The Criminal Justice System of
Dionysios Spinellis and
Calliope D. Spinellis
[Editor's Note: The following article, contributed by
its authors was published originally as part of a series of papers describing
European criminal justice systems. The
series was published by the European Institute for Crime Prevention and
Control, affiliated with the United Nations (HEUNI) published online at the
Website http://www.heuni.fi/12543.htm.
A treasury of articles pertaining to criminal justice systems from
In Criminology: A Global Perspective, we
characterize
1.
Age of criminal responsibility or liability: 18th birthday (esp. page 7).
2.
Many amendments in the basic law concerning drugs (law
1729/1987) in particular in the area of sanctions and conditions for parole,
which are now more severe than before e.g. with respect to drug traffickers
(p.9).
3.
In the substantive criminal law and the Penal Code a
number of important additions and amendments took place. E.g. (a) a new special
penal law “on the fight against trafficking of human beings, of crimes against
sexual freedom, child pornography and generally the economic exploitation of
sexual life and assistance to victims of these crimes” has been enacted: Law
3064/2002 – see also below under 4 - , and (b) all the provisions concerning
juvenile offenders have been amended substantially; for example, the age of
jurisdiction of the juvenile court is now the 8th birthday (instead
of 7), the age that a person may be, in exceptional cases, held responsible for
his/her act is now the 13th birthday (instead of 12) and the age of
full criminal liability is the 18th birthday (instead of 17) (especially
p.9 and 11).
4.
The Greek Code of Penal Procedure has also been
amended. In particular, the new art. 253A should be noted. This provision
refers to special investigative activities under strict conditions and with
special order of the public prosecutor (e.g., controlled delivery, police
undercover activities, special surveillance with CCTV and other technical
devices, cross-reference to personal data etc.,), in the case of criminal
organizations or organized crime. The Greek law is thus harmonized with the UN
Palermo Convention and its Protocols. (p. 10,18,19, 27 etc.,)
5.
For the victim
assistance see above under 3(a).(p.33-35.
6.
The community service has been introduced both for
adults and minors (p.38)
7.
The prison population on
8.
As of 1999 a new Code of Corrections and as of 2003
New Prison Regulations are in force.]
PREFACE
Until the 80’s
The Greek criminal justice
system was adjusted to a situation of a rather homogeneous, «Gemeinschaft»-type
society, with informal social control pressures functioning effectively. The
surplus of Greek working force would emigrate to other European countries or to
countries of other parts of the globe, creating the Greeks of the diaspora.
Fifteen years later, the
urbanisation, industrialisation and modernisation processes as well as the
influx of foreign – many of them clandestine
– workers altered both quantitatively and qualitatively the crime
picture. The criminal justice system could not and did not adjust to the
incoming changes immediately. Thus, human and technical resources and the modi operandi of police, members of the
judiciary and the correction administration are lagging behind.
On
The Government has responded to the
1994 report and to the emerging new crime situation by adopting a mild
European-oriented crime policy without, however, allocating the necessary funds
in order to materialize it. The pages, which follow attempt to place in a nutshell
the description of the contemporary Greek criminal justice system and depict
some of the most important changes that it underwent during the last fifteen
years.
Prof.
Dr. Dionysios Spinellis
Prof. Dr. Calliope D. Spinellis
Criminal Law and
Procedure
Criminology and Penology
Law Faculty,
Director, Center for Penal and
Law Faculty
Art. or art. Article
Arts. or arts. Articles
BIEC Body for the Investigation of Economic
Crime
CBRTD Code of Basic Rules for the Treatment of
Detainees
CPP Code of Penal Procedure
EL.AS Elliniki Astynomia (Hellenic Police)
EU European Union
OAED Organization for the Employment of Labor
Force
PC Penal Code
Paras or paras. Paragraphs
P.p. or p.p. Public prosecutor
P.ps or p.ps Public prosecutors
PREFACE 1
ABBREVIATIONS 3
1. DEMOGRAPHIC ISSUES 5
2. SUBSTANTIVE CRIMINAL LAW
STATUTES 7
3. PROCEDURAL LAW STATUTES 8
4. THE COURT SYSTEM AND THE
ENFORCEMENT OF
CRIMINAL JUSTICE 9
5. THE FUNDAMENTAL PRINCIPLES
OF CRIMINAL LAW
AND PROCEDURE 9
6. THE ORGANISATION OF THE
INVESTIGATION AND
CRIMINAL PROCEDURE 13
6.1. General issues 16
6.2. Special issues 14
6.3. The organization of detection
and investigation 19
6.4. The organization of the
prosecution authority 20
6.5. The organization of the courts 21
6.6. The Bar and legal counsel 23
6.7.
