 10 March 2015; 11394, 18 March 2015; 32237, 21 July 2014; 16895, 21 April 2009. 13

148

F. Iovene and N. Recchia

that it is per se contrary to the law and not only the result of an act breaching the law. For instance, a public official does not commit abuse of office if the abuse results in a patrimonial advantage (for himself/herself or for another person) to which the recipient was entitled as private individual.14 In the present case, it could easily be argued that M’s decision to build the bridge will of course result in a patrimonial advantage for the future contractor, but this advantage will not be unjust as such since it will be the synallagmatic payment for the service provided to the public administration. It is much more difficult to ascertain whether an unjust damage for C-City occurred. First of all, one should bear in mind that the damage, unlike the advantage, does not have to be of patrimonial nature. Thus, this alternative has a broader scope of application. In the case at issue, one could not see any damage for the municipality from a patrimonial perspective when the bridge would only prove to be very expensive, oversized or completely useless: then the payment by the city would still correspond synallagmaticly to the service provided by the contractor. Nevertheless, one could of course see a non-patrimonial damage in such a situation, provided that the economic and budgetary effort of C-City is deprived of any sense (if the bridge is useless) or at least does not fully correspond to the benefit gained (if the bridge is oversized). If, however, the bridge was only very expensive, but still useful and not oversized, it would be difficult to argue that the municipality suffered damage at all—especially in the present case, where there is no evidence that M violated any budgetary regulations.

ee) Intentionally Focusing on the subjective element of the offence, it should be noted that this has constituted and still constitutes a matter of remarkable debate within both the jurisprudence and the doctrine. In fact, it is unclear how the term ‘intentionally’, which the legislator certainly intended to limit the scope of the offence, should be interpreted. A first line of reasoning would apply the offence at issue only when the public official exclusively aims at achieving a patrimonial advantage or causing damage, so that the offence would not apply to a case where the public official’s aim is a different one, even if he/she is absolutely sure that a patrimonial advantage will be achieved or damage will be caused.15 According to a different interpretation of this element, at least a public official who acts with the prevalent intent of pursuing a public interest should not be punished, even if accepting that his/her act will result in the achievement of a patrimonial advantage or in the causation of some damage.16 The latter interpretation, predominant in the most recent case law, is often

14

See, for instance, Corte di Cassazione, 26324, 6 July 2007; 11415, 21 February 2003; 62, 8 January 2003. 15 In this sense especially the doctrine, see, ex multis, Romano (note 8), p. 318. 16 See Corte di Cassazione, 10810, 6 March 2014.

Criminal Liability of Political Decision-Makers in Italy

149

restricted even further with reference to public officials’ political or electoral aims because otherwise the offence still applies if the public interest is a mere occasion for the pursuit of the electoral or political gain.17 And according to this interpretation, the punishment of the public official would, in the end, depend on the judge’s assessment that he/she did not only act for public purposes, but also for electoral reasons. Anyway, it is clear in the case law and in the doctrine that the offence is not committed when a public official, whose conduct is actually aimed at something different, only accepts the risk that a patrimonial advantage or a damage may occur but is not certain about it. In the case at hand, it is certain that M does not act with the exclusive aim of causing damage to C-City or of gaining an unjust patrimonial advantage for himself/herself or for anyone else. It should thus be ascertained if, while acting with a different intention, M is sure that his/her decision will certainly result in a damage for C. Referring to the terms of the case—‘uncertain success’, ‘questionable’—it seems that M is accepting the risk that the building measure may result in some damage for C, but he/she is not certain that such a damage will actually occur. Therefore, M’s act would not satisfy the subjective element of the offence. Even if M was certain that damage would be caused to C, this would still not satisfy the subjective element of the offence, if one follows the first line of reasoning mentioned above. In the light of the predominant case law, by contrast, it should be ascertained if M’s decision was motivated by an actual public interest of C or taken for merely electoral purposes, as it appears. Only in the latter case would he/she be punishable under Art. 323 CC.

b) Misappropriation (Art. 314 CC) Since this kind of offence is relevant for the first part of the case in many legal orders, it is important to notice that also in the Italian legal order there is an offence of misappropriation (Art. 314 CC, so-called Peculato). The conduct described in the offence is only that of direct appropriation of money and not, as in the case study, one of misappropriation of public money. This conduct was covered by an earlier version of the article but was then eliminated and ideally transposed into the provision on abuse of office since the legislator considered this offence more precise (see the ‘breach of law’ requirement) and thus leaving less room for an arbitrary application by public prosecutors. The offence of Peculato would thus never be applicable in the case, and there is then no need to discuss it any further.

17

See, ex multis, Corte di Cassazione, 23019, 29 May 2015; 18895, 13 May 2011; 39371, 9 November 2010.

150

F. Iovene and N. Recchia

c) Embezzlement (Art. 2634 of the Italian Civil Code) It is worth mentioning also the offence of embezzlement since it would come into play in most of the other legal orders. However, the offence provided by Art. 2634 of the Italian Civil Code, very similar to the corresponding offences of other European countries, is applicable only to companies and is therefore not relevant for this case.

2. Part 2: Criminal Liability for Pursuit of Personal Interests a) Bribery for the Exercise of the Function and Bribery for an Act in Breach of the Duties of the Office (Art. 318 and Art. 319 CC) In order to discuss and analyse the second part of the case, in which M is offered a benefit, two further provisions of the Italian Criminal Code should be presented. The offer of a benefit makes the case evolve from one of mere abuse of power to one of bribery. The Italian Criminal Code actually knows more than one provision applicable to corruptive practices within the public sector, and also for the case at issue it is not completely clear which one of the two following provisions should be applied. As before, it may be useful to give an unofficial translation of the provisions: Art. 318 CC – Bribery for the exercise of the function The public official who, for the exercise of his/her functions or powers, unduly receives, for him/herself or for a third party, money or other benefits or accepts such a promise, shall be sentenced to one to six years imprisonment. Art. 319 CC – Bribery for an act in breach of official duties The public official who, in order to omit or delay or for having omitted or delayed an act of his/her office, or in order to perform or for having performed an act in breach of his/her official duties, receives, for him/herself or for a third party, money or other benefits, or accepts such a promise, shall be sentenced to six to ten years imprisonment.

aa) The Quality of Public Official As for the personal qualities required by the provisions, we can refer again to the description above (supra I.2.), and, once again, M would certainly satisfy this element of the offence.

bb) Receive Money or Another Benefit or Accept Such a Promise There is, first of all, in both provisions a quite broad characterisation of the public official’s incriminated conduct. In fact, he/she is punishable not only for receiving

Criminal Liability of Political Decision-Makers in Italy

151

the money or the benefit but as well as for accepting the promise. This element is clearly given in the case and does not require any further analysis. The Italian legislator gives also a very broad characterisation of the element of the advantage sought by the public official. This covers not only money or patrimonial advantage but any benefit, even of a non-patrimonial nature. In fact, the case law has interpreted this element in a way that encompasses basically any kind of benefit and, what is very important for the present case, even a political benefit.18 However, political support as such has rarely played a role in the case law since these cases usually are marked primarily by economic support, and then the more common element of accepting money is satisfied. Therefore, this second element of the offence should always be present in the case at issue. Both legal doctrine and jurisprudence discussed for a long time the possibility of limiting the scope of application of the bribery offences in cases where the money or the benefit is of extremely little economic value (so-called munuscula). Whereas the majority of the legal doctrine favoured such interpretation,19 the jurisprudence did not acknowledge it for bribery involving an act in breach of official duties. In 2013, however, Italy adopted a code of conduct for public servants (presidential decree 62/2013) that sets in Art. 4 an approximate limit of 150 euros for any kind of benefit that can be accepted, so that this provision could now be a useful guidance also for the application of the bribery offences.

cc) Act in Breach of the Duties of the Office It is now important to examine the difference between the two offences mentioned in order to understand on which provision a conviction of M may be based. The offence of Art. 319 is punished in a much more severe manner because, in this case, it has to be proven that the public official acted in breach of the duties of his/her office, so that there is a clear harm to the efficiency and impartiality of public administration; instead, the offence of Art. 318 requires only that the public official receives an advantage in connection with his/her public function, so that he/she is punishable also in cases where he/she will act in perfect accordance with the law, only for having let the citizen pay for the exercise of his/her duties. Of course it is everything but easy to ascertain if a single act of the public official does actually breach any laws or regulations, especially because in many cases public officials act within a margin of appreciation of the situation and can—within a certain regulatory framework—exercise discretionary power. According to Italian case law—and against the opinion of most legal scholars20—the more severe offence provided in Art. 319 shall always be applicable when discretionary decisions are taken, so that,

18

See Corte di Cassazione, 21991, 22 June 2006; 22843, 25 August 2008. See for instance Romano (note 8), pp. 176 et seq., 199 et seq. 20 See, for instance, Romano (note 8), p. 183; Stortoni (note 11), pp. 162 et seq. 19

152

F. Iovene and N. Recchia

in a certain way, it is presumed that the public official’s act contradicted the legal order as soon as it was influenced by the offered advantage.21 In the present case, also M would most probably be punished in accordance with Art. 319 CC, although, as explained above, it is far from easy to prove that M acted against any provision of law, and he therefore should more correctly be convicted on the basis of Art. 318.

dd) Intent Of course these provisions require a subjective element as well, i.e. the intention to accept the advantage and knowledge of the reason for the offer, but since this element does not seem problematic in the case at issue, there is no point in examining it more deeply.

b) Electoral Bribery (Art. 96 Presidential Decree 361/1957) The case provided further focuses on the relevance of the moment in which the bribe is offered, especially if this happens when M is still a candidate. As already discussed above, all offences examined here require a particular status of the offender—public official or person in charge of public service—and candidates do not have this status yet. However, this problem is not one of great practical significance: on the one hand, most candidates in the Italian political system already have the status of public official as they are incumbent for the same office or for a less important role. On the other hand, an illegal offering of money or other benefits often can be punished under the offence of illicit financing of a political party as stated in Art. 7 law no. 195/1974. Nevertheless, the legislator has introduced a specific offence, called ‘electoral bribery’, which is actually rarely applied in practice but interesting to analyse briefly. Art. 96 presidential decree 361/1957 A person who, in order to obtain for his/her or another’s advantage a signature for a declaration presenting the candidacy, or an electoral vote or abstention, offers, promises or gives money, monetary titles or any other benefit, or promises, gives, or lets obtain public or private jobs to one or more voters or, with their agreement, to other persons, shall be sentenced to one to four years imprisonment and to a fine of 309 to 2.065 €, even if the benefit promised or obtained is hidden as pecuniary indemnity for the voter’s travel or stay expenses, or as payment for food or beverages or as remuneration with the pretext of electoral expenses or services.

As already discussed, one could convincingly argue that M is promising a benefit if he/she binds his/her judgment on the merits of the construction of the bridge since

21

See, e.g., Corte di Cassazione, 23354, 4 June 2014; 26248, 26 July 2006; 12237, 15 March 2004.

Criminal Liability of Political Decision-Makers in Italy

153

this may offer chances to a potential contractor. Moreover, this offence does not require the benefit offered to be unjust, so that it is almost impossible to distinguish between usual promises during an electoral campaign and promises that can constitute an offence. This may explain why the provision is applied only sporadically in practice. What is more important in this case is that, anyway, M would only be punished if he/she was offered a benefit consisting in a signature for a declaration presenting the candidacy or in an electoral vote or abstention. So this offence would not apply when money or another kind of benefit is offered to a candidate, although it is difficult to imagine that in these cases a candidate would not be offered the vote as well.

c) Illicit Financing of a Political Party (Art. 7 Law no. 195/1974) Since it has been mentioned above, it may be interesting to briefly portray the offence of illicit financing of a political party, which could be important in the electoral campaign in relation to those candidates who cannot be held responsible for the offence of bribery. Art. 7 law no. 195/1974 3. A person who gives or receives contributions in breach of the prohibitions provided in the previous paragraphs, or, for the companies of the second paragraph, without the decision of the corporate organ or without properly registering the contribution or the financing in the balance sheet of the company, shall be sentenced to six months to four years imprisonment and to a fine up to three times the money given in breach of this law.

This norm provides criminal sanctions for party financing by any structure of the public administration, as stated in paragraph 1 of the article, or by private companies when it is given in breach of the transparency requirements set out in paragraph 2 of the article.

d) Trading in Illicit Influence (Art. 346bis CC) The case at issue also presents the hypothesis that M does not take the decision himself but that it is fostered by his/her influence and actually taken by others (as can be deduced from the continuation of the case). Should it be possible to prove that one of the offences mentioned above was actually committed, it would not pose major problems to ascertain M’s guilt with reference to the provision of Art. 110 CC, which reads as follows: Art. 110 CC – Punishment for persons contributing to the offence If different persons contribute to the same offence, each of them is subjected to the punishment provided for that offence, except for the provisions of the following articles.

154

F. Iovene and N. Recchia

Thus, M could be punished for the offences discussed above only by proving that he/she determined the decision or in any event facilitated it and that he/she did so with the same mental element as the persons actually taking the decision. Furthermore, it should be noted that if M were offered a benefit in order to make him foster the decision, he/she could be punished regardless of whether the decision is taken or not. In the first case, M would be punished, as explained earlier, under Arts. 319 or 318 in conjunction with Art. 110. In the second case, M’s conduct would probably fall under Art. 346bis CC, which may be interesting to analyse briefly.22 Art. 346bis CC – Trading in illicit influence A person who, in cases other than those of complicity in the offences referred to in Articles 319 and 319-ter, taking advantage of an existing relationship he/she has with a public official or person charged with public service, unduly makes someone give or promise to give, him/her or others, money or other patrimonial advantage as price for his/her unlawful mediation with the public official or person in charge of public service, or to remunerate him/her, in respect of the performance of an act contrary to his/her official duties or to the omission or delay to perform an act of his/her office, shall be sentenced to one to three years imprisonment.

The elements of the offence are then, firstly, the fact that, as already said, there is no bribery on the part of the person in charge of the decision since, in this case, the person would be sentenced as accomplice to a more severe punishment. Secondly, the offender has to act in a manner as to exploit an existing relationship with a public official or person charged with public service; lastly, he has to receive a benefit for his/her unlawful mediation with the public official, aimed at obtaining an act contrary to his/her official duties. In this case, the punishment is of course far less severe since it is not required that the act is actually committed by the public official nor that he/she accepted a bribe.

e) Abuse of Office (Art. 323 CC) Having already examined all the elements of the offence of abuse of office, it should be now easy to discuss the second part of the case, where it is said that M ‘was one of the partners of a potential contractor’.

aa) The Quality of Public Official or Person Charged with Public Service It has already been stated that M satisfies this element of the offence.

22

For a further analysis of this provision s. I. Merenda, Il traffico di influenze illecite: nuova fattispecie e nuovi interrogativi, Diritto Criminale contemporaneo – Rivista trimestrale 2013, pp. 88 et seq.

Criminal Liability of Political Decision-Makers in Italy

155

bb) In the Execution of His/Her Office or Service The offence’s element that the act must have been performed in an official capacity is undoubtedly satisfied, too.

cc) Omitting to Abstain in the Presence of His/Her Own Interest or in the Interest of a Close Relative or in the Other Cases Provided Furthermore, it clearly emerges that M has a personal interest in the decision, so that the third objective element of the offence provided in Art. 323 CC is satisfied as well. This offence is in fact committed when the public official acts in breach of norms of law or regulation or omits to abstain from acting in the presence of a personal or a close relative’s interest or in the other cases provided. In a situation like the one in the case at issue, M should have abstained from taking the decision.

dd) Unjust Patrimonial Advantage to Oneself or Others or Unjust Damage to Others As for the last objective element of the offence, what was said above in relation to the damage for C-City applies also here. Of course, one could also think of a possible patrimonial advantage for the future contractor’s company, of which M is a partner. Since the decision here at stake is not yet related to the appointment of a particular contractor, but to the decision on the construction itself, such advantage cannot be seen in the possible payment. Were this decision taken by M as well, we would have a completely different offence of abuse of office. At the stage of the decision on the bridge, the only patrimonial advantage for the possible contractor can be the chance of appointment, appreciated in its economic value.23 However, as already mentioned above, the patrimonial advantage must be unjust. Here, this means that the decision as such must be in breach of the law; therefore, in this respect, once again it is possible to refer to the considerations above (supra II.1.a) dd)).

ee) Intentionally Finally, with regard to the subjective element, the conclusions regarding the damage for C apply again. If one considered satisfied the objective element of an unjust patrimonial advantage, although this does not seem the case, it would not cause any problem to consider the subjective element of the offence satisfied as

23

See Corte di Cassazione, 21357, 4 June 2010.

156

F. Iovene and N. Recchia

well, provided it was possible to prove that M acted with the only or prevalent intention of pursuing a patrimonial advantage for the possible contractor.

III. Special Sanctions Applicable to Politicians All offences analysed here are punished with imprisonment, but the Italian Criminal Code provides, especially for this kind of offences, very significant accessory sanctions, among which the disqualification from holding public office, as defined in Art. 28 CC. This sanction consists in the disqualification from voting or being elected, from holding any public office and from some other less significant public titles or honours. Depending on the term of imprisonment imposed, it can be temporary or permanent. As provided by Art. 317bis CC, the disqualification is always permanent when the offence is bribery, except in cases where the offender is sentenced to imprisonment of less than 3 years. In the case of abuse of office, by contrast, the disqualification can only be temporary: if the defendant is sentenced to more than 3 years’ imprisonment, the disqualification always applies but can last only 5 years (Art. 29 CC); if the defendant is sentenced to less than 3 years, the disqualification lasts for the duration of the main sanction (Arts. 31 and 37 CC). The sanction of disqualification just described was recently considered not severe enough by the Italian legislator, who then introduced with legislative decree 235/2012 a new kind of disqualification regarding only the right to be elected and coexisting with the sanction already described. This new disqualification consists in the impossibility of being elected or of maintaining one’s seat as member of the Italian or European Parliament or of the Italian Government. It applies to persons who have been definitively sentenced to imprisonment of more than 2 years for several offences listed in the decree, among them all offences against public administration discussed here. This type of disqualification lasts twice as long as the term of the temporary disqualification from holding public office imposed and in any case not less than 6 years. For a member of regional or local councils, along with the disqualification, there is also an automatic suspension from the seat as soon as the person is sentenced, so that it is not necessary to wait until the sentence becomes final. It is important to observe that this disqualification is not an accessory sanction that has to be imposed by the judge but a direct consequence of the conviction that has to be ascertained by the public administration in charge of the electoral process. In the case at issue, M would, if convicted, probably be sentenced to a permanent or temporary disqualification from holding public office, and this would entail automatically a disqualification from the right to be elected for at least 6 years.

Criminal Liability of Political Decision-Makers in Italy

157

IV. Immunities and Other Limitations of Criminal Liability Once having assessed what type of criminal offence could be applied to the case in question, it is necessary to take into consideration the possible limitations of politicians’ criminal liability and the procedural safeguards that eventually apply. This raises the question of immunities, which are considered exceptions to the compulsoriness of criminal law (Art. 3 CC) and whose final effect is to exclude the coercive State power. Their rationale can be identified in the balance between conflicting interests: on the one hand, the need to respect the fundamental principles of the legal system and the fundamental rights of the victim of the crime, which require the prosecution of crimes, and, on the other hand, the need to protect particular constitutional functions (or international relations), which, under certain conditions, calls for a limitation of the punitive authority of the State.24 To this extent, immunities constitute a guarantee for the free exercise of public functions and not a personal privilege.25 Immunities can be provided for by national public law or by international law. Among the first category, we should furthermore distinguish between substantial immunity (or irresponsibility), which regards specific acts or opinions and makes them unpunishable under all circumstances, and procedural immunity (or inviolability), which prevents criminal proceedings but does not make the act lawful. As a consequence, the act might be prosecuted once the reason for which the immunity existed does not hold any longer. The procedural immunity may be functional if it covers only crimes committed in the exercise of the functions to which certain people are entitled or extra-functional if it covers every crime committed by the person who benefits from the immunity.26 With regard to the legal nature of immunities, among the different theses, two prevail: the traditional doctrine considers them personal exemptions from punishment, namely the act still falls under the scope of the offence and remains illegal but for reasons of (political) opportunity it is not punishable.27 Consequently, a potential accessory to the crime could still be punished. According to a different doctrine, instead, when a person’s immunity emanates from the exercise of his/her functions, it shall be a defence; this means that the fact becomes lawful, and neither the immune person nor a potential accessory to the crime is punishable.28

24

G. Fiancada/E. Musco, Diritto Criminale. Parte generale, 6th ed. 2010 (Zanichelli Editore), p. 139. 25 D. Brunelli, (voce) Immunita, Enciclopedia giuridica, XV ed. 1989 (Treccani), p. 5. 26 M. Parodi Giusino, (voce) Immunita (diritto Criminale), Enciclopedia del diritto, Annali II-2, 2008 (Giuffre´, Milano), p. 651. 27 For references to this traditional doctrine see Brunelli (note 25), 2.7 and Parodi Giusino (note 26), pp. 667 et seq. 28 Fiandaca/Musco (note 24), p. 145.

158

F. Iovene and N. Recchia

1. Substantial Immunity (Insindacabilit a) a) Parliamentary Immunity As far as parliamentary immunity is concerned, Art. 68(1) of the Constitution states: Members of Parliament may not be required to give account of any opinions expressed or votes cast in the exercise of their functions.29

This paragraph provides for a substantial immunity, which grants members of Parliament irresponsibility for ‘the opinions expressed or votes cast in the exercise of their functions’ (so-called free speech and vote clause). First of all, this form of immunity covers only crimes that can be committed by expressing opinions or by voting and that do not consist in physical acts. Second, the immunity applies only to opinions and votes linked to the exercise of parliamentary functions (so-called functional link). The immunity covers the parliamentary activities that take place not only inside Parliament, but also outside (extra moenia), provided that they correspond to a typical parliamentary act, that is to parliamentary works. As a matter of fact, Art. 3(1) law no. 140/2003 clarifies that Art. 68(1) Const. applies not only to typical activities that are expression of the parliamentary function but also to every other activity of inspection, divulgation, criticism, political denunciation, connected to the parliamentary function, even when realised outside Parliament. The Constitutional Court has furthermore specified that, in order to fall within the scope of application of the immunity, the atypical activities must be included in the field of application of parliamentary law. Consequently, not the whole political activity of members of Parliament is covered by the immunity but only the parliamentary one.30 With specific reference to the case under analysis, it is necessary to distinguish three hypotheses.

aa) The Member of Parliament Is Also Mayor of C In the first hypothesis, the decision taken by the member of Parliament falls outside the field of application of Art. 68(1) Const. because there is no functional link between the decision taken and the parliamentary activity. The member of Parliament would therefore be prosecuted according to the usual rules of the Code of Criminal Procedure. But due to the fact that he/she is also a member of Parliament, the specific safeguards of Art. 68(2) Const. apply.31

29

Casonato/Woelk (note 1). Constitutional Court, 10, 11-17 January 2000; 11, 11-17 January 2000; 120, 7-16 April 2004. 31 See further infra IV.2. on procedural immunity and inviolability (inviolabilita). 30

Criminal Liability of Political Decision-Makers in Italy

159

bb) The Member of Parliament Informally Uses His/Her Influence to Foster the Decision to Build the Bridge at Local Level Here, the same reasoning of the first hypothesis applies.

cc) The Member of Parliament Uses His/Her Influence in Parliament to Have the Project Approved Within the Annual Financial Act and Takes Part in the Vote The third hypothesis is more problematic and must be analysed by distinguishing between the offences possibly applicable to the case. (1) The tabling of a bill or voting for a bill that has been previously submitted are typical parliamentary activities and are therefore undoubtedly covered by the immunity granted by Art. 68(1) Const. The problem regards the connected activity, that is the acceptance of the benefit (or of the promise of a benefit). It is a question of how deep the connection of the latter with the typical parliamentary activity is. Two opinions exist in this regard.32 According to the first one, the tabling of a bill as a consequence of corruption should not be punishable basically for two reasons: – because the irresponsibility that Art. 68(1) Const. grants to the fulfilment of typical parliamentary activities must apply also to the preliminary activities that have a direct and indissoluble connection to the typical activity, and – because otherwise the judge should examine the reason why the member of Parliament decided to vote and then voted in a certain way. According to the second and more persuasive opinion, corruption is punishable because what is criminally relevant is not the reason why the vote is cast, which remains unquestionable, but the acceptance of money or other benefit, which is an activity that is typical of corruption but which does not constitute an exercise of ordinary parliamentary functions. Furthermore, the exercise of the function is not necessary for the completion of the crime, with the consequence that there is only a hypothetical link between the illicit conduct and the functional act, which is not sufficient to grant the member of Parliament irresponsibility.33 (2) The solution is partly different for the offence of abuse of office, provided that this provision is applicable to the case. The prevailing opinion considers the immunity applicable because that type of conduct would correspond to typical

32

See Brunelli (note 25), 2.7; Parodi Giusino (note 26), p. 657; G. Vassalli, Punti interrogativi sulla estensione della irresponsabilita dei membri del parlamento, Giustizia Criminale, 1973, I, p. 199. 33 Vassalli (note 32), p. 206.

160

F. Iovene and N. Recchia

parliamentary activities, which are unquestionable for the reasons already highlighted. Furthermore, it has been observed that a member of Parliament is, by definition, partial and acts with the aim of favouring (within the frame of the general public interest) groups of voters or specific interests.34 This would make a conviction for abuse of office highly problematic.

b) Procedure To Be Followed in Order to Assess if the Immunity Applies Having assessed this, and turning to more specific procedural issues,35 it is important to clarify who has to establish if the opinion expressed or the vote cast is linked to a typical parliamentary function. In this regard, the ordinary judicial authority has full jurisdiction in prosecuting members of Parliament, but the judge can—or better must if he/she doubts that the immunity applies in the given case—address the House of the Parliament to which the defendant belongs and ask whether a functional link exists. If, on the contrary, the judicial authority acknowledges prima facie the existence of immunity, there is no need to address the House of Parliament, and the judge simply has to acquit the defendant immediately. When the House of Parliament is addressed, the ‘authorisation committee’ is in charge of the preliminary analysis and then the decision is made by the House as a whole. The House may ascertain that there is no functional link. The judicial authority may therefore continue with the proceeding (in this case, Art. 68(2) Const., which will be analysed hereafter, applies). If the House, on the contrary, affirms that there is a functional link and that the act is therefore covered by immunity/irresponsibility, the judicial authority has two possibilities. If they believe that the House of Parliament has correctly exercised its power, they have to acquit the defendant for not being punishable, due to the immunity. This is a substantial immunity, that means the fact can no more be subject to a criminal proceeding, even after the defendant is no longer in office. The accessory to the crime (e.g., the person who offered the bribe) could still be punished. If the judicial authority, on the contrary, argues that the Parliament made bad use of its power to ascertain the functional link, they can raise a ‘conflict for allocation of powers’ before the Constitutional Court, which will have the final say in the matter. It must be moreover considered that if several individuals are involved, and only one of the defendants is a member of Parliament, the judge has to separate the

34 35

Brunelli (note 25), 2.7; Vassalli (note 32), p. 207. Law no. 140/2003.

Criminal Liability of Political Decision-Makers in Italy

161

proceedings and, while waiting for the decision of the House of Parliament on the existence of immunity, the proceeding against the member of Parliament is suspended.36

c) Regional Council Members’ Immunity The same substantial immunity applies to regional council members, according to Art. 122(4) Const.: Regional councillors are not answerable for the opinions expressed and votes cast in the exercise of their functions.37

In this regard, the situation is complicated by the fact that regional council members are entitled not only to legislative functions, to which the immunity is certainly applicable, but also to administrative functions, which should, on the contrary, fall outside the scope of application of Art. 122 Const.

2. Procedural Immunity, Inviolability (Inviolabilit a) The second and third paragraphs of Art. 68 Const. in the current text grant a form of inviolability to members of Parliament who are subject to a criminal proceeding. According to it: Absent authorisation from the House to which they belong, no Member of Parliament may be subject to a personal search or have his domicile searched, nor subject to arrest or any other deprivation of personal freedom, or kept in detention, except to enforce a final conviction, or if caught in the act of committing a crime for which arrest is mandatory. Similar authorisation is also required before Members of Parliament may have their conversations or communications intercepted, or their mail impounded.38

Before the constitutional reform of 1993,39 this provision established a procedural immunity for members of Parliament, who could not be prosecuted without authorisation of the House of Parliament to which they belonged. The requirement of such authorisation was eliminated in 1993, and now an authorisation is only necessary for some investigative measures, such as interception of communications and correspondence, personal or domicile searches, or measures involving a

36

For a detailed analysis on these aspects, see S. Carnevale, Profili processuali, in Procedimento a carico dei parlamentari, in: Orlandi/Pugiotto (eds.), Immunita politiche e giustizia Criminale, 2005 (Giappichelli, Torino), pp. 163 et seq. 37 Casonato/Woelk (note 1). 38 Casonato/Woelk (note 1). 39 Constitutional law no. 3/1993.

162

F. Iovene and N. Recchia

deprivation of liberty (arrest, detain); no authorisation is necessary to enforce a final conviction or if the member of Parliament is caught in the act of committing a crime for which arrest is mandatory (so-called ad acta authorisation).40 This provision applies in any case in which a member of Parliament is subject to a criminal proceeding. So it would certainly apply in the case under analysis but only as long as the defendant is a member of Parliament. Differently from substantial immunity, inviolability is in fact temporary. The judicial authority shall ask the House to which the member of Parliament belongs for such authorisation. Also, in this case, the ‘authorisation committee’ is in charge of the preliminary analysis, and the whole House decides whether in the case in question the fumus persecutionis exists. If they ascertain that there is no fumus persecutionis, the authorisation is granted, and the judicial authority may proceed with the above-mentioned act. If the House claims that there is fumus persecutionis, the authorisation is not granted, and the judicial authority may again raise a ‘conflict for allocation of powers’ before the Constitutional Court.

V. Special Courts and Special Procedural Requirements If the author of the crime is a minister, specific safeguards may apply, provided that the crime committed can be considered a ‘ministerial crime’. The reference is to Art. 96 Const., according to which The President of the Council of Ministers and the Ministers, even if they resign from office, are subject to ordinary justice for crimes committed in the exercise of their duties, provided authorisation is given by the Senate of the Republic or the Chamber of Deputies, in accordance with the norms established by Constitutional Law.41

Before the constitutional reform of 1989,42 the Constitutional Court, in a special composition, was entitled to judge those crimes, after the minister had been impeached by Parliament in joint session. Now, ministers are subject to ordinary justice, although with several peculiarities. According to constitutional law no. 1/1989, the so-called Tribunale dei Ministri (ministerial court) is in charge of the preliminary investigations for ‘ministerial crimes’; this is actually a specialised section of the ordinary court and not a proper special court, namely it is a panel of three judges and located in the main city of the appellate court district, which is territorially competent.

40

For an in-depth analysis on this point see D. Negri, Procedimento a carico dei parlamentari, in: Orlandi/Pugiotto (eds.), Immunita politiche e giustizia Criminale, 2005 (Giappichelli, Torino), pp. 377 et seq. 41 Casonato/Woelk (note 1). 42 Constitutional law no. 1/1989.

Criminal Liability of Political Decision-Makers in Italy

163

This panel of three judges exercises both the functions of public prosecutor— being in charge of the preliminary investigation—and of investigating judge. The ministerial court needs the above-mentioned ad acta authorisations in order to take certain investigative measures, such as interception of communications and correspondence, personal or domicile searches, or to deprive the defendant of his/her personal freedom (arrest, detention); no authorisation is necessary to enforce a final conviction or if the minister is caught in the act of committing a crime for which arrest is mandatory. Before describing how the ‘special’ proceeding conducted by the ministerial court works, it is necessary to assess two fundamental points.

1. When Is a Crime Ministerial? Article 96 Const. describes ministerial crimes as ‘crimes committed in the exercise of their [of ministers’] duties’. So ministerial crimes are ordinary crimes committed in the exercise of the functions. This has been interpreted as referring to behaviours committed not only in violation of the typical ministerial duties or with abuse of power but also because of the exercise of ministerial functions.43 The simultaneous presence of two elements is necessary: the personal subjective quality of the author at the time when the crime is committed and a connection between the incriminated act and the function exercised by the minister. It is not an additional requirement, by contrast, that the crime is of political nature.44

2. Who Decides Whether a Crime Is Ministerial? The controversial issue is whether it is up to the ordinary judicial authority or the Parliament to establish if the crime is ministerial. In order to answer this question, it is necessary to describe the possible developments that the proceeding may take. The starting point is, however, common: the territorially competent public prosecutor receives the notice that a crime has been committed. At this point, the ordinary judicial authority can consider the crime as a ministerial crime or as an ordinary crime.

43

Corte di Cassazione, Sezioni Unite, 14, 20 July 1994; Corte di Cassazione, Sezioni Unite, 30, 27 September 1995. 44 T. F. Giupponi, Perseguibilita Criminale dei membri del Governo, in: Orlandi/Pugiotto (eds.), Immunita politiche e giustizia Criminale, 2005 (Giappichelli Torino), pp. 359 et seq.

164

F. Iovene and N. Recchia

a) Ministerial Crime In this case, the public prosecutor has to transmit the notice to the public prosecutor at the main city of the appellate court district who, in his/her turn, should transmit it to the ministerial court. The ministerial court leads the preliminary investigations, and within 90 days they shall decide whether to prosecute the minister or not. If they ascertain that any prerequisite for prosecuting the crime is lacking, they dismiss the case. The same happens if they consider the crime not ministerial. In this hypothesis, before dismissing the case and transmitting the act to the public prosecutor, who should continue the ordinary proceeding, they need to address the House of Parliament to which the minister belongs (or the Senate if he/she is not a member of Parliament).45 If the House of Parliament believes that the crime is indeed ministerial, they can raise a ‘conflict for allocation of powers’ before the Constitutional Court. If instead the ministerial court wants to prosecute the minister, they shall ask the House of Parliament to which the minister belongs (or the Senate if he/she is not a member of Parliament) for the authorisation to prosecute him/her. According to Art. 3 law no. 1/1989, such authorisation may be denied in two cases: – if the minister acted for a State interest of constitutional relevance; – if the minister acted for the achievement of a preeminent public interest, in the exercise of his/her functions. These prerogatives have a substantial nature and have been considered anomalous justification causes, which would make the fact not criminally relevant, i.e. not illegal/illicit.46 In this regard, they would differ from a real authorisation to prosecute, such as the one provided for by former paragraph 2 of Art. 68 Const. for members of Parliament, which was applicable only as long as the defendant was in office (procedural immunity, which is considered a personal cause of exemption from punishment for a fact that remains illegal).47 In the case of ministers, on the contrary, if the act is covered by the above-mentioned grounds of justification, it is not criminal at all. The Parliament shall assess only if the crime has been committed for the fulfilment of interests or purposes that have a constitutional foundation, whereas the assessment on the validity of the charge belongs exclusively to the judicial authority (ministerial court). Consequently, the decision of the Parliament cannot be questioned by the judicial authority, unless the Parliament has unduly evaluated the fumus persecutionis, in which case the judicial authority may raise a ‘conflict for allocation of powers’ before the Constitutional Court. To sum up:

45

This has been recently clarified by Constitutional Court, 241, 9 July 2009. For references on this, see Giupponi (note 44), p. 264. 47 R. Orlandi, Aspetti processuali dell’autorizzazione a procedere, 1994 (Giappichelli, Torino), p. 182. 46

Criminal Liability of Political Decision-Makers in Italy

165

– If the authorisation is denied and the Parliament decided within its powers, the judicial authority cannot question the decision and shall dismiss the case with a final/irrevocable decree. But the decision of the Parliament can still be examined by the Constitutional Court within its judgment of external control on parliamentary decisions. – If the authorisation is denied and the judicial authority believes that the Parliament acted unduly, they can raise a ‘conflict for allocation of powers’. – If the authorisation is granted, the proceeding may continue before the ordinary judicial authority.

b) Ordinary Crime If the public prosecutor considers the crime an ordinary one, he/she is entitled to do so and start an ordinary proceeding, without questioning the competent House about the nature of the crime.48 The minister-defendant may of course make use of the legal remedies and appeal the decision, whereas the competent House of Parliament may raise a ‘conflict for allocation of powers’ in front of the Constitutional Court. In the case under analysis, the ordinary judicial authority should therefore decide whether the crime committed by M can be considered a ministerial crime and act consistently.

VI. Further Particularities in Proceedings Against Political Decision-Makers In order to give a complete overview of particularities regarding proceedings against political decision-makers, it is appropriate to retrace several laws that have been passed in the last years and that aimed at granting them special safeguards. First of all, law no. 140/2003 introduced a special form of immunity for those who hold high offices (President of the Republic, Presidents of the Senate and of the Chamber of Deputies, President of the Council of Ministers, President of the Constitutional Court). According to this kind of immunity, no criminal proceeding was possible for any crime, even if committed before gaining the office, as long as those persons were in office, and if they were by chance already charged with a crime, the relative proceeding should be suspended.

48

This has recently been assessed by the Constitutional Court in two decisions, 87, 14 February 2012; 88, 14 February 2012. See R. Orlandi, Doveri e divieti dell’autorita giudiziaria nei procedimenti a carico di membri del governo, Legislazione Criminale 2012, pp. 751 et seq.

166

F. Iovene and N. Recchia

This law was declared unconstitutional by the Constitutional Court in 2004.49 Afterwards, a new law was approved, no. 124/2008, which—leaving aside the cases provided for by Arts. 90 and 96 of the Constitution—granted the President of the Republic, the Presidents of the Senate and of the Chamber of Deputies and the President of the Council of Ministers a suspension of potential criminal proceedings, even if concerning crimes committed before gaining the office, from when they obtained the office until the end of it. This law was as well declared unconstitutional by the Constitutional Court in 2009.50 Finally, law no. 51/2010 introduced new hypotheses of legittimo impedimento, that is reasons for which the defendant can avoid being present at trial. In particular, it was foreseen that the President of the Council of Ministers and the single minister could adduce a legittimo impedimento in case of simultaneous exercise of essential functions regarding the government activity. As a consequence, the judge had to postpone the hearing. This law was first partly declared unconstitutional by the Constitutional Court in 2011 and then abrogated by a referendum. So at the present moment, no further particularities are provided for in proceedings against political decision-makers. Federica Iovene is Dr. jur. and Trainee Magistrate. Nicola Recchia is Postdoc Researcher in Criminal Law.

49 50

Constitutional Court, 24, 13 January 2004. Constitutional Court, 262, 7 October 2009.

Criminal Liability of Political Decision-Makers in the Netherlands Willem Geelhoed

I. Preliminary Remarks 1. Distribution of Competences In the Netherlands, executive political decisions are normally made by collegiate bodies and not by single office holders (Art. 125(2) Basic Law). This counts for all levels of government, be it national, provincial or municipal. The mayor also has some competences of his own. Aldermen, however, do not have competences of themselves and can only participate in the collegial decision-making of their college. However, members of the executive bodies mostly have their own portfolio and are tasked with preparing the actual decision-making. So when the decision to build a bridge is taken on the national level, the primary decision-maker is the national Government, as a collegial body. However, the responsible government minister (for Infrastructure and the Environment) will bear political responsibility vis-a-vis Parliament. If the decision to build a bridge is taken on the municipal level, the primary decision-maker is the college of mayor and aldermen. In that case, however, the municipal council can also hold a single alderman politically accountable for bad decision-making. The fact that, on a national level, the Government and, on a municipal level, the college of mayors and aldermen can only decide collegially could mean that they cannot be held individually accountable in a political sense.1 However, also individual aldermen may be forced out of office by the municipal council (Art. 49 Gemeentewet). This is in breach of the principle of collegial decision-making but strengthening the democratic control over the executive since it lowers the threshold for the representative to use its powers. On the 1

Possibly based on Art. 125 Basic Law.

W. Geelhoed (*) University of Groningen, Groningen, The Netherlands e-mail: [email protected] © Springer International Publishing AG 2017 F. Zimmermann (ed.), Criminal Liability of Political Decision-Makers, DOI 10.1007/978-3-319-52051-3_9

167

168

W. Geelhoed

national level, the rule that the executive has to step down when the representative assembly so requires is not laid down in the Basic Law but is an unwritten rule of constitutional law, accepted as valid since the 1900s. All this is mostly important for political responsibility, not for criminal liability. However, in some criminal cases, questions of participation may become relevant. In that context, it can be important whether the office holder was single-handedly deciding or only participating in a collegial decision. Strictly speaking, the Netherlands is only one of the four countries that together form the Kingdom of the Netherlands. In the context of criminal liability for political decision-makers, the Caribbean part of the Kingdom is particularly relevant since prosecutions and convictions of politicians happen more often there than in the European part. One example of that is the recent conviction for corruption of Gerrit Schotte, a former prime minister of Curac¸ao.2 In the remainder of this study, I will, however, focus on the European part of the Kingdom. In the Netherlands, governments on any level are not directly elected by the people. Sometimes the electorate is asked to choose between candidates for appointment as mayor. Representative bodies are elected mostly in direct elections but sometimes also in indirect elections, as is the case with the First Chamber of the States-General (i.e., the Senate). Members of representative bodies in principle have the task to control the executive. These representative assemblies are the most important body of political organisation, which importance does not attach to the colleges of the executive (Art. 125(1) Basic Law). However, representative bodies are not the ones that can be held politically accountable in the sense that their removal can be brought about by force. Executive colleges can be forced to step down if a vote of no confidence is carried by the representative body, but the representative body can only be disbanded by the executive on the national level (for instance, when the Government believes that snap elections could improve its political mandate). This is not possible on lower levels of government. Representative bodies on these levels are therefore rather controlling and supervising the executive colleges. Their responsibility towards the electorate can be regarded as a form of political responsibility, but the representative is mostly not viewed as being heavily involved in actual political decision-making that it is to be held politically accountable. In the following, I will therefore focus on executive officials on the national level and mayors and aldermen on the municipal level. The way in which politicians at the municipal level are appointed shows that mayors are quite distinct from aldermen. Mayors are appointed by the King (in fact by the Government) by royal decree (Art. 131 Basic Law). The procedure is regulated in Art. 61 Gemeentewet. Aldermen, on the other hand, are appointed by the municipal council (Art. 35 Gemeentewet). These last appointments are the result of political negotiations between the parties represented in the municipal council. Mayors are outside these political negotiations but do have the possibility to submit their views on the proposed aldermen (Art. 35(2) Gemeentewet).

2

Gerecht van Eerste Aanleg Curac¸ao, 11 March 2016, not yet reported.

Criminal Liability of Political Decision-Makers in the Netherlands

169

Normally, municipalities carry out their own business and do not take instructions from the central Government. Mayors can only be instructed by the Government in very specific cases, such as the housing of refugees or other displaced persons (Art. 68 Huisvestingswet). Additionally, in the context of spatial planning, the national Government can issue instructions to municipalities in order to safeguard certain interests of a national or regional nature (Arts. 4.3 and 4.4 Wet ruimtelijke ordening). In these cases, the municipality is addressed and not the mayor or the college of mayor and aldermen. It is, however, an example of a provision limiting the free discharge of affairs by the political bodies in the municipal sphere. Regarding municipalities, in 2002, a fundamental divide was introduced between the executive and representative powers at municipal level.3 Before, aldermen were members of the municipal council (the representative body). Since that time, they have formed the executive body at the municipal level, together with the mayor. Mayors are considered to be apolitical, hence their appointment by the King instead of the municipal council. Their self-standing tasks include the maintenance of public order and other tasks not encompassing public works. This latter portfolio is normally entrusted to an alderman. One of the activities that could be carried out by a municipality in these matters could be the building of a bridge, which is certainly the case when it concerns a connection of only local importance. Then an alderman is probably entrusted with planning and preparing the works, as well as defending the project in the municipal council. Bridges of regional importance are built by provinces. Furthermore, provinces play a large role in bridge operation and maintenance. In these cases, responsibility will lie with a so-called gedeputeerde, a member of the Provincial-Executive (Gedeputeerde Staten). These gedeputeerden comprise the executive power at the provincial level, together with the Kings’ Commissioner. They are politically responsible to the States-Provincial, the representational body at the provincial level. Bridges that are important on a more than regional scale are built, operated and maintained by the national bridge and road authority (Rijkswaterstaat), a sub-department of the Ministry of Infrastructure and the Environment. For this sub-department, the national Government (mostly in the person of the Minister of Infrastructure and the Environment) is politically responsible to the States-General, consisting of the Second and First Chambers.

2. Definition of Civil Servants in Criminal Law Article 1 of the Civil Servants Act (Ambtenarenwet) defines as a civil servant anyone who is appointed to work in public office. This seems to exclude members of representative bodies as they are elected and not appointed. However, this

3

Wet dualisering gemeentebestuur, Staatsblad 2002, 111, in force since 7 March 2002.

170

W. Geelhoed

distinction only applies to administrative law contexts and is not valid for criminal law. The Criminal Code uses an autonomous definition of a civil servant, which includes members of representative bodies (Art. 84 CC). Therefore, all participants in the political decision-making are deemed for criminal law purposes to be civil servants. This includes mayors, aldermen, government ministers or secretaries of state (underministers), Parliament members or members of municipal councils. In Dutch criminal law, there is therefore no distinction between members of representative bodies on the one hand and executive officials on the other hand. Most offences that criminalise certain forms of conduct in public office refer to civil servants in this sense because they use the capacity of a civil servant as an element of the offence. Only a few offences refer to a subset of the all-encompassing group of civil servants, e.g. ministers in the national Government.

II. Comparative Case Study 1. Part 1: Criminal Liability for Bad Political Decisions Dutch criminal law does not include a specific offence of misuse of office or abuse of public duty. However, a certain number of offences could apply to the case, all criminalising certain forms of behaviour. These concern mostly property offences of embezzlement or misappropriation. Additionally, forging of documents is an offence that is used for many different purposes, and therefore this offence could be relevant as well. An offence actually criminalising wrongful decision-making does exist but has never been used. This is the offence of acting contrary to laws or regulations, for which only members of the national Government can be held liable. Therefore, rather than focusing on one offence, multiple offences will be listed and concisely explained. Below, all of these different offences will be described shortly, and their possible application to the case will be illustrated. There is a complete translation available of the Dutch Penal Code, but it is somewhat outdated.4 In the offence definitions below, I largely followed this translation but made adaptations where necessary due to legislative changes.

a) Embezzlement, Art. 321 CC The offence of embezzlement is mostly used in situations where it cannot be proven that the perpetrator actually removed the object he appropriated. In this way, it complements the offence of theft, which includes an element of removal of the object. The provision reads as follows:

4

L. Rayar/S. Wadsworth, The Dutch Penal Code, 1997 (Littleton, Rothman).

Criminal Liability of Political Decision-Makers in the Netherlands

171

A person who, intentionally, appropriates unlawfully any property belonging in whole or in part to another, and of which he has control other than as a result of a serious offense, is guilty of embezzlement and liable to a term of imprisonment of not more than three years or a fine of the fifth category.

The core of this offence is the element of appropriation, which makes it a clear case of a property offence. It would seem that the offence could not apply to the case in which the bridge was built since the mayor did not appropriate any property to himself. However, as explained below, the Supreme Court weakened this element to a large extent. Appropriation of funds, for instance, also includes the administration of these funds in a way that is contrary to previous agreements about their administration, where agreements were made between the provider of the funds and the administrator. Also, making the return of the money impossible or just difficult will count as appropriation. It is therefore not completely clear that the offence of embezzlement does not apply to our case since the case is not exhaustive in its description of the whereabouts of the money and at whose disposal it remains. If someone overseeing the administration of the money decides about that administration in such a way that it is difficult to return it to the rightful owner or if he decides to administer it in a way that is contrary to agreed standards (for instance, in regulations of the municipality itself about its financial administration), it could be a case of embezzlement. Therefore, it is worthwhile to investigate the interpretation of this offence, mainly focusing on the delineation of the property and the acts of appropriation.

aa) Appropriation In general, a person appropriates an object if he acts as the sole master to which that object belongs.5 This can include, in case of money, the administration of this money contrary to previously made agreements.6 Appropriation also includes making the return of the money impossible or significantly more difficult.7 Additionally, if a person received a sum of money, for a dedicated purpose, and spent it partly for another purpose, he can be said to have appropriated that part of the sum.8 Regarding the building of the bridge, it is difficult to see whether there could be any appropriation of the money. Supposing that a specific sum of money had been dedicated to the bridge-building project and this was all spent on the project, there can be no appropriation of the money by the perpetrator for himself. If the politician involved spent part of the funds on other projects or used them for his own benefit, it would be clear that he would have appropriated the money. However, if part of the project failure consists in diverting funds to other goals and accordingly the money

5

Hoge Raad, 13 September 2005, NJ 2005, 471. Hoge Raad, 12 May 1998, NJ 1998, 695. 7 Hoge Raad, 6 July 1999, NJ 1999, 740. 8 Hoge Raad, 5 April 2011, NJ 2011, 175. 6

172

W. Geelhoed

dedicated to the project is difficult to track down or return if needed, it could be possible that the person managing the budget would be appropriating the money. This could be the case when there is maladministration in the sense that an administrator makes it intentionally so difficult to supervise the funds, to return them or to get access to them that effective control of the funds has ceased to exist. Suppose that the municipal council agreed to the project, which includes agreeing to the financial statement that is part of the project plan. That means that there is an agreement between the municipal council and the college of mayor and aldermen to use some of the municipality’s funds for the project, which is carried out under the supervision of the college of mayor and aldermen. If that college, in contravention of these agreements, decides to divert some of the funds from one part of the project to another part of the project, that might fall within the scope of embezzlement since it means that the funds are administered contrary to the agreements that were made. Admittedly, it is rather unlikely that such a case will be brought before a court and will lead to a conviction. This would be highly dependent on the actual way in which funds were administered and to the relationship between the project (or part of the project) for which the money was intended and the goals to which it was actually put. The further they are apart, the more likely that there is a true element of misadministration and thereby appropriation.

bb) Any Property Any property that can be of value for its possessor is a potential object of embezzlement. Also, non-tangible objects come within the reach of this provision. That is certainly the case for money in bank accounts.9

cc) Having Control Other Than Through a Criminal Offence A person cannot be liable for embezzlement if he appropriated an object that he possessed because of a criminal offence. Instead, it is necessary that the object was specifically entrusted to the perpetrator. A formal judicial conveyance is not a requirement,10 but there must be something more than just a purely factual situation.11 The politician overseeing the bridge-building project could probably dispose of the money within the project’s accounts in the meaning of this element of the offence of embezzlement.

9

Hoge Raad, 11 May 1982, NJ 1982, 583. Hoge Raad, 31 May 2011, LJN BQ1972. 11 Hoge Raad, 25 November 1986, NJ 1987, 418; Hoge Raad, 22 January 1991, NJ 1991, 383. 10

Criminal Liability of Political Decision-Makers in the Netherlands

173

dd) Belonging in Whole or in Part to Another While the property has been entrusted to the perpetrator, it is required that it still belongs to another person. Normally, this is interpreted along the lines of the private law concept of ownership. Problems can arise when goods are joined or mixed, as can easily be the case when it concerns money. However, money is considered never to be indivisibly mixed.12 If therefore a person receives a sum of money in his bank account that he is supposed to hold for another and never returns it, the object of his offence will be seen as separable from the rest of the funds in his bank account, and therefore he can be liable for embezzlement of that part of the money that originally belonged to the other person. In the case of the building of the bridge, it is quite clear that the funds for the project did not belong to the politician in charge but to another person, i.e. the government that provided the money.

ee) Intent The definition of embezzlement requires the appropriation to be conducted with intent. It does not require any form of direct intent, and therefore dolus eventualis suffices for criminal liability. Therefore, if the perpetrator was aware of a substantial risk that a certain sum of money in a particular account would not be returned to its rightful owner and he accepted that risk, he would have acted with sufficient intent to be liable for embezzlement.

ff) Unlawfulness Unlawfulness in general means that an act was committed against objective legal standards (as opposed to subjective rights, which could be waived). The appropriation by the perpetrator must be unlawful, which mostly coincides with the element that the embezzled object belonged entirely or partially to another person. In specific cases, evidence concerning this element comprises proof of both the owner and the perpetrator’s position vis-a-vis the object concerned.13 This element would therefore be evaluated by a comparison between the subjective rights of the original possessor and the subjective rights of the eventual possessor. If there is any act of approval by the original possessor, there is no unlawfulness. Unlawfulness in the context of embezzlement could mean the following: if a seller, acting for another, sells bread and does not return the proceeds, he embezzles the proceeds. But if the seller intentionally sells the bread at a lower price than he agreed with the other person for whom he sells the bread, he embezzles the bread itself because he

12 13

Hoge Raad, 12 February 1952, NJ 1952, 700; Hoge Raad, 13 September 2005, NJ 2005, 471. T.J. Noyon/G.E. Langemeijer/J. Remmelink, Het Wetboek van Strafrecht, article 321, note 2.

174

W. Geelhoed

disposes of the bread in a manner that was not allowed (i.e., not agreed upon by the other) and to his own benefit.14 Therefore, unlawfulness is to some extent dependent on agreements made, but only if they are specific. If budgetary agreements forbid a certain disposal of funds, the unlawfulness element would be fulfilled if the perpetrator acted against these agreements. In that regard, the decision of building a bridge itself can hardly be seen as unlawful since it was the decision-maker’s duty to decide on these matters. However, if any appropriation would have taken place in the sense that the decision-maker received some of the funds himself, the element of unlawfulness would surely be fulfilled. But that is not the only way of embezzling. An act could also be seen as embezzlement if the unlawfulness existed in the disposing of the money contrary to agreements.

b) Embezzlement in Public Office (Art. 359 CC) This offence definition concerns a special case of embezzlement, raising penalty levels for a certain group of perpetrators: public servants. Apart from that, the offence definition is slightly different from the definition of regular embezzlement. The provisions reads: A public servant or any other person charged, either on a permanent or temporary basis, with any public office, who intentionally embezzles money or paper of monetary value which is in his control in the execution of his duties, or allows another person to remove or to embezzle such, or as an accessory assists that other person in such act, is liable to a term of imprisonment of not more than six years or a fine of the fifth category.

Most of the elements of this offence definition are comparable to the general definition of embezzlement in Art. 321 CC. Some elements, however, deserve a more detailed explanation.

aa) Capacity of Public Servant The offence applies to two groups of persons. The first group consists of all public servants, which includes anyone who has been appointed by a public law decision of the Government in any position whatsoever. This also includes members of representative bodies (see Art. 84 CC) and executive politicians on all levels of government. The second group consists of persons on whom a public office has been bestowed, either on a permanent or on a temporary basis.

14

Noyon/Langemeijer/Remmelink, article 321, note 2.

Criminal Liability of Political Decision-Makers in the Netherlands

175

bb) Money or Paper of Monetary Value Whereas the general offence of embezzlement can be committed in respect of any property, embezzlement in public office is restricted to money or paper of monetary value. This does not mean that embezzlement of other kinds of property, when committed by a public servant, does not amount to an offence or that it should be classified as a generic case of embezzlement. There is another offence of embezzlement by a public servant, which criminalises the embezzlement of any matter that is intended to convince the competent authorities or to serve the competent authorities as evidence, or instruments, documents or registers (Art. 361 CC). These two offence definitions have been split by the legislator because of the desire to attach a comparatively higher penalty of 6 years’ imprisonment to the embezzlement of money or papers of monetary value, while to the embezzlement of other matters a term of imprisonment of 4 years and 6 months is attached. This second definition will not further be discussed here since it seems of less importance to the case.15

cc) Embezzles or Assists in Removal or Embezzlement This element of the offence refers directly to Art. 321 CC. For this particular element to be fulfilled, all the elements of the regular offence of embezzlement have to be fulfilled as well. However, the offence definition of Art. 359 adds some other alternative acts that can lead to criminal liability. This concerns allowing other persons to remove or to embezzle the money or the paper with monetary value or to assist another person in the removal or embezzlement of these objects. Remarkably, the element of removal is introduced here as an alternative to embezzlement, which is an element absent from the definition of regular embezzlement. This element distinguishes theft from regular embezzlement, but in this offence definition it can clearly lead to liability for embezzlement in public office if the act consisted of allowing or assisting others in the removal of the object. To some extent, this can be seen as logical since that other person will by definition not have control over the object, that control being in the hands of the perpetrator. However, while the regular definition of embezzlement includes an element of unlawfulness, and therefore this element is included in the element of embezzlement that is part of the offence definition of Art. 359 CC, there is no element of unlawfulness attached to the alternative option of the removal of money or papers on monetary value. This can be seen as a consequence of the nature of the offence as it is intended to safeguard the integrity of the public service and not to protect private property.16

15

See for more details, E. Sikkema, Ambtelijke corruptie in het strafrecht, 2005 (Boom Juridische uitgevers, Den Haag), p. 472-462. 16 E. Sikkema, Tekst & Commentaar Strafrecht, Inleidende opmerkingen bij boek II, titel XXVIII, note 2 en article 359, note 5.

176

W. Geelhoed

In the case of the building of the bridge, also embezzlement in public office is hard to construct: the money was not appropriated or removed, but it was only decided to move forward with the project knowing that the available money would be spent in a non-optimal manner. However, a decision to start an engineering project, knowing that the project would be of much less benefit than initially presented, could perhaps be seen as a form of assisting others in the removal of money. For that conclusion to be credible, the decision-maker must intentionally assist a specific other person in that person’s removal of money. It seems a bit far-fetched to hold that criminal liability could be construed in such way in the case of the building of the bridge.

c) Misappropriation of Subsidies (Art. 323a CC) Dutch law provides for a specific ground for criminal liability in cases where government subsidies or grants were diverted. The provision reads: A person who intentionally and unlawfully uses resources that have been provided for a specific objective by the government or by or on account of an international organisation, for other purposes than for which they were provided, is liable to a term of imprisonment of not more than three years or a fine of the fifth category.

This provision originates in an obligation to implement the conventions on the protection of the financial interests of the European Union. Initially, it only criminalised fraud regarding EU subsidies. The Financial and Economic Crime Act 201417 enlarged the scope of this article to subsidies and grants provided by the government or by any international organisation.

aa) Diversion of Funds This article requires an element of diversion of public funds. In the case of the building of the bridge, the money is not diverted, but the funds were used in the project. The fact that the project is a financial failure does not imply that the funds were diverted to other uses. They were still used for the purpose of building a bridge, and therefore this provision cannot be applied to the case.

17

Wet verruiming mogelijkheden bestrijding financieel-economische criminaliteit, Staatsblad 2014, 445, in force since 1 January 2015.

Criminal Liability of Political Decision-Makers in the Netherlands

177

bb) Unlawfulness The appropriation can be unlawful, for instance, in cases where the receiver of a subsidy handled the money that was provided in a way that is contrary to the conditions under which the subsidy was provided.

cc) Intent The diversion of funds must happen intentionally. Indirect intent, dolus eventualis, is sufficient for this. Due to the placing of the element in the offence definition, this element requires that the funds were intentionally diverted and that the perpetrator knew that the funds originated from the government or from an international organisation.

dd) Provided by the Government or by an International Organisation The funds must have been provided by the government, which can be interpreted as any level of government in the Netherlands, or by any international organisation.

d) Falsifying Documents (Art. 225 CC) The provision reads: (1) A person who falsely prepares or falsifies a document that is to serve as evidence of any fact, with the object of using it as genuine and unfalsified or of having it used as such by others, is guilty of the forgery of documents and liable to a term of imprisonment of not more than six years or a fine of the fifth category. (2) The punishment in section 1 is also applicable to a person who intentionally makes use of the false or falsified document as if it were genuine and unfalsified, or who intentionally delivers or has at his disposal such document, where he knows or should reasonably suspect it to be used in such manner.

In the Netherlands, the offence of falsifying documents has a wide scope and is used for many different purposes. Dutch law does not contain a general offence of fraud,18 and instead the offence of falsifying documents is applied to cases in which a person provided false information when submitting forms or documents for official purposes.

18

However, there are multiple provisions for specific types of fraud. Art. 227a and 227b CC criminalise fraud concerning subsidies or benefits, Art. 340 CC criminalises insolvency fraud, Art. 69 General Tax Act criminalises tax fraud, etc.

178

W. Geelhoed

aa) First Alternative: Drawing Up a Document or Forging an Existing Document, Which Is To Be Used in Evidence (1) Intended To Be Used in Evidence Normally, the evidentiary purpose could, for instance, apply to a constructor who would, in a bidding statement, provide false information in writing. It would seem a bit far-fetched, however, to say that, in the case of the building of the bridge, this offence could apply to the decision-maker if he would have written in a statement to the municipal council (if he is an alderman) or Parliament (if he is a government minister) that the bridge would cost a certain amount of money, knowing that this estimate is too low. It is not very clear that such a letter is meant to be used in evidence in any way. Perhaps there could be liability under this offence if the politician made a statement including a full account of all costs of the project and sent it to Parliament or the municipal council, declaring the statement to be the full account of the attainable project and knowing that the estimated budget is insufficient. But in the case under discussion, there has not been any statement providing false information to the representative body, and therefore this potential form of liability can be excluded.

(2) Direct Intent to Use It as if It Was Real and Unforged The offence definition requires direct intent to use the document containing the false information, pretending it was real and unforged. This element usually does not provide many evidentiary difficulties when the document is clearly false. In that case, the person who falsified the document can normally be said to have been intending to use the document as if it was real and unforged.

bb) Second Alternative: Using, Delivering or Possessing False Documents (1) Use or Let Someone Use a Document as if It Was Real and Unforged The document has to be used in some way. This can be the case when a document has been presented by the perpetrator to a civil servant in the course of some public law procedure or when applying for a decision to be made by a government institution.

(2) Intent In order to be held liable, the perpetrator needs to have intent as to the use of the falsified document, pretending it was real and unforged. Alternatively, the perpetrator can also intentionally deliver or possess a falsified document. In these latter cases, the perpetrator has to reasonably suspect that the documents were intended to be used in evidence.

Criminal Liability of Political Decision-Makers in the Netherlands

179

cc) Both Alternatives: Falseness of the Document The requirement that the document is false can be fulfilled in three different types.19 The first type is that the document is false in a substantive sense, which means that it was drafted as a new document, pretending to be real, or that it was a partially drafted document but finished by another person. In these cases, the authenticity of the information is questionable. The second type is that the document that was drafted contains statements that do not conform to reality. In these cases, the document is false in an intellectual sense. The legislator intentionally included this type of intellectual falseness within the scope of the offence.20 The third type is that the document was incorrectly entered into the company administration, and in that context it altered the truthfulness of the company’s internal information system, which can also be used for evidentiary purposes. In the case of the building of the bridge, possessing documents containing calculations of costs that do not conform to the costs foreseen in reality could amount to a case of possessing false documents intended to be used in evidence. The project’s administration consists of records that can have an evidentiary purpose. If the documents are false in an intellectual sense, there can therefore be criminal liability under this provision. It must, however, be the case that the statements or the calculations in the documents were not in conformity with the actual estimates at the time of the drawing up of the documents. In the case of the building of the bridge, this is questionable since it only turns out later that the project was unprofitable or at least did not result in the benefits intended with the project.

e) Acting Contrary to Laws or Regulations (Arts. 355 and 356 CC) The Dutch Criminal Code contains some special offences applying to members of the national Government, criminalising acts that are not in conformity with laws or regulations. Since it is in practice nearly impossible to indict a government minister (see below), these provisions have never been used. There is therefore no case law on the matter.21 Since Arts. 355 and 356 are closely linked, they will be discussed together. The text of Art. 355 CC reads: Heads of ministerial departments: (1) Who countersign royal decrees or royal decisions, knowing that in so doing the Constitution or other statutes or General Administrative Orders are violated;

19

See Sikkema, article 225, note 18. See Noyon/Langemeijer/Remmelink, article 225, note 4.3. 21 See for more information: Broeksteeg, Verantwoordelijkheid en aansprakelijkheid in het staatsrecht (2004), p. 123-175. 20

180

W. Geelhoed

(2) who execute royal decrees or royal decisions, knowing that they do not bear the requisite countersignature of one of the heads of the ministerial departments; (3) who take decisions or issue orders or enforce existing decisions or orders, knowing that in so doing the Constitution or other statutes or General Administrative Orders are violated; (4) who intentionally fail to implement the provisions of the Constitution or other statutes or General Administrative Orders, where and insofar as such implementation falls within the competence of their ministerial department due to the nature of the matter, or where and insofar as such implementation has been expressly assigned to them; are liable to a term of imprisonment of not more than three years or a fine of the fourth category.

The text of Art. 356 CC reads: Heads of ministerial departments who, by their grossly negligent or careless conduct, are responsible for an omission to implement what is defined in article 355(4) are liable to a term of detention of not more than six months or a fine of the third category.

In theory, these offences could perhaps be applicable in the case of the building of the bridge if the decision to build the bridge is made by a minister of the national Government.

aa) Special Capacity: Heads of Ministerial Departments The offences apply to ‘heads of ministerial departments’. In order to be held liable under these provisions, the perpetrator must have acted in his capacity as a head of a ministerial department. Acts committed in a private capacity do not fall within the scope of these provisions.22 The term ‘heads of ministerial departments’ seems to exclude secretaries of state, who serve as a kind of under-ministers. However, secretaries of state are for all purposes equated to ministers. This also counts for so-called ministers without portfolio, who do not lead a government department but are full members of the national Government tasked with a special portfolio not directly pertaining to a government department.23

bb) Signing Decisions, Acting, Deciding or Omitting to Act These elements encompass practically anything a minister could do within his function. It obviously includes any decision-making or acting in order to start or continue the project of the building of the bridge.

22

Sikkema, article 355, note 6. Wet van 25 januari 1951, houdende nadere voorzieningen in verband met de invoering van de ambten van minister zonder portefeuille en van staatssecretaris, Staatsblad 1951, 24. 23

Criminal Liability of Political Decision-Makers in the Netherlands

181

cc) In a Way That Is Contrary to the Basic Law, Any Law or Any Lower Regulation The signature of a decision, the act, the decision or the omission of a decision needs to be contrary to the Basic Law, to any national law or to any regulation of a lowerlevel government. Agreeing to the building of the bridge, knowing that the costs will be higher than initially presented, could perhaps be seen as acting contrary to the Governments Accounts Act (Comptabiliteitswet), especially Art. 35 thereof, as well as contrary to the Public Procurement Act (Aanbestedingswet). This is highly speculative, however, as the offences of Arts. 355 and 356 never have been used. But different scenarios could apply here: is it, for instance, the case that the bridgebuilding costs were calculated by the Government in a way that the funds would certainly be insufficient? In that case, there could be a violation of the accounting rules that are prescribed by the Governments Accounts Act. Or is it the case that the bid of a construction company was much too low, and did the minister accept the bid, knowing that it is too low? In case the bid seems abnormally low, the Government is obliged to ask for more information (Art. 2.116 Public Procurement Act).

dd) Omitting to Act Additionally, the negligent non-execution of the Basic Law, any law or any lower regulation, if this execution is commissioned to a minister’s department, is a criminal offence for the minister concerned (Art. 356 CC). Not asking information about a bid that seems to be too low could be an omission offence under Art. 356 CC if this was done negligently. If the costs seem to run out of hand later (and the minister did not know in advance that the bid was too low), there probably is no offence applicable since the foreseeability, which is necessary for negligence, is absent.

2. Part 2: Criminal Liability for Pursuit of Personal Interests a) Passive Public Corruption (Art. 363 CC) Dutch criminal law distinguishes between active and passive forms of public corruption. Since active corruption is an offence that can be committed by anyone, it is seen as an offence against public authority (Art. 177 CC). Passive corruption is regarded as an offence committed in public office, and it is therefore regulated in the section on misconduct in office (Art. 363 CC). Previously, in both sets of provisions, there also was a distinction between two types of corruption. The first type concerned corruption where the civil servant acted in breach of a public duty (Arts. 177 and 363 CC (old)), which carried in both the active and passive forms a

182

W. Geelhoed

maximum sentence of 4 years’ imprisonment. The second type concerned corruption where the civil servant acted not in breach of a public duty (Arts. 177a and 362 CC (old)), which carried in both forms a maximum penalty of 2 years’ imprisonment. The Financial and Economic Crime Act 2014 abolished this distinction, partly because the element of breach of a public duty was interpreted by judges in such a way that a breach of public duty was easily found. The legislator wished to underline that the execution of a public office should be free from any financial influence.24 Both the active and the passive forms of corruption no longer contain an element relating to a breach of a public duty, while the maximum penalty has been raised to 6 years’ imprisonment for all forms of corruption. The provision reads: 1. A public servant: (1) who accepts a gift, promise or service, knowing or reasonably suspecting that it is made or offered to him in order to induce him to act or to refrain from acting in the execution of his duties; (2) who accepts a gift, promise or service, knowing or reasonably suspecting that it is made or offered to him as a result or as a consequence of something he has done or has refrained from doing, in the execution of his current or former duties; (3) who requests a gift, promise or service in order to induce him to act or to refrain from acting in the execution of his duties; (4) who requests a gift, promise or service as a consequence of something he has done or has refrained from doing, in the execution of his current or former duties; is liable to a term of imprisonment of not more than six years or a fine of the fifth category. 2. The punishment in section 1 is also applicable to a person who, in the prospect of appointment as a public servant, commits an act as defined in (1) or (3), if the appointment ensues. 3. The person who commits an act as defined in section 1 with respect to his capacity as Minister, Secretary of State, King’s Provincial Governor, member of the ProvincialExecutive, mayor, alderman or member of a representative assembly, is liable to a term of imprisonment of not more than eight years or a fine of the fifth category.

The article applies to all civil servants, including members of executive and representative bodies. Section 1 of Art. 363 provides the main offence definition of passive public corruption. The four alternatives of this definition result from the combination of two pairs of elements. The first pair concerns the elements of accepting (as defined in (1) and (2)) and requesting (as defined in (3) and 4)). The second pair concerns the elements of inducement (as defined in (1) and (3)) and consequence (as defined in (2) and (4)).

24

Sikkema, article 362, note 13; Kamerstukken II 2012/13, 33685, 3, p. 6-7. See also T.R. van Roomen/E. Sikkema, De strafbaarstelling van publieke en private corruptie: wat mag wel en wat mag niet?, Delikt en Delinkwent 2012, p. 792-804.

