Interest has shifted in two directions following the Anti-Corruption Authority’s announcements on the findings of its investigators regarding Makarios Drousiotis’ book Mafia State. The first concerns the team of independent criminal investigators expected to be appointed by the Council of Ministers, and the second the actions to be taken within the framework of a particularly complex and unusual criminal investigation, mainly due to the individuals involved and the positions they held.
Stavros Demetriou, lecturer in Criminal Law and Criminal Procedure at the University of Cyprus, spoke to Politis about the process to be followed and answered questions regarding legal concepts widely discussed in recent days.
Next steps after the report
After the Anti-Corruption Authority’s report on Mafia State, the Council of Ministers announced its intention to appoint independent criminal investigators. What are the next steps?
Initially, the terms of reference given to the independent investigators by the Council of Ministers must be examined. In any case, the investigators will need to carefully study both the Authority’s report and the evidence collected so far in order to determine the course of the investigation.
Complexity of the investigation
How complex might a criminal investigation be, given the individuals named and the institutional roles they held?
This is undoubtedly a case with several particularities. One key characteristic is the status of the individuals named at the relevant time. However, the complexity of the case lies, at least based on the Authority’s announcement, in the fact that the alleged offences rely to a very large extent on circumstantial rather than direct evidence.
Another important factor is that the alleged offences appear to have been committed several years ago, which may complicate the investigative process.
Balance of probabilities vs beyond reasonable doubt
Much has been said about the balance of probabilities and proof beyond reasonable doubt. What do these terms mean for the public?
Under the relevant legislation, if after an investigation the Authority considers that an offence of corruption may have been committed, it must prepare a report and submit it to the attorney general. At first glance, the evidential threshold required by law is relatively low.
In this case, however, as noted in the Authority’s announcement, it chose to assess whether offences were committed on the basis of the balance of probabilities. This standard is typically used in civil cases. In simple terms, it means assessing whether a claim is more likely to be true than not.
If criminal prosecutions are ultimately brought, the prosecuting authority will bear the burden of proving beyond reasonable doubt every element of the offences. This is a much higher standard. Case law states that if even the slightest doubt remains in the mind of the court, the accused must be acquitted.
It is also a fundamental principle that a criminal court cannot rely on speculation, however reasonable. Therefore, the fact that the Authority concluded, on the balance of probabilities, that offences may have been committed does not necessarily mean that those offences are proven beyond reasonable doubt.
Scope of the criminal investigation
What is the significance of the findings of such a report in a criminal investigation? Will only the named individuals and offences be examined?
The Authority’s announcement is limited to corruption offences that may have been committed by politically exposed persons on the balance of probabilities. However, it is possible that both the report and the investigation may reveal additional offences, either involving individuals already named or others.
Moreover, according to the Prosecution Council’s announcement, the report and evidence were forwarded to the Police with instructions to conduct a broad criminal investigation covering any potential offences that may arise.
Powers of the Anti-Corruption Authority
What is your view on the role and powers of the Anti-Corruption Authority? Should it have investigative powers?
Whether the Authority should have investigative powers was extensively debated during the legislative process. I believe such powers should have been granted, as they would allow for faster, deeper and more effective investigations into corruption.
In any case, this case presents an opportunity for a comprehensive review of the Authority’s powers and operations, with a view to addressing any gaps through legislative reform.
Recusal of Attorney General and Deputy
The case has also raised issues of conflict of interest. Does the recusal of the attorney general and deputy resolve the issue?
The recusal of both officials makes this case particularly unusual. In my view, under the circumstances, the decision was correct in order to ensure objectivity and impartiality, and to protect the credibility of the institution.
Whether a formal procedure should be established for similar cases is an issue that requires careful examination and must be consistent with the Constitution.
Presidential immunity
The issue of presidential immunity was widely discussed. Do former presidents enjoy immunity under Article 45 of the Constitution?
I believe Article 45 does not provide immunity from criminal prosecution for former presidents. It explicitly states that immunity applies only while the president holds office.
It should also be noted that this protection is not absolute. Under certain conditions, criminal proceedings may be initiated even while a president is in office. Article 45(5) provides that after leaving office, a former president may be prosecuted for offences committed in the exercise of their duties.
Therefore, even if immunity cannot be lifted while a president is in office because the alleged offence does not fall within the specified exceptions, there remains the possibility of criminal prosecution after they leave office.