The position of the victim 24
7.
SENTENCING AND THE SYSTEM OF SANCTIONS 25
8.
CONDITIONAL AND/OR SUSPENDED SENTENCE AND
PROBATION 28
9.
THE PRISON SYSTEM AND THE AFTER-CARE OF PRISONERS 30
9.1. Organization of the prison
system 30
9.2. Conditional release (parole),
pardon and after-care 36
10.
PLANS FOR REFORM 37
11.
STATISTICS AND RESEARCH RESULTS ON CRIME AND
CRIMINAL JUSTICE 39
12.
SELECTED BIBLIOGRAPHY 45
1. DEMOGRAPHIC
ISSUES
1.1.
The Modern Greek State gained
its independence from the
TABLE 1
Estimated Population of
|
Age brackets* 0-6 7-12 13-17 18-20 21-64 > 65 TOTAL |
Males 368,667 349,038 357,237 235,818 2,906,753 963,711 5,181,224 |
Females 346,259 330,591 337,576 223,975 3,072314 1,019,026 5,329,741 |
Total 714,926 679,629 694,813 459,793 5,979,067 1,982,737 10,510,965 |
Source:
Statistical Service of
* The age brackets below 21 years correspond to those provided by the
Greek Criminal Code (see below 1.2.).
1.2.The statutory minimum age
of criminal responsibility is 12
years. Children below 6 years of age are not subjected to Penal Law
regulations. From
1.3. The age of full
adult criminal responsibility comes with the 17th birthday. (For
comparison: suffrage age: 18 years). The total population (0-17 years ) that
has not reached this age is 2,089,368. (See Table 1). However, there are cases
that certain adolescents 13-17 might have full responsibility (see supra 1.2
and infra 5.3). Young adults between 18 and 20 years are subjected to adult
criminal law; the courts, however, are allowed discretion to impose a lenient
sentence (a. 133 P.C.).
1.4. Until the ‘90’s
1.5. The most important nationalities represented among the non-natives,
neo-immigrants are people coming from Russia - many of them of Greek origin
- 300,000, Albania 200,000, Egypt 80,000, Poland 65,000, Ukraine 18,000,
Palestine 2,000, Philippines, Nigeria etc[7],
1.6.
According to the National Statistical Service of Greece the population of the
country is distributed in three main areas: urban (above 10,000 population),
semi-urban (2,000 - 10,000) and rural
(less than 2,000). The process of urbanization has led almost half of the
population of the country in urban areas. The greater
1.7.
While inflation rate is decreasing (close to 2,1%, in August 1999) the unemployment rate is still high: 10.8%.
(EU of 15:10.0%). In a labor force of 4,445,700 there were 478,500 unemployed and 3,967,200 employed - the total population over
15 years being 8,720,200. In these figures the registered foreigners are also
included. From data referring to foreigners only, it results that the total
registered population is 228,300 of which 167,100 belong to the labor force,
144,900 are employed and 22,300 or 13,3% are unemployed. [9]. The
percentage of male/female unemployed for the year 1998 was for
2. SUBSTANTIVE CRIMINAL LAW STATUTES
2.1.
The Greek Penal Code in force (hereinafter: PC) has been enacted in 1950 by
Law (Act of Parliament) 1492/1950 and entered into force on
Since its introduction, the PC has been
amended several times, but none of these amendments can be characterized as a
major reform, since they all concerned minor issues and piece-meal amendments.