Criminal Liability of Political Decision-Makers in the Netherlands

183

aa) Accepting or Requesting The element of accepting or requesting a gift, promise or service does not include that the civil servant actually performed his part of the deal. For the fulfilment of this element, it is sufficient to only accept or request a gift while promising to do something in return.25 It is irrelevant whether public law or any public authority forbids the civil servant to accept or request the gift, promise or service, for there is no element any more of a breach of public duty.

bb) A Gift, Promise or Service This element does not contain any threshold as to the value of the gift, promise or service. The legislator deliberately did not include an element relating to social acceptability of the gift, promise or service.26 Therefore, accepting even the smallest gift, promise or service constitutes a case of corruption if it was offered in connection to a civil servant’s public duties. The fact that it is socially unacceptable that a civil servant acts in such a way is so important, according to the legislator, that it is desirable to avoid any discussion on the gift being illicit or not in itself and therefore to dispense with any substantive requirement on the nature of the gift, promise or service.27

cc) Knowing or Reasonably Suspecting The offence definition includes an element of intention or, alternatively, of culpa. Alternatives (1) and (2) contain both these elements as alternatives, whereas alternatives (3) and (4) require intent, which is implicitly included in the element of requesting.28

dd) Offered in Order for Him to Do or Omit Something The offer should be intended to move the civil servant to act in a certain way or to refrain from acting in a certain way. Whether the person offering the gift, promise or service acted with intent is, however, not an element of the crime, and therefore it is not necessary that this is proven. The subjective intention of the person offering the gift is not important for the liability of the civil servant in question.29

25

Hoge Raad, 22 February 2000, NJ 2000, 557. Kamerstukken II 1998-1999, 26469, 3, p. 4-5. 27 Kamerstukken II 1999-2000, 26469, 5, p. 6-7. 28 See Kamerstukken II 1998-1999, 26469, 3, p. 15; Hoge Raad, 12 July 2011, LJN BQ3124. 29 Hoge Raad, 9 April 1946, NJ 1946, 324; Hoge Raad, 4 February 1947, NJ 1947, 170; Hoge Raad, 20 June 1967, NJ 1968, 67; Hoge Raad, 27 September 2005, LJN AT8328. 26

184

W. Geelhoed

ee) Offered as a Result of Something He Did or Omitted This alternative is intended to prevent an evasion of criminal liability, which could be achieved by accepting a gift only after the requested act was carried out by the civil servant. Proof of actual causation is not necessary since the wording of the offence definition includes a less intensive connection between the gift and the civil servant’s acts.30

ff) In the Execution of His (Current or Former) Duties Alternatives (1) and (3) require that the acceptance or request took place in execution of the civil servant’s duties, whereas alternatives (2) and (4) also refer to the civil servant’s former duties. This difference can be explained from the fact that the first pair of alternatives refer to inducement of the civil servant, while the second pair refers to gift, services and promises offered as a consequence of the execution of the civil servant’s duties. Any acceptance or request of any gift by a civil servant is a criminal offence, as long as it is connected to his duties. In the case of the building of the bridge, therefore, it does not make any difference if the money was offered to finance a political campaign or to be used by the decision-maker in any other way.

gg) Prospective Corruption Acts defined in section 1 (1) and (3) also apply to persons who committed these in the prospect of an appointment in public office, under the condition that later the appointment materialised (Art. 363 section 2 CC). There is therefore no difference as to the point in time the bribe was offered.

b) Conflict of Interests (Art. 376 CC) In the case of the building of the bridge, there can be questions of criminal liability relating to conflicts of interests in the decision-making. Dutch criminal law contains a specific provision for civil servants who participate in the work of contractors or suppliers of government works while being in charge of these works. The text reads: A term of imprisonment of not more than six months or a fine of the fifth category shall be imposed upon a public servant who intentionally participates, either indirectly or directly, in contracting work or the supply of goods, the administration or supervision of which he was fully or partially in charge of at the time of the activity.

30

Sikkema, article 362, note 10g.

Criminal Liability of Political Decision-Makers in the Netherlands

185

aa) Participation In this offence definition, participation in contracting or supplying is a self-standing element of criminal liability. This is not to be mixed up with the general rules on participation in criminal offences (Arts. 47–48 CC). On the contrary, this element has a more specific meaning, in the sense that it requires the perpetrator to possess a financial interest in the company that contracted the works or supplies goods.31

bb) Administration or Supervision These elements should not be taken in a formal sense. Sikkema gives the example of an alderman being in a general sense responsible for the administration and supervision of all deliveries to the municipality that concern road building, for instance.32

cc) Intent The element of intent includes dolus eventualis. When applied to the case of the building of the bridge, where the decision-maker was one of the partners of a potential contractor, he would be participating in the contracting work or the supply of goods in the sense of this offence definition. His personal interest lies in the financial involvement in the bridge building company. The only element than can leave some room for doubt is the requirement of intent. However, since this element only requires dolus eventualis, it will probably be fulfilled. It can be assumed that the perpetrator would know about his involvement in the company and, while moving forward on the project, accepts that entanglement. In that case, he would very probably be criminally liable for this offence.

III. Special Sanctions Applicable to Politicians Sanctions of special interest to criminal cases involving politicians are the removal from public office and the deprivation of the right to be eligible for public office (this is possible for all forms of public malfeasance/misconduct). Also, the right to vote and the right to stand for elections can be taken away. These specific sanctions are listed in Art. 28 CC and only apply if the offence for which someone is convicted specifically provides the judge to impose these sanctions. All public office offences provide for the sanctions of removal from public office and for the

31 32

Sikkema, article 376, note 1. Sikkema, article 376, note 8b.

186

W. Geelhoed

deprivation of the right to be eligible for public office (Art. 29 CC). In all cases, applying these sanctions is discretionary for the judge, not mandatory. The sanction of losing the right to vote and stand for elections is not applicable to all public office offences. These rights can only be taken away when the suspect has been convicted to imprisonment for more than a year, for one or more specifically mentioned offences (Art. 380(2) in combination with Art. 28(3) CC). The specific offences where this is possible include the public office offence of acting contrary to laws and regulations (Art. 355 CC), an offence that can only be committed by ministers and state secretaries. Two other public office offences make the sanction possible: the refusal of a military commander to provide civil authorities with military forces if necessary (i.e., in case of national emergencies) (Art. 357) and the civil servant who seeks the assistance of military force against the execution of official decisions or laws (Art. 358 CC). Apart from these three offences, no public office offences make it possible to apply the sanction of losing the right to vote or stand for elections. Non-public office offences making this sanction possible mostly relate to national security (Arts. 92–105 CC) or royal dignity (Arts. 108–113), revolutionary acts, etcetera. An important provision is Art. 44 CC, which is a general part provision applicable to all criminal offences. It raises the penalty level with a third when the offence was committed by a civil servant who either violates a specific public duty or uses powers, opportunities or means that his office bestows upon him. This provision does not apply to public office offences since these already have a raised penalty level that takes into account the capacity of a civil servant. This provision is also relevant to offences committed by a government member or a member of Parliament. He can be prosecuted before the Supreme Court, but only if the suspected offence occurred in violation of a specific public duty or if he uses powers, opportunities or means that his office bestowed upon the suspected government member or member of Parliament. For other offences committed by these persons, the normal court system is competent. The normal court system is always competent for lower-level politicians.

IV. Immunities and Other Limitations of Criminal Liability There are very limited immunities for prosecution. On the national level, members of Parliament, government ministers and secretaries of state and anyone who participates in hearings of the Parliament can claim immunity when they are prosecuted for statements made in Parliament, in a parliamentary committee or in writing to one of these (Art. 71 Basic Law). There are equivalent immunities for lower-level politicians (Art. 22 Gemeentewet, Art. 22 Provinciewet). These immunities only relate, due to their nature, to specific offences such as hate speech. Moreover, these immunities only cover statements made in parliamentary activities. The immunity cannot be lifted, even by the Parliament. The immunity would not cover the taking of a bribe offered in exchange for a member of Parliament to

Criminal Liability of Political Decision-Makers in the Netherlands

187

vote in a certain way. Politicians do not enjoy immunity for statements made in public meetings, during press interviews, etcetera since these all take place outside formal parliamentary activity. Prosecutions for defamation outside Parliament actually occur, such as in the case against right-wing politician Geert Wilders for his statements about the objective of minimising the number of citizens from Moroccan origin in the Netherlands.33 Since these statements were not made in Parliament, Wilders is not shielded from prosecution. Another exception relates to parliamentary investigations. Normally, committees of the States-General can conduct investigations into certain matters that are too extensive to deal with in an ordinary parliamentary hearing. These investigative committees possess powers to summon anyone, under threat of criminal prosecution and sentencing. These offences are laid down in Art. 192a–192c CC. Article 192d CC, however, exempts members of the States-General, ministers and secretaries of state from liability for these offences. They remain obliged to appear at hearings, but not under threat of criminal prosecution. The legislator found it undesirable to introduce that, since it could lead to political chicanery.34 These exemptions from criminal liability are, among others, intended to shield the political sphere from the powers of the Prosecution Service and to save political processes from being influenced because of the use or threat of criminal law measures by politicians in a role in which they can steer the powers of prosecution towards political opponents. The safeguard for politicians to speak freely in Parliament is quite strong since it is entrenched in the Basic Law. Should the Prosecution Service ever become a political tool to be used by the Government against its political opponents, the powers of prosecution cannot be used for prosecuting opponents for statements made within the political sphere, in any case not without changing the Basic Law. Apart from this, Dutch law does not offer any immunities to politicians or anyone else. However, the special procedures in place for the prosecution of politicians are sometimes equalled to immunities. This is probably not far off the mark as these procedures are rarely used. Formally, though, politicians are only exempt from prosecution for statements made within Parliament.

V. Special Courts and Special Procedural Requirements For politicians in lower levels of government, there are no special rules for prosecution. Quite regularly, these lower-level politicians are prosecuted for the regular District Courts. Special procedural rules do apply to government ministers, secretaries of state (underministers) and members of Parliament. For these, the

33

See https://www.rechtspraak.nl/Uitspraken-en-nieuws/Bekende-rechtszaken/Strafzaak-Wilders (accessed 12 July 2016). 34 Kamerstukken II 2005-2006, 30415, 6, p. 28-29, 48, 51.

188

W. Geelhoed

Basic Law (Art. 119), the Code of Criminal Procedure (Arts. 483–485), the Judicial Organisation Act (Art. 76) and the Ministerial Accountability Act (Wet ministerie¨le verantwoordelijkheid) give special rules. These rules apply to any act of public malfeasance or misconduct committed in the commission of these politicians, and the rules also apply after their commission has ended. If there is a suspicion that a person belonging to this group of government officials and parliamentarians committed a public office offence, the Public Prosecution Service may conduct a preliminary investigation. If the Prosecution Service comes to the conclusion that there is enough evidence to raise a suspicion, it places the matter in the hands of a special investigatory committee of the States-General (in this case, of the Second Chamber).35 This committee carries out the criminal investigation and reports to the Parliament. Then Parliament must decide about whether to instigate prosecution within 3 months after the investigation started. If the Second Chamber decides that the person should be prosecuted, it places the matter in the hands of the ProcuratorGeneral at the Supreme Court. This member of the judiciary does not belong to the Public Prosecution Service but is attached to the Supreme Court. However, it does not take part in the judicial decision-making of the Court but only has powers of advice. This procedure has not been used in recent times. The last time it was used was in 1868, when the Supreme Court imposed on Navy Minister Pels Rijcken a fine of ten guilders (approx. five euros) for letting his dog walk on grounds where such was not allowed. He did this in a time when cattle fever was prevalent and there were strict controls on pets. Letting a dog walk loose is certainly not a public office offence now, and it also was not at the time the offence was committed. There is, however, as mentioned above, a multiplicity of legal rules on competence for offences committed by public officials. Among them are the Basic Law, the Judicial Organisation Act, the Code of Criminal Procedure and the Ministerial Accountability Act. The Basic Law from 1848 limited the competence of the Supreme Court to try political officials to only public office offences, whereas the original Basic Law from 1814 did not limit that competence: on the basis of the 1814 Basic Law, the Supreme Court could try political officials for all crimes they committed. Since the case of Pels Rijcken happened in 1868, the Supreme Court should not have been competent because the Basic Law from 1848 was in force limiting their competence to public office offences. However, the Judicial Organisation Act was in 1868 not amended in line with the Basic Law and still had the rule that ‘all crimes’ committed by political officials should be prosecuted before the Supreme Court. This law was only brought in line with the Basic Law in 1886, when it followed the Basic Law in restricting the competence of the Supreme Court to public office offences. In the case of Pels Rijcken, the Supreme Court decided to apply the rules in the Judicial Organisation Act and to disregard the fact that the Basic Law did not

35

This special investigation committee should not be mixed up with the investigatory committees carrying out regular parliamentary investigations, but it concerns here a committee charged with criminal law investigative powers.

Criminal Liability of Political Decision-Makers in the Netherlands

189

give the Court any competence. The Court obviously regarded it as favourable for the defendant that he could be tried in a forum privilegiatum at the Supreme Court, and it therefore gave precedence to the Judicial Organisation Act over the Basic Law.36 Recently, an investigation has been carried out by the Public Prosecution Service into a situation where confidential information relating to the intelligence services has been leaked. There is a Second Chamber committee consisting of the heads of the political groups that receives intelligence information on a strictly confidential basis, the Intelligence Committee. This committee is presided over by the head of the largest group in the Second Chamber. The information that was leaked out of this committee consisted of the confidential statement by Defence Minister Hennis that 1.8 million telephone calls had been collected by Dutch intelligence services and given to US authorities, while Home Affairs Minister Plasterk earlier publicly stated that these telephone calls were collected by US services. The statement of Minister Hennis turned up in a national newspaper. The statement is politically quite sensitive because it not only became public through a breach of confidence, but it could also lead to the decision that Minister Plasterk has to step down from office since he informed Parliament incorrectly. The chairman of the Intelligence Committee reported the case to the police; the Public Prosecution Service investigated the case and delivered its report to Parliament, stating that there was a serious suspicion of leaking information by a member of the Intelligence Committee. Parliament formed an investigatory committee in the sense of the Ministerial Accountability Act, with the task to investigate which MP had breached his confidence. This investigatory committee has published its report, in which it concluded that it could not find a suspicion against any particular person.37 These strict procedural rules in some sense provide for safeguards to avoid politically motivated proceedings. It is very unlikely that politicians in the central Government and members of Parliament would be prosecuted before the Supreme Court since the instruction to start proceedings can only be given by the Second Chamber or by the Government itself (in that case, it will most likely be a former member that is prosecuted). This special procedure inevitably induces such political sensitivities that it is never used. The idea for this special procedure is that politicians (at least those at the central level) should be free from light-hearted prosecutions and receive the benefit of a trial in only one instance, directly before the Supreme Court. Moreover, if the normal prosecution procedures would also be in place for politicians, the Minister of Justice would have the power to instruct the Public Prosecution Service to prosecute his political opponents (on the basis of Art. 128 of the Judicial Organisation Act). This would be a very powerful tool in the hands of the Government in order to subdue the opposition. Therefore, not the Public Prosecution Service has the task of prosecution politicians before the

36

M. Verhulst/G. Boogaard, Het hondje van minister Pels Rijcken – Over verwijzingen naar eerdere vervolgingen van politieke ambtsdragers, Nederlands Juristenblad 2016, 74. 37 Verslag Commissie van onderzoek, 20 January 2016, available at http://www.tweedekamer.nl.

190

W. Geelhoed

Supreme Court, but this is bestowed upon the Procurator-General. Because he is not a member of the Public Prosecution Service, the Minister of Security and Justice is not able to direct the prosecution and aim it at his opponents. However, for any other offences that have not been committed in office, the regular court system is competent, and in these cases the Public Prosecution Service remains under the instruction of the Minister of Security and Justice.

VI. Further Particularities in Proceedings Against Political Decision-Makers Dutch criminal law enables the prosecution and liability of legal persons. This is possible not only for private entities but for public entities as well (Art. 51 CC). However, this does not apply to the central Government level: the State as such enjoys immunity from prosecution.38 A bill has been discussed in Parliament to abolish this immunity, but it failed to pass the Senate (by one vote) in November 2015.39 Lower-level public entities can be held criminally liable, however. This is only possible if they acted outside the scope of exclusive public duties. Within this scope, they also enjoy immunity from prosecution.40 For instance, lower-level public entities act outside the scope of exclusive public duties when they act in a way that is similar to normal companies. Some municipalities let private companies collect household waste, whereas some municipalities do it themselves. In these cases, the municipality does not enjoy immunity from prosecution. Actually, this distinction between public duties and ‘privatisable’ duties is a distinction that the legislator made, using the equality principle41: there is no justification why we should treat a government in any other way than we would treat a private company if their activities are the same. According to the Supreme Court, the rule to hold public bodies accountable only when discharging non-public duties could in principle also be justified because public authorities have been explicitly charged with public duties, and therefore the legislator has already decided that they should carry out that duty. For that reason, the judge should not review their actual activities. Conversely, a non-public duty has not been scrutinised by the legislator before; the municipality chose to carry it out itself. Therefore, the judge is right in reviewing the actual activities. However, according to the Supreme Court, this line of thinking does not lead to a very well-defined scope of accountability because the law only charges public bodies with tasks in a very widely circumscribed way. Therefore, the Supreme Court only uses the equality argument as a ground for his decision. The 38

Hoge Raad, 25 January 1994, NJ 1994, 598 (Volkel). This concerns bill no. 30 538. 40 Hoge Raad, 6 January 1998, NJ 1998, 367 (Pikmeer II). 41 Kamerstukken II 1975-1976, 13655, nr. 3, p. 21. 39

Criminal Liability of Political Decision-Makers in the Netherlands

191

Court explicitly refers to the fact that the Prosecution Service is able to include general interest reasons in its decision-making process and that the Minister of Justice can instruct the Prosecution Service not to prosecute, for instance in order not to disturb any steps to hold politicians politically accountable by instigating prosecutions in a too early moment.42 If a municipality is held liable, a participant in the crime (who is mostly called the factual leader of the crime) can also be held criminally liable (Art. 51(2) CC). This participant could be a person in charge within the entity, but this can also be a lower-placed public servant, e.g. overseeing the works. In the case of the building of the bridge, it is very unlikely that any person would be held criminally liable, whether being the municipality as a public entity or anyone acting within that sphere as a participant to the offence. Deciding on the building of a bridge is a task exclusively within the duties of a government. The actual bridge building is not within these duties since that is an activity that can be contracted. The municipality will therefore be immune from prosecution, and therefore any politician who participated in the decision-making cannot be prosecuted as a participant in the crime of the municipality. This does not in any way prevent a prosecution against that politician as an individual person, however. Dr. Willem (Pim) Geelhoed is assistant professor in Criminal Law and Criminal Procedure at the University of Groningen.

42

Hoge Raad, 6 January 1998, NJ 1998, 367 (Pikmeer II).

Criminal Liability of Political Decision-Makers in Norway Annika Suominen

I. Preliminary Remarks: The Norwegian Constitutional System Norway is a democratic monarchy where the Norwegian Constitution1 shall ensure democracy, a state based on the rule of law and human rights.2 The Constitution establishes three branches of government. These are, firstly, the legislative, budgetary and supervisory power, which is vested in the Storting (Parliament); secondly, the executive power, which is vested in the Government (regjeringen)3; and, thirdly, the judicial power, which is vested in the Supreme Court and the subordinate courts and in the Court of Impeachment (Riksretten). Article 1 of the Constitution states that The Kingdom of Norway is a free, independent, indivisible and inalienable realm. Its form of government is a limited and hereditary monarchy.

The Norwegian Constitution was adopted on 17 May 1814 and is the second oldest written Constitution in the world that is still applied. As Head of State, the King opens each new session of the Storting,4 he presides over meetings of the Council of State and he approves all decisions made there.

1

The Norwegian Constitution, Kongeriket Norges Grunnlov, LOV-1814-05-17. Art. 2 of the Constitution. 3 See E. Smith, Konstitusjonelt demokrati, Statsforfatningsretten i prinsipielt og komparativt lyst, 3. utgave, 2015 (Fagbokforlaget), pp. 246-248. 4 The Norwegian Parliament, the Storting is officially called Storting also in English. 2

A. Suominen (*) University of Bergen, Faculty of Law, Bergen, Norway e-mail: [email protected] © Springer International Publishing AG 2017 F. Zimmermann (ed.), Criminal Liability of Political Decision-Makers, DOI 10.1007/978-3-319-52051-3_10

193

194

A. Suominen

The executive power is vested in the Government (regjeringen). This is based on Art. 3 of the Constitution,5 and it follows from this that the administration is the apparatus that the Government has in its disposal for applying its executive powers.6 The Norwegian Constitution often states that the King in Council holds the executive power. This is the formal term for decisions made as a royal decree (konglig resolusjon), whereas the Government is led by the Prime Minister (statsministern) but does not have a formal competence to decide. However, in reality it is the Government that collectively makes decisions.7 A senior civil servant (embetsmenn) is either a government official appointed by the King and installed as a senior civil servant or an official who is temporarily appointed by the King in a senior administrative post.8 That the senior civil servants are chosen and appointed by the King is also stated in the Constitution, Art. 21. The appointment is done after consultation with his Council of State (the Government). A civil servant (tjenestemann) is any employee of the Norwegian Civil Service who is not a senior civil servant. However, politicians, meaning persons elected, are not considered as civil servants under constitutional law. This does, however, not necessarily preclude the criminal law provisions from being applicable for politicians, such as in cases of misuse of public office, as the content of these offences and what these encompass in the criminal law context might differ from this categorical starting point under constitutional law.9 5 ‘The executive power is vested in the King, or in the Queen if she has succeeded to the Crown pursuant to the provisions of Article 6 or Article 7 or Article 48 of this Constitution. When the executive power is thus vested in the Queen, she has all the rights and obligations which pursuant to this Constitution and the law of the land are possessed by the King.’ 6 H.P. Graver, Alminnelig forvaltningsrett, 4. utgave, 2015 (Universitetsforlaget), p. 149. 7 Ibid. p. 150. See also Art. 31 of the Constitution on the countersigning on the decisions of the King. The relationship of the Government and the King is that the members of the Government assume the functions that, in accordance with the Constitution, are assigned to the King, and it is the Government that formally passes the resolutions. However, the involvement of the King, by way of signing the resolutions passed by the King in Council of State, is judicially required in some cases, compare with Art. 31 of the Constitution. The Government has two main forms of decision, the Council of State meeting and the Government conference. The Constitution and constitutional practice regulates which matters must be formally decided in the Council of State presided over by the King, and which may be decided by the individual minister on his own. For decisions to be made in the Council of State, more than half of its members must be present. The term ‘The King in Council’ (Kongen i statsra ˚ d) is used to a large extent in the Norwegian Constitution. However, it is in fact the Government that has the executive power, and therefore the term ‘Government’ will be used in this report to demonstrate the actual state of play, unless directly quoting an article from the Constitution. This confusion in terminology is mainly due to the fact that some parts of the Constitution have not been updated, and still stand in their older format. 8 Act relating to Civil Servants etc., (the Civil Service Act), Tjenestemannsloven, LOV-1983-0304-3. Ministers or state secretaries are not included in the scope of the Civil Service Act, and are therefore not considered as senior civil servants in the understanding of the act. 9 See T. Eckhoff, Var det straffbart a˚ offentliggjøre LORAN C-instillingen? Kritisk Juss (1978), p. 18, on the fact that a member of the Storting was considered falling under the scope of the sec. 121 of the previous Norwegian Criminal Code (offentlig tjenestemann). See further infra II.1. on the current regulation.

Criminal Liability of Political Decision-Makers in Norway

195

There are 169 members of the Storting. These are elected every 4 years. The Storting cannot be dissolved (which is unique in Europe), and there is no opportunity to call for new elections within this 4-year election term. The Government is formed by the party/parties that have a majority of the seats in the Storting (it can constitute a minority capable of governing). The Government is indirectly selected by the electorate, and there can be a change of government also outside the general election. This is if a situation would arise where the Government no longer has the confidence of the Storting.10 There are 428 municipalities in Norway.11 The municipalities have sovereign autonomy (kommunalt selvstyre). This is based on sec. 6 in the Local Government Act,12 which states that the municipal council and county council are the highest municipal and county bodies.13 The municipal councils are elected every 4 years, always 2 years after the election of the Storting. Municipalities have sovereign autonomy, which is based on law and can thus be limited and regulated by the Storting as legislator.14 Recently, this municipal autonomy has been inserted into the Constitution due to Norway previously receiving critique for this not being formally laid down in the Constitution.15 Despite this sovereign autonomy, the municipalities and counties are to a large extent subjected to state steering and control. This follows both from the Local Government Act and the other relevant legislation that enables the municipalities to act in various areas of law.16 This means that the municipalities and counties (see below) are not considered as legislative bodies. Some municipality councils are,

10

See further Art. 15 of the Constitution on the vote of no confidence. This report has not, and will not focus on the Sameting, which has no constitutional status. See https://www.sametinget.se/lang/ english for more information (last visited 8 April 2016). 11 http://www.kartverket.no/Kunnskap/Fakta-om-Norge/Fylker-og-kommuner/Tabell/ (last visited 4 April 2016). 12 Act relating to municipalities and county authorities (the Local Government Act), Kommuneloven, LOV-1992-09-25-107. There is currently an on-going process to update and renew this act. The newest document is NOU 2016:4 Ny Kommunelov (A new Local Government Act, the report is from 10 March 2016), where several amendments are suggested. It is not possible to further look into these here. 13 Also Graver (note 6), p. 155. 14 Ibid. 15 The decision on the amendment was made by the Storting on 31 March 2016 where a new provision is inserted into Art. 49 of the Constitution, see https://www.stortinget.no/no/Saker-ogpublikasjoner/Publikasjoner/Referater/Stortinget/2015-2016/160331/. This amendment is however mainly of symbolic value, and does not as such change the autonomy of municipalities. 16 Graver (note 6), p. 155. See also, e.g., sec. 59 of the Local Government Act on review of legality and sec. 60 of the same act on the approval of financial obligations.

196

A. Suominen

when the municipality is also a city, city councils.17 Today, this applies to Oslo and Bergen. They have city governments instead of municipality councils, and this is a possibility pursuant to chapter 3 in the Local Government Act. The municipalities together form counties ( fylkeskommune). These are the regionally administered levels in Norway. There are today 19 counties. The counties have administrative and service-producing responsibilities within their county, and the counties are under a political steering by the county council ( fylkesting). The county council is elected directly by the inhabitants of the county every 4 years through county elections, which are organised at the same time as the municipal elections. Decisions in municipality counties, city governments and county councils are made by simple majority.18 In the present case, who is competent to decide to build the bridge depends on what kind of road the bridge will be part of and therefore what kind of road is in question. If the road is a municipal road (kommunevei), the municipality council makes the decision. If the road is a county road ( fylkesvei), the county council makes the decision. If the road is a state road (riksvei) or European road (europavei), it is the Storting that prioritises and the Government that effectuates the decision on the road and, therefore, the bridge.19 In practice, most roads go through both municipalities and counties when they at the same time are state roads. This means that in addition to the state’s decision to build the bridge, the municipality (or county) also has to makes its own decision on it. Cooperation is always necessary in these situations, and sometimes the municipalities are not that speedy in their decision-making. In some situations, depending on the financing system, the consent of the Storting in plenum is even required.20 If M in our case is a municipal council member, he could have an impact on this decision, but only as regards his part in it, not more generally, as the municipality council decides collectively/with majority. The fact that M participated in the council’s decision to have the bridge built (as a bad decision) does not as such make him individually responsible for it, unless the action of M does not fulfil any of the constituent elements of those criminal offences presented infra, II.1. If M did have a personal interest in the decision to have the bridge built as he was offered a benefit, he can be held criminally responsible for this, depending on the constituent elements of offences presented infra, II.2. As will be shown, depending on the matter, and the circumstances, different offences can be relevant.

17

These are then also not considered as legislative bodies. Sec. 35(1) of the Local Government Act. 19 The central planning document for this at the state level is the National transport plan (Nasjonal transportplan) and the economic plans are granted in the state budget each year. 20 This applies for example when the financing for a new measure is done by collective traffic effort (bompenger), based on Art. 75(a) of the Constitution. 18

Criminal Liability of Political Decision-Makers in Norway

197

II. Comparative Case Study 1. Part 1: Criminal Liability for Bad Political Decisions Offences in chapter 19 of the Norwegian Criminal Code21 (CC) entitled protection of official authority and trust to this, are relevant in this regard.

a) Misuse of Public Office, Sec. 173 CC The offence of misuse of public office is punishable with imprisonment for up to 6 years. This may be imposed on a person who in the exercise of public authority (a) deliberately grossly violates his official duty; (b) violates his official duty with intent to achieve gain for himself or another; (c) violates his official duty with serious inconvenience, injury or wrongful detention as a result; or (d) otherwise abuses his public authority. The offence must first of all take place in the exercise of public authority. This is a condition for the offence to be fulfilled. The term ‘in the exercise of a public authority’ shall as a starting point, in an administrative law context, be understood as in the Public Administration Act sec. 2(1)(a).22 Exercise of public authority is characterised by the state using its superior power over its citizens. Public authority is exercised when the decision is based on public authority (offentligrettslig myndighet) prescribed by law, regulation or other basis for competence.23 Public authority is considered comprehensive, and it is not possible to consider all possible situations covered by formal regulations or instructions. Also, acts that are in contradiction with more general principles on how to exercise public authority can be in contradiction of the official duty.24 The first letter, (a), deliberately grossly violating his official duty, is not restricted to a certain profession. It is further not necessary that the act has a specific outcome; if a judge, for example, would deliberately make an incorrect decision under proceedings, this would fall under the scope of letter (a), even if this decision would not impact the outcome of the case. The perpetrator must also deliberately do 21

The Norwegian Criminal Code, Lov om straff (straffeloven) LOV-2005-05-20-28. The Norwegian Criminal Code is not yet translated into English. The translations used here are the author’s own, and therefore should be used with certain caution. 22 Lov om behandlingsma˚ ten i forvaltningssaker (forvaltningsloven) LOV-1967-02-10. Here, an administrative decision is defined as ‘a decision made in the exercise of public authority which generally or specifically determines the rights or duties of private persons (individual persons or other private legal persons)’. See further also the comment by T. Bekkedal on this on lovdata (inlogged version). See also Ot.prp.nr. 8 (2007-2008) pp. 233-236, especially p. 235 on this more systematic approach for offences committed in office as compared to the previous system. 23 Ot.prp.nr.8 (2007-2008) p. 337 in relation to sec. 171, which comes systematically first, but the same wording of public authority is used also in sec. 173. 24 NOU 2002:4 p. 312, see also NOU 2002:22 pp. 22-23.

198

A. Suominen

this; the dolus eventualis form of intent is not enough.25 As regards letter (b), this applies if the perpetrator grossly violates his official duty for gain. This gain can be economic or any other form of gain. This seems to be the most likely part of this section to be applied in our case. Letter (c) again includes inconvenience and injury either on private persons or on the society. Situations where a public official would make an incorrect decision and allow for permission for emissions, where the injury is more directed towards the environment, also fall under this category. It also covers economic injury, also of lesser value depending on the circumstances of the case.26 When it comes to defining a ‘public official’, sec. 155(2) CC states that anyone who exercises public authority on behalf of the state or municipality or anyone who has such competence by virtue of his position is considered a public official.27 Letter (d) then aims at covering the other situations where the perpetrator has exploited his position or tried to gain advantages through misuse of his public office, which are not covered by the situations in (a) to (c). Section 173 does further not limit its applicability only to situations where the act is committed only under public duty, as long as the act has a close connection to such public duty.28 This means that as long as the act constituting misuse of public office has a connection to the public office, the conditions are met. This section is furthermore new in the new Criminal Code, and there is therefore no case law on this particular section. The section gathers together many of the previous sections of the former Criminal Code and therefore aims at addressing all situations falling under the misuse of public office. In our case, the behaviour of M seems to fulfil the conditions in either letter (a), (b) or (d) of the section regulating misuse of public office. As mentioned above, letter (b) seems to fit the case best as it includes the aspect of gain, which is present in our case. Although the exact content of a duty is not defined, we can see that for members of municipality/county councils, this includes both a duty to attend meetings and to vote in meetings.29 For members of the Storting, if the case concerned constitutional duties, the case falls under the scope of the Court of Impeachment (see infra, V. and II.2.d)bb)). This section is further considered to apply to more gross situations, whereas the offence of misconduct is considered covering less serious situations.

25

Ot.prp.nr. 8 (2007-2008) p. 339. Ot.prp.nr. 8 (2007-2008) p. 339. 27 More generally on the definition of public official (offentlig tjenestemann) in Norwegian legislation, see e.g. NOU 1992: 23 pp. 63-66 and NOU 2002:4 pp. 179-180, also pp. 311-312. Also, in the Public Administration Act, sec. 2(1)(d), a public official is defined as ‘a senior official or other person employed in central or local government service’. 28 NOU 2002:4 p. 312. 29 Based on sec. 40(1) and (2) of the Local Government Act. 26

Criminal Liability of Political Decision-Makers in Norway

199

b) Misconduct, Sec. 171 CC A fine or imprisonment of up to 2 years shall be imposed on a person exercising or assisting in the exercise of public authority who grossly violates his official duty. The section is intended for situations where a public official is acting within his area of responsibility but is grossly violating his official duty, by, e.g., making a decision that he is not competent to make.30 The offence must first of all happen within the exercise of public authority; see above under sec. 173. Second, also perpetrators who assist in this, meaning, for example, office staff who does not exercise public authority but whose work is closely related to the exercise of authority, are also covered under this section. Third, the offence regulates violations, meaning both acts and omissions.31 The offence must further be within the official duty of the perpetrator. The content of the official duty is usually found in law, regulation, instruction, directive, orders from a superior or practice. It is, however, difficult to list conclusively all situations that would be considered encompassed within an official duty.32 This is also not enumerated further on in the preliminary works for this section, nor does it always follow clearly from legislation, regulation or directives.33 For municipal councils and county councils, the official duty is found in the Local Government Act and, more precisely, in chapter 7; however, this does not as such give a complete overview of possible duties. When it comes to members of the Storting, there are no clear rules as such on their official duty. Meeting in the Storting and voting on legislative proposals are, however, considered encompassed in this duty.34 When it comes to members of Council of State, their participation in the Council of State and decision-making therein is part of their official duty, as well as being head of a respective department.35 The members of the Storting shall also list their positions and economic interests in a public register. The rules on this register include provisions on how gifts

30

Ot.prp.nr. 8 (2007-2008) p. 337. Ot.prp.nr.8 (2007-2008) p. 337. 32 Ibid. 33 In Rt. 1986 p. 1030 the Supreme Court considered attempt to fraud to fall under the official duty (under the previous sec. 324 of the previous Criminal Code), when related to the perpetrator’s position as a publicly elected person in the municipal council. This seems to be applicable today as well. 34 See further Art. 75 and 76 of the Constitution. See also the Rules of Procedure for the Storting, available at https://www.stortinget.no/no/Stortinget-og-demokratiet/Lover-og-instrukser/ Stortingets-forretningsorden (in Norwegian, last visited 5 April 2016). https://www.stortinget. no/no/Stortinget-og-demokratiet/Representantene/Etisk-veileder-for-stortingsrepresentantene/ (available only in Norwegian, last visited 5 April 2016). See also Smith (note 3), pp. 208-212. 35 Art. 28 of the Constitution. See also Art. 30. 31

200

A. Suominen

received are to be registered and other similar benefits.36 There are furthermore ethical guidelines for members of the Storting that the presidency has put forward in 2013. The ethical guidelines do not as such contain new principles but codify principles already found in the political parties’ codes of conduct. These are rather general, but they include a notion on the members of the Storting safeguarding the interests of the society and that they shall not misuse their position to gain themselves or someone else an improper advantage.37 It is not a condition that the perpetrator had intent to obtain gain or any other kind of benefit to himself or others for the offence of misconduct to be fulfilled.38 The offence must further be gross. Not all situations of misconduct therefore fall under this offence as trivial transgressions are not considered punishable. The condition of severity is significant in relation to two points. Firstly, the deviation from the correct course of action must be gross. Secondly, the violation of official duty must have a specific significance. In a situation where the violation is not serious enough, a reprimand is considered sufficient.39 This means for our case that M has had to breach his duty, based mainly on chapter 7 of the Local Government Act. This does not give us much guidance in relation to our case, but it has some specific provisions relating to conflict of interest.40 As mentioned above in relation to misuse of public office, the offence can also be made in a close connection to a public duty, and therefore it is possible that the conducts of M in this case would also be considered falling under the offence of misconduct. In addition to this, M must also have acted so severely that the misconduct is considered a gross deviation from his correct course of action and that the violation has a specific significance. In our case, M would, if lying about aspects concerning the bridge (and being fully aware of the fact that the project is 36

Reglement om register for stortingsrepresentatenes verv og økonomiske interesser, available at https://www.stortinget.no/no/Stortinget-og-demokratiet/Representantene/Okonomiske-interesser/ (only in Norwegian, last visited at 5 April 2016). See also the ethical guidelines that have been prepared for the Civil Service, but which also apply for the members of the Government and all politicians in the ministries found in The manual on political leadership (2013, available at https:// www.regjeringen.no/globalassets/upload/smk/vedlegg/retningslinjer/handbok_for_politisk_ ledelse_september_2013.pdf last visited 14 April 2016). It has comprehensive provisions and deals with amongst other receipt of gifts, remuneration, reporting of financial assets and positions. 37 The guidelines contain six principles, accompanied by a brief commentary, dealing with 1) trust, 2) prohibition on exploiting their position to obtain unwarranted advantages, 3) registration of appointments and economic interests, 4) prohibition on accepting payments or gifts intended to influence them, 5) responsible use of the resources at their disposal and 6) public openness and transparency. See https://www.stortinget.no/no/Stortinget-og-emokratiet/Representantene/Etiskveileder-for-stortingsrepresentantene/ (available only in Norwegian, last visited 5 April 2016). As these ethical guidelines are not legally binding and the Storting itself enforces them, the effectiveness of such can of course be questioned. 38 Ot.prp.nr. 8 (2007-2008) p. 337 and NOU 2002:4 p. 312. 39 Ot.prp.nr.8 (2007-2008) pp. 231 and 338. Examples of such a reprimand are disciplinary measures or summary discharge, as laid down in sec. 14 and 15 of the Civil Service Act. 40 Sec. 40(3) has some specific regulations on this, see infra 2.d) on the conflict of interest and the fact that this section does not seem that relevant for our case.

Criminal Liability of Political Decision-Makers in Norway

201

questionable) and having a personal gain from such a decision, probably fulfil this condition. Furthermore, in our case, such significance could be that M has had responsibility to assess certain aspects of the bridge building or he has, due to his previous working commitments, a specific ability to assess such aspects of the project, which he then grossly violates.

c) Gross Negligent Misconduct, Sec. 172 CC The offence of gross negligent misconduct is punishable with a fine or imprisonment of up to 1 year. The aim was to criminalise also negligent misconduct when it is gross, the act is very blameworthy and there is reason for strong a reprimand. This also includes situations where intent has been difficult to prove. The standard of due care (aktsomhetsnorm) can vary depending on which area of life is in question, and the perpetrator should as a starting point be considered pursuant to the norm that applies in the relevant area, even if this would be unknown to him. A strong norm for due care is to apply for persons that exercise or prepare to exercise public authority. This means that this section can actualise in situations where the perpetrator has acted contrary to his official duty due to sloppiness or forgetfulness.41 Although relevant in many cases, this does not seem feasible for our case as M has acted intentionally.

d) Other Possible Financial Outcomes Interesting to note in this regard is that municipalities cannot be declared insolvent. Section 55(2) of the Local Government Act states that ‘A municipality or county authority may not be declared insolvent or institute debt settlement proceedings pursuant to Act No. 58 of 8 June 1984 (the Insolvency Act)’. This means that, in our case, even if the outcome of the decision to build the bridge would be such a terrible decision and would hugely exceed the budget and planned costs of the municipality, the municipality could nevertheless not be declared insolvent based on this. A general comment should be made here: the offences presented here under part 1 may to some extent need to be stretched to be applicable in our case. The fact that M under part 1 pursues personal interests is not as such criminalised but is considered part of political decision-making in general.

41

Ot.prp.nr.8 (2007-2008) p. 338.

202

A. Suominen

2. Part 2: Criminal Liability for Pursuit of Personal Interests There are several offences that are relevant in this respect. Most of these (all) are found in chapter 30 CC, which regulates fraud, tax fraud and similar economic criminality.

a) Fraud, Sec. 371 CC Fraud is punishable with a fine or imprisonment of up to 2 years for any person who intentionally obtains for himself or for another an unlawful gain (a) by causing, confirming or exploiting a mistake and therefore unlawfully inducing a person to commit or omit an act that causes loss or a risk of loss to someone or (b) by the use of incorrect or incomplete information, altering data or software, predisposing of a credit or debit card that belongs to another, or otherwise unlawfully influencing the result of automatic data processing and thereby causes loss or a risk of loss for any person. This section requires, in addition to the usual requirement of intent,42 a form of intention to gain (vinningsforsett), meaning that the perpetrator intends to acquire an unlawful gain in addition to intending to commit the offence.43 The specification in letter (a), that the risk or loss of risk for someone entails that the loss or risk of loss can take place for anyone and not necessarily the person who is deceived or acted for.44 For our case, this means that if M deceives some persons in the public debate or council decision-making and the loss or risk of loss occurs to other persons than those, the offence of fraud is applicable. The specification in letter (b) means for our case that if M uses incorrect or incomplete information, and perhaps has even altered data on financial information on how much the bridge would cost, the offence of fraud would be applicable. In situations where the fraud is considered gross, it is punishable with imprisonment of up to 6 years (sec. 372). When deciding on whether the offence is gross, an overall assessment is to be made. In this, particular importance shall be attached to certain conditions. Three of these are relevant in this regard, and one of these seems to cover situations like the one in our case. If the perpetrator has assumed or misused a position, office or assignment (letter (e)), this is an aspect that is taken into account when assessing whether the fraud is gross.45 Misuse of a position of

42

The Norwegian criminal justice system recognises three forms of intent, i.e. direct intent (hensiktsforsett), probability intent (sannsynlighetsforsett) and (positive, not hypothetical) dolus eventualis, see sec. 22 CC. 43 This applies for all forms of intentional fraud, but not for negligent fraud pursuant to the Supreme Court judgment Rt. 1999 p. 874. Also, how the new regulation on mistake of law (rettsuvitenhet) in Norwegian law will have an impact on this, is unclear. 44 NOU 2002:4 p. 381. 45 On the term ‘office’ more in detail, see infra II.2.b).

Criminal Liability of Political Decision-Makers in Norway

203

public office falls under this category.46 Also, misleading the public or a large group of persons (letter (g)) or preparation of false accounting document or false annual accounts (letter (f)) are factors taken into account when assessing if the fraud is gross. Both these situations can be relevant for our case, depending on how M acts when the decision is being made. There is a case from 1986 where the then government member Astrid Gjertsen was sentenced to 45 days’ imprisonment for gross fraud. She had, while a member of the Council of State, tried to falsely amend the amounts on taxi bills. The fact that she was a member of the Government was considered making the offence gross. When this became known, she resigned as a member of the Government, and when she was sentenced she also paid back the amounts she had fraudulently gained.47 There are in addition sections regulating minor fraud (sec. 373)48 and gross negligent fraud (sec. 347). Neither of these seems that relevant for our case, but depending on the circumstances, especially minor fraud could be relevant. This, however, seems unlikely as the acts M does in this case are serious.

b) Corruption, Sec. 387 CC Corruption is punishable with a fine or imprisonment of up to 3 years when a person (a) for himself or others requests, receives or accepts an offer of an improper advantage in connection to exercising a position, office or assignment or (b) gives or offers any person an improper advantage in connection to exercising a position, office or assignment. This section covers both active and passive corruption, and letter (a) is intended to cover situations where the person requires an improper advantage, while letter (b) covers situations where the person offers such an improper advantage. An advantage means any form of object, service, etc. that the passive part is benefiting from. Usually the advantage would have an economic value, but it can in addition to money be things, a distinction or sexual services.49 What makes an advantage improper is that there is a clearly blameworthy situation involved. What is considered improper depends on the situation and position of the parties and is also dependent on the relevant moral and ethical perception at any time.50 When

46

See what was mentioned supra in relation to official duties, II.1.b), which to some extent can be used to distinguish how a position of public office should be handled, and what can constitute misuse. 47 Domsnr. 188-87. The matter of misuse of public resources has been discussed often, usually in relation to travel reimbursements. There are no specific rules on the misuse of public resources for members of the Storting, but if the Accounting Section would find discrepancies afterwards, a possible criminal investigation and criminal proceedings would take place in accordance with ordinary legislation. 48 When the guilt is minor due to an insignificant value and when the circumstances otherwise so indicate, a fine is the only sanction available (sec. 373). 49 Ot.prp.nr. 78 (2002-2003) p. 54. 50 Ot.prp.nr.22 (2007-2008) p. 470.

204

A. Suominen

deciding on the improperness, also the ethical guidelines of the municipality play a role, if the case concerned a municipality/county council member.51 These are not legally binding as such but will have an impact when deciding on what is considered improper. An advantage that is considered a natural expression of conducted work will not be considered improper. Also, advantages received in connection to usual representation or that are received in relation to customary or internal guidelines will seldom be considered as improper.52 When it comes to position, office or assignment, these also include such positions abroad. This is specified in the section itself, and although not necessary as such, it is considered clarifying. Position, office or assignment also includes all forms of employment. The term office is most relevant for our case. It includes in this regard corruption committed by or opposite of political office, council office or other forms of offices. It is not required that the person passively being bribed receives the advantage for the office, and it is not of relevance if the person has the office based on elections or appointment. Representatives in unions and organisations also fall under this category, as well as members of the Storting, members of municipality councils and other elected positions.53 The section covers corruption both in the public and private sectors. The improper advantage has to be requested or offered in connection to the exercise of such position. But it is not required that the bribe can be tied to a specific act or omission.54 If M in our case was offered a benefit, the conditions under this section on corruption are fulfilled. M would have received an improper advantage in connection to exercising his office. This would have been done in order to influence the decision-making that M took part in. Also, the person who would have offered this benefit falls under the scope of this section.55 In situations where corruption is considered gross, it is punishable with imprisonment of up to 10 years (sec. 388). When assessing if corruption is considered 51

For example, as regards Bergen, some guidance can be found here https://www.bergen. kommune.no/jobb/hvorfor-kommunen/9664/article-100755 (available only in Norwegian, last visited on 11 May 2016). These, however, can vary between the municipalities, and there is no overview of these. 52 Ot.prp.nr. 78 (2002-2003) p. 55. Examples mentioned here that are not considered improper are when the office personnel of a court receive a bottle of wine from a local attorney at Christmas or gifts of lesser value, such as advertisement objects. 53 Ot.prp.nr.78 (2002-2003) p. 54. There were some cases in 2010 where members of the Government or the Storting had received gifts of considerable value. These were not taken to court, as the prosecution did not consider it necessary, but the media attention and the value of the gifts could indicate otherwise. 54 Ibid. 55 On corruption and municipalities in Norway, see further T. Dølvik, Korrupsjonsrisiko i norske kommuner, in: Eriksan (ed.), Å Bekjempe et samfunnsonde – om korrupsjon, varsling, granskning og organisasjonskultur, 2014 (Gyldendal), pp. 92-107. This includes some interesting graphs in relation to how much corruption the inhabitants of a municipality think there is and other issues related to trust.

Criminal Liability of Political Decision-Makers in Norway

205

gross, especially such circumstances as if the act has been committed by or in relation to a public official or another person in breach of a special confidence placed in him by virtue of his position, office or assignment (letter (a)) should be examined. The section also mentions if the act has resulted in a considerable economic advantage (letter (b)), if there was a risk of considerable damage of economic or other nature (letter (c)) and if false accounting documents were used (letter (d)). The condition in letter (a) is most relevant for our case and the blameworthiness in this connected to the confidence placed in the person. It is possible that a case of corruption is considered gross already based on the fact that it has been committed by a person having special confidence, such as a political decision-maker has. Then it is not necessary that the offence concerns considerable economic values. However, this presupposes that the perpetrators’ behaviour, taken together, represents a deviation from proper behaviour. When the perpetrator is a public official, also whether he has a specific confidence placed in him is relevant in the assessment on the grossness.56 In our case, the behaviour of M would fulfil the conditions in letter (a), and his actions would most likely be considered as gross corruption, even if the offence would not concern considerable economic values. The aim of letter (a) is to address the specific blameworthiness of corruption when the perpetrator holds an office, which M does in our case.

c) Trading in Influence, Sec. 389 CC Trading in influence is punishable with a fine or imprisonment of up to 3 years. Trading in influence is when a person who (a) for himself or others requests, receives or accepts an improper advantage in order to influence the conduct of someone else’s position, office or assignment or (b) gives or offers any person an improper advantage in order to influence the conduct of someone else’s position, office or assignment. This section also covers position, office or assignment abroad. If the improper advantage is received for influencing the person’s own position, office or assignment, the act is usually covered by sec. 387 on corruption. The section on trading in influence aims at covering those situations where improper advantage is received or offered in order to influence someone else’s position. Only improper advantages are covered by this section, and a blameworthy connection is necessary.57 The degree of openness has relevance in the assessment. For example, as regards lobbying, it will be decisive if the influence agent has been open in relation to the person acting on behalf of someone else.58

56

Ot.prp.nr.78 (2002-2003) p. 58. See also supra II.2.b) on the requirement of an improper advantage. 58 Ot.prp.nr.22 (2008-2009) p. 471. 57

206

A. Suominen

If the advantage has an economic value, this value will be relevant when measuring the improperness. Another central moment in this measurement is who is influenced and what kind of position that person has, especially if it is considered important to safeguard such a position against such improper action. The person trying to influence someone else’s position, office or assignment should also have this ‘influencing of conduct’ as his intention. Sanctions pursuant to letter (a) are, however, possible to impose also when the perpetrator does not know or does not have any practical possibility to obtain contact with the person he claims to be able to control. The perpetrator does not need to try to influence the person, but it is sufficient that the perpetrator demands, receives or accepts an offer of an improper advantage ‘to do’ this.59 Article 12 of the European convention only applies when the perpetrator is or claims to be in a position to have an impact on the decision-making of another. This restriction does not apply pursuant to the Norwegian provision; also influencing acts and omissions that are not naturally characterised as decisions can, depending on the circumstances, also actualise sanctions pursuant to the provision.60 Some General Comments in Relation to the Applicable Offences The Norwegian offences relating to our case do not always distinguish between public officials or other political decision-makers in the provisions of the Criminal Code. Sometimes, as for example for corruption and trading in influence, the position, office or assignment is part of the constituent elements of the offence. In other offences, such as gross fraud or gross corruption, the involvement of a public official is one factor making the offence gross. This has been demonstrated above when analysing the different relevant sections. Some questions still remain unanswered. Firstly, does it make a difference when the benefit is offered, e.g. when M is still a candidate? If this is the case, the condition of holding an office is of course not fulfilled, which makes some of the above-mentioned criminal offences not applicable. The preparatory works do not comment on such a situation, where M is not yet a member of the municipality/ county council or the Storting. In fact, candidates do not report their campaign support; this is only done at the level of the political parties. This applies both for municipality and county council elections as well as for Storting elections.61 As there are rules for campaign support but no criminal law provisions and the candidates do not need to report their individual supporters, the question is not easy to answer. Legally, it does not seem relevant for our case if M was offered the benefit when he was still a candidate. But this also depends on whether some of the conditions of some of the above-mentioned criminal offences would, however, be

59

Ot.prp.nr.78 (2002-2003) pp. 41 and 59-60. Ot.prp.nr. 78 (2002-2003) p. 60. 61 For the latest elections, information can be found here: http://www.partifinansiering.no/a/ vkb2015/index.html (last visited 11 April 2016). 60

Criminal Liability of Political Decision-Makers in Norway

207

fulfilled, but this is not clear in our case.62 Whether campaign funding or the mere perspective of being re-elected can constitute a benefit in the sense of the relevant offences is unclear, and it is not as such commented on in the preliminary works. It could be considered possible especially in relation to the improper advantage in corruption or trading in influence, but there are at the moment no indications of this. As a general comment, it can also be noted that in most situations many of the above-mentioned offences can actualise as actions can fulfil many of the conditions of several offences. It is nevertheless not feasible that a person would be convicted for all, but that pursuant to the rules on concurrence (the doctrine of one or more offences), some offences are primary.

d) Conflict of Interests aa) The Municipal/County Level The Norwegian system generally regulates to a large extent situations of impartiality in decision-making. The Public Administration Act regulates requirements relating to impartiality in the public administration. These are found in its chapter II, which regulates disqualifications. These also apply for members of municipality councils and county councils,63 and also for members of the Government, however not in their capacity as members of the Government, but for members of the Storting. A public official shall be disqualified from preparing the basis for a decision or from making any decision in an administrative case based on sec. 6(1): a) if he himself is a party to the case; b) if he is related by blood or by marriage to a party in direct line of ascent or descent, or collaterally as close as a sibling; c) if he is or has been married or is engaged to a party, or is the foster parent or foster child of a party; d) if he is the guardian or agent of a party to the case or has been the guardian or agent of a party after the case began; e) if he is the head of, or holds a senior position in, or is a member of the executive board or the corporate assembly of 1. a company which is a party to the case and which is not wholly owned by the State or 2. a municipality, or an association, a savings bank or foundation that is a party to the case.

Pursuant to paragraph 2 of the same section, a public official is similarly disqualified if there are any other special circumstances which are apt to impair confidence in his impartiality; due regard shall inter alia be paid to whether the decision in

62

As a side note, for municipal/county council elections and how the candidates are chosen, there are no internal rules for candidate nominations and how the inside nominations of the candidates are done. This can of course open up a possibility for corruption or other criminal offences in relation to the nomination committees, but this aspect cannot be further analysed here. 63 Based on the Local Government Act sec. 40(3) with some specifications.

208

A. Suominen

the case may entail any special advantage, loss or inconvenience for him personally or for anyone with whom he has a close personal association. Due regard shall also be paid to whether any objection to the official’s impartiality has been raised by one of the parties.

This paragraph is important and is usually considered the main part of regulating impartiality when it comes to decision-makers. If M in our case is a member of the Government, this is the relevant provision, according to which his impartiality is decided on.64 The section further continues in paragraph 3: ‘If the superior official is disqualified, the case may not be decided by any directly subordinate official in the same administrative agency.’ And what is perhaps even more relevant for our case, para. 4 of the same section states that ‘The rules governing disqualification shall not apply if it is evident that the official’s connection with the case or the parties will not influence his standpoint and neither public nor private interests indicate that he should stand down.’65

Furthermore, sec. 40(3) in the Local Government Act adds some further requirements for elected officials in municipality and county councils. As regards conflicts of interest, the provisions of the Public Administration Act apply together with the following: a. A conflict of interest is not incurred in respect of elections to public office or where remuneration, etc., for any such office is being determined. b. Employees of municipalities or county authorities who in this capacity have assisted in the preparation of the basis for a decision, or in an earlier decision in the same matter, shall always be deemed to have a conflict of interest when the matter is being considered by a popularly elected body. The first sentence of sec. 40(3)(b) of this Act does not apply to the consideration of the annual budget, the finance plan, the Municipal Development Plan and the County Development Plan. c. When an administrative appeal is being heard pursuant to Section 28, second para. of the Public Administration Act, employees or popularly elected representatives who were involved in making the decision against which an administrative appeal is being brought, or who assisted in the preparation of the basis for the decision, are disabled in respect of the hearing of the case by the administrative appeal body and in respect of the preparation of the case for the administrative appeal body.

The section also has some further rules related to the situation of a superior employee. The rules on impartiality are discussed to a large extent in Norwegian law. It depends a bit on the circumstances here if M is an elected member of the municipality/county council if he is considered partial, depending on his connection to the potential contractor. The conditions under the Public Administration Act do, however, seem fulfilled in our case, if M is a partner to the possible contractor. He

64

See e.g. the Innst. 302 S (2011-2012) Innstilling fra kontroll- og konstitusjonskomitteen, where this paragraph is analysed in relation to the (then) Foreign Minister, and see also the statement on the interpretation on this from the Ministry of Justice and Public Security from 2011, https://www. regjeringen.no/no/dokumenter/-6---vurdering-av-arbeidsministerens-hab/id665529/ (visited on 16 March 2016). 65 For more details on this section, see O. Overa˚ /J.F. Berndt, Kommuneloven med kommentarer, 6. utgave (Kommuneforlaget 2014), pp. 372-384.

Criminal Liability of Political Decision-Makers in Norway

209

would then fall under the first condition in letter (a) as he could be considered a party to the case (as a partner). Even if M would not be considered a party falling under letter (a), he would certainly fulfil the category under letter (e)) as those positions mentioned there indicate an even lesser position in relation to the possible contractor than being a partner in it.66 If M would have, as a member of the council, voted in the municipality/county council although he should have declared himself partial, as he is a partner, he would fulfil the constituent elements of the offence on economic breach of trust pursuant to sec. 390 CC. Economic breach of trust is committed if a person acts against another’s interests, which he manages or supervises, with an intent to receive an unlawful gain for himself or others or to inflict damages. This is punishable with a fine or imprisonment of up to 2 years. The condition in this section of acting against someone’s interests covers both economic and other interests, as for example collecting money for a charity and using it for another form of charity without the consent of the persons donating the money. This also means that the act (or omission) does not have to result in an economic loss for the other party; it is sufficient that the perpetrator acts against that person’s interest.67 When it comes to the conditions of managing or supervising the interests, it is not necessary that the perpetrator has a leading position, but his position should be somewhat of an independent character. It is the special possibility that persons managing or supervising someone else’s interests have that enables the breach of trust that motivates having this as a separate criminal offence.68 The perpetrator has to have intent to have unlawful gain or to inflict damage; it is not sufficient if the perpetrator has committed the offence out of laziness. However, the gain or damages do not need to be of an economic nature.69 The field of application of economic breach of trust is partly also covered by other offences, such as corruption or embezzlement. The logic of the legislator is that if the other criminal offence also addresses the breach of trust and if it has an equally high level of penalties, it is sufficient to apply only one of the offences. In situations of corruption, it is the provision on corruption that is to be applied as the section on breach of trust is subsidiary in relation to the other provisions on economic criminality.70 Section 391 CC regulates gross economic breach of trust. This is punishable with imprisonment of up to 6 years. When deciding on whether the economic breach of

66

Rt. 1986 p. 1030 also comments on this, where the perpetrator owned 1/3 of a company, and that he should have declared himself partial, when the matter was discussed at the municipal level. 67 Ot.prp.nr. 22(2008-2009) pp. 471-472 and Rt. 1984 p. 1275. 68 NOU 2002:4 p. 315. 69 Ot.prp.nr. 22(2008-2009) p. 472. 70 This is stated in sec. 390(2), and it is also commented on in the NOU 2002:4 p. 315 and Ot.prp.nr. 22 (2008-2009) p. 472. The section can, however, be used together with the offence of theft in sec. 321 CC.

210

A. Suominen

trust is gross, the circumstances making a corruption case gross pursuant to sec. 388 (see above) are to be taken into account. This means for our case that if economic breach of trust is committed breaching a special confidence placed in a person by virtue of his position, office or assignment, the offence is likely to be considered gross. Also, the circumstances of the act resulting in a considerable economic advantage make the offence gross. Both situations are realistic in our case. Therefore, if M in this case voted on the bridge while at the same time being a partner of the possible contractor, his actions would fulfil the conditions of economic trust of breach, and most likely also the gross offence. Interesting is of course also what the consequence of this act has for the decision of the county/municipal council. The decision on the bridge is then possibly void; this depends on how much impact M has had on the matter. Another important aspect is of course when the matter comes to light. If this would be discovered straight away, the council could hold a new meeting, where they decide on the matter again (without M). However, if the acts are discovered in the future, and the bridge has already been built and several years have passed, the situation is more complex.71

bb) The Storting When it comes to members of the Storting, there are no written rules on impartiality.72 In practice, such rules would be difficult to establish as the members of the Storting potentially would be impartial in many decisions (concerning, e.g., pensions and building decisions in general). The members of Storting are considered able to handle all kinds of matters, even if a particular matter should have a personal implication on them. However, it is not considered acceptable based on parliamentary practice and unwritten parliamentary norms for a member of the Storting to take part in discussions or decisions concerning his own credentials, own constitutional responsibility or the question of bringing a case against him before the Court of Impeachment (see infra V.). A member of the Storting who has previously been involved in a particular matter as a member of the Government is not necessarily considered disqualified. He should, however, not have a leading role in the matter at hand. Based on these unwritten parliamentary norms, members of the Storting should not be elected or appointed as members of institutions that might put forward business to be deliberated in the Storting. Exceptions can be made for such

71

See further sec. 41 of the Public Administration Act on effects of procedural errors, see also the Veileder, Habilitet i kommuner og fylkeskommuner, Om inhabilitetsreglene i forvaltningsloven og kommuneloven, p. 35 and Overa ˚ /Berndt (note 65), pp. 385-388. 72 Also pointed out by the CoE Greco: Fourth evaluation round: Corruption prevention in respect of members of Parliament, judges and prosecutors, Evaluation report Norway, 25 June 2014, p. 14.

Criminal Liability of Political Decision-Makers in Norway

211

members not going to stand for a re-election.73 Also, a member of the Storting should consider abstaining from dealing with a matter in which he or his relatives has a personal interest, when such a case is deliberated before the Storting. The Presidium can give advice in such cases, but usually it is considered that decisions made by the Storting will have an effect on a larger group of persons, and therefore this is not often applied. It is up to each member of the Storting to decide whether or not he is qualified to take part in the matter at hand.74 The idea is that openness and knowledge of the economic interests of the members of the Storting is sufficient to guarantee their impartiality.75 The system of registering their interests in a register for the members of the Storting of their assignments and economic interests (register for stortingsrepresentanters verv og økonomiske interesser) should suffice for indicating their interests, and by making these public, possible impartiality is sought to be avoided. This information is then publicly available, and members of the Storting are obliged to report their interests in terms of income and any other benefits. There is, however, no requirement to report the size of the income and other benefits.76 This solution has been criticised as having written rules on impartiality for the members of the Storting seems important.77 At the municipal level, there is a registry where one can look up the positions and economic interests of the elected officials. This register is, however, based on voluntary registration. Not all municipalities have such registers, and each municipal politician can choose whether or not to report his interests.78 Therefore, in our case, if M would be a member of the Storting, and if his partnership is listed in the register, his voting on the decision to build the bridge does not seem to be problematic as such from a criminal law point of view. Openness is considered remedying the possible conflicting interests here.79

73

If the holder of such an appointment is elected as a member of the Storting, he should be given leave of absence from the appointment, along similar rules as those which apply to government ministers. 74 CoE Greco: Fourth evaluation round: Corruption prevention in respect of members of Parliament, judges and prosecutors, Evaluation report Norway, 25 June 2014, pp. 14-15, also on the recommendations. 75 See what was mentioned supra II.1.b). 76 H. Rena ˚ , Norway’s Integrity System – Not Quite Perfect? (Transparency International Norway 2012, available at http://www.transparency.no/2013/09/15/norges-integritetssystem-ikke-heltperfekt/, last visited 14 April 2016). See further also CoE Greco: Fourth evaluation round: Corruption prevention in respect of members of Parliament, judges and prosecutors, Evaluation report Norway, 25.6.2014, pp. 18-20 on this. 77 Rena˚ (note 76), p. 73. Also J. Andenæs/A. Fliflet, Statsforfatningen i Norge, 10. utgave 2006 (Universitetsforlaget), p. 169. Transparency International Norway has further also suggested a register for lobbyists. 78 Rena˚ (note 76), p. 17. 79 The criticism of Transparency International Norway is naturally still valid.

212

A. Suominen

cc) The Government As said above, sec. 6(2) of the Public Administration Act is important, and especially as regards members of the Government. This section is to be interpreted depending on the circumstances, and this applies also for members of the Government. There is, however, an important restriction to this: provisions on impartiality shall not apply to members of the Government in their capacity as members of the Government.80 It only applies to them in their capacity as heads of departments. That means that the rules on impartiality apply when the ministry makes decisions but not when a case is decided in the Government. The members of the Government should of course adhere to these rules also then, but it is not legally binding in this situation.81 For members of the Government, similar rules for registration of financial interests and assignments apply as for members of the Storting, but with one exception: this registration is voluntary for members of the Government. This has been considered problematic from an anti-corruption perspective.82 If M in our case is a member of the Government, sec. 6(2) of the Public Administration Act is the relevant provision, according to which his impartiality is decided on. However, if the voting takes place in the Government, the rules on impartiality are not applicable as such. There might be a non-statutory obligation for M to apply to these rules, but the situation is not clear-cut and does not have a clear legal basis.83

III. Special Sanctions Applicable to Politicians 1. Loss of Rights As regards politicians and specific sanctions in relation to their position, sec. 56 CC regulates loss of rights.84 Any person who has committed a criminal act that shows that the person is unfit for or may misuse a position, enterprise or activity may, when it is in the public interest, (a) be deprived of this position or (b) be deprived of 80

The Public Administration Act sec. 10. Based on administrative law principles, one could argue that a government decision could be declared void based on the non-statutory requirements if the personal interest of a government member has had a decisive effect on the result. This view is supported by Rena˚ (note 76), p. 92. 82 Rena˚ (note 76), p. 93. 83 See e.g. the Innst. 302 S (2011-2012) Innstilling fra kontroll- og konstitusjonskomitteen, where this paragraph is analysed in relation to the (then) Foreign Minister, and see also the statement on the interpretation on this from the Ministry of Justice and Public Security from 2011, https://www. regjeringen.no/no/dokumenter/-6---vurdering-av-arbeidsministerens-hab/id665529/ (visited on 16 March 2016). 84 Tap av retten til ˚a ha en stilling eller utøve en virksomhet eller aktivitet. 81

Criminal Liability of Political Decision-Makers in Norway

213

the right to hold in future any position or to carry out an enterprise or activity. Loss of any right may be limited to a ban on carrying out certain functions or pertaining to the position or enterprise. Loss of any right may also be limited to an order to carry on the enterprise or activity on specific conditions. A person who is deprived of such rights may not conduct such enterprise on behalf of others or permit others to conduct such enterprise or activity on his behalf. The person found guilty may be ordered to surrender a document or other object that has served as evidence of the now lost right. Loss of right pursuant to sec. 56 can further be imposed as the only penalty if the minimum penalty prescribed for the offence is less than 1 year. Whether such public interests are present that loss of rights should be enforced is dependent on the actual situation in each case. The form and severity of the offence, as well as its connection to the position, are central elements in the assessment. Loss of right can be imposed even if the criminal offence is not committed in connection to the exercise of the position, enterprise or activity. If such a connection exists, this is, however, relevant in the assessment on whether loss of right should take place.85 First of all, this section makes the deprivation of a person’s position possible. This may be done if this is in the public interest. This is decided on by a case-bycase evaluation, and deprivation of a position is to be done with caution.86 The deprivation of right applies for current positions. The section, however, also covers future positions, where the idea is that if the person is considered unfit or may misuse his position in the future, this can be remedied with loss of rights. This seems, however, not to apply to persons who have been elected through direct elections: pursuant to sec. 58(2), removal from office as a member of a municipal board, county council or the Storting may only be effected for the electoral term. This means that persons holding such office cannot be deprived of their right to hold a future position once the electoral term is over. The idea is evidently that, in a democracy, the voters can choose to have that person elected when a new electoral term begins.87 As regards loss of office where the person has been directly elected, the loss of rights should be used more carefully.88 This is also connected to the limitation to the electoral term.89 Interesting here also is that Art. 71 of the Constitution states that the ‘Members of the Storting function as such for four successive years’. This would seem to indicate that they cannot lose this right within these 4 years. However, only persons who are entitled to vote can be elected as members of the Storting, based on Art. 61 of the Constitution. This means that for the loss of right to be applicable here, the loss of the right to vote, and hence the loss of the right to be elected, can be lost if the conditions in Art. 53 of the Constitution are applicable.90 This article states that

85

Ot.prp.nr. 8 (2007-2008) p. 454 also Rt-1992-597, which concerned a police inspector and drunk driving. 86 Ot. prpr.nr. 90 (2003-2004) p. 454. On the public interest, see NOU 1992:23 p. 186. 87 Also mentioned in the NOU 1992:23 p. 185 and Ot.prp.nr.17 (2008-2009) p. 52. 88 Ot.prp.nr.8 (2007-2008) p. 455. Also Rt. 1961 p. 899. 89 Ot.prp.nr.8 (2007-2008) p. 455. 90 See also Andenæs/Fliflet (note 77), p. 144.

214

A. Suominen

the right to vote is lost by persons ‘a) sentenced for criminal offences, in accordance with the relevant provisions laid down by law; b) entering the service of a foreign power without the consent of the Government’. Letter (a) seems relevant for our case since if M would have been sentenced for corruption or another criminal offence, he could also lose his position as a member of the Storting. But this is not clear based only on the sections of the Criminal Code.91 In general, the section on loss of rights is not used very often, and from the case law available, it does not seem to be have been used in relation to directly elected persons.

2. Dismissal of Members of the Government As regards the Prime Minister and the other members of the Government, together with the state secretaries, they may be dismissed by the King without any prior court judgment, after he has heard the opinion of the Government on the subject. This follows from Art. 22 of the Constitution.92 In practice, it is the Prime Minister and the Government that decide this, and the King’s approval is merely a formality. Article 15 of the Constitution regulates a vote of no confidence in the Storting against a member of the Government: Any person who holds a seat in the Council of State has the duty to submit his application to resign once the Storting has passed a vote of no confidence against that Member of the Council of State or against the Council of State as a whole. The King is bound to grant such an application to resign. Once the Storting has passed a vote of no confidence, only such business may be conducted as is required for the proper discharge of duties.

