At the end of last year, Finance Minister Miroslav Kalousek (TOP 09) announced with great fanfare that he intended to launch legal proceedings against former Prime Minister Miloš Zeman and ministers in his government (1998–2002), along with then Czech National Bank (ČNB) governor Josef Tošovský and the legal administrator of the Investiční a Poštovní banka (IPB) Petr Staňek. But Kalousek’s ministry is at a loss as to when such proceedings may begin.
Kalousek reportedly intends to initiate the legal proceedings on the basis of the decree approved by Zeman’s cabinet, which paved the way for the ČSOB bank to purchase IPB from the administrator with unlimited guarantees from the state in 2000. Having voted against the decree, then-Minister of Industry and trade Miroslav Grégor would be exempt from the legal case.‘During the sale of the bank, the amount of the state’s guarantee was not revealed. ... There was no justification to sell the bank, which had been cleared of its obligations, for one crown.’
“During the sale of the bank, the amount of the state’s guarantee was not revealed, and therefore there was no justification to sell the bank, which had been cleared of its obligations, for one crown,” Kalousek said of the grounds upon which Tošovský and Staňek should be brought to account.
When Czech Position asked the Finance Ministry whether the legal complaint had been filed, now some three weeks following Kalousek’s announcement, spokesman Ondřej Jakob said the ministry’s team of lawyers was still preparing its case , but the complaintshould be ready “in the foreseeable future.” He declined to comment on what arguments the ministry intends to present in its complaint to the police.
For the time being, therefore, it’s only possible to speculate as to how the legal complaint will be formulated — or whether there will be several. Nevertheless, lawyers questioned by Czech Position agree on one thing: A criminal complaint against a government as a whole (even exempting one minister), has no chance of success, nor can individual members be brought to account for how they voted. According to the Constitution, the government takes decisions as a collective and as a unit is not legally accountable for its decisions.
Jury still out, but verdict seems clear
Vlad Petrus from the law firm Clifford Chance says the ministry’s initiative will depend on which criminal act, or acts, its case will be founded. “There can be a whole range of acts many of which in essence may not necessarily be considered to be within the actual decision of the government, but as actions by individual members of the government,” Petrus said. “For example, taking part in secret negotiations outside government meetings without its knowledge and at which the procedure for the transfer of IPB was agreed, could under certain circumstances form the grounds for criminal prosecutions if it is ascertained that there is a connection between those negotiations and [financial] damage incurred by the state.”
Petra Buzková, minister of education in the last Social Democrat (ČSSD) government and now a partner in the law firm Vyroubal Krajhanzl Školout, expressed a similar view. It will depend in what spirit the legal complaint is formulated and “whether it’s about a matter decided by the government or steps by individuals, which aren’t necessarily dependent on the government’s resolution. … Certainly nobody should be charged for how they voted within the government,” Buzková said. In a country like the Czech Republic there’s generally a very dangerous tendency to criminalize everything possible.
Karel Havlíček, lawyer and editor-in-chief of the legal journal “Soudce” (Judge) draws attention to another aspect: In Italy, for example, the Constitutional Court has partly limited the immunity of Prime Minister Silvia Berlusconi, and this indicates that constitutional immunity of ministers is not necessarily insurmountable.
“On the other hand, in a country like the Czech Republic there’s generally a very dangerous tendency to criminalize everything possible under the premise: ‘let the police investigate, the state prosecutor prosecute and let the court decide.’ In my opinion, the number of criminal complaints being brought by anyone against anyone in has breached all acceptable limits,” Havlíček said.
According to Havlíček, the principle that criminal law is the most extreme measure for resolving social situations is not much observed in the Czech Republic at present. To the contrary, it seems that lodging a criminal complaint is viewed as a further option for implementing one’s interests not only by politicians, PR agencies and lobbyists, but also by individuals. This, Havlíček said, is due to the fact that with a criminal complaint one is not legally obliged to prove one’s claims, which is not the case in a civil prosecution.
Due to the time lapse since the sale of the IPB and also due to the legal complexities of the affair, there is much skepticism that Kalousek’s criminal complaint will lead to anything and the minister is undoubtedly aware of this. Unless his resort has at its disposal as-yet-unseen information indicating that illegal acts were committed by the actors in the highly complex IPB affair, the ministry’s criminal complaint will amount to nothing more than a standard Czech political move with absolutely no result.