2.2.
The PC has been published officially in the Greek language, and more
specifically, in the then official (archaic) form of modern Greek used in the
legislation called «katharevousa». It was translated
into the common spoken form called «demotiki», which
since 1976 became the official language and published in that form by
Presidential Decree (hereinafter: PD) 283/1985. There exist English (by Liolios), German (by Karanikas)
and French (by Yotis) translations of the Penal Code
– all of them more than 30 years old; thus they do not include the recent
amendments.
2.3.
In addition to the PC a number of special
penal laws (Nebengesetze)
exist. Most of them regulate other matters by they include penal provisions as
well. The violations of these special laws constitute around 80% of either
police recorded crime or court convictions. For instance in 1998 police
recorded a total of 326,786 offences. PC violations were 63,368 (19.39%) and
special laws violations 263,418 (80.61%). It should be noted that in the
special penal laws, the so-called judicial or administrative codes, are also
included. These codes regulate well-defined sectors of social life. The main
special penal laws are:
-
the Military
Penal Code (Law 2287/1995, especially articles 1 - 166);
-
the Code of
Market Regulations (Law 146/1946);
-
the Code of
Traffic Regulations ( present stand: Law 2696/1999);
-
the Code of
Customs (Law 1168/ 1918 as amended);
-
the enactments on
drugs (Law 1729/1987), on antiquities (Law 5351/ 1932, as
amended); and on the protection of the environment (Law 1650/1986 );
-
several laws
concerning labor relations (e.g. Law 3934/19/1911 «re: Sanitary
and Safety Measures of Laborers
and Working Hours», Law 429/1912 «re: Work
of
Women and Minors»), and
-
the tax evasion
Law (present stand: Law 2523/1997 «re:
Administrative and Penal
Sanctions in the Taxation Legislation and other Provisions») etc.
Some of
the above statutes also provide administrative sanctions, usually for
different, less serious violations - but these are clearly distinguished from
the penal ones.
3. PROCEDURAL LAW STATUTES
3.1.
The present Greek Code of Penal
Procedure (hereinafter: CPP) has been enacted simultaneously with the PC by
Law 1493/1950, and its translation into the common modern Greek language form
was enacted by PD 258/1986. The Code replaced the previous one of 1834, which
had been amended and reformed several times since then. That Code had used as a
model the French Code d’ Instruction Criminel of 1808 and the new Code followed in many
respects the old one. However, in certain parts, it was also influenced by the
Italian Penal procedure of 1930 and in certain provisions by the German Code of
Penal Procedure of 1877.
Since 1950 the CPP has been amended several
times but mostly as to minor matters. The main important reforms are the
following:
- By
enactment of the dictatorial military Government of 1967 the jury system has
been abolished and replaced by mixed courts composed by three jurors and four
professional judges who decide jointly both on legal questions and on facts.
Upon the re-establishment of democratic legality, the Constitution of 1975 art.
97 para 1 confirmed that reform and the Law 969/1979
regulated the details of the composition of the court and its procedure (cf.infra 6.5.5.).
- By
Law 1128/1981 «re: Provisional Detention and other Provisions» the detention
awaiting trial has been reformed, following the guidelines of Recommendation Nr.R (80) 11 of the Council of Europe. This measure has
been provided as optional, depending on certain conditions and as the last
resort. Restrictive conditions to be imposed (e.g. bail or prohibition to leave
certain places or the country) should be considered and imposed in the first
place. Finally, by Law 2408/1996 the provisional detention was limited to
felony cases only.
- By
Law 663/1977 the procedure of indictment and reference of the case to trial was
simplified as to certain categories of offences to which, later, other ones
were added. Such offences are the arson of woods (Law 663/1977 art. 20), the
drug offences (Law 1729/1987 art. 21), the embezzlement of ship cargoes (Law
1419/1984) etc.
3.2. As
far as we know, no translation of
the whole text of the CPP into a foreign language is available. Only certain
provisions have been translated for the needs of works of legal scholars
written in foreign languages.
3.3.