This article was inserted into the Constitution in 2007. Previously, there were no written rules on a vote of no confidence.93

91

This is mentioned in A. Fliflet, Grunnloven Kommentarutgave, 2005 (Universitetsforlaget), p. 249. See also NOU 2002:4 pp. 53 and 247-250, as well as Ot.prp.nr. 90(2003-2004) pp. 328-329. See also what is mentioned in the CoE Greco: Fourth evaluation round: Corruption prevention in respect of members of Parliament, judges and prosecutors, Evaluation report Norway, 25 June 2014 p. 10. 92 The article continues and states that the same applies to senior officials employed in government ministries or in the diplomatic or consular service, the highest-ranking civil officials, commanders of regiments and other military formations, commandants of fortresses and officers commanding warships. It also regulates pensions and suspension of other senior officials. 93 Document no. 12:1 (2003-2004) Grunnlovsforslag fra Jørgen Kosmo, Inge Lønning, Lodve Solholm, Ågot Valle, Odd Holten, Berit Brørby og Carl I. Hagen, see also document no. 19 (20032004) pp. 16-17. See also F. Sejersted, Om statsra˚dens ha˚rfarge og været pa˚ 17. mai, Nytt norsk tidsskrift 1998 s. 227-243, and F. Sejersted, Ny paragraf, gammel regel – Om Grunnlovens § 15 og parlamentarismens rettslige innhold, Tidsskrift for rettsvitenskap (2014), s. 235-267. Previously, although no written rules existed, there was parliamentary practice and constitutional customary law.

Criminal Liability of Political Decision-Makers in Norway

215

Less forceful, but at the same time important, control instruments available to the Storting are the possibility to put questions to the ministers and to call the minister to a control hearing in the Scrutiny and Constitutional Committee in the Storting.94 In this way, the Storting further exercises control over the Government. And the Government has a legal obligation to inform the Storting based on Art. 82 of the Constitution. This should be done in a relevant and correct manner. The Office of the Auditor General has further an important role in controlling the Government. The Auditor General carries out the annual auditing of the central Government accounts based on Art. 75 letter k) of the Constitution and also makes a performance audit.95 Although these are not perhaps considered as sanctions in the traditional meaning of the word, these control mechanisms indicate a specific duty for members of the Government. Also, if members of the Government have acted contrary to their constitutional duties, they can be held accountable by way of the Court of Impeachment (see infra V.). However, possible cases for the Court of Impeachment are first assessed by the Scrutiny and Constitutional Committee in the Storting.

3. Suspension Relating to Municipality/County Councils When it comes to municipalities and counties, the Local Government Act has a section on relinquishment of office and suspension (sec. 15). This states that if a charge is brought or an indictment is rendered against a popularly elected representative for specific criminal offences and the charge or indictment relates to the discharge of office or service for the municipality or county authority, the municipal council or county council may itself pass a resolution to suspend the person concerned from office until the case has been finally decided.96 The suspension is valid until the case has been finally decided on.97 This section therefore applies when the trail is still pending. If the case is not pursued further or prosecution is waived, the suspension no longer applies. Also, when the case is finally decided on, the suspension no longer applies. If the person is not sentenced to the loss of rights (as mentioned above), he can return to his role in the municipality/county council.98

94

Kontroll- og konstitusjonskomiteen in Norwegian. Rena˚ (note 76), p. 89. 96 This applies for criminal offence as mentioned in sec. 151 to 154, 150(b), 171 to 174, 208, 353, chapter 27 or chapter 30 of the CC. Also, the stipulation that the charge or indictment shall be related to discharge of office or service for the municipality or county authority does not apply as regards criminal offences in sec. 151 to 154 CC. These relate to election offences. 97 Ot.prp.nr.42 (1991-1992) p. 144. 98 Overa˚ /Berndt (note 65), pp. 129-130. There is in addition a section on the suspension relating to civil officials, in the sec. 14 of the Civil Service Act. As this is not applicable to our case, this section is not further focused on. 95

216

A. Suominen

IV. Immunities and Other Limitations of Criminal Liability Article 5 of the Constitution states that ‘The King’s person is sacred; he cannot be censured or accused. The responsibility rests with his Council’. The King therefore has immunity. This is the only absolute immunity.99 Norway does not practice parliamentarian immunity as a general principle set out in the legislation in the meaning that consent must be given by the Storting in order to bring charges against one of its members.100 However, Art. 66 of the Constitution regulates the position of members of the Storting. Pursuant to this: Members on their way to and from the Storting, as well as during their attendance there, shall be exempt from personal arrest, unless they are apprehended in public crimes. Nor may they be called to account outside the meetings of the Storting for opinions expressed there. Everyone shall be bound to conform to the rules of procedure therein adopted.101

This article provides a limited freedom of responsibility, in other words a functional immunity for members of the Storting. First of all, the exempt from personal arrest only applies if the member is not apprehended in public crimes or when it is clear that the member has committed an offence, such as drunk driving.102 Second, the freedom of expression is especially safeguarded.103 The freedom of responsibility goes a long way in respect of the member’s opinions. Charges or claims for damages cannot be brought for members’ opinions that have been made in the Storting. This aims naturally at safeguarding the debate in the Storting, and it covers opinions expressed also in committees and written statements issued by the Storting.104 Third, the rules and procedure referred to in the article refers to the Rules of Procedure of the Storting. In its Art. 38, inappropriate behaviour or forms of address during the debates are not allowed. If a member would act contrary to this, the President of the Storting can issue a warning, and as a final resort, the President can make a proposal to vote to exclude the person for the remainder of the day (based on Art. 42 of the same Rules of Procedure).105 99

Smith (note 3), 239-240, also p. 114, where he comments on the peculiarity related to this immunity and the ICC. The ICC statute prohibits the use of immunity for Heads of State, the Norwegian solution was to interpret the Art. 5 of the Constitution in light of the current requirements, and the ratification did not then require an amendment of the article. This seems to be a somewhat overly pragmatic solution. 100 The lack of this parliamentarian immunity should of course be viewed in the light of the competence of the Norwegian Court of Impeachment, see infra V. 101 See further the European Commission for democracy through law (Venice Commission), Report on the scope and lifting of parliamentary immunities, Strasbourg, 14 May 2014, Study No. 714/2013. 102 Fliflet (note 91), p. 282. 103 See also more generally ECtHR case of Kara´csony and others v. Hungary, Applications nos. 42461/13 and 44357/13, judgment of 17.05.2016. 104 Fliflet (note 91), p. 283 and Smith (note 3), pp. 210-211. According to Andenæs/Fliflet (note 77), pp. 161-163, however, discussions, e.g., in the halls of the Storting are not covered. 105 See further Smith (note 3), pp. 215-216 on the Rules of Procedure.

Criminal Liability of Political Decision-Makers in Norway

217

It is further to some extent unclear whether Art. 66 of the Constitution exempts from the case being taken to the Court of Impeachment. Taking into account that the use of Art. 66 would then make less sense, as the case would follow Art. 86 of the Constitution, it seems unlikely, but the matter is not completely clear, and the responsibility pursuant to Art. 86 is not compatible with the wording of Art. 66.106

V. Special Courts and Special Procedural Requirements For ‘normal’ criminal offences, elected persons are responsible for their behaviour just as other persons (with the exceptions already mentioned). When it comes to politicians, the Norwegian system differs between elected persons and others as their liability as regards constitutional duties falls under the Court of Impeachment.107 According to Art. 86 of the Constitution, the Court of Impeachment pronounces judgment in the first and last instance in proceedings brought by the Storting against the members of the Government, of the Supreme Court or of the Storting for criminal or other unlawful conduct in cases where they have breached their constitutional obligations (paragraph 1). It further states that the specific rules concerning indictment by the Storting in accordance with the article shall be determined by law. However, the limitation period for the institution of indictment proceedings before the Court of Impeachment may not be set at less than 15 years. This article firstly states that the Court of Impeachment is the first and last instance; there is no possibility for appeal. It secondly includes not only members of the Government and the Storting but also members of the Supreme Court.108 Thirdly, it applies in regard to their constitutional obligations, but not for other offences. Constitutional duties are not as such defined, but this covers duties following from the Constitution or from constitutional customary law (konstitusjonell sedvanerett).109 It is not completely clear what these constitutional duties include.110

106

Andenæs/Fliflet (note 77), p. 163. The rules on the Court of Impeachment do not apply for municipal level politicians. 108 As the members of the Supreme Court are not relevant for the case, they will not be focused on here. 109 Document no. 19 (2003-2004) Rapport til Stortingets presidentskap fra utvalget til a˚ utrede alternativer til riksrettsordningen, Avgitt 1. juni 2004, p. 10, also Smith (note 3), p. 284. 110 See also Smith (note 3), pp. 282-286. 107

218

A. Suominen

1. Applicable Offences Guidance on such constitutional duties can be found from the Act relating to punishment for offences indicted before the Court of Impeachment (the Accountability Act).111 The second chapter of this Accountability Act regulates the liability of members of the Government and the Storting. Firstly, members of the Government may be punished by fines or imprisonment of up to 5 years for an act or omission that causes any the following: (a) a matter requiring a decision of the Storting but was decided on without the consent of the Storting, (b) a decision of the Storting not to be implemented or that an act is committed contrary to a decision by the Storting and (c) minutes, documents or information that are to be conveyed to the Storting but are withheld or state accounts not submitted to the National Audit as laid down in the Constitution (sec. 8). Secondly, failing to submit information or wilfully giving incorrect information that is relevant to the matter when being discussed is punishable with a fine or imprisonment of up to 5 years for a member of the Government (sec. 9(1)) and also for a member of the Storting (sec. 13). Also, a member of the Council of State who fails to fulfil his duty to inform (as mentioned supra, III.2.) can be punished with a fine or imprisonment of up to 2 years (sec. 9 (2)). Perhaps some of these would become relevant for the actions of M in our case, but these seem rather far-fetched from our starting point (mainly if a member of the Government decides to build the bridge but the financing of it is not in order or that incorrect information is given). Thirdly, if a member of the Government causes or contributes to the unjustifiable use of the state funds or other funds or in another way demonstrates lack of judgment or negligence in his occupation, this is punishable with a fine or imprisonment of up to 2 years (sec. 10). This is perhaps another aspect for our case: if M would have caused the state funds not to be justifiably used and especially if M had caused this unjustified use through withholding information that should have been presented to the Storting, the conditions, although perhaps also far-fetched here, could become relevant. Fourthly, if a member of the Council of State in any other way than mentioned in the Accountability Act acts or omits and causes something conflicting with the Constitution or Norwegian legislation, this is punishable with a fine or imprisonment of up to 10 years (sec. 11(1)).112 This section seems to cover also acts infringing on the Norwegian Criminal Code, which makes the connection with the above-mentioned offences (especially misuse of public office and misconduct)

111 Lov om ansvar for handlinger som pa ˚ tales ved Riksrett (ansvarlighetsloven), LOV-1932-02-051. As is stated in the document no. 19 (2003-2004) p. 14, most offences falling under the competence of the Court of Impeachment, are considered found in this act. 112 Although admittedly very vague in its formulation, this section has been considered in line with the legality principle, see further document no. 19 (2003-2004) pp. 33-34.

Criminal Liability of Political Decision-Makers in Norway

219

interesting.113 Fifthly, if a member of the Storting without a lawful excuse fails to attend the Storting when it convenes, this is punishable with a fine. The same applies for failing to participate in the proceedings in the Storting or not complying with the rules of procedure in the Storting (sec. 12). There is a further section on a member of the Government not resigning after a vote of no confidence pursuant to Art. 15(1) as well as (3) of the Constitution. If the member does not resign, this is punishable with loss of office and fines or imprisonment of up to 10 years (sec. 15). Sixthly, and interestingly, if a member either of the Government or the Storting commits an offence pursuant to sec. 209 CC, this is punishable with a fine or imprisonment of up to 5 years. Section 209 CC regulates a duty of secrecy. If a person reveals information contrary to the duty of secrecy based on a statutory provision or regulation or uses such information with the intent to have for himself or someone else an unlawful gain, this is punishable with a fine or imprisonment of up to 1 year.114 The duty of secrecy can be issued by the Government or the Storting and its relation to the Freedom of Information Act and its regulations on exceptions from the public access to documents.115 Unless otherwise regulated, all these offences are punishable also when negligently committed (in addition to when committed with intent), and this has been considered relevant, as many of the offences are omission, and intent can be difficult to prove in such situations. The same applies for withdrawal of information or other similar offences.116 There are some further rules on sanctions relating to the Court of Impeachment. Section 3 of the Accountability Act states that for each criminal offence prosecuted before the Court of Impeachment, the loss of public office can be sentenced instead of the punishment or in addition to the punishment laid down. In addition to the punishment that the person is sentenced, also a loss of the person’s right to vote in public affairs and loss of access to gain public office can be imposed for the time frame the court decides.117

Whether a person could be sentenced in the Court of Impeachment for ‘normal’ criminal offences, and for example for misuse of public office, if the conditions of the offences in the Accountability Act are found not to be fulfilled, is to some extent unclear, and the document no. 19 (2003-2004) does not give a clear answer on this, although this seems to be possible to some extent. The starting point is, however, that offences found in the Criminal Code go before normal courts, and in cases where basis can be found in the Accountability Act, the case goes to the Court of Impeachment. 114 The preliminary works Ot.prp.nr.22 (2008-2009) pp. 406-407 and NOU 2002:4 pp. 320-321 do not specifically comment on this sections’ relevance for the Accountability Act. 115 Lov om rett til innsyn i dokument i offentleg verksemd (offentleglova), LOV-2006-05-19-16, Act relating to public access to documents in the public administration, (Freedom of Information Act). See T. Eckhoff, Var det straffbart a˚ offentliggjøre LORAN C-innstillingen? Kritisk Juss (1978), pp. 18-25 for details. 116 Sec. 4 Accountability Act and document no. 19 (2003-2004) pp. 25-26. 117 These sanctions could also have been dealt with supra under III.1., but as this only applies in cases before the Court of Impeachment, these fit better here systematically. 113

220

A. Suominen

2. Resemblance to Offences in the Criminal Code The applicable offences pursuant to the Accountability Act also to some extent resemble or mimic offences in the Norwegian Criminal Code (especially those mentioned above). It seems that the offences falling under the Court of Impeachment and the Accountability Act are primary due to the lex specialis position of this act. The provisions of the Criminal Code apply in addition to these.118 It is further, in the preliminary works, commented on that in most situations of, e.g., corruption or breach of a duty to secrecy, the ‘normal’ criminal liability before normal courts are relevant. Even if a member of the Government does this in his capacity as a member of the Government, it does not necessarily have to be within his constitutional obligations. It cannot, however, be ruled out that this act would breach a constitutional obligation, so it depends on the circumstances of the case whether the Court of Impeachment is competent or not. This Court can, however, also hear cases based on the Criminal Code itself, when these are connected to offences breaching constitutional obligations.119 It is also possible that a corruption offence is committed under such circumstances, as withholding information, but where the act itself is taking bribes for influencing the state budget, the corruption case can then apparently be brought before the Court of Impeachment.120

3. Applicable Procedure The Court of Impeachment hears the case as the first and last instance, meaning that there is no possibility for appeal.121 Possible cases for the Court of Impeachment are first assessed by the Scrutiny and Constitutional Committee in the Storting. The committee may do this on its own initiative or at the request of external instances. Support from one-third of the members is sufficient for the committee to assess a possible impeachment case. In order to bring charges, a simple majority of votes in a plenary session of the Storting is required. In situations where the Committee finds that the case is not for the Court of Impeachment, it may forward the case to the competent prosecutorial agency. In other situations, the Committee has three options: to dismiss the case, to prosecute the case or to ask the Accountability Committee (ansvarskommisjonen) to further investigate the case.122

In the document no. 19 (2003-2004) this seems a given starting point, at p. 8: ‘Straffelovens alminnelige regler supplerer ansvarlighetsloven og gjelder sa˚ledes i tillegg til de forhold som er omhandlet i ansvarlighetsloven.’ 119 Document no. 19 (2003-2004) pp. 23-25. 120 Document no. 19 (2003-2004) pp. 23-25. 121 Art. 86(2) of the Constitution. 122 https://www.stortinget.no/no/Stortinget-og-demokratiet/Arbeidet/Riksrett/ (last visited 28 April 2016). The Parliamentary committee is an external preliminary investigation unit that can be used for possible cases before the Court of Impeachment. 118

Criminal Liability of Political Decision-Makers in Norway

221

The Court of Impeachment is composed of five high court judges and six laypersons. The laypersons are elected by the Storting. They cannot be members of the Government or the Storting and are elected for 6 years at the time.123 Article 86 of the Constitution states that the judges of the Court of Impeachment comprise six members elected by the Storting and the five longest serving, permanently appointed members of the Supreme Court, including the President of the Supreme Court. The Storting elects the members and their deputies for a period of 6 years. A member of the Government or of the Storting may not be elected as a member of the Court of Impeachment. In the Court of Impeachment, the President of the Supreme Court shall preside. Any person sitting in the Court of Impeachment who has been elected by the Storting shall not lose his seat in the Court if the period for which he is elected expires before the Court of Impeachment has concluded the proceedings in the case. Nor shall a Justice of the Supreme Court who is a member of the Court of Impeachment lose his seat in the Court, even if he resigns as a member of the Supreme Court.124 The more detailed procedural rules for the cases before the Court of Impeachment are regulated in the Act on the procedure for the Court of Impeachment.125

4. Some General Comments The Court of Impeachment and its rules were amended in 2007 into their current form.126 However, the Court of Impeachment has not been used since 1926, which for some might entail a de facto immunity for those covered under Art. 86 of the Constitution.127 All in all, there have been eight cases, where six of these were between the years 1814 to 1845.128 There have been some discussions more recently on whether or not specific cases should be raised before the Court of

123

https://www.stortinget.no/no/Stortinget-og-demokratiet/Arbeidet/Riksrett/ (last visited 28 April 2016). 124 Art. 86(3) and (4) of the Constitution. See also document no. 19 (2003-2004) pp. 37-45. 125 Lov om rettergangsma˚ ten i riksrettssaker [riksrettsrettergangsloven], LOV-1932-02-05-2. 126 There have been several amendments and the procedure has been criticised and discussed a lot, see document no. 19 (2003-2004) pp. 11-12. The matter of a Court of Impeachment can of course be questioned also based on arguments stemming from the right to a fair trial under Art. 6 ECHR, such as an independent and impartial tribunal. See further on this the ECtHR decision in NinnHansen against Denmark, Application no. 28972/95, of 18 May 1999. 127 E. Smith, Alternativer til Riksretten, Nytt norsk tidsskrift nr. 2 2000 p. 199, and especially C.A. Fleischer, Bør vi ogsa˚ kunne straffe nasjonale politikere, Folkefiende? 70 a˚r med Tor Erling Staff, 2002 (Kagge), pp. 199-215. 128 Document no. 19 (2003-2004) p. 9.

222

A. Suominen

Impeachment, such as for the cases of placing the (then) new airport at Gardermoen in Oslo.129 Although the possibility is there, members of the Government and the Storting are not often prosecuted for their (possible) offences committed in office when they are exercising their constitutional obligations. This means that the Court of Impeachment, in practice, could be considered creating a forum immunity for members of the Storting and Government.130 Now, of course this does not mean that the members of the Government and Storting go unpunished. Contrary to the belief that they are immune, when the alleged offence committed is not related to their constitutional obligations, normal criminal responsibility can actualise. There are of course numerous possibilities, and many of the above-mentioned offences might become relevant in our case. Especially misuse of public office, fraud or corruption could become relevant, depending on the details of the case. If the person M would have been a member of the Government or the Storting when he committed the offence, and it would not be considered in the exercise of his constitutional obligations, he could face normal criminal proceedings.

VI. Further Particularities in Proceedings Against Political Decision-Makers Section 209 CC regulating a duty of secrecy was mentioned above. In addition to its applicability through the Accountability Act for members of the Government and the Storting, it is also relevant for members of county/municipality councils. It can therefore actualise in relation to information given in confidentiality in municipality/county council meetings and also in meetings in the Storting and the Government. It can also be important to note that the Norwegian criminal procedure applies the principle of opportunity when it comes to prosecution in general. This means that the prosecutors have competence to deal with cases at a given hierarchical level. Especially relevant for our case, the prosecutors have the authority to decide whether or not a case should be brought to court.131 The parties to the case can, however, lodge a complaint against a prosecutor’s decision to the higher-level prosecutor.132 The higher-level prosecutor can then order the case to be reopened

129

Document no. 18 (2000-2001) Rapport til Stortinget fra kommisjonen som ble nedsatt av Stortinget for a˚ foreta en bred gjennomgang av utredning, planlegging, prosjektering og utbygging av ny hovedflyplass for Østlandet og Gardermobanen. 130 Smith (note 3), pp. 211-212. 131 Sec. 69 of the Criminal Procedure Act, Lov om rettergangsma˚ ten i straffesaker (Straffeprosessloven), LOV-1981-05-22-25. 132 Sec. 59a of the Criminal Procedure Act.

Criminal Liability of Political Decision-Makers in Norway

223

or closed or can even take over the handling of the case. The higher-level prosecutor can also reverse the decision of the lower-level prosecution authority on his own initiative.133 Acknowledgements The author has received help and guidance from, among others, Jan Fridthjof Bernt, Bjørn Henning Østenstad, Eivind Smith and, especially, Eirik Holmøyvik and Jørn Jacobsen, who both have read the manuscript and commented on it, for which she is very grateful. All possible errors are, however, only the author to blame.

Annika Suominen is Associate Professor at the Faculty of Law, University of Bergen.

133

Sec. 75(2) of the Criminal Procedure Act.

Criminal Liability of Political Decision-Makers in Spain Manuel Maroto Calatayud

I. Preliminary Remarks As in any other liberal democracy, in Spain the criminal law is formally expected to stay away from those areas of social life that are conceived as part of the legitimate exercise of politics. Criminal law should be the last resort to be used by the State when facing a particular social problem; particularly, it should not intervene when the risk of producing a disproportionate chilling effect on democratic political rights and liberties exists. As in other countries with a recent dictatorial past, the inherent potential of criminal justice to serve as an instrument for political purposes is a historical fact and not merely a theoretical risk.1 The political role fulfilled by the criminal justice system during Franco’s regime still resonates in Spanish legal culture. If, to this civil-rights-oriented preventions against criminalisation, we add the strategic considerations of political elites leaning towards limiting the scope of strong mechanisms of legal and political accountability, we might be surprised to learn that criminal law remains quite a central cultural feature of Spanish politics. While clearly outside the scope of this chapter, the expansion of terrorism and public order offences, which in Spain de facto criminalise whole areas of political life and exclude them from the safe house of legitimate institutional politics,

1

On the use of criminal procedures for political ends in general, and on the Spanish criminal justice system during Franco’s dictatorship, see: O. Kirchheimer, Political Justice: The Use of Legal Procedure for Political Ends, 1961 (Princeton University Press, Princeton); G. Portilla Contreras, La consagracio´n del Derecho Penal de autor durante el franquismo. El Tribunal Especial para la Represio´n de la Masonerı´a y el Comunismo, 2010 (Comares, Granada); I. Tebar Rubio-Manzanares, ‘El ‘derecho penal del enemigo’: de la teorı´a actual a la pra´ctica represiva del ‘Nuevo Estado’ franquista’, in: 13 Pasado y Memoria: Revista de Historia Contempora´nea, 2014. M. Maroto Calatayud (*) University of Castilla-La Mancha, Toledo, Spain e-mail: [email protected] © Springer International Publishing AG 2017 F. Zimmermann (ed.), Criminal Liability of Political Decision-Makers, DOI 10.1007/978-3-319-52051-3_11

225

226

M. Maroto Calatayud

constitutes the most obvious exception to the a priori rejection of the resort to criminal law in the political arena. Another area where criminalisation plays a prominent role in Spanish politics is that of corruption: corruption-related criminal prosecutions (and its media framing) stand as one of the main ways of signalling the blurred contours of what constitutes legitimate politics and where plain corruption begins. These boundaries are certainly changing and evolving: their definition is a social and political process, closely linked to the transformations of Spain with the financial and economic crisis that started in 2008. In that last regard, it is very important to note the relevance that budget and deficit control policies gained in the Spanish legal system during the crisis: among other legal reforms, the Constitution itself (Art. 135) was amended in 2011 to guarantee that international debtors would be paid back by Spain with preference over any other potential interest. As in other countries of Southern Europe, international pressure on budgetary control has increasingly pushed Spanish fiscal policy beyond national political discretion, resulting in the imposition of strict austerity-based anti-inflationary economic theories and the penalisation, if not the complete forbidding, of demand-side keynesian approaches that could serve anti-cyclical purposes in the crisis. It was in this precise context that, in 2012, an interesting doctrinal and political debate took place regarding a proposal announced by the conservative government on criminalising the mismanagement of public funds by public officials, understood as any infraction of budgetary limits or of the new legal requirements of deficit control and financial stability for public entities. The initiative was subject to severe criticism from those who understood it as an attempt to send a distorted picture of the origins of the crisis in Spain, turning judges into managers of the economy and guardians of the deficit goals.2 Such a provision would criminalise, according to its critics, what are rather budget-related administrative infractions, or even legitimate political approaches regarding public spending.3 After these attacks, it was not finally included in the reform of the Spanish Criminal Code (CC from here onwards) passed in 2015.

1. Political, Legal and Criminal Responsibility In Spain, we find different regimes of legal responsibility for cases such as the one we chose to illustrate our topic. The main ones are accounting responsibility (a type of civil responsibility that obliges those who harm public finances to reimburse the amount equivalent to the damage), administrative responsibility (for infractions of El Paı´s, 9 February 2012, ‘No malgastara´s dinero pu´blico’, www.elpais.com. Against the proposal of the Conservative Party, the Social Democratic Party argued that ‘it is not the same to engage in deficit to maintain [. . .] the public provision of healthcare, education, aids to families with dependants, and social welfare for people in difficulties, as to engage in deficit to organise a Formula 1 race or to build pharaonic public works’, see El Paı´s, 18 January 2012, ‘El PSOE arremete contra la ‘ocurrencia’ del ministro de Hacienda’, www.elpais.com. 2 3

Criminal Liability of Political Decision-Makers in Spain

227

administrative legislation, such as rules on public procurement or budgetary regulations) and penal responsibility. Only very scarcely has Spanish criminal law dealt with cases of reckless management of public funds, for two main reasons: a negligent modality is not provided for the offences most directly concerned (embezzlement, abuse of office), and the serious infraction of budgetary provisions and proceedings is often considered in the case law as a necessary element of the crime. An older version of the Criminal Code (the pre-constitutional 1973 version) did provide for a negligent crime of embezzlement, but this modality was removed from the Code in 1995.

2. Public Finance and the Space for Political Discretion When dealing with the potential criminal liability for decisions taken in the exercise of political functions, it is important to note that the Spanish Constitution provides for both the legally binding effect of the Constituci on Espa~ nola (Spanish Constitution—Const. from here onwards) and all legal provisions for all public authorities and, especially, the explicit prohibition of arbitrary public action: Art. 9 Const. 1. Citizens and public authorities are bound by the Constitution and all other legal provisions. 2. It is the responsibility of the public authorities to promote conditions ensuring that freedom and equality of individuals and of the groups to which they belong are real and effective, to remove the obstacles preventing or hindering their full enjoyment, and to facilitate the participation of all citizens in political, economic, cultural and social life. 3. The Constitution guarantees the principle of legality, the hierarchy of legal provisions, the publicity of legal statutes, the non-retroactivity of punitive provisions that are not favourable to or restrictive of individual rights, the certainty that the rule of law shall prevail, the accountability of public authorities, and the prohibition of arbitrary action of public authorities.

In accordance with the Constitution, the public administration is defined as necessarily and objectively serving the general interest, as well as the principles of efficiency, hierarchy, decentralisation, full subordination to the law, impartiality, etc.: Art. 103 Const. 1. The Public Administration shall serve the general interest in a spirit of objectivity and shall act in accordance with the principles of efficiency, hierarchy, decentralization, deconcentration and coordination, and in full subordination to the law. 2. The bodies of State Administration are set up, directed and coordinated in accordance with the law. 3. The law shall lay down the status of civil servants, the entry into the civil service in accordance with the principles of merit and ability, the special features of the exercise of their right to union membership, the system of incompatibilities and the guarantees regarding impartiality in the discharge of their duties.

228

M. Maroto Calatayud

Art. 106 Const. 1. The Courts shall check the power to issue regulations and ensure that the rule of law prevails in administrative action, and that the latter is subordinated to the ends which justify it. [. . .]

It is important to note that while government and legislative activities are considered to have a different legal nature than administrative activities, they are all subject to the Constitution and the law, which includes the possibility of judicial review of these decisions. This has not been the case historically in Spain: during Franco’s dictatorship, political acts, understood as something distinct to administrative acts, could not and for sure were not reviewed whatsoever by the judiciary or other public powers. This was, for example, used to grant immunity against any claim against state acts of political repression.4 The coming of democracy to Spain implied a progressive abandonment of the concept of political act (a concept of French origin, where it has developed in a similar way) as a manifestation of discretional powers not susceptible to be challenged or reviewed in administrative courts. This has been a long debate among Spanish administrative law scholars,5 which still resonates into the present in relation to the criminal responsibility of political figures, as we will later describe in relation to the offence of abuse of office.6

3. Distribution of Competences While Spain is not a federal system, the Constitution enshrines a decentralised distribution of political and administrative competences among the central State, the self-governing communities (Comunidades Aut onomas, the equivalent to regional states in a federal system) and the local government (provinces and municipalities). While the national Parliament and the parliaments of the Comunidades Aut onomas are the only elected public bodies that can pass legislation, and therefore the only bodies considered to be part of the legislative branch, local governments are also democratically elected and have an important degree of 4 A. Embid Irujo, ‘La justiciabilidad de los actos de gobierno (de los actos polı´ticos a la responsabilidad de los poderes pu´blicos)’ in Estudios Sobre la Constitucio´n Espa~ nola. Homenaje el Profesor Eduardo Garcı´a de Enterrı´a 1991 (Civitas, Madrid), p. 2702; J. I. Lacasta Zabalza, ‘La idea de la responsabilidad en la actual cultura constitucional espa~ nola’, 10 Derechos y Libertades, 2001. 5 E. García de Enterría, ‘La lucha contra las inmunidades del poder en el Derecho administrativo (poderes discrecionales, poderes de gobierno, poderes normativos’, in 38 Revista de Administracio´n Pu´blica, 1962; B. Marcheco Acu~ na, ‘El control jurisdiccional de los actos polı´ticos del Gobierno en el derecho espa~nol’, 2 Revista Internacional de Estudios de Derecho Procesal y Arbitraje, 2015. 6 A. Herzog, ‘El “revival” de la doctrina de los actos polı´ticos exentos de control judicial: el Auto del TS inadmitiendo el recurso contra nombramientos CGPJ’, www.hayderecho.com, 8 May 2014; F. G. G omez de Mercado, ‘El control de los actos polı´ticos del Gobierno (I)’, www.hayderecho. com, 24 March 2013.

Criminal Liability of Political Decision-Makers in Spain

229

regulatory discretion through local ordinances and other administrative instruments. Article 140 Const. explicitly provides for the autonomy and self-government of municipalities: Art. 140 Const. The Constitution guarantees the autonomy of municipalities. These shall enjoy full legal entity. Their government and administration shall be vested in their Town Councils, consisting of Mayors and councillors. Councillors shall be elected by residents of the municipality by universal, equal, free, direct and secret suffrage, in the manner provided for by the law. The Mayors shall be elected by the councillors or by the residents. The law shall lay down the terms under which an open council of all residents may proceed.

At the local level, the most important administrative bodies are municipal governments, with a growing set of competences and functions, including matters of urban development. The legal recognition of local self-government in the area of urban development had an important role on the rise of a model of speculative economy built around extracting rents from the promotion of housing projects, public works, etc. and therefore on the public debt crisis and spread of local corruption.7 While the central State retains certain powers in framing the general guidelines on urban planning,8 it is the regional self-governing communities that have the power to legislate on issues such as town and country planning and housing, public works of interest to the self-governing community within its own territory or railways and roads whose routes lie exclusively within its territory (Art. 148 Const.). The law regulating local government, recognising the right to participate in urban development as a part of the general right to local self-government, establishes that municipalities are competent in regulating urban and housing planning and others. Mayors and municipalities therefore tend to play a determinant role in urban planning, which explains that a very important part of criminal prosecutions for corruption-related offences in Spain have focused on local governments and municipal managers. However, projected bridges of a certain importance usually connect to the National Network of Railroads. In that case, the decisions are made by the Ministerio de Fomento and usually funded and managed by the central State, which also has the option to coordinate its competences with the regional and local governments.9

F. Jime´nez S anchez, ‘Boom urbanı´stico y corrupcio´n polı´tica en Espa~ na’, 14 Mediterra´neo Econo´mico, 2008, p. 263, 268; J. L. Diez Ripolle´s/A. G omez Ce´spedes, ‘La corrupcio´n urbanı´stica: Estrategias de ana´lisis’, 6 Revista Espa~nola de Investigacio´n Criminolo´gica, 2008. 8 J. Barnes, ‘La distribucio´n de competencias legislativas en materia de urbanismo y vivienda’, in 79 (2) Revista Vasca de Administracio´n Pu´blica, 2007; A. Mel on Mu~ noz, ‘Algunas consideraciones sobre la distribucio´n y el ejercicio de competencias en materia de urbanismo y ordenacio´n del territorio’, in: Olaizola Nogales et al. (eds.), Corrupcio´n y urbanismo, 2008 (Universidad de Deusto, Bilbao). 9 This was the case, for example, of the recent building of the Puente de la Constituci on de C adiz, one of the biggest bridges in Europe, with a cost of more than 500 million euros, with little participation of the local governments of the cities involved. 7

230

M. Maroto Calatayud

Summing up, the question regarding who would be competent to decide on the particular case of building a bridge will depend most importantly on the type of road or street the bridge would be built on: the State (Ministerio de Fomento), regional (Consejero de Fomento) or province/local authorities (Diputaciones Provinciales, Alcaldes and Plenos Municipales) will be responsible depending on that factor.

II. Comparative Case Study 1. Part 1: Criminal Liability for Bad Political Decisions There are several offences in Spanish criminal law that can be relevant to analyse the criminal law significance of the described case. Most of them are included under Title XIX (Offences against the Public Administration) of the special part of the Code.10

a) Embezzlement (Malversaci on) The regulation of embezzlement in the Spanish Criminal Code was significantly changed in the 2015 reform. Before that reform, Art. 432 CC punished the authority or public officer who, for profit, stole public funds or property he had under his charge due to his duties. Article 433, on the other hand, provided for considerably less severe penalties for those authorities or public officers who put the funds or assets placed under their charge due to their duties to uses other than the pursue of public goals. After the reform, embezzlement is formulated as equivalent to the offences of unfair administration (former Art. 295 CC) and misappropriation (former Art. 252 CC) but affecting public instead of private assets. The treatment given to embezzlement of both public and private assets is therefore now unified under the same offence as it happens in countries such as Germany and Austria with the Untreue offence. These articles read as follows: Art. 252 CC 1. The penalties of Article 249 or 250, as appropriate, shall be imposed on those with the powers, emanated from law, commissioned by the authorities or assumed through a legal act, to administer somebody else’s property, when they abuse these powers by exceeding them and thus cause harm to the administrated assets.

10

The Spanish Criminal Code was substantially amended in 2015 (Ley Org anica 1/2015). The text of the articles quoted in this chapter correspond to the official translation to English published in 2013 by the Ministry of Justice, but those that have been modified since then have been updated here according to the new wording. See: http://www.mjusticia.gob.es/cs/Satellite/Portal/es/ servicios-ciudadano/documentacion-publicaciones/publicaciones/traducciones-derecho-espanol.

Criminal Liability of Political Decision-Makers in Spain

231

2. If the financial harm caused to the assets does not amount to more than 400 euros, a fine of one to three months shall be imposed. Art. 253 CC 1. The penalties of Article 249 or 250, as appropriate, shall be imposed on those who, to the detriment of another, appropriate to himself or to a third person money, belongings, valuables or any other moveable property they have received in deposit, in trust or for administration, or by any other title that produces the obligation to deliver or return them. 2. If the amount appropriated does not exceed 400 euros, a fine of one to three months shall be imposed. Art. 432 CC 1. The authority or public officer who commits on public funds or property the offence described in [Article11] 252 shall incur a sentence of imprisonment from two to six years, special barring from public employment and office and from the right of passive suffrage for six to ten years. 2. The same penalty shall be incurred by the authority or public officer who commits the offence described in [Article] 253. 3. Imprisonment from four to eight years and absolute barring from ten to twenty years shall be imposed when any of the following circumstances concur in the conducts foreseen in the two previous paragraphs: a) Serious damage or hindrance is caused to public service; b) The financial harm caused or the value of the embezzled goods or property amounts to more than 50.000 euros. If the financial harm caused or the value of the embezzled goods or property amounted to more than 250.000 euros, the penalty shall be imposed in its upper half, and the higher in one degree may be applied. Art. 433 CC The conducts foreseen in the preceding [Article] shall be punished with imprisonment from one to two years and a fine from three months and one day to twelve months, and in all cases special barring from public employment and office and from the right of passive suffrage for one to five years, when the amount embezzled does not reach the sum of 4,000 euros.

The new offence of embezzlement therefore requires two main objective elements: (a) a breach of the duty to take care of the assets under custody, expressed in acts that exceed the legitimate powers of administration; and (b) the causation of a financial harm. While the description of the subjective elements of the offence is almost inexistent, it is particularly remarkable that the new wording of the offence does apparently not involve that the perpetrator acts with the intention to obtain a personal benefit ( animo de lucro), something that was explicitly required in the former version of embezzlement of public funds.

11

In the Spanish original text, the single provisions of the Criminal Code are called Artículos. The translation used here, however, sometimes refers to them as ‘Sections’. To avoid misunderstandings, ‘Article’ shall be used instead here.

232

M. Maroto Calatayud

aa) Exceeding the Powers of Administration: The Importance of Budgetary Rules The determination of which kind of decisions would be beyond the scope of the legitimate administration of public assets will usually depend on one main question: whether the rules governing the budgetary and administrative proceedings applicable to the use of the funds12 were respected or not. When the decision to engage in some public spending or investment is made without proper consideration to the budgetary provisions that should have ruled the process, the decision could easily be considered exceeding the legitimate powers of disposition of public property. And, when that disposition causes a financial harm, it will also be constitutive of embezzlement. On the contrary, if the investment is harmful or even absurd but the decision was taken in accordance with the budgetary regulations, there will be little room for criminal responsibility. The budgeted wasting of resources would not originate criminal charges for embezzlement. That is applicable to the bridge example: as far as the minister/mayor was respectful of the rules governing budget and financial planning, his/her decision, as financially harmful and unreasonable as it may be, would not entail criminal liability.13

bb) Causation of a Financial Harm The most common doctrinal interpretation of the harm requisite defends that it must be evaluated according to strictly economic criteria: the harm would be the reduction in economic value suffered by public assets as a consequence of the decision that constitutes the core of the embezzlement. However, determining whether there was or not a breach of the rules governing budget decisions might be more closely linked to the requirement of financial harm than it would apparently seem to. In those cases in which the decision was taken without any properly made previous budgeting process, the investment will

12 C. Martell Pe´rez-Alcalde, in: Quintero Olivares (ed.), Comentario a la reforma penal del 2015, 2015, (Tirant, Valencia), p. 693. 13 After the 2015 reform, it is still to be seen what importance is given to budgetary provisions. With the previous regulation, it was common to require the violation of concrete budgetary proceedings and not just the manifest breach of general principles of efficiency. Since the new regulation is basically similar to the German offence of Untreue, there seems to be more room for considering clearly wrong decisions under the scope of the crime. But it is likely that concrete budgetary provisions (e.g., on the appropriate evaluations, reports, projects, approvals, etc.) will still be required. Historically, there has been not much regard for the breach of general principles of efficiency as sufficient basis for embezzlement. Here is a particularly shocking example: in 2009, the Supreme Court understood that selling for less than 1 euro half of the stock of the Municipal Funerary of Madrid, valued in more than 7.5 million euros, was not embezzlement; even if the proceedings were clearly incorrect, since that value never really got to be part of the public assets, that was not considered diversion of public funds (but mere ‘lost profits’ beyond the scope of embezzlement).

Criminal Liability of Political Decision-Makers in Spain

233

necessarily result in the unilateral and arbitrary reduction of material resources that can be administered for public purposes. If this reduction implied the resort to indebtment by the public administrations affected, the ability to adequately plan and fund public policies in the future might be understood as severely affected.14 Given the novelty of the regulation, it is still to be seen if the case law considers this kind of limitations not only socially and politically harmful but also financially damaging in the sense required by the offence of embezzlement. The position defended by authors such as Nieto Martı´n15 or De La Mata16 goes beyond the traditional understanding of embezzlement to include this kind of results under the scope of the offence, in consideration of the social and legal relevance of protecting the public power to properly administer the public funds in the future. The object of protection would not only be the public money and assets as an economic reality, but also the sovereignty over budgeting that public powers are invested in, and its democratic and legally controlled nature.17 In those cases where the decision entails a personal benefit for the politician or public officer, it will be easier to defend that the harm requirement is fulfilled: the pursue of a financial advantage by the decision-maker through an investment that does not produce any public financial or social betterment will usually mark the existence of intent and, at the same time, the objectively harmful nature of the decision. The financially harmful nature of the reception and payment of advantages has been the object of an interesting debate in the Spanish legal doctrine, particularly in relation to the offences of unfair administration/misappropriation and private corruption. As usually remarked in regard to harmful effects of the reception of bribes by the decision-maker, it will be common in practice for those payments to be compensated through an equivalent rise in the total price of the contract or operation (the so-called kickback), so its consideration as a financial harm would also be easy to reach.18 The costs of corruption are indeed a burden that is frequently and ultimately diverted towards citizens and the public administration;

14 A. Nieto Martín, ‘Despilfarro pu´blico y Derecho Penal’, www.almacendederecho.org, 3 September 2015; C. S anchez Mato, ‘Endeudamiento urbano. La insostenibilidad social de la deuda municipal de Madrid’, 130 Papeles de Relaciones Ecosociales y Cambio Global, 2015. 15 Nieto Martín (note 14). 16 N. De La Mata Barranco, ‘La gestio´n irregular del presupuesto pu´blico y la malversacio´n’, www.almacendederecho.org, 7 March 2016. 17 It is interesting to contrast those views with the fact that national economic sovereignty and democratic control of public finance is in itself, however, very limited in the context of the European Union and of multilateral commercial agreements such as the TTIP. Monetary policies have been delegated to the Central European Bank, and the margin to decide on substantively different fiscal policies has been severely restricted in Southern Europe through the different treaties and the austerity-based agreements after the crisis. In such a context of strict deficit control, one of the differences between wasting the actually available money and resorting to debt seems to be that debt might entail different institutional sanctions, as well as the payment of interest rates and even an endless dependency on new indebtedness. 18 A. Gili Pascual, ‘Pago de comisiones en el a´mbito de los negocios y kick-backs: entre la administracio´n desleal, la apropiacio´n indebida y la corrupcio´n privada’, in Cuadernos de Polı´tica Criminal, 2013, 109, p. 95.

234

M. Maroto Calatayud

some authors have based on that empirical consideration their defence of the reception of bribes as an abstract risk of financial harm that should be specifically criminalised as a form of embezzlement.19 Summing up, the 2015 reform of the Criminal Code in Spain, by including public assets into the structure of the offence of unfair administration, seems to open the door to the prosecution for embezzlement of those conducts of overspending of public assets that are both harmful and decided about without properly respecting budgetary controls, thus expanding the scope of the offence in comparison to the previous malversaci on as was defined in the former Art. 432. The scope, however, remains limited, compared to the situation previous to the Code of 1995, which included an offence of diversion of funds to a different public goal (Art. 397 CC 1973) and, most importantly, a provision for negligent embezzlement (Art. 395 CC 1973). The limitations of the new offence are obvious: clear intent is needed, infraction of budgetary provisions will be considered necessary and the requirement of financial harm might well be interpreted from a purely economicaccounting perspective. According to De La Mata,20 this will probably end up limiting the scope of the offence only to those cases of embezzlement of public funds where the personal appropriation of the funds by the perpetrator cannot be sufficiently proved to charge him for the misappropriation of public funds offence provided for in Arts. 432(2) and 253 CC. This author defends the need for a functional concept of public funds and a redefinition of the object of protection to include exorbitant indebtedness, spending irregularities, unjustified discretional administration and the modification of budget provisions that are not clearly aimed at a legitimate public goal. That would obviously transcend the limits of the unbudgeted waste of resources set of cases to cover those situations of budgeted overspends without a social and economic logic. It does not seem likely, however, for that to become the mainstream position in the Spanish judiciary or legal doctrine. b) ‘Abuse of Office’ (Prevaricaci on) Art. 404 CC The authority or public officer who, being aware of the injustice thereof, were to hand down an arbitrary resolution in an administrative matter, shall be penalised with the punishment of special barring from public employment, office and from the right of passive suffrage for a term of nine to fifteen years

Abuse of office (or, according to the official translation into English of the Spanish Criminal Code, ‘perversion of the course of justice by civil servants’) is considered today as an offence affecting the proper functioning of the public

19 A. Nieto Martín, ‘La corrupcio´n en el sector privado (reflexiones desde el ordenamiento espa~ nol a la luz del Derecho comparado’, in 10 Revista Penal, 2002. 20 De La Mata Barranco (note 16).

Criminal Liability of Political Decision-Makers in Spain

235

administration, as opposed to the more traditional approach of conceiving the core of the conduct as a breach of official duties. While broad in its personal and substantive scope, there are several factors and elements of the crime that prevent abuse of office from being relevant in cases where the decision is fundamentally a risky political resolution.

aa) An Arbitrary and Unjust Resolution The requirement for the resolution to be arbitrary and unjust constitutes one of the first limitative elements when applying this provision of the Code. The case law has understood arbitrariness and injustice as synonymous terms that imply that the decision taken cannot be justified by any possible interpretation of the law admitted in the legal system. It should be not just an erroneous, mistaken or disputable interpretation of the law but such a clear and patent discordance between the resolution and the legal order that anyone could appreciate it.21 It is true, however, that in cases where there is a margin of discretion to decide on several possible ways, the decision will only be considered abuse of office when it was clearly grounded on illegitimate motives that are contrary to the impartiality and objectivity required also when exercising discretional powers.22

bb) In an Administrative Matter The resolution needs to deal with an administrative matter. This excludes from the scope of this particular criminal offence both legislative and judicial resolutions, as well as the more difficult to define area of political acts.23 The Spanish Supreme 21

Spanish Supreme Court Judgement (Sentencia del Tribunal Supremo, STS from here onwards) 226/06. 22 STS 647/02. 23 The administrative doctrine of the ‘political and government acts’ is a century-long debate that constitutes one of the trickiest parts of the regulation of abuse of office in Spain. It implies a quite artificial distinction between administrative and political matters. As a doctrine from administrative law theory it was imported from post-revolutionary France, and profusely used by the different Spanish governments to exclude certain areas of decision from judicial review. While it is a doctrine considered outdated after the constitutional recognition of equal access to justice, there remain some uses of it, including the interpretation of what an administrative resolution is for the purposes of criminal abuse of office. While it seems difficult (and probably beyond the boundaries of legal theory) to define what is a political or government act, those are supposed to include a) legislative activities and b) acts of political direction, that would include things such as (i.) The functions assigned to the Government in Art. 97 of the Spanish Constitution (‘The Government shall conduct domestic and foreign policy, civil and military administration and the defence of the State. It exercises executive authority and the power of statutory regulations in accordance with the Constitution and the laws’); (ii.) Acts concerning the relations between different constitutional bodies (the executive and the Congress, for example); (iii.) Drafting legislative proposals to be submitted to Parliament. All those matters would initially fall beyond the scope of criminal law via

236

M. Maroto Calatayud

Court holds that the concept of resolution needs to be understood as an administrative act, issued in the course of an administrative proceeding, expressing a decision that affects the rights of citizens in a concrete or general legal situation. This exclusion of political acts from the scope of administrative abuse of office was sustained by the Higher Court of Justice (TSJ from here onwards) of Catalu~na in 2014 to reject the prosecution of the President of Catalu~na after the Catalan Parliament voted in favour of calling for a referendum on the independency from Spain.24 The General Prosecutor of the State defended after that ruling that, while the parliamentary call for a referendum on the independence of Catalu~na was of a political nature, the practical consequences of it on the use of public human and material resources (mailing, campaign locals, websites, work assignments on different public servants and services, etc.) could not be considered as such and that the consideration of those initiatives as merely political would promote in an intolerable way spaces beyond control in the public administration. The case is therefore still pending in the Higher Court of Justice of Catalu~na. The problem of decisions ratified by legislative bodies being, as political acts, beyond the scope of the offence of abuse of office was also present in a recent and also subjudice case (the so-called ERE affair) affecting some high-rank politicians of Andalucı´a, where the Parliament approved a budget law that allowed for the irregular distribution of public funds (of up to 721 millions) to several business companies and individuals. Although there is not yet a final decision on this controversial case, in June 2015 the Supreme Court25 expressed its favourable position to prosecute several members of the Andalucı´a Government for abuse of office, after some experts defended during the judicial proceedings that the Parliament was actively misled26 by the executive (the President himself later renounced his position), and therefore the legislative body did not have the necessary information to make a reasonable decision.

cc) Being Aware of the Injustice The requirement of being aware of the injustice implies that the conduct has to be intentional and not merely negligent. Dolus eventualis is not accepted either.27

abuse of office, but not necessarily out of the scope of review by the administrative courts (for example: executive decrees can be reviewed by administrative courts). Purely political activities without a legal manifestation would only be politically accountable (for example, in the parliaments). As for local governments, since the Constitution recognises their autonomy, they can perform acts of government with potentially similar effects. 24 TSJ Catalu~ na 37/2014. 25 Auto del Tribunal Supremo 2809/2015. 26 Auto de la Audiencia Provincial de Sevilla 4988/2014, 18 September 2015. 27 STS 1629/00; STS 1223/04; STS 226/06.

Criminal Liability of Political Decision-Makers in Spain

237

That would also exclude reckless or risky political decisions in which the politician does not directly pursue breaking the law. In those cases where the decision-maker could be mistaken about the legality of the decision, elements such as if there were previous official reports providing him with accurate legal information, or generally if he followed or not the proceedings necessary to formally issue the decision, will be taken into consideration. Given these three elements, the possibilities of extending the scope of the offence of abuse of office to circumstances such as the one described in our case study seem limited. Only when a clearly arbitrary decision not of a political nature is knowingly made would this provision be properly applicable, for example intentionally and manifestly contradicting the requirements of budgetary regulations in order to approve the construction of the bridge. And even in that case, it would probably rather fall under other provisions of the Code (embezzlement, for instance) than abuse of office, due to the so-called principle of speciality.

c) Advising Favourably Resolutions Against Urban Planning Regulations Another provision seems potentially relevant for the purposes of the case study: Art. 320 CC, one of the offences included in the section concerning crimes against the organisation of the territory and town planning. It reads as follows: Art. 320 CC 1. The authority or public officer who, being aware of the injustice thereof, has advised favourably on planning instruments, projects for town planning, allotment division and subdivision, construction or building, or the granting of permits that violate the regulations of territorial organisation or town planning in force, or who, during inspections, has silenced the breach of those regulations or has omitted carrying out the mandatory inspections, shall be punished with the penalty established in Article 404 of this Code and, moreover, with that of imprisonment for one year and six months to four years and that of a fine from twelve to twenty- four months. 2. The same penalties shall be imposed on the authority or public officer who, himself, or as a member of a collegiate body, has resolved or voted in favour of approval of the planning instruments, the town planning projects, allotment, sub-allotment, construction or building or the granting of permits referred to in the preceding Section, being aware of the injustice thereof.

This offence constitutes a special modality of abuse of office as described in Art. 404 CC. The main differences, besides the more specific focus of this provision on urban planning matters and rules, are as follows: (1) In the first modality of commission, what the public officer does is basically induce the final decision-maker to issue an unjust resolution through favourable reports or other omissions, and that induction is made equivalent to the commission of the crime. (2) While this offence would seem primarily aimed at public officials specifically trusted to fulfil reporting (both technical and legal) and inspection functions in urban planning matters, and not the final decision-makers or politicians, in

238

M. Maroto Calatayud

practice figures such as mayors have important administrative prerogatives in these matters, and have been subject to this provision. The existence of a second modality of commission consisting in omitting information about the breach of rules on urban planning during an inspection, or omitting the mandatory inspections themselves, also extends the scope of the crime. (3) The second paragraph of Art. 320 provides for the same penalties as foreseen for abuse of power (Art. 404 CC) for those authorities or public officials who ultimately approved or voted in favour of the biased urban planning instruments mentioned in the first paragraph. The common position in legal doctrine is that both modalities imply direct intention: decision-makers need to know about the unlawful nature of the decision,28 and the provision would not be applicable if the indications of the report are not clear and univocal. The possibility of accepting dolus eventualis as satisfying the subjective requirements of the crime is not absolutely excluded but controversial. d) Forgery of Public Accounts Art. 433bis CC 1. Any public authority or civil servant who, intending to cause financial harm to the public entity by which he is employed, falsifies its accounts, the documents that should reflect its financial situation or the information contained in them, shall be punished with specific disqualification from public employment or office for a period of between one and ten years and a fine of between twelve and twenty-four months. 2. Any public authority or civil servant who, intending to cause financial harm to the public entity by which he is employed, provides third parties with untruthful information relating to its financial situation or any of the documents or information referred to in the preceding section shall be punished with the same sentences. 3. If the entity is caused financial harm, prison sentences of between one and four years, specific disqualification from public employment or office for a period of between three and ten years and a fine of between twelve and twenty-four months shall be imposed.

This provision was introduced in 2012 as part of a set of reforms supposedly aimed at strengthening the mechanisms of control of public deficit and budgets. Its scope and practical significance has been, however, very narrow. So far, only once it seems to have been considered in a judicial ruling, in which it was not understood pertinent to the case: a political group of the Parliament of Valencia filed charges (of abuse of office and forgery of public accounts) against another group, which had approved a budget law containing a provision of more than a thousand million euros, an amount that was actually inexistent at that moment and would not be until 2017.29 The Court considered that, legal or not, the decision should not constitute a criminal abuse of office or forgery of public accounts since the decision taken was not an administrative resolution but the drafting of a budget law that would be

28 29

Sentencia de la Audiencia Provincial de Toledo 65/08. Auto del Tribunal Superior de Justicia de la C. Valenciana 13/2015.

Criminal Liability of Political Decision-Makers in Spain

239

discussed in Parliament, and the inclusion of a questionable provision of funds was not equivalent to the intentional forgery of accounting documents. Again, the offence would not seem suitable to cover cases such as the bridge example, where only a weak (dolus eventualis) form of intent to cause a financial harm would at most exist and where, more importantly, forgery of public documents or budgetary infractions are not initially involved in.

2. Part 2: Criminal Liability for Pursuit of Personal Interests As a general approach to the second part of the case study, if the decision was founded in the existence or expectation of an advantage of economic value, criminal responsibility would be much easier to affirm. The financial benefit element not only makes it easier to consider concurrent the excess in powers of administration or the financial harm described in the first part of this chapter but also usually qualifies the conduct as a different crime (bribe, influence peddling, etc.). Bribery crimes are defined as follows in the Spanish Criminal Code:

a) Bribery and Illegal Gift Taking (Cohecho y Aceptaci on de Regalos) Art. 419 CC The authority or public officer who, to his own advantage or that of a third party, were to receive or solicit, personally or through an intermediary, handouts, favours or remunerations of any kind, or who were to accept an offer or promise, while carrying out the duties of his office, in order to carry out an act contrary to the duties inherent thereto, or not to carry out these, or to unfairly delay those he must carry out, shall incur a sentence of imprisonment from three to six years, a fine of twelve to twenty- four months and special barring from public employment, office and the right of passive suffrage for a term of nine to twelve years, without prejudice to the relevant punishment for the act perpetrated, omitted or delayed due to the remuneration or promise, if that constitutes a felony. Art. 420 CC The authority or public officer who, to his own advantage or that of a third party, were to receive or solicit, personally or through an intermediary, handouts, favours or remuneration of any kind, or who were to accept an offer or promise to carry out an act inherent to his office, shall incur a sentence of imprisonment of two to four years, a fine of twelve to twentyfour months and special barring from public employment, office and the right of passive suffrage for a term of five to nine years. Art. 421 CC The penalties stated in the preceding Articles shall also be imposed when the handout, favour or remuneration were received or solicited by the authority or public officer, in the respective cases, as a reward for the conduct described in those Articles.

240

M. Maroto Calatayud

Art. 422 CC The authority or public officer who, to his own advantage or that of a third party, were to accept, personally or through an intermediary, a handout or gift offered to him in view of his office or duty, shall incur a sentence of imprisonment of six months to one year and suspension from public employment and office from one to three years.

aa) Modalities of Bribery As in most other European countries, in addition to criminalising both active and passive bribery, a distinction is made between bribery relating to unlawful acts (proper bribery, Art. 419 CC) and bribery relating to lawful acts (improper bribery, Art. 420 CC). Article 421 CC provides for the same penalties when the advantage is asked for or received after the decision (subsequent bribery). Article 422 foresees a less severe punishment for those cases of gift taking where there is not a clear connection between the advantage and a decision, but the benefit is obtained in consideration to the public officer’s position.

bb) Persons Covered by the Offence: Public Officials Article 24 CC establishes who has to be considered authority or public official for the purposes of interpreting and applying the Criminal Code: Art. 24 CC 1. For criminal law purposes, status of authority shall be deemed to be held by persons who, alone, or as a member of any corporation, board or collegiate body, have a commanding post or exercise jurisdiction pertaining thereto. In all cases, members of the Congress of Deputies, of the Senate, of the Legislative Assemblies of the Autonomous Communities and the European Parliament shall be deemed authorities. The officers of the Public Prosecutor’s Office shall also be deemed authorities. 2. Civil servant status shall also be deemed to be held by all those who, by immediate provision of the Law, or by election or appointment by the authority with relevant powers, participate in the exercise of public duties.

As a general rule, there is no direct correlation between the criminal law and the administrative law concepts of authority and public officer: the criminal law conception of this figures is broader than the administrative one, and it includes almost any substantive exercise of public functions, independently of the administrative status that might be attached to it. Authorities constitute a special kind of public official: those with their own jurisdiction, in the sense of being invested with powers to resolve situations that are submitted to them.30 Members of legislative bodies have also been traditionally considered authorities, and such consideration was explicitly included in the Code in 1995.

30 A. M. Javato Martín, ‘El concepto de funcionario y autoridad a efectos penales’, 23 Revista Jurı´dica de Castilla y Leo´n, 2011.

Criminal Liability of Political Decision-Makers in Spain

241

As for candidates to public office and party members, they are not per se considered authorities or public officers but are subject to the obligations and restrictions foreseen in the laws regulating elections and party finance. In 2015, a crime of illegal funding of political parties (Arts. 304bis and 304ter CC) was introduced into the Criminal Code: however, it only criminalises the breach of rules governing the reception of private contributions to parties and provides significantly less severe punishment than bribery crimes (imprisonment is only provided for those illegal contributions exceeding 500,000 euros). In most other cases, irregularities concerning campaign finance will eventually constitute administrative infractions.

cc) On the Nature of the Illegal Advantage Traditionally, the element of illegal advantage had been conceived by the Supreme Court as any kind of reward that could be valued in economic terms. Since 2010, with the introduction of the term favours, the benefit includes also any kind of honorific, sexual, social advantage, etc. However, it seems unlikely that the mere increase in reputation or political capital produced by the decision could be considered an illegal advantage. In fact, the Spanish Supreme Court had sometimes rejected to consider as personal benefits those channelled to the party to which the public officer belonged, or even the prospect of accessing better positions facilitated by favouring the party.31 The bribery provisions do not mention minimum values, but by virtue of the so-called principles of insignificance and social acceptance, benefits of a very minor value attached are excluded from the scope of these crimes.

dd) The Connection Between the Benefit and the Decision In comparison to the offences of embezzlement and, particularly, abuse of office, the quid pro quo relationship between the financial benefit and the decision constitutes an additional procedural difficulty in securing a conviction. In many cases, particularly where an elaborate criminal operational structure exists, it will not be easy to gather sufficient evidence of that quid pro quo connection. That is one of the reasons why the amount of bribery cases that end up into convictions has traditionally been low in Spain.32 As for the case study, if the mayor/minister would receive payments or benefits from the potential contractor before or after the process of deciding on the building of the bridge, a strong presumption of connection between the advantage and the decision could be built.

31

STS 692/2008. N. De La Mata Barranco, La respuesta a la corrupcio´n pu´blica. Tratamiento penal de la conducta de los particulares que contribuyen a ella, 2004 (Comares, Granada), p. 9.

32

242

M. Maroto Calatayud

In cases where influence over the decision of a public official is exerted not by means of an economic advantage or benefit (a bribe) but by taking advantage of a certain position of power or privilege, the offence of influence peddling might be of application.

b) Influence Peddling Art. 428 CC A civil servant or authority who influences another public officer or authority, availing himself of the powers of his office or any other situation arising from his personal or hierarchical relation with the latter, or with any other officer or authority to attain a resolution that may directly or indirectly generate a financial benefit for himself or a third party, shall incur imprisonment of six months to two years, a fine of one to two times the benefit intended or obtained and special barring from public employment, office and the right of passive suffrage for a term of five to nine years. If the intended benefit were obtained, these penalties shall be imposed in the upper half.

Influencing the decisions of a public official in pursuance of a personal benefit might constitute a crime of influence peddling when the individual who exerts influence takes advantage of his public office or of a particular personal or hierarchical position. It is therefore necessary to abuse a situation of power to exert substantive psychological pressure over the person who has to make the decision.33 When it is a private individual who exerts influence on the public official (Art. 429 CC), the influence has to be channelled through a personal relationship in order to constitute a crime. Not every decision over which influence is exerted would constitute the crime: it has to be a resolution on an administrative matter. Court interpretation has also significantly narrowed the scope of the crime of influence peddling by requiring the resolution to be unlawful, in similar terms to those required in the crime of abuse of office (Art. 404 CC). This contributed to making the practical importance of influence peddling not particularly significant. In relation to our case study, if the mayor/minister uses his influence to foster the decision for a personal gain and takes advantage of his position, his actions would potentially qualify as influence peddling according to Art. 428 CC.

c) Colluding to Defraud Public Entities Art. 436 CC The authority or public officer who, acting due to his office in any act of the modes of public contracting, or in settlement of public properties or credit, comes to an arrangement with the parties concerned or schemes in any other way to defraud any public institution, shall incur imprisonment from one to three years and special barring from public employment and office

33

STS 480/04; STS 537/02; STS 2025/01.

Criminal Liability of Political Decision-Makers in Spain

243

and from the right of passive suffrage for a term from six to ten years. The private individual who has schemed with the authority or public officer shall have the same punishment of imprisonment imposed on him as the latter, as well as that of barring to obtain public subsidies and aid, for contracting with institutions, bodies or entities that form part of the public sector, and to take advantage of tax and Social Security rebates for a term from two to five years.

While closely linked to embezzlement, the offence of collusion to defraud a public entity34 described in Art. 436 CC extends its scope beyond the causation of harm through abuse of trust or power of administration, to include what will usually constitute preparatory acts of embezzlement. The offence does not require the fraud to be executed, but the mere collusion to defraud. In those cases where the fraud is effectively committed, either by appropriation of the funds or by causing a financial harm, it would be appropriate to punish both embezzlement and collusion to defraud as separate crimes.35 As opposed to embezzlement, this offence necessarily involves a third person with whom the authority colludes to defraud. The provision does not explicitly require the pursuit of a personal benefit, but the intention to defraud will, most of the times, involve it. From the perspective of the bridge example, it would be possible to apply this provision to the decision-maker when he actually colluded with the potential contractor of which he was a partner, with the intention to defraud. The case law in similar cases has been, however, mixed: in a recent relevant case (Palma Arena36), the Supreme Court considered (without a particularly developed motivation) that the fact that the authority had previously informed a potential contractor of the best way of being awarded the contract would not constitute this crime of collusion to defraud, and could at most be understood as an administrative infraction. The applicability of this provision will again depend on the interpretation of the term defrauding and the specific nature and relevance given to the financial harm element: in particular, the outcome will be different if more importance is given to the goal of protecting the correct proceedings in the management of public

The title in the Code is ‘Fraud and illegal taxations’. The offences of illegal taxations are less interesting to our purposes; they read as follows: 34

Art. 437: ‘The authority or public officer who directly or indirectly demands undue fees, tariffs or fees, or those in an amount exceeding those legally set, shall be punished, without prejudice to the reimbursement he is obliged to carry out, with the penalties of a fine from six to twenty- four months and suspension from public employment and office for a term of six months to four years.’ Art. 438: ‘The authority or public officer who, abusing his office, were to commit any offence of swindling, or fraud to the Social Security System as foreseen in [Article] 307, shall incur the penalties respectively stated for these in the upper half, which may increase to the higher in one degree, and special barring from public employment and office and from the right to public suffrage for a term from three to nine years, unless a more severe penalty is provided for those conducts in other [Articles] of this Code.’ 35 36

STS 841/2013; STS 1537/2003; STS 166/2014. STS 657/2013.

244

M. Maroto Calatayud

funds or, instead, to the strict causation of a reduction in the economic value of those assets.37

d) On Prohibited Negotiations and Other Abuses of Official Duties This set of offences, based on abusing office or a public function for private goals, is aimed at protecting (a) the impartiality of public administrative decisions and (b) the equality of citizens’ opportunities before the administration. These articles describe specific modalities of abuse of office that share similar characteristics with the more general offences previously analysed. A common denominator of these three provisions seems to be the relationship with a duty to abstain from participating in public decisions in which one has a private involvement, and there is therefore a conflict of interest. While in Spain the duty to abstain when a conflict of interest occurs is regulated in administrative and political-executive matters (higher officials, particularly ministers), there is no such explicit regulation in legislative issues but rather general allusions to incompatibilities and integrity guidelines.38

aa) Prohibited Negotiations Art. 439 CC The authority or public officer who, having to intervene, due to his office, in any kind of contract, matter, operation or activity, takes advantage of that circumstance to force or facilitate any kind of participation, either directly or by intermediary, in such transactions or actions, shall incur a sentence of imprisonment of six months to two years, a fine of twelve to twenty- four months and special barring from public employment and office and from the right to passive suffrage for a term of two to seven years.

Article 439 CC again describes an offence that requires neither an effective result of harm done to the public administration nor the actual obtaining of financial gains by the public officer. The use of the wording take advantage instead of, for example, defrauding seems to expand the scope of this provision towards less exigent conceptions of the harm and benefit requirements. However, court decisions differ: while the Supreme Court has stated that it is necessary for the public

37

Sentencia de la Audiencia Provincial de Palma de Mallorca 1165/2012. See Art. 17, 18 and 19 of the Standing Orders of the Congress of Deputies, http://www.congreso. es/portal/page/portal/Congreso/Congreso/Hist_Normas/Norm/standing_orders_02.pdf; for more details see J.L. Martínez L opez-Mu~ niz, ‘E´tica pu´blica y deber de abstencio´n en la actuacio´n administrativa’, Derecho PUCP: Revista de la Facultad de Derecho, 2011, 67; C. Ruiz-Rico Ruiz, ‘El poder parlamentario y sus lı´mites: conflicto de intereses, extralimitaciones y transparencia’, www.federalismi.it, Rivista di Diritto Pubblico Italiano, Comparato, Europeo, 2014, 23. 38

Criminal Liability of Political Decision-Makers in Spain

245

officer to subjectively pursue a personal benefit in order to commit the crime,39 other rulings considered that the simple breach of the duty to abstain from participating in the public decision would be enough for a conviction, with no need to pursue an unjust advantage.40 Again, in our bridge example, the existence of an economic interest in the decision-maker grounded on his collaboration with the potential contractor would qualify the behaviour as a prohibited negotiation as far as he (a) made use of his office (b) to facilitate his private participation in financial gains. One of the limitations of the offence is that the public officer has to be obliged to intervene, due to his office, in the operation: if the mayor/minister intervenes only voluntarily, his duty to participate in the public proceeding would be inexistent, and the provision would not be applicable.41

bb) Unlawful Professional Activities and Use of Secret Information for Private Purposes Art. 441 CC The authority or public officer who, outside the cases allowed by the Laws or Regulations, personally or through an intermediary, carries out a professional activity or permanent or occasional advice, dependent on or in the service of private concerns or individuals, in matters in which he must intervene or has intervened in due to his office, or in those that are processed, reported or resolved at the office or management centre where he is assigned or to which he reports, shall incur the penalties of a fine from six to twelve months and suspension from public employment and office for a term from two to five years. Art. 442 CC The authority or public officer who makes use of a secret he has knowledge of due to his position or office, or of inside information, in order to obtain financial benefit for himself or for a third party, shall incur the penalties of a fine of one to three times the benefit intended, obtained or facilitated and special barring from public employment and office and from the right to passive suffrage for a term of two to four years. If he obtains the intended benefit, the punishment shall be imprisonment from one to three years, a fine of one to six times the benefit intended, obtained or facilitated, and special barring from public employment and office and from the right to passive suffrage from four to six years. If serious damage is caused to the public interest or to a third party, the punishment shall be imprisonment from one to six years, and special barring from public employment and office and from the right to public suffrage for a term of nine to twelve years. For the purposes of this Article, inside information is construed to be all information of a specific nature that is obtained exclusively due to the position or public office, and that has not been notified, published or disclosed.

39

STS 1887/02, 13-11. Sentencia de la Audiencia Provincial de Islas Baleares 5/1997. 41 A previous wording of the offence limited its scope to those who had the official duty to inform about the contract or operation (e.g.: city council architects). That caused a paradoxical situation where the provision was applicable to those with the duty to inform, but not to those with the duty to decide. This was solved in 2010 by removing this mention to the duty to inform and introducing a more general allusion to intervene, due to the official’s office. 40

246

M. Maroto Calatayud

Articles 441 and 442 provide for punishment to (a) those public officials who unlawfully engage in professional activities related to matters in which they had to decide and (b) those public officials who make use of secret information they know of for reason of their position, with the intention to obtain a financial benefit for himself or a third person. The first provision would fit the situation described in Part II of the bridge case, as long as the private involvement of the mayor/minister in business activities was not legal and the activities were directly related to his decisions regarding the bridge.

