Direct prosecution of political figures in the OPEKEPE case is impossible, bypassing Article 86 of the Constitution “On Ministerial Responsibility” through the supremacy of EU Law, clarified Ioanna Mandrou on “Parapolitika 90.1” radio show “Apenanti Mikrofona” with Vasilis Skouris and Sotiris Xenakis.
Specifically, when asked whether “ministers can be directly prosecuted and Article 86 of the Constitution can be overridden,” Ioanna Mandrou responded that “this is a debate that has opened up. There are some constitutional scholars at both political and constitutional levels who support this. I would say, without taking a personal position, that the majority opinion of scholars both within and outside the European Union excludes this possibility. Why does it exclude it? It excludes it, and I will invoke the legal position of Evangelos Venizelos as an example, because the European Public Prosecutor’s regulation has a clear exception for constitutional order matters of member states.” Regarding the counterargument about private universities, where European Law prevailed over the Constitution despite constitutional provisions, Ioanna Mandrou commented that even in such a case, Article 86 still couldn’t be overridden, as there are no EU provisions concerning ministerial responsibility that could take precedence. “EU law prevails where EU provisions exist; here, regarding ministerial responsibility, there are no EU provisions to prevail,” she emphasized, commenting that “this ongoing discussion lacks serious legal foundation and completely excludes the possibility of the European Public Prosecutor moving at such an anti-institutional level.”
The reason Article 86 is unlikely to be overridden, according to Ioanna Mandrou, is “first, that the European Public Prosecutor regulation has an exception for national legislation in criminal law matters. And second, there are no EU provisions to prevail.”
But why does this discussion arise? “It arises primarily at a political level because there are many political voices raising the issue of revising Article 86, which was recently raised by PASOK president Mr. Androulakis, who even called for political consensus saying ‘Let’s come together and revise it.’ Beyond that, there are some, like MEP Mr. Farantouris, who recently held an event at the European Parliament, in the presence of Greek constitutional scholars like Mr. Drosos, who raise this issue about Article 86 being bypassed by the European Public Prosecutor. You might ask, ‘Where did this discussion come from?’ It came from the fact that Laura Codruta Kovesi, repeatedly and when she came to Greece, raised the Article 86 issue. What did she say? That your constitution, as it stands, prevents us. Change it. She didn’t say ‘I will violate it.'”
Regarding the renewal of Popi Papandreou’s term, Ioanna Mandrou answered: “The Supreme Court, like other European states, because we’re not alone in this standoff, which is a very tough standoff and we don’t know what its outcome will be, are reacting to the renewal of prosecutors made by Laura Codruta Kovesi and saying that just as we propose who you should take, we will also decide who you should renew. Because these changes, these renewals weren’t made only for Greece, they were made for about ten European countries: France, Spain, Italy, Luxembourg, Belgium, Malta, etc. But the one reacting most strongly is Italy, where the European Public Prosecutor renewed 14 prosecutors, and France and Spain are also reacting, which represents a clash of competencies between the national state that doesn’t want to lose this authority and a new European institution trying to extend its reach and strengthen itself.”
For its part, “the Supreme Court opened the procedure provided by law, to put it simply, and announced these three positions. That is, it didn’t consider the renewals as given facts, it announced the positions and said ‘whoever is interested, come submit your candidacy and we’ll evaluate you.’ Who evaluates this? It’s evaluated by the 15-member Supreme Judicial Council at the Supreme Court, which is drawn by lot each year from supreme judicial officials, and we’ll know this result in June. We don’t know if these renewals will be confirmed or not, or if two of the three will be confirmed and one will be cut, or if all three will be confirmed, or if they’ll appoint new, different ones.”