The main statutes, outside the CPP,
including provisions on criminal procedure are:
-
the Military
Penal Code (Law 2287/1995), the second part of which (art. 167 -
-
232) includes
certain special provisions concerning the procedure before military
courts, while as to the rest
the CPP applies;
-
the Law 663/1977,
already mentioned above;
-
the Code of
Market Regulations (Law 146/1946), the articles 58 - 66 of
which include some exceptions from the general rules of procedure of the
CPP;
-
the Code of
Customs (Law 1168/ 1918 as amended), art. 122 - 126a;
-
the Code of
Traffic Regulations (present stand: Law 2696/1999) art. 105;
-
and the Law of
the Press.(Laws 5060/1931 and 1092/1938).
3.4. There are a number of statutes and provisions on juvenile
offenders. The competent authorities and courts as well as the procedure
applicable to juvenile offenders are governed by art. 96 para
3 of the Greek Constitution of 1975/1986; this provision exempts juvenile
courts from the jury system and the public hearing, as well as from various
provisions of the CPP. For example, art. 1 establishes the juvenile courts,
art. 27 refers to the special status and duties of the public prosecutor for
minors, arts.112 and 114 provide for the jurisdiction of three member and one
member juvenile courts, art.130 para 3 concerns the
separation of hearings in case minors and adults are co-offenders, art.574 regulates
the matter of criminal records etc. Special statutes have been also enacted
dealing with specific aspects of the juvenile justice system. For instance:
- Law 3315/1955 «re: Completion
of the Provisions on Juvenile Courts and
on the Treatment of Minor Offenders» as
amended, which provides, inter alia, that
the juvenile court hearings take place
without publicity and
that the provisional
detention, if ordered,
should be in juvenile institutions.
- Laws 2793/1954 and 378/1976
establishing a service of supervisors of minors
(probation
officers) in
the juvenile courts (see also relevant Presidential Decree 49/1979).
- Law 2298/1995, which in
art.17 restricts the institutionalization of juveniles, and in art.18
amends the structure
and function of the Societies for the Protection of Minors.
4. THE COURT SYSTEM AND THE ENFORCEMENT OF CRIMINAL JUSTICE
4.1. The organization of the courts is governed presently by Law 1757/1989
«re Organization of the Courts, as amended by subsequent Laws 1868/1989 and
1968/1991. This enactment has replaced the previous Law «re organizations of
the courts and notary public offices» of January 21/
4.2. The above legislation
has been published officially in Greek. No
translation in any other language exists.
4.3. The fact that the above
Law is of recent date and its purpose was to replace all previous legislation
concerning the organization of the courts is the reason for which no other important statute contains
provisions on that matter.
4.4. Law 1481/1984 «re:
Organization of the Ministry of Public Order» provides for the organization of the police. With this enactment the previously existing
two police forces, namely the Gendarmery and the City
Police have merged into one unique body the Greek Police (EL.AS), and all
relevant matters have been regulated. Law 2054/1954 «re Code of Lawyers», as
amended, regulates the organization of the Bar Association. The prison
system is governed by Law 1851/1989 the so-called “Code of Basic Rules for
the Treatment of Detainees” (hereinafter CBRTD). The only special statute
governing the organization of a probation agency for adults is Law 1941/1991,
articles 15-17, while the duties and functions of that agency are provided in
articles 100A PC esp. paras 4 - 8 and 82 para 8 PC. These provisions and the probation agency have
not been put into practice as yet. (See infra 7.5.).
4.5. By contrast, the service
of supervisors of minors or probation officers for juvenile offenders is regulated adequately and it functions in a
satisfactory way. The main relevant statutes are Law 378/1976 «re:
Establishment of a Service of Regular Probation Officers for Minors at the
Juvenile Courts». Furthermore, by PD 49/1979 «re: Function of the Service of Probation
Officers for Minors» the practical questions concerning that service have been
settled. (See also supra under 3.4).
