May 7 2015

The Golden Dawn trial is a legitimate criminal case, not political persecution

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By Emmanuel Melissaris

The trial of several members of the Greek political party Golden Dawn is set to resume on 7 May, with charges ranging from murder to participation in a criminal organisation.Emmanuel Melissaris writes on the legality of the trial and the accusation that it amounts to little more than the political persecution of the party. He argues that despite Golden Dawn’s protestations, from a legal perspective the trial is a legitimate criminal prosecution.

The trial of Golden Dawn members began in Athens on 20 April in tumultuous fashion with Golden Dawn supporters assaulting and injuring witnesses for the prosecution and a mainstream daily newspaperpublicising witnesses’ details. The trial was adjourned on procedural grounds (one of the defendants appeared without legal representation and the court had to appoint an advocate) and it resumes on 7 May.

Of the 69 defendants, many are charged as principal offenders or direct accomplices in a wide range of extremely serious crimes including murder, attempted murder, and serious assaults. The party leader as well as his close circle of high-ranking officials (including MPs) have been charged on the basis of Art.187 of the Greek Penal Code, which makes it a freestanding offence to set up or join and be a member of a long-term, structured criminal organisation of three or more members, which pursues the commission of a range of serious crimes.

This is a type of preparatory offence targeting the abstract endangerment of the public order by criminal organisations of the type that the article describes. It is therefore distinct from any type of complicity, i.e. the defendant participating in one way or another in the commission of the crime by the principal offender.

Golden Dawn supporters and sympathisers complain that this is not a prosecution for criminal offences but rather a political persecution. Two main arguments seem to be presented in support of this claim. First, that the law is applied abusively and, secondly, that the Art.187 charges amount to persecuting Golden Dawn members for their political beliefs. Neither argument stands up to scrutiny.

Is the Golden Dawn prosecution an abuse of the law?

A point of law that has been raised and is likely to be contested again in court is whether Art.187 applies to the facts of the case at all. The Act of Parliament (2928/2001) that amended Art.187 incorporated in domestic law the Palermo United Nations Convention against Transnational Organized Crime. The Palermo Convention targets financial crime specifically and it requires that the criminal group aim at committing serious crimes “in order to obtain, directly or indirectly, a financial or other material benefit”. One of the members of the judicial council, which issued the indictment against Golden Dawn, dissented on the grounds that Art.187 should be construed by reading in the financial benefit requirement. A corollary argument is that international law enjoys superiority over domestic law.

This interpretation of the law is unfounded. The letter of the law itself does not include the benefit requirement. This is not an oversight on the part of the drafters. According to its title the Act aims at “protecting citizens from culpable acts of criminal organisations” and the ministerial introductory report explicitly states that the scope of the Act is wider than that of the Palermo Convention because the basic demerit lies in the pursuit of the commission of serious offences and the risks that this poses and not in the ulterior motive of making financial gain.

Now, one might argue that despite this unequivocally expressed legislative intent, Art.187 suffers from substantive problems because preparation offences, which amount to criminalising little more than thoughts and communications, are an affront to individuals’ autonomy. There may be some philosophical merit to this argument but, in order for it to have any bearing in legal practice, it must have some foothold in law. In Greek law, this would be expressed as an unconstitutionality objection. It is impossible to go into the details of the issue here but I do not see any grounds on which Art.187 is in violation of any constitutional principle or right.

Finally, it is hard to see why the argument from the superiority of the Palermo Convention as a source of law over domestic legislation would come into the picture at all. Art.187 is not in contravention of the Palermo Convention; it incorporates it in domestic law, thus discharging Greece’s duty to do so, but also goes further, which is entirely within the powers of the domestic legislator.

Are Golden Dawn members persecuted for their political beliefs?

Golden Dawn is a neo-Nazi party. They do not call themselves ‘Nazi’ but only because they consider the term historically specific to 1930s Germany. Neither do they call themselves National Socialist (which is nothing but the longer version of ‘Nazi’) any longer; they have rebranded themselves as simply ‘nationalist’. This makes no substantive difference though, because their ‘nationalism’ refers to the same construction of the idea of Greece that animated the Nazi party. Labels aside, their theoretical foundations as well as their practices are brimming with racist (including fervent anti-Semitic) theses, claims about ethnic purity and a number of other positions echoing National Socialism.

Despite its ideological platform, Golden Dawn enjoys full legal recognition in Greek law as a political party and is in fact represented in Parliament after having seen a surge in electoral popularity over the past five years. The objection raised by Golden Dawn supporters is that criminal law is used as a way of side-stepping the constitutional recognition of the party and effectively outlawing it because of its political theses.