III. Special Sanctions Applicable to Politicians 1. Barring from Public Office and from Passive Suffrage Most corruption-related offences in Spain provide for other penalties beyond imprisonment and fines, namely (a) special or absolute barring from public office and (b) barring from the right to passive suffrage. The 2015 reform of the Criminal Code put particular emphasis on introducing the possibility of barring from the right to passive suffrage in most corruption-related provisions where such a penalty was not foreseen before. Two other aspects of the recent penal reforms seem noteworthy in this regard.

2. Mandatory Disciplinary Measures Within Political Parties While not a criminal sanction, it is interesting to note, as well, the new provision introduced in Art. 3 of the Law of Political Parties, according to which when a politician stands trial for corruption-related offences, the political party he belongs to will have to temporarily suspend his membership. In case the person is finally convicted, the party is legally obliged to definitively cancel it. This provision, which certainly generates confusion between the areas of political and criminal responsibility, was introduced as a way of promoting more severe disciplinary procedures within political parties themselves. Its practical relevance is still to be seen.42

42

In June 2017, three members of the municipal government of Madrid, including its head of finance, Carlos Sanchez Mato, were indicted on charges of abuse of office and embezzlement, on the ground that they had ordered around 100.000 euros to be spent on the anti-corruption audit report of an annual local tennis tournament, which costed 7 million euros in 2017. The lawsuit, filed by the previously governing Popular Party (responsible for approving the annual celebration of this tennis event during its mandate), was clearly motivated by a desire to push these members of the council to resign; the internal normative of the party currently in office in the city, Ahora Madrid, establishes an obligation to do so when a member is formally indicted of corruptionrelated offences.

Criminal Liability of Political Decision-Makers in Spain

247

3. Corporate Criminal Responsibility of Political Parties Criminal liability for political parties as legal persons was introduced into the Code in 2012, but it was not until 2015 that the regime of criminal responsibility of parties was further developed with provisions such as offences more specifically aimed at party activities (illegal funding, Art. 304bis and 304ter CC) or the mandate to design and effectively implement internal compliance programmes. While not a special kind of penalty for politicians, the criminal responsibility of political parties as corporations opens interesting possibilities (and risks) in terms of penalising offences associated to politics. To the date of writing this chapter, only one party has been officially prosecuted as an organisation: the governing Partido Popular, under charges of destruction of evidence relevant to an investigation for illegal party funding.

4. Other Non-criminal Sanctions Relevant for Politicians Two further sanctioning mechanisms deserve to be mentioned in the context of our study. The first one is a new system of enforcement of decisions of the Constitutional Court, which was introduced in 2015 as an amendment to the law regulating the Spanish Constitutional Court. The Spanish legislator defended this reform as a reaction to the ‘disobedience’ by Catalonian authorities of the rulings of the Court prohibiting the launch of a consultation on independence.43 The new Art. 92 of the Organic Law on the Constitutional Court provides for both pecuniary sanctions and suspension from duties for those public authorities who fail to comply with decisions of the Court: In the event it is noticed that a decision pronounced in the exercise of its jurisdiction may not be being complied with, the Court, at its own motion or at the request of the parties to the suit in question, shall require the institutions, authorities, public employees or private persons responsible for the enforcement to inform at that respect within the time limit set out. Once the report is received or when the time limit expires, should the Court find that its decision is being fully or partially unfulfilled, it may adopt any of the following measures: a) Impose a penalty payment from three thousand to thirty thousand Euros to the authorities, public employees or private persons failing to comply with the Court’s decision, with the possibility to reiterate the fine until the order is fully enforced. b) Agree the suspension from their duties of any public authorities or Administration employees that are responsible for non-compliance, during the time needed to ensure the Court’s decision enforcement.

43 Venice Commission, Position of Spain regarding its new legislation (Organic Law 15/2015 of 16th October) aimed at the effective enforcement of the Constitutional Court’s judgements, 2016, available at: http://www.venice.coe.int/webforms/documents/default.aspx?pdffile¼CDL-REF (2016)034-e (last accessed 7 November 2016).

248

M. Maroto Calatayud

The Constitutional Court itself ruled in November 2016 that these provisions were proportionate and not punitive in nature, against the opinion of those (including the appellant Basque Government and three dissenting judges) who considered them to be unconstitutional and aimed at circumventing principles and safeguards present in the criminal law such as the principle of legality or the right to appeal. A second new non-criminal sanctioning system that should be briefly mentioned also was introduced into the Spanish legal system in 2015, with the Organic Law on Budget Stability and Financial Sustainability.44 Article 26 of this law provides for the enforced dissolution of those bodies of a municipality that repeatedly failed to comply with the budgetary requirements of the central Government. A previous piece of legislation, the 2013 Law of Transparency and Good Governance, defined several administrative infractions in the field of public budgetary decisions (Art. 28). While the coercive provisions of the Organic Law on Budget Stability have not yet been applied in Spain, at the time of writing this paper the law had already originated a great deal of tensions between the Municipality of Madrid and the Ministry of Economy. In 2016, Madrid’s government enjoyed a considerable budget surplus and had very successfully complied with the set goals of debt management, but its local financial authorities denounced that they were being banned from investing a part of that surplus in social expenditure, through a strict application of the Law on Budget Stability (and of the new Art. 135 of the Constitution) that would force them to use that money to pay even more debt in advance. After deciding not to comply with this restriction to social spending, which the municipality understood as an unacceptable attack on local budgetary autonomy, the Minister of Economy warned the local financial councillor that he could be removed from office (in application of Art. 28 of the Law of Transparency) and the city sanctioned to an amount of 17 million euros.45

IV. Immunities and Other Limitations of Criminal Liability Public immunities, and particularly their role in relation to corruption cases, have recently been subject to an intense social and political debate in Spain.46 In this sense, it is possible that we will see reforms in this area in the immediate future.

44

Ministerio de Hacienda, Presentation of the Organic Law on Budgetary Stability and Financial Sustainability of Public Administrations, 2015, available at: http://www.minhap.gob.es/ Documentacion/Publico/GabineteMinistro/Presentaciones/LEY%20ESTABILIDAD% 20PRESUPUESTARIA/en_LOEPSF-WEB%20MINHAP%2030-4-12_rev.pdf (last accessed 7 November 2016). 45 El Paı´s, 5 November 2016, ‘Hacienda amenaza a Sa´nchez Mato con suspenderlo por su plan econo´mico’, www.elpais.com. 46 M.A. Presno Linera, ‘Inviolabilidad, inmunidad y aforamiento, ¿garantı´as o privilegios?’, www. eldiario.es, 29 June 2014.

Criminal Liability of Political Decision-Makers in Spain

249

There are three main procedural limitations to the prosecution of political authorities in Spain: inviolability (inviolabilidad), immunities (inmunidad) and jurisdiction privileges (aforamientos). According to Arts. 71 and 102 of the Spanish Constitution: Art. 71 Const. 1. Members of Congress and Senators shall enjoy freedom of speech for opinions expressed in the exercise of their functions. 2. During their term of office, Members of Congress and Senators shall likewise enjoy freedom from arrest and may be arrested only in the event of flagrante delicto. They may be neither indicted nor tried without prior authorization of their respective House. 3. In criminal proceedings brought against Members of Congress and Senators, the competent court shall be the Criminal Section of the Supreme Court. 4. Members of Congress and Senators shall receive a salary to be determined by the respective House. Art. 102 Const. 1. The President and other members of the Government shall be held criminally liable, should the occasion arise, before the Criminal Section of the Supreme Court. 2. If the charge were treason or any offence against the security of the State committed in the discharge of office, it may only be brought against them on the initiative of one quarter of Members of Congress and with the approval of the overall majority thereof. 3. The Royal prerogative of pardon shall not apply in any of the cases provided for under the present [Article].

1. Inviolability Inviolability affects the Chief of State (the King of Spain) and parliamentarians. In each of these cases, it has, however, a different scope. According to Art. 71 of the Spanish Constitution, parliamentarians will be completely exempted from responsibility (not only criminal but civil, administrative or of any other kind) for the opinions or acts performed in the exercise of their duties. That makes inviolability a functional guarantee and not a personal privilege: they can be prosecuted for any other conduct outside their official duties in the Parliament.47 In the case of the King of Spain, the exemption from responsibility seems to be absolute (Art. 56 (3) Const.), although the extension of inviolability to his private life does not seem to be compatible with other provisions of the Constitution, particularly the right to access the court system (Art. 24 Const.).

47

Sentencia del Tribunal Constitucional 51/1985.

250

M. Maroto Calatayud

2. Immunities The second category is immunities, which prohibits the arrest of parliamentarians during the duration of their term, except in case of flagrante delicto. They cannot be charged and prosecuted (Art. 71(2) Const.) for any crime without the previous authorisation of the legislative body they are members of (the so-called suplicatorio). As a measure intended to prevent the use of criminal proceedings against parliamentarians for political purposes, its very broad scope seems difficult to justify in comparison to both the regime of inviolability and the compared experience in other countries.

3. Jurisdiction Privileges Jurisdiction privileges are probably the most controversial institution regarding immunities and other limitations, particularly because of their extension to a particularly high number of authorities and public officials. According to the Constitution, parliamentarians, the President and members of the Government will be judged before the Supreme Court, not by the regular court that would normally be competent. This privilege was extended through Organic Law 6/1985 on the Judiciary to a series of other civil servants amounting, according to some sources,48 to more than 10,000 individuals (most of them judges and prosecutors who have to be judged by the higher regional courts of each self-governed community): Art. 57 Organic Law 6/1985 on the Judiciary (1) The Criminal Chamber of the Supreme Court shall hear: 1. Appeals for annulment, appeals for review and other extraordinary appeals within criminal matters that might be established by law. 2. The examination and trying of proceedings brought against the President of the Government, the Presidents of the Chamber of Deputies and of the Senate, the President of the Supreme Court and of the General Council of the Judiciary, the President of the Constitutional Court, Members of the Government, Deputies and Senators, Members of the General Council of the Judiciary, Magistrates of the Constitutional Court and of the Supreme Court, the President of the National High Court and of any of its Chambers and the Presidents of the High Courts of Justice, the State Prosecutor General, State Prosecutors attached to the Chambers of the Supreme Court, the President and Counsellors of the Court of Auditors, the President and Counsellors of the Council of State and the Ombudsman, along with any proceedings that might be determined by the Statutes of Autonomy. 3. The examination and trying of proceedings against Magistrates of the National High Court or of a High Court of Justice. 4. Other matters attributed to it via this Law.

48

Presno Linera (note 45).

Criminal Liability of Political Decision-Makers in Spain

251

(2) In the proceedings referred to in points two and three of the preceding paragraph, an examining magistrate will be selected from amongst the members of the Chamber, via a predetermined roster, who will not form a part of the Chamber for the purpose of trying said proceedings. Art. 73(3) Organic Law 6/1985 on the Judiciary [. . .] As a Criminal Division, it will hear: a) Criminal proceedings which are to be heard at the High Courts of Justice as provided by the Statutes of the Autonomous Regions. b) Preliminary inquiries and decisions on criminal proceedings against judges, magistrates, Public Prosecution officers for any offences or infractions perpetrated by them in the discharge of their duties in the Autonomous Region when jurisdiction over these matters is not vested in the Supreme Court. c) It will hear appeals against sentences given in first instance by Provincial Courts and any other appeals vested in them by Statute.

Inviolabilities, immunities and jurisdiction privileges also apply to members of the regional parliaments when it is so established in their respective statutes of autonomy (the equivalent to regional constitutions), with some differences associated to the regional nature of their duties (for example, immunity against arrest or prosecution without previous authorisation would only cover those crimes committed in the region whose parliament the authority is a member of).49 Manuel Maroto Calatayud is Assistant Professor of Criminal Law at the University of CastillaLa Mancha.

49 M. A. Presno Linera, ‘¿Prerrogativas o privilegios parlamentarios?’, www.atlanticaxxii.com, 22 April 2013.

Part II

Conclusions from the Country Reports and Further Thoughts on the Interplay of Criminal Law and Politics

A Comparative Analysis of Criminal Laws Protecting Public Budgets: Can Bad Political Decisions Be Criminalised? Frank Zimmermann

I. A Fundamental Conflict In all countries represented in this comparative study, fairly homogeneous provisions criminalise illicit influence (of which bribery is certainly the most import example) on the process of political decision-making. Generally speaking, these provisions would make it rather easy to deal with the second part of the case, although Manuel Maroto’s overview1 also points out several quite complicated questions when it comes to the details. But as long as it cannot be proven that a political decision-maker was influenced by an unjust benefit or when it is even clear that he/she acted with the best intents, it is only the decision as such that can give rise for criminal prosecution. Such was the situation in the first part of the case. In this respect, the country reports reveal that all legal systems analysed would encounter considerable problems. This may be due to a fundamental conflict that arises when politicians shall be prosecuted for decisions that they have taken in exercise of their office (here, the one in favour of building the bridge): nothing less than representative democracy itself is put to the test. On the one hand, it is an inherent feature of that kind of government that the people elect representatives whose task it is to take decisions for the community. Particularly on the lower levels of government (most importantly in municipalities), where these representatives are normally ordinary citizens and not professional politicians, representative democracies depend on the commitment of individuals. There is no need to explain that it would be hard to find persons who take responsibility for the community if afterwards they had to fear criminal punishment for their decisions. What is more, the criminalisation of political 1

See the second chapter of Part II in this volume.

F. Zimmermann (*) Ludwig-Maximilians-Universita¨t München, Munich, Germany e-mail: [email protected] © Springer International Publishing AG 2017 F. Zimmermann (ed.), Criminal Liability of Political Decision-Makers, DOI 10.1007/978-3-319-52051-3_12

255

256

F. Zimmermann

decisions could create possibilities for abuse. Following a change of power, it might allow new rulers to prosecute their opponents, as in the case of former Ukrainian Prime Minister Yulia Tymoshenko. From a constitutional perspective, separation of powers would then be called into question. On the other hand, politicians are in our modern societies no more than normal citizens and should not enjoy particular privileges in criminal law (except to the extent necessary for the exercise of their functions; see Federica Iovene’s contribution2). Otherwise, political power could easily turn into temptation—and everybody knows that public budgets often need to be protected also against those to whom they are entrusted. All legal systems analysed in this study have to face this fundamental conflict in some way. Yet their approaches are not identical. To illustrate this, reference can be made to the Netherlands on the one hand and Greece on the other: Dutch criminal law contains a special offence for members of the national Government who take or execute decisions that violate the Constitution or other laws (Art. 355(3) and (4) PC). In Greece, this kind of special ministerial offence would be incompatible with Art. 86 of the Constitution. However, such apparent discrepancies do not per se allow for conclusions on the legal system’s standpoint in the substantive question, namely to what extent politicians can be held criminally liable for their decisions: Greek criminal law does provide for several offences that could potentially apply, whereas the special offence in the Netherlands is practically irrelevant. So can the building project used as an example in the comparative case study indeed turn into a ‘bridge over troubled water’ for the politicians involved?

II. The ‘If-and-What Question’ vs. the ‘Who-and-How Question’ One of the key questions for every legal system is at which point in time offences for the protection of public budgets shall come into play. In many countries, the answer to this question also determines to what extent politicians can be held responsible: particularly when infrastructure measures are concerned, the first moment when criminal liability might be established is the decision on the ‘if’ and ‘what’ of a project. In the case study, that would be the decision to build the bridge and not leave the traffic situation as it is (‘if’) or solve the problems in a different way, for instance with a tunnel or a ferry connection (‘what’). This could be regarded as a political decision stricto sensu because, generally speaking, there is a very high degree of discretion at this level, and normally it is politicians who take the decision. However, there is also a second point in time that might be relevant for criminal liability: the moment when the project shall be implemented, i.e. when a contractor for the project needs to be chosen and the funds reserved for the project must be managed. Somewhat simplifying, this is rather a ‘who-and-how question’—in our case: who shall build the bridge and how shall the project be 2

See the fourth chapter of Part II in this volume.

A Comparative Analysis of Criminal Laws Protecting Public Budgets: Can Bad. . .

257

administered? At this level, it may still be politicians who decide (at least they will in most countries be ultimately responsible). In a certain sense, we could therefore also call these decisions ‘political’. However, the law often provides quite detailed rules for this phase and thus reduces the competent persons’ discretion significantly. Furthermore, executive tasks such as the evaluation of offers and the management of funds are left to specialised subordinates. Intuitively, it would certainly be easier to establish criminal liability in that phase. One might ask, of course, whether that would not be sufficient: it would to a large extent avoid the fundamental conflict described earlier. However, it might simply be too late for an effective protection of public budgets in that moment. In the case study, for instance, it would be of little help to choose the cheapest offer if the bridge as such is entirely useless or if even the cheapest offer is much too expensive because the municipality’s budget situation is already precarious. Therefore, the following part of this chapter will mainly focus on whether criminal offences can tackle the decision on the ‘if’ and ‘what’ of the building project.3

III. Two Approaches: Protection of Property vs. Compliance with Official Duties In that regard, two main approaches can be identified in the legal systems compared in the present study: some of them rely heavily on criminal law provisions against property offences, whereas others rather criminalise a violation of duties by public officials (and all of them include political decision-makers as ministers, mayors, members of municipality councils, etc. in that category). Some countries have even implemented both concepts.

1. First Group: Exclusive Focus on Property Offences If we start with the group of legal systems that focus on property offences, then Germany can probably be considered a very telling example. The relevant offence is to be found in § 266 of the German Penal Code (PC-Germany) and shall—in accordance with the English translation offered by the Federal Ministry of Justice— be referred to as ‘embezzlement and abuse of trust’, or in German: Untreue. In principle, this is a general offence, and its scope rationae personae is not limited to public officials. If, however, the offence is committed by a public official—a minister or mayor, for instance—who abuses his power or his position, this constitutes an aggravating circumstance. As far as of relevance here, the offence

3

For some remarks on the ‘who-and-how question’, see infra IV.

258

F. Zimmermann

presupposes three elements: the violation of a fiduciary duty, the causation of damage and intent in the weakest form of dolus eventualis. If we presume that the persons we are dealing with are bound by a fiduciary duty because they are responsible for public budgets—which is contested by some authors with regard to members of municipality councils—then the crucial point is the damage requirement. As a starting point, it is to be understood in a strictly economic sense, and that entails problems for the case at hand: apart from difficulties to assess the economic value of infrastructure measures, it is highly questionable whether it can be regarded as damage when a market-conform price is paid, but the bridge is oversized, useless or merely too expensive in view of the budget situation. At least, this obstacle has been circumvented by what can be called the ‘individual damage’ doctrine, a concept accepted by German courts, as well as the prevailing opinion in the literature. In particular, the German Federal Court of Justice has considered public investments to cause damage when ‘taking out an economically significant loan becomes necessary, the possibility of the legislator to dispose of its budget is seriously affected and [. . .] the legislator’s possibilities for political action are thus curtailed.’4 However, further problems exist: economic damage can be hard to establish with regard to infrastructure projects, particularly at the point in time when the ‘if-and-what question’ is answered. As a matter of fact, putting assets at risk is considered to satisfy the damage requirement when this risk is so concrete that it already affects the economic value of the asset concerned. But, and this seems to be an aspect that has not been given much attention so far, public law often enables and obliges superior authorities to review the legality of decisions taken on a lower administrative level. Whether and to what extent a risk of future damage can nevertheless be considered concrete enough to fulfil the damage requirement of § 266 PC-Germany at the moment when the decision is taken on a subordinate level is a question that deserves further investigation. Anyway, it will under normal circumstances be easier to establish that damage has been caused when the project is implemented and money is actually paid to contractors (i.e., in the ‘whoand-how phase’). But what remains is that—as a matter of principle—political decisions can fall under the Untreue provision. With a view to the above-mentioned risk of excessive interference by the judiciary with the process of political decisionmaking, it could therefore be said that Pandora’s clock has been opened. Defence counsels may, however, find a way to close it again, and this is because the mens rea element of § 266 PC-Germany will often be difficult to prove. It presupposes that the political decision-maker was aware of a potential damage and accepted it. Particularly in the case of controversial projects whose pros and cons are subject to debate, a politician’s defence that he/she was convinced of the measure’s positive effects may be successful. Taking into account that § 266 PC-Germany—even in its broad interpretation according to the ‘individual damage doctrine’—will therefore not cover all cases where taxpayers’ money is wasted, calls for legislative reform have been voiced repeatedly. But what remains

4

See the German country report in Part 1 of this volume, II.1.a)cc)(4).

A Comparative Analysis of Criminal Laws Protecting Public Budgets: Can Bad. . .

259

to be criticised is that already now a politician’s criminal liability for Untreue can also depend on a criminal court’s assessment of his/her decision. What we can conclude so far is that the general property offence of § 266 PC-Germany is certainly not made for cases like the one analysed here. Obviously, its application therefore causes many problems. But surprisingly, Germany is not at all alone with this approach: in Belgium, the situation is quite similar. There, the provision on ‘abuse of trust’, Art. 491 PC-Belgium, requires property to be wasted. And as in Germany, this element causes problems with regard to the decision on the ‘if and what’ of an infrastructure measure, which is taken on the political level by adopting structure plans and execution plans. Since these plans do not yet entail a legal obligation to spend public money in a particular way, it appears difficult to state that those who decide on the plan actually waste money. In the Netherlands, where the already mentioned specific offence for ministers is nothing more than ‘law in the books’, it is the offence of ‘embezzlement’ (Art. 321 PC-Netherlands) that best captures our case. It presupposes an act of unlawful appropriation, which includes the administration of money contrary to previously made agreements, as well as making the return of money impossible or significantly more difficult. However, this prerequisite is not fulfilled as long as the bridge is paid with money that has previously been dedicated to that particular project. All the more, it is difficult to establish at the point in time when politicians decide on an infrastructure measure. Finally, France has a specific statutory offence for ‘purloining of public property’ in Art. 432-15 PC-France. However, two obstacles hinder an application of this provision to political decisions of the type analysed here in most cases: firstly, there is (as a matter of principle) no criminal liability of individuals for participating in an act of illegal decision-making by a public body in French criminal law. In accordance with this principle, members of a municipality council cannot be liable for ‘purloining of public property’ when their collective decision causes harm to the municipal budget. Without speculating too much, it can be said that this restriction is based on the idea that a collective decision by a democratically legitimated body expresses the will of the local community. Thus, it may be subject to a legality control by administrative courts but not give rise to criminal liability. A narrow exception has been allowed by the Cour de Cassation only for persons initiating the collective decision. Secondly, it is questionable whether criminal liability in these cases would conform to municipalities’ right to self-administration. Traditionally, exceptions from this guarantee are recognised only where a measure is not linked to local public interest (which is difficult to imagine in the case of a local infrastructure measure) or where credits reserved for mandatory expenses are allocated to a different purpose. Taken together, also France has therefore considerable problems to deal with cases where public money is wasted under this property offence. However, a very recent decision illustrates that at least in some cases French politicians do have to fear a criminal conviction for wasting public money: in December 2016, Christine Lagarde was convicted for negligently allowing third persons to misappropriate public funds (Art. 432-16 PC-France, a negligent offence

260

F. Zimmermann

corresponding to Art. 432-15) during her time as a French minister.5 Admittedly, this decision, which was published after the official completion of the present comparative study, concerned a case that was quite different from the one analysed here. The Cour de Justice de la Re´publique was satisfied that Mrs. Lagarde had, on the basis of deficient information, decided not to appeal against a suspicious arbitration decision that ultimately obliged the state to pay some 400 million Euros. Later it turned out that the opponents had indeed obtained this arbitration decision by fraudulent means. Even though convicting Mrs. Lagarde, the court did not impose a penalty against her, taking into account, inter alia, the specific circumstances of the case (the financial crisis) and her high reputation. Coming back to the case under consideration here, this decision shows nevertheless that the offence of Art. 432-16 PC-France could apply, but only under the specific condition that M failed to prevent somebody else from purloining public property. This would, again, be easier to conceive during the implementation of the project, i.e. the ‘who-and-how’ phase.

2. Second Group: Both Types of Offences but Focus on Property Offences This being said, we shall now turn to a second group of legal systems that follow kind of a double-track approach: they have (and in principle could apply) both statutory offences protecting (public) property interests and provisions criminalising a violation of official duties. These countries are Greece and Spain: Art. 259 PC-Greece provides that a public official shall be punished if he/she intentionally violates a duty, which must more precisely be connected to his/her particular work assignment in the service, with the purpose of providing an unlawful benefit to somebody or of harming the State. Furthermore, it must be objectively possible that such effects will actually occur as a direct consequence of the act. Article 404 PC-Spain makes it a criminal offence for a public official to hand down an arbitrary decision in an administrative matter when he/she is aware of that decision’s being unjust. But interestingly, the focus is in both countries nevertheless much more on property offences when public money is wasted, as is the case in the example of the bridge that shall be built in C-City. In Greece, this is already due to the fact that Art. 259 PC-Greece is of a subsidiary nature, so that it does not apply when the respective act is also covered by any other statutory offence. Furthermore, the specific purpose of directly procuring an unlawful benefit to somebody could hardly be established at the level of the ‘if-and-what question’ (and, all the more, it would be difficult to argue that the act could directly produce such effect). The same holds true for the intent to directly

5

Cour de Justice de la Re´publique, case n 2016/001, 19 December 2016.

A Comparative Analysis of Criminal Laws Protecting Public Budgets: Can Bad. . .

261

harm the State when it is actually debated whether the building project would have positive effects. As a consequence, it seems very unlikely that M could be convicted for ‘breach of public duty’ even if his decision violated rules on public constructions. In Spain, the statutory offence of ‘abuse of office’ establishes a very high threshold for criminal liability by requiring the decision to be arbitrary, so that it cannot be justified by any possible interpretation of the law admitted in the legal system. Thus, it is not sufficient that the decision is based on an erroneous, mistaken or disputable legal opinion, but it must contradict the law so clearly that anyone could have known it. Besides, the public official must also have been aware of the decision’s arbitrary nature. And another aspect deserves being mentioned: the prerequisite of a resolution in an administrative matter is considered to exclude ‘political acts’ from the scope of the statutory offence. In a court decision dating from 2015, a case where a politician had misled a regional parliament was not considered to fall under that exception. What gave particular rise to questions was the Catalan Parliament’s call for a referendum on the independence from Spain: whereas the parliamentary vote itself was considered a ‘political act’, the same could—according to a most recent court decision—not be said of the use of resources for the organisation of such referendum.6 So the concept of ‘political acts’ is obviously difficult to apply. But at least as far as the ‘if-and-what question’ is concerned in our case, it does not seem far-fetched to assume that criminal liability would be excluded even if the requirement of arbitrariness was fulfilled. For these reasons, the decision to build the bridge in C-City would in both countries rather be regarded as a property offence, namely ‘embezzlement’ pursuant to Art. 432 in conjunction with Art. 252 PC-Spain and ‘misappropriation’ pursuant to Art. 390 or Art. 256 PC-Greece (it is subject to debate which provision should apply to excessive spending). In both countries, the relevant statutory offences show strong parallels to the German provision on Untreue, but their scope appears to be somewhat more limited: the Greek provisions require that the perpetrator knowingly diminishes public property. Article 256 PC-Greece, which Greek criminal courts would apply to our case, even goes beyond that and presupposes that the perpetrator acted with the purpose of obtaining a pecuniary benefit for himself or a third person which should follow directly from the offence. In Spain, it is rather the damage requirement that narrows the scope of Arts. 432, 252 PC-Spain: although some authors call for an approach that resembles the German ‘individual damage’ doctrine, the prevailing opinion so far applies a strictly economic criterion. Thus, we will ultimately face similar problems as under German law.

6

Tribunal Superior de Justicia de Catalu~na, case 1/2016, 13 March 2017. However, the court was not satisfied that the accused had acted arbitrarily and therefore convicted them only for disregarding a decision of the constitutional court (desobediencia, Art. 410(1) PC-Spain).

262

F. Zimmermann

3. Third Group: Exclusive Focus on Offences Based on Violation of Duties The last group of legal systems has chosen a different approach, in that they would not examine our case from the point of view of property offences at all. Rather, their focus would lie exclusively on the question of whether the political decision-maker acted in breach of official duties. These countries are Italy, Finland and Norway (even though not represented in this comparative study, one might also add Iceland, see Ragnheiður Bragado´ttir’s contribution). Within this group, Art. 323 PC-Italy can probably be said to be the provision with the clearest limitations. This is less due to the requirement that the public official acted ‘in breach of norms of law or regulation’ because courts—contrary to the legislator’s objectives—tend to interpret this element very broadly. But Art. 323 PC-Italy presupposes that the perpetrator procures for himself/herself or for others an unjust patrimonial advantage or causes unjust damage to others (which does not necessarily have to be an economic one). Since these effects are objective elements, they must actually occur. Furthermore, these effects must be produced intentionally. Despite controversies that exist in view of this element, there is consent that the statutory offence is therefore not committed when the public official only accepts a risk but pursues a different aim with his/her act. By contrast, Finland and Norway have adopted provisions that reach a lot further: Ch. 40, sec. 9 of the Finnish PC requires nothing more than that ‘a public official, when acting in his or her office, intentionally [. . .] violates his or her official duty based on the provisions or regulations to be followed in official functions’. However, the scope of the provision is limited by means of a de minimis rule, according to which the act only is to be considered criminal when it is ‘not petty’. A specific intent (as in Greece, for instance) is not required here, but if the perpetrator acts in order to obtain a benefit or in order to cause detriment or loss, the act will constitute the more serious offence of Ch. 40, sec. 7 PC-Finland. In Norway, the situation is quite similar: pursuant to sec. 171 of the Norwegian PC, the violation of an official duty in the exercise of a public office is a criminal offence when it is of gross nature. Again, a specific intent to obtain a benefit—as well as a deliberate violation of duties, a resulting inconvenience or injury or other forms of abuse of authority—constitutes only an aggravating element pursuant to sec. 173 PC-Norway. What further distinguishes Finland and Norway from most of the other legal systems examined in the present study is that they criminalise even negligent behaviour (Ch. 40, sec. 10 PC-Finland and—limited to cases of gross negligence—sec. 172 PC-Norway). In the other states, apparently only Art. 432-16 PC-France—which formed the basis for the conviction of Christine Lagarde, see above—provides for a negligent offence. In Finland, the most important limits to criminal liability are derived from the nature of the official duty that the public official violates. Without establishing unsurmountable hurdles, the jurisprudence emphasises the principle of legality. In one case, for instance, it considered an obligation for public officials to avoid

A Comparative Analysis of Criminal Laws Protecting Public Budgets: Can Bad. . .

263

anything that would be against the interest of the municipality not precise enough. Against this background, it is at least doubtful whether the case concerning the bridge in C-City would entail criminal liability. Furthermore, the negative element that the case must not be a petty one allows for an overall assessment that also takes into account possible effects of the act. Finally, it should not be neglected that the sanction for negligent violation of official duties is a rather unusual one as it merely consists in a warning. By comparison, Norwegian law seems to put less emphasis on the question of how precisely the violated duty was regulated as it takes into consideration also acts that contradict more general principles on how to exercise public authority. However, the requirement that the violation needs to be gross—regarding the degree to which it deviates from the correct course of action and its significance—serves as a certain corrective.

IV. Conclusion As a tentative conclusion, various problems occur when statutory offences aiming at the protection of property shall be used to tackle a waste of taxpayers’ money through political decisions, in particular such in favour of useless, oversized or simply very costly infrastructure projects. Nonetheless, several countries— Germany, Belgium, France, the Netherlands—have chosen this approach, France notably even with an additional negligent offence (Art. 432-16 PC-France). Of the countries that generally criminalise a breach of public duties, Greece, Spain and Italy have adopted rather restrictive models: the Spanish provision on ‘abuse of office’ covers only arbitrary resolutions in administrative matters and excludes ‘political acts’. Article 259 PC-Greece presupposes that the perpetrator acted with the specific purpose of directly obtaining a benefit or harming the State (and that the act was capable of producing the desired effect). Article 323 of the Italian PC requires a patrimonial advantage or (any kind of) harm to objectively occur and combines this with additional subjective elements. In Greece and Spain, the phenomenon of wasting public money is therefore—again—a matter for property offences. Only Finland and Norway provide for rather broad offences whose main element is the violation of an official duty and that can even be applicable in cases of (gross) negligence during the ‘if-and-what phase’. Whether this is indeed a superior model can at least be called into doubt as its ‘price’ is a severe lack of clarity and—at least given the situation in Finland—it is unclear whether it really would strengthen the criminal law protection of public budgets. What could be alternatives? One possibility could be to introduce statutory offences that do not criminalise a breach of duties in general, but of very specific obligations. As an example could serve a Spanish provision (Art. 320 PC-Spain) that obviously reacts to a particular problem as it applies where a public official, knowing the injustice thereof, advises favourably on construction and building measures. Depending on the case, it might also be of relevance for political

264

F. Zimmermann

decision-makers. But whether it is indeed advisable to transfer this model to the area of political decisions affecting public budgets—i.e., an area where vague principles such as the one of cost-effectiveness prevail—is questionable. A different solution could be provided by statutory offences focusing on a conflict of interest. Generally speaking, they address the situation that a public official takes a decision although he/she would not have been allowed to do so for being personally involved in the matter. Provisions explicitly dealing with such cases exist in France, Spain, Greece and Italy. Furthermore, the fact that a public official takes action, although he/she is disqualified by law, can open the door to other offences in Finland (violation of official duty), Norway (economic breach of trust) and Belgium (interfering in granting an agreement). What becomes obvious, though, is that these provisions clearly do not have in mind what we referred to as the ‘if-and-what question’: they rather cover the case that a particular contractor is awarded the project because the decision-maker expects a personal benefit—the ‘who question’. The same holds true for offences like ‘favouritism’ in France, which punish violations of public procurement rules. What remains for the earlier phase where decisions on the ‘if and what’ of a project are taken—do politicians have carte blanche to waste public money? Obviously not. But maybe it is not a task for criminal law and criminal courts to intervene here. Instead, supervisory mechanisms that already exist in public law— such as legality controls by higher authorities—could be strengthened. Such an approach would reflect limitations to criminal liability as the ones we found in Spain (the exception for political acts) and France (no individual criminal liability for decisions taken by a democratically legitimated municipal body). Ultimately, it could also avoid that citizens who commit themselves to the community have to fear too far-reaching criminalisation. Frank Zimmermann is post-doctoral research fellow at the chair of Prof. Dr. Helmut Satzger, Ludwig-Maximilians-Universita¨t München.

Criminal Responsibility of Political DecisionMakers and Bribery-Related Offences: A Brief Comparative Analysis of Some Prominent Aspects Manuel Maroto Calatayud

I. Introduction The meaning of corruption is certainly not something that can be said to be particularly clear, neither from a legal nor socio-political point of view.1 The most common definitions (e.g., ‘the use of a public position in pursuit of private advantages’) are broad enough to include under their scope a wide range of different activities, from accepted political action to political wrongs and, ultimately, criminal offences. The notion of corruption can only be considered as an ever-changing social and political construction, whose boundaries depend on similarly shifting conceptions of what is to be understood as ‘legitimate politics’ in a given political and legal system and particularly on concrete understandings of what the limits between the public and the private spheres should be. As we will remark throughout this chapter, this broadness has allowed for the meaning of corruption to expand from more or less restrictive conceptions of bribery towards broader definitions of offences. While corruption can therefore be a very challenging notion to grasp, bribery would initially appear to have the virtue of contractual clarity: a decision is made in exchange for a benefit. This clarity (more apparent than real, as we will see later on) has much to do with the social meaning of money as a substitute or equivalent for personal values2 and also as a form of value that makes possible the secrecy, invisibility and silence of the exchange.3 Money is considered the universal

1

J. Gardiner, Defining corruption, in: Heidenheimer/Johnson (eds.), Political corruption: Concepts and contexts, 2002 (Transaction Publishers, New Brunswick), p. 25. 2 G. Simmel, The Philosophy of Money, 2004 (Routledge, London), p. 357. 3 Simmel (note 2), p. 387. M. Maroto Calatayud (*) University of Castilla-La Mancha, Toledo, Spain e-mail: [email protected] © Springer International Publishing AG 2017 F. Zimmermann (ed.), Criminal Liability of Political Decision-Makers, DOI 10.1007/978-3-319-52051-3_13

265

266

M. Maroto Calatayud

mechanism of influencing (buying and selling) political and administrative decisions, in a way that naturally reproduces the logic of the private markets into the sphere of public decision-making. This is probably why, despite the extraordinary semantic elasticity of the term ‘corruption’, its core meaning remains commonly associated to modalities of bribery or activities that, translated into legal terms, would fundamentally qualify as bribery or other bribery-based crimes such as influence peddling or some forms of punishable conflicts of interests. While the core meaning of bribery tends to be somehow constant in a historical analysis, ‘the concrete constituting element, what counts as “an inducement” and “improperly influencing”, changes with culture’,4 and ‘the concept of a bribe contracts or expands with conventions, laws, practices’.5 The distinction between gifts and bribes would constitute a ‘perpetual moral dilemma’,6 a dilemma that is probably more explicitly addressed in the work of those sociologists who have explored the functions performed by gifts and reciprocity in social interactions7 but which is also clearly present in legal analyses and discourses on bribes and corruption. In fact, global anti-corruption legislation has proliferated in the last 20 years in an extremely remarkable way. It has been predominantly so during the ’90s and early 21st century, a short period of time during which international conventions and legal instruments on the matter ‘mushroomed’ at the same time that the countries of the former Soviet Union joined the global economy, and a new geopolitical phase began due to increased pressure by international financial institutions (particularly the World Bank and the IMF) and the United States towards the (neo)liberalisation of national economies. Almost every international institution passed an anti-corruption agreement between 1989 and 2003 (see Table 1). This normative explosion seems to reflect two different interrelated phenomena. On the cultural and political field, on the one side, we can identify a general process that Akerstrom8 has defined as ‘the expansion of the Bribery Gaze’, a cultural and political climate that probably originated in the post-Watergate US of the ’70s, which has, however, spread internationally. This broad ‘gaze’, a term understood in the Foucauldian sense9 of a particular dynamic in collecting information and knowledge, producing discourses, practices, categories of people, etc., is characterised by a ‘heightened awareness of the risks of gift exchanges, a symbolic

4

M. Akerstrom, Suspicious Gifts: Bribery, Morality, and Professional Ethics, 2013 (Transaction Publishers, New Brunswick), p. 4. 5 J. T. Noonan, Bribes: The Intellectual History of a Moral Idea, 1987 (University of California Press, Berkeley), p. xi. 6 Akerstrom (note 4), p. 4. 7 M. Mauss, The gift: The form and reason for exchange in archaic societies, 2002 (Routledge, Abingdon); A.W. Gouldner, The norm of reciprocity: A preliminary statement, American Sociological Review, 25 (1960), pp. 161-178. 8 Akerstrom (note 4), p. 2. 9 M. Foucault, Discipline and punish: The birth of the prison, 1995 (Vintage, New York).

Criminal Responsibility of Political Decision-Makers and Bribery-Related. . .

267

Table 1 A list of relevant events related to anti-corruption normative production (1989–2003) Year 1989 1993 1994 1996 1997 1997 1999 1999 2000 2003

Event OECD ad hoc working group on bribery of foreign public officials Peter Beigen, former officer of the World Bank, creates the multinational NGO Transparency International OECD recommendation on Bribery in International Business Transactions Inter-American Convention Against Corruption OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions European Union Convention against corruption involving officials of Member States of the European Union Council of Europe Criminal Law Convention of Corruption Council of Europe Civil Law Convention on Corruption United Nations Convention against Corruption African Union Convention on Preventing and Combating Corruption

sorting, efforts to specify and define, debasements of social efforts, widespread scandal reporting, and a discourse on the hypocrisy of politicians and others’.10 Moreover, from a more narrowly legal point of view, the emerging anticorruption legal instruments and discourses have produced new definitions of bribery and bribery-related offences that are both the result of the late developments of international capitalism (particularly, the push of the United States for the criminalisation of international bribery after its own legislation in the ’70s put the country in a competitive disadvantage) and an attempt to shape and clarify the boundaries of legitimate politics and legitimate business. Together with the expansion of anti-corruption legislation, there seems to be, more recently, an increased attention for the potential risks of criminalising legitimate politics11 and therefore an attempt for a parallel process of producing a system of safeguards against the potentially chilling effect of anti-corruption legislation. An example of this would be the report ‘Keeping Political and Criminal Responsibility Separate’, of the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly (PACE): while it was being drafted, the CoE asked the Venice Commission for an opinion on this topic from a comparative constitutional law perspective.12 One of the purposes of this chapter is to explore some of the aspects reflecting these expanding definitions of bribery in the different national legal systems we address

10

Akerstrom (note 4), p. 165. H. Satzger/F. Zimmerman/M. Eibach, Does Art. 18 ECHR grant protection against politically motivated criminal proceedings?, European Criminal Law Review 4 (2014), pp. 91-113; O. Kirchheimer, Political justice: the use of legal procedure for political ends, 1961 (Princeton University Press, Princeton). 12 Venice Commission, Report on the relationship between political and criminal ministerial responsibility, 2013, adopted by the Venice Commission at its 94th Plenary Session, available at: http://www.venice.coe.int/webforms/documents/default.aspx?pdffile¼CDL-AD(2013)001-e (last accessed 3 November 2016). 11

268

M. Maroto Calatayud

Fig. 1 An ideal pyramid of political and legal systems of responsibility and accountability

and the extent to which they have legally conformed an important device for the regulation of political activities that used to be free from the intervention of the criminal law, therefore transforming the scheme of what is usually considered to be the proper hierarchy of political and legal systems of responsibility and accountability (see Fig. 1). We will do this by focusing on some concrete legal aspects of bribery offences that seem to be remarkable in the various countries we have studied, mainly the definition of what is a bribable authority and what should be considered to be a conflict of interest that deserves criminal sanctions. For the purpose of the present analysis, the common denominator of these offences seems to be twofold: the exercise of or offer to exercise a public function by a public officer or authority, as a result of the reception or expectation of a financial gain or advantage for him or a third party. In real legal political and social scenarios, almost each of these core elements of the definition of bribery (authority, public function, causality, financial gain, etc.) constitutes very politically charged terms that are remarkably open to interpretation. For methodological reasons, in this comparative analysis we attach special importance to the personal benefit requirement, particularly so in order to differentiate these offences from those others that are more clearly grounded in the causation of financial harm, the mismanagement of public funds or generally bad decision-making (see Frank Zimmermann’s report on abuse of trust and similar offences). Of course, the distinction is not, however, always easy to make. As some commentators have remarked, one of the main obstacles to the successful implementation of anti-corruption legislation ‘has been the definition of bribe and graft as

Criminal Responsibility of Political Decision-Makers and Bribery-Related. . .

269

involving only money or favours and other benefits. Hence there is a need for a balance between a strict approach, likely to unduly criminalise a wide range of legislative and executive agreements, and a restrictive approach, in which the corrupt purpose of the unlawful transaction must be proved’.13

II. Some Remarks on the Harmonisation of the Definition of Bribery There seems to be an important degree of homogeneity in regard to bribery offences in the legal systems analysed for the purposes of this chapter. In terms of the potential over-criminalisation of political activities, this set of crimes might be less controversial and vague than others, such as those related to abuse of office or trust, due to the existence of some elements of the crime that usually limit the breadth of application of bribery offences. Some of these elements would be as follows: – The requirement of strong modalities of intention: most countries analysed require direct intention, excluding dolus eventualis or negligence. – The explicitness requirement: an express agreement to perform a duty in payment for a reward is usually necessary. – The specificity requirement: the advantage given, offered or requested has to be connected and aimed at influencing a concrete official action. – The undue nature of the advantage: this is often alleged to exclude hospitality practices, gifts of little value and socially or legally accepted practices. – The unlawful nature of the official act: most systems differentiate between an unlawful official act and an act that complies with the duties of the position but is influenced by the bribe. Both modalities are, however, usually criminalised. – The nature of the bribe: most countries reviewed here will consider as bribes both material (pecuniary or not) and immaterial advantages. It remains problematic, however, to define how ‘immaterial’ or abstract the advantage can get. It seems particularly important to consider if simple electoral advantage or the prospect for better positions in the party or the administration should qualify as a bribe. – The moment the bribe was paid: most countries provide for bribery provisions that include both precedent bribery and subsequent bribery. All these requirements and elements pose challenges and differences in the reception of bribery offences across different countries.14

13

L. Holden, Bribery and graft, in: Beare (ed.), Encyclopedia of transnational crime and justice, 2012 (SAGE, Los Angeles, London, New Delhi, Singapore, Washington DC), p. 35. 14 See, for example, UNODC, Conference of the States Parties to the UNCAC, Implementation of chapter III (Criminalization and law enforcement) of the United Nations Convention Against

270

M. Maroto Calatayud

In this chapter, on the basis of our national reports and other valuable sources of comparative information, particularly the evaluation processes of the Group of States against Corruption (GRECO)15 and those of the United Nations Office on Drugs and Crime (UNODC),16 we are going to focus only on some aspects of these problematical elements. On the one side is the problem of ‘democratic delegates’ or members of the legislative branch, who receive in some countries a different legal treatment, not being considered civil servants working for the state administrative structure. These countries (it is remarkable the case of Germany) have often introduced into their legislation specific crimes for this category of people. A second connected problem has to do with the coverage of political candidates as subject to criminal responsibility for bribery-based offences. The original attention of the international instruments against corruption (it is the case, in particular, of the OECD convention) was fundamentally put on international business activities, while areas such as corruption of candidates, campaigns and political party finance were mostly ignored. Candidates and parties have traditionally been subject to regulations that substantially differ from those applicable to public officials, despite the closeness between both categories, from a functional and sometimes also legal point of view. Until relatively recently, political finance regulation remained generally outside the scope of the harmonisation efforts of most international organisations, and most countries did not provide for criminal sanctions for illegal party finance, a common practice allowing for the circumvention of bribery statutes. The 2007 global economic crisis seemed to alter the interest on anticorruption as a tool for regulating global markets, turning the attention to different economic goals: austerity, debt, deficit control, particularly in southern economies. At the same time (2007–2016), the GRECO evaluated the implementation of both the CoE Criminal Law Convention of Corruption and the Recommendation Rec (2003)4 on Common Rules against Corruption in the Funding of Political Parties and Electoral Campaigns. This evaluation has had an important impact on the ‘harmonisation’ of core bribery and corruption offences, and partly of campaign and party funding rules as well. A third issue tackled here are the problems of reception and criminalisation of ‘trading in influence’, a less common provision despite its recognition in the various international anti-corruption instruments.

Corruption (review of articles 15-29), 2014, p. 9 (available at https://www.unodc.org/documents/ treaties/UNCAC/WorkingGroups/ImplementationReviewGroup/2-6June2014/V1401640e.pdf, last accessed 3 November 2016), regarding challenges to the implementation of the 2003 United Nations Convention against Corruption (UNCAC). 15 See https://www.coe.int/t/dghl/monitoring/greco/evaluations/round3/ReportsRound3_en.asp. 16 See http://www.unodc.org/unodc/en/treaties/CAC/country-profile/index.html.

Criminal Responsibility of Political Decision-Makers and Bribery-Related. . .

271

III. The Problem of Bribery of Members of Parliament or Municipal Councils One interesting question raised by our enquiry of the national cases is the extent to which bribery offences are applicable; it is applicable not only to public officials performing administrative functions but also to other public authorities of a political nature, usually democratically elected positions performing legislative or executive tasks, who also fall under the scope of the offence. Being an explicit requirement in most of the international conventions against corruption,17 among the countries analysed here the coverage of parliamentarians and members of other political assemblies is indeed the general approach. While members of Parliament or municipal councils are not considered civil servants from an administrative law point of view, and therefore some criminal codes introduce distinctions between public officers and elected persons (e.g., Spain, Finland, etc.), in most cases they are ultimately equated as subjects of criminal responsibility, either by explicitly extending the scope of the concept of public officer to representative authorities (e.g., the Netherlands) or by going beyond that formula to cover all persons performing public functions (e.g., France, Spain). A public official would then be anyone who is entrusted with public functions, by the very virtue of the public nature of these functions and regardless of the person’s hierarchical dependence on other authorities. ‘According to this concept, the notion of public official covers, for instance, members of Parliament, members of Government, judges, public prosecutors, members of local governments, contractual employees of state agencies and employees of publicly-owned enterprises. In Greece, even employees of private legal persons which the State, public legal persons or banks based in Greece by virtue of the law or of their statute subsidise or finance, are covered.’18 The Greek case is indeed particularly representative of an extraordinary expansion of the notion of public official for the purposes of anti-corruption criminal legislation. In a way that is particularly illustrative of how this process reflects the social and economic transformations provoked by austerity measures in Greece, Athina 17

CoE Criminal Law Convention on Corruption, Art. 4 – Bribery of members of domestic public assemblies: Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law the conduct referred to in Art. 2 and 3, when involving any person who is a member of any domestic public assembly exercising legislative or administrative powers. See also UNCAC 2003, Art. 2(a): ‘“Public official” shall mean: (i) any person holding a legislative, executive, administrative or judicial office of a State Party, whether appointed or elected, whether permanent or temporary, whether paid or unpaid, irrespective of that person’s seniority; (ii) any other person who performs a public function, including for a public agency or public enterprise, or provides a public service, as defined in the domestic law of the State Party and as applied in the pertinent area of law of that State Party; (iii) any other person defined as a “public official” in the domestic law of a State Party. However, for the purpose of some specific measures contained in chapter II of this Convention, “public official” may mean any person who performs a public function or provides a public service as defined in the domestic law of the State Party and as applied in the pertinent area of law of that State Party.’ 18 D. D€ olling, General Report, Revue Internationale de Droit Pe´nal 2003/1 v. 74, p. 38.

272

M. Maroto Calatayud

Giannakoula’s national report describes this as a result of ‘the obligations Greece has undertaken within the EU and other international organisations, and, on the other hand, [. . .] the modern development of the State being substituted by private entities as far as satisfying the supply of public goods is concerned’. In different national legal systems, some authorities fall outside the concept of public official. As we have previously noted, the UNODC evaluation of the implementation of the UNCAC19 found that the exclusion of parliamentarians from the scope of bribery provisions was present in 19% of the countries they evaluated (see Fig. 1); in our sample (see Table 2), it is only Germany and Finland that exclude MPs from the concept of public officer, having instead implemented specific offences to sanction the bribery of these authorities. This has been, indeed, an important issue in Germany and, until recently, one of the main obstacles for the country’s ratification of the UNCAC.20 It was not until as late as 1993 that, with the introduction of a specific offence to cover such conduct, bribery of members of Parliament constituted a criminal offence in Germany, a peculiarity caused by the fact that members of Parliament are not considered to be civil servants (Amtstr€ ager).21 The German legal system is not the only one with such differentiated treatment for parliamentarians (similar controversies have taken place, for example, in Finland,22 Austria until 201323 and the UK24). It is not the only case either where there are additional restrictive elements in the offence of bribery of parliamentarians. As described in Frank Zimmermann’s German national report, originally ‘§108e PC criminalised only the buying and selling of a vote’, but ‘the current text of the provision sets a lower threshold: the act that is expected from the mandate holder in exchange for the benefit must be performed “in exercise of the UNODC (note 14), p. 8: ‘The most common challenges in the implementation of article 15 related to the application of the bribery offence to benefits extended to third persons and entities (30 per cent of cases), the scope of the undue advantage, in particular as regards non-material benefits and “facilitation payments” (20 per cent of cases), the scope of public officials covered by the bribery offence, in particular the application to members of Parliament (19 per cent of cases), the coverage of indirect bribery in accordance with article 15 (15 per cent of cases), the coverage of the promise, in addition to the offer or exchange, of an undue advantage (9 per cent of cases) and applicable distinctions between acts within and outside the scope of official duties of public officials (7 per cent of cases).’ 20 M.T. Funk, Germany’s Foreign Anti-corruption Efforts: Second-Tier No More, Zeitschrift für Deutsches und Amerikanisches Recht, 1/2014, p. 24. 21 S. Wolf, Political Corruption as a Regulatory Problem in Germany, German Law Journal, 14 (2013), p. 1628. 22 UNODC, Review of implementation of the United Nations Convention against Corruption, Vienna, 7-9 September 2011 (available at: https://www.unodc.org/documents/treaties/UNCAC/ WorkingGroups/ImplementationReviewGroup/7-9September2011/V1183525e.pdf, last accessed 3 November 2016). 23 D€ olling (note 18), p. 34; E.E. Fabrizy, Autriche/Austria, Revue internationale de droit pe´nal, 74 (1), 2003, p. 117. 24 P. Leopold, The application of the civil and criminal law to members of Parliament and parliamentary proceedings, in: Oliver/Drewry (eds.), The Law and Parliament, 1998 (Butterworths, London), p. 74. 19

Criminal Responsibility of Political Decision-Makers and Bribery-Related. . .

273

Table 2 Coverage of bribery provisions to members of Parliament

Country Belgium Finland France Germany Greece Italy Netherlands Norway Spain

Members of Parliament are considered public officials for the purposes of bribery x

Members of Parliament are not considered public officials for the purposes of bribery

Specific crime for bribery of members of Parliaments

x

x

x

x x

x x x x x x

x

Table 3 Coverage of bribery provisions to members of municipal councils

Country Belgium Finland France Germany Greece Italy Netherlands Norway Spain

Members of municipal councils are considered public officials for the purposes of bribery x x x

Members of municipal councils are not considered public officials for the purposes of bribery

x x

x x x x x

Specific crime for bribery of members of municipal councils

x x

mandate”’. Similar restrictions to the ‘buying and selling of votes’ were present in Finland until recent changes were introduced.25 A parallel pattern is observed when dealing with the members of municipal councils (see Table 3).

25

UNODC, Mechanism for the Review of Implementation of the United Nations Convention against Corruption. State under Review: Finland, July 21 2011, available at: http://www.unodc. org/documents/treaties/UNCAC/CountryVisitFinalReports/2011_07_21_Finland_final_country_ review_report.pdf (last accessed 3 November 2016).

274

M. Maroto Calatayud

IV. The Problem of Bribery of Political Candidates A further aspect related to the definition of public officials and therefore to the subjective scope of bribery offences is the application of those provisions to political candidates running for a publicly elected position, and therefore not formally being considered public officials yet. The shortest answer to this question is that traditionally, in most states, neither candidates nor functionaries of political parties have been considered public officials.26 Therefore, they have remained outside the scope of general bribery provisions. However, this is not exactly always the case, and two major trends towards the extension of bribery-like provisions to political candidates can be highlighted. The first one is the explicit extension of the subjective scope of bribery provisions to political candidates and even party officials in some international instruments against bribery. This trend was especially launched by the United States and the Foreign Corrupt Practices Act (FCPA) of 1977,27 which forbid American companies and individuals to pay bribes not only to foreign public officials but also to a foreign political party or official thereof or any candidate for foreign political office for purposes of (A) influencing any act or decision of such party, official, or candidate in its or his official capacity, including a decision to fail to perform its or his official functions; or (B) inducing such party, official, or candidate to use its or his influence with a foreign government or instrumentality thereof to affect or influence any act or decision of such government or instrumentality.

While this FCPA provision was not transferred into the international legal instruments on corruption directly, the conventions leave an open door to covering candidates by making references to national legal principles and by broadly mentioning the exercise of public functions. The official commentaries to the OECD convention, for example, foresaw the possibility that in special circumstances, public authority may in fact be held by persons (e.g., political party officials in single party states) not formally designated as public officials. Such persons, through their de facto performance of a public function, may, under the legal principles of some countries, be considered to be foreign public officials.28

26

D€ olling (note 18), p. 39. The formal prohibition to finance foreign candidates constituted a mayor policy shift in the US, since it was a common instrument for the promotion of American foreign policy interests during the Cold War. See, as an illustrative example, J.E. Miller, Taking off the gloves: The United States and the Italian elections of 1948, Diplomatic History 7(1), 1983, pp. 35-56. 28 OECD, Commentaries on the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, 1997, Adopted by the Negotiating Conference on 21 November 1997. 27

Criminal Responsibility of Political Decision-Makers and Bribery-Related. . .

275

Similar problems have arisen during the evaluation of the implementation of the UNCAC.29 This expansion has also been a feature of international legislation against money laundering, particularly regarding the definition of who are to be considered ‘politically exposed persons’ (PEP) and therefore subject to stricter financial supervision.30 A second trend is an international increase in the area of regulation of political campaign and political candidates funding, even in countries (such as the Scandinavian legal systems) that have traditionally showed levels of high trust in political parties and institutions and correlatively used to be reluctant to regulate the field of party finance. The recent monitoring of COE Recommendation 1516 (2001) on the financing of political parties by the GRECO seems to have played an important role on this respect. In this area of anti-corruption regulation, administrative infractions and sanctions applicable both to political candidates and to political parties themselves as legal persons have been the most common ones usually employed, but an increase in the resort to criminal sanctions as a regulatory tool seems to be perceivable as well. A quick look at our sample of countries (see Table 4) demonstrates a similar pattern. Of the nine national systems analysed, only Greece and Finland seem to establish in their criminal codes that political candidates can receive the same treatment as public officials for the purpose of applying bribery provisions. In all the national legal systems, we found administrative regulations of campaign finance, and in most of them (with the exception of the Netherlands) there are also criminal sanctions attached to different irregularities in campaign funding. In two cases, Greece and Italy, we find that specific bribery offences applicable to political candidates have been introduced into the criminal code.

29

UNODC, State of implementation of the United Nations Convention against Corruption Criminalization, law enforcement and international cooperation, 2015 (United Nations, New York), p. 7; available at: https://www.unodc.org/documents/treaties/UNCAC/COSP/session6/15-03457_ ebook.pdf (last accessed 3 November 2016). 30 UNODC, Articles of the United Nations Convention against Corruption on asset recovery: analysis of reported compliance and policy recommendations, 2009, p. 57; available at: https:// www.unodc.org/documents/treaties/UNCAC/COSP/session3/V0987578e.pdf (last accessed 3 November 2016): ‘The precise definition of PEPs remains highly debated within international spheres. This ambiguity has obvious negative implications for targeting individuals to whose accounts financial institutions will be expected to apply enhanced scrutiny. The Financial Action Task Force (FATF) defines PEPs as “individuals who are or have been entrusted with prominent public functions in a foreign country, for example Heads of State or of government, senior politicians, senior government, judicial or military officials, senior executives of state owned corporations, or important political party officials. Business relationships with family members or close associates of PEPs involve reputational risks similar to those with PEPs themselves”. States should conform their legal definitions of PEPs to such standards and consider expanding such definitions to domestic prominent officials. Notably, this definition is not intended.’

276

M. Maroto Calatayud

Table 4 Treatment of political candidates for the purposes of bribery provisions

Country Belgium Finland France Germany Greece

Candidates equivalent to public officials

Candidates not equivalent to public officials x

Special bribery offences covering political candidates

x x x x

Italy

x

Netherlands Norway Spain

x x x

x (bribery of candidates) x (electoral bribery)

Special criminal offences related to illegal party and campaign funding x x x x x

Special administrative infractions related to illegal party and campaign funding x x x x x

x

x

x x

x x x

V. Trading in Influence and Conflict of Interests Earlier in this chapter, we mentioned some of the substantive and interpretative problems that are common when applying bribery offences: scope of public official duties, coverage on indirect bribery, scope of undue advantage, coverage of promise and offers of undue advantage, benefits extended to third persons and entities, etc. There are, as well, and maybe more importantly, other obstacles that are more procedural in nature, particularly the difficulties to prove the do ut des connection between the benefit and the performance of the official act (for a detailed account, see Frank Zimmermann’s German report). Partly in order to circumvent these substantive and procedural difficulties, other offences, sharing a common core with bribery provisions but departing from them in the relaxation of some of the requirements of the former, have become increasingly common: trading in influence and offences based on the criminalisation of conflicts of interests. These formulations are not particularly new or, for some commentators, effective,31 and

31

According to R. Kaye (Corruption versus Conflict of Interest: the British Experience, ESRC Centre For Analysis of Risk and Regulation, London School of Economics and Political Science Paper, 2003), and in relation to the British experience, ‘conflict of Interest regulation, in truth, does little to tackle the most egregious cases of corruption. The most that can perhaps be said in cases of outright corruption is that there is an alternative crime if the evidential burden for corruption cannot be overcome. So just as Al Capone was eventually jailed on tax charges, the person who takes bribes but denies that payments were linked to his official behaviour, can be penalised for failing to disclose those payments’.

Criminal Responsibility of Political Decision-Makers and Bribery-Related. . .

277

Table 5 Implementation of trading in influence and criminal/administrative provisions for conflict of interest

Country Belgium Finland France Germany Greece Italy Netherlands Norway Spain

Trading in influence is an autonomous offence x

Trading in influence is not an autonomous offence

Specific criminal law provisions for conflicts of interest

x x

x x

x x

x x

x x

x x

Administrative law provisions for conflicts of interest x x x x x x x x x

their expansion and harmonisation have been somewhat different from bribery offences. Trading in influence has been specifically formulated as an offence differentiated from bribery in the international anti-corruption conventions.32 Its implementation in our sample of cases seems to be majoritarian but more irregular and less homogenous than it was the case with bribery offences, as we can observe in Table 5. Trading in influence constitutes an autonomous offence in most of the legal systems of our sample (6 out of 9, excluding Finland, Germany and the Netherlands), but its reception has been often problematic. The qualms against this offence are similar to those identified in regard to the bribery of parliamentarians and

CoE 1997 Convention, Art. 12 – Trading in influence: ‘Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally, the promising, giving or offering, directly or indirectly, of any undue advantage to anyone who asserts or confirms that he or she is able to exert an improper influence over the decision-making of any person referred to in Articles 2, 4 to 6 and 9 to 11 in consideration thereof, whether the undue advantage is for himself or herself or for anyone else, as well as the request, receipt or the acceptance of the offer or the promise of such an advantage, in consideration of that influence, whether or not the influence is exerted or whether or not the supposed influence leads to the intended result’. See also UNCAC 2003, Art. 18 – Trading in influence: ‘Each State Party shall consider adopting such legislative and other measures as may be necessary to establish as criminal offences, when committed intentionally: (a) The promise, offering or giving to a public official or any other person, directly or indirectly, of an undue advantage in order that the public official or the person abuse his or her real or supposed influence with a view to obtaining from an administration or public authority of the State Party an undue advantage for the original instigator of the act or for any other person; (b) The solicitation or acceptance by a public official or any other person, directly or indirectly, of an undue advantage for himself or herself or for another person in order that the public official or the person abuse his or her real or supposed influence with a view to obtaining from an administration or public authority of the State Party an undue advantage.’

32

278

M. Maroto Calatayud

members of municipal councils: arguments grounded on important philosophical concerns on the nature of political representation coexist with more mundane worries on, for example, the restriction of lobbying activities. As Slingerland33 summarises, some of the states ratifying the CoE convention made reservations to the provision on trading in influence (Art. 12) using mainly four different arguments. First, some states have argued that they have similar provisions in place that are equivalent to trading in influence, either regular bribery provisions in themselves or through the application of general rules on participation or plurality of offences. A second argument is indeed that trading in influence could have a detrimental impact on lobbying activities. This concern was manifested during the visits of the GRECO evaluating the implementation of the CoE convention by countries such as the Netherlands, and it might have a particular weight for other legal systems such as Belgium since Brussels is today one of the major centres of international lobbying. A third argument would have to do with the complex structure and vagueness of the provision. A fourth argument (made, for example, by France to allow the influence by a French party on a foreign public official) is well known in other areas of international anti-corruption legislation: ‘businesses and nationals of Member States which have made a reservation, have an advantage in competition now that this form of influencing decision-making is not a criminal offence’.34 As for conflict of interest, its meaning, however, is not expressly defined in international instruments,35 neither as an autonomous criminal offence nor even as 33

W. Slingerland, The fight against trading in influence, Public Policy and Administration 10 (1), 2011, p. 53-66. 34 Slingerland (note 33), p. 56. 35 European Commission, COM (2011) 308 final (available at: http://eur-lex.europa.eu/legalcontent/EN/TXT/?uri¼CELEX%3A52011DC0308, last accessed 3 November 2016): ‘The current EU legal framework on public procurement does not include specific provisions on prevention and sanctioning of conflicts of interest, and comprises only few specific rules on sanctioning favouritism and corruption. In January 2011, the Commission launched a consultation on the modernisation of EU public procurement policy. It raises the question whether a common definition of conflict of interest and possible safeguards against such situations are needed at EU level, including the publication of concluded contracts to enhance transparency, the extension of exclusion grounds and ’self-cleaning’ measures. In the preparation of a modernised EU public procurement legislation, the Commission will carefully consider these issues. In this context, the Commission will also consider proposing legislation on concessions to create better conditions for the fair and competitive award of these contracts, thus reducing the risks of corruption.’ See also L. Esadze, Guidelines for Prevention of Conflict of Interest, Policy and Legal Advise Centre, 2013, p. 2 (available at: http://www.info-evropa.rs/wp-content/uploads/2013/11/Londa-Esadze-Guide lines-for-Prevention-of-Conflict-of-Interest.pdf, last accessed 3 November 2016): ‘Major international standards defining conflict of interest are: – The OECD “Guidelines for Managing Conflict of Interest in the Public Service” – The Council of Europe Resolution (97)24 on the “Twenty Guiding Principles for the Fight against Corruption”, (especially its guiding principles 1, 3, 7, 10 and 20) – The Council of Europe Recommendation No. R (2000)10 of the Committee of Ministers to Member states on “Codes of conduct for public officials”, (Articles 13 to 18 of the Model Code of Conduct for Public Officials) – The United Nations Convention against Corruption (articles 5, 7, 8 and 48).’ See also OECD, Managing Conflict of Interest in the Public Service. OECD Guidelines

Criminal Responsibility of Political Decision-Makers and Bribery-Related. . .

279

a general activity. References to the opportunity of its regulation are, however, present, mostly describing it as a sort of precursor to corruption.36 All countries analysed here had in place administrative systems to control conflict of interest, particularly in the area of public procurement: this seems to be the preferred regulatory instrument. While trading in influence has therefore been construed as a well-defined broader-than-bribery offence, conflict of interest regulation seems to be mostly addressed as an issue related to asset and interest disclosure requirements and the obligation to refrain from participating in the making of decisions that might personally affect the subject. In some cases, we do find specific provisions defining conflict of interests as autonomous offences (Greece or Spain). In some other, conflict of interests might be criminally prosecuted under other offences such as abuse of office (Italy, Finland), breach of trust (Germany, Norway), interference with the granting of public works (Belgium), violation of official duty (Finland), etc.

VI. Concluding Remarks The different elements that are constitutive of the definition of bribery and briberybased offences, and particularly the centrality of the advantage requirement, seem to limit some of the more clearly over-reaching trends that are observable in abuse of office and Untreue type of provisions. Still, we have described in this chapter how the scope of bribery-like provisions has been extended in different countries and in different ways: they have extended their coverage to authorities that used to be excluded from it; the regulation of campaign finance and political candidates’ behaviour also seems to be on the rise; the implementation of concepts that used to be controversial in some constitutional systems, such as trading in influence, seems to be the norm today. Of course, without a more criminological analysis of how these provisions are enforced or not in our sample of cases, we cannot really assess the extent to which these legal transformations are affecting the understanding and operative of democratic politics and political representation. Our analysis on the expansion of bribery offences might, however, be relevant on its own terms, not only from a legal point of view but also as a portrait of a phenomenon reflecting broader social transformations. It is remarkable that Southern Europe, and particularly Greece and Spain, seems to be the region where corruption regulation has advanced the most

and Country Experiences, 2003 (OECD Publications Service, France: Paris), available at: https:// www.oecd.org/gov/ethics/48994419.pdf (last accessed 3 November 2016). 36 UNCAC 2003: ‘Each State Party shall endeavour, where appropriate and in accordance with the fundamental principles of its domestic law, to establish measures 12 and systems requiring public officials to make declarations to appropriate authorities regarding, inter alia, their outside activities, employment, investments, assets and substantial gifts or benefits from which a conflict of interest may result with respect to their functions as public officials.’

280

M. Maroto Calatayud

(criminal liability of political parties, extremely broad conception of the term ‘public official’, extensive catalogue of different corruption offences), and where it presents more potentially overstretching effects, reflecting a transformation of the very conception of politics and statehood whose democratic consequences are yet to be seen. Manuel Maroto Calatayud is Assistant Professor of Criminal Law at the University of CastillaLa Mancha.

A Comparative Analysis of Special Sanctions Applicable to Political Decision-Makers Dan Helenius

I. Generally on Special Sanctions in Regard to Political Decision-Makers This comparative analysis is based on the national reports submitted from the nine legal systems that took part in this project. The basis for these reports was a questionnaire that included a separate section on ‘special sanctions applicable to politicians’. It should be noted that certain national characteristics are largely not accounted for (e.g., the question of who is considered a political decision-maker), but they are instead dealt with in other parts of this publication. Rather, I will try to give an overall picture of the special sanctions that are applicable in the different national systems and point out some similarities and differences. When comparing the special sanctions (that is, in addition to ordinary sanctions such as imprisonment and fines) that are mentioned in the different national reports, four sanctions clearly stand out1: – – – –

dismissal from public office, deprivation of the right to be eligible for public office, deprivation of the right to vote, deprivation of the right to stand for elections.

All legal systems in some form and under certain circumstances provide for the possibility of dismissing a person from public office or an official position following a criminal conviction. As regards deprivation of the right to be eligible for

1 In this comparative analysis, I have opted to use the same terms for these sanctions in regard to all national systems, even though different terms are in some cases used for them in the individual national reports.

D. Helenius (*) University of Helsinki, Helsinki, Finland e-mail: [email protected] © Springer International Publishing AG 2017 F. Zimmermann (ed.), Criminal Liability of Political Decision-Makers, DOI 10.1007/978-3-319-52051-3_14

281

282

D. Helenius

public office, all countries except Finland and Spain provide for this sanction. All countries except Finland, Germany and Spain provide for the possibility of deprivation of the right to vote. Finally, all countries except Finland (and possibly Norway) provide for the possibility of deprivation of the right to stand for elections. Some systems provide for specific sanctions on, e.g., dismissal from office and deprivation of the right to be eligible for public office (e.g., Finland and Norway), while other systems, such as Greece and Italy, provide for an overall sanction of, e.g., ‘deprivation of political rights’, which may include the loss of a number of different rights.