5. THE FUNDAMENTAL PRINCIPLES OF CRIMINAL LAW AND PROCEDURE
5.1. The principle of legality (nullum crimen, nulla poena sine lege») is included in art. 7 para
1 of the Constitution which reads as follows: «There shall be no crime, nor
shall punishment be inflicted, unless specified by law in force prior to the
perpetration of the act, defining the constitutive elements of the act. In no
case shall punishment more severe than that specified at the time of the
perpetration of the act be inflicted». Likewise, art. 1 of the Penal Code
provides the following: « Punishment shall be inflicted only for acts for which
the law had provided it expressly, before they were committed ».
5.2. With respect to the division of offences the PC follows the
system of the French Penal Code of 1810, providing in art. 18: «Any act
punishable by death (the death penalty is now abolished) or by confinement in a
penitentiary is a felony. Any act punishable by imprisonment or by pecuniary
punishment or by confinement in a reformatory institution (for minors) is a
misdemeanor. Any act punishable by jailing or by fine is a petty offence».
This division is also used in the other
criminal law statutes, according to art. 12 PC, which provides that «the
provisions of the General Part of the present code shall be applicable to the
offences provided for in the special statutes, unless such a statute contains
an express provision to the contrary.»
5.3. The minimum and maximum ages at which an offender is dealt with as
juvenile are provided by art. 121 para 1 first
sentence PC, which reads as follows:
«Minors, under the present chapter, shall
be defined as those [persons] between the beginning of seven years and
seventeen years of age completed. Those under twelve years of age shall be
defined as children, and those between twelve and seventeen shall be defined as
adolescents.»
According to art. 126 PC an offence
committed by a child shall not be imputed to him/her. Instead, the courts apply
educational or therapeutic (in case of a physical or mental health problem)
measures. An adolescent shall be subject to the same kind of measures, if the
court does not consider that he/she should be submitted to a special criminal
sentence, according to the following article. According to art. 127, a penalty
of confinement in a correctional institution for adolescents may be imposed to
a minor 13-17 years of age, if the court finds from (a) the circumstances under
which the offence was committed and (b) the personality of the perpetrator,
that such a penalty is necessary in order to deter them from the commission of
further offences. Consequently, in such cases adolescents are considered
criminally liable.
Finally, by art. 133 PC if, at the time of
the commission of an offence, a person has completed his/her 17th year and is
not 21 years of age, the court may impose a mitigated punishment according to
art. 83 PC (see infra as well as
supra 1.3.)
5.4. – 5.5. According to the Greek penal doctrine, «imputability» is a judgement by
which a person is blamed for his/her conduct and therefore he/she is
disapproved and becomes personally responsible for his/her act. «Guilt» is considered any circumstance
justifying disapproval of the offender. The «principle of guilt» or «principle
of imputablity»
(nulla poena sine culpa) is
deemed fundamental, since it is based on art. 2 para
1 of the Constitution which dictates the respect and the protection of the
human dignity as the primary obligation of the State. Therefore, the existence
of guilt/imputabity is an absolutely necessary
condition of the criminal offence and the corresponding liability. Considering
the above, strict liability,
existing irrespective of the element of culpability (intent or negligence) is not recognized in the Greek Criminal
law system.
5.6 Since criminal liability is based on the
disapproval of a person for the commission of an offence, it has a personal
character and cannot be imputed on groups of persons. Therefore the so called «corporate responsibility or liability» has not been recognized
until now under the Greek law.
5.7. The grounds of justification provided in the Greek Penal Code are of
two kinds: First there are the general ones, which may be applied to all or a
great part of criminal offences. Then, there are the special ones that are
provided in the special part of the PC and concern the justification of
particular criminal offences.
The general grounds of justification are:
(a) the defense (both
understood as self-defense and defense of another person against an illegal and
present attack (art. 22 PC);
(b) the condition of
necessity justifying the act (art. 25 PC);
(c) the binding legal order
of a superior civil servant or military (art. 21 PC) and
(d) the justification of the
act, if it was executed in the exercise of a right or in fulfillment of a duty
provided by the law (art. 20 PC);
The most important special grounds of
justification are those provided in the articles 304 para
4 PC (justified interruption of pregnancy), art. 308 para
2 PC (simple [not grievous] bodily harm committed with the consent of the
person suffering it and not bring against good morals), art. 367 para 1 PC (justification of attacks against honor i.e.
verbal injuries and defamation, committed for the protection of certain legal
interests), 371 para 4 PC (breach of professional
confidence, committed for the protection of certain legal interests which could
not be protected otherwise).
