The new Greek public broadcaster: A story of crime and (non) punishment

By Kostas Efimeros

In the summer of 2013 the Greek public broadcaster ERT was shut down by the government in a sudden and much criticised move. This, according to the government, was done in order to meet targets imposed by the country’s lenders for layoffs of public employees, and reduce the operating costs of the broadcaster. The government pledged that a new state broadcaster called NERIT would be established and some of the employees re-hired, with the rest paid severance fees. As a stop-gap measure it established 'Public Television' (Dimosia Tileorasi or DT). The laid off workers of ERT continued to occupy the main broadcasting facility in Athens until October when they were evicted during an early morning raid by riot police.

Since the dissolution of ERT, DT has become the only state broadcaster while NERIT, originally slated to begin broadcasting in October remains little more than a board of directors.

Whereas in July the government had responded to the howls of outrage with a promise to usher in a bold new era with a more efficient and modern public broadcaster, several months on there are still numerous problems. Few of the laid off workers have been rehired whereas severance payments have yet to be made. Furthermore the government appears to have tripped itself up with its hasty move and either through corruption or incompetence appears unable to move ahead without engaging in legally dubious practices.

For example the ERT shutdown was achieved via a Legislative Act, i.e. a special law passed in urgence without the prior vote of the parliament.  All Legislative Acts have to be voted by the parliament a maximum of 40 days after their enactment, otherwise they are automatically null and void. What is shocking is that the government until today has not submitted the ERT act to parliament, six months after the shutdown.

The immunity trick
Several days ago an article was included a last minute modification to a draft property tax law currently being debated in parliament, stating that “the special administrator [of the public broadcaster] is not subject to criminal, civil or other liability to third parties for actions or omissions regarding his special administration.” In other words the government, in totally unrelated legislation, appears to be trying to pass an amendment that would absolve the administrator of any legal wrongdoing – a tacit admission that laws may have been broken by the new public broadcaster.

The legal context
Greece has incorporated into national law the European Directive 2004/18/EC for the award of public contracts. Accordingly public contracts worth up to €60,000 are awarded following a simple open tender, contracts worth up to €233,000 are awarded following an open tender with at least a month-long period for the submission of proposals, whereas larger contracts are awarded following an international tender with at least 52 days for the submission of proposals and obligatory publication of the tender on the official Europa website of the European Union. Finally every contract awarded over €1m, must be filed for audit with the Court of Audit before it is signed and executed.

The laws governing public contracts can only be exempted when (Law 2286/95, paragraph 2) “for reasons of urgent need due to self-evidently unforeseen circumstances, it is impossible for the timeframes provided for by the relevant legislation to be adhered to.” This provision allows for contracts to be awarded directly in times of natural emergency, such as after natural disasters. But what legal mind could maintain before a judge that the government’s decision to close the public broadcasting company amounted to ‘a self-evidently unforeseen circumstance’?

Furthermore it is worth mentioning that all public bodies are obliged to post on the ‘Diavgeia’ government transparency web portal any administrative act, “promptly, i.e. as soon as possible and without unnecessary delay” in order for it to apply.

So lets look at some of the acts that the government is trying to cover for by introducing legislation that would protect Gikas Manalis from prosecution.

Saved by the private media barons
In July 2013, DT was in urgent need to begin broadcasting in order to comply with the Supreme Court ruling that permitted the ERT shutdown under the condition that the new interim channel (DT) would begin broadcasting imminently. In desperation, the government resorted to its ‘friends’, the private media barons, who were already profiting from the absence of a public broadcaster.
TVE, a company, controlled by Mr Bobolas and Mr Psicharis, two of the most powerful businessmen in the country, provided for the transmission of a TV signal for 8 days in July 2013. Politically, the move was highly controversial. But from a legal point of view, it was plainly illegal.
On the 5th of November 2013 the decision BL1OH-Y4H was publicised on Diavgeia according to which the state was to pay €155,000 to TVE for the services provided. For this there should have been an open tender with a 30 day window for the submission of proposals. Furthermore, no decision for the contract’s award was ever published on Diavgeia, only the administrative act approving the payment, which does not cite any exemption from public procurement legislation.

The Expensive Broadcast
On the 5th of November 2013 decision ADA BL1OH-ORP is also publicised according to which a payment of €468,000 is approved for the leasing of a broadcast control system for a three month period from the company “Emmanouil Evaggelopoulos & Co.” To purchase, this system costs, €80,000 at most (together with a back up system). In any case for this amount there should have been an international tender advertised on the Europa website. Neither In this case was there the required publication of the administrative decision to award the contract, only of the decision for the payment to be made. Nor was any reason for exemption from public procurement laws given, nor reference to “unforeseen circumstances.”

The missing 5.4 million euros
In 2011 ERT signed a contract for the broadcasting rights of the Champions League. But when ERT was liquidated, what happened to the contract? Public Television (DT) started in broadcasting matches in August, meaning “someone” must have paid the  €5.4 mln remaining on the old contract and a new contract must have been signed with the holder of the rights. However, until today, there is no visible trace of the contract nor the payment, contrary to what the law demands. The “new” contract has not been submitted to the Court of Audit nor it has been recorded in the Diavgeia database.

On Diavgeia we have also been unable to find a decision regarding the provision from DIGEA of digital encoding services and multiplexing for DT for a period of at least 5 months. The company has admitted to providing these services in a press release. It may be that the shareholders of DIGEA (again, the media barons, including the ones already mentioned) provided these services for free overwhelmed by a sudden spasm of generosity. Even if this was the case however, the acceptance of such a ‘gift’ should also have been publicised.

Penal and Civil Liability
The above are only a few examples of the many that have come to light. We won’t deal here with other aspects of the case, such as Venizelos’s plan for re-hirings which never happened, or the severance packages for ERT’s employees which were never paid leaving them facing financial ruin. What concerns us here is the systematic infringement of the law which in another country, in another time, could lead to criminal charges and Gikas Manalis being sent to jail.

Furthermore we are concerned with the responsibilities of the political head to whom the DT special administrator answers: finance minister Yannis Stournaras, and the responsibilities  of the deputy minister for public television Pantelis Kapsis who is responsible for NERIT.

The inclusion of an article in totally unrelated draft legislation granting Mr Gkikas amnesty for any improper dealings committed during his tenure at the public broadcaster amounts to a direct admission of illegality over the handling and operation of the DT construct and NERIT (which you couldn’t actually say is operating given that it was supposed to be ready in October but today has little more than a board of directors).

Who will go to jail?
Maybe the justice system should move quickly and indict those responsible before the law is passed in the coming days? Might this send the message that the legislative branch should not interfere with the judiciary?

Maybe European officials should act over the lack of implementation of the Directive governing public procurement procedures?

We return to the question: Who will go to jail? The answer is nobody, so long as our institutions remain dysfunctional thanks to the arrogance of those that run them, and to our tolerance.