II. Dismissal from Public Office 1. Generally All systems seem to include the possibility of dismissing public officials from office due to criminal offences, even though the provisions vary concerning whether or not this also applies to all elected officials and under which circumstances. Most systems also seem to have special rules on dismissal of members of Parliament and the Government. The provisions that entail dismissal from public office vary to some extent. Some systems, such as Finland, provide for a specific sanction of dismissal from office. Other systems, such as France and Germany, do not include dismissal from office as a specific sanction. Rather, they provide for the possibility of prohibition from being eligible to hold public office, which, when imposed, automatically also entails dismissal from the current office. The possibility of dismissing a person from public office can depend both on the type and severity of offence and the primarily imposed sentence (usually a prison sentence). The Finnish system provides for two different types of dismissal from office: ‘general’ and ‘limited’ dismissal. General dismissal is in principle applicable to all public officials. It constitutes an additional sanction to imprisonment, and its imposition depends on the length of the prison sentence. Limited dismissal is only possible when it is mentioned in a criminal provision, and it can only be imposed for an ‘offence in office’. The scope of application ratione personae of these sanctions varies somewhat: members of a representative body who have been elected in a general election cannot be dismissed from said office by virtue of the general provisions on dismissal from office but can only be dismissed due to an offence in office. In the Dutch system, dismissal from public office is a possible sanction for all forms of public malfeasance and misconduct. In Spain, most corruption-related offences entail the possibility of either ‘special’ or ‘absolute’ dismissal from public office. In Greece, the possibility of dismissal is dependent upon the type and the length of the primarily imposed prison sentence. The Greek system also includes a

A Comparative Analysis of Special Sanctions Applicable to Political Decision-. . .

283

specific provision on dismissal from parliamentary office in cases where a member of Parliament participates in an enterprise handling public constructions.

2. Is Dismissal Discretionary or Mandatory? In several systems, dismissal from office is mandatory in regard to more severe offences but otherwise discretionary, in which case it is often dependent on the offender being ‘suitable to’ continue acting in the office in question or generally as a public official. The Norwegian system provides for the ‘loss of rights’ of political decisionmakers, which includes the deprivation of an official position and deprivation of the right to hold such a position. The imposition of this sanction depends on whether the offence shows the offender to be ‘unfit’ for the position or whether he or she may ‘misuse’ the position in the future. It is additionally required that imposing such a sanction is in the ‘public interest’. The existence of ‘public interest’ is assessed from case to case, where the form and severity of the offence and its connection to the position in question are taken into consideration. In the Finnish system, general dismissal from office is mandatory when a public official is sentenced to life imprisonment. If the public official is sentenced to imprisonment for a fixed period that is at least 2 years, he or she shall be dismissed unless the court deems that the offence does not demonstrate that he or she is unsuitable to serve as a public official or to attend to a public function. If the public official is sentenced for an intentional offence to imprisonment for a period that is less than 2 years, he or she may at the same time be dismissed from office if the offence demonstrates that he or she is apparently unsuitable to serve as a public official or to attend to the public function. In case of limited dismissal that applies only to offences in office, dismissal is usually an unconditional sanction (e.g., for ‘aggravated abuse of public office’). As regards more lenient offences in office (e.g., ‘violation of official duties’), the dismissal from office is left to the court’s discretion, depending on whether the offence indicates that the public official is manifestly unfit for his or her duties. The Greek system contains the possibility of ‘deprivation of political rights’, which also includes dismissal from elected office. A sentence of long-term imprisonment (e.g., for aggravated passive bribery) entails a mandatory dismissal for a certain time period; so does a sentence of short-term imprisonment for an ‘offence related to service’, unless the court decides differently for especially justified reasons. Short-term sentences for certain other types of offences (e.g., for passive bribery) may also entail dismissal, but in these cases it is required that the sentence amounts to a custodial sentence of at least 1 year and that the offence bears ‘racist characteristics’ (i.e., the victim was chosen based on his race, colour, etc.) or displays a ‘moral perversion’ of the offender. In this assessment, the causes of the offence, the type of offence, the manner of commission and other relevant circumstances should be taken into consideration. For instance, the circumstance that the

284

D. Helenius

offender used his position as a politician to commit an offence could possibly constitute a display of ‘moral perversion’. Members of the local government agencies (including mayors and members of the municipal councils) forfeit their office ipso jure following a deprivation of their political rights or a final conviction for any felony or for certain offences (inter alia, bribery and breach of trust). However, when a minister is sentenced to short-term imprisonment, courts are restricted from imposing a deprivation of political rights, including dismissal from elected office.

III. Deprivation of the Right to Be Eligible for Public Office 1. Generally Some systems do not provide for a separate sanction of ‘dismissal from office’. Rather, the possibility of depriving a person of his or her right to be eligible for office automatically entails also a dismissal from office. On the other hand, some systems include a separate sanction of dismissal from office, but such dismissal only concerns the office held during the time of the offence and is not extended to future offices. This concerns mainly Finland. Although the Finnish system provides for the possibility of dismissal from office, this only concerns the current office of the offender and is neither permanent nor temporary, i.e. the offender is free to apply for a new office directly after the dismissal. The possibility of depriving a person of the right to hold public office is usually provided for certain offences in office or offences against public property. In the Dutch system, dismissal from public office and deprivation of the right to be eligible for public office are possible sanctions for all forms of public malfeasance or misconduct. The French system provides for deprivation of the right to hold public office in regard to, inter alia, purloining of public property, favouritism and bribery offences. In Germany, deprivation of the ability to hold public office is possible in cases where a person has been sentenced for a felony (i.e., an offence with a minimum sanction of one-year imprisonment) to a term of imprisonment of not less than 1 year. Deprivation of the ability to hold public office is additionally also possible for certain offences that are not felonies, provided that this is expressly provided for by the relevant provision (e.g., bribing delegates, falsification of election results and subsidy fraud).

2. Is Deprivation Temporary or Permanent? In the systems that provide for deprivation of the right to be eligible for public office, the length of such deprivation can usually be either permanent or temporary,

A Comparative Analysis of Special Sanctions Applicable to Political Decision-. . .

285

depending on the type and severity of the offence or the severity of the primarily imposed sanction. In case of temporary deprivation, the applicable terms vary from 2 years up to 25 years. The French system provides that the prohibition to exercise public office is either permanent or temporary where it is imposed as an additional penalty for a ‘crime’ (offences of the highest gravity) or a ‘de´lit’ (offences of lesser gravity). In the latter case, the prohibition may not exceed a term of 5 years. The Italian system contains a general provision on ‘disqualification from holding office’, which includes, inter alia, disqualification from holding any public office. Disqualification is always permanent in case of bribery, except in cases where the offender is sentenced to imprisonment of less than 3 years. In the case of abuse of office, disqualification can only be temporary; if imprisonment for more than 3 years is imposed, the length of the disqualification is 5 years. If the imposed prison sentence is less than 3 years, the disqualification applies only for the duration of the main sanction. In Germany, the normal period for deprivation of the ability to hold public office is 5 years, but it can also be between 2 and 5 years if the law expressly so provides. The Spanish system provides for two types of deprivation of the right to hold office: ‘special’ and ‘absolute’. Special deprivation entails the dismissal from a concrete position or area of activities (which can be both public and private) related to the committed offence. Absolute deprivation implies a complete prohibition to hold any public position, including also elected offices. Both types of deprivation prohibit the offender from holding the position in question for a specified period of time. After the expiration of this period, the person can in principle apply for the position again. The general maximum term for absolute deprivation is 20 years with the minimum being 6 years. In rare situations (for the offence of ‘rebellion’), the maximum term is 25 years. The general maximum term for special deprivation is also 20 years, but the minimum term is 3 months. The Spanish sanctioning system also includes the possibility of ‘suspension’ from public office, which implies a temporary removal from office. In this case, the general maximum term is 6 years. After this term expires, the person can return to his or her previous position. In the Greek system, dismissal from elected office or a public position is usually connected with a time period during which the person is prohibited from acting in office or such a position. In case of a sentence of long-term imprisonment (5–20 years), this time period is between 2 and 10 years. A sentence of short-term imprisonment (10 days to 5 years) for an ‘offence related to service’ and certain other types of offences entails a dismissal between 1 and 5 years. However, in case of a sentence of life imprisonment, the deprivation of the right to hold public office is permanent.

286

D. Helenius

3. Is Deprivation Mandatory or Discretionary? As with dismissal from office, deprivation of the right to be eligible for public office is often mandatory in regard to more severe offences but otherwise discretionary, in which case it is often dependent on the offender being ‘suitable to’ act as a public official. I here refer to the discussion supra, under II.2.

IV. Deprivation of the Right to Vote 1. Generally Most systems that provide for the deprivation of the right to stand for elections also provide for the deprivation of the right to vote. These sanctions are often connected and dealt with under a general sanction of, e.g., ‘forfeiture of civil rights’ (in France) or ‘deprivation of political rights’ (in Greece). Among the systems that provide for the possibility of depriving persons of their right to stand for elections, only Germany and Spain do not also provide for the deprivation of the right to vote. Deprivation of the right to vote is often connected to political offences, offences in office or offences against the state but may also be dependent upon the primarily imposed sentence (usually a prison sentence). In the Dutch system, the right to vote can be revoked in case of certain specific offences (inter alia, acting contrary to laws and regulations as a minister or state secretary) and provided that a prison sentence of one year or more is imposed. In France, deprivation of the right to vote is possible in regard to, inter alia, purloining of public property, favouritism and bribery offences. According to the Norwegian Constitution, the right to vote is lost by persons who are either sentenced for criminal offences, in accordance with the relevant provisions laid down by law, or who enter the service of a foreign power without the consent of the Government.

2. Is Deprivation Temporary or Permanent? As with deprivation of the right to be eligible for public office, deprivation of the right to vote is often possible to impose either temporarily for a certain time period or permanently. In case of temporary deprivation, the applicable terms vary between 1 year and 10 years. In Italy, deprivation of the right to vote is always permanent in case of bribery, except in cases where the offender is sentenced to imprisonment of less than 3 years. In the case of abuse of office, deprivation can only be temporary; if imprisonment for more than 3 years is imposed, the length of the deprivation is

A Comparative Analysis of Special Sanctions Applicable to Political Decision-. . .

287

5 years. If the imposed prison sentence is less than 3 years, the deprivation applies only for the duration of the main sanction. In the Greek system, deprivation of the right to vote is usually imposed for a certain time period. In case of a sentence of long-term imprisonment (5–20 years), this time period is between 2 and 10 years. A sentence of short-term imprisonment for an ‘offence related to service’ and for certain other types of offences entails a deprivation of the right to vote between 1 and 5 years. However, in case of a sentence of life imprisonment, deprivation of the right to vote is permanent. In the French system, deprivation of the right to vote may not exceed 10 years in the case of a sentence imposed for a ‘crime’ and 5 years in the case of a sentence imposed for a ‘de´lit’.

3. Is Deprivation Mandatory or Discretionary? In the French system, deprivations of the right to vote and the right to stand for elections do not form independent sanctions but are part of a wider array of additional sanctions, from which the courts may choose taking into consideration the specific circumstances of the case. These types of additional sanctions are provided for a wide variety of offences. Consequently, the difference from one offence to another is not which additional sanctions are provided for but which of them are most frequently imposed by judges. However, it would seem hard to find reliable data on this matter. The Greek system contains the possibility of ‘deprivation of political rights’, which also includes the deprivation of the right to vote. Such deprivation is often mandatory. Since the conditions are the same as in regard to dismissal from public office, I refer to the discussion supra, under II.2.

V. Deprivation of the Right to Stand for Elections 1. Generally As already noted, the rights to vote and to stand for elections are often regarded as ‘civil’ or ‘political’ rights, and the deprivation of these rights are usually connected. Among all the compared systems, Finland would seem to be the only one that does not under any circumstances provide for the possibility of depriving persons of their right to stand for elections. In fact, until 1993, the Finnish sanctioning system included the possibility of revoking a person’s right to be eligible for parliamentary and presidential elections due to certain election offences. The significance of this sanction was, however, regarded as minor, and there was not considered to be any practical needs for such a sanction. It was considered sufficient that the Parliament

288

D. Helenius

has the possibility of dismissing a representative from office under certain circumstances.2 Although the Finnish system does provide for the possibility of dismissal from office in regard to persons holding a position of trust, such dismissal does not prevent the person from being re-elected to the same position in future elections. Accordingly, it is not possible to dismiss, e.g., a member of the municipal council from his or her position of trust if he or she has been re-elected after committing an offence. The same also applies to members of Parliament. Even though members of Parliament can under certain conditions be dismissed from office, this only concerns the current electoral period and does not prevent the person from being re-elected in future elections. In Norway, the deprivation of the right to hold a position would initially seem to apply only temporarily to persons elected through direct elections. Dismissal from office of a member of a municipal board, county council or the Norwegian Parliament (Stortinget) may only concern the current electoral term. Consequently, a person holding such office cannot be deprived of his or her right to be re-elected. The idea is rather that it is up to the voters to decide if they want to re-elect a person who has been sentenced for criminal offences. However, it would also seem that members of the Stortinget may in fact lose their right to be elected since the Norwegian Constitution contains a provision on the loss of right to vote in case of certain offences. And since the right to vote is a precondition for being eligible for the Stortinget, loss of the right to vote essentially entails a loss of eligibility. It may seem somewhat surprising that Finland and partially Norway are the only countries that do not provide for the possibility of depriving persons of their right to stand for elections. One can of course speculate about the reasons for this. To some degree, the idea seems to be that it is up to the voters to decide which significance should be given to offences committed by an elected official in future elections. This would seem to imply that in countries such as Finland and Norway, a higher emphasis is put on the voters to hold politicians accountable for breaches of trust, while in other countries this is primarily done by the state machinery. In other systems, deprivation of the right to stand for elections is mostly connected to political offences, offences in office or offences against the state but may also be dependent upon the primarily imposed sentence (usually a prison sentence). The Spanish system provides for the possibility of revoking the right to stand for elections in regard to most corruption-related offences. In the Dutch system, the right to stand for elections can be revoked in case of certain specific offences (inter alia, acting contrary to laws and regulations as a minister or state secretary) and provided that a prison sentence of one year or more is imposed. In the German system, deprivation of the ability to be elected in public elections is possible in cases where a person has been sentenced for a felony (Verbrechen, i.e. an offence with a minimum sanction of one-year imprisonment) to a term of imprisonment of not less than 1 year. Such deprivation is also possible for certain offences that are

2

Government Bill HE 94/1993 vp.

A Comparative Analysis of Special Sanctions Applicable to Political Decision-. . .

289

not felonies, provided that this is expressly provided for by the relevant provision (inter alia, bribing delegates, falsification of election results and subsidy fraud). The French system provides for deprivation of the right to stand for elections in regard to, inter alia, purloining of public property, favouritism and bribery offences. In Italy, deprivation of the right to stand for elections is provided for a variety of offences, including abuse of office and bribery offences. In the Greek system, deprivation of the right to stand for elections primarily depends on the type and the length of the imposed prison sentence but is also specifically provided for in cases of ‘offences related to service’.

2. Is Deprivation Temporary or Permanent? As to deprivation of the right to be eligible for public office and deprivation of the right to vote, deprivation of the right to stand for elections is often possible to impose either temporarily for a certain time period or permanently. In case of temporary deprivation, the applicable terms vary from 3 months up to 20 years. In Italy, deprivation of the right to stand for elections is always permanent in case of bribery, except in cases where the offender is sentenced to imprisonment of less than 3 years. In the case of abuse of office, deprivation can only be temporary; if imprisonment for more than 3 years is imposed, the length of the deprivation is 5 years. If the imposed prison sentence is less than 3 years, the deprivation applies only for the duration of the main sanction. The Italian system also provides for a recently introduced additional sanction of forfeiture of the right to be elected. This concerns the possibility of being elected or maintaining the seat as member of the Italian or European Parliament or of the Italian Government for persons sentenced to imprisonment for more than 2 years for several different offences, among them all offences against public administration. This type of deprivation lasts twice the term of a temporarily imposed deprivation from holding public office but in any case not less than 6 years. In Germany, the normal period for deprivation of the ability to be elected in public elections is 5 years, but it can also be between 2 and 5 years if the law expressly so provides. In the Spanish system, deprivation of the right to stand for elections has a maximum term of 20 years, with the minimum term being 3 months. In Greece, deprivation of the right to stand for parliamentary or local government elections is usually connected with a time period during which the offender is prohibited from standing for elections. In case of a sentence of long-term imprisonment (5–20 years), this time period is between 2 and 10 years. A sentence of short-term imprisonment for an ‘offence related to service’ and certain other types of offences entails a deprivation of the right to stand for elections between 1 and 5 years. However, in case of a sentence of life imprisonment, the deprivation of the right to stand for elections is permanent.

290

D. Helenius

3. Is Deprivation Mandatory or Discretionary? The Greek system contains the possibility of ‘deprivation of political rights’, which also includes the deprivation of the right to stand for parliamentary or local government elections. Such deprivation is often mandatory. Since the conditions are the same as in regard to dismissal from public office, I refer to the discussion supra, under II.2. Certain systems also provide for mandatory deprivation of the right to stand for elections, which may be imposed ipso jure. In Italy, the recently introduced possibility of deprivation of the right to be elected does not constitute an accessory sanction that has to be imposed by the court but is a direct consequence of the conviction that has to be ascertained by the public administration in charge of the electoral process.

VI. Further Sanctions Other sanctions mentioned in the reports include the following: – revoking of less significant public titles or honour (Greece), – suspension from performing official duties during investigation/appeals process (Finland, Greece, Italy and Norway), – aggravating effect on penal scales or concrete punishment (the Netherlands), – suspension/cancellation of membership from political parties (Spain), – corporate criminal liability for political parties (Spain), – warning (Finland). In the Spanish system, a politician who is formally accused of corruption-related offences must have his membership temporarily suspended by his political party as a disciplinary measure. In case the politician is convicted, the party is legally obliged to cancel his or her membership. This sanction has, however, been introduced rather recently, and its practical relevance is still to be seen. Several systems also contain the possibility of suspending politicians from their positions during criminal investigations and trial proceedings pending a final decision (Finland, Greece and Norway). Finland seems to be the only system where ‘warning’ is provided for as a special sanction in regard to public officials, which also include persons holding a position of trust. A warning is imposed by a court and is intended as a more lenient criminal sanction than a fine. It can only be imposed for ‘negligent violation of official duty’.

A Comparative Analysis of Special Sanctions Applicable to Political Decision-. . .

291

VII. Conclusion There are a lot of similarities between the special sanctions applicable to political decision-makers in the different systems examined in this project. But there are also distinct differences. Especially, the different attitudes towards the possibility of depriving persons of their right to vote and to stand for elections stand out. Also, the time period for which persons can be deprived of their ‘political’ or ‘social’ rights varies somewhat. Perhaps surprisingly, Finland seems to stand out as regards the range of sanctions that are available for offences in office or other offences committed by political decision-makers. It is probably not possible to draw any far-reaching conclusions as to why this is the case without also looking into the political structures and political history of the different countries. But roughly, the question seems to boil down to the means of holding politicians accountable for transgressions of the law: should this primarily be done by the state through the use of criminal law or rather by the voters? Dan Helenius is University lecturer at the University of Helsinki.

A Comparative Analysis of National Provisions Granting Immunity to Politicians Federica Iovene

I. Foreword The topic of the research project was the criminal liability of political decisionmakers, and it took into consideration nine different European legal systems. The national reports analysed a case study taking into consideration issues of substantial criminal law and of procedural law. The scope of this paper is to give an overview of the national provisions granting immunity to politicians. To this aim, it will be firstly necessary to draw the common pattern of such provisions, highlighting step by step the peculiarities, if any, of the different systems; secondly, the applicability of immunities in the case study will be taken into consideration; and, finally, the problematic aspects of the whole discipline will be singled out.

II. General Introduction on Immunity Generally speaking, in the field of criminal law, immunities are considered exceptions to the compulsoriness of criminal law, whose final effect is to exclude the coercive State power.1 The very existence of immunities is to be connected with the principle of separation of powers and the birth of the rule of law, and it belongs to the core of the European constitutional tradition as declared by the Report on the Scope and Lifting of Parliamentary Immunities, adopted by the Venice Commission in 2014 within the frame of the Council of Europe. According to this report: 1

G. Fiandaca/E. Musco, Diritto penale. Parte generale, 6th ed. 2010 (Zanichelli Editore), p. 139.

F. Iovene (*) Public Prosecutor’s Office, Bolzano, Italy e-mail: [email protected] © Springer International Publishing AG 2017 F. Zimmermann (ed.), Criminal Liability of Political Decision-Makers, DOI 10.1007/978-3-319-52051-3_15

293

294

F. Iovene

the basic idea is that the elected representatives of the people need certain guarantees in order to effectively fulfil their mandate, without fear of harassment or undue charges from the executive, the courts or political opponents.2

The provisions on immunity therefore find their legal basis in the national constitutions, also due to the fact that they constitute a limitation of the equality principle. This is a first common feature. The rationale of the provisions granting immunity can therefore be identified in the balance between conflicting interests: on the one hand, the need to respect the fundamental principles of the legal system and the fundamental rights of the victim of the crime, which require the prosecution of crimes, and, on the other hand, the need to protect particular constitutional functions, which, under certain conditions, calls for a limitation of the punitive authority of the State.3 To this extent, immunities constitute a guarantee for the free exercise of public functions and not a personal privilege.4 This is a second common principle, which emerges in all the legal systems analysed and which makes immunities provided for by national law different from those granted by international law, or from those of a monarch, which are absolute and related to the person rather than to the function. Furthermore, with specific regard to parliamentary immunity, the European Court of Human Rights has repeatedly sustained that it may pursue ‘the legitimate aims of protecting free speech in Parliament and maintaining the separation of powers between the legislature and the judiciary’5 and that it is therefore compatible with Art. 6 ECHR and does not constitute a denial of justice to the victim of the crime, in as far as the acts shielded by immunities are ‘connected with the exercise of the parliamentary function in the strict sense’.6 As a consequence, the use of immunity must always be justified and not extended beyond what is proportionate and necessary in a democratic society. The national reports took into consideration both the hypothesis in which the author of the crime is a national politician and the case in which he is a local politician. This difference was made mainly because, depending on the constitutional system and on the type of public work to be done, the decision to build a bridge is made at different levels. At the same time, however, such a distinction has obviously important consequences in the field of immunity: as it will be explained hereinafter, if on the one hand all the systems taken into consideration share common provisions on parliamentary immunity, although with several differences, on the other hand they deal differently with local politicians—as a consequence of the constitutional background.

2 Council of Europe, Report on the Scope and Lifting of Parliamentary Immunities adopted by the Venice commission at its 98th Plenary Session (21–22 March 2014). 3 Fiancada/Musco, (note 1), p. 139. 4 D. Brunelli, (voce) Immunit
a, Enciclopedia giuridica, XV ed. 1989 (Treccani), 5. 5 A. v. United Kingdom, 35373/97, 17 December 2002. 6 Cordova v. Italy, 40877/98, 45649/99, 30 January 2003.

A Comparative Analysis of National Provisions Granting Immunity to Politicians

295

It will, therefore, firstly be necessary to consider the hypothesis of parliamentary immunity and then deal with the position of local politicians.

III. Parliamentary Immunity Parliamentary immunity generally entails two forms of immunity: the so-called non-liability or freedom of speech (substantial immunity), within which a further distinction between ‘non-liability for expressions made’ and ‘non-liability for votes cast’ in the exercise of the typical parliamentary functions must be made, and inviolability or immunity in the strict sense (procedural immunity).7 Before describing the content of these provisions, it is necessary to draw a distinction between two families of systems.8 On the one hand is the Anglo-Saxon model, where a strong protection of the freedom of speech is granted, whereas inviolability is less protected or even not protected at all—the Norwegian and the Dutch systems recall this model. On the other hand is the French model, according to which both non-liability and inviolability are protected, although with significant differences in the various countries that have adopted it, among which Italy, Spain, Greece, Germany and, of course, France. The two forms of immunity have been analysed in the national reports taking into consideration these aspects9: (a) who is protected; (b) what is protected—what kind of acts/behaviour; (c) the duration of the protection; (d) whether the immunity can be lifted or not and, in the case it can be lifted, by whom and following what procedure; and, finally, (e) what happens in case of conflicts. These last points are particularly important to the aim of the research because they involve the central question of how to ensure, beyond the formal declaration of the law, that on the one hand politically motivated criminal proceedings are avoided and that on the other hand politicians cannot hide themselves behind the shield of immunity as an entire group. This belongs, once more, to the core of the relations between State powers.

7

To the aim of this paper, I will use the definitions provided for in the Council of Europe’s Report on the Scope and Lifting of Parliamentary Immunities adopted by the Venice commission at its 98th Plenary Session (21–22 March 2014), http://www.venice.coe.int, and in the publication of the EU Parliament, Non-liable? Inviolable? Untouchable? The Challenge of Parliamentary Immunities. An Overview, Office for Promotion of Parliamentary Democracy, OPPD, 2012, http://www. europarl.europa.eu/oppd. 8 According to the Report of the Venice Commission and the Publication of the EU Parliament (note 7). 9 See also the Publication of the EU Parliament (note 7).

296

F. Iovene

1. Non-liability (Substantial Immunity) All the systems analysed within this research project grant members of Parliament irresponsibility for ‘opinions expressed and votes cast in the exercise of their functions’ (the so-called free speech and vote clause), with the exception of Norway and the Netherlands, where only statements, oral or written, are protected. Nonetheless, the legal orders differ in certain aspects: (a) As far as the question ‘who is granted protection’ is concerned, all the systems apply this form of immunity to members of Parliament, except for the Netherlands, where immunity is granted also to government ministers, secretaries of State and anyone who participates in hearings of the Parliament. Furthermore, Belgium, Germany and Spain extend this form of immunity to members of lower-level parliaments (i.e., under the federal/national level), whereas in Italy also members of regional councils are protected. (b) With regard to the object of protection, that is what kind of acts/behaviours are shielded, it is possible to make a basic distinction between systems that apply immunity only to expressions—oral or written—and votes made in Parliament—basically most of the systems analysed—and those systems that extend such guarantee also to opinions or statements made outside Parliament, as long as such activity corresponds to a typical parliamentary act (the so-called functional link)—Italy and Greece belong to this second category. Furthermore, some differences can be found in the kind of crimes that are protected. In Germany, for example, intentional defamation is not protected, and in Greece sycophantic defamation (libel) is not shielded. (c) Non-liability is, as already said, a form of substantial immunity, which provides protection even beyond the end of the mandate. Once it has been ascertained that a fact is shielded by that kind of immunity, it is never punishable. (d) Usually non-liability may not be lifted, with the exception of Finland, where it is possible to do so by a decision supported by at least five-sixths of the votes cast in Parliament. Before concluding on this aspect of immunity, it is necessary to recall the distinction that was already made between non-liability for expressions made and for votes cast. Sticking to the case study, the fundamental question that arises is the following: if the MP accepts the offer of or receives a benefit in order to table a bill or vote for it, can he/she be held responsible for corruption, or is he/she shielded by immunity/ non-liability? In fact, on the one hand, the conduct described represents the typical conduct of corruption; on the other hand, the tabling of a bill or voting for a bill that has been previously submitted is a typical parliamentary activity. In this regard, the opinion expressed by the Venice Commission, and shared also by most of the systems we have taken into consideration (Belgium, Italy, Greece, Germany, France, Norway, the Netherlands), is that in such cases the criminal offence is not the vote itself but the taking of the bribe, for which there is certainly no reason to

A Comparative Analysis of National Provisions Granting Immunity to Politicians

297

protect the member concerned. In other words, corruption would be punishable because what is criminally relevant is not the reason why the vote is cast, which remains unquestionable, but the acceptance of money or other benefits, which is an activity typical of the conduct of corruption but which does not constitute an exercise of the typical parliamentary functions.

2. Inviolability (Procedural Immunity) With regard to the second form of immunity, which is the so-called inviolability, the systems under analysis differ in more aspects. First of all, there are countries like Norway and the Netherlands where inviolability is not provided for at all. These two systems furthermore differ because whereas in the Netherlands the special procedures in place for the prosecution of politicians could sometimes work as a form of inviolability, in Norway politicians are prosecuted like every ‘common’ person; in fact, the special proceeding in front of the Court of Impeachment only applies when members of Parliament commit a crime in breach of their constitutional obligations, which is not our case study. A particularity of the Norwegian system, which with some effort may fall under inviolability, at least partly, is that on their way to and from the Storting—the Parliament—members of Parliament will be exempt from personal arrest, provided they are not apprehended in public crimes. All the other systems analysed provide for inviolability, although with several differences. It is possible, however, to highlight several common features: – Inviolability applies to every kind of crime committed by members of Parliament and not only to those connected with their function, with the exception of Finland, where it does apply only if the MP concerned is suspected of having committed a crime for which the minimum punishment is imprisonment for at least 6 months. – Generally speaking, inviolability grants protection against prosecution, from coercive measures and from some means of investigations, unless Parliament consents. So it can be lifted, usually by Parliament itself. And this is a point that deserves special attention because it may infringe the presumption of innocence and the principle of separation of powers. In fact, in order to ascertain whether to lift immunity/inviolability and let the ordinary judicial authority carry on their investigation, the Parliament evaluates to some extent the fact, and such an evaluation should be the prerogative of the judiciary; furthermore, lifting the immunity might be interpreted by the public opinion as a judgement of guilt. – A common exception to the need for prior authorisation is the case in which members of Parliament are caught in the act of committing a crime. – Inviolability, unlike non-liability, is temporary and holds only as long as the member of Parliament is in charge. This means that the act might be prosecuted

298

F. Iovene

once the reason for which the immunity was applicable does not exist any longer. The main difference among the systems analysed regards the kind of procedural activities that are inhibited without prior authorisation; there are actually countries where it is inhibited even to prosecute members of Parliament, like Germany, Greece and Spain, and countries where it is possible to start a criminal investigation without prior authorisation, but some activities may not be conducted, like in Italy, France and Finland. In this frame, Belgium shows a peculiarity. In fact, searches or seizures do not need prior authorisation but can be performed only in the presence of the President of the House concerned or of a member appointed by him. Apart from the similarities and the differences, the central question in this case regards the possibility to lift immunity and, particularly, who is in charge to do that, following which procedure and what the remedies against a violation of immunity are. In all the systems considered, this form of immunity may be lifted by Parliament itself, to which the ordinary judicial authority shall address a request for authorisation. When conflicts arise, in some countries it is possible to refer to a last instance authority, the Constitutional Court. This is the case of Italy and Germany, where the Constitutional Court may be addressed in order to assess whether immunity applies/ whether there has been a misuse of immunity. In France, on the contrary, these cases have to be solved within the ordinary judiciary, that is through appeal and cassation judgments. This also holds true for Greece since there is no Constitutional Court. This form of immunity will apply in the case study if the decision-maker M is a member of Parliament.

IV. Local Politicians In case of local politicians, things are more complicated. In fact, as already highlighted, immunity is traditionally linked to the exercise of the legislative function. As a matter of fact, in Spain and Belgium, members of regional parliaments enjoy immunity, as do members of L€ ander parliaments in Germany. In Italy, instead, members of regional councils do enjoy immunity in the form of non-liability, but only when they are carrying out legislative functions. For the same reason, in Germany, members of municipality or county councils are not shielded by immunity because they belong to the executive branch. No immunity applies to local politicians in Belgium, Finland, the Netherlands and Italy either.

A Comparative Analysis of National Provisions Granting Immunity to Politicians

299

To the purpose of the research, this means that if the decision-maker M were a local politician, not entitled to exercise legislative functions, he/she would not benefit from any form of immunity and would face a regular criminal proceeding, although the judicial authority will meet several limits due to the discretionary nature of the decision to build a bridge.

V. Members of Government Finally, for members of Government, no immunity is provided for (except for the Netherlands and Belgium), but usually there is a particular proceeding.10

VI. Conclusions Coming to the concluding remarks, what emerges from the national reports is that when dealing with the delicate theme of criminal responsibility of political decision-makers, in particular regarding administrative decisions related to public work, the provisions on immunity do not exhaust the wider question of the relation between politics and the judiciary. This emerges from the fact that basically none of the systems analysed grant immunity to local politicians. The explanation for this lies in the distinction between discretion and merit of administrative decisions—and the decision to build a bridge is for certain an administrative decision when taken at local level. The basic idea is that, even without immunity, the judiciary cannot assess per se whether such decision has been a good one or not because it is a discretionary decision. But they can and must ascertain whether good use has been made of the power to which the local authority is entitled. To this aim, however, the criminal provisions that might apply demand something more than just a bad use of the discretionary power, like the violation of a law or regulation, the acceptance of a bribe, the fact that the politician acted for a personal interest or in conflict of interest, etc. In this view, no violation of the principle of separation of powers occurs, even if there is no immunity to prevent or hinder the criminal proceeding.

10

See on this point the comparative paper on special proceedings by Annika Suominen.

300

F. Iovene

Annex For whom Non-liability Belgium MPs, members of regional and community parliaments, ministers Italy MPs, regional council members Finland

MPs

France

MPs

Germany

MPs, members of the States’ parliaments

Greece

MPs

Netherlands

MPs, ministers, secretaries of State, anyone who participates in hearings in Parliament MPs

Norway Spain

MPs, members of regional parliaments

Inviolability Belgium MPs

What

Duration

Can it be lifted?

Votes and opinions in the exercise of their duties

No limit

No

Votes and opinions also outside the Parliament, but functionally linked Votes and opinions only inside the Parliament (although questionable) Votes and opinions only inside the Parliament Votes and opinions only inside the Parliament (except intentional defamation) Votes and opinions directly linked to the function of MP Only statements inside the Parliament

No limit

No

No limit

Yes, by Parliament

No limit

No

No limit

No

No limit

No limit

No, except sycophantic defamation No

Only expressions inside the Parliament Opinions expressed in the exercise of their functions

No limit

No

No limit

No

Referred or summoned before a Court, arrest

Only for the mandate Only for the mandate

Yes, by Parliament

Only for the mandate Only for the mandate Only for the mandate

Yes, by Parliament

Italy

MPs

Arrest, detention, searches, interception of communications, seizure of correspondence Arrest, detention

Finland

MPs

France

MPs

Arrest, custodial or semicustodial measure

Germany

MPs, members of L€ ander parliaments

Prosecution, coercive measures

Yes, by Parliament

Yes, by Parliament Yes, by Parliament (continued)

A Comparative Analysis of National Provisions Granting Immunity to Politicians

Greece

Netherlands Norway Spain

For whom MPs

What Prosecution, arrest, detention

– – MPs, members of regional parliaments

– – Prosecution, arrest

Federica Iovene is Dr. jur. and Trainee Magistrate.

Duration Only for the mandate – – Only for the mandate

301 Can it be lifted? Yes, by Parliament – – Yes, by Parliament

Comparing Special Procedural Rules for the Prosecution of Politicians: A Blessing or a Curse? Annika Suominen

I. Introduction This brief article is based on this project’s national reports, and it focuses more specifically on special courts and procedures for the prosecution of politicians. Although the topic as such perhaps seems rather broad, focus is on special courts designed to handle the criminal liability of politicians when these are acting in their position. Only the so-called state-level politicians are included in the scope of this article, as the special courts are not designed for municipal-level politicians. There can be different rules for removal or dismissal of municipal-level politicians, but these are not within the scope of this article. Making politicians responsible for their actions has especially historically been considered important. One of several motivations for having special courts for politicians is avoiding politically motivated prosecutions. At the same time, such special courts are usually criticised for being too political, so the same argument could be used also against having such special courts. Nevertheless, today such special courts are usually of a more legal construction than what has historically been the case. As an introductory note, it can be mentioned that these special courts have different names. In fact, the term impeachment, which is often used, also for the Norwegian court, is by some considered somewhat misleading as the term impeach as such indicates a mechanism for removing a person from a certain position (empeˆcher in French).1 This comes partly also from the translation of the names

1

E. Smith, Konstitusjonelt demokrati, Statsforfatningsretten i prinsipielt og komparativt lyst, 3rd ed. 2015 (Fagbokforlaget), p. 280. A. Suominen (*) University of Bergen, Faculty of Law, Bergen, Norway e-mail: [email protected] © Springer International Publishing AG 2017 F. Zimmermann (ed.), Criminal Liability of Political Decision-Makers, DOI 10.1007/978-3-319-52051-3_16

303

304

A. Suominen

of the courts in English of course, and regardless of this used term, the courts usually signify a kind of forum immunity or other restriction in the possibilities to pronounce judgments over state politicians. This article focuses on four aspects of special courts. These are, firstly, the competence of such special courts and, secondly, the members of such special courts. Thirdly, the applicable procedural rules in these courts are focused on. And, fourthly, the activity of such courts is analysed, where focus is on when such courts have been last used.

II. Which States Have Such Special Courts? The states in this study can be divided in two main groups: those that have such a special court and those that do not. As for the first group, those that have such courts are Finland, Norway, Greece and France. What is generally written in this article applies for these states, as they have special courts. The second group consists of states where no such special courts exist. This applies for the Netherlands, Germany and Spain. However, for example, the Dutch system gives special rules for government ministers, under-ministers, as well as members of Parliament, which to a large extent (especially in relation to the Parliament being responsible for whether or not to instigate proceedings) resemble the regulation in special courts.2 The German system also gives some special rules on how to handle cases if it has a special significance, but this system does not seem to have the characteristics that signify the special character of a court of impeachment. The same can be said to apply for the Spanish solution: there is no special court, and when the Spanish courts hear cases against politicians, their composition is the same as in an ordinary case. The same applies for Germany’s part. Therefore, the division of having/not having such a special court is not a clearcut one. As for Italy and Belgium, these states do not as such have special courts, but they have such specialised procedural rules for the prosecution of politicians that these to a large extent resemble the rules in those states that have special courts. This will become visible throughout this article. The states lacking a court of impeachment are usually motivated by the fact that the normal courts are well competent to deal with cases against politicians, as well as the fact that a vote of no confidence usually solves possible problematic situations.3 Without going further into detail here on this matter, it can be said that the different solutions reflect the national constitutional traditions of each state and perhaps that different solutions are possible when it comes to special procedures and special courts.

2 3

See P. Geelhoed’s Dutch report in this volume, pp. 187–188. Smith (note 1), pp. 280–281.

Comparing Special Procedural Rules for the Prosecution of Politicians: A. . .

305

III. The Competence of the Courts Relevant aspects in relation to the competence of the courts are first of all for which politicians such courts apply, where this competence is found and how it is restricted, as well as for which offences these courts have competence.

1. For Whom Do the Courts of Impeachment Apply? In Italy, the ordinary justice applies for ministers.4 In Norway, the Court of Impeachment applies for members of the Council of State, of the Supreme Court and of the Storting. In Finland, the High Court of Impeachment applies for members of Government, the Chancellor of Justice, the Parliamentary Ombudsman and members of the Supreme Court and the Supreme Administrative Court. In France, the Cour de Justice de la Re´publique applies for members of the Government. In Greece, the Special Court (consisting of members of two courts) applies for the prime minister, the ministers and the deputy ministers. We can see that the competence of such courts is usually reserved only to the highest level of political decision-makers.5 It is only in the Nordic countries included in this study that the court of impeachment applies for the members of the Supreme Court, as well as for politicians. From here onwards, when the term politician is used in this article, this includes such highest-level politicians unless otherwise specified.

2. Restricted Competence Based on the Constitution For those states that have a court of impeachment, the competence of the court is usually restricted. This becomes clear from the provisions regulating such a court, and these are usually found already in the respective Constitutions.6 The Constitution usually then further restricts the use of special courts to certain offences. The competence of the court is then restricted to ministerial crimes (Italy), constitutional duties (Norway), unlawful conduct in office (Finland), acts

4

With some further peculiarities, see the Italian report by F. Iovene/N. Recchia in this volume, pp. 162–165. 5 The Norwegian solution also includes members of the Parliament in this, this is however connected to the lack of a parliamentary immunity for these. 6 Art. 86 of the Norwegian Constitution, Art. 101 in the Finnish Constitution, Art. 68-1 to 68-3 of the French Constitution, Art. 96 of the Italian Constitution and Art. 86(4) of the Greek Constitution.

306

A. Suominen

performed in the holding of their office (France) or in the execution of their duties (Greece and Belgium).7

3. For Which Offences Are the Courts Competent? In Italy, the definition of what constitutes ministerial crimes is defined as ordinary crimes that are committed in the exercise of the functions. The presence of two simultaneous elements is necessary: – the personal subjective quality of the perpetrator at the time when the crime is committed, and – a connection between the conduct of the crime and the function exercised by the minister. The crime does, however, not need to be political by nature. In fact, what can be problematic from the Italian point of view is whether the Parliament or the ordinary judicial authority gets to establish if the crime is ministerial. In Norway, there is not a clear definition of what offences are considered possible when politicians are breaching their constitutional duties. There is, however, an act, the Accountability Act, that states further what offences are considered falling under the scope of the Court of Impeachment (this does, however, not preclude other offences from being applicable). In Finland, the unlawful conduct in office is considered encompassing the offences in chapter 40 of the CC, entitled offences in office. Under French law, an offence committed in the holding of the office is fulfilled when there is a link between the offence and the determination and the direction of the policies of the Nation and the affairs of the State. The offence must have been committed as part of the politician’s job. In Greek law, the execution of duties has been discussed lately. All the statutes on criminal liability of minister have since 1876 had a definition for the offences falling under its scope. The Greek system distinguishes between offences committed in the execution of duties and those committed outside of duties. Therefore, we can see that the competence of such courts is restricted to offences linked to the exercise of a politician’s office. For offences falling outside of this scope, the special courts are not competent. This creates a form of forum immunity. For most states, this means (e.g., for Norway’s and Finland’s part) that offences falling outside this scope of the court of impeachment fall under the normal criminal law competence of normal courts.

7 The Netherlands also has a similar restriction, although they don’t technically have a Court of Impeachment. However, any act of public malfeasance or misconduct committed in the commission of these politicians, are dealt by with these special rules. See the Dutch report by P. Geelhoed in this volume for further details.

Comparing Special Procedural Rules for the Prosecution of Politicians: A. . .

307

IV. The Composition of the Courts Broadly When it comes to the composition of the courts, there are differing rules both when it comes to prosecution as well as how the court is composed in these cases. This picture represents a historical view of how such special courts are constructed, but as we can see, this is not completely foreign to the current situation either.

1. The Composition Relevant for the Rules on Preliminary Investigation and Prosecution In Italy, the ministerial court is in charge of the preliminary investigation for ministerial crimes. This court acts both as the public prosecutor, being in charge of this preliminary investigation, as well as the judge of the preliminary investigation. For some investigations, this ministerial court needs an authorisation, such as for an arrest. If this ministerial court wants to prosecute a minister, they shall ask the House of Parliament (or the Senate) for the authorisation to prosecute the minister. This can be denied in some situations, which are defined in legislation and apply if the minister aced for a state interest of constitutional relevance or the minister acted for the achievement of a preeminent public interest. Such situations are considered making the act not criminal. The Parliament is to assess only if the crime has been committed for the fulfilment of interests or purposes having a constitutional foundation. The validity of the charge belongs to the ministerial court. If the Parliament denies authorisation, the ministerial court cannot question this decision. The case is then dismissed with a final decree. This decision can, however, be examined by the Constitutional Court. If authorisation is granted, the proceeding may continue before the ordinary judicial authority. In Norway, the possible cases for the Court of Impeachment are first assessed by the Scrutiny and Constitutional Committee in the Storting. The committee may do this on its own initiative or at the request of external instances. Support from one-third of the members is sufficient for the committee to assess a possible impeachment case. In order to bring charges, a simple majority of votes in a plenary session of the Storting is required. In situations where the Committee finds that the case is not for the Court of Impeachment, it may forward the case to the competent prosecutorial agency. In other situations, the Committee has three options: to dismiss the case, to prosecute the case or to ask the Parliamentary Committee (ansvarskommisjonen) to further investigate the case.8 In Finland, a charge against a minister at the High Court of Impeachment can only be brought following a special procedure. The Parliament as a political organ 8

https://www.stortinget.no/no/Stortinget-og-demokratiet/Arbeidet/Riksrett/ (last visited 28 April 2016). The Parliamentary Committee is an external preliminary investigation unit that can be used for possible cases before the Court of Impeachment.

308

A. Suominen

has a central role in the decision-making. The Parliament has a supervisory function that requires that it is able to supervise the actions of the ministers and also initiate on its own initiative investigations to the lawfulness of ministers’ actions. The Constitutional Law Committee gives the Parliament an opinion on the unlawfulness of the actions of the minister. This opinion does not legally prevent the Parliament from deciding either to bring charges or not. There are some further possibilities to initiate a matter concerning the legal responsibility of ministers, such as a notification by the Chancellor of Justice or a petition signed by at least 10 representatives or a request for an inquiry. There are some further preconditions to the prosecution of a minister: a decision to bring charges may be done if the minister intentionally or through gross negligence has contravened his duties as a minister or otherwise acted clearly unlawfully in office. Under French law, any person claiming to be a victim of an offence committed by a member of the Government in the holding of his office may lodge a complaint with a petitions committee.9 This committee, composed of three magistrates at the Cour de Cassation, two members of the Conseil d’E´tat and two members of the Cour des Comptes, shall then order the case to be either closed or forwarded to the Chief Public Prosecutor at the Cour de Cassation for referral to the Court of Justice of the Republic. The prosecution is initiated by a common decision of the Chief Public prosecutor at the Cour de Cassation and the petitions committee. Additionally, decisions made by the Cour de Justice de la Re´publique may be referred to the Cour de Cassation. Thus, although the judgement is mostly made by members of the Parliament, the procedure itself is mainly led by members of the judiciary. In Greece, the Parliament initiates criminal procedures against a minister and also performs the preliminary investigation in the case. A motion for prosecution is submitted by at least 30 members of Parliament. The Parliament then, by a resolution adopted by absolute majority, sets up a special parliamentary committee to conduct preliminary investigations. The findings of this committee are introduced to the plenum of Parliament, which decides whether prosecution should start or not. This decision is also decided on with absolute majority. Also under Dutch law, there are some special procedural rules that apply to government ministers, underministers and members of Parliament.10 If there is a suspicion that a person belonging to one of the groups mentioned above has committed a public office offence, the Public Prosecution Service may conduct a preliminary investigation. If the Prosecution Service comes to the conclusion that there is enough evidence to raise a suspicion, it places the matter in the hands of a special investigatory committee of the States-General (in this case, of the Second Chamber). This committee carries out the criminal investigation and reports to the Parliament. Then the Parliament must decide about whether to instigate

9

There is no statutory definition of a victim under French law; different provisions may be differently interpreted. 10 These rules apply to any act of public malfeasance or misconduct committed in the commission of these politicians, and the rules apply also after their commission has ended.

Comparing Special Procedural Rules for the Prosecution of Politicians: A. . .

309

prosecution. If the Second Chamber decides that the person should be prosecuted, it places the matter in the hands of the Procurator-General at the Supreme Court. This member of the judiciary does not belong to the Public Prosecution Service but is attached to the Supreme Court. We can see that there are in most cases special procedural rules regulating the preliminary investigation and prosecution in cases of special courts. These are usually very detailed, and in many situations follow directly already from the Constitution. These are mainly construed to avoid politically motivated prosecutions. In some cases, the involvement of the Parliament is included, both as to initiate prosecution and in relation to the decision of bringing of charges. In some situations, where a prosecutor general is involved, he is not a member of the Public Prosecution Service. These aspects all further manifest the special nature of such preliminary proceedings in general.

2. How the Special Courts Sit When Hearing Cases In Italy, the case goes before the ordinary justices, with the procedural specialities further explained. There are therefore no such specialities when it comes to the composition of the courts. In Norway, the Court of Impeachment is composed of six members elected by the Storting and the five longest serving, permanently appointed members of the Supreme Court, including the president of the Supreme Court. The Storting elects the members and their deputies for a period of 6 years. A member of the Council of State or of the Storting may not be elected as a member of the Court of Impeachment. In the Court of Impeachment, the president of the Supreme Court presides. In Finland, the High Court of Impeachment consists of the president of the Supreme Court, who presides, and the president of the Supreme Administrative Court, the three most senior-ranking presidents of the courts of appeal and five members elected by the Parliament for a term of 4 years. In France, the Cour de Justice de la Re´publique consists of 15 members: 12 members of the Parliament elected in equal number from among their ranks by the national assembly and the senate after each general or partial renewal by election of these houses, as well as three judges of the Cour de Cassation. One of these three judges presides over the Cour de Justice de la Re´publique. Under Greek law, the Special Court is composed for each case of six members of the Supreme Administrative Court and seven members of the Supreme Civil and Criminal Court. The regular and alternate members of the Special Court are chosen by lot, after the prosecution has taken place. This is done by the Speaker of the Parliament in a public sitting of the Parliament from among those members of the two high-ranking courts who were appointed or promoted to the rank they hold prior to the submission of the motion for prosecution. The Special Court is chaired by the highest ranking of the Supreme Civil and Criminal Court members chosen by lot and, in case of equal rank in the members, by the first one in order of seniority. A

310

A. Suominen

Judicial Council, composed for each case of two members of the Supreme Administrative Court and three members of the Supreme Civil and Criminal Court, functions in the framework of the Special Court. The members of the Judicial Council may not be members of the Special Court at the same time. Following a ruling of the Judicial Council, one of its members who belong to the Supreme Civil and Criminal Court is appointed as examining magistrate. The preliminary proceedings are concluded with the issue of an ordinance. Therefore, the rules here are also very detailed. This means that the special courts are usually composed specifically for such cases. However, they are composed for a fixed period of time, and not as such for specific cases. Members of such special courts are often composed of members of Supreme Courts or other highranking courts. Some states also have an input of parliaments being involved, such as part of the members being elected by the Parliament.

V. The Procedural Rules In addition to the above-mentioned special composition of the courts, there are some rules relating to further procedures. These related mainly to the lack of possibility to appeal the judgment of the special courts.

1. Possibility to Appeal? Under Norwegian law, the Court of Impeachment decides the cases as a first and last instance. Also on judgments from the Finnish High Court of Impeachment, appeal is not possible. Pursuant to Greek law, the Special Court is competent for the relevant cases as the first and last instance. Also in the German system, although there is no special court as such, there is a possibility that a case involving a politician is brought to the Regional Court (specific significance of the case). In such situations, one instance of appeal is lost. Under Dutch law, the case goes before the Supreme Court, meaning that there is no possibility of appeal. Under Spanish law, the same applies; cases where parliamentarians or members of the Government are prosecuted go before the Criminal Chamber of the Supreme Court. This means that there is no possibility to appeal either.11 11

Under Spanish law, this is a debated problem. In several cases the UN Human Rights Committee (Go´mez Va´zquez vs. Spain, Terro´n vs. Spain, Capellades vs. Spain) have found Spain in violation of Art. 14(5) of the International Covenant on Civil and Political Rights. Although there is a possibility to appeal to the Constitutional Court for a violation of constitutional rights, this is not an appeal as such. The Constitutional Court has declared that the resolutions of the UNHRC are not binding and that the inability to appeal decisions of the Supreme Court is not contrary to the

Comparing Special Procedural Rules for the Prosecution of Politicians: A. . .

311

On the contrary, under French law, there is a possibility to refer cases to the Cour de cassation. In Belgium, the judgments of the appeal court (acting as kind of a special court) can be appealed to the united chambers of the Supreme Court, which does not pronounce on the merits of the case. In most cases, where there is a special court, which is a court of impeachment, this court pronounces judgments as a first and last instance. This special court therefore is considered the highest possible court, which has the ultimate competence. Also, in situations where the cases go to the Supreme Court directly, there is no possibility to appeal, and so these courts function de facto as the first and last instance. In some systems, if a higher court hears the case as a first instance, one instance of appeal may be lost, and in some states the decisions are appealable as normal judgments.

2. Other Specific Procedural Rules For those states where there is a specific court of impeachment, there can be rules further regulating the criminal procedure in this court itself. For example, under Norwegian law, the more detailed procedural rules for the cases before the Court of Impeachment are regulated in the Act on the procedure for the Court of Impeachment. In Finnish law, there is also an Act on the High Court of Impeachment and the handling of ministerial responsibility. In those states where the normal judicial procedure is followed, there are either no particular procedural rules or the rules are to some extent modified. These are then modified to address the specific nature of such proceedings.

VI. How Relevant Are the Courts, When Are They Used? One could of course say that special courts, especially courts of impeachment, are to some extent demonstrations of historical, out-dated courts. These are not, compared to normal courts, used that often or that frequent. In general, it has been proven to be somewhat difficult to gain a complete overview of such political cases, for example as regards Italy the records are not complete relating to the Tribunal of Ministers. The one Dutch case go back to 1868, constitution or the ECHR (Art. 2 Protocol 7) since these people were judged by the highest tribunal. Interestingly, the Dutch situation is different: as the Netherlands didn’t ratify the 7th protocol to the ECHR, they are not obliged to make appeals possible in these cases.

312

A. Suominen

and the recent investigation by the Public Prosecution Service into a situation where confidential information relating to the intelligence services had been leaked did not result in anything more than a report. In the report, it was concluded that the Public Prosecution Service could not find a suspicion against any particular person. In Greece, the special procedure was not used for many decades, until the period of 1989–1994. The Greek special court has tried five cases in 170 years. This is not in any way unique for the Greek situation. In 1990, the Deputy Minister of Economics was tried and convicted for issuing false certificates and using a forged document. In cases from 1992, the former Minister of Economics was tried and convicted for misappropriation related to service. Also in 2015, relating to the newer euro crisis, the former Minister of Economics was tried and convicted for forging a document and instigating misappropriation.12 In Norway, there was a discussion on whether the court should be abolished around 2007, when the rules were updated. One of the arguments here was especially that the fact that the court was last used in 1926 was considered an indication of the out-dated form of such courts. It was, however, considered important to keep such a significant institution for the most serious cases. There have been some discussions more recently on whether or not specific cases should be raised before the Court of Impeachment, such as for the cases of placing the (then) new airport at Gardermoen in Oslo. This resulted in a quite long document in 2001, concluding, however, that there was no need for a case before the Court of Impeachment.13 In Finland, the High Court of Impeachment has only been applied four times, and these were in 1933, 1953, 1961 and 1993. In three of these cases, there was a guilty verdict. The same seems to apply for the French: the Cour de Justice de la Re´publique received 1000 complaints between the years of 1993 and 2012; however, only 15 of these led to an inquiry. And of these, only five were heard before the Court. Not perhaps very practical in its use, we can see that these special courts are not used very often. There are of course several reasons for this, but at least the sometimes cumbersome procedure to use such a special court, the still to some extent political by nature characteristics, as well as the strict competence in relation to offences (execution of duties) can impact this.

12

Cases of 1989 and two in 1994, where the Parliament suspended the prosecution according to Art. 86(3) of the Constitution. 13 Dokument nr. 18 (2000–2001) Rapport til Stortinget fra kommisjonen som ble nedsatt av Stortinget for a˚ foreta en bred gjennomgang av utredning, planlegging, prosjektering og utbygging av ny hovedflyplass for Østlandet og Gardermobanen.

Comparing Special Procedural Rules for the Prosecution of Politicians: A. . .

313

VII. Human Rights Aspects Special courts can be problematic from a fair trial point of view and, more specifically, the right to an independent and impartial tribunal under Art. 6 ECHR. There is at least one interesting judgment from the ECtHR on the validity of such special courts and, more precisely, the Danish Court of Impeachment, the Rigsrett.14 Although of course we have not included the Danish legal system in our study, it is still worth to have a brief look at this case. It focused, among other issues, on the requirement of an independent and impartial tribunal. The Strasbourg Court recalled that in order to establish whether a tribunal can be considered as ‘independent’: regard must be had, inter alia, to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence.’

As to the question of ‘impartiality’, the Court stated that there are two aspects to this requirement: First, the tribunal must be subjectively free of personal prejudice or bias. Secondly, it must be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect.15

The Danish Court of Impeachment was composed of an equal number of professional judges and judges appointed by the Parliament. The lay judges appointed by the Parliament were appointed for a period of 6 years, and it was not possible to change the composition of the court within this period. The Court continues by stating that the fact that half of the Danish Court of Impeachment was chosen by the Parliament did not itself raise questions in relation to the independence and impartiality of the court. There was no indication of any of the judges taking instructions or being biased. The Court concluded on this part that taking into account all the circumstances in the case, the participation of judges appointed by Parliament did not disclose any appearance of a violation of the independence and impartiality requirement in Art. 6 of the Convention.

VIII. Some Concluding Remarks To sum up, courts that we call courts of impeachment are usually characterised by the following characters: 14

ECtHR decision as to the admissibility of Application no. 28972/95 Ninn-Hansen vs. Denmark, decision of 18 May 1999. 15 ECtHR, Findlay vs. the United Kingdom, judgment of 25 February 1997, Reports of Judgments and Decisions 1997-I, p. 281, § 73.

314

A. Suominen

– The competence is restricted to certain crimes, usually related to unlawful conduct in the office. – There are in most cases no possibility to appeal to a judgment of such a court. – The composition of special courts varies; in some states the composition is specific for political crimes, whereas in some states the composition is the same (if these are construed of already existing courts). – The Parliament is in most cases part of the procedure in whole, either in relation to prosecution or in relation to choosing members of the court. – There are usually specific procedural rules or amended procedural rules that apply for such courts. – Most cases where special courts have been used are historical ones, but there are also indications of more recent use of such courts. Perhaps this will become even more relevant, if one takes the Panama revelations into account and the repercussions, for example, in Iceland. The most currently relevant case is of course the example of the Brazilian president Rousseff, who you can see in this picture. This case has raised several questions, not least those related to corruption and widespread corruption among politicians. Annika Suominen is Associate Professor at the Faculty of Law, University of Bergen.

Corruption as Disloyalty? Gabriel Pe´rez Barbera´

I. Introduction All around, people emphasise that corruption is the type of crime that causes the most economic damage. It is said that this affects businesses as well as states and their citizens, whose tax payments are not invested to promote their own well-being but instead are appropriated for personal gain. To back this up with empirical data, one should consider that in Germany, for instance, the economic damage caused by corruption in 2012 amounted to roughly 160 billion euros.1 Thus, it is argued, that corruption obviously is a behaviour that states must seek to prevent. Indeed, there are international conventions against corruption that oblige their signatories to combat corruption. And Germany as well as Argentina have included several criminal offences in their national laws whose purpose it is to punish the corrupt. However, it should be noted that harm and thus the impairment of a legal interest (which is referred to as Rechtsgut in the German doctrine) is only a necessary, though not a sufficient condition to justify the criminalisation of a particular behaviour. To deserve punishment, a behaviour furthermore has to be morally wrongful.2 Both requirements will be examined here.

1 F. Schneider, Der Einfluss eines abgeschwa¨chten Wirtschaftsaufschwunges auf die ¨ sterreich in 2013: Ein erneuter Schattenwirtschaft und Korruption in Deutschland und in O Rückgang, in: Bericht des Institutes für Volkswirtschaftslehre Johannes Kepler, Linz, 2013. 2 So S. Green, Lying, Cheating, and Stealing. A Moral Theory of White-Collar Crime, 2006 (Oxford University Press, Oxford), p. 39-47; A. von Hirsch, ‘Harm and Wrongdoing’: Scha¨dlichkeit und Verwerflichkeit als Begründung von Kriminalisierung, in: Hefendehl/H€ ornle/ Greco (eds.), Festschrift für Bernd Schünemann zum 70. Geburtstag, 2014 (de Gruyter, Berlin), p. 83.

G. Pe´rez Barbera´ (*) Co´rdoba University, Co´rdoba, Argentina e-mail: [email protected] © Springer International Publishing AG 2017 F. Zimmermann (ed.), Criminal Liability of Political Decision-Makers, DOI 10.1007/978-3-319-52051-3_17

315

316

G. Pe´rez Barbera´

What is understood as corruption—in the criminal sense—in Argentina is much broader than the German criminal law understanding of this phenomenon. The Argentinian point of view would then be closer to the concept of international conventions, which is very broad as well. For both Argentinian criminal law and these conventions, corruption is not limited to bribery (which the German law captures as ‘Bestechung’, ‘Bestechlichkeit’, ‘Vorteilsgewa¨hrung’ and ‘Vorteilsannahme’) but includes other offences such as peculatus and any breach of trust (in the sense of § 266 Strafgesetzbuch [German Penal Code—PC-Germany]: Untreue, or Art. 173.3 C odigo Penal [Argentinian Penal Code—PC-Argentina]) concerning public funds. But is this right, or should one favour the limited German point of view? To be able to answer this question, conceptual and normative questions have to be answered first: what is to be understood as ‘corruption’? What does it harm? What legitimises its penalisation?

II. Disloyalty in the Criminal Offences of Untreue (Germany) and Peculatus (Argentina) To avoid a premature endorsement of the perhaps more intuitive German term of corruption, it should be considered that there is an increasing emphasis on the character of corruption—even when understood strictly as bribery—as a form of disloyalty.3 Thus, one can say with Stuart Green: My proposal is that we think about the act of receiving or soliciting a bribe as a form of disloyalty (...). Loyal public officials are expected to resist the temptations that may come their way (...). Loyalty faces its most important test when temptation is strongest. To accept a bribe is to give in to such temptation, and therefore be disloyal.4

Primarily, disloyalty is an element rather of the German offence of Untreue or breach of trust (in the sense of § 266 PC-Germany) than of bribery. And since corruption generally involves a financial matter, one could look at the offence of breach of trust, whose main characteristic is the causation of correlative financial loss and benefit through unfair behaviour,5 as the core of corrupt behaviour. The crime of breach of trust was originally intended to punish unfair behaviour with financial consequences among private individuals. Thus, today, it is one of the core offences of economic criminal law.6 For some time, however, German

3 M. Z€ oller, Abschied von Wettbewerbsmodell bei der Verfolgung der Wirtschaftskorruption – ¨ berlegungen zur Reform des § 299 StGB, in: Goltdammer’s Archiv für Strafrecht 2009, 137. U 4 Green (note 2), p. 203. 5 U. Kindh€ auser, in: Kindha¨user/Neumann/Paeffgen (eds.), Strafgesetzbuch, 3rd ed. 2010 (Nomos, Baden-Baden), § 266/1, 19. 6 S. P. Wittig, Wirtschaftsstrafrecht, 2011 (Beck, München), pp. 236-283; for an overview in English, see F. Zimmermann’s national report in this volume.

Corruption as Disloyalty?

317

literature and courts have accepted that the offence can also be applied to cases in which a public official is involved and the public administration is affected. This extension of the scope of application is known in Germany as Haushaltsuntreue (budgetary breach of trust) or Amtsuntreue (official breach of trust),7 but it is not free from criticism. This is especially so because the German provision on breach of trust aims at protecting property interests and thus requires concrete financial damage to occur. In the public sector, however, it may be advisable to extend punishment to cases without this kind of damage or the pursuit of profit. In Argentina, this is achieved through the offence of peculatus or the breach of trust in office (Art. 261(1) PC-Argentina), which does not require either financial damage or this special intent.8 Here, I briefly describe the main elements of the Argentinian offence of peculatus. Article 261 of our C odigo Penal states as follows: Art. 261 PC-Argentina The official who withdraws money or property from public service which, by virtue of his office, have been entrusted to him for administration, receipt or safe-keeping is punished with imprisonment from two years to ten years and with an absolute and permanent ban from public office.

One notices at once that the punishment for this offence is much more serious than the punishment for breach of trust (also in Argentina, where breach of trust is punishable with imprisonment from 1 month to 6 years). One also notices that for peculatus, the completed offence does not need to cause financial damage. It is sufficient for the official to withdraw the money or property from the public, independently of whether he damages public funds or even intentionally increases them. If the official, acting with the ‘best intentions’, for instance, were to always invest the withdrawn money in quick and profitable transactions and immediately return the larger sums to the public, he would still commit a completed peculatus. But how, then, can this serious punishment be explained? Some cases of peculatus could be seen as a kind of ‘harmless wrongdoing’.9 However, we could already consider, as the prevalent view in Argentina does, the violation of the correct administration of public funds to amount to a harm in order to eliminate any risks for the transparency in the performance of official functions.10 In essence, this is not a bad description of the legal interest (or Rechtsgut) violated here. But the offence of peculatus is also committed by anyone who withdraws money from the public for himself and in pursuit of profit. And the punishment for this latter variation is the same. But do both variations infringe the same legal interest? Are both equally worthy of punishment? Obviously not.

7

S. K. Tiedemann, Wirtschaftsstrafrecht. Besonderer Teil, 2011 (Vahlen, München), marginal 150. S. E. Donna, Delitos contra la administracio´n pu´blica, 2008 (Rubinzal-Culzoni, Buenos Aires), p. 235. 9 S. J. Feinberg, Harmless Wrongdoing. The Moral Limits of the Criminal Law IV, 1988 (Oxford University Press, Oxford). 10 S. Donna (note 8). 8

318

G. Pe´rez Barbera´

According to our intuition, it is fairly clear that he who takes public moneys for himself can be seen as corrupt.11 But this does not apply to the public official who acts without such intentions but rather in the public interest and thus infringes only the correct administration of public funds. This already indicates that in everyday language, ‘corruption’ is a word with strongly stigmatising connotations and thus should be reserved for behaviour that deserves serious reproach. But why is corruption considered to be so serious? To answer this question, at least provisionally, we have to analyse more closely which legal interest is affected by it and, in particular, why such conduct is wrongful and therefore worthy of punishment.

III. Disloyalty as a Necessary, but Not Sufficient Condition for the Moral Wrongfulness of Corruption The legal interest affected by corruption, understood broadly, is always of a public nature in the sense that an indistinct collective has to be impaired.12 With good reasons, one can even say that corruption harms the democracy as well13 because the equality as aim and means of a democratic society is replaced by the power of money, available only for a few. But the simple violation of rules ensuring the transparency of public administration is insufficient to characterise a certain behaviour as corrupt.14 And this is so not only because it causes not always a major harm but rather because such behaviour is not always particularly worthy of punishment, at least not as worthy of punishment as corruption as such. What, then, does the worthiness of punishment of corruption consist in? Is it really solely or primarily about disloyalty, as I—following other authors—have hinted at the outset? Here, I wish to defend the thesis that the moral content (or the worthiness of punishment) of corruption is complex. Disloyalty (1) is, in my view, a necessary but not a sufficient condition for the immoral character of corruption. It also requires an abuse of power (2)15 and the purpose of acquiring a benefit that the agent is not functionally entitled to (3).16 I do not speak of the necessary elements of a criminal offence here, but of the three basic requirements for the immoral character of S. J. Malem Se~ na, El feno´meno de la corrupcio´n, in: Andre´s Iba´~ nez/Laporta (eds.), La corrupcio´n polı´tica, 1997 (Alianza Editorial, Madrid), p. 80. 12 See H. Rosenau, in: Satzger/Schluckebier/Widmaier (eds.), Strafgesetzbuch, 2nd ed. 2014 (Heymanns, K€ oln), § 331/1. 13 E. Garz on Valde´s, Acerca del concepto de corrupcio´n, in: Claves de razo´n pra´ctica 56 (1995), 37-38. 14 See F. Saliger, Das Unrecht der Korruption, in: Albrecht et al. (eds.), Festschrift für Walter Kargl, 2015 (Berliner Wissenschaftsverlag, Berlin), p. 496-497. 15 S. T. Zimmermann, Korruption und Gubernation, in: Zeitschrift für die gesamte Strafrechtswissenschaft 124 (2012), 1027; L. Greco, Anna¨herungen an eine Theorie der Korruption, in: Goltdammer’s Archiv für Strafrecht 2016, 252-253. 16 See Garz on Valde´s (note 13), 45-46. 11

Corruption as Disloyalty?

319

corruption as such. In this sense, it would generally be unproblematic if the legislator decides to only criminalise abuses to the detriment of the public as corruption. The degree of immorality, and how worthy of punishment corruption is respectively, depends on the one hand on the type of act with which the offender seeks to secure the benefit he is not functionally entitled to. The relevant forms of acts exhibit an obvious similarity with the corresponding (criminal) offences. But once again, I am not talking about these. Here, I am referring to various types of immoral act or behaviour. I have identified four—though one could find further ones— namely the following: bribery agreement (3a), breach of confidence (3b), theft (3c) and extortion (3d). What I wish to say is that when one seeks to secure an unjustified benefit disloyally and through abuse of power by agreeing to it due to bribery or by securing it through breach of confidence, theft or extortion (again, as types of immoral behaviour), one commits corruption. And to finally put it in terms of criminal law: whoever seeks to secure a benefit disloyally and through abuse of power by agreeing to it due to bribery commits corruption through acceptance of benefits (Vorteilsannahme) or bribery (Bestechlichkeit or Bestechung) (§§ 331, 332, 334 PC-Germany; Arts. 256, 258 PC-Argentina; Art. 24 of the Argentinian Sports Law No. 20.655); whoever seeks to secure the benefit through breach of confidence commits corruption through breach of trust against the public (Art. 173.7 with Art. 174.5 PC-Argentina) or possibly official breach of trust (§ 266 PC-Germany); whoever seeks to secure the benefit through theft commits corruption through peculatus, which implies an intentional profit of the agent (Art. 261.1 PC-Argentina); and whoever seeks to secure the benefit through extortion commits corruption through exacci on illegal (Arts. 266–268 PC-Argentina, § 332 PC-Germany if the benefit is demanded). This categorisation is not dependent on any particular positive law. It rather is the result of a reconstruction of the term ‘corruption’ in everyday language and its worthiness of punishment. It is then seen as a hermeneutical instrument with which one can interpret the positive law de lege lata. Or one can use it to make proposals de lege ferenda. If this categorisation is correct, then it would not be appropriate to limit the criminal offences of corruption to those of bribery, as appears to be the case in Germany.17

IV. Some Specifications on the Elements That Make Corruption a Moral Wrong 1. Disloyalty as a Breach of Positional Duties I shall now present some arguments to prove that there are good reasons for the correctness of my terminological reconstruction. Let us begin with the term ‘disloyalty’.

17

See Saliger (note 14), pp. 493-505.