The most important case of justification
not provided expressly in the Penal Code is the conflict of legal duties. As
such conflict is considered a case in which a conflict between two legal duties
is in abstracto
controversial and this controversy is not solved by the law (as in the cases of
other grounds of justification). The relevant question is dealt with especially
in the treatises of legal scholars, while the case law on this matter is rather
scarce. It should be noted that cases of conflict of duties are resolved by the
case law on the basis of excuse rather than of justification. According to legal scholars and the relevant case law, the
conflict shall be resolved by the application of certain rules (i.e. the most important
legal duty should be preferred and, if no difference of importance can be
found, the choice is left to the person acting while the law has to approve
necessarily his choice.)
5.8. Article 111 PC deals
with time limits or the period of
lapse of time for offences and provides that «the punishability
of an offence is barred by the lapse of time. Felonies shall be subject to
lapse of time (a) after 20 years in a case of statutory punishment of (death,
now abolished) or confinement in a penitentiary for life and (b) after 15 years
in all other cases. Misdemeanors shall be subject to lapse of time after 5
years. Petty violations shall be subject to lapse of time after one year.»
5.9. The Penal Code is
divided into a general part
(articles 1 -133) and a special part
(articles 134 - 459). The appended table shows the titles of parts and chapters
of the Penal Code.
TABLE 2
Contents of the
Penal Code
Book I - General Part
Chapter
Articles
1. The Penal Law
1 - 13
2. The Offence
14 - 41
3. Attempt and
Complicity
42 - 49
4. Punishments, Security
Measures, Restitution 50 - 78
5. Sentencing
79 - 98
6. Conditional Suspension of
Sentence and Parole 99 -110
7. Bars to Punishability
111 -120
8. Minor Offenders [Juvenile
delinquents]
121 -133
Book II - Special Part
1. Offences against the
Constitution (High Treason) 134 - 137
2. Treason of the
Country
138 - 152
3. Offences against Foreign
States
153 - 156
4. Offences against Civil
Rights and Functions 157 -
166
5. Offences against the
Sovereignty of the State 167 - 182
6. Offences against the
Public Order
183 - 197
7. Offences against the
Religious Peace 198 - 201
8. Offences related to the
Military Service and Draft Obligations 202 - 206
9. Offences against the
Currency
207 - 215
10. Offences pertaining to
Documents 216
- 223
11. Offences against the
Administration of Justice 224 - 234
12. Offences committed by
Civil Servants and Officials 235 - 263a
13. Offences Endangering the
Public
264 – 289
14. Offences Concerning the
Safety of Transportation
and Public Installations
290 – 298
15. Offences against Life
299 - 307
16 Bodily Injury
308 - 315a
17. Dueling 316
- 321
18. Offences against Personal
19. Offences against Sexual
Freedom
and Offences of Exploitation of Sexual
Life 336 - 353
20. Offences against Marriage
and Family
354 – 360
21. Offences against Honor (Verbal or Practical Insult,
Defamation, Slander) 361 -
369
22. Breach of Confidentiality
and Privacy
370 – 371
23. Offences against
Property
372 - 384a
24. Offences against Property
Interests
385 - 406
25. Begging and Vagrancy
407 - 410
26. Petty Violations 411
- 457
27. Criminal Sanctions for
Violation of Administrative Provisions
458 - 459
5.10. (a-b): There is no
distinction between murder and
intentional homicide in the Greek PC. The relevant offence is defined in a
simple and clear way in art. 299 para 1: «One who
intentionally kills another shall be punished by confinement in a penitentiary
for life» In the second paragraph the mitigated form of homicide «in a state of
psychological excitement» is provided which is punishable by confinement of
5-20 years.