Political parties enjoy legal protection against their forceful dissolution even when they explicitly pursue the peaceful abolition of the political regime. They are not, however, afforded absolute protection. In this respect Greek law departs from German law, which explicitly excludes political parties from the scope of§129 StGB, after which Art.187 was largely modelled. There is therefore no legal obstacle in prosecuting a political party should it operate as a criminal organisation.

The next question is whether there is a freestanding criminal law reason for prosecuting Golden Dawn members and holding them accountable as members of a criminal organisation. Much depends on the construction of Art.187 and, in particular, the mens rea requirement of pursuing the commission of serious crimes. This is not the intention to commit a specific crime (such cases are governed by other criminal laws) nor is it required that each member of the group intend to participate in the commission of future offences in a way which would have been independently culpable (as a principal offender or an accomplice).

According to the Supreme Civil and Criminal Court (the Areios Pagos), it is required that each member subjects her or his will to the group. Therefore, the intention to pursue serious crimes consists of a general manifest preparedness that the crimes be committed. This reading is corroborated by the nature of the offence as one of abstract endangerment of the public order. The practical upshot of this is that even if the party leader and his close circle try to wash their hands of the crimes actually committed by party members lower down in the hierarchy – and they have indeed been trying to do so from the outset, hanging out to dry those prosecuted as principal offenders or accomplices to the crimes actually committed – they are not inculpated in relation to their participation in the criminal group.

In terms of the evidence required, this preparedness can be inferred from the endorsement of declarations of the group, participation in its military structure and military-style training camps and so forth. While it is not possible to go into fact-finding issues here, there nevertheless seems to be an abundance of well-documented evidence in that direction.

Therefore, the complaint that the prosecution amounts to a persecution for political beliefs is unsubstantiated. Golden Dawn members have properly been prosecuted as members of a criminal organisation, which pursued a gamut of very serious crimes.

A political dimension

Although, as has been demonstrated, the Golden Dawn prosecution is exclusively a criminal law issue and not a political persecution, there is of course a political dimension to the matter. Golden Dawn has never shied away from the view that democracy and most institutions of the constitutional state should be abolished. They have also openly advocated ethnic purity and the evacuation of foreigners from Greek territory. Realising this kind of programme would entail actions that fall foul of legality. The abolition of democracy is, necessarily, always violent.

But one does not have to go this far and develop a complex philosophical argument regarding legitimacy, democracy and violence. Golden Dawn’s manifesto is premised, at the very least, on a priori denying certain parts of the population, both citizens and not, the right to be members of civil society and the political community. This exclusion is not only theoretical. It is necessarily manifested as the preparedness to exercise violence in order to physically exclude these segments of the population from the public sphere altogether. Therefore, Golden Dawn developed into a criminal organisation meeting the Art.187 description not because some of its members went rogue (this will be a line that they might use for the party to survive the conviction of its key officials) but because of its ideological foundations.

The legal order is based on the recognition of everyone as bearers of rights. Subjecting Golden Dawn to penal censure as a criminal organisation – which is, to repeat, independently justified as a matter of criminal law – is an indirect but firm institutional disapprobation of its undemocratic, violent disposition. It reaffirms the political community’s commitment to democracy and the unequivocal rejection of Nazism and other similar ideological platforms.

Note: This article was originally published on the EUROPP – European Politics and Policy Blog.  It gives the views of the author, and not the position of Greece@LSE  nor the London School of Economics.

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About the author

Emmanuel Melissaris – LSE
Emmanuel Melissaris is an Associate Professor of law at the Law Department, London School of Economics. He specialises in legal and political philosophy and criminal law. He tweets @EMelissaris

 

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May 5 2015

The victory of Mustafa Akıncı in northern Cyprus gives hope to Turkish Cypriots of a better future

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Northern Cyprus held the second round of its presidential election on 26 April, with Mustafa Akıncı defeating the incumbent President, Derviş Eroğlu. Rebecca Bryant writes on what the result of the election might mean for the people of northern Cyprus and future negotiations with the Greek Cypriot-controlled Republic of Cyprus. She notes that while Akıncı’s victory has been met with euphoria on both sides of the island, all indications are that he will not only work toward a federation, but will also seek to defend the interests of Turkish Cypriots. Continue reading