320

G. Pe´rez Barbera´

Disloyalty presupposes the existence of an obligation that is violated. This by itself is admittedly not enough to describe disloyalty in the presently relevant sense. For precisely this reason, there are authors in the German debate who characterise the general requirement that somebody who shall be punished must have acted with guilt as disloyalty towards the law.18 Others refer to disloyalty to define the core of wrongness.19 A so general understanding of disloyalty nonetheless is of little help in the present context. Here, we are instead dealing with a special kind of disloyalty. Like any disloyalty, it presupposes the violation of a duty. However, this duty is not of general character and applying to everybody but rather a special one. The disloyalty in question here also requires a relationship between at least two parties, and with regard to both, specific requirements have to be met. What matters here are so-called positional duties.20 The person bound by the duty must have a certain position, and this position must be governed by specific duties (as a public official, as a judge, as a company director, as a boxer, etc.). The counterparties are those vis-a-vis whom the bearer of the duty has obliged himself with its performance. An example: a member of Parliament has this position only because a norm grants him his office. This norm obliges him vis-a-vis the electorate to protect and defend their interests; it thus prohibits the use of his office for purely egoistical purposes. If the member of Parliament does the latter, for instance by accepting bribes, then he is disloyal towards his electorate.21 The same kind of disloyalty is found in breach of trust in the sense of § 266 PC-Germany, which is relevant for this context (budgetary breach of trust, official breach of trust).

2. Abuse of Power Let us continue with the requirement of abuse of power. Only he who by virtue of his powers secures a benefit that he is not functionally entitled to is seen as corrupt. Cleverness or deceit is insufficient. In the general sense of our language, this power can be public or private. Such abuses indeed are not only found with public officials such as judges but also with a company director in the private sector, with a tennis player who loses due to bribery so that someone wins a bet and even with a private agent corrupting a public official by bribing him; the briber, too, is corrupt because he is not only disloyal to his competitors or peers. He can only bribe because he has

18 See, for example, U. Kindh€ auser, Rechtstreue als Schuldkategorie, in: Zeitschrift für die gesamte Strafrechtswissenschaft 107 (1995), 701-733. 19 See for example M. Pawlik, Das Unrecht des Bürgers, 2012 (Mohr Siebeck, Tübingen), pp. 82156. 20 See M. Philips, Bribery, in: Ethics 94 (1984), 621-636; Garz on Valde´s (note 13), 43-44; Green (note 2), pp. 204-205. 21 See Green (note 2), p. 203.

Corruption as Disloyalty?

321

the power to do so due to his (private) position. It is worthy of repetition that, in principle, the fact that the legislator has criminalised only some of these abuses as corruption is not a problem.

3. Extra-Functional Benefit for the Offender Finally, a word should be said on the benefit that is typical for corruption: it is only that which the offender is not entitled to by virtue of his function or position. This then requires first a benefit for the offender. If a public official withdraws money from the public with the purpose of securing a higher profit for the public by investing the money, he commits—as already mentioned—a form of peculatus, which should not be seen as corruption because he does not obtain a benefit. If, however, the offender obtains a benefit, it necessarily must be outside his functions. If, for instance, within the public administration a superior official says to his inferior: ‘if you commit this wrongful act, then you will receive your monthly salary’, and the inferior does what he has been asked to do, this is in no way to be seen as corruption (perhaps it is a case of concealed duress in the sense of § 240 PC-Germany). And whoever lets himself be bribed (in the sense that he receives additional payment) to perform his duties is guilty of corruption because this money is not part of his function. This applies not only to public officials but also, for instance, to football players and others, regardless of whether or not the sportsman’s behaviour is criminally prohibited as corruption.

V. Conclusions: Conduct That Is to Be Considered as Corruption and Its Legal Treatment in Germany and Argentina But how does one commit corruption? As mentioned above, there are different types of behaviour: bribery agreement, breach of confidence, theft or extortion. It then is not correct that corruption unconditionally requires a pact or an agreement. This is only required in some cases of bribery and acceptance of a bribe. But this is a purely terminological problem that only exists in states where corruption is identified only as bribery and acceptance of bribes, as is the case in Germany. Perhaps it is more important to emphasise that bribery is committed not always through an agreement but also through extortion. In Argentina, the latter is indeed seen not as bribery (cohecho pasivo) but as exacci on illegal (Geb€ uhrenschneiderei) and coherently deserves a more severe punishment because the worthiness of punishment of extortion is higher than that of a bribery agreement. In Germany, on the other hand, both types of behaviour are subject to the same punishment, which is not right.

322

G. Pe´rez Barbera´

Regarding Argentina, we have already seen that there is a lack of coherence in the peculatus offence. The first mistake is that every form of peculatus is subject to the same punishment, which is a serious one: up to 10 years’ imprisonment. That is, not only the corrupt variation (with an extra-functional benefit for the offender) is subject to this punishment but also the mere withdrawal of the public fund without any benefit for the offender, possibly even with a benefit for the public. As mentioned above, in my view it is right to criminalise this behaviour as it is appropriate to protect the public sector more intensely, but not with such a severe punishment, which even is much more serious than the punishment for corrupt behaviour committed through more serious types of conduct. But let us think about peculatus with an intentional profit for the offender. This variation of the offence—which, surprisingly, in principle would not be an offence against the public administration in Germany—corresponds to the term ‘corruption’ presented here. Its punishment in Argentina is, however, more serious than that for bribery based on a pact, and this cannot be right. The type of behaviour of peculatus is theft, whose worthiness of punishment is lower than that of a bribery agreement. And the punishment for this peculatus is also more serious in Argentina than the punishment for bribery through extortion, which also cannot be right. The type of behaviour ‘extortion’ is more serious than the type of behaviour ‘theft’ (we of course speak of theft without violence or threats here). Cases of official breach of trust (or in Argentina, defraudaci on contra la administraci on pu´blica), too, are to be considered offences of corruption. The three basic characteristics of corruption are present here: disloyalty regarding a positional duty, abuse of power and unjustified benefit. The type of behaviour of this offence, however, is the breach of confidence, whose worthiness of punishment is lower than that of a bribery agreement. The punishment for official breach of trust, then, should be lower than that for bribery, which is the case both in Argentina and in Germany, even though the difference is too small in both countries. Thus, one can see how useful this terminological apparatus can be to interpret or reform criminal law. It shows, among other things, that breach of trust and other familiar terms such as disloyalty and breach of confidence can and should play a role, as requirements and as types of behaviour, for the description of corruption and its worthiness of punishment, but also that such terms in no way exhaust themselves in this description. Gabriel Pe´rez Barbera´ is Professor of Criminal Law at the Co´rdoba University, Argentina.

Political Decision-Making and the Phenomenon of Elite Corruption Bernd Heinrich

I. Introduction The fact that we are exchanging views across national borders and that we are analysing problems that are not only of national significance makes an international exchange so special. As we have seen several times before, the national legal systems in most countries are comparable. Most of all, however, our actual legal problems are comparable, and we have to find solutions for them together, solutions that may also require the implementation of criminal law, the ‘sharpest sword’ of state authority. I want to focus on one of these problems we are all facing together. It is a problem located on the borderline between permitted and not permitted behaviour, a problem that occurs frequently—almost on a daily basis—in practice. However, this problem is neither playing a significant role in legal practice—at least in our legal systems—nor being intensively discussed in legal science. I am referring, namely, to the problem of elite corruption. What is my understanding of this issue? Every society is necessarily composed of several social classes. In this respect, there is no difference between Germany and other countries. There are the powerful of this world and the ‘henchmen’, the decision-makers and the ‘rank and file’, the ruling and the ‘ordinary people’, the ‘top’ and the ‘bottom’.1 This division of ‘top’ and ‘bottom’ is more distinct in authoritarian states. Nevertheless, we also know this ‘top’ and ‘bottom’ in democratically governed countries too. It may be true that ‘all power emanates from the

1 See Mosca, Die herrschende Klasse, 1950, p. 53; Hartmann, Elitesoziologie, 2004, pp. 19 et seq.; ¨ berlegungen zur Schulreform in einer demokratischen Gesellschaft, Tr€ oger, Elitenbildung – U 1968, pp. 22 et seq.

B. Heinrich (*) University of Tübingen, Tübingen, Germany e-mail: [email protected] © Springer International Publishing AG 2017 F. Zimmermann (ed.), Criminal Liability of Political Decision-Makers, DOI 10.1007/978-3-319-52051-3_18

323

324

B. Heinrich

people’, but the people are voting for ‘governments’, and shareholders, for instance, are voting for ‘management boards’ or ‘supervisory committees’. Now, all these elected institutions are making decisions not only ‘for’ those who elected them but ‘on’ them.

II. The Term ‘Elite’ As a consequence, it is inevitable that certain elites are developed as a sociological phenomenon.2 Thereby, belonging to a certain elite is never conclusive and formal. Whereas in the past, social status was determined by birth and only those who belonged to the noble rank were able to gain power and influence, the elites have become more permeable nowadays.3 One can work all the way up to a certain position, and one can also drop out of this system.4 These elites exist in our democratically structured societies in many different forms: the political elite, the social elite, the economic elite, the cultural elite, the sport elite, the academic elite. The term ‘elite’ is, as mentioned above, diverse. One person can belong to several different categories. In many cases, these elites overlap—and the persons involved meet each other at different occasions, for example, at special events that are not public but for invited guests only. How do these elites distinguish themselves? Basically, two things are important: first of all, the elite are never the majority of people.5 There are few powerful individuals who are mostly well connected amongst each other and who stand out from the ‘mass’ through certain criteria. One of these criteria—and this will lead me to my second point—is the authority to decide in different areas: the opportunity to exercise power. This decision-making power may be merely of a formal nature: the government of a particular country is empowered to make decisions,6 as is the management board of the respective stock corporation. In this regard, there are distinct rules that are transparent and generally valid. Here, the exercise of power is not condemnable at all, but rather provided by law: the government and the

Regarding the term ‘elite’, see Bohlender/M€ unkler/Straßenberger, Deutschlands Elite im Wandel, 2006; B€ urklin/Rebenstorf and others, Eliten in Deutschland. Rekrutierung und Integration, 1997; Grabow, Elitenrekrutierung aus sozial-psychologischer Perspektive. Einflüsse von Habitus, Herkunft und wahrgenommener Kompetenz auf Auswahlentscheidungen für Führungspositionen, 2014; Hartmann, Der Mythos von den Leistungseliten. Spitzenkarrieren und soziale Herkunft in Wirtschaft, Politik, Justiz und Wissenschaft, 2002; Hartmann, Elitesoziologie, 2004; Hartmann, Eliten und Macht in Europa – Ein internationaler Vergleich, 2007; Hartmann, Deutsche Eliten: Die wahre Parallelgesellschaft. Aus Politik und Zeitgeschichte, vol. 15/2014. 3 See Bernsdorf, W€ orterbuch der Soziologie, 2nd ed. 1969, p. 217. 4 See Bernsdorf (note 3), p. 217. 5 Tr€ oger (note 1), pp. 11, 16. 6 See Bernsdorf (note 3), p. 218. 2

Political Decision-Making and the Phenomenon of Elite Corruption

325

parliament are supposed to make decisions that are mandatory for others, meaning the people. And the management board is supposed to make decisions that are mandatory for the performing bodies. However, the exercise of power may occur in other forms, such as forms that are not formal but factual in nature: putting in a good word for someone, giving advice to somebody or submitting a certain evaluation. All of these actions have a different effect, depending on how important one is or which status one has. The recommendation of a book by a recognised literary critic, for instance, has a wider impact than the same recommendation by a simple reader on an online literary platform. When I, as a criminal law professor, describe a student as very talented and intelligent to another colleague, this statement is stronger than the same one made by my secretary, although she might know the grades of that particular student even better than me. Now, if that colleague wants to hire a student assistant or assign a doctoral thesis, he is more likely to remember my own recommendation than the one given by my secretary. He will give my statement a higher priority—just because I am part of the academic elite and my secretary is not. Admittedly, my recommendations, my evaluations and my ‘decisions’ are not always objective. They can be—and most of the time they are—influenced by personal preferences and opinions. This is also not categorically condemnable. Whenever a literary critic is asked for his opinion on a book or a professor for his assessment, it is precisely the personal opinion, the personal evaluation that matters. Nevertheless, this personal opinion, as well as the formal decisions of the abovementioned decision-makers (we remember the government or the management board), can be characterised by certain interests that are not transparent to the outside. And these interests are purchasable. The term ‘purchase’ is not meant to be taken literally in any case. Of course, there are cases in which the literary critic receives plain and simple payment for recommending the book. Of course, there are cases in which the professor gets paid for hiring or recommending the son of the payer—or the son of his friend. However, the opportunities for influence are not exhausted by these situations. The vast majority of interference takes place on another level, on a level where no money is involved but further level of influence are traded. Let me give several examples to you—and I am very sure you will know immediately what I mean.

III. Examples Firstly, I am a professor at university and a member of a tennis club at the same time. Another member of this club, a rich entrepreneur, starts a conversation with me: he says he has a very good friend whose son is studying at my university. The son is looking for employment as a student assistant or an opportunity to take a doctoral degree. He asks whether I could ‘do’ something in that regard. Although his grades are not very good and despite the fact that he would not have stood a

326

B. Heinrich

chance in the application process without the intercession of my tennis friend, I hire the son as a student assistant at my chair or provide him with an opportunity to take a doctoral degree. I am not doing this, because I get paid by anyone. I am doing this, because I do not want to anger my friend from the tennis club. One day I could be in the position of needing his solidarity myself. Maybe I want to ‘place’ my son—or the son of a friend—in his company. Maybe I need his support for becoming president of the tennis club. Anyway, it is always good to have a friend or an acquaintance owing you a favor. And I will give you another example: I am mayor of a small town and—as usual—member of a political party. Now, there are several vacant jobs in the municipal administration—jobs including a certain discretionary competence. And there are also many applicants more or less suitable for the respective jobs. At this stage, one of the deciding criteria for me is, whether or not the applicant is a member of my political party (or a member of my tennis club or my family). I do not think that this behaviour constitutes something condemnable. My argument—as mayor—is that I need people in my administration who are trustworthy and whom I can rely on, ideally, people I have a personal relationship with or people who share the same interests with me. Cooperative work is significantly more effective with people I know or people who have the same friends as me or people sharing my interests or people who owe me a favor. Although municipal administration jobs are non-political, I prefer working with persons sharing my basic values as they are in the same party as me or just because they are my friends. Now, at this point, it is crucial to consider whether this behaviour—of the professor or of the mayor—is morally reprehensible or rather reasonable. Does this behaviour constitute a criminally relevant conduct? Is this already corruption? And if so, is this corruption relevant from a criminal perspective, or is there even a way of corruption that does not amount to a criminal offence?7 And I am asking you: did you always make your decisions exclusively in an objective way asking for the best candidate when engaging a new professor at the Faculty of Law or employing a new assistant or assigning a doctoral thesis? Do personal influences determine our decisions now and then? Every one of us should think about it for a moment. Whether you consider the described conduct as morally reprehensible or not is a question of tradition in many cases and certainly a question of cultural differences. Already at this stage, you would find totally different interpretations answering this question. More important to me, however, is the criminal law perspective. Is it possible—and, if so, to which extent—to include such conduct within the scope of criminal law? Is this certain behaviour punishable at all? And should we—where

7 The term ‘corruption’ must not mean that someone is criminally liable for this behaviour; see Leipziger Kommentar zum Strafgesetzbuch (LK)-Sowada, 12th ed. 2006 (et seq.), Vor § 331 mar€ ginal 41; Uberhofen, Korruption und Bestechungsdelikte im staatlichen Bereich, 1999, pp. 30 et seq.

Political Decision-Making and the Phenomenon of Elite Corruption

327

existing legislation does not cover this behaviour—create new criminal provisions penalising it?

IV. The Term ‘Elite Corruption’ When asking the question whether the conduct I was describing—in Germany we call it ‘patronage’, ‘nepotism’8 or just ‘sleaze’—constitutes criminally relevant corruption, I have to discuss the terms elite and corruption first. I understand ‘elite’ as individuals in possession of a country’s top positions who make strategic decisions in politics, economy and administration, as well as in churches, associations and unions, in cultural issues, as well as in important academic institutions.9 Characteristics for ‘corruption’ are abuse of power, lack of transparency, acting for personal benefit and lack of objectivity concerning all kinds of decision-making.10 From the aforementioned follows a preliminary definition of the term ‘elite corruption’: I understand it as the abuse of power by leading players in politics, economy and society, characterised by a lack of transparency and the securing of personal benefits for those involved. These benefits do not have to be of monetary nature but rather serve to increase the influence and power of the respective persons. Lobbying, networking,11 usage of informal channels—all of these are indicators for elite corruption. The utilisation of personal contacts is essential in this respect—in contrast to objectivity and impartiality. I prefer to subsume all of these things within the term corruption since ‘elite corruption’ meets all of its requirements. Let me repeat: abuse of power, lack of transparency, increase of personal benefits, lacking objectivity in terms of decision-making. But is it possible to consider the described conduct performed by elites on a daily basis to be criminal corruption, and are we obliged to do so? If yes, where do we have to draw the line between permitted and non-permitted interference?

Regarding the term ‘nepotism’, see Eschenburg, Ämterpatronage, 1961, p. 19. Hartmann (note 1), pp. 10 et seq.; Kaelble, Sozialgeschichte Europas – 1945 bis zur Gegenwart, 2007, p. 155. 10 See Androulakis, Die Globalisierung der Korruptionsbeka¨mpfung, 2007; Bannenberg, Korruption in Deutschland und ihre strafrechtliche Kontrolle, 2002; Claussen/Ostendorf, Korruption im € offentlichen Dienst, 2nd ed. 2002; D€ olling, Handbuch der Korruptionspra¨vention, 2007; D€ olling, Die Neuregelung der Strafvorschriften gegen Korruption, ZStW 112 (2000), 334; € Eser/Uberhofen/Huber (eds.), Korruptionsbeka¨mpfung durch Strafrecht, 1997; Greeve, Korruptionsdelikte in der Praxis, 2005; Gribl, Der Vorteilsbegriff bei den Bestechungsdelikten, 1993; Hardtung, Erlaubte Vorteilsannahme, 1994; B. Heinrich, Rechtsprechungsüberblick zu den Bestechungsdelikten, §§ 331–335 StGB (1998–2003), NStZ 2005, 197, 256. 11 See v. Arnim, Korruption, Netzwerke in Politik, Ämtern und Wirtschaft, 2003; Karsten/v. Thiessen (eds.), Nützliche Netzwerke und korrupte Seilschaften, 2006. 8 9

328

B. Heinrich

V. Criminal Considerations Let us have a look at the applicable provisions of the German Criminal Code: therein, corruption as such is not penalised. Furthermore, there is no general criminal offence called ‘corruption’, and ‘corruption’ is also not a criterion of any offence open to interpretation. In fact, we distinguish between three fields of corruption—with totally different requirements—each located in different parts of the German Criminal Code12: first, corruption in public office (meaning ‘public’ or ‘state’ corruption), which is comprehensively regulated in § 331 et seq. of the German Criminal Code13; second, corruption of employees or business agents in commercial practice (meaning ‘private’ corruption), regulated in § 299 of the German Criminal Code14; third, corruption of delegates in political parliaments (meaning ‘political’ corruption), regulated in § 108e of the German Criminal Code.15 Already at this point, we must realize: corruption is not conclusively regulated. The literary critic taking money for a good or bad evaluation of a certain book does not fall in one of these areas at all. He is neither in public office nor a delegate nor a business agent. Therefore, he is not suited as possible offender. In other fields of typical elite corruption, the respective conduct is also not indictable as the law stands in Germany. Admittedly, as a professor of a state university, I am in public office within the understanding of the bribery offences of the German Criminal Code. But is the discussed behaviour—providing a job at the university for the son of my friend or giving him the possibility to write a doctoral thesis, just to do my friend a favor or to profit from our good relationship one

The German Parliament will enact new §§ 299a, 299b of the Criminal Code regarding the criminal liability of doctors and medical staff; see BR-Drucks. 360/15; Aldenhoff/Valluet, medstra 2015, 195; Dieners, PharmaR 2015, 529; Gaede, medstra 2015, 263; Gaede/Lindemann/ Tsambikakis, medstra 2015, 142; Geiger, medstra 2015, 97; Ramb, CCZ 2015, 262; Schr€ oder, NZWiSt 2015, 321, 361; Steenbreker, medstra 2015, 600; Wigge, NZS 2015, 447. The reason is that the German High Court refused to consider these persons as ‘officials’ (§ 331 et seq. of the German Criminal Code); see BGHSt 57, 202; Braun, MedR 2012, 277; Corsten, BB 2012, 2059; Hecker, JuS 2012, 852; Hohmann, wistra 2012, 388; Ihwas/Lorenz, ZJS 2012, 712; K€ olbel, StV 2012, 592; Kosak, ZIS 2013, 226; Kraatz, NZWiSt 2012, 273; Kr€ uger, StraFo 2012, 308; Leimenstoll, wistra 2013, 121; Meseke, KrV 2012, 211; Wengenroth/Meyer, JA 2012, 645. 13 § 331(1) of the German Criminal Code (taking bribes) states: ‘A public official or a person entrusted with special public service functions who demands, allows himself to be promised or accepts a benefit for himself or for a third person for the discharge of an official duty shall be liable to imprisonment not exceeding three years or a fine.’ 14 § 299(1) of the German Criminal Code (Taking and giving bribes in commercial practice) states: ‘Whosoever as an employee or agent of a business, demands, allows himself to be promised or accepts a benefit for himself or another in a business transaction as consideration for according an unfair preference to another in the competitive purchase of goods or commercial services shall be liable to imprisonment not exceeding three years or a fine.’ 15 See Art. 1 no. 4 of the 48th law amending the German Criminal Code (Strafrechts€ anderungsgesetz), 23.4.2014, BGBl. 2014 I, S. 410; BT-Drucks. 18/476; BR-Drucks. 64/14. 12

Political Decision-Making and the Phenomenon of Elite Corruption

329

day—within the scope of § 331 et seq. of the German Criminal Code? This would be the case, if I allow myself to be promised a ‘benefit’ or if I accept a ‘benefit’ for myself ‘for the discharge of an official duty’. While hiring someone at a university or offering the possibility to write a doctoral thesis can be considered as ‘official duties’ for sure, the question of the ‘benefit’ is more difficult. Indeed, a benefit is not limited to being of a material or monetary nature16 and may indeed be immaterial.17 Nevertheless, the benefit has to be concrete. The mere prospect of a friend owing me a favour or of the general sympathy of my tennis partner is, however, not sufficient in this respect. It is not specific enough.18 And the mayor only hiring people connected to him in his administration? His conduct also constitutes an ‘official duty’. But, on the other hand, a ‘benefit’ being sufficiently concrete is hardly ascertainable. The ‘general sympathy’, the realistic ‘prospect of successful cooperation’ as a consequence of similar political outlooks or the mere wish of a smooth administration process are—here again—not specific enough to amount to a ‘benefit’ within the meaning of the law. Even if we recognise these elements as ‘benefits’, is such conduct truly punishable, or should we, where appropriate, reduce the elements of the offence teleologically, as far as it is possible to comprehend the behaviour of the mayor? Is it not instead reasonable to prefer working together with friends and acquaintances than with strangers? Is a smooth administration process not a goal worth aiming for? At this stage, I cannot answer these questions in general. In fact, this issue is part of a comprehensive research project I am pursuing at the moment. However, I would like to focus on two aspects. The first aspect constitutes patronage in public office, and the second aspect contains the creation of the offence of unlawful interference.

VI. Patronage in Public Office As shown by my previous examples, most of the so-called elite corruption happens in the context of patronage in public office.19 This term describes the unjustified preference of chosen applicants when filling offices or positions (especially in

16

See Arzt/Weber/Heinrich/Hilgendorf-Heinrich, Strafrecht Besonderer Teil, 3rd ed. 2015, § 49 marginals 24 seq.; Strehlow, Einschra¨nkungsmodelle zum Anwendungsbereich der Vorteilsannahme gema¨ß § 331 StGB, 2015. 17 Arzt/Weber/Heinrich/Hilgendorf-Heinrich (note 16), § 49 marginal 24. 18 See Fischer, Strafgesetzbuch mit Nebengesetzen, 63rd ed. 2016, § 331 marginals 11e et seq.; Lackner/K€ uhl, Strafgesetzbuch Kommentar, 28th ed. 2014, § 331 marginal 5; Münchener Kommentar zum StGB (Müko)-Korte, 2nd ed. 2014, § 331 marginals 67 seq.; Sch€ onke/ Schr€ oder-Heine/Eisele, Strafgesetzbuch Kommentar, 29th ed. 2014, § 331 marginals 18 et seq. 19 See v. Arnim, Ämterpatronage durch politische Parteien. Ein verfassungsrechtlicher und staatspolitischer Diskussionsbeitrag, 1980; Bieler, NJW 2000, 2400; Eschenburg, Ämterpatronage, 1961; Fricke, Probleme der Ämterpatronage, 1973; Lindenschmidt, Zur Strafbarkeit der parteipolitischen Ämterpatronage in der staatlichen Verwaltung, 2004; Mousiol,

330

B. Heinrich

public service or in academic areas) solely based on party membership, ideology, a certain academic opinion or personal connections, instead of identifying the best candidates. Personal acquaintances and fellow party or club members are preferred in this system, and party membership or social standing is more important than quality and personal skills. There are two categories of patronage in public office: firstly, patronage to secure power and, secondly, patronage to place friends.20 Patronage to secure power is characterised by an employer aiming to secure his own influence and decision-making power on a permanent basis by hiring people personally connected to him or her. Let us consider the example of the mayor once again: if I am hiring people who are close to me and who will be thankful for receiving the job, I am securing their loyalty in future. They will not make decisions beyond my will and they might be bound to me even after my capacity as mayor is finished. Thereby, I succeed in continuing to exert my influence.21 Looking at politics, we see it more clearly: after each and every change of government, political and administrative key positions—even positions in the justice and legal system—are filled with people backing the new political line.22 The second category is patronage to place friends. This means that during the hiring process, I prefer a person to whom I owe a favor or someone I want to provide a job for.23 One example for this is an affair that was revealed in Germany several months ago: a large number of delegates of German parliaments employed their wives or husbands in their delegate offices enabling them to gain a well-paid job. The delegates paid their partners with public funds at their disposal.24 Considering public service, this constitutes an unlawful conduct. According to Art. 33(2) of the German Constitution, the precondition for access to a public office is that the best candidate gets employed and not the one with the best personal connections or with a certain party membership.25 There are, however, exceptions in the political area as the law stands in Germany. We do have so-called political

Ämterpatronage. Gefahr für die Demokratie, 2013; Schmidt-Hieber, NJW 1989, 558 (559); Schmidt-Hieber/Kiesswetter, NJW 1992, 1790; Wassermann, NJW 1999, 2330; Wichmann, Parteipolitische Patronage. Vorschla¨ge zur Beseitigung eines Verfassungsverstoßes im Bereich des € offentlichen Dienstes, 1986. 20 See Eschenburg (note 8), pp. 12 et seq. 21 Eschenburg (note 8), p. 12. 22 Schmidt-Hieber, NJW 1989, 558. 23 See Eschenburg (note 8), p. 15; Fricke (note 19), p. 13. 24 See http://www.sueddeutsche.de/bayern/csu-gehaltsaffaere-noch-mehr-csu-politiker-beschaeftigtendie-familie-auf-staatskosten-1.1663265. 25 See Bieler, NJW 2000, 2400 (2401); H€ omig, Grundgesetz für die BRD, 10th ed. 2015, Art. 33 marginals 4; Maunz/D€ urig-Badura, Grundgesetz Kommentar, 75. Erga¨nzungslieferung, 9/2015, Art. 33 marginals 25 et seq.; v. M€ unch/Kunig, Grundgesetz, 6th ed. 2012, Art. 33 marginal 16; Schmidt-Hieber, NJW 1989, 558 (559); Sachs-Battis, Grundgesetz Kommentar, 7th ed. 2014, Art. 33 marginals 27 et seq.; Wichmann, Parteipolitische Patronage, 1986, pp. 59 et seq.; Wolff/ Bachof/Stober, Verwaltungsrecht II, 5th ed. 1987, § 107 marginal 11.

Political Decision-Making and the Phenomenon of Elite Corruption

331

public servants, who have to be in line with the basic opinions and goals of the respective government according to § 30 of the German law on public officials. Primarily, this applies to political State Secretaries. Each new minister is entitled to employ a new political State Secretary (and to dismiss the previous one), and he may base his choice on the political profile of the candidate applying. This is, however, unlawful regarding the hiring process of civil servants in general. In all these other cases, the minister has to employ the best candidate, and only the most suitable one may get the job. Nevertheless, it is a common understanding that the assignment of an office due to personal connections does not amount to a punishable conduct of the person deciding based on personal preferences. As already mentioned above, patronage to place friends is not covered by § 331 et seq. of the German Criminal Code. It constitutes no chargeable corruption as no ascertainable ‘benefit’ is existent in these situations. Merely securing power or merely securing general sympathy is not sufficient in this respect. There is, however, discussion as to whether the described conduct can be considered within the scope of another offence of the Criminal Code, namely ‘Embezzlement and abuse of trust’26 according to § 266 of the German Criminal Code.27 Following this approach, the fact that someone was employed due to personal preferences and not on the basis of objective quality criteria constitutes a violation of the general efficiency rule as the work performance of a less qualified employee has not the same economic value as the performance delivered by the more qualified one.28 Therefore, some assume a financial loss in that case and affirm ‘Embezzlement and abuse of trust’ in light of an inappropriate use of public funds.29 The prevailing opinion on this topic contradicts this argumentation and denies culpability.30 With reference to settled case law concerning employment fraud,31 § 263 of the German Criminal Code, a financial loss cannot be seen in the mere fact that the employed person is less qualified.32 Only when this person is not able to meet the requirements of the job or 26

See Schmidt-Hieber, NJW 1989, 558; Krell, Untreue durch Stellenbesetzungen, 2015. § 266 of the German Criminal Code (Embezzlement and abuse of trust) states: ‘Whosoever abuses the power accorded him by statute, by commission of a public authority or legal transaction to dispose of assets of another or to make binding agreements for another, or violates his duty to safeguard the property interests of another incumbent upon him by reason of statute, commission of a public authority, legal transaction or fiduciary relationship, and thereby causes damage to the person, whose property interests he was responsible for, shall be liable to imprisonment not exceeding five years or a fine.’ 28 Schmidt-Hieber, NJW 1989, 558 (560). 29 Schmidt-Hieber, NJW 1989, 558 (560). 30 Wittig, Wirtschaftsstrafrecht, 3rd ed. 2014, § 20 marginals 154 et seq.; Lackner/K€ uhl (note 18), § 266 marginal 17c. 31 BGHSt 5, 358; BGHSt 17, 254; BGHSt 45, 1; BGH NJW 1978, 2042; see Budde, Der Anstellungsbetrug, 2005; Protzen, Der Verm€ogensschaden beim sog. Anstellungsbetrug, 2000. 32 BGH NStZ-RR 2006, 307; Fischer (note 18), § 266 marginal 123; v. Heintschel-Heinegg-Wittig, Strafgesetzbuch Kommentar, 2nd ed. 2015, § 266 marginal 45.1; Wittig (note 30), § 20 marginal 155. 27

332

B. Heinrich

the public office on a technical level, meaning the employee is personally not suitable to hold the respective office at all, a financial loss can be assumed. Being less qualified, however, is not sufficient once again.

VII. Trading in Influence The second aspect deals with ‘trading in influence’, also called ‘unlawful interference’ or ‘influence peddling’. In legal reality, there is a way of ‘trading in influence’ in the context of state corruption, which is, at least in Germany, (intentionally) not covered by the bribery and corruption offences of the Criminal Code.33 ‘Trading in influence’ is characterised by a powerful ‘intermediary’ influencing the decision of a public official against payment, however, without trying to bribe the official by promising or granting ‘benefits’ in the legal sense. Let us look once again—with a slight variation—to the case I described above: a friend of my powerful tennis club friend pays another tennis friend of mine 5000 Euros to ensure that his son gets an academic job at a university or the possibility to write a doctoral thesis. Now, I—the university professor—facilitate these things, however, without receiving a single cent for myself. I am only acting in this way to do my club friend a favour or to gain his general sympathy. The money that was paid for my other friend’s interference occurs completely without my knowledge. From a criminal law perspective, this conduct does amount to neither a taking of bribes according to § 331 of the German Criminal Code nor to ‘Taking bribes meant as an incentive to violate one’s official duties’, § 332 of the German Criminal Code.34 The reason is I—the official—do not obtain any benefits as I am only acting for the sake of a favor or general sympathy. My tennis friend on the other hand, receives payment for his attempt, but he does not hold an office and is therefore no suitable offender within the meaning of the two provisions mentioned above. The

¨ ber die Strafwürdigkeit des ‘Handels mit Einfluss’, Festschrift für See Abanto V asquez, U Tiedemann 2008, p. 913; Eckert, Lobbyismus – zwischen legitimen Einfluss und Korruption, in: von Alemann (ed.), Dimensionen politischer Korruption: Beitra¨ge zum Stand der internationalen Forschung, 2005, p. 267; Philipp, Der Straftatbestand des Einflusshandels (Trafic d’influence) – M€ ogliche Implementierungswege in das deutsche Strafrecht unter Berücksichtigung internationaler Vorgaben sowie der franz€osischen, belgischen, € osterreichischen und spanischen Korruptionsdelikte, 2016; Zeiser, Trafic d‘influence: Der Straftatbestand des missbra¨uchlichen € Handels mit Einfluss als Modell zur Schließung von Strafbarkeitslücken?, 2012; Uberhofen (note 7), pp. 278 et seq., 378 et seq., 392. 34 § 332(1) of the German Criminal Code (Taking bribes meant as an incentive to violating one’s official duties) states: ‘A public official or person entrusted with special public service functions who demands, allows himself to be promised or accepts a benefit for himself or for a third person in return for the fact that he performed or will in the future perform an official act and thereby violated or will violate his official duties shall be liable to imprisonment from six months to five years. In less serious cases the penalty shall be imprisonment not exceeding three years or a fine. The attempt shall be punishable.’ 33

Political Decision-Making and the Phenomenon of Elite Corruption

333

respective conduct is not punishable, although the legal interest and purpose of the corruption offences are affected by all means.35 It is an interesting fact that such unlawful interference (or ‘trading in influence’ or ‘trafic d’influence’) is expressly covered by the scope of a criminal offence in many countries, for example France, Spain and Austria.36 Furthermore, Art. 12 of the ‘Council of Europe Criminal Law Convention against Corruption’37 requires the creation of such a criminal offence according to the provision’s wording. A similar clause exists in Art. 18 of the UN Convention against corruption38; however, it is worded more softly. Therefore, the provision constitutes a recommendation rather than an international obligation to create such an offence. German legislation is currently working on the assumption that such conduct is virtually non-existent in Germany and not punishable in general. In most of the cases— according to the lawmakers’ argumentation—‘trading in influence’ is covered by the scope of other offences, an opinion that is not completely convincing.

VIII. Prospects It is interesting to take a look at other jurisdictions and their respective societies. This look reveals the reason why other countries find such ‘unlawful interference’ or ‘trading in influence’ worth punishing, and it delivers certain insights on the phenomenon described as ‘elite corruption’ by myself. Let us take a look at France, a country knowing the criminal offence ‘trafic d’influence’ in Art. 432 and Art. 433 of the Code Pe´nal. Why does France enact such provisions? Why is this kind of elite corruption prospering in France, whereas it is hardly common in Germany? The reason for this can be found in the definition of the term elite, which is more precise in France. In fact, the elite in France are significantly more connected and distinguish themselves more clearly.39 Whoever wants to make something out of his or her life and wants to be part of the social or political elite, has to pass through one of the few French elite universities, called ‘Grandes E´coles’,40 during education. A particularly impressive

35 To the legal interests in this case, see Heinrich, Der Amtstra¨gerbegriff im Strafrecht, 2001, pp. 209 et seq., 239 et seq. 36 Art. 432, 433 Code Pe´nal (France); § 308 of the Austrian Criminal Code (‘verbotene Interven€ tion’); see Uberhofen (note 7), pp. 278 et seq. (Austria), pp. 378 et seq. (France). 37 European Treaty Series (ETS) No. 173; BT-Drucks. 13/11309, p. 5. 38 United Nations Convention against Corruption (UNCAC), Doc. A/58/422; BGBl. 2014 II, p. 762 (763 et seq.); see Hofmann/Pfaff, Die Konvention der Vereinten Nationen zur Beka¨mpfung der Korruption, 2006. 39 Regarding the ‘elite’ in France Huppert, Les Bourgeois Gentilshommes. An Essay on the Definition of Elites in Renaissance France, 1977; further Lang, Die Verwaltungselite in Deutschland und Frankreich 1871-2000, Regimewechsel und Pfadabha¨ngigkeiten, 2005. 40 See on a historical view Huppert (note 39), pp. 59 et seq.; regarding the ‘Grands Corps’ Lang (note 39), pp. 57, 59.

334

B. Heinrich

example is the ‘E´cole Nationale d’Administration’, ‘ENA’ in short. Almost all the French elite leaders come through this institution. The most powerful positions in economy and politics are filled with ENA graduates. Not only did they obtain the same high-quality education, but they also developed an ‘esprit de corps’—a special sense of a common bond. Many of them went to the university together and have known each other since then. There is a German proverb: ‘Eine Hand wa¨scht die andere’, meaning ‘one hand washes the other’ or ‘you scratch my back, I’ll scratch yours’. This refers to people supporting each other and facilitating several benefits for their friends. In certain elite alumni associations,41 common traditions are kept—and one job or another is allocated. The same applies to Great Britain. Graduating at Oxford or Cambridge University opens the door to the elite world. Most of the important decision-makers know each other from their days as students, are university friends or are members of the same alumni association. Yet the British elite starts even earlier, namely in the elite boarding schools, only opened to a small number of privileged students. These schools stand symbolically for the ‘esprit de corps’ and the mighty alumni associations I was referring to above.42 Here, I would just like to name the boarding schools of Eaton and Harrow.43 An additional factor is that the entrance into these privileged education institutions—in England even more so than in France44—is only open to a small circle of people in light of the tremendous tuition fees. Already at this stage, there is no selection based on quality and performance but a social selection.45 And exactly those who passed through this high-quality elite education system, linked afterwards by their alumni connections, hold the key positions and offices in politics, administration and economy in the future. Bearing this in mind, I want to conclude with this provocative remark: if the access to privileged education institutions is not determined by achievement but by social selection and if this circumstance is accepted by society without any doubt, what could be more obvious than applying this principle when filling key positions in politics, economy and administration? Concerning this matter, many things are still in the dark, and criminal law has no access to this topic at the present time.

Bernd Heinrich is Professor of Criminal Law, Law of Criminal Procedure and Copyright Law at the University of Tübingen.

41

Hartmann (note 1), p. 116. Hartmann (note 1), p. 117. 43 ¨ berlegungen zur Schulreform in einer demokratischen See Tr€ oger, Elitenbildung – U Gesellschaft, 1968. 44 See Edwards/Fitz/Whitty, The State and Private Education: An Evaluation of the Assisted Place Scheme, 1989; Hartmann (note 1), pp. 117 et seq. 45 Compare with a view to France Hartmann (note 1), p. 111; Hartmann, Eliten und Macht in Europa – Ein internationaler Vergleich, 2007, p. 69. 42

Ill-Motivated Criminal Proceedings as a Means in the Political Arena? Athina Giannakoula

Assessing the criminal liability of political decision-makers, especially when they hold office high in the hierarchy of the executive branch, is a process bearing exceptional traits in many European countries.1 The substantive reason behind the institution of differentiated rules lies within the strong political character of several aspects of the criminal liability deriving from offences committed in the execution of public duties.2 Most distinctively, the legitimising effect of the elections, namely with regard to actions approved by the majority of the voters; the significance of the concurrent political cost, which often seems to be an adequate and perhaps more appropriate punishment; and the fact that in some cases the criminal proceedings involving politicians generate social turmoil and appear to be more harmful than the offences themselves show the complex nature of the said liability.

1

This is clearly demonstrated in the national reports and the comparative analyses of the present edition. See also K. Chrysogonos, I ekptosi tis ypourgikis efthynis, Honorary Volume for S. Alexiadis, 2010 (Sakkoulas, Athens), p. 1129 (1131-1134); P. Mantzoufas, I schesi politikis kai poinikis efthynis ton melon tis kyvernisis, in: Mantzoufas/Margaritis/Symeonidou-Kastanidou, I poiniki efthyni ton Ypourgon, Dynatotites kai oria, 2014 (Nomiki Bibliothiki, Athens), p. 1 (7); as well as the ‘Report on the Relationship between Political and Criminal Ministerial Responsibility’ adopted by the European Commission For Democracy Through Law (Venice Commission) at its 94th Plenary Session (Venice, 8-9 March 2013), available at http://www.venice.coe.int/ webforms/documents/default.aspx?pdffile¼CDL-AD(2013)001-e. 2 A. N. Loverdos, I Poiniki Efthyni ton Melon tis Kyvernisis kai ton Yfypourgon sto Koinovouleftiko Politevma, 1995 (Ant. N. Sakkoulas, Athens), pp. 84-106. See a collective reference to the views on the justification of the special regime in L. Margaritis, Ypourgoi kai Yfypourgoi: pathitiki dorodokia kai nomimopoiisi esodon apo egklimatiki drastiriotita, Poiniki Dikaiosyni (PoinDik) 2011, p. 490 (490-491). A. Giannakoula (*) National School of Judges of Greece, Thessaloniki, Greece Law Faculty, Aristotle University of Thessaloniki, Thessaloniki, Greece e-mail: [email protected] © Springer International Publishing AG 2017 F. Zimmermann (ed.), Criminal Liability of Political Decision-Makers, DOI 10.1007/978-3-319-52051-3_19

335

336

A. Giannakoula

Obviously, in an area of such fragile balances, where even justified interventions of the criminal justice system can be considered as borderline and must be carefully regulated,3 any ill-motivated prosecutions pose serious threats and, thus, constitute powerful weapons.4 Subsequently, the process of formulating the special regime that concerns political decision-makers is to a significant degree defined by the need to deter the initiation, and diminish the consequences, of criminal proceedings aiming to neutralise political rivals or avenge former government officials or (worse) destabilise the political scene. This contribution refers to the Greek legal system as an example of a legal order that has made the choice to apply an extended special framework in order to protect certain political decision-makers5 but is also suffering from incidents of impunity. To begin with, in Greece, the objective of dealing with ill-motivated proceedings and in this way safeguarding the integrity of the respective procedure is primarily connected with two fundamental deviations from the regular provisions.6 The first deviation intended to serve as a guarantee is identified in the Parliament’s decisive competences to carry out the pre-trial investigation and, particularly, in its exclusive competence to prosecute current or former members of the Government for criminal offences committed in the execution of their duties.7 This divergence from the classic separation of powers,8 which is perceived as an expression of mistrust towards the judiciary and its political impartiality,9 is meant to protect ‘[not only the state against state officials, but also] state officials against illegal and indecent attacks from their opponents’.10 Further, it is justified exactly in view of the goal to avoid the distortion of the public dialogue caused when unjustly focusing on criminal liability11 and to hinder the excessive

3

Loverdos (note 2), p. 120. K. Chrysogonos, Syntagmatikes diastaseis tis poinikis efthynis ton melon tis kyvernisis kai ton yfypourgon, Υperaspisi 1997, p. 451 (455); Mantzoufas (note 1), pp. 8-9. 5 Chrysogonos (note 1), p. 1134, notes that the Greek system essentially comprises all the protective provisions found in the other European constitutions, plus one (the special prescription period). For the special attributes of the Greek political and legal system, see also Loverdos (note 2), pp. 23-24. 6 Chrysogonos (note 4), pp. 455-456. See also the chapter ‘Criminal Liability of Political Decision Makers in Greece’ by Athina Giannakoula in the present edition regarding immunities. 7 See Art. 86 of the Greek Constitution (translations of the Constitution are available at the Parliament’s website: http://www.hellenicparliament.gr/en/Vouli-ton-Ellinon/To-Politevma/Syn tagma/) and statute 3126/2003 (Art. 1: ‘Misdemeanours and felonies committed by a Minister [¼ prime minister, ministers, deputy ministers] in the execution of his duties are tried under the present statute by the Special Court of article 86 of the Constitution, even after the Minister has abolished his position’). 8 E. Venizelos, in: Manoledakis/Venizelos, I Poiniki Efthyni ton Ypourgon, Meionektimata tis ischyousas rythmisis – protaseis gia tin tropopoiisi tis, 1993 (Ant. N. Sakkoulas, Athens – Komotini), p. 31 (32); Mantzoufas (note 1), p. 9. 9 Venizelos (note 8), p. 37. 10 A. Charalambakis, I poiniki efthyni ton Ypourgon, Poinika Chronika (PoinChron) 2009, p. 769 (772). 11 Chrysogonos (note 4), p. 456. 4

Ill-Motivated Criminal Proceedings as a Means in the Political Arena?

337

interference of the judicial authorities into the political arena.12 Explicitly in the same direction, Art. 83 of the Parliament’s Standing Orders provides that the Committee of Parliamentary Ethics, when assessing a request for a leave for prosecution of a member of the Parliament, examines whether the request to waiver refers to an act related to the political or parliamentary activity of the specific member of the Parliament or whether the charges conceal political intentions; if they do not, the Committee must grant the request.13 The second differentiation designed to function as a guarantee against ill-motivated proceedings concerns the period of time within which the Parliament can exercise its competence to indict a serving or a former member of the Government.14 It is an old (it goes back to the first respective law in 1876) and deeply rooted institution, which introduces short periods of time estimated in parliamentary sessions instead of years (a parliamentary session begins every October and usually lasts for 9–10 months15). This special limitation period was originally set to three parliamentary sessions after the commission of the offence and is now fixed at two parliamentary sessions after the elections that followed the commission of the offence. Although the nature of this period of time, mostly in relation to the statute of limitations, is still debated, it is commonly accepted that its objective is to push for swift justice so as to protect the political decision-maker and the political system from being under the threat of prosecution for too long.16 The basic guarantees mentioned above are supplemented by the rules governing the formation of the Special Court as a non-permanent body17 and by the constitutional prohibition of adopting special ‘ministerial offences’ since the criminalisation of violating any legislative provision and of harming state interests even without breaking any law, which was in force until 1997, was in clear contrast with the principle of legality.18

12

Venizelos (note 8), p. 37. See also A. Karras, Anamorfosi tou thesmou tis asylias voulefton kai tou nomou peri efthynis ypourgon, PoinChron 1994, p. 577 (578). 14 It concerns ministers as identified in footnote 7. 15 See Art. 64 of the Greek Constitution. 16 See I. Manoledakis, in: Manoledakis/Venizelos, I Poiniki ton Ypourgon, Meionektimata tis ischyousas rythmisis – protaseis gia tin tropopoiisi tis, 1993 (Ant. N. Sakkoulas, Athens – Komotini), p. 11 (17); D. Tsatsos, Syntagmatiko Dikaio, tomos B’, Organosi kai leitourgia tis Politeias, 2nd ed. 1993 (Ant. N. Sakkoulas, Athens – Komotini), p. 323; N. K. Androulakis, Gyro apo tin poiniki efthyni ton ypourgon, paragrafi – symmetochoi, 1989 (Ant. N. Sakkoulas, Athens), p. 52; C. Dedes, I efthyni ton ypourgon, Nomiko Vima 1989, p. 1373 (1375); Karras (note 13), p. 581; Chrysogonos (note 1), p. 113; Charalambakis (note 10), pp. 773-774. 17 Androulakis (note 16), pp. 51-52; Loverdos (note 2), p. 97; Mantzoufas (note 1), p. 9; Venizelos (note 8), pp. 38-39, considers this to be another indication of mistrust towards the impartiality of the judiciary. 18 Art. 86(1)(b) of the Greek Constitution. See also footnote 9 of ‘Criminal Liability of Political Decision Makers in Greece’ by Athina Giannakoula in part I of the present edition. 13

338

A. Giannakoula

Despite the existence and the evolution of this exceptional legal regime, though, there are often discussions about the motivation behind cases of prosecution against members of the Government, as presented below. More specifically, before 1989, the special procedure was initiated in eleven occasions, but it was concluded in only three (in 1876, 1930 and 1950).19 The repeated termination of the proceedings by the Parliament and the fact that, in some cases among those not concluded, the proposal to indict involved all the members of a former government are considered as strong indications of politically motivated prosecutions. During 1989–1994, a significant example of politically motivated decisions occurred with regard to the trial of former ministers and a former prime minister. According to the legislation in force at that point, for the criminal offences attributed to members of the Government who had lost the elections of June 1989, the special limitation period provided for would very soon expire; indeed, the new Parliament only managed to decide on the indictment in time. Nevertheless, the Special Court interpreted the special limitation period as a deadline within which the decision to indict was the only act necessary to take place. The said judgment, which was followed by a controversial court procedure that was covered live on TV, was met with severe and widespread criticism (even by those panning the short limitation period) due to its contra legem interpretation of the law.20 In the aftermath of the Special Court’s handlings in this case, the political rivalry climaxed and polarised as two national elections were conducted while the former prime minister and leader of a major political party was on trial. Finally, the former prime minister was acquitted, three of the former ministers were convicted, while another one had suffered a stroke during the live coverage of the trial and passed away. Given all the above and also that, in response to these facts, new motions for prosecutions were submitted in 1994 (this time for the former prime minister and former ministers coming from the political party that had initiated the previous proceedings), the need for more guarantees against ill-motivated prosecutions in the political arena was then supported. Almost 15 years later, however, the special institutional framework concerning the criminal liability of members of the Government had to deal with the opposite challenge. Most notably, in 2008, the Public Prosecutor of the Supreme Civil and Criminal Court of Greece refused to send evidence about a major economic scandal involving members of the Government to the Parliament, arguing that he had

19

See an extensive presentation in N. Soilentakis, Ypourgoi sto eidiko dikastirio (1821-2000), 2005 (Dikaio & Oikonomia P.N. Sakkoulas, Athens), and a brief overview in Loverdos (note 2), pp. 42-44. 20 See comments on the case (decision 9/1990 of the Special Court of Art. 86 of the Greek Constitution, Yperaspisi 1991, p. 129) in I. Manoledakis, Paratiriseis se Apofasi ar. 9/1990, Eidiko dikastirio gia tin poiniki efthyni ton melon tis kyverniseos, Yperaspisi 1991, p. 131; Androulakis (note 16), pp. 18 et seq.; Loverdos (note 2), pp. 114-118; Chrysogonos (note 4), pp. 457-458; I. Anagnostopoulos, Zitimata tis poinikis dioxis Ypourgon kai symmetochon (me aformi tin yp’ arithm. 1/2011 apofasi tou Dikastikou Symvouliou tou arthrou 86 par. 4 tou Syntagmatos), PoinChron 2011, p. 569 (572).

Ill-Motivated Criminal Proceedings as a Means in the Political Arena?

339

competence to evaluate the basis of the charges himself,21 in spite of the Constitution granting the exclusive power to prosecute ministers to the Parliament; when the case finally reached the Judicial Council of the Special Court in 2011, the special limitation period had already expired.22 Entering the economic crisis heightened the need to punish those responsible for it. Against this background, an important development occurred in 2011 regarding a former minister who was accused of committing passive bribery. More specifically, the Judicial Council of the Special Court decided that, although the special limitation period for the bribery offences presumably committed from 1999 to 2007 had expired, it was still possible to charge the former minister with laundering the bribes he had received because the acts of laundering are not committed ‘in the execution of public duties’ and therefore do not fall within the scope of the special legislation applying to ministers.23 Consequently, the case was transferred to ordinary courts, and the former minister was sentenced to 20 years of imprisonment.24 Even though the respective proceedings have not been directly criticised as politically motivated,25 they have raised important issues (concerning the conditions of referring to ordinary courts, the nature of the special limitation period, the

21 See that Prosecutor’s (G. Sanidas) views on the criminal liability of ministers in: Zitimata armodiotitas tis eisagelikis archis, PoinChron 2009, p. 289, (and) Zitimata apo to nomo peri efthynis ypourgon, PoinDik 2000, p. 762. 22 When the prosecutors handling the pre-trial investigation regarding the said scandal came across evidence pointing to unlawful acts of ministers, they asked for the case to be transferred to the Parliament immediately; given the Supreme Court Prosecutor’s denial to do so, based on his view that the ministers had been ‘misled’, the prosecutors handed in the resignations from the force. For this case (see decision 1/2011 of the Council of the Special Court (Art. 86(4) of the Greek Constitution), PoinDik 2011, p. 293), which generated heated reactions even within the judiciary, see I. Manoledakis, Gnomi, PoinDik 2008, p. 1137; Mantzoufas (note 1), p. 10; Chrysogonos (note 1), pp. 1138-1141; Charalambakis (note 10), pp. 772-773. On the same year, the opposition in the Parliament submitted a motion to prosecute three members of the Government over the same scandal, but the proposal did not proceed, because of the unprecedented decision of the ruling party to be absent at the time of the secret voting, which was thus cancelled; see the comments of Chrysogonos (note 1), p. 1137, on how such a decision violated the Constitution. 23 Decision 1/2011 of the Judicial Council of Art. 86(4) of the Greek Constitution, PoinChron 2011, p. 576. 24 Money laundering has always been punishable with severe penalties under Greek law (i.e. under Art. 394A of the Criminal Code, then Art. 2 of statute 2331/1995 and currently Art. 45 of statute 3691/2011): the penalty provided for the basic type of the offence is 5 to 10 years, while the penalty for its aggravated form is as high as 10 to 20 years. Despite the general severity, though, the penalty imposed on the former minister obviously had a symbolic basis as well (as did the entire trial), due to the cases of impunity of the period 2005-2009 and the economic crisis. 25 Anagnostopoulos (note 20), p. 574, wonders why the Parliament decided to indict the minister for the offences of bribery, since those were clearly time-barred; the author considers this pointless initiation of such a serious procedure to have insulted the institutions and to perhaps even meet the requirements of Art. 239(b) of the Greek Criminal Code (knowingly exposing an innocent to prosecution is a form of abuse of power – harshly punished – on behalf of the competent public officials).

340

A. Giannakoula

offences that may be committed ‘in the execution’ of public duties, the extent to which laundering offences can be handled separately from the basic offences)26; these issues give rise to the question whether certain choices were made in order to avoid any prospect of applying the special regime, which would have led to not completing the procedure. Based on the cases just presented, one may very well wonder: is the special legislation designed for members of the Government really necessary or beneficial? Is perhaps referring to regular justice the right way to go? And in this sense, should ill-motivated proceedings only be considered as an inherent trait of the political arena and not a factor to influence the legislation (especially since they are not even an exclusive trait of the political arena)? An indication as to which approach is more suitable for the characteristics of the political and the justice system in Greece derives from the elements manifesting the complex nature of the issue. What we have seen is that within a comparatively short historical period, conflicting tendencies have emerged. Problematic handlings of relevant cases have taken place on behalf of both the Parliament and members of the judicial branch. Requests for more effective protection of political decisionmakers were followed by requests for ensuring the possibility to indict them.27 Proposals to safeguard the competences of the Parliament or increase the number of votes needed to decide to prosecute have actually coexisted with proposals of the exact opposite content28; what is more, the competences of the Parliament at the pre-trial investigation, usually seen as a divergence from the classic separation of powers, have been characterised as decisive in maintaining the balance between the executive and the judicial branches.29

26 For these issues see Anagnostopoulos (note 20), pp. 569 et seq.; Margaritis (note 2), pp. 491-495; E. Symeonidou-Kastanidou, Ta oria efarmogis ton eidikon diataxeon gia tin poiniki efthyni ton Ypourgon, PoinDik 2011, p. 496; E. Symeonidou-Kastanidou, I ennoia ton ‘ypourgikon’ adikimaton kata to arthro 86 Synt., in: Mantzoufas/Margaritis/Symeonidou-Kastanidou, I poiniki efthyni ton Ypourgon, Dynatotites kai oria, 2014 (Nomiki Bibliothiki, Athens), p. 19; L. Margaritis, Exaleipsi axiopoinou ypourgikou egklimatos kai nomimopoiisi esodon apo egklimatiki drastiriotita, in: Mantzoufas/Margaritis/Symeonidou-Kastanidou, I poiniki efthyni ton Ypourgon, Dynatotites kai oria, 2014 (Nomiki Bibliothiki, Athens), p. 35; N. Chatzinikolaou, in: Kaiafa-Gbandi (scientific supervision), Oikonomiko egklima & diafthora sto dimosio tomea – tomos 1, 2014 (Dikaio & Oikonomia P.N. Sakkoulas, Athens), p. 745 (746-747). 27 Mantzoufas (note 1), pp. 14-18. 28 See such (conflicting with each other) proposals (basically expressing on the one hand the idea that the parliamentary procedures on criminal liability should be more difficult to initiate than the ones concerning political liability, and on the other hand the (counter)argument that the system has already led to unacceptable impunity) in Venizelos (note 8), p. 36; Karras (note 13), p. 583; Loverdos (note 2), pp. 135-138; Chrysogonos (note 1), p. 1136. 29 I. Manoledakis, Preface, in: Loverdos, I Poiniki Efthyni ton Melon tis Kyvernisis kai ton Yfypourgon sto Koinovouleftiko Politevma, 1995 (Ant. N. Sakkoulas, Athens), p. 17; Report of the Scientific Committee of the Greek Parliament regarding statute 3961/2011 (http://www. hellenicparliament.gr/UserFiles/7b24652e-78eb-4807-9d68-e9a5d4576eff/T-POINIP-EPIS.pdf), p. 3; also, E. Venizelos, Schediasma gia tin anatheorisi tou arthrou 86 tou Syntagmatos 1975/1986 kai ti rythmisi tis poinikis efthynis ton Ypourgon, Yperaspisi 1993, p. 471, considers that the

Ill-Motivated Criminal Proceedings as a Means in the Political Arena?

341

An obvious conclusion, nevertheless, is that the demand for shielding the public scene against politically motivated proceedings is still a vivid one, and with good reason. The purpose of the guarantees protecting political decision-makers from trials that could impede their work, discourage their initiative and stigmatise them regardless of their outcome is not solely personal, but it refers to the (democratic) functioning of the State itself.30 Moreover, history has shown that criminal charges against political persons, especially political leaders, affect not only their entire party but all their supporters as well. It has also shown that, when such cases appear, they may indeed become the absolute centre of attention and influence important decisions of the Government or the voters within the critical period.31 Of course, since the special rules so far have in some cases resulted in impunity and in others ‘forced’ the judicial authorities to make questionable choices so as to avoid impunity, it is imperative to address the regulation of such guarantees in a more appropriate manner.32 The latter appears to be an important objective for the Greek legislator in recent years. Looking for a better balance, the 2011 reformation enhanced the regular features of rules concerning the criminal liability of members of the Government (e.g., regarding the limitation periods), made room for a judicial appraisal of the substantive grounds of the charges during the pre-trial investigation, provided for the freezing of assets of the ministers’ property when the investigation concerns a criminal act that produces financial profit (etc.),33 but kept the basic axes of the special legislative framework. Thus, the Greek legal system maintains the choice of considering the criminal liability of political decision-makers as deeply connected to the political conditions of each time. For this reason, there are proposals calling

participation (in the Special Court) of a prosecutor coming from the judiciary amounts to a problematic involvement of the judicial authorities in the political controversy. 30 Dedes (note 16), p. 1374. Venizelos (note 29), p. 461, stresses that within the institutional framework of the criminal liability of ministers political elements that refer to the principle of democracy and judicial elements that refer to the rule of law principle co-exist and often collide. 31 Manoledakis (note 20), p. 134. 32 The need to rationalise the legal framework becomes obvious in view of another recent case (see PoinDik 2014, p. 225). More specifically, after the national elections held on May 6th, 2012, and the inability of all the political parties elected in the Parliament to form a government, the President of the Republic announced a new election day, on June 17, 2012. Subsequently, a parliamentary term started on May 17th and ended just two days later, on May 19th, resulting into making any criminal act committed by ‘a Minister in the execution of their duties’ before April 11th, 2012, fall under the special limitation period of statute 3126/2003 (a ‘parliamentary term’ is the time period between two national elections and it is normally divided into four regular sessions; the special limitation period for ministerial offences expires at the end of the second regular session of the parliamentary term following the commission of the offence). However, when the Council of the Special Court was called to decide on the criminal liability of a former minister for acts that took place between 4 October 2009 and 11 April 2012, it argued that the relevant offences were not time-barred, because the critical period should only include parliamentary sessions during which it is objectively possible to initiate the proceedings against a minister. 33 Mantzoufas (note 1), pp. 8-13.

342

A. Giannakoula

for bolder changes,34 which would restrict the special characteristics of the respective legislation to the necessary minimum, disapproving mostly of the need for a special limitation period at all and of the mistrust towards the judicial authorities in the pre-trial investigation.35 However, this effort should always bear in mind three undeniable facts: the political dimension of the criminal liability of political decision-makers is strong and impossible to eliminate or ignore,36 allocating political liability swiftly and justly is critical in addressing the problems of the criminal liability of political decision-makers,37 the criticism concerning any legislative framework should not underestimate how powerful ill-motivated criminal proceedings in the political arena are as means to distort and degrade the democratic functions and institutions.38 Athina Giannakoula is Lecturer at the National School of Judges of Greece, Thessaloniki.

34 M. Kaiafa-Gbandi (scientific supervision), Oikonomiko egklima & diafthora sto dimosio tomea – tomos 1, 2014 (Dikaio & Oikonomia P.N. Sakkoulas, Athens), pp. 432-436; see also the views of Charalambakis (note 10), pp. 776-778. 35 It is presented as more rational to try to achieve the necessary level of guarantees through special provisions in the judicial system than through the absolute powers of the Parliament (which is almost by definition politically motivated – see on this Chrysogonos (note 4), p. 459). 36 See especially Loverdos (note 2), pp. 60-61, 124-126. 37 Loverdos (note 2), pp. 77, 116-120; Mantzoufas (note 1), p. 17. 38 I. Manoledakis, Giati den metecho sti syzitisi, To Vima 10.5.2009 – http://www.tovima.gr/ opinions/article/?aid¼267462.

Can Politicians Shield Themselves Against Criminal Liability By Means of Law Reform? Nicola Recchia

I. Preliminary Remarks The topic of our project, ‘Criminal Liability of Political Decision-Makers’, reminds us foremost of a delicate balance: on the one hand the fight against corrupted practices among politicians is of obvious importance, while on the other the judicial power shall not interfere with political discretion and not replace politicians in the process of decision-making. And it has already been analysed the worst case scenario in which criminal proceedings are misused as a means in the political arena.1 In this contribution, I would like to focus on the other side of the coin and try to share a few thoughts on how politicians can shield themselves against criminal liability. So again, a problem of separation of powers between legislative and judicial branches arises, but now in the opposite direction. In doing so, I could take no risks and follow the well-studied path of the use of general clemency measures such as amnesty or pardon. This is a well-known practice, especially in transitional justice contexts, where it has been strongly addressed by the European and the Inter-American Courts of Human Rights.2 Nevertheless, I think that this path would lead us far away from the kind of political criminality we are focusing on here as the latter has not much to do with the kind of mass human rights violations that these clemency measures normally address.

1

S. A. Giannakoula’s contribution in part II of this volume. S. F. Tulkens, The Paradoxical Relationship between Criminal Law and Human Rights, Journal of International Criminal Justice 2011, pp. 587 et seq.; F. Vigano`, L’arbitrio del non punire. Sugli obblighi di tutela penale dei diritti fondamentali, in: Studi in onore di Mario Romano, vol. IV, 2011 (Jovene, Napoli), pp. 2660 et seq. 2

N. Recchia (*) University of Ferrara, Ferrara, Italy e-mail: [email protected] © Springer International Publishing AG 2017 F. Zimmermann (ed.), Criminal Liability of Political Decision-Makers, DOI 10.1007/978-3-319-52051-3_20

343

344

N. Recchia

I have decided then to narrow the scope of my analysis to the more sophisticated ways in which the political majority can or could shield its members from criminal liability without resorting to such evident means. I am referring to the possibility of interfering with pending criminal proceedings by means of a criminal law reform due to the principle of retroactive application of the more lenient penalty (lex mitior). I would like to understand the manners in which the judicial power can or could respond to such political intervention. In order to make my presentation less theoretical, I will make use of two examples—both Italian. I beg you to believe that this is due not only to my better knowledge of the Italian legal order but even more to their perfect suitability for my analysis.

II. The Italian Reform of the Offence of False Accounting and the Judicial Reactions The first case I would like to discuss is the one concerning the 2002 reform of the offence of ‘false accounting’, as called in Italy, which punishes—roughly speaking—the use of false statements in the company’s balance sheet. As Silvio Berlusconi became prime minister for the second time in 2001, he, as well as some key political figures of his party, was facing criminal proceedings for the offence of false accounting. The political majority in Parliament then succeeded to adopt, in quite a short time, a law that empowered his government to reform the company law. Acting on the basis of this delegation, the government reformed (among other provisions) the offence of false accounting. It has been correctly stated that a criminal law reform was never as unanimously criticised by the legal doctrine as in this case.3 It is not interesting here to examine all the changes brought to the offence, clearly aimed at narrowing its scope of application and at reducing its level of punishment. Here, it should be sufficient to say that Cesare Pedrazzi, by far the most prominent Italian scholar in economic criminal law, decided to write an obituary for the offence of false accounting.4 It is much more interesting for our analysis to see how the judicial power reacted to such reform. Firstly, it is important to notice that no one decided to challenge the legitimacy of the law on the basis of an alleged misuse of the legislative power, i.e. because the reform clearly served the private interest of some prominent

3

S., ex multis, A. Crespi, Le false comunicazioni sociali: una riforma faceta, Rivista delle societ
a 2001, pp. 1345 et seq.; E. Dolcini, Leggi penali ad personam, riserva di legge e principio costituzionale di eguaglianza, Rivista italiana di diritto e procedura penale 2002, pp. 57 et seq.; G. Marinucci, Falso in bilancio: con la nuova legge avviata una depenalizzazione di fatto, Guida al diritto 2001, pp. 10 et seq.; D. Pulitano`, La riforma del diritto penale societario, fra dictum del legislatore e ragioni del diritto, Rivista italiana di diritto e procedura penale 2002, pp. 934 et seq. 4 C. Pedrazzi, In memoria del falso in bilancio, Rivista delle societ
a 2001, pp. 1369 et seq.

Can Politicians Shield Themselves Against Criminal Liability By Means of Law. . .

345

politicians rather than a public one. Obviously, this element remains in the background of all the subsequent debate, but it never becomes a legal argument. Many Italian judges confronted with criminal proceedings for false accounting decided to suspend these proceedings and asked the Italian Constitutional Court to assess whether the reform complied with the Constitution. The Court declared all the claims inadmissible5 referring to well-established case law under which no decision of the Constitutional Court may lead to the expansion or the aggravation of an offence since such possibility is reserved only to the legislator and not to the Constitutional Court by the principle of legality (Art. 25(2) of the Italian Constitution). I would like to make this point very clear here: the decision of inadmissibility issued by the Italian Constitutional Court has nothing to do with the lex mitior principle since the court has stated in its case law that this principle does not find application when a law is declared unconstitutional (of course only for the facts committed before its entry into force).6 So the problem is not the one—very well known in many European legal orders—of the constitutional rank of the lex mitior principle and of the possibility to balance this principle with other interests. What the Italian Constitutional Court rejects here per se is the possibility to declare a law unconstitutional on the ground that it does not punish enough. If the Constitutional Court extended the area of criminalisation, this would breach the legality principle interpreted as supremacy of the law, requiring a democratically legitimated basis for punishment.7 As you may know, other judges decided to ask for a preliminary ruling of the Court of Justice of the European Union in order to ascertain whether the offence of false accounting as reformed in 2002 was still in compliance with Art. 6 of the First EU Companies Directive, which requires all Member States to provide for appropriate penalties in case of failure to disclose the balance sheet and the profit and loss 5

Corte costituzionale, judgment 161/2004. See L.D. Cerqua, La nuova normativa sul falso in bilancio supera indenne il vaglio della Corte costituzionale, Corriere giuridico 2004, pp. 1303 et seq.; F. Giunta, La Corte costituzionale respinge le questioni di illegittimit
a del ‘falso in bilancio’, Diritto penale e processo 2004, pp. 1497 et seq. 6 See Corte costituzionale, judgment 394/2006, § 6.4. On this judgment see V. Manes, Illegittime le ‘norme penali di favore’ in materia di falsit
a nelle competizioni elettorali, Forum Quaderni Costituzionali 2006, pp. 1 et seq.; G. Marinucci, Il controllo di legittimit
a costituzionale delle norme penali: diminuiscono (ma non abbastanza) le “zone franche”, Giurisprudenza costituzionale 2006, pp. 4160 et seq.; O. Di Giovine, Il sindacato di ragionevolezza della Corte costituzionale in un caso facile. A proposito della sentenza n. 394 del 2006, Rivista italiana di diritto e procedura penale 2007, pp. 100 et seq.; D. Pulitano`, Principio di eguaglianza e norme penali di favore, Corriere del merito 2007, pp. 209 et seq. 7 On the Italian Constitutional Court’s interpretation of the principle of legality enshrined in Art. 25 (2) of the Constitution, in relation to the Parliament’s supremacy role in criminal matters and to the limits of the scrutiny of the constitutional court, see, ex multis, G. Insolera, Democrazia, ragione e prevaricazione. Dalle vicende del falso in bilancio ad un nuovo riparto costituzionale nella attribuzione dei poteri?, 2003 (Giuffre´, Milano); M. D’Amico, Relazione introduttiva. Ai confini (nazionali e sovranazionali) del favor rei, in: Bin/Brunelli/Pugiotto/Veronesi (eds.), Ai confini del ‘favor rei’. Il falso in bilancio davanti alle Corti costituzionale e di giustizia, 2005 (Giappichelli, Torino), pp. 1 et seq.