(c) Robbery is defined in art. 380 PC in three different variations.
Thus, robbery commits: (i) «one who, with the use of
bodily violence upon another or with threats of immediate injury to the body or
life of another takes from such other person movable property which wholly or
partially does not belong to the offender;» (ii) one, who by the same means
compels delivery of such property for its unlawful appropriation; and (iii) one
who, caught in the act of committing a theft, uses the same means as above in
order to keep the stolen property.
(d) Assault is not provided as a criminal offence in the Greek criminal
law. The conduct, which in other legislations is defined, as assault, is in
particular, criminalized by the provisions on bodily injury or harm, of which
four different variations exist:
(i)
the basic form,
which consists in simple intentional bodily injury, defined in art. 308 para 1 as an act of a person: «… who intentionally inflicts
upon another bodily ill-treatment or harms his health...» and the aggravated
forms of:
(ii)
dangerous bodily
injury, defined (art. 309 PC) as the conduct described above committed,
however, in a manner which may cause danger to the victim’s life or grievous bodily harm;
(iii)
grievous bodily
harm (art. 310 PC) and
(iv)
deadly injury.
An act considered as assault by other
jurisdictions may fall into the category of completed or attempted bodily harm
or even attempted homicide under the Greek PC. Finally, if no bodily harm was
intended by the assault, but only a humiliation or insult of the victim, the
offence could be considered as an insult manifested by an actual act, i.e. an
attack against the honor (art. 361 PC).
(e) Simple theft is defined
(art. 372 para 1 PC) as the act of a person:
«… who takes from another’s possession movable property which wholly or
partially does not belong to the offender, with intent unlawfully to
appropriate such property...» Two aggravated forms of theft are provided in the
PC. The first concerns the case in which
«…the property is of high value...» (art. 372 para
1 last sentence, PC). The second refers to an even more aggravated form,
punishable as a felony (art. 374 PC).
This aggravated form exists in cases where : (i) property, used for religious worship is taken
from a place of such worship; (ii) an
article of scientific, artistic or historical significance, which was located
in a collection exhibited to the public or in a public building or in any other
public place, is taken; (iii) an object, which was transported by a public
means of transportation or was deposited in a place where objects to be
transported or to be delivered were left, or was being transported by a passenger, is taken; (iv) the theft was committed by two or more persons
joined together for the purpose of committing thefts or robberies; and (v) the
act was committed by a person which commits thefts and robberies habitually or
as a profession.
6. THE ORGANISATION OF THE
INVESTIGATION AND CRIMINAL PROCEDURE
6.1. General issues
6.1.1.
The Greek criminal justice system is based on the Continental tradition. The
criminal procedure is often characterized as following a «mixed» model of
inquisitorial and accusatorial system. It would be more accurate to say that, although
the procedure is basically inquisitorial, it has also strong adversarial
elements.
The offences are prosecuted exclusively by
the public prosecutor (p.p.) at the court of misdemeanors, after he/she takes
knowledge of them by a denouncing report of an authority or by a complaint by
the victim or by a denunciation by any citizen or in any other way. The p.p., after receiving such a notice of
the offence, is obliged to prosecute the case, provided that it is based in the
law, that it is not too vaguely reported or that it is not manifestly unfounded
as to the facts. Sometimes the p.p. may conduct the investigation
himself/herself or with the assistance of an investigative officer in order to
find out whether there is some suspicion justifying the prosecution. The Greek
criminal procedure is governed by the principle of mandatory prosecution (or
legality principle). Therefore, if such a suspicion exists, the p.p. has no
discretionary power to prosecute or not to prosecute taking into consideration expediency
factors.
The prosecution is effected in one of the
following three ways:
-
By initiating a «summary»
investigation, to be conducted either by a magistrate or by a police
officer. This kind of investigation is applied, as a rule, in misdemeanor
cases.
-
Another possibility is the initiation of an «ordinary» investigation
that is conducted by an ordinary judge. This procedure is mandatory in felony
cases and optional in misdemeanors, if the p.p. is of the opinion that the
summary investigation, which has already taken place, must be completed by an
ordinary investigation.
