In a draft report PACE Legal Affairs Committee of the Council of Europe draws comparisons between the case against former Prime Minister Geir H. Haarde and Ukranian Prime Minister Yulia Timoshenko. The committee says:
“Politicians should be protected from criminal prosecution based on their political decisions, while being held to account for criminal acts or omissions – such as acting for personal gain or violating the fundamental rights of others.”
Approving a report by Pieter Omtzigt (Netherlands, EPP/CD), the committee said the ultimate judges of political decisions should be voters, and listed a number of principles for distinguishing political decision-making from criminal acts.
Former Prime Minister Geir H. Haarde in court. Photo: Geir Ólafsson/Iceland Review.
In 2010 Althingi (Iceland’s Parliament) resolved to indict former Prime Minister Geir H. Haarde for alleged misconduct or neglect of duty in relation to the events leading up to the financial crisis experienced in the autumn of 2008, involving a collapse of the three major Icelandic commercial banks. The Court was then convened for the first time. The indictment by parliament had two main parts, the first including five charges of neglect of action conducive to averting or reducing the risk of an imminent banking crisis affecting the fortunes of the State, and the second alleging a failure to comply with provisions of the Constitution regarding ministerial meetings.
In the result, the Court acquitted Mr. Haarde of the substantive charges, but found him guilty (by 9 to 6 judges) on the more formal charge of breaking the constitution by not placing the risk of a banking crisis on the agenda of formal cabinet meetings. Mr Haarde was not sanctioned, and had his legal costs reimbursed. In 2012 he brought the case before the ECtHR, where it is presently pending.
In his report Pieter Omtzigt says: “[A] new parliamentary majority in Iceland had decided to prosecute a former Prime Minister for a relatively minor violation of a formal requirement, which numerous predecessors had also violated without any of them having been prosecuted. This does raise the question of a comparison with the Ukrainian cases of former Prime Minister Yulia Timoshenko and in particular of former Interior Minister Yury Lutsenko. The former was convicted of having signed a “detrimental” treaty without proper authorisation by her Cabinet of Ministers; the latter for having signed an order whilst being on holiday and for having allowed that his driver be given the same advantages in terms of pay and housing as his predecessors’ drivers. Of course there is a very important difference with the Icelandic case, in that the two Ukrainian politicians in question were treated much more harshly – they were given long prison sentences and there are even reports of serious mistreatment in detention. But the fact remains that Mr. Geir Haarde was singled out for prosecution by his political opponents and convicted for having merely followed a long-established practice as regards the agenda of cabinet meetings.
I would say that his political mistake, if it was a mistake at all does not fall outside the perimeter of normal political decision-making and should therefore not have been subject to any other accountability than that foreseen by the rules of the “political game” – his camp losing the next election, for either not having done the right thing, or even having done the right thing and not being able to convince the voters.
To conclude, I would be rather worried that if we were to accept the precedent of the criminal prosecution and conviction of Mr. Geir Haarde, we would have to expect a wave of prosecutions against many politicians in many countries – if and when the taxpayers in the “Northern” countries of the Euro zone will be made to foot the bill for the staggering rescue packages in favour of “Southern”countries, and/or the people in the “Southern” countries realise how deep the trouble really is that they are in because of the irresponsible fiscal policies pursued for many years by their own Governments. I do not argue that our Governments should not be held to account for the consequences of these policies. But individual politicians should only be held criminally responsible if their action fell outside the scope of normal political decision-making. The latter must be judged exclusively in the “courts” of democratic elections.”
A lone dissenting opinion came for Thurídur Bachman, then a member of Althingi for the Left Green party and one of the Parliamentarians voting to impeach Haarde. In the opnion she said:
“In Mr. Omtzigt ́s Information Memorandum he seems to find it odd that a former minister was prosecuted for a minor violation of a formal requirement which his predecessors had also violated without being punished. Rules on equality have not secured anyone anytime a right to commit criminal acts. It is also at best highly debatable to talk about a formal require ment and mention in the same sentence “a minor violation”. The purpose of the constitutional duty to hold ministerial meetings to discuss important State matters is to keep all ministers informed of matters which could lead to actions on their part. In the SIC report it is for instance strongly indicated that vital information had been withheld from the Minister of Banking. When informed of the situation he had proposed actions, although we can perhaps say that he was not as decisive as he could have been.”
The Venice Commission issued a report on March 11 2013 saying that it „considers that the ability of a national constitutional system to separate and distinguish political and criminal responsibility for government ministers (past and present) is a sign of the level of democratic well - functioning and maturity as well as the respect for the rule of law. Criminal proceedings should not be used to penalise political mistakes and disagreements. Political actions by ministers should be subject to procedures for political responsibility. Criminal procedures should be reserved for criminal acts“.
The report and opinions can be found here.