346

N. Recchia

account by the companies.8 The complex judgment of the Court of Justice, which asks the national judge not to set aside national law, seems to be based mainly on the argument that ‘a directive cannot, of itself and independently of a national law adopted by a Member State for its implementation, have the effect of determining or aggravating the liability in criminal law of persons who act in contravention of the provisions of that directive’.9 The result of the judgments, both of the Italian Constitutional Court and the Court of Justice, was that the offence of false accounting was preserved in that wording until the reform of last year.10

III. The Italian Reform of the Limitation Periods and the Judicial Reactions As for the second example, it is worth mentioning the Italian reform of the limitation periods under criminal law. Again, during the second Berlusconi government, the parliamentary majority succeeded in introducing a comprehensive reform of the limitations period (law 251 of 2005), which, while strongly increasing such periods for recidivists and serious offences, determined a significant reduction for most of the offences when committed by people without a criminal record. It is pointless to say that Prime Minister Berlusconi himself—along with other important political figures of his majority—was facing criminal proceedings for various

8 Corte d’Appello di Lecce, decision of 7 October 2002, Adelchi; Tribunale di Milano, Sez. I penale, decision of 26 Octore 2002, in Guida al diritto, 2002, n. 45, pp. 93 et seq.; Tribunale di Milano, Sez. IV penale, decision of 29 October 2002, ivi, pp. 97 et seq. On these preliminary rulings s. A. Bernardi, Falso in bilancio e diritto comunitario, Rivista italiana di diritto pubblico comunitario 2004, pp. 367 et seq.; V. Manes, Il nuovo ‘falso in bilancio’ al cospetto della normativa comunitaria, Cassazione penale 2003, pp. 1316 et seq. See even before the approval of the reform C. Sotis, Obblighi comunitari di tutela e opzione penale: una dialettica perpetua?, Rivista italiana di diritto e procedura penale 2002, pp. 171 et seq. 9 Court of Justice of the European Union, Cases C-387/02, C-391/02 and C-403/02, 3 May 2005, Berlusconi and others, § 74. On this judgment, among many, s. H. Satzger, Anmerkung, Juristenzeitung 2005, 998 et seq.; G. Insolera/V. Manes, La sentenza della Corte di giustizia sul ‘falso in bilancio’: un epilogo deludente?, Cassazione penale 2005, pp. 2768 et seq.; A. Bernardi, Brevi osservazioni a margine della sentenza della Corte di giustizia sul falso in bilancio, in: Bin/Brunelli/Pugiotto/Veronesi (eds.), Ai confine del ‘favor rei’. Il falso in bilancio davanti alle Corti costituzionale e di giustizia, 2005 (Giappichelli, Torino), pp. 31 et seq.; C. Sotis, Il diritto senza codice, 2007 (Giuffre`, Milano), pp. 103 et seq. 10 On the recent reform of the offence, see, among others, V. Manes, La nuova disciplina delle false comunicazioni sociali, Diritto penale contemporaneo 2016; F. Mucciarelli, Le ‘nuove’ false comunicazioni sociali: note in ordine sparso, Diritto penale contemporaneo 2015; S. Seminara, La riforma dei reati di false comunicazioni sociali, Diritto penale e processo 2015, pp. 813 et seq.; M. Scoletta, Tutela dell’informazione societaria e vincoli di legalit
a nei nuovi delitti di false comunicazioni sociali, Le societ
a 2015, pp. 1301 et seq.

Can Politicians Shield Themselves Against Criminal Liability By Means of Law. . .

347

offences at that time, which were declared time-barred by the competent courts after the reform. Here, again, the reform was followed by strong disapproval among the legal doctrine and the jurisprudence.11 In particular, some public prosecutors attempted to obtain from the competent judges a suspension of the proceedings and a preliminary ruling before the Constitutional Court. In particular, they tried to challenge the compliance of such short limitation periods with positive obligations under EU or ECHR law to protect fundamental rights of the victims or to fight against some criminal activities. However, those requests were rejected by the competent courts in the light of the (above-mentioned) standing case law of the Italian Constitutional Court, which refuses to hear of the constitutionality of a law if its decision would determine the expansion or the aggravation of an offence or would worsen the defendant’s situation.12 It is worth mentioning for your comprehension that limitation periods are considered to be part of substantive criminal law and thus subjected to the constitutional guarantees applicable to the latter in the case law of the Italian Constitutional Court and by a majority of the Italian scholars,13 while, on the contrary, they are seen as matters of procedural criminal law in almost all other European countries.14 This may explain the different approach that—as we will now see—has been adopted by the European Court of Justice.

11 See ex multis, G. Marinucci, Certezza d’impunit
a per i reati gravi e ‘mano dura’ per i tossicodipendenti in carcere, Diritto penale e processo 2006, pp. 168 et seq.; T. Padovani, Una novella piena di contraddizioni che introduce disparit
a inaccettabili, Guida Al Diritto 2006, pp. 32 et seq.; E. Dolcini, Le due anime della legge ‘ex Cirielli’, Il corriere del merito 2006, pp. 55 et seq.; F. Cardile-M. Zanotti, Le diverse declinazioni della rinnovata disciplina della prescrizione, in: Insolera (ed.), La legislazione penale compulsiva, 2006 (Cedam, Padova), pp. 58 et seq.; G. Flora, Le nuove frontiere della politica criminale: le inquietanti modifiche in tema di circostanze e prescrizione, Diritto penale e processo 2005, pp. 1325 et seq. 12 See Trib. di Milano, Sez. IV penale, decision of 5 April 2012, in Diritto penale contemporaneo. Here the public prosecutor had seen a conflict between the national limitation periods and Art. 6 of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions of 1997. See Corte di Cassazione, Sez. V, judgment no. 38085, 5 July 2012, in Diritto penale contemporaneo. In this case the public prosecutor had seen a conflict between the Italian limitation periods and the case law of the European Court of Human Rights on Art. 3 of the Convention, since the offences that had to be declared time-barred were clear cases of torture in the sense of the Convention. It is important to notice that for the same facts the ECtHR has later decided in the case Cestaro vs. Italy of 7 April 2015 that Italy has violated Art. 3 of the Convention, among other considerations, on the basis of the limitation periods provided for these offences, asking the Italian legislator to act immediately for their reform. 13 See ex multis, Corte costituzionale judgments 394/2006; 65/2008; 324/2008. 14 This classification is of course of great importance in relation to the scope of the principle of non-retrospective application of a more severe criminal law in respect of laws extending the limitation periods. On this matter, see ECtHR, Coe¨me vs. Belgium, 22 June 2000, excluding a breach of Art. 7 of the ECHR by Belgium in relation to the retroactive application of more severe limitation periods to the applicant.

348

N. Recchia

In fact, a similar question was recently brought by an Italian judge before this Court by means of a preliminary ruling—I am referring to the case Taricco, decided by the Grand Chamber on 8 September 2015. The Italian judge essentially asked the Court if the de facto impunity granted by such short limitation periods for VAT-related offences complied with EU law and in particular with Art. 325 of the Treaty on the Functioning of the European Union.15 Differently from the case Berlusconi, the Court of Justice stated in this case that in the event that the national court concludes that the national provisions at issue do not satisfy the requirement of EU law that measures to counter VAT evasion be effective and dissuasive, that court would have to ensure that EU law is given full effect, if need be by disapplying those provisions and thereby neutralising the consequence referred to in paragraph 46 above, without having to request or await the prior repeal of those articles by way of legislation or any other constitutional procedure.16

This judgment of the Court of Justice has been strongly criticised by the overwhelming majority of the Italian legal doctrine on several aspects. One of these was, most importantly, a violation of the principle of legality, interpreted in accordance with the Italian Constitutional Court as a prohibition for courts to determine or to aggravate the criminal liability of a person and to interfere with Parliament’s legislative discretion.17 What is more important, these critics have been shared by two preliminary rulings to the Constitutional Court by the Court of

15

Tribunale di Cuneo, Giudice udienza preliminare, decision of 17 January 2014. In the light of the topic we are dealing with it is worth mentioning that the Italian judge makes reference in the footnotes to newspaper articles from Austria, Swiss and Spain in order to show the clear understanding in Europe about the private interests served by the Italian legislation. 16 Court of Justice of the European Union, Grand Chamber, C-105/14, 8 September 2015, Taricco, § 49. 17 On the judgment of the Court of Justice, see the critics by M. Caianiello, Dum Romae (et Brucsellae) Consulitur. . .Some considerations on the Taricco Judgement and Its Consequences at National and European Level, European Journal of Crime, Criminal Law and Criminal Justice 2016, pp. 1 et seq.; E. Billis, The European Court of Justice: A ‘Quasi-Constitutional Court’ in Criminal Matters? The Taricco Judgment and Its Shortcomings, New Journal of European Criminal Law 2016, pp. 20 et seq.; F. Giuffrida, The Limitation Period of Crimes: Same Old Italian Story, New Intriguing European Answers – Case Note on C-105/14, Taricco, New Journal of European Criminal Law 2016, pp. 100 et seq.; V. Manes, La ‘svolta’ Taricco e la potenziale ‘sovversione di sistema’: le ragioni dei controlimiti, Diritto penale contemporaneo 2016; S. Manacorda, Per la Corte di giustizia le frodi gravi in materia di IVA si prescrivono troppo in fretta: note minime a prima lettura della sentenza ‘Taricco’, Archivio penale 2015; O. Mazza, Il sasso nello stagno: la sentenza Taricco e il crepuscolo della legalit
a penale, Rassegna tributaria 2015, pp. 1554 et seq.; L. Eusebi, Nemmeno la Corte di giustizia dell’Unione europea puo` erigere il giudice a legislatore. Note in merito alla sentenza Taricco, Diritto penale contemporaneo 2015; V. Maiello, Prove di resilienza del nullum crimen: Taricco versus controlimiti, Cassazione penale 2016, pp. 1250 et seq. Contra in the italian doctrine F. Vigano`, Disapplicare le norme vigenti sulla prescrizione nelle frodi in materia di IVA? Primato del diritto UE e nullum crimen sine lege in una importante sentenza della Corte di giustizia (sent. 8 settembre 2015 (Grande Sezione), Taricco, causa C-105/14, Diritto penale contemporaneo 2015; A. Venegoni, La sentenza Taricco: una ulteriore lettura sotto il profilo dei riflessi sulla potest
a legislativa dell’Unione in diritto penale nell’area della lotta alle frodi, Diritto penale contemporaneo 2015.

Can Politicians Shield Themselves Against Criminal Liability By Means of Law. . .

349

Appeal in Milan18 and the Court of Cassation,19 by which they ask the Constitutional Court to declare the judgment of the Court of Justice not binding for the Italian legal order as it breaches core principles of the Italian constitutional identity.

IV. Some Provisional Concluding Remarks Of course there is still plenty that could be said about these two cases, but I would like to conclude my contribution by trying to identify some common patterns of this phenomenon. Firstly, while the use of clemency measures has been deeply studied by legal scholars, the more sophisticated way in which politicians can shield themselves from criminal responsibility, i.e. by amending general provisions of criminal law, has been less investigated so far. Secondly, this kind of legislation has actually a much worse effect than general clemency measures since it changes the criminal provisions also for the future and not only for events that occurred in the past and since it is applicable to everyone and not just to some specific groups of people. Thirdly—and I think this is the most interesting aspect—this kind of legislation obliges us to interrogate ourselves and to discuss about the ways in which a democracy can react to such situations. Do the principle of separation of powers and the principle of legality actually prohibit a constitutional court to interfere with the democratic decision of a parliament on the right limitation periods or the right wording of an offence? The majority of the Italian legal doctrine, together with that of some other European countries, is certain to exclude that a constitutional court, without democratic legitimation, could amend a criminal law provision and thus aggravate the criminal liability of the citizens. Why should it, in a democratic system, be up to a constitutional court to set criminal policies limiting the freedom of citizens? But on the contrary, of course, can a democracy, and particularly a constitutional court as a watchdog institution for the political power, tolerate such evident abuse on the part of the legislature, resulting in a general impunity for serious offences against public interests? Fourthly—and strongly linked to the third point—we are faced nowadays with an even more complex legal order in which this kind of decisions by a national parliament will in any case be scrutinised at a supranational level. Every time a national political majority will try to shield itself from criminal liability, the EU and the ECtHR will come into play. But here again the question of the tension between the international obligations of the State and the democratic legitimation of the

18

Corte d’Appello di Milano, Sez. II penale, decision of 18 September 2015, in Diritto penale contemporaneo. 19 Corte di Cassazione, Sez. III, decision of 30 March 2016, Cestari and others; and Corte di Cassazione, Sez. III, decision of 31 March 2016, Adami and others.

350

N. Recchia

parliamentary law will arise. And again, should it be up to the Court of Justice to dictate the criminal policies throughout the EU, or should we affirm the supremacy of the European legislator? We all know that the Court of Justice has been the real protagonist of the European integration, acquiring a role that is hard to find among national constitutional courts. The question is whether this role can be, without any adjustment, transferred to the criminal justice context, where some States and some constitutional courts have for many decades been building stronger boundaries between the competences of each constitutional power. But here again, from the opposite point of view, is it really sufficient to consider the current crisis of EU integration on so many levels, to rely only on the alternative of the politically driven infringement procedure? Even outside the scope of application of EU legislation on the Union’s financial interests, can the EU tolerate that other aspects of a national criminal justice system, as limitation periods, cause a systemic and general impunity regarding those serious offences? As you can see, I have much more questions than answers to share, but maybe we will have some of these answers soon from the Italian Constitutional Court in response to the Taricco judgment of the European Court of Justice. Lastly—since I have not forgotten our topic, i.e. the criminal liability of political decision-makers—it is my humble opinion, in the light of the Italian experience, that if politics manages to use or misuse the legislative power to shield itself from criminal liability, this obviously causes a tragic wound in the constitutional system. But this wound has very little chance to heal with the remedies offered by the judicial system and can really heal only within the same political and electoral context. Each legal solution, where possible, can only partially and for a limited period have a deep general effect, if the political majority can still count on a general approval among the population. In the end, the abuse of the legislative power to shield politicians from criminal responsibility is—unfortunately for us, as legal scholars—rather a question of politics than a question of law. Nicola Recchia is Postdoc Researcher in Criminal Law.

Criminal Liability of Political Decision-Makers in Time of Crisis Petter Asp

I. Introduction This short text contains no substantive conclusions. It does, however, contain a methodological twist, which I think may be of, at least some, importance when discussing the criminal liability of political decision-makers. In short, the twist can be summarised as follows. At the conference during which this paper was presented (or rather during which the paper that is summarised in this text was presented), it was emphasised on numerous occasions and by numerous speakers that the topic—criminal liability of political decision-makers—raises many special questions, e.g. about the relation between the legal sphere and the political sphere, about the need for securing the independence and integrity of political decision-makers etc. It is true, of course, that such questions arise when discussing the criminal liability of political decision-makers, but I think—and that is the sole point of this short text—that it is a mistake to start analysing the question at this end. We should not start off by assuming that there is something special about responsibility for political decision-makers but rather take our point of departure in the normal rules and then—at the end, and if necessary having regard to the result and the interests involved—add the question whether we need to adapt the normal rules on criminal responsibility to the specific context in question. Such an approach has the advantage that the question of ‘specialness’ or the question of ‘adaptation’ will not arise in a vacuum, but in the context of the criminal law system. Thus, we should presume ‘normalness’ and make special arrangements if

P. Asp (*) Supreme Court, Stockholm, Sweden e-mail: [email protected] © Springer International Publishing AG 2017 F. Zimmermann (ed.), Criminal Liability of Political Decision-Makers, DOI 10.1007/978-3-319-52051-3_21

351

352

P. Asp

and when it is necessary.1 In short, this means that we should start by considering the questions we are confronted with using the existing systems and existing theories.

II. Criminal Liability The first two words of the heading of the conference, as well as of my paper, were criminal liability. Thus, one can say that the conference concerned political decision-makers, but its focus was not general but specific: it concerned the criminal liability of decision-makers. If one looks at this question from within, i.e. given the existence of a certain legal system, it is clear that the first question that we must address is whether and to what extent one can fulfil the elements of a criminal offence (actus reus and mens rea or, in German, Tatbestandsm€ aßigkeit) by taking a political decision. In other words, we must make sure that the act as such is criminalised, that it falls under the area of application of an offence (whichever that may be). This follows directly from the principle of legality and its requirement of a legal basis. If the act performed does not fulfil the requirements of a criminal offence, there will be no criminal liability. Thus, we will always have to consider the question whether the act performed by the political decision-maker fulfils all elements of the actus reus of a criminal offence and was committed with mens rea. Already from this simple observation follows a slight shift of focus. We are going from the general question about politicians on the one hand and the criminal law system on the other to the much more specific and limited question whether a certain criminal offence can be committed by taking of a certain type of political decision. I have deliberately written ‘a certain criminal offence’ and ‘a certain type of political decision’ since it seems quite obvious that the answer to the question may depend both on the construction of the offence in question and on the type of political decision that we are talking about. There are, e.g., clear differences between 1. a legislative decision taken by the Parliament (one type of political decision), and 2. an executive decision taken by the head of the board for social services at municipality level (another type of political decision). There are also clear differences between the criminal offences of 1. causing bodily harm, 2. embezzlement, and 3. misuse of office.

1

My text is written from within, i.e., I discuss the question of criminal liability of political decision-makers given the existence of a (certain) criminal law system. Thus, what I am saying about ‘normalness’ does not imply that the legislature is not free to introduce special rules dealing with this area: the legislature can, of course, by means of legislation always make the area more or less special.

Criminal Liability of Political Decision-Makers in Time of Crisis

353

Though general principles as regards the interpretation of statutes and general criminal law doctrines (on, e.g., causation, objektive Zurechnung2 and Sozialad€ aquanz3) may affect the outcome, it seems quite clear that the answer to the question of whether the act falls under a criminal offence will also (and perhaps primarily) depend on how the offence in question is constructed by the legislature. Offences constructed with a view to addressing the situation of decision-makers specifically (e.g., passive corruption) will, e.g., obviously fit more neatly and be less problematic to apply than offences that are constructed primarily with other situations in mind (e.g., causing bodily harm and embezzlement). However, there is, prima facie, nothing saying that the latter type of offences cannot be committed by means of political decision-making. One could perhaps object to what I have written by saying: ok, maybe we face general (‘normal’) questions, but at the very least we face general (‘normal’) questions in a very specific context. This is true, of course. This is, however, nothing that is specific for political decision-makers. We face general and normal criminal law questions in a specific context also when we discuss the criminal liability of football players, the criminal liability of CoEs of businesses or the criminal liability of doctors and nurses. In short, all acts are committed in a context, and this is nothing specific with the criminal liability of political decision-makers (this is not to say that the context may not affect our thinking to a larger or lesser extent). The fact that I am making a plea for focusing on the existing rules and standards does not, of course, mean that I do not admit that some questions will be more important than otherwise or more difficult to answer than otherwise. One specific question that arises as regards the level of actus reus is how one should look at risk-taking by means of the creation of norms. Could one, e.g., commit negligent homicide by passing a law that sets the standard for the maximum percentage of a poisonous substance in drinking water? In most situations, we use existing norms and standards as a basis for our evaluation of whether it is acceptable to take a certain risk or whether it is not. When the act that we are supposed to assess itself is the one through which the norm was set, we must find other standards to assess the act in question, and we must take into account the fact that the decision-maker has been given the mandate to actually set standards. Arguably, this fact will make it harder than in most other situations to find that the risk-taking is unacceptable. Another issue is connected to the questions of who is the author of an offence and who is an accessory to it. In many instances, when offences are committed within organisations, criminal law is not used to the extent that it could be used. For example, when offences are committed within businesses, not everyone who has contributed to the result is brought to justice: the authorities normally focus on the main persons. This is probably true in all situations, but it becomes even clearer when an offence is committed within an organisational structure where it may be

2

Literally: objective imputation. This requirement sets normative limits to the broad concept of causation in German criminal law doctrine. 3 The question whether the respective act, even though falling under a statutory offence, should not entail criminal liability because it is considered socially adequate.

354

P. Asp

quite evident that a lot of people have contributed to the offence. Whether this restrictiveness is the result of pure practical considerations or whether it is the result of a limitation in law is (at least in Swedish law) an open question. Be that as it may, the same type of restrictiveness may be justified in dealing with the criminal liability of political decision-makers. If we leave the question of actus reus and look at rules containing exceptions, in the sense that they justify or excuse an act that would normally constitute a criminal offence, it seems quite obvious that questions regarding justification and excuse could arise also when it comes to offences committed by means of political decision-making. This is, of course, especially true in situations of crisis (compare the heading of my paper). When reacting to terrorist threats or natural disasters, the rules on necessity, e.g., may obviously allow decision-makers to do things that would not otherwise be allowed. Once again, I think it is important to start at the right end, i.e., by applying the general rules on justification and excuse. There are special questions that may arise—for example (1) whether there exists an extra room for manoeuvre having regard to the idea of constitutional necessity and (2) whether there are limitations to the general rules on justification based on the idea that there are rules about the management of crisis—but they are rather exceptions than the main rules.

III. Immunity or Non-punishability One of the most important questions in respect of the criminal liability of political decision-makers is, however, found outside the ordinary principles of criminal law. It concerns the question whether and to what extent political decision-makers acting in their capacity as political decision-makers should be privileged and out of reach for the criminal law system. This question is, in most jurisdictions, not seen as part of the question whether the politician has committed an offence or not, but rather as a question of immunity or procedural non-punishability. Most jurisdictions have some rules to this effect, though they may be very different from each other. Such rules do, of course, reflect some kind of ‘specialness’. However, I would say that it is mainly in this regard, i.e. as regards special rules providing politicians with privileges, that there is room for ‘specialness’. In other respects, the question of criminal liability of decision-makers is, by and large, a question of interpreting and applying regular criminal law rules.

IV. Concluding Remarks Having made my point clear, I would, before concluding, like to stress that I have no interest in implying that there is a conflict between ‘normalness’ and ‘specialness’. There are, obviously, special considerations that have to be made when

Criminal Liability of Political Decision-Makers in Time of Crisis

355

discussing the criminal liability of political decision-makers. However, overemphasising ‘specialness’ may divert us from the ‘normal’ questions that will always be at the heart of the matter. Petter Asp is Supreme Court Justice in Stockholm, Sweden. Formerly, at time of the conference, he was professor of Criminal Law at Stockholm University.

Criminal Law and the Financial Crisis: The Proceedings Against Iceland’s Former Prime Minister Geir H. Haarde Ragnheiður Bragado´ttir

I. Introduction At the beginning of October 2008, an economic collapse occurred in Iceland when all three of the country’s biggest banks went bankrupt. The lead-up to the collapse was the privatisation of Iceland’s three biggest banks shortly after 2000 and that controlling shares in these banks were sold to very few parties. These parties were connected to the two political parties that have governed Iceland for the longest time. Over the next several years, the banking system grew so much that it finally became nine times bigger than Iceland’s entire National Product. In 2006, much pointed to approaching problems, and in January 2008 many parties—including foreign credit rating companies—declared their concern over the banks’ situation and the ability of the Icelandic State to respond if all went in the worst possible way. On the other hand, then Prime Minister Geir H. Haarde said that there was no particular risk brewing and that the banks’ financial status was solid.1 At the start of September 2008, the tone had changed and the then Prime Minister said that the nation’s economic problem was two-pronged. On one hand, it was grappling with ‘traditional contraction following a period of great upturn’ and, on the other, ‘the consequences of international financial crisis following difficulties in the housing market in the United States’. However, the Government and the Central Bank of Iceland were ‘demonstrably addressing the economic difficulties resolutely and had done all in their power to work toward resolving

1

Speech by then Prime Minister Geir H. Haarde, in Althingi (the Icelandic Parliament) on January 29th 2008. R. Bragado´ttir (*) Faculty of Law, University of Iceland, Sæmundargata 2, 101, Reykjavı´k, Iceland e-mail: [email protected] © Springer International Publishing AG 2017 F. Zimmermann (ed.), Criminal Liability of Political Decision-Makers, DOI 10.1007/978-3-319-52051-3_22

357

358

R. Bragado´ttir

the problem of the last several months.’2 Later in September, the credit ratings of the Icelandic State and the banks declined, and at the start of October, bankruptcy of the three banks was imminent. The Prime Minister addressed the nation and explained to people what had happened. Althingi (the Icelandic Parliament) passed Act no. 125/2008, which authorised allocating funds from the State treasury because of the special circumstances on the financial market, etc. (The Emergency Act). It further authorised the State’s takeover of the banks’ boards of directors, placing committees for closing down the affairs of the collapsed banks in charge of them and the founding of new banks on the basis of the old ones. The collapse had materialised in Iceland. It entailed heavy damage for Icelanders and Icelandic society.3 Act no. 135/2008 founded the Office of the Special Prosecutor. Its mission was to investigate suspected punishable conduct before, in connection with and following the events leading up to the banking collapse in Iceland. The office ceased operations at the end of 2015. During its period of operations, the office dealt with more economic violations than those related to the collapse, but the collapse cases numbered more than 200.4 In recent years, many people have been convicted and sentenced to punishment, including owners, bank directors and other supervisors in the three banks. Their punishments involve several years’ imprisonment for fraud, market misuse and insider trading. One of the measures taken following the collapse was that Althingi entrusted the Special Investigative Commission with investigating the lead-up to and cause of the banks’ collapse, assessing whether mistakes or negligence had occurred in executing rules on and monitoring financial operations in Iceland and who was responsible; see Act no. 142/2008. The commission submitted a detailed report in nine volumes on 12 April 2010. One of the points emerging there was that it seemed obvious that both Althingi and the Government lacked the wherewithal and courage to lay out sensible limitations for the financial system.5 Following publication of the investigative report, Althingi appointed a committee of nine members of Parliament from all political parties to discuss the report, and the committee of MPs submitted a detailed report on proposals for Althingi’s

2

Then Prime Minister Geir H. Haarde’s report on economic affairs in Althingi on September 2nd 2008. 3 Many books have been written about the collapse, its lead-up and consequences; see, for example, Guðni Th. J
ohannesson, Hrunið – I´sland a´ barmi gjaldþrots og upplausnar (The Collapse—Iceland on the Verge of Bankruptcy and Dissolution), 2009 (JPV Publishing, Reykjavik), and Guðru´n Johnsen, Bringing down the banking system – Lessons from Iceland, 2014 (Palgrave McMillan US). 4 The website of Morgunblaðið, January 4th 2016, see: http://www.mbl.is/vidskipti/frettir/2016/01/ 04/28_hrunmal_i_skodun_hja_saksoknara/. 5 Aðdragandi og orsakir falls ´ıslensku bankanna 2008 og tengdir atburðir (The Prelude to and Causes of the Fall of the Icelandic Banks in 2008 and Related Occurrences), Althingi’s Special Investigative Commission, Reykjavik 2010.

Criminal Law and the Financial Crisis: The Proceedings Against. . .

359

reactions to the report’s conclusions.6 On 11 September 2010, a majority of the parliamentary committee (five MPs) submitted to Althingi a proposed parliamentary resolution, based on the proposals in the report, on filing a case before the National Court against four former ministers, i.e., former Prime Minister Geir H. Haarde and three others.7 The proposal was approved solely regarding Geir H. Haarde.

II. Legislation 1. The Constitution Many states’ constitutions contain special provisions on ministerial responsibility, and so does the Constitution of the Republic of Iceland no. 33/1944. These provisions discuss the right of Althingi to file an action against ministers, how these matters are handled differently before a judge and a special court for adjudicating these matters. Provisions of this kind first came into Icelandic law when the country got a domestic ministerial government, cf. Act no. 16/1903. They are now in Art. 14 and Art. 29 of the Constitution no. 33/1944. They state: Art. 14 of the Constitution Ministers are responsible for all governmental actions. Laws determine ministerial responsibility. Althingi can bring charges against ministers for their official actions. The National Court tries those cases. Art. 29 of the Constitution The President can decide that prosecution for violations shall be cancelled under compelling circumstances. He pardons people and grants a general pardon for violations. However, he cannot pardon a minister from prosecution or punishment that the National Court has adjudged, except with Althingi’s approval.

Under the Constitution, the prosecutorial authority against a minister is therefore in Althingi’s hands, and the judicial authority in cases Althingi has commenced lies with the National Court. Laws ought to set all further rules on these matters, including the appointment of the National Court, which procedural rules shall apply to the National Court, what conduct entails ministerial responsibility and what penalties there shall be for a minister’s official violations. Two laws were

6

Report of a parliamentary committee to discuss the report of Althingi’s Special Investigative Commission, 138th session of Althingi 2009-2010, parliamentary document 1501 – 705th Case, see the website: http://www.althingi.is/altext/138/s/1501.html. 7 The other three ministers were the Minister of Foreign Affairs, the Minister of Finance and Economic Affairs and the Minister of Commerce. Geir H. Haarde and the Minister of Foreign Affairs were leaders of their parties in Geir H. Haarde’s government, which was a coalition government of two parties. The proposed resolution is at Althingi’s website: http://www. althingi.is/altext/138/s/1502.html.

360

R. Bragado´ttir

enacted regarding these matters soon after Iceland got its first minister, i.e., the Act on the Responsibility of Iceland’s Ministers no. 2/1904 and the National Court Act no. 11/1905. The latter act was amended in 1914, and both acts were reviewed in 1963. New acts were passed, and they are still in force. The National Court is a special court that adjudicates only cases that Althingi brings against ministers because of their official acts; see the National Court Act no. 3/1963. The case against Geir H. Haarde is the first and only case brought before this court. Act no. 4/1963 on Ministerial Responsibility deals in greater detail with the responsibility of ministers. However, provisions of the General Penal Code on violations during governmental work also cover ministers, as relevant.

2. Act No. 3/1963 on the National Court Act no. 3/1963 on the National Court deals with the procedure in cases which Althingi decides to commence against ministers for their official actions, cf. Art. 1. The National Court has 15 justices. Seven of them are lawyers, while Althingi elects the other eight members for a term of 6 years. The lawyers are the five most senior justices of the Supreme Court of Iceland, the chief judge of Reykjavik and the professor of constitutional law at the University of Iceland. An amendment in 2011 (Act no. 41/2011) determined that the justices of the National Court and their reserve justices, when Althingi has approved commencing a case against a minister, should complete adjudication of that case despite expiration of their electoral term. There are several conditions for the eight elected justices’ eligibility. They ought to be between the ages of 30 and 70, have legal capacity and control over their finances, have an unblemished reputation, be Icelandic citizens, be domiciled in Iceland, and they shall not be members of Althingi or employees in the government offices, cf. Art. 3 of Act no. 3/1963. The president of the Supreme Court of Iceland is automatically the president of the National Court, cf. Art. 6. Althingi commences a case against a minister by passing a parliamentary resolution. The resolution ought to specify the counts of the indictment precisely since prosecution of the case depends on these points. Althingi elects a person to prosecute the case on its behalf and another person in reserve. Althingi also elects a parliamentary committee of five to monitor the case and assist Althingi’s prosecutor, cf. Art. 13. The president of the National Court notifies the accused of the commencement of the case and sends him a transcript of Althingi’s resolution, cf. Art. 14. He also appoints a defender for the accused, who is a Supreme Court attorney. In selecting the defender, the wishes of the accused are followed if there is no reason not to, cf. Art. 15. It is the duty of Althingi’s prosecutor to find all obtainable proof for the counts of the indictment, and he prepares the collection of documents and investigation of the case. The defender ought to present everything that could lead to the accused´s acquittal or be in his favour and guard his interests in every way, cf. Art. 16. The president of the Court issues a summons against the accused, which

Criminal Law and the Financial Crisis: The Proceedings Against. . .

361

Althingi’s prosecutor presents to him. Sessions of the National Court shall generally be held in open court, cf. Art. 12. In various ways, different rules apply to National Court cases than to regular criminal cases. Thus, the parties in the case or advocates see to the collection of documents, while the National Court does not investigate the case ex officio, and this resembles what applies in civil cases.8 Court proceedings commence with the filing of the case when Althingi’s prosecutor presents a summons, with other documents and evidence, and the names of the people he requests to testify before the National Court. The defender gets some time to present his record, documents and lists of names. The prosecution and defence then proceed before the National Court. Act no. 88/2008 on Criminal Procedure applies to witnesses and the duty to bear witness. After presentation of the case is finished, the case is submitted for judgement, cf. Art. 39(1) of Act no. 3/1963. A simple majority of justices determines the outcome in the National Court, whether conviction, determination of punishment or other points are involved, cf. Art. 39(2). The accused will only be convicted of the offences specified in Althingi’s resolution. On the other hand, the court is not bound by the prosecutor’s demands for punishment, cf. Art. 40.

3. Act No. 4/1963 on Ministerial Responsibility The Constitution states that laws shall determine ministerial responsibility, cf. Art. 14 of the Constitution, and this provision has been construed to mandate the passage of a special act on ministerial responsibility. That statute is Act no. 4/1963 on Ministerial Responsibility, and provisions thereof deal with punishable conduct. Even though other states’ constitutions have provisions on the responsibility of ministers, special acts on ministerial responsibility are rather rare.9 It seems that there has always been some criticism in Iceland on ministerial responsibility acts since the first one was passed in 1904. One can ask whether there is need for special acts on ministerial responsibility since there is representative government. The reason is that parliamentary responsibility should be a sufficient defence against ministers’ misuse of power, and provisions in the General Penal Code ought to suffice. The argument on the other side is that ministers’ positions are so special that they could become guilty of misdeeds in their work that would hardly be thinkable or even unthinkable for other governmental employees. Special acts on ministerial responsibility have therefore been deemed necessary where punishment is set out for the violations particularly feared of a minister but provisions of the General

8

Record of Althingi, 83rd Session of Althingi 1962, 3rd case, p. 19. Legislation on general criminal procedure has greatly changed in Iceland since the National Court Act was passed, and in accordance with Art. 52 of the current Act on Criminal Procedure no. 88/2008, investigation of criminal cases is the responsibility of the police. 9 Record of Althingi, 83rd Session of Althingi 1962, 4th case, p. 3.

362

R. Bragado´ttir

Penal Code on violations in governmental work do not cover it. There is a special need for such legislation in a country richly emphasising the fundamental rule that no one may be punished unless found guilty of conduct that a law has made punishable. A special act on ministerial responsibility is therefore normal to fill in gaps in the Penal Code on violations in governmental work.10 Article 2 of Act no. 4/1963 states that responsibility may be demanded of a minister for each and every job or neglected job that the act describes in greater detail and that he has become guilty of if the matter has unfolded in a manner showing that he intentionally or with gross negligence violated the Republic’s Constitution or other national laws or otherwise foreseeably jeopardised the State’s interests. The act then further defines these violations. Geir H. Haarde was accused of having violated two of these provisions. The first one is Art. 8(c), which says that a minister is held responsible under the act ‘if he implements, orders the implementation of or allows an implementation that in any way violates the Republic’s Constitution, or in any way fails to implement anything that is ordered there or causes its implementation to fail.’ The latter is Art. 10(b), which states that a minister is guilty under the act ‘if he executes anything or causes any execution that foreseeably jeopardises the State’s good functioning even though its execution is not specifically forbidden by law, as well as if he neglects the execution of anything that could avoid such danger, or causes such an execution to miscarry.’ This provision is somewhat judgemental, and the special nature of ministerial responsibility emerges there. It is Althingi that first assesses these points when it decides whether there is reason to commence an action. If an action is commenced, the National Court assesses whether a minister has violated the provisions.11 Under Art. 11 of Act no. 4/1963, violations of the act entail, depending on the facts of the case, loss of office, fines or imprisonment of up to 2 years. In determining punishment, Art. 70 of the General Penal Code ought to be taken into consideration. The article lists various points as aggravating or moderating circumstances when deciding punishment. Finally, Art. 1(2) of Act no. 4/1963 must be mentioned, which states that provisions of the General Penal Code on violations committed in governmental work shall also apply to ministers. This is the legal frame applying to the procedure and violations that former Prime Minister Geir H. Haarde was charged for. When the case against him was commenced, provisions of the Ministerial Responsibility Act and the National Court Act had never been tested, and it was deemed likely that it would never come to this since there is representative government in Iceland, and parliamentary responsibility was deemed to provide ministers with necessary constraint, and a minister that the majority of Althingi wants to get rid of has to step down. Upon re-examination of the act in 1963, the legislation was nevertheless deemed fundamental and normal, and awareness of such a court could provide ministers with general constraint.12 The National Court case caused a great stir in Iceland. A number of witnesses came

10

Record of Althingi, 83rd Session of Althingi 1962, 4th case, pp. 3-4. Record of Althingi, 83rd Session of Althingi 1962, 4th case, pp. 5-6. 12 Record of Althingi, 83rd Session of Althingi 1961, 3rd case, p. 10. 11

Criminal Law and the Financial Crisis: The Proceedings Against. . .

363

before the court, and the judgement is very detailed. Its length is 415 pages. The main points of the presentation of the case by the prosecutorial authority, the accused and the conclusion of the judgement are described below.

III. The Indictment Althingi elected the State Prosecutor as the prosecutor, and he issued an indictment on 10 May 2011. There, Althingi commenced an action against the accused, Geir H. Haarde, for ‘violations committed with intent or through gross negligence in the official acts as Prime Minister during the period from February 2008 through the start of October the same year’. The indictment is divided into two parts, and the first one is split into five sub-parts. They are as follows: 1.1 The accused has shown serious negligence in his duties as Prime Minister, in the face of major danger menacing Icelandic financial institutions and the State Treasury. He knew or should have known of this danger, and he could have responded by applying measures, e.g., legislation or governmental directives or governmental decisions to avoid foreseeable danger to the State’s good functioning. 1.2 The accused did not initiate that the administrative system performed a thorough and professional analysis of financial risks that the State faced because of the risk of financial shock. 1.3 The accused neglected to see to it that the efforts and emphases of the Government’s consultative group on financial stability and preparedness, established in 2006, were purposive and produced the intended results. 1.4 The accused failed to take initiative to see to the State taking active measures to reduce the size of the Icelandic banking system, e.g., by promoting banks’ reduction of their balance sheets or urging some of them to move their headquarters abroad. 1.5 The accused did not follow up on and ascertain that active measures were being taken to transfer the Icesave accounts of Landsbanki ´Islands hf. in Britain into a subsidiary and then seek ways to accomplish this with active involvement of the State.

The latter part of the indictment, 2, pertains to the accused’s failure to fulfil his duty under Art. 17 of the Constitution of the Republic, to hold meetings of ministers on important governmental matters, for the accused did not take the initiative in calling formal meetings of ministers regarding the situation, nor did he issue to the Government a special report on the banks’ problems or their conceivable effect on the Icelandic State. As stated above, Art. 10(b) of Act no. 4/1963 on Ministerial Responsibility says that a minister is guilty if he neglects executing anything that could avoid foreseeable risk to the State’s good functioning or causes such an execution to miscarry. Article 8(c) states that it concerns a minister’s responsibility if he fails to carry out something that the Republic’s Constitution prescribes. Violations of both provisions can involve fines or imprisonment for up to 2 years, cf. Art. 11 of Act no. 4/1963. Article 141 of the General Penal Code no. 19/1940, an alternative basis for indictment, states that a governmental employee, who is found guilty of gross or

364

R. Bragado´ttir

repeated negligence or carelessness in his work, shall be fined or imprisoned for up to 1 year. In the indictment, the conduct described in the above sub-parts 1.1–1.5, is deemed mainly to concern Art. 10(b), cf. Art. 11 of Act no. 4/1963 on Ministerial Responsibility. The conduct under part 2 is deemed mainly to violate Art. 8(c), cf. Art. 11 of the same act. As an alternative, the conduct is in all instances deemed to violate Art. 141 of the General Penal Code no. 19/1940. The indictment demands that the accused be punished and ordered to pay legal expenses. In its pleadings on the first part of the indictment, the prosecutorial authority referred to the fact that the accused saw or ought to have seen the threatening danger. The duty of action rested on him to avoid risks of damage that were foreseeable and visible in advance for a person in his position, with his education and professional experience, but he had not responded. The three commercial banks were allowed to grow outside Iceland without any restraints being placed on them. The banks got into difficulties in 2005–2006. This ought to have been a warning, and since autumn of 2007, the bank system’s situation became very serious, and there were clues of the State treasury’s problem. Foreign rating companies’ positions became more negative on the Icelandic banks’ and State treasury’s credit ratings. Around the end of 2007/beginning of 2008, it became clear to the governors of the Central Bank of Iceland that it could go badly for the three Icelandic commercial banks if their financing possibilities on foreign markets did not materialise. The Central Bank’s governors thought that a financial shock was no longer a remote possibility and informed the accused of this. The accused had a duty of initiative since economic affairs and the Central Bank were under him, but the work of the Government’s consultative group on financial stability and preparedness was not purposive or had not produced the intended results because it lacked the Government’s policy formulation (indictment sub-part 1.3). The basic tone of indictment sub-parts 1.4 and 1.5 is that the Government was not alert. Throughout most of 2007, its view was that Iceland ought to build up international financial operations, and this emerged in various speeches of the accused. However, it is clear that an emergency was brewing at Icelandic banks throughout 2008, and the accused appears to have given more consideration to the banks’ possible damage than the public’s damage. The accused ought to have called for a plan of the banks for selling assets and demanded that they move their headquarters abroad and follow up on this. Also, Landsbanki I´slands hf.’s accumulation of deposits in foreign branches created great risk of damage for the State treasury because of the amounts that could possibly fall to it due to the weakness of the Depositors’ and Investors’ Guarantee Fund. Regarding indictment part 2, the prosecutorial authority points out that the banking system’s affairs and the risk of financial shock are important governmental matters, and the accused saw or ought to have seen what was coming. Article 17 of the Constitution has to be construed according to its wording. The Government did not discuss these important governmental matters, and no report on the knowledge that the accused undeniably had was made to ministers. His violation under this part of the indictment is punishable without respect to risk characteristics or consequences.

Criminal Law and the Financial Crisis: The Proceedings Against. . .

365

IV. The Accused’s Defence The accused denied guilt on all counts and demanded that the case be dismissed from court. The National Court’s ruling on 3 October 2011 granted this motion regarding sub-parts 1.1 and 1.2 of the indictment since the indictment was not sufficiently clear, and the accused could not defend himself against such generally worded accusations. In other respects, the demand for dismissal was denied. The court therefore dealt substantively with the last four counts of the indictment (sub-parts 1.3–1.5 and part 2), and the accused demanded acquittal. The accused based his demand for acquittal, firstly, on the argument that the provisions that he was accused of violating failed to fulfil the requirements of clearness for punishment authorisations, cf. Art. 69(1) of the Constitution and the first sub-paragraph of Art. 7(1) of the European Convention on Human Rights. Regarding indictment sub-parts 1.3–1.5, the accused deemed that the provision of Art. 10(b) of Act no. 4/1963 entailed a guideline that put it into the court’s hands to assess whether a minister’s response to a foreseeable risk to the good functioning of the State was satisfactory, taking into account unwritten ethical criteria and deciding on that basis whether he had made himself liable for punishment. The accused said that the prosecutorial authority had not clarified what these criteria were. With this, he maintained, the court almost had carte blanche to assess whether the conduct, of which he was alleged guilty, would be deemed punishable. Regarding indictment part 2 on the violation of Art. 8(c) of Act no. 4/1963, cf. Art. 17 of the Constitution, the accused maintained that this provision of the Constitution did not fulfil the main rule of clarity of punishment authorisations. He said that the wording of the provision does not indicate when governmental matters will be deemed important, and it does not have subjective scales or criteria to refer to in that regard. The accused declared that the provision does not stipulate regarding a minister’s clear and demarcated duty of action but is rather a judgemental guideline. He added that the rule does not have an acknowledged or known gist and is therefore not a useable punishment authorisation. Finally, he said that Art. 8(c) of Act no. 4/1963, according to its substance, pertains solely to ministers’ serious constitutional violations and that discussions and protocols of government meetings cannot fall under this. Secondly, the accused deemed that the prosecutorial authority’s proof was deficient on important points. He said that numerous documents had been introduced that had not been submitted to him during the investigation phase of the case. The prosecutorial authority had built on documents that Althingi’s investigative commission collected, but the commission’s investigation had not been a criminal investigation and therefore did not focus on ministerial responsibility. Rather, it had involved the causes of the banks’ fall in general. The accused maintained that the investigative commission’s report stated that, in the winter of 2007–2008, the Government and banks probably had already missed opportunities to launch measures to reduce the size of the banking system. The accused was of the opinion that in deciding to commence an action, no consideration had been given to the fact that

366

R. Bragado´ttir

he had limited authorisations by law for direct measures of the kind on which the case was based and had not had premises on the basis of current law to act against the banks in 2008. In addition, he could only be liable for punishment regarding matters for which he was responsible. The accused maintained that the Central Bank of Iceland is independent even though it is within the minister’s purview and that he did not have authorisation to issue binding instructions to the bank on matters under its purview. He added that until autumn 2008, nothing had clearly indicated that the Icelandic banks’ problems were different in nature from that of financial institutions in many parts of the world or that it was otherwise such that the State would have to intervene in their operations. Furthermore, he said that the commercial banks’ affairs had been under the purview of another minister during the period that the indictment covered, that the law did not authorise the Government to intervene in the banks’ operations and, in addition, that such measures could have immediately triggered a collapse. Regarding part 2 of the indictment on violation of Art. 17 of the Constitution, the accused deemed that the indictment’s description of the deed was substantially deficient.

V. The National Court’s Conclusion, Handed Down on 23 April 2012 The National Court rejected the accused’s view that the provisions were not sufficiently clear authorisations of punishment. The judgement stated that there was a long judicial practice that courts construed the gist of concepts in the law, which consequently also pertained to the concepts tested here, e.g., the good functioning of the State, foreseeable danger and important governmental matters. Regarding indictment sub-parts 1.3–1.5 in general, the Court said that only serious reprimands on work can lead to a minister’s punishment. It does not suffice that his conduct is criticisable or reprehensible. The issue revolves around whether the accused’s lack of action was punishable. The Court put forth three conditions that had to be present for the lack of action he is indicted for in sub-parts 1.3–1.5 to be punishable. First of all, it should jeopardise the State’s good functioning. That condition was fulfilled because a major risk beset the Icelandic financial institutions and the State treasury. Second, the minister, despite a foreseeable danger, neglected to perform his duty of action and take measures. That condition was also fulfilled. There was a duty to act because the danger was foreseeable to the accused, but he remained idle. Third, the actions that he was obliged to take could have avoided such a danger or, at least, substantially reduced it. It was not considered proven that measures he could have taken initiative on could have avoided danger, and he was therefore found not guilty under sub-parts 1.3–1.5. Regarding the second part, the National Court said: under the Constitution, the Prime Minister has a duty to discuss important governmental matters at government meetings. The Government formulates the economic policy each time, and at this

Criminal Law and the Financial Crisis: The Proceedings Against. . .

367

time it supported the Icelandic banks’ expansion overseas. At the start of 2008, the accused received knowledge that danger beset the Icelandic banks that could threaten financial stability in the country. It then must have been clear to him that it was necessary to investigate whether the information was correct and check whether the Government’s policy ought to change. It is of no help for the accused to claim that officials and other governments and institutions ought to have taken initiative in this matter since the accused had obtained sufficient information to take action. It was therefore the accused’s duty to see to it that a decision would be made on whether to continue supporting the banks or call a halt. During the case, the minutes of 52 government meetings, held between 1 February and 6 October 2008, were submitted. The danger besetting the commercial banks and State treasury was not discussed at these government meetings until, at the 49th meeting, on 30 September, i.e., six days before the collapse. Even though it may be deemed that it was not clear to the accused before the start of October 2008 how great the danger besetting the Icelandic banking system and the good functioning of the state was, the information already available to him in February that year about the danger was nevertheless so serious that the accused had a duty to discuss it in the Government. Here was an unprecedented and gigantic problem, and because of how great the public interests at stake were, it involved without any doubt important governmental matters in the meaning of Art. 17 of the Constitution. In addition, the danger made re-evaluating the part of the Government’s economic policy regarding its position on the commercial banks inevitable, and that falls under the entire Government, not an individual minister. For these reasons, it was mandatory to discuss this at government meetings so that all ministers would get an opportunity to express themselves and work out a conclusion. The National Court deemed it proven that the great danger besetting the Icelandic banks, and thereby the good functioning of the State, was not discussed at the Government’s meetings during the period from February 2008 to the end of September that year. Neither was there discussion of various points that the consultative group on financial stability and preparedness dealt with, but there was every reason to address this in the Government. This was still more urgent because the accused did not disseminate important information he had on the banks’ affairs to the Minister of Commerce, under whom it belonged. Last but not least, it has been proven that two documents, which were sent to foreign governments and contained, on one hand, obligations and, on the other, a pledge in the Government’s name, were not discussed at its meetings. The accused and others testifying before the court emphasised that the situation on the financial markets was so sensitive that the slightest rumour that the Icelandic banks could get into solvency problems could have speeded up and even caused their fall. It was therefore urgent to discuss the matters in a tight group, where full confidentiality prevailed. Even though this attitude can be fully justified, it is of no use to the accused to plead that, for this reason, he was not able to discuss the matter at the Government’s meetings. The accused’s conduct of not following the directives of Art. 17 of the Constitution, to hold ministerial meetings on important governmental matters, not only

368

R. Bragado´ttir

resulted in the breaking of a rule of formality but also promoted the Government’s not having a political policy to address the great problem that must have been clear to the accused in February 2008. If such a policy had been set and followed up on in an organised manner by the Central Bank of Iceland and the Financial Supervisory Authority, it can be argued that it would have been possible to reduce the damage caused by the fall of the banks at the beginning of October 2008. The accused’s failure to address the matter at government meetings has to be considered gross negligence since it was clear to him, or at least ought to have been clear, that they were so important and, in addition, of such a nature that he had a duty to do so. The court’s conclusion is that because of the accused’s lack of action, he is convicted for violating Art. 8(c), cf. Art. 11, of Act no. 4/1963 on Ministerial Responsibility regarding the conduct of which he is accused in part 2 of the indictment. In determining punishment, consideration was given to the violation being committed with gross negligence. The judgement also states that even though with this the accused not only violated a rule of formality, it could not be ignored that it would not have come to a conviction in the case if the accused had only taken care to address this matter within the Government, as was his obligation under Art. 17 of the Constitution. Regarding sentencing, the Court says that the accused is acquitted of the most serious violations with which he was charged; he is 61 years old and has not previously been convicted of a crime. With respect to all this, he was not sentenced in the case, and all legal costs were paid by the State treasury. This was the conclusion of the majority of the National Court (nine justices). Six justices submitted a separate opinion. They agreed with the majority that they could not agree to the accused’s argument that the legal provisions he was deemed in the indictment to have violated are such unclear authorisations for punishment that they violate Art. 69(1) of the Constitution. They also concurred with the majority on acquittal on part 1 of the indictment, but they wanted to acquit the accused on part 2 of the indictment as well. The minority deemed, with reference to the origin and background of Art. 17 of the Constitution, that it could not be argued that each and every governmental matter that could be deemed important would be submitted to the Government. The minority added that the punishment provisions had to be construed narrowly and that the Prime Minister could not be held criminally liable on the basis of Act no. 4/1963 unless serious faults in his work were involved, but this was not the case here. Ragnheiður Bragado´ttir is a professor at the University of Iceland’s Faculty of Law.

Prosecutorial Discretion in the Netherlands: An Advantage for Politicians? Willem Geelhoed

I. Introduction Some jurisdictions allow the political sphere to influence the criminal justice system. In these jurisdictions, there is probably a need to shield that criminal justice system from political influence in cases where politicians are the suspect of criminal offences. Such is even more the case where it concerns public office offences since in these cases politicians might desire to aim criminal law means at their political opponents or perhaps to scapegoat a fellow politician. A reason why politicians are allowed to influence the functioning of a criminal justice system in the first place could lie in the fact that the criminal law authorities enjoy considerable discretion in their decision-making. This is most clearly visible in the prosecution service. Checks and balances around its functioning not only prevent potential mishaps; they also serve as tools connecting the criminal justice system to society: if there is a desire for societal acceptance of the decisions made by prosecutors, there must also be means to steer prosecutorial decision-making. And the wider the scope of discretion that is attributed to prosecution services, the more important it is that checks and balances in the criminal justice system safeguard the proper decision-making in individual cases, as well as prioritisation and policy setting in general. How does it work in such a system where the political sphere and the criminal justice system are closely connected, in case a politician is suspected of having committed a public office offence? If there is a wide scope of discretion, based on the expediency principle, prosecutorial decision-making might very likely be forced to attach more weight to political preferences than to the need to secure public integrity by diligently prosecuting public office offences. The Netherlands is

W. Geelhoed (*) University of Groningen, Groningen, The Netherlands e-mail: [email protected] © Springer International Publishing AG 2017 F. Zimmermann (ed.), Criminal Liability of Political Decision-Makers, DOI 10.1007/978-3-319-52051-3_23

369

370

W. Geelhoed

a prime example of a jurisdiction in which the prosecution service enjoys considerable discretion and where the Minister of Security and Justice is able to instruct the Public Prosecution Service in all its functions. There are special rules in place in order to prevent political motivations from influencing the decision to prosecute public office offences committed by national-level politicians. However, these special procedural rules are hardly ever used. In the 1900s, there have been a few cases of politicians being prosecuted.1 Only recently, a first modern case of a public office offence by a national-level politician has been investigated by Parliament.2 The fact that it took so long for a first recent case to happen could perhaps be explained by the fact that criminal liability is overshadowed by the system of political accountability.3 As long as the political sphere is perceived to be adequate for correcting misbehaviour by politicians, special criminal procedures are only of academic interest. Perhaps that will not remain the case for long.

II. Prosecutorial Decision-Making: Expediency and Legality A classic distinction can be made between criminal law systems that accept the legality principle and systems that accept the expediency principle. The legality principle requires every provable case to be brought to trial, whereas the expediency principle enables the prosecutor to assess the ‘general interest’ when deciding about prosecution. This distinction is however rather crude, and at best it can be seen as a simplification since both principles nowhere apply unqualified.4 Alternatively, a distinction can be made between three groups of jurisdictions, albeit these groups are not very uniform. The Scandinavian countries also do not show much uniformity in this regard and therefore are left out in the groups below. The first group consists of common law systems, which are not based on codifications. Because it makes little sense to proclaim a categorical duty to prosecute all offences if substantive criminal law cannot be seen as a complete and well-ordered system, prosecutorial discretion is the only option.5 It provides for

1 M. Verhulst/G. Boogaard, Het hondje van minister Pels Rijcken – Over verwijzingen naar eerdere vervolgingen van politieke ambtsdragers, Nederlands Juristenblad 2016 (no. 74). 2 Commissie van onderzoek, Verslag, 2016 (Tweede Kamer, Den Haag), to be found at https:// www.tweedekamer.nl/kamerleden/commissies/cvo (accessed 14 July 2016). 3 J.L. de Wijkerslooth/J. Simonis, De vervolgbaarheid van ministers en staatssecretarissen, Nederlands Juristenblad 2004, pp. 672-678; E. Sikkema, Hoge bomen vangen (nog) geen wind. Strafrechtelijke verantwoordelijkheid van ministers, vervolgbaarheid van publiekrechtelijke rechtspersonen en de positie van de minister van Justitie, in: Keulen/Knigge/Wolswijk (eds.), Pet af, 2007 (Wolf Legal Publishers, Nijmegen), pp. 411-439, at 416. 4 See for instance J. Fionda, Public Prosecutors and Discretion. A Comparative Study, 1995 (Clarendon, Oxford). 5 See on the approach to expediency in England and Wales for instance A. Sanders, Prosecutions in England and Wales, in: Tak (ed.), Tasks and Powers of the Prosecution Services in the EU Member States, 2004 (Wolf Legal Publishers, Nijmegen), pp. 97-127.

Prosecutorial Discretion in the Netherlands: An Advantage for Politicians?

371

the necessary flexibility in the subsumption from a concrete case to the potentially available offences. Of course, offences in many common law systems are increasingly included in statute law, which gives these systems much more consistency and coherence. The need for unbound discretion diminishes accordingly. The second group is formed by jurisdictions from the French legal family (France, Belgium, Luxembourg, the Netherlands). These countries accept the expediency principle. In the case of France, a legality principle was the logical corollary of introducing a codified criminal law system after the revolution.6 It soon became clear that the legality principle was untenable when strictly applied: societal realities required legal flexibility. France therefore accepted the expediency principle,7 and it spread to the other countries in the French sphere of influence. However, there is not much uniformity: the jurisdictions differ in the scope of discretion they offer to their public prosecution service, which also happens to be a French invention. The third group is formed by Germany, Poland, Italy and Spain. Germany took over the French legality principle when it introduced its 1877 Code of Criminal Procedure. The reason for that was not so much the well-structured French Criminal Code but a preference that prosecutors be independent. The need to shield prosecutorial decision-making from political interference not only required that prosecutors would be unable to take instructions from a Minister of Justice. It also required them to be bound to the offences of the Criminal Code because otherwise they would be in need of any guidance in their decision-making.8 The strict starting point has been qualified to a large extent in more recent years. However, there is less need for special rules to exclude political involvement in the prosecution service in these countries. For the other groups, things are different.

III. Checks and Balances in the Dutch Prosecution System When accepting the expediency principle, checks and balances are needed, certainly when prosecutors enjoy a considerable scope of prosecutorial discretion such as is the case in the Netherlands.9 That is, of course, because discretion can be used in arbitrary ways and arbitrariness is generally not seen as favourable. Therefore,

6

See for instance Art. 4 of the Code des de´lits et des peines, adopted on 3 Brumaire of the 4th year (25 October 1795). 7 In the Code d’instruction criminelle, entering into force on 16 November 1808, the legality principle is no longer included. 8 P.J.P. Tak, Het vervolgingsbeleid in de Duitse Bondsrepubliek. Een onderzoek naar de uitzonderingen op het legaliteitsbeginsel (par. 153-154d StPO Strafprozessordnung), 1973 (W.E.J. Tjeenk Willink, Zwolle), pp. 1-22. 9 W. Geelhoed, Het opportuniteitsbeginsel en het recht van de Europese Unie. Een onderzoek naar de betekenis van strafvorderlijke beleidsvrijheid in de gee¨uropeaniseerde rechtsorde, 2013 (Kluwer, Deventer).

372

W. Geelhoed

there is a need to keep prosecutors within some limits, whereby methods are used that lie outside of substantive criminal law, contrary to the solution of the legality principle that binds prosecutors to the Criminal Code. These methods of restricting discretion include the organisation within the Dutch Public Prosecution Service, which is strictly hierarchical.10 Internal control can take the form of instructions in specific cases but is also clearly visible in the large body of guidelines that the central College of Procurators-General has issued. There are also forms of control exercised by actors outside of the Public Prosecution Service. In the Netherlands, a two-sided system of these external checks and balances developed. There are possibilities for judicial review of prosecutorial decisions, and there is political steering of the prosecution system.11 Judicial remedies include the possibility of a judicial order to start prosecutions, issued by the Court of Appeal on request of the victim or a directly interested party.12 This order can be made when the prosecution service decided not to instigate criminal proceedings in a certain case or when the prosecution service restricted the scope of the proceedings to a lesser offence than would have been possible.13 Furthermore, in cases where the prosecution was actually brought before a judge, that trial judge can declare the prosecution inadmissible in cases where the prosecution service acted contrary to general principles of law. These general principles are the equality principle, the principle of legitimate expectations, the prohibition of misuse of powers and the prohibition of arbitrariness.14 Regarding political steering, the Minister of Security and Justice is politically responsible for the Prosecution Service. This is connected to the conviction that law enforcement should be responsive to society and to societal needs.15 Furthermore, political accountability plays a large role in societal steering. There is very little judicial involvement in shaping society and repairing its defects, which is, for instance, visible in the lack of a constitutional court. Therefore, if the Public Prosecution Service might be malfunctioning, it is perceived as a natural and appropriate reaction to hold the Minister of Security and Justice to account for that. The ultimate consequence is that the minister has to step down from office if Parliament loses the confidence in his oversight of the prosecution service. This possibility, based on a constitutional convention,16 is not merely academic: Parliament regularly uses this power over the Government, albeit only seldom in conflicts over the Public Prosecutions Service’s functioning. This possibility is of course a

10

Art. 130(4) and 136(3) Judicial Organisation Act. G.J.M. Corstens, Waarborgen rondom het vervolgingsbeleid, 1974 (Vermande, IJmuiden). 12 Art. 12i Code of Criminal Procedure (further: CCP). 13 Supreme Court of the Netherlands, no. 103681, 25 June 1996, (Nederlandse Jurisprudentie 1996, no. 714). 14 Y. Buruma, Rechterlijke controle op de vervolgingsbeslissing, Strafblad 2015 (no. 45). 15 P.P.T. Bovend’Eert, Ministerie¨le verantwoordelijkheid, 2002 (Ars Aequi, Nijmegen). 16 P. van Velzen, De ongekende ministerie¨le verantwoordelijkheid, theorie en praktijk 1813-1840, 2005 (Wolf Legal Publishers, Nijmegen) traces its origins back to the early 19th century. 11

Prosecutorial Discretion in the Netherlands: An Advantage for Politicians?

373

clear sign of the importance of political accountability as the prime mechanism of controlling state power by the Parliament.17 The logical way of reasoning is therefore that if the minister is responsible, he also should have control over the prosecution service.18 He is therefore empowered to give instructions to the prosecution service.19 These instructions can regard both general issues of crime control and priority setting, as well as specific cases in which the prosecution has to make decisions. Both types of instructions can be positive and negative, i.e. instructions to act or to refrain from acting. The law also provides for safeguards in order to ensure that the minister’s use of his instructive powers is transparent. This is especially true for instructions in specific cases because of their potentially disruptive nature in the lives of citizens. Specific decisions may involve an order to start prosecutions or to refrain from prosecuting. In these specific cases, an exchange of views between the Minister of Security and Justice and the Public Prosecution Service is obligatory.20 Moreover, an instruction to start prosecutions must be added to the case file. It will then be clear for the trial judge that the minister specifically ordered the prosecution to be started.21 It will also become publicly known that such was the case since the instruction will probably be discussed during the trial hearing. But in case an instruction involves an order to refrain from prosecuting, there will be no trial. The way in which transparency is secured in these cases is to make it obligatory for the minister to inform Parliament about his instruction. In that case, the Public Prosecution Service may submit its views on the matter to the Parliament as well.22 Parliament may discuss the instruction in Parliament and even, in extreme cases of disagreement, carry a vote of no-confidence upon which the minister has to step down from office. Though this system seems to offer much transparency, there are few cases, if any, in which an official injunction has been issued.23 Perhaps that is due to the fact that some influence over the Prosecution Service can also be exerted by the Minister of

17

R.K. Visser, In dienst van het algemeen belang. Ministerie¨le verantwoordelijkheid en parlementair vertrouwen, 2008 (Boom, Amsterdam). 18 See the report of the Scheltema Commission, Steekhoudend ministerschap; betekenis en toepassing van de ministerie¨le verantwoordelijkheid, 1993 (Sdu, ’s-Gravenhage). Criticism on this element of the report: S.E. Zijlstra/K. Wilkeshuis, Verantwoordelijkheid en publieke taak, in: Broeksteeg/Van den Berg/Verhey (eds.), Ministerie¨le verantwoordelijkheid opnieuw gewogen, 2006 (Kluwer, Alphen aan den Rijn), pp. 9-18. 19 Art. 127 Judicial Organisation Act. 20 Art. 128(1)-(4) Judicial Organisation Act. 21 Art. 128(5) Judicial Organisation Act. 22 Art. 128(6) Judicial Organisation Act. 23 See for a historical perspective M.E. Verburg, De minister de baas. Minister van Justitie en Openbaar Ministerie. Grepen uit de historie van de aanwijzingsbevoegdheid, 2004 (Sdu, Den Haag).

374

W. Geelhoed

Security and Justice in his regular meetings with the College of ProcuratorsGeneral. Such subtle influencing might make it superfluous to use formal instructions.24 The system of positive and negative instructions can of course be used as a political tool and be aimed at political opponents. It can also be aimed at fellow government members, for instance when they belong to a different political party in the ruling coalition. Because the use of these instruction powers could be very damaging in a political sense, there are special procedures in place that must be followed in cases of public office offences. These procedures exclude the Minister of Security and Justice’s instruction powers over the prosecution service, but they also possess other elements diverging from regular criminal proceedings. Since these procedures only apply to public office offences, it is important to first look at how these are defined. For other offences, regular criminal procedures remain in place, including the instruction powers of the Minister of Security and Justice. The protective character of the special procedural rules is therefore limited.

IV. Criminal Liability of Politicians In general, the offences for which politicians can be held criminally liable can be distinguished into three categories. Firstly, there is the category of statements that could lead—in normal circumstances—to criminal liability for defamation. Politicians are immune for prosecutions relating to these statements only when these are made in parliamentary activities.25 Secondly, there is a set of public office offences for which special procedures apply, if it concerns a member of the national Government or a member of Parliament. Thirdly, all other offences are dealt with by normal courts in standard criminal procedures. For instance, the prosecution of Geert Wilders for defamation takes place in a normal court because the statements for which he is prosecuted were not made in Parliament and defamation is not a public office offence.26 This category is therefore quite wide, and many offences will be handled in regular proceedings. The second category of public office offences consists of offences that are committed in violation of a public duty and offences that were committed using powers, opportunities or means that were bestowed upon the perpetrator because of a public office. This is not a strictly delineated set of offences. Some offences of the 24

P.J.P. Tak, The Dutch Prosecution Service, in: Tak (ed.), Tasks and Powers of the Prosecution Services in the EU Member States, 2004 (Wolf Legal Publishers, Nijmegen), pp. 355-383, at 374-375. 25 Art. 71 Basic Law. 26 On the difficulties in this type of cases, see Y. Buruma, ‘Als Wilders Berlusconi was. . . Een essay over de strafvorderlijke legaliteits- en opportuniteitsbeginselen‘ in: Buruma/Fleuren/Van Kempen/Kusters/Mertens (eds.), Op het rechte pad, 2008 (Wolf Legal Publishers, Nijmegen), pp. 135-147.

Prosecutorial Discretion in the Netherlands: An Advantage for Politicians?

375

Criminal Code are labelled ‘public office offences’ and are therefore explicitly included.27 This includes public corruption, coercion by abuse of office and acting contrary to any laws or regulation, an offence only applicable to cabinet members. For all other offences deemed to be public office offences for the reason that they were committed with powers of public office, the penalty level is increased by a third.28 Committing of the offence in public office is in these cases seen as an aggravating factor. For the offences explicitly labelled ‘public office offence’, this aggravating circumstance is already incorporated in the penalty maximum. Special procedures for national-level politicians suspected of public office offences could be used therefore for both the offences explicitly labelled ‘public office offence’, as for all other offences as long as they were committed using powers, opportunities or means that were bestowed upon the perpetrator because of a public office.

V. Special Procedures for Prosecuting Politicians The special procedures for prosecuting politicians only apply to national-level politicians; there are no special procedures for politicians from lower levels of government. The reason for that is that the Minister of Justice, who is by definition a national-level politician, is the only politician who can wield influence over prosecutions. While political objectives could potentially lead the Minister of Security and Justice to aim that power at anyone, be it a regular citizen or a politician at any level, only national-level politicians are deemed to be in such danger to become victims of his power that they should be shielded against this by special procedures. Furthermore, light-hearted prosecutions by regular procedures should be prevented, and it should also be impossible for the Minister of Security and Justice to obstruct a prosecution of a fellow politician.29 The group of politicians for which this procedure applies therefore comprises members of Parliament and cabinet members (ministers and state secretaries). There are several distinctly special elements in this procedure. The first element in which the procedure is special is the way in which the decision to prosecute is made. This decision is not made by the Public Prosecution Service, for reasons already discussed. Instead, both the Parliament and the Government have the power to indict a national-level politician, and this power is not limited to a decision to prosecute a member of the ‘other side’. That is to say, both the Government and the Parliament may decide to prosecute a government member or an MP.30 The decision to prosecute must be made by Royal Decree (when done by the

27

Arts. 355-380 CC are crimes explicitly labelled as such. Art. 44 CC. 29 Sikkema (note 3), pp. 417-418. 30 Art. 119 Basic Law. 28

376

W. Geelhoed

Government) or by a special parliamentary procedure (when done by the Second Chamber of the Parliament). There are no special provisions on how the Government should issue a Royal Decree in this context, apart from the obligation that the facts of the case must be specifically circumscribed in the indictment, that both Chambers of Parliament are informed and that the Procurator-General will be tasked with executing the Decree.31 By contrast, the parliamentary procedure to decide on prosecution is a very special one. It is mainly designed to prosecute members of Government, but it should probably also be applicable to MPs. This is due to the fact that the procedure is laid down in the Ministerial Accountability Act, which is not directly applicable to accountability of MPs. The procedure requires that a suspicion that a member of Government has committed a public office offence must be submitted in writing to the presidency of the Second Chamber by at least five MPs, containing a statement of facts.32 The Presidency then presents this suspicion to the Chamber for acceptance and informs the cabinet member concerned.33 If the Chamber accepts this, the Parliament appoints a special investigative committee in order to investigate the case. This committee should perform criminal investigations while not using regular criminal investigative measures but the measures included in the Parliamentary Inquiry Act. When the committee concludes its investigation, it presents the findings to the Chamber, which decides on the findings and on the question whether to start a prosecution or not.34 This decision should be made within 3 months after the suspicion has been reported.35 The Chamber should decide on the basis of law, fairness, morality and the national interest.36 If it finds that a prosecution should follow, it defines the facts of the case and sends the decision to the Procurator-General at the Supreme Court for executing its decision and carrying out the prosecution. The second element in which the procedure is special is the way in which the prosecution is conducted. This is not done by the Public Prosecution Service, since its actions in the phase after a decision to prosecute is made can also be influenced by the Minister of Justice. Instead, the Procurator-General at the Supreme Court is competent to prosecute since he is not a member of the Public Prosecution Service and is, unlike regular prosecutors, fully independent of the Government. He is also obliged to execute the decision to prosecute that was made by either the Government or the Parliament and cannot dismiss the case.37 There are a few special provisions for a pre-trial investigation, such as the possibility for the Supreme Court to appoint an investigating justice if needed. For the rest, normal procedural rules

31

Art. 5 Ministerial Accountability Act. Art. 7 Ministerial Accountability Act. 33 Art. 8 Ministerial Accountability Act. 34 Art. 13 Ministerial Accountability Act. 35 Art. 16(1) Ministerial Accountability Act. 36 Art. 18(1) Ministerial Accountability Act. 37 Art. 483(3) CCP. 32

Prosecutorial Discretion in the Netherlands: An Advantage for Politicians?

