Are We All Equal?: Immunity of Parliament Members and Criminal Responsibility of Cabinet Members in Greece

Are We All Equal?: Immunity of Parliament Members and Criminal Responsibility of Cabinet Members in Greece

Konstantinos Margaritis (Independent Researcher, Greece)
Copyright: © 2016 |Pages: 13
DOI: 10.4018/978-1-5225-0081-0.ch020
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Abstract

In the present paper the constitutional provisions granting a special procedure to the members of the cabinet and parliament will be examined. Their problematic aspects will be revealed and possible solutions will be proposed. In this context, the application of those provisions in practice will be underlined with the examination of specific cases as well as case law from the European Court of Human Rights. For the extent that the privileges could be justified, the principles of reasonable inequalities developed by John Rawls will be used.
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Introduction

Political trust is an essential element in the relationship between citizens and governors in representative democracies. It is a state of mind that confirms that the representative government does not exercise power for its own benefit, but for the benefit of the governed. The liberal philosopher John Locke (1764) underlined the significance of political trust by stating that “the Legislative being only a Fiduciary Power to act for certain ends, there remains still in the People a Supreme Power to remove or alter the Legislative, when they find the Legislative act contrary to the trust reposed in them” (§149). In Locke’s view, the people have the absolute right to reclaim the power vested to the government in case of betrayal of their trust on behalf of the latter. In other words political trust is essentially the basis where the government shall stand in order to rule.

But how this trust can be defined? Because of high social diversity, a common and concrete view on political trust is difficult to be achieved in modern representative democracies; nonetheless, a certain level of trust should necessarily exist in order to confirm legitimacy of the people’s representatives in the eyes of the people themselves (Tsatsos 1998). In that sense, no representation theory describing a form of legitimate government is complete without a certain account of trust (Williams 1998). Every scheme of representation shall contain a rational basis of trust in government, a set of reasons that convince people that the institutions of representation will function in order to correspond to their respective roles under the principle of the rule of law. Thus, the qualitative characteristics of trust (or its absence) may differ on the basis of diverse perceptions and approaches, but the quantitative ones can be standardized; in other words, there is a variety of reasons for which a government may be trusted or not, but whether it is (shall be) trusted or not in the first place, remains a fact.

In the case of Greece, political trust was never at a very high level. An important distinctive fact is that the country is dealing with the most severe crisis since the establishment of the 3rd Hellenic Republic in 1974. The crisis which is highlighted to the country’s public finances has tremendously affected all aspects of social and political life and eventually damaged the people’s trust in political institutions even more, reaching its lowest points during 2012 where only 9% tend to trust the Parliament, whilst the percentage of trust in the Government at the same period had reached 7% according to the EU Commission’s Standard Eurobarometer autumn wave statistical depiction (report number 78).

Furthermore, a fundamental factor that determines the level of trust is the sense of equality within society (Levi & Stoker 2000). The concept of equality is strictly related with justice and vice versa; as Thomas Pogge argues “it is uncontroversial today that there is an important sphere of social regulation in which justice requires strictly equal treatment” and further accepts that domains of that sphere includes, among others, punishment (2011). As has been aptly pointed out, when people are discriminated or obtain fewer chances, the notion of trust is reduced (Uslaner 2002, Rothstein & Uslaner 2005). This reduction is apparent at a higher level when related to the administration of justice, a situation which consequently leads to instability within society.

Given the above mentioned, the case of delivering justice to the representatives of the people is an interesting one since it demonstrates the application of an institution that in principle requires equality to people who are vested political power. It is included in the highest legal norm, the Constitution; articles 62 and 86 describe the respective processes. As will be analyzed in the following chapters, the current criminal procedure for cabinet and parliament members in Greece contains a very specific, highly protective process that ends up being totally uneven; as a result, a sense of unfairness as the perception that ministers remain unpunished is widespread; even worse, it tends to become a certainty (Giannaras 2014). On the other hand, the significance of the role of cabinet and parliament members in the functioning of the State is beyond dispute. This important role may lead to a certain amount of privileges regarding criminal responsibility; however, the main question remains: to what extent? For determining this parameter, the principles of reasonable inequalities developed by John Rawls will be used.

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