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Mar 27 2015

Greek political culture has changed beyond recognition since the crisis began

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gerasimoskaroulasSupport for individual political parties has changed substantially since the start of the crisis in Greece, with Syriza emerging as the largest party in the 2015 elections, while other parties, such as Pasok, have lost most of their support. But beyond the electoral success of parties, what effect has the crisis had on wider political culture within Greece? Gerasimos Karoulas writes that the crisis has also had a profound effect on the types of individuals holding political power. Time will tell, however, whether this change in the composition of the parliament and government will also lead to long-term policy changes. Continue reading

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Mar 27 2015

Both Greece and its creditors must compromise to prevent the risk of a Grexit

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codognolorenzoPaul-de-Grauwe-80x1081Greece and its creditors have been engaged in a two-month standoff over the release of further financial assistance to the country. Lorenzo Codogno and Paul De Grauwe write that with no agreement yet reached, the possibility of Greece leaving the euro has now become real. They argue that the only solution to the crisis is for both sides to compromise, with the Greek government accepting deep supply-side reforms, and Eurozone policymakers offering Greece a fair deal on the demand-side. Continue reading

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Mar 27 2015

Policing the Crisis: the Other Side of the Story

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Rosa Vasilaki3By Rosa Vasilaki

The paper looked at the views and experiences of police officers during the years of the recent economic and political crisis. The story of the protesters and those who have been resisting the austerity measures in Greece is well documented, however, the story of those who have been tasked to reinforce – via repression – the austerity reforms, remains to be told. Continue reading

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Mar 3 2015

How to study the crisis anthropologically? Theoretical and methodological puzzles

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d-theodossopoulosDr Dimitrios Theodossopoulos is Reader in Social Anthropology, University of Kent. On February 17th 2015, Dr Theodossopoulos gave a seminar at the Hellenic Observatory, titled ‘Everyday Strategies against Austerity in Greece: the View from Anthropology‘ (find more details here). Read below a summary of the presentation.

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Feb 26 2015

How can the radical left and far-right work together in Greece?

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Eleni Xiarchogiannopoulou_profile pictureBy Eleni Xiarchogiannopoulou

The victory of the radically left Syriza in the Greek election is a historical moment for the country. It is the first time since the modern Greek state was founded in 1832 that a left-wing party will govern. It’s also the first time that traditional political families will not participate in the government.

But Syriza secured only 149 out of the 151 seats it needed to win an absolute majority in parliament and has decided to form a government with Independent Greeks. This is a right-wing party that believes in nationalism and strict immigration controls. It came in sixth place in the election with 4.75% of the vote and 13 parliamentary seats.

While the partnership might seem an unlikely one, the potential for a coalition bringing together Syriza and Independent Greeks has been cultivated ever since the latter was established in 2012 in reaction to the terms set for the Greek bailout. Continue reading

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Feb 20 2015

Greek elections 2015: the beginning of the end or the end of the beginning?

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By Sotirios Zartaloudis

SYRIZA’s recent electoral victory attracted global attention. This commentary will try to explain SYRIZA’s surprise move to form a coalition government with the far-right party ANEL arguing that both parties share a worldview that explains their co-operation.  Continue reading

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Feb 19 2015

Syriza’s choice: the coalition government in Greece from a different perspective

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By Rosa Vasilaki

Rosa-Vasilaki3

Three weeks in office the coalition government in Greece appears to be dominating the headlines across Europe. No other government was asked to prove itself so early – practically from day one – and no other government enjoyed such impressive levels of public support and trust, as the recent polls demonstrate. This does not mean that Greeks have turned Marxists over night, but if anything, it reveals the immense level of discontent with the austerity policies followed by the previous government along with a certain willingness to try what a Left governance may look like. Naturally, economic matters have been the centre of attention pre and post elections, however, there are political as well as symbolic developments stemming from the nature of the coalition government, which have so far been overlooked. Continue reading

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Feb 19 2015

Greece’s U-turn in negotiations signifies a new era in Syriza’s internal politics

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Eleni Xiarchogiannopoulou_profile pictureBy Eleni Xiarchogiannopoulou

Ever since Syriza came in power the interplay between the intergovernmentalist and supranationalist dimensions of EU politics is present. For the European Commission the rise of Syriza represented an opportunity to regain the political influence it had lost since the beginning of the crisis. On the day of the elections and in line with the spirit of Syriza’s pro-growth/anti-austerity discourse, the Commissioner for Economic and Financial Affairs, Pierre Moscovici stated that the Commission wants Greece to be able to pay its debt and ‘to stay on its feet, creating jobs and growth, reducing inequality’. Continue reading

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