377

for prosecutions at first instance courts apply.38 One other exception is the express exclusion of the rule that prosecutors are subject to oversight by the ProcuratorGeneral at the Court of Appeal.39 This ensures the Procurator-General’s independence from the Public Prosecution Service and, thereby, from the Minster of Security and Justice. The third element in which the procedure is special is the competent trial court. This is the Supreme Court, sitting in full court of 10 justices.40 Also for the trial, the regular rules of criminal procedure apply, albeit with some adaptations. There is no appeal possible on grounds of fact or of law. This is legally possible since the Netherlands did not ratify the seventh protocol to the ECHR and is therefore not obliged to offer the possibility to an appeal. The fact that politicians are tried in single instance by the highest court is, instead, seen as a privilege: the Supreme Court is deemed to be a forum privilegiatum consisting of the most senior judges of the country.41 The special procedure is designed to balance two distinct interests. On the one hand, it should make it a real possibility to prosecute national-level politicians instead of offering them full immunity. On the other hand, the procedure should raise barriers against light-hearted and ill-motivated prosecutions by taking the decision-making power out of the hands of regular prosecutors and excluding political interference by the Minister of Security and Justice.42 Nevertheless, the procedure can hardly form an impediment against politically motivated prosecution since the Parliament and the Government are able to decide on prosecutions. They can either shield each other against the criminal justice system or attack each other with criminal law measures. That could be its only advantage: placing the decision to prosecute public office offences, committed at the highest political level, in the hands of two counterbalancing powers.43 How does that work in practice?

38

Art. 484(1) CCP. This is not to be confused with the Procurator-General at the Supreme Court. As in all legal systems in the French tradition, the Supreme Court is assisted by a Procurator-General and his deputies, the Advocates-General. The Procurators-General at the five Courts of Appeal were the heads of the Public Prosecution Service, before the reform of the judicial organisation in 1999. At that time they were replaced by a College of Procurators-General that is now leading the Public Prosecution Service. 40 In case no majority can be reached, the suspect is acquitted (Art. 76(4) Judicial Organisation Act). 41 See D.J. Elzinga, De strafrechtelijke ministerie¨le verantwoordelijkheid, in: Elzinga (ed.), Ministerie¨le verantwoordelijkheid in Nederland, 1994 (W.E.J. Tjeenk Willink, Zwolle), pp. 65-78, at 70-74. 42 Sikkema (note 3), pp. 416-417. 43 Sikkema (note 3), pp. 421-422. 39

378

W. Geelhoed

VI. A Recent Investigation into Public Office Offences Recently, there has been a case in which a suspicion of violating secrets was investigated by the Second Chamber.44 The suspect of this offence was an unknown MP, but it must have been the head of one of the political parties in the Chamber. At least, such is probably the case since the secrets involved were discussed in the Second Chamber committee on security and intelligence. This committee is responsible for parliamentary oversight over the intelligence services and forms the only means of democratic control over them. Since all matters that are discussed in the committee relate to state security, there are strict rules on confidentiality. Only the heads of the Second Chamber’s political parties are members of the committee. Therefore, the committee has a considerable weight, consisting of the key players in Dutch politics. In October 2013, home affairs minister Plasterk publicly stated that the American NSA apparently collected Dutch telephone data of 1.8 million calls. These data only contained technical information on the telephone calls, not the content of the calls. Following that statement, on 12 December 2013, there was a meeting of the secret committee. During that meeting, minister Plasterk and defence minister Hennis stated that the NSA did not collect the data but that the data had been handed over to them by the Dutch authorities. In its edition of 18 February 2014, national newspaper NRC writes that fact down: the telephone data were given to the NSA by Dutch authorities. Then the question arose from whom the NRC received that information. A month later, on 13 March 2014, the chairman of the secret committee, Halbe Zijlstra (who is the head of the liberals, the largest party in the Second Chamber), reports the case to the police as a breach of official secrecy. As a suspect, an unknown member of the secret committee was recorded, that is to say one of the heads of the Chamber fractions. Possibly, the perpetrator could also have been an assistant to one of the committee members or someone else who happened to have received that information. However, since the confidentiality surrounding the committee meetings is extremely strict, this was deemed to be only a slight possibility. Since the law requires that a complaint of a public office offence by a government member should be made by five MPs to the Chamber presidency, and this probably also applies to MPs as suspects, this element of procedure clearly was not followed here. However, upon receiving the report by Mr. Zijlstra, the police started an investigation. This was led by the Internal Affairs section of the national police and led by the regular prosecutor. The Public Prosecution Service reported in November 2015 that the investigation did not lead to the naming of a particular suspect but that the suspect probably was a member of the secret committee. Moreover, the case could be classified as a breach of secrecy while using official 44

See for a description of the events leading up to the investigation the report of the Commissie van onderzoek (note 2), pp. 23-30.

Prosecutorial Discretion in the Netherlands: An Advantage for Politicians?

379

powers or opportunities.45 Because of these reasons, the Public Prosecution Service regarded itself as no longer competent to investigate any further and handed the investigation over to the presidency of the Second Chamber.46 Upon receiving the report, the presidency designated an investigative committee of MPs, which was accepted by a majority of the Chamber. The investigative committee started an investigation using its powers under the Parliamentary Inquiry Act. Some of the MPs in the investigative committee were former prosecutors and judges, so the committee members could use their own experience in criminal investigations. It sought additional advice from academics and specialists in criminal law and constitutional law. The investigative committee interviewed all the members of the secret committee, who all declared not to have given the relevant information to the press. In the end, this led the investigative committee to conclude in its report that there was not enough evidence to continue the investigation with further interviews.47 It reported that it could not identify a suspect who could be prosecuted. It also reported a problem with the legislation in place to carry out its investigations on the basis of the Parliamentary Inquiry Act: this act contains a provision that statements made in parliamentary enquiries may not be used in evidence in a criminal procedure.48 The reason for this is that the objective of a parliamentary enquiry is to discuss public wrongs in the open, which sometimes has negative consequences for witnesses appearing in these enquiries. Once they have come clean before a parliamentary enquiry committee, they should not also be prosecuted. However, according to the investigative committee, this provision is not written for the criminal investigations that are to take place on the basis of the act, and it severely hampers them. The idea behind the exclusionary rule might be appropriate for actual parliamentary enquiries. But when a parliamentary investigative committee, using its investigative measures in a criminal investigation, cannot use the results of these interviews in evidence in the ensuing trial, it does not make much sense to hold them at all.49 Other investigative measures, including coercive ones, are not at the disposal of parliamentary investigative committees. Therefore, the special procedure is unnecessarily protective and should be reformed, according to the committee.50 It refers to the report of the earlier Commissie Prinsjesdagstukken, which also advised to reform the system.51 That committee already signalled that the Parliamentary Inquiry Act offered insufficient investigative measures to parliamentary investigative committees.52

45

Art. 44 in combination with Art. 272 CC. Commissie van onderzoek (note 2), pp. 23-30. 47 Commissie van onderzoek (note 2), pp. 31-43. 48 Art. 30 Parliamentary Inquiry Act. 49 Commissie van onderzoek (note 2), p. 34. 50 Commissie van onderzoek (note 2), p. 45. 51 Commissie Prinsjesdagstukken, Publiek geheim, 2010 (Tweede Kamer, Den Haag). 52 Commissie Prinsjesdagstukken (note 51), p. 79. 46

380

W. Geelhoed

On the basis of the findings of the investigative committee, the special procedure seems indeed to be unable to function as it should; at least, such is the case when the Parliament is willing to prosecute an MP or a cabinet member. Prosecutorial decision-making by the Government is probably much easier because it is less subjected to procedural difficulties. But as far as the Parliament is concerned, the system does not succeed in reaching its two objectives of making the prosecution of politicians a real possibility and at the same time preventing a light-hearted prosecution. The protective nature of the special procedure can therefore be seen as an advantage for politicians since it is the only possibility to prosecute nationallevel politicians for public office offences. Another drawback of special procedures of this kind is that they are rarely used. Therefore, little practice exists, and legal or practical obstacles remain undiscovered and therefore unsolved. That leads to the situation that there is no reliable procedure in place to handle a serious case of a public office offence when it arises, and the special procedure must be followed.53 There are some proposals for change, such as the proposal from the investigative committee and the earlier report of the Commissie Prinsjesdagstukken. According to the latter, the special procedure should be amended at least on the matter of the insufficient investigative measures of parliamentary investigative committees. Others have advised that, instead of the special procedure, the regular Public Prosecution Service should be charged with the investigation that is carried out by the Internal Affairs division of the police. This would completely abolish the need for a parliamentary investigative committee. In that scenario, it is important to exclude the Minister of Security and Justice’s powers to exert his influence over the Public Prosecution Service. This could be done in a special provision in the Judicial Organisation Act excluding his specific injunction rights when it concerns a case of a prosecution of a national-level politician.54 Proposals to limit the Minister of Security and Justice’s injunction rights had already met with criticism from the Government before the recent case of violating secrets arose. The Government deplores that, in this scenario, the connection between the minister’s competence and his accountability is lost: he can no longer instruct the Public Prosecution Service, but he will nevertheless be accountable to Parliament.55 Possibly, the recent case could have some effect and lead the Government to reconsider its position. In the meantime, the Dutch criminal law system is ill-prepared for tackling public office offences by national-level politicians, certainly when it is up to the Parliament to make the decision to prosecute.

53

In 1994, Elzinga still concluded differently: D.J. Elzinga (note 41), pp. 65-78. Sikkema (note 3), pp. 424-426. 55 Kamerstukken II, 2001/02, 25294, no. 15. 54

Prosecutorial Discretion in the Netherlands: An Advantage for Politicians?

381

VII. Conclusion Whereas an elaborate system of criminal liability, coupled with special procedures, was developed in the first half of the 1900s, soon after that society relied on political accountability as the primary means to deal with misbehaving politicians.56 The system for criminal accountability, which was in operation in the first half of the nineteenth century and largely revised in 1855, therefore never played an important role. However, the importance of criminal liability might relive in the future. One of the consequences of the ‘populist turn’ in politics might be that the political sphere is no longer the preferred place for definitively dealing with serious misbehaviour by politicians. There are signs already that populist parties are interested in using criminal law methods to attack political opponents, including the special procedures available to prosecute cabinet members or members of Parliament. Five MPs of the Freedom Party reported to the Second Chamber presidency a suspicion that the prime minister committed the offence of acting contrary to laws or regulations,57 in his decision to not immediately put the result of a referendum into action.58 In this changed political landscape, special procedures for prosecuting politicians will possibly gain interest. They are an example of how a system in which the prosecution enjoys considerable discretion, attempts to check that discretion by ministerial injunction rights, and in turn excludes these injunction rights in order to prevent undue influence by politicians in the criminal justice system. Dr. Willem (Pim) Geelhoed is Assistant Professor in Criminal Law and Criminal Procedure at the University of Groningen.

56

De Wijkerslooth/Simonis (note 3), pp. 672-678; Sikkema (note 3), p. 416. Art. 355 CC. 58 http://nos.nl/artikel/2099339-pvv-rutte-pleegt-ambtsmisdrijf-rond-referendum.html 14 July 2016). 57

(accessed

The Politics of Political Hate Speech in Belgium Wendy De Bondt

The Belgian regulation of the criminal responsibility of political decision-makers for hate speech gives rise to three interesting discussions. Firstly, the general rule that political decision-makers are inviolable for the opinions they express is not as general as one might expect. The inviolability of political decision-makers only extends to opinions expressed and votes cast ‘in the exercise of their duties’. The exact interpretation of that limitation ratione materiae is not clear (infra I.1.). More fundamentally, the majority of our political decisionmakers cannot benefit from the protection of that rule due to the ratione personae limits to it (infra I.2.). Secondly, in case political decision-makers can be held criminally liable, a complex set of rules determines the competent court. Different courts are competent to deal with the cases, depending on the modus operandi (oral or written hate speech) (infra II.1.) and the content of the hate speech (racist/xenophobe or a different content) (infra II.2.). This diversity gives way for discussions on the acceptability of the de facto different treatment of seemingly comparably harmful views (infra II.3.). Thirdly, regardless of the extent to which the hate speech can give way to criminal prosecution of the individual political decision-makers involved, and notwithstanding the absence of criminal liability for political parties, the hate speech of (members of) a political party can give rise to individual criminal responsibility of its members.

W. De Bondt (*) Ghent University, Ghent, Belgium e-mail: [email protected] © Springer International Publishing AG 2017 F. Zimmermann (ed.), Criminal Liability of Political Decision-Makers, DOI 10.1007/978-3-319-52051-3_24

383

384

W. De Bondt

I. Individual Criminal Responsibility for Belgian Political Decision-Makers The individual criminal responsibility of Belgian political decision-makers is governed by the rules on immunity and inviolability. Firstly, for the duration of their mandate, political decision-makers are immune from the prosecution of offences they have committed. Their criminal responsibility remains, but the possibility to prosecute is paused to ensure the proper functioning of the democratic institutions. Prosecution is only possible as from the end of their mandate or as from the moment their immunity is lifted in line with the procedural requirements thereto. Secondly, for acts committed in the execution of their duties, some political decision-makers can benefit from the inviolability clauses in our Constitution. In those cases, prosecution is not possible because political decision-makers are not criminally responsible for their acts. No member of either House (be it federal1 or regional2) or minister (be it federal3 or regional4) or secretaries of State5 (be it federal6 or regional7) can be prosecuted or be the subject of any investigation with regard to opinions expressed and votes cast by him in the exercise of his duties.8 This inviolability is indefinite—meaning that even after the end of their term, prosecution for these opinions and votes stays impossible9—and absolute—meaning that inviolability cannot be waved or lifted. The rationale behind this exception to the limitations on the freedom of speech is as simple as ensuring that a politician can speak his mind, in the exercise of his duties without having to worry about the possibility of being prosecuted. This rationale was excepted by our national Court

1 Art. 58 Const.: No member of either House can be prosecuted or be the subject of any investigation with regard to opinions expressed and votes cast by him in the exercise of his duties. 2 Art. 120 Const.: All members of Community and Regional Parliaments benefit from the immunities described in Art. 58 and 59. 3 Art. 101 Const.: No minister can be prosecuted or be the subject of any investigation with regard to opinions expressed by him in the exercise of his duties. 4 Art. 128 Const.: No member of a Community or Regional Government can be prosecuted or be the subject of any investigation with regard to opinions expressed and votes cast by him in the exercise of his duties. 5 The protection only applies to ministers and secretaries of State (staatssecretaris). This means governmental commissioners (regeringscommissaris) and royal commissioners (koninklijke commissarissen) cannot benefit from these constitutional provisions. 6 Art. 104 Const: Constitutional provisions that apply to ministers apply equally to federal secretaries of State. 7 Art. 126 Const.: Constitutional provisions that apply to members of the Regional and Community Governments, as well as the implementing laws referred to in Art. 125, last paragraph apply equally to Regional secretaries of State. 8 Legal Service of the Federal Parliament, The Parliamentary Inviolability, May 2015. 9 R. Hayoit de Termicourt, ‘L’immunite´ parlementaire’, J.T. 1965, 613.

The Politics of Political Hate Speech in Belgium

385

de Cassation,10 as well as by European Court of Human Rights.11 In doing so, the full independence of politicians is guaranteed to safeguard the proper functioning of our democratic society. These inviolability clauses in our Constitution give rise to a double discussion. Firstly, from a ratione materiae perspective, it is not clearly defined what constitutes ‘in the exercise of their duties’. Secondly, from a ratione personae perspective, it has been criticised that the inviolability clauses apply to federal- and regional-level politicians, meaning that local-level politicians are not protected.

1. Ratione Materiae: What Precisely Is ‘in the Exercise of Their Duties’? The constitutional provisions introduce an inviolability for the opinions expressed and votes cast ‘in the exercise of their duties’, without clarifying what falls within the scope of those duties or providing guidelines on how to interpret that concept. Although it may be beneficial to have a flexible concept that can be open to interpretation in light of a changing political reality, it does give way for a grey zone and in doing so jeopardises legal certainty. Given the significant impact of the decision as to whether behaviour should be either or not qualified as ‘in the exercise of their duties’ (i.e., absolute inviolability vs. prosecution and conviction), this may be criticised. In case law and academic literature, a simple but rather effective guideline can be found. The concept should be limited in light of the tasks or duties mentioned in the rules and regulations of the House or Government.12 Using that guideline as a basis, it becomes clear that opinions can be expressed and votes can be cast (1) both within and outside official buildings, (2) both orally and in writing, (3) both during the parliamentary or governmental session as well as in preparation thereof. It also means that opinions cannot be expressed and votes cannot be cast via, e.g., the media, not even if they are a literal repetition of prior statements. Firstly, the location of the opinion or vote in itself is irrelevant. Being in an official building is not a decisive element. It may very well be that a member of Parliament is interviewed by a journalist in the corridors of the Parliament in between official parliamentary sessions. Although the statements are made in the parliamentary building, they will not be protected by the inviolability clauses13 as

10

Cass. 1 June 2006 (C.05.0494.N), commented on by amongst others: I. Boone, NjW 2006, 559; K. Muylle, TBP 2006, 435; E. Maes, CDPK 2006, 905. 11 ECtHR 17 December 2002, A v. United Kingdom, commented on by (amongst others): F. Krenc, ‘La re`gle de l’immunite´ parlementaire
a l’e´preuve de la Convention europe´enne des droits de l’homme’, Rev. Trim. DH 2003, 813-821. See also D. Voorhoof, ‘Europees Hof erkent absolute vrijheid parlementair debat’, De Juristenkrant 2003, 6. 12 Legal Service of the Federal Parliament, The Parliamentary Inviolability, May 2015. 13 Ghent 30 September 1994, AJT 1994-1995, 221; Brugge 1 June 1992 (unpublished).

386

W. De Bondt

the exercise of his duties does not require a member of Parliament to give press statements in between sessions.14 To the contrary, it may very well be that a statement made outside the parliamentary buildings is protected by the inviolability shield. Reference can be made to members of a parliamentary investigative commission conducting an on-site visit. In line with the requirements of the European Court of Human Rights,15 a strict link with the execution of the duties is guaranteed.16 Secondly, opinions and votes can be either written or oral. The inviolability protection does not only apply to oral statements during a debate. It also relates to any opinion expressed in official parliamentary documents. It applies to all types of official documents referred to in the rules and regulations of their House or Government, such as legislative proposals, amendments, official reports, resolutions and parliamentary questions. Statements made during a parliamentary session lose their inviolability shield as soon as they leave the parliamentary session. Whereas a political decision-maker is protected by the inviolability shield for opinions expressed during a parliamentary meeting, he will not be able to repeat that opinion outside the parliamentary meeting without risking prosecution. Even a literal quote from the parliamentary meeting reading from the transcript of the meeting will not be protected.17 The transcript itself, however, cannot give rise to prosecution as it is an official working document referred to in the rules and regulations of the House.18 Quoting ‘in good faith’ is only allowed if done by a journalist, provided that the quote is the exact representation of what is said in Parliament.19 Giving a summary or an own interpretation of the statements would put the journalist outside the protection of the constitutional inviolability provisions.20 Using that reasoning as a baseline, it becomes questionable whether the summary statements made in the House’s e-magazine, publishing the highlights of what was said during parliamentary sessions, would not have to be considered outside the scope of the constitutional protection and may therefore give rise to criminal liability. After all, the e-magazine is not an official parliamentary publication that would fall within the ‘in the exercise of their duties’ criterion; on the contrary, it may need to be given the same status as any other journalistic magazine.

14

As a general rule, it is accepted that giving press statements does not fall within the official tasks of a member of Parliament. For reasons of completeness, it should be added that exceptions may apply to e.g. the president of the House who gives a press statement in his official capacity backed by the members of the Parliament. In that situation the president of the House is the official spokesperson of the House and enjoys the protection of the inviolability clauses. 15 See ECtHR 24 February 2009, CGIL and Cofferati v. Italy, n
46967/07. 16 K. Lemmens, ‘Straatsburg beperkt parlementaire onverantwoordelijkheid’, De Juristenkrant 2009, 7. 17 Cass. 11 April 1904, Pas 1904, 199. Parl. St. Kamer 1992-1993 nr. 781/1, 5. 18 H. Vuye, ‘Les irresponsabilite´s parlementaire et ministe´rielle: les articles 58, 101 aline´a 2, 120, 124 de la Constitution’, CDPK 1997, 18-19. 19 Legal Service of the Federal Parliament, The Parliamentary Inviolability, May 2015. 20 Vuye (note 18), 14.

The Politics of Political Hate Speech in Belgium

387

At times, the distinction between what is allowed and what is not is relatively minute and may feel outdated or contrary to common sense. Uploading the official parliamentary documents on to your personal webpage will be allowed. Putting a quote from that document on your webpage will not be allowed.21 Thirdly, political decision-makers are inviolable for opinions and votes both during the parliamentary or governmental session as well as in preparation thereof. Any type of meeting referred to in the rules and regulations is considered to be a meeting that falls within ‘in their duties’. Other types of meetings fall within a grey area. It is not always clear in advance how a judge will rule. This is due to the fact that the assignment of politicians is subject to change. The job has evolved over the years and will continue to evolve in the future. Not all types of meetings and subgroups are explicitly listed in the internal regulations. In the past, there has been some discussion on meetings of political fractions.22 As long as they were not explicitly mentioned in the internal regulations, it was not easy to predict how a judge would rule on statements made at that occasion. Today, this grey zone has been cleared as political fraction meetings are now mentioned in the internal regulations. From that explicit mentioning, it can be deduced that statements made during political fraction meetings are shielded by the constitutional provisions, though not absolute. It should be mentioned that only fraction meetings that aim at preparing the political debates in the Parliament are included therein.23 If a fraction meeting cannot be directly linked to a parliamentary discussion or debate, statements made during that meeting may not be shielded by the constitutional provisions. Reference is made to a colloquium organised by a political fraction to make that more tangible.24 In practice, preparatory work—in the broad sense of the word—is done not only in the political fraction meetings but also in the more general political party meetings. Those meetings, however, are not included in the rules and regulations and can therefore not benefit from the constitutional protection provisions. Even when the political party meetings are held inside the parliamentary building, the opinions expressed by the attendees are not shielded by the inviolability provisions of our Constitutions.25

21

Brussels, 18 April 2006 (unpublished). Legal Service of the Federal Parliament, The Parliamentary Inviolability, May 2015. 23 Parl. St. Kamer 1992-1993, nr. 781/1, 5. See also: Vuye (note 18), 15-16. 24 Ghent 30 September 1994, AJT 1994-1995, 221, referred to in Legal Service of the Federal Parliament, The Parliamentary Inviolability, May 2015. 25 Brussels 2 February 1938, Pas. 1938, 7 ‘L’immunite´ prote`ge le de´pute´ dans l’exercise de son mandat parlementaire, mais ne le prote`ge pas dans l’exercise de son activite´ politique ou partisane’. More recently Ghent 30 September 1994, AJT 1994-1995, 221. 22

388

W. De Bondt

2. Ratione Personae: What About Lower-Level Political Decision-Makers? Originally, only the members of either federal or regional house enjoyed this inviolability. Since the amendment of the Constitution in 1995, this inviolability has been extended to ministers and secretaries of State. Still, the majority of our political decision-makers fall outside the scope of the inviolability protection. Lower-level political decision-makers operating on provincial or city level do not enjoy the protection of our Constitution. This means that it may very well be that the repetition by a city council member of an official party position voiced in a federal Parliament by an inviolable member of Parliament would lead to criminal prosecution. Given the possibility that federal matters need to be further elaborated on or executed at local level, this may lead to at least seeming inconsistency in the acceptability of hate speech by political decision-makers. The existing case law typically26 features a member of a right-winged political party, for statements made in the city council. Reference can be made, e.g., to the cases against Remie Timmers, Robert Van Overloop and Stephan Bourlau. Remie Timmers, city council member of Vlaams Belang in the city of HouthalenHelchteren, was prosecuted for a statement made in the city council during a debate on how to organise the waste of the ritual slaughtering of sheep by the Turkish members of the local community. During the meeting he said that if it were up to him, ‘he would rather throw the Turkish themselves into the waste container, rather than their slaughtering waste’.27 Robert Van Overloop, a city council member of Vlaams Belang in the city of Dendermonde, was prosecuted for a statement made in the city council during a debate on the ban of veil. He said that he saw ‘a rich man get out of a car, followed by something saddening wearing a veil’.28 Stephan Bourlau, a city council member of Vlaams Belang in the city of Geraardsbergen, was prosecuted for launching a petition against the possibility that a mosque would move into the city centre. It was argued that the petition against the mosque would provoke discrimination, hate or violence.29 This limit to the inviolability protection is criticised by our right-winged parties but generally accepted by others and has been consistently confirmed in case law.30 Our Court de Cassation has consistently and repeatedly explained that courts can

26

Because the article will go into the prosecution of the non-profit organisations linked to Vlaams Blok (currently renamed Vlaams Belang), the choice was made to give examples of that political party only. Moreover, these individual statements add to the question as to what extent members of a political party may be criminally liable for statements made by these politicians. 27 Newspaper article in Gazet van Antwerpen of 13 December 2002. 28 Newspaper article in Het Nieuwsblad of 26 November 2004. 29 Newspaper article in Het Laatste Nieuws of 24 March 2016. 30 Ghent 29 April 1873, Pas. 1873 II, p. 251; Ghent 23 May 1882, BJ 1882, p. 1303; Brussels 4 June 1921, J.T. 1921, p. 626; K. Rimanque, Preadvies De aantasting van de eer en de goede naam in het Belgisch Staatsrecht, 1972 (Tjeenk Willink, Zwolle), p. 24.

The Politics of Political Hate Speech in Belgium

389

deal with city and provincial council members for the statements they have made during council meetings and that the competence to judge them does not interfere with the independence of these organs.31 In more recent case law, it is clear, however, that a certain severity threshold is introduced, and not all statements made by provincial and city politicians should spark criminal liability. Today, it is generally accepted that they should be allowed to make statements that may be disturbing to some, provided that this is not done with a malignant intent and is part of the pursuit of good governance.32 In the examples mentioned, the statements made are not considered to be conducted as part of the pursuit of good governance and can therefore give rise to the criminal prosecution of the city council members.

II. Courts Competent to Deal with Political Hate Speech The competence to deal with political hate speech is dependent on (1) the modus operandi (written or oral) and (2) the content of the hate speech (racism and xenophobe or another type of hate). Those constitutional provisions give rise to (3) a new discrimination discussion.

1. Modus Operandi: Written or Oral in Nature? Firstly, the differentiation in which is the competent court, based on the modus operandi of the hate speech, can be brought back to the competence to deal with press offences. As a general rule in the Belgian criminal justice system, press offences, i.e. offences committed by means of a printing press, fall outside the competence of the regular courts and tribunals and are tried in front of a jury in the Court d’assises. This general rule is enshrined in our Constitution, which says that a jury is sworn in for press offences. In practice, however, due to the very costly and time-consuming nature of procedures in front of the Court d’assises, prosecutions for press offences are extremely rare. As a result, hate speech offences committed in writing can enjoy a de facto impunity, whereas the same statement made orally can give rise to a prosecution and conviction in front of a regular court. This differential treatment can be questioned in light of the significance and impact of the opinion expressed. An oral ‘slip of the tongue’-type opinion by some city council members in the heat of a political debate appears to be more impulsive, improvident, volatile

31

Cass. 5 September 1856, Pas 1856, I, p. 455; Cass. 25 January 1854, Pas 1854, I, p. 90; Liege 11 November 1853, BJ 1854, p. 60; Brussels 31 October 1900, Pas. 1900, p. 345. 32 Brussels 20 October 1902, Pas 1903, II, p. 261; Liege 25 January 1935, R.W. 1934-1935, p. 831; Brussels 4 June 1921, J.T. 1921, p. 626; Rimanque (note 30), p. 24. J. Velaers, De Beperkingen van de vrijheid van meningsuiting, Deel II, 1991 (Maklu, Antwerpen).

390

W. De Bondt

and of more passing nature when compared to a written statement on a personal webpage. Yet the oral slip of the tongue might be prosecuted, whereas the blog post will enjoy de facto impunity.

2. Ratione Materiae: Racist/Xenophobe or Other Content? Secondly, an exception exists to the modus operandi—rule, depending on the content of the hate speech. Because it was considered undesirable for written hate speech offences to go unpunished when they are racist and xenophobe in nature, the Constitution was changed in 1999 in order to redirect racist and xenophobe press offences back to regular courts and tribunals. The Constitution now reads that ‘A jury is sworn in for [. . .] press offences, with the exception of press offences motivated by racism or xenophobia’.33 As a result, both any kind of oral opinion as well as the written racist or xenophobe opinions will be prosecuted in front of regular courts and tribunals. Written opinions that have other content will be theoretically prosecuted in front of the Court d’assises but will in practice enjoy de facto impunity. Though this has been raised several times, it was ruled that a more effective and efficient prosecution of press offences motivated by racist and xenophobe intentions is warranted because of the threat that this poses to a democratic society.34 The exception for hate speech motivated by racism and xenophobia is very narrowly construed. Only racism and xenophobia are included. Hate speech for any other type of non-discrimination ground would still fall within the competence of the Court d’assises if committed in the form of a press offence. This narrowness was subject to a discussion at the occasion of the launching of the ‘Less Less Less’ videogame by Mr. Filip De Winter, a member of Vlaams Belang (formerly known as Vlaams Blok). In the lead-up to the parliamentary elections, Mr. Filip De Winter, a member of (then) Vlaams Blok, had uploaded a videogame onto his website called Less, Less, Less. The name of the videogame referred to the turmoil caused in the Netherlands after a speech of Mr. Geert Wilders at the occasion of the Dutch parliamentary elections a couple of weeks before that. During a political rally in The Hague, Mr. Geert Wilders asked the crowd whether they wanted more or less people of Moroccan descent in their city. The crowd shouted ‘Less, Less, Less’, upon which Wilders promised to make that happen after the elections.35 The ‘Less, Less, Less’

33

Art. 150 Const., as amended in 1999. See more in detail: J. Vrielink/S. Sottiaux/D. De Prins, ‘The Vlaams Blok-arrest, artikel 150 van de Grondwet en de interpretatie van de Antiracismewet’, Tijdschrift voor Vreemdelingenrecht 2004, 96. 35 See amongst others YouTube video of 19 March 2014, https://www.youtube.com/watch? v¼0cYhLHNYgEE. 34

The Politics of Political Hate Speech in Belgium

391

incident in the Netherlands inspired the Belgian Filip De Winter to post the said videogame online. In the videogame, one could walk through the city of Antwerp and—by means of an insect whisk—rid the city of annoying elements such as a number of politicians depicted as insects, mosques, fleeing criminals and Muslims on flying carpets. Part of the general public was astounded by the lack of follow-up by the prosecution services who were requested to look into the case. Many were surprised by the statement of the public prosecutor that they would not prosecute the case in light of the commitment made to invest more in the prosecution of discrimination and unequal treatment.36 It was argued that a procedure in front of the Court d’assises would be a disproportionate use of the already limited resources they have. The occasion was used to urge the legislator to amend the Constitution so that cases like this would be able to be redirected to normal courts and tribunals.37 The public prosecutor explained their three-step reasoning underlying the decision not to prosecute. First, it was acknowledged that the posting of the videogame constituted a violation of our anti-discrimination laws. The sentence on the opening screen that the gamers could rid Antwerp of the danger posed by Muslims was considered to be a clear form of discrimination on the basis of religious views and provokes and feeds feelings of hate and violence against this group. Second, it was acknowledged that the posting of the videogame constituted a press offence. Though not committed by a traditional printing press, the courts have consistently interpreted the constitutional provision in an evolutionary way.38 In case law, it has explained that the provision applies to any method that resembles a printing press, i.e. any mechanical or physical procedure that allows equal copies to be produced.39 More recently, our Constitutional Court added that digital spread of messages may also constitute a press offence.40 Messages that have no written reproduction cannot constitute a press offence.41 This means that radio or TV messages, audio and video

36

This commitment has been consistently repeated. See also Colle`ge des procureurs ge´ne´raux, ‘Circulaire relative
a la politique de recherche et de poursuite en matie`re de discriminations et de de´lits de haine (en ce compris les discriminations fonde´es sur le sexe)’, Brussels, 17 June 2013 (translated: Policy on the investigation and prosecution of discrimination and hate crimes (including discriminations based on sex). In the most recent version the prioritisation of offences committed on the internet is underlined. 37 See, e.g., statement of Paul van Tigchelt in Het Laatste Nieuws of 10 February 2015: ‘This videogame is a press offence on the basis of religious views. This offence can only be prosecuted in front of one court, namely the Court d’assises. The Prosecutor-General however feels that it is too expensive and cumbersome to initiate a procedure in front of the Court d’assises for this case. We feel as though the legislator should intervene and reevaluate the constitutional provisions governing the division of competence over the different courts and tribunals.’ Unfortunately, a constitutional change requires that the provisions are formally ‘opened for amendment’ prior to a federal election taking place. As the provisions concerned were not listed as ‘open for amendment’ it will not be possible to honor that request in the current legislative term. 38 C. Van den Wyngaert, Strafrecht en strafprocesrecht in hoofdlijnen, deel 1 strafrecht, 2014 (Maklu, Antwerpen), p. 201. 39 Brussels, 1 June 1991, Rev. dr. Pe´n. 1992, 131. 40 Cass. 2 March 2002, www.juridat.be. 41 Cass. 9 December 1981, J.T. 1983, 133.

392

W. De Bondt

clips cannot constitute a press offence. The written instructions on the opening screen of the videogame, however, clearly constitute a press offence. Having taken those two steps in the reasoning, and considering the constitutional change to avoid impunity for racist and xenophobe hate offences, it may have seemed that prosecution in front of a regular court was self-evident. Third, however, this particular press offence is not racist or xenophobe in nature. The discrimination does not relate to the race of the people involved, nor does it relate to the fact that they are foreigners or have a foreign background. The discrimination relates to their religious views, which might be equally inacceptable, but is not listed in the constitutional exception. This means that press offences with a religious content still fall within the competence sphere of the Court d’assises. As a result, the videogame falls within the de facto impunity just like most other press offences.

3. Exceptions to the Ratione Materiae: A Discrimination in Itself? The outlook of this case not being prosecuted resulted in a discussion on the ‘inseparability’ of the discrimination grounds ‘race’ and ‘religion’, as a result of which the videogame (and all other religion-based hate speech) would constitute a type of press offence that should be prosecuted in front of regular courts and tribunals. Several authors have commented on this.42 In general, two distinct opinions can be identified. Some argue that religion is a free choice, whereas race or ethnicity cannot be chosen or changed. Therefore, it is argued that discrimination based on the unchangeable race and ethnicity should be considered worse and warrants the different treatment of the cases (i.e., prosecuted in regular courts vs. de facto impunity in the absence of prosecution in front of the Court d’assises.) To the contrary, others argue that the resentment felt for Muslims because of their religious views is inseparably interlinked with the resentment felt for foreigners of mainly African or Middle-Eastern descent. Moreover, their religion is often inextricably bound to individuals just as much as their ethnicity and racial background. The freedom of choice put forward is therefore considered not strong enough to warrant such different treatment of the cases. The difference is considered to be unacceptably minute. Should the opening screen of the videogame have read ‘rid the city of Antwerp of foreigners’, prosecution in front of regular courts would have been possible. Since the opening screen read ‘rid the city of Antwerp of Muslims’, prosecution in front of regular courts is not possible. For that reason, it is argued that either racism and xenophobia should be interpreted as including also religious

P. Vanden Heede, ‘Ras, religie en discriminatie’, De Juristenkrant 2010, 10; J. Vrielink, ‘Islamofobie en recht: een beangstigende combinatie’, De Juristenkrant 2013, 3; J. De Witte, ‘Rad en religie: allebei anders, allebei gelijk?’, De Juristenkrant 2010, 10. 42

The Politics of Political Hate Speech in Belgium

393

xenophobia or religion should be added to the exception to allow also those cases to be redirected to regular courts and tribunals. Against that background, it is interesting to see that there have been some convictions where behaviour towards Muslims, ‘a religious group’, is qualified as ‘racism’. Reference can be made to a case where a person was convicted on the basis of our anti-racism legislation for tearing and burning a Quran in front of a group of Muslims.43 Not only did the judge rule that this behaviour constituted ‘provoking hate and violence against a protected group’ even though the act was only committed in front of a group of Muslims and no members of another religious group witnessed the events.44 The judge also ruled that tearing and burning a Quran constituted a racial and xenophobe offence, even though violence for religious reasons is a separate non-discrimination ground listed in different legislative provisions.45 The possibility of extending the scope ratione materiae is politically rather sensitive. In a political climate where the electoral base of right-winged parties is growing, it is not as self-evident to change the legislation in a way that clearly targets the opinions expressed by one or at least very few non-traditional political parties. In light thereof, the question can be raised whether the extension of the scope of press offences that can be prosecuted in front of regular courts and tribunals would in itself not be a violation of our discrimination legislation. More fundamentally, the question can be raised whether the provision as is would not already amount to discrimination. It is argued that all discrimination grounds should be treated equally, including the freedom of expressing your political views, and that it is unacceptable to organise the competence of the courts in such a way that some political parties are allowed to express their views without being prosecuted, whereas the views of one political party in particular cannot be expressed without being prosecuted. As a result, it is questioned whether it would not be more appropriate to treat all press offences in the same way, being all in front of the Court d’assises or all in front of regular courts and tribunals.

III. Being Part of a Racist of Discriminating Group Whereas an individual politician may not be prosecuted for opinions expressed and votes—due to either an inviolability provision or a de facto impunity scenario— those opinions can still give rise to the prosecution of others, i.e. the members of the political party where the individual politician belongs to. To explain that possibly

43

Brugge 6 March 2013 (unpublished), commented on by Vrielink (note 42), 3. Our Constitutional Court ruled that provoking a group in itself is not enough, and clarified that it is required that your behaviour encourages others to be violent or at least spurs negative feelings towards a particular group. 45 Vrielink (note 42), 3. 44

394

W. De Bondt

unexpected twist, reference should be made to the offence of ‘being part of a racist or discriminating group’ and the way it is interpreted in Belgian case law.

1. The Case of Non-profit Groups Linked to Vlaams Blok The current Vlaams Belang, formerly known as Vlaams Blok, remains a controversial right-winged political party in the Belgian political landscape. The change is name was induced by a criminal case built against the party. Although political parties cannot be held criminally liable in Belgium, the people associated with the party can as we have an offence to punish ‘being part of a racist or discriminating group’. This means that even though the political party itself cannot be prosecuted, and maybe the elected politicians expressing their opinion in Parliament cannot be prosecuted, those opinions may amount to the political party being qualified as a racist or discriminatory group, which puts the individual members of the party, their electorate, in jeopardy. First, it was argued that Vlaams Blok was a racist and discriminatory group. It was argued that many discriminatory points of view were included in the political program of that party. Ideas were included such as sending illegal, criminal and unemployed foreigners back to their country of origin; requiring foreigners to either adapt to our cultural views or return to their country of origin; introducing limitations on their property rights, limitations on their social benefits46; withdrawing of the recognition of Islam as a religion; introducing a mandatory separation in the education of our children and the education of Islamic children. Although not yet actively discriminating foreigners in the way described, the political program was considered to be a clear intention to adopt and apply discriminatory measures to foreigners as soon as they would have the legislative power to do so. Therefore, Vlaams Blok was considered to be a discriminatory group. Second, criminal liability for it was directed towards a number of non-profit organisations. Article 3 of our anti-racism legislation says that he who belongs to a group or association which manifestly and repeatedly displays or proclaims discrimination or segregation in the circumstances specified in Art. 444 Criminal Code or he who contributed to such a group or association will be punished. Given the political and societal sensitivity, the case built against Vlaams Blok did not lead to the prosecution of individual members, but to the prosecution of a number of non-profit organisations associated with Vlaams Blok. On 10 October 2000, within a year from the constitutional change that redirected racist and xenophobe press offences to regular courts and tribunals, a complaint filed by the Human Rights See more in detail: Vrielink/Sottiaux/De Prins (note 34), 89; E. Brems, ‘Botsende grondrechten. Over politieke partijen die discrimineren’, Tijdschrift voor Bestuurswetenschappen en Publiekrecht, 2009, 452; J. Peters, ‘Over botsende grondrechten en politieke partijen die discrimineren. Een reactie op Eva Brems’, Tijdschrift voor Bestuurswetenschappen en Publiekrecht, 2009, 461. 46

The Politics of Political Hate Speech in Belgium

395

Ligue and the Center for Anti-Racism and Equal Opportunities against a number of non-profit organisations associated to then Vlaams Blok. It took multiple instances and the intervention of our Court de Cassation to get a final decision.47 It became clear that the criminal liability is not dependent on the criminal liability of the said group itself, nor of the individuals who voice the problematic opinions.48 Therefore, the mere fact that in this case the ‘group or association’ is a political party that in itself cannot be held criminally liable does not impede the criminal liability of whomever is part of or contributes to that group or association. Ultimately, the Court of Appeal in Ghent qualified the political program unfolded by Vlaams Blok as a ‘systematic hate campaign against foreigners, with the intention of depicting them as the lazy bread robbers taking undue advantage of our social benefit system whilst being unintegretable fanatics’49 It was argued by the court that the intention of Vlaams Belang was to instigate, nourish and exacerbate feelings of hate against foreigners, with the underlying ambition to gain the hearts of the electorate, proselytise and obtain electoral success to put them in a position that allow to realise the far-reaching discriminatory proposals. Notwithstanding that decision and the conviction of the non-profit organisations linked to Vlaams Blok, the court did stress that the existence of our anti-discrimination legislation does not prohibit people from voicing their opinions. Difference in opinion, also on foreign policy and migration, is needed in a democratic society. Pluralism is key, and it can never be the ambition of a democratic society to force the ‘correct opinion’ upon others. However, voicing an opinion becomes problematic when it is intended to instigate, nourish and exacerbate feelings of hate and causing violence against foreigners. The non-profit organisations where convicted.

2. Risk of the Individual Party Members The decision in this case opened the door for a discussion on the meaning thereof for the risk of individual party members. After all, if it was established that Vlaams Blok was a racist and discriminatory group, not only the convicted non-profit organisations could be held criminally liable for being part of that group but potentially also each and every individual party member. Several authors50 have commented on this case, referring to the interesting interaction between on the one hand the fact that political parties cannot be held criminally liable, combined with the (partial) inviolability of politicians for the opinions expressed, and on the other

47

See more in detail: Vrielink/Sottiaux/De Prins (note 34), 89. S. Sottiaux/J. Vrielink, ‘De Antiracismewet na het Vlaams-Blokarrest’, NjW 2004, p. 721. 49 Court of Appeal, Ghent, 21 April 2004 (available at diversiteit.be). 50 C. Van Vyve, ‘Hoe ver reiken gevolge van Vlaams Blok-arrest?’, De Juristenkrant 2004, 5; Brems (note 46), 454; Peters (note 46), 461. 48

396

W. De Bondt

hand the criminal liability of members of a group that is known for the expression of discriminatory statements. The question was raised whether there is/should be a difference between on the one hand the individuals who have a clear role in the political party and the non-profit organisations who have a clear contribution to its general function and on the other hand the ‘mere’ sympathising members who may or may not have paid a financial contribution to become a member of the political party. When analysing the case law on ‘membership of’, it becomes clear that it is not required to have a specific role or assignment within that group or association; it is not required that you have committed any discriminating offences yourself in order to be criminally liable. It is sufficient to have had the intention to be a member of the group or contribute to the activities of the group. When applying this reasoning to the case of political parties and their possible hate offences, this very broad interpretation will have far-reaching consequences. In literature, authors have pointed to the undesired effects of a too wide interpretation and application of that offence. It is therefore advocated that active participation, acts of cooperation, open expression or endorsement of the statements would be required. Partly in order to avoid taking any risks with their members, Vlaams Blok as a political party seized to exist, and a new political party, Vlaams Belang, was created. The discourse of the party has party softened and partly shifted from ‘foreigners’ to ‘Muslims’.

IV. Conclusion: The Politics of Political Hate Speech in Belgium The decision on the criminal responsibility for political hate speech in Belgium and the prosecution thereof is politically very sensitive. Though various changes have been made in the past in order to improve the constitutional provisions governing political hate speech, there is still room for improvement in order to safeguard both the legality and proportionality principles. The current grey areas lead to legal uncertainty and put the legality principle at risk. The current differential treatment of seemingly similar situations or equally disturbing situations puts the proportionality principle at risk. The three discussions presented in this contribution can be mirrored into three suggestions for further debate and possibly amendments of our Constitution. First, it is felt that a clearer delineation of what is ‘in the execution of their duties’ is required in order to minimise the undefined grey zone and maximise legal certainty. A discussion should be held on whether the distinction along the exercise of their duties is still appropriate. Taking account of the increased transparency in the work of political decision-makers, partly but not only linked to the rise of communication via social media, there is only a very thin line between on the one hand being inviolable when being transparent and informing the public of the work

The Politics of Political Hate Speech in Belgium

397

done by means of making the parliamentary documents in full text available online and on the other hand being criminally liable when informing the public about the same work by means of a Twitter message or a blog post, quoting from an official document. The distinction between transparency and campaigning is difficult to make, and the question arises whether that distinction should be relevant in determining the desirability of criminal liability and prosecution. Second, the division of competence between on the one hand the regular courts and tribunals and on the other hand the Court d’assises based on the combination of the modus operandi and the content of the hate crime seems outdated. Not only does it lead to the de facto impunity of written statements that might be more disturbing than the mirroring oral statements, but also the rationale underlying the decision to redirect racial and xenophobe press offences to the regular courts and tribunals is undermined by the ‘reformulation’ of the discourse and the shift from ‘foreigners’ to ‘Muslims’. It might be more appropriate to review the division of competences in its entirety. The difference in ‘threat to society’—the argument used to justify the differential treatment—was never very convincing and is quickly losing what is left of that power to convince. Third, questions on the impact that the hate speech of an individual politician may have on the qualification of a political party as a discriminating group remain unanswered. More importantly, the extent to which the individual members can bare criminal responsibility for the hate speech that turns a political party into a discriminating group is equally unclear. In order to ensure legal certainty and avoid disproportionate prosecution of individual members, light should be shed on the need to have an active role in the political party as opposed to being a mere member—possibly even without paying a membership fee. Wendy De Bondt is Professor of Criminal Law at the Ghent University.

Criminal Liability for Accidents in France: Is Corporate Criminal Liability of Public Entities the Solution? Guillaume Chetard

I. Introduction When we started discussing which topics should be treated in our comparative case study, I thought criminal liability for accidents would be one of key problems. Indeed, in France, criminal liability of decision-makers and of legal persons for grievous or lethal accidents has been subject to several reforms and to a considerable number of judicial decisions and academic writings. So my first surprise, working with the group, was that these questions were not as commonly shared as I thought. Instead, they may illustrate some interesting particularities of the French system, from a technical and somehow pragmatic viewpoint. In a sense, criminal liability of public entities and public decision-makers for accidents is the typical example of broader general criminal law issues: which kinds of responsibilities may be backed up by criminal liability, and for which kinds of offences may public entities be criminally liable, if they may at all? These topics are very tightly linked together. The current Penal Code was voted in 1992 and came into force in 1994,1 and one of its most important creations was the criminal liability of legal persons, including public entities. Since then, several reforms, on the one hand, limited the personal liability of natural persons for negligence, whereas on the other hand the scope of corporate criminal liability was progressively extended. These evolutions affected a much wider field than that of mere Loi n 92-683 du 22 juillet 1992, portant re´forme des dispositions ge´ne´rales du code pe´nal; loi n 92-684 du 22 juillet 1992, portant re´forme des dispositions du code pe´nal relatives a
la re´pression des crimes et de´lits contre les personnes; Loi n 92-685 du 22 juillet 1992, portant re´forme des dispositions du code pe´nal relatives a
la re´pression des crimes et de´lits contre les biens; loi n 92-686 du 22 juillet 1992, portant re´forme des dispositions du code pe´nal relatives a
la re´pression des crimes et de´lits contre la nation, l’E´tat et la paix publique. 1

G. Chetard (*) Universite´ de Strasbourg, Strasbourg, France e-mail: [email protected] © Springer International Publishing AG 2017 F. Zimmermann (ed.), Criminal Liability of Political Decision-Makers, DOI 10.1007/978-3-319-52051-3_25

399

400

G. Chetard

political decision-making: ordinary public services, private corporations, associations, private and public hospitals, etc. were also concerned. Yet public persons, and especially the criminal liability of local decision-makers (such as mayors, presidents of territorial councils, local civil servants, etc.), were always one of the main issues driving the debates. The aim of this paper is to explain, in a synthetic manner, what caused these evolutions and how French criminal law articulates the criminal liabilities of a political decision-maker, and of the public entity they represent, when an accident occurs in the field of their public responsibilities. In order to avoid any confusion, I will present the technical aspects of these topics in separate parts before I explain how the solutions may combine. Thus, Part 1 of this presentation will describe the main issue with the previous state of the law. Part 2 will focus on how two reforms of 1996 and 2000 lightened the criminal liability of natural persons for accidents. Part 3 will present the main aspects of criminal liability of public entities. Part 4 will briefly explain how the whole system adds up nowadays.

II. Criminal Liability of Decision-Makers for Accidents Our starting point here should be Art. 121-3 of the French Penal Code, which provides definitions of intent and guilty fault in French criminal law. When this article came into force, back in 1994, it was almost identical to Arts. 319 and 320 of the former Penal Code, and noticeably short. Regarding non-intentional offences, paragraph 2 simply provided: lorsque la loi le pre´voit, il y a de´lit en cas d’imprudence, de ne´gligence ou de mise en danger de´libe´re´e de la personne d’autrui (i.e., ‘when the law provides so, there is a de´lit2 in case of recklessness, of negligence, or of deliberate endangering of others’). No further definitions were provided for, so involuntary offences were very broadly conceived. A problem arose regarding the liability of public agents, especially mayors and some categories of civil servants such as prefects. A mayor, in particular, may be held responsible for an accident on two distinctive grounds. On the one hand, the mayor is, like the president of any territorial community’s council, the chief of that community’s executive. As such, the mayor or president, and their deputies, are, in principle, charged with the supervision of all activities that fall under the community’s competence as a decentralised, self-governed, local democratic authority. This supervision includes the overtaking of all safety measures that might be required—especially, but not exclusively, due to statutory provisions— regarding the community’s activities. 2

French criminal law distinguishes three classes of offences: crimes, de´lits and contraventions. Crimes are the gravest offences, and cannot be committed unintentionally. Contraventions are offences against regulations, they may not ground any deprivation of liberty, and it is not required that their constitutive fault be proven separately from the actus reus. That is why Art. 121-3 defines unintentional fault only for de´lits.

Criminal Liability for Accidents in France: Is Corporate Criminal Liability. . .

401

On the other hand, and contrary to the presidents of other communities’ councils, the mayor is also a local representative of the State and the head of the municipal police. Their powers and missions as such are more comparable, mutatis mutandis, to those of a prefect.3 As such, the mayor is charged with a general mission to ensure public order on the territory of the territorial community they represent. In order to carry out that charge, they are entrusted with public power prerogatives. For instance, Art. L.2212-1 et seq. of the Code Ge´ne´ral des Collectivite´s Territoriales (General Code of Territorial Communities) provide that the mayor is charged with ‘ensuring public order, public security, public safety and public hygiene’. This includes, among others: the safety and ease of passage in the streets, the appropriate preventive measures and aid in regard to natural accidents (such as floods, avalanches, etc.) or the delimitation of safe zones for swimming and other nautical activities. With such an extended field of responsibilities, it becomes very easy, when an accident of any kind happens, to find a link with a prerogative of the mayor: for instance, if a car crash happened in a pedestrian street that was not closed to vehicles by physical obstacles; if a ruined building, which was soon to be demolished, collapsed earlier than expected; or if a swimmer drowned in a supposedly safe zone due to a sudden change in the weather. In all of these cases, the accident could have been prevented, provided the mayor had acted slightly differently (e.g., by having the street closed with concrete blocks, by advancing the building’s demolition or by forbidding swimming on that day), although, depending on the exact circumstances, the accident was partly unpredictable. Due to the broad wording of Art. 121-3, a mere negligence, close to a culpa levissima, could in some cases be sufficient to hold a public decision-maker criminally liable for involuntary harming others, or involuntary manslaughter, whenever an accident happened under their jurisdiction. Moreover, no special requirements were provided for in the text regarding causation. So it did not matter which part the decision-maker’s negligence took among the causes of the accident, as long as it had undoubtedly taken a part among them. Additionally, judges were reluctant to discharge decision-makers even in cases of minor faults because since a decision taken by the Cour de Cassation in 1912,4 the case law had been applying a theory of unity between civil and criminal faults. A criminal judge’s decision regarding criminal liability was binding civil law jurisdictions to judge in the same sense regarding civil liability, as the two faults were considered to be identical.5 Thus, if a decision-maker were discharged of their 3 See my national report in part I of this volume, under I.1., for precisions regarding the distinction between State authorities and local communities. 4 Cour de Cassation, Chambre civile (Cass. Civ.), case of 18 December, 1912 (Droit Pe´nal, 1/1915, n 17); Cour de Cassation, Chambre criminelle (Cass. Crim.), case of 6 July 1934. 5 See Y. Mayaud, Violences involontaires (1 The´orie ge´ne´rale), in: Re´pertoire Dalloz de droit pe´nal et de proce´dure pe´nale, §§ 275-281; D. Guihal, Fasc. 20: Atteintes volontaires
a la vie, in: Jurisclasseur Pe´nal Code, art. 221-6
a 221-7, §§ 85-93; J.-Y. Mare´chal, Fasc. 20: Ele´ment moral de l’infraction, in: Jurisclasseur Pe´nal Code, art. 121-3, §§ 97-105.

402

G. Chetard

criminal liability, victims could not obtain compensation for their damage on tort law grounds. This led to a very criticised judicial practice: an important number of mayors and state agents were prosecuted and convicted even in minor cases, and were sentenced to merely symbolic penalties, in order not to deprive victims of their right to compensation. It was widely considered that too much responsibility was weighing on the shoulders of too few people under this state of the law—some said that local decision-makers were treated as severely as if they were CEOs in the private sector. Thus, the legislator decriminalised some of their responsibilities with two laws of 1996 and 2000.

III. Decriminalisation of Negligence for Natural Persons Two reforms were passed in order to lighten that liability for accidents. First, a law of 13 May 19966 brought a precision to the definition of a penal fault in Art. 121-3 of the Penal Code. Paragraphs 2 and 3 of that text then provided: [W]here the law provides so, there is a de´lit in case of deliberate endangering of others. There is also a de´lit, where the law provides so, in case of recklessness, negligence, or failure to observe an obligation of safety or due care provided for by a statute or a regulation, except if the author has taken normal precautions, in regard, when relevant, of the nature of their missions or functions, of their competence, and of the powers and means at their disposal.

Moreover, the same law also added three special articles regarding the criminal liability of mayors and presidents of territorial communities’ councils in the Code Ge´ne´ral des Collectivite´s Territoriales. According to these articles, these decisionmakers may be convicted for involuntary de´lits committed in the exercise of their functions only if they had not ‘taken normal precautions, in regard of their competence, of the powers and means at their disposal, and of the inherent difficulties relative to their legal missions’.7 However, these precisions were still considered insufficient as ‘normal precautions’ and ‘taking account of’ were perceived as vague guidelines addressed to the judges and not as sufficiently binding requirements for criminal liability. Moreover, in some cases, the new wording of Art. 121-3 was even interpreted as a more severe definition of fault regarding the responsibilities of local decision-makers.8 Thus, a second reform was adopted on 10 July 2000,9 bringing two very important evolutions. Loi n 96-393 du 13 mai 1996, relative
a la responsabilite´ pe´nale pour les faits d’imprudence ou de ne´gligence (Journal Officiel de la Re´publique franc¸aise, 14 May 1996). 7 Code Ge´ne´ral des Collectivite´s Territoriales, art. L. 2123-34, L. 3123-28, and L. 4135-28. 8 See Mare´chal (note 5), §§ 74-76. 9 Loi n 2000-647 du 10 juillet 2000, tendant
a pre´ciser la de´finition des de´lits non intentionnels (Journal Officiel de la Re´publique franc¸aise, 11 July, 2000). 6

Criminal Liability for Accidents in France: Is Corporate Criminal Liability. . .

403

First, that law put to an end the rule of unity between civil and criminal faults, so that the same person could be condemned to compensate victims of an accident they caused, even though they were not convicted on criminal law grounds. Moreover, the law of 10 July 2000 added a gravity scale in the definition of unintentional offences.10 The new paragraph 4 of Art. 121-3 comes into play when a natural person’s behaviour has not directly caused the incriminated harm but when the agent has merely created or contributed to creating the harmful situation or if they omitted to take appropriate measures to prevent against that situation. Ordinary cases of insufficient or inadequate municipal policing basically always fall into this category of indirect causation. In these cases, Art. 121-3 provides that the agent commits an unintentional offence only if they have committed either of two special kinds of grave fault, which we call fautes qualifie´es (qualified faults). The first kind of faute qualifie´e, sometimes called faute de´libe´re´e (deliberate fault), consists in that the agent violated, in a manifestly deliberate way, a special obligation of safety or due care provided for by a statute or a regulation. The keyword here is ‘special’: an agent is bound by a special obligation only if they are legally bound to observe a precisely defined behaviour under specific circumstances. That is the case, for instance, when the mayor, as chief of the municipal executive, is bound to ensure the respect of regulations regarding the safety of municipal employees (e.g., infrastructure workers). On the contrary, a mayor being charged, as a police authority, with ‘ensuring order, public security, public safety and public hygiene’ is bound by a general obligation of safety and due care. Thus, their negligence will not constitute a faute de´libe´re´e on that ground. Moreover, even a special obligation must have been violated ‘in a manifestly deliberate way’, which means the agent did not accidentally violate their obligations but consciously decided not to abide by the rules. Thus, criminal liability of mayors for bad security policing will rarely find a ground here. However, a mayor, or the president of a territorial community’s council, may still commit a faute de´libe´re´e if they grossly neglect safety regulations in the supervision of their community’s activities. This leaves us with the second kind of faute qualifie´e, sometimes called faute caracte´rise´e (characterised fault). Under Art. 121-3(4), an agent commits a faute caracte´rise´e if they commit ‘a blatant fault exposing others to a peculiarly grave danger which they could not ignore’. Bad safety policies allowing an accident to happen may fall into this second, broader category. The judge will then be required to motivate their decision as to how exactly the defendant’s fault was ‘blatant’, how severe the risk was and how, from a concrete perspective, the defendant could not ignore that risk. An interesting example may be found in a case of 18 June 2002.11 In this case, a municipality had organised a twilight parade in the town’s main street on Saint

10

See E. Fortis, La nouvelle de´finition des de´lits non intentionnels par la loi du 10 juillet 2000 – Les conse´quences de la loi du 10 juillet 2000 en droit penal, Revue de science criminelle et de droit pe´nal compare´ (RSC), 2001, p. 737. 11 Cass. Crim., 18 June 2002, case n 01-86539, Bull. Crim., 2002, n 138.

404

G. Chetard

John’s day. One of the mayor’s deputies was charged with marching ahead and signalling drivers to slow down. A car arrived, facing the parade, speeding at over 100 km/h on the left lane with three badly overused tires. The Deputy did not manage to make the driver stop, and an accident occurred that harmed participants in the parade (fortunately not killing anybody). The mayor was convicted for involuntarily causing bodily harm to others as the first judges considered that he should have taken more safety measures, such as having policemen stop vehicles farther ahead on the road or closing the street to cars for the duration of the parade. However, the Cour de Cassation judged that, in this case, it was not sufficiently demonstrated that the defendant had not taken normal precautions in regard to how unpredictable that particular risk was. This, in my opinion, is a typical example of a case that might have led to a conviction without the reform of 10 July 2000.12 This limitation of criminal liability for accidents only benefits natural persons. Legal persons, on the contrary, may always see their criminal liability engaged by an ordinary fault, even when the causal link from fault to harm is indirect. However, other special safeguards apply to public entities.

IV. Corporate Criminal Liability of Public Entities The criminal liability of legal persons is provided for under Art. 121-2 of the Penal Code. It is often considered to be the most remarkable innovation brought by the reform of 1992.13 One of its main aims was to redistribute responsibilities, in cases where an offence is committed at the occasion of a legal person’s activities, and the consequences exceed what a single individual could reasonably be blamed for. Criminal liability of public entities was subject to a debate of its own. The Conseil d’E´tat, which is both the supreme administrative court and an advisory organ, was consulted, and it advised against adopting criminal liability of either the State or territorial bodies, considering that such a liability could conflict with the exercise of these persons’ public power prerogatives.14 The legislator found a middle ground by excluding the State from the application of Art. 121-2 and by limiting the liability of territorial bodies to a certain set of activities. When it was adopted and came into force, Art. 121-2 provided: Legal persons, with the exception of the State, are criminally liable for the offences committed on their account by their organs or representatives, according to the distinctions set out in articles 121-4 and 121-7 [regarding attempt and accomplices].

12

As a matter of fact, the mayor was then convicted before a second Court of Appeal (Cour d’Appel de Rouen, case n 0200782 of 10 September 2003). 13 For a historical overview of the debates surrounding the criminal liability of legal persons, see R. Bernardini, Personne morale, in: Re´pertoire Dalloz de droit pe´nal et de proce´dure pe´nale, esp. paragraphs 3-25. 14 See Journal officiel du Se´nat, 11 May 1989, p. 624.

Criminal Liability for Accidents in France: Is Corporate Criminal Liability. . .

405

However, territorial collectivities and their associations incur criminal liability only for offences committed in the course of those of their activities which may be the object of public service delegation conventions. The criminal liability of legal persons does not exclude that of any natural persons who are perpetrators or accomplices to the same act.

Thus, Art. 121-2 distinguishes between three categories of public entities: the State, which may never be prosecuted; territorial communities and their associations, which may be prosecuted only for offences committed in the exercise of delegable activities; and other public entities, which are subject to the same rules as private legal persons. Regarding territorial communities, the legislator decided not to use the criterion of public power prerogatives, but rather that of the possibility to delegate the activity in which the offence was committed. However, this second criterion was not defined any further in the law, so the courts had to provide the missing definition. The Cour de Cassation, in a case of 3 April 2002,15 judged that an activity may be considered delegable under two conditions: first, if it may be entrusted by the territorial body to a public or private delegate and, second, if the delegate’s remuneration may depend for a substantial part on the results of the exploitation—which means that it must be naturally and legally possible to administer such a service in an economically profitable way.16 This excludes from the field of criminal liability any activities that require the exercise of public power prerogatives and also those that, without requiring public power, should not be managed with profit as an objective, such as the administration of public schools and other public educational activities.17 However, the frontier is sometimes a bit blurry, and the courts may divide a single public service into several ‘activities’, some of which may be delegated, while others may not. For instance, in a case of 6 April 2004,18 a De´partement (a county) had passed a delegation convention with a transport company, which ran school buses according to the community’s planning. An accident had occurred at a bus stop, which was not equipped with any protective installations, like a bus shelter, although

Crim., case n 01-83160 of 3 April, 2002: ‘any activity, the object of which is the administration of a public service, may be exercised through a public service delegation convention, if, in the absence of contrary statutory of regulatory provisions, it [the activity] may be entrusted by the territorial body to a private or public delegate, whose remuneration will depend for a substantial part on the results of the exploitation’. See also Conseil d’Etat (CE), case n 168325 of 15 April 1996, Pre´fet des Bouches-du-Rhoˆne c/Commune de Lambesc (Recueil Lebon, 1996, n 137). 16 Y. Mayaud, Droit pe´nal ge´ne´ral, 2015 (Presses universitaires de France, Paris), p. 407: ‘The legislator’s concern was to relieve the local structures, relative to how they represent public institutions and executive functions that are hardly compatible with judiciary review. But he [the legislator] did not wish either to provide them with an impunity, which would have not been understood, precisely when they leave those functions aside and undertake activities similar to those of a private company or a private legal person.’ 17 Crim., case n 98-81413 of 29 June, 1999 (Bull. Crim., 1999, n 163). 18 Crim., case n 03-82394 of 6 April, 2004 (Bull. Crim., 2004, n 89). 15

406

G. Chetard

that stop was located near a dangerous crossroads. The first judges convicted the De´partement for not having moved the bus stop to a more secure place as they considered that the management of school bus services was a delegable activity. However, the Cour de Cassation judged that, although the ‘exploitation’ of school buses—that is, running the buses themselves and collecting fees—was a delegable activity, such was not the case of their ‘organisation’—that is, deciding on their itineraries, their schedule, etc.—which fell into the exclusive competence of the De´partement. As a consequence, the incriminated negligence had been committed in the course of a non-delegable activity, and the De´partement’s criminal liability could not be engaged. In another case,19 a municipality was prosecuted because it had not closed a dangerous ski slope, on which a deadly avalanche had then occurred. The appeal judges had discharged the municipality as they considered that closing a ski slope for safety reasons was a police prerogative of the mayor (in their role as a State authority) and, thus, that it was not delegable. The Cour de Cassation judged that, although the mayor could indeed order, as a public order measure, that a slope be closed, the municipality’s ‘exploitation’ of the skiing area—managing the operation of ski lifts, the definition of slope itineraries, the collection of fees, etc.—was a delegable activity, which included the duty to ensure the safety of skiers by closing dangerous slopes. Consequently, the municipality could be held criminally liable for that accident. Thus, depending on the situations, it may occur that a political decision-maker will be held criminally liable for a decision they took in the exercise of their mandate, although the public person they represent will not be convicted. However, the contrary may also happen, which brings us to the final part of this chapter.

V. Combination and Aggregation of Criminal Liabilities for Accidents Under Art. 121-2 of the Penal Code, the criminal liability of legal persons is a mediated liability: legal persons are liable for offences committed on their account by their organs or representatives. This means that in order for a legal person to be convicted, the constitutive elements of the offence must be committed by one or several individuals acting on its account. Moreover, the substantial field of application of Art. 121-2, in its first years, was limited: it applied only to offences for which the law expressly provided so. As a consequence, its applications in the ’90s were rare: the prosecution needed one or several natural persons to blame for the offence anyway, and thus, in most cases, it was quicker, easier and more effective to prosecute the individuals themselves.

19

Crim., case n 99-82871 of 14 March, 2000 (Bull. Crim., 2000, n 114).

Criminal Liability for Accidents in France: Is Corporate Criminal Liability. . .

407

This changed with the reforms of 10 June 2000 and 9 March 2004,20 which brought two major evolutions. First, the reform of 10 June 2000 distinguished between direct and indirect causation and established that, in cases of indirect causation, only a faute qualifie´e could make an individual incur criminal liability. However, this new scaling of fault and causation was only applicable to natural persons, whereas legal persons could still be convicted for involuntary offences, even in cases where a mere negligence indirectly caused the incriminated harm. This reflects the overall idea that corporate negligence may not be tolerated as easily as a single individual’s failings, and it also provides a good incentive for the prosecution of legal persons as their involuntary offences may in some cases be easier to prove. Second, the law of 9 March 2004 completed that evolution by erasing the words ‘where the law provides so’ from Art. 121-2 PC: corporate criminal liability of legal persons has since been applicable to all kinds of criminal offences, without the pre-requisite of separate special provisions. This does not mean that prosecutors and judges have to choose between prosecuting the legal person or the individuals who acted on its account. Article 121-2(3) provides that ‘The criminal liability of legal persons does not exclude that of any natural persons who are perpetrators or accomplices to the same act [. . .]’. Thus, depending on the situations, there will be some cases in which both the political decision-maker and the public entity will be convicted, some in which only one of them will be and some in which neither will. The political decision-maker’s criminal liability will mainly depend on the degrees of fault and causation present in the case, independently from the kind of activity in which the accident occurred, whereas, on the contrary, the legal person’s liability will be determined by the nature of the activity that led to the accident but not by the degree of fault and causation. The reform of 10 July 2000 was intended to partly decriminalise the responsibilities of public decision-makers, both by shielding them from prosecution when they did not commit a severe fault and by ensuring that responsibility for accidents could still weigh on an identified person: the legal community. However, that decriminalisation, although it was not merely symbolic, may not have been as fundamental as it seems. A few years after the reform came into force, several authors noted that the case law was still very severe with individual public decision-makers. The border between direct and indirect causation and the constitutive elements of faute de´libe´re´e and faute caracte´rise´e, in particular, were appreciated in ways that extended again the oncenarrowed range of criminal liability of natural persons.21 It seems, in conclusion, that the exact combination and aggregation of criminal liabilities sometimes depends less on the legal specificities of a case than on the Loi n 2004-204 du 9 mars 2004, portant adaptation de la justice aux e´volutions de la criminalite´ (Journal Officiel de la Re´publique Franc¸aise, 10 March 2004). 21 See L. Brunet, La responsabilite´ non intentionnelle des e´lus locaux, Actualite´ Juridique Pe´nal (AJ Pe´nal), 2006, p. 153; Mare´chal (note 5), §§ 84, 88, 90; M. Dalloz, Le mythe de la responsabilite´ pe´nale des personnes morales de droit public, in: Dalloz/Courtin (eds.), Fonctionnaires et droit pe´nal: des justiciables comme les autres?, 2015 (L’Harmattan, Paris), pp. 61-82. 20

408

G. Chetard

social and judicial need to find a proper responsible person. One might even say that such a legal construction—strict in the books yet flexible or even blurry in practice—is quite coherent with the French conception of a welfare State, where public entities do not only police and regulate but also actively participate in the daily welfare and safety of public service users—and where, as a consequence, the occurrence of a grave accident is, theoretically, necessarily linked to a malfunction of one or several public institutions. Is the French model the solution, then? One could answer that it depends on whether you consider that a lethal or grievous accident is, in itself, not only a harmful and unwanted event but also the probable result of a blameworthy negligence, which ought to be identified and repressed. Guillaume Chetard is Attache´ temporaire d’enseignement et de recherches at Universite´ de Strasbourg (France).