- A
third way of prosecuting is the direct reference of the case to trial
before the competent court. This procedure is applied in cases : (a) of
petty violations, (b) of misdemeanors
of minor importance, (c) where the facts are clearly proven, and (d) of
misdemeanors, when the offender is apprehended in the act (red handed).
After the completion of the
investigation the p.p. may make a motion to the judicial council (i.e. a court
deciding in camera, without
publicity) either to acquit (dismiss the case) without trial; or to refer the
case to trial (indict). The p.p. may also, after a summary investigation, refer
the case directly to trial, without requesting a decision of the judicial
council. The last possibility is limited to misdemeanor cases only.
At trial the p.p. summons all the parties,
namely the accused, the civil claimant and the civilly liable third party, if
such parties are participating in the proceedings. He also summons all the
important witnesses, both of the accusation and (some of the witnesses) of
defense, while the parties may bring to the trial also any other witnesses and
other evidence. The p.p. and the civil claimant must notify to the accused the
names of the witnesses they have summoned; the accused however has not a
corresponding obligation.
Legal counsels have the right and the duty
to defend the accused. Moreover they can represent the accused in all the
procedural acts in which personal
appearance is not necessary. They also accompany the accused when he/she
appears personally to the investigating judge to defend himself/herself and
answer questions. They have the right to take knowledge of the criminal dossier
before the accused presents his/her defense at the pre-trial stage and also
before the trial. At the trial phase they assist the accused in every respect,
question the witnesses and experts, exercise all the rights of the accused and
have the right to speak last, in other words have the last word. Finally, they
may lodge appeals in the name of the accused.
6.1.2. The pre-trial phase has a mixed character: it is rather inquisitorial, since the
investigating judge or the investigating magistrate or police officer takes most
of the initiatives in order to gather the evidence and proceed with all the
necessary measures. But it has also some accusatorial features, since the
parties –i.e. the accused and often also the civil claimant - have certain
rights and may influence the proceedings by submitting applications, bringing
in evidence, lodging appeals to the judicial council against the decisions of
the investigating judge or the p.p. etc.
6.1.3. The pre-trial phase is deemed to end when
also the intermediate stage (the proceedings before the judicial councils)
ends. It is considered that the trial stage begins when the summons to trial is
served upon the accused.
6.1.4. The trial has also a
mixed character. The inquisitorial
characteristics consist mainly in the role of the court, which tries to
find the truth ex officio, questioning
the witnesses and experts, examining the other pieces of evidence and asking
eventually for more evidence, even postponing the proceedings in order to bring
it in. The accusatorial features are
present in the important roles of the parties, who examine witnesses and
experts and other types of evidence, comment on each type of evidence presented
to the court and plead at the end of the trial.
6.1.5. The Greek CPP makes
provision for the institution of the examining
or investigating judge (juge d’ instruction, Untersuchungsrichter) who is competent to conduct the
«ordinary» investigation which is mandatory in all felony cases and optional in
misdemeanor cases, if the p.p. considers that the preceding «summary»
investigation by a magistrate or a police officer needs to be completed.
According to art. 239 CPP, the purpose of any form of investigation in general
is to collect all necessary pieces of evidence in order to prove the commission
of an offence and to decide whether somebody should be referred to trial for
it. During the investigation all efforts
are made to detect the truth. The inquiry should aim at finding ex officio
not only incriminating evidence, but also material proving the
innocence of the accused. Furthermore, the investigation should collect any
data concerning the personality of the accused that could influence the
sentencing process.
In particular, the investigating judge is
competent to conduct all acts of inquiry, which he/she deems necessary in order
to detect the crime and the perpetrators. He/she considers the requests of the
p.p. only if he/she believes that it would be expedient (art. 248 CPP). He/she
is also competent to order the provisional detention of the accused or to
impose restricting conditions to him/her (e.g. bail or the obligation to report
every day to the police station or the prohibition to stay in or to leave a
certain places). But in this case the investigating judge should have the
agreement of the p.p. (art. 283 CPP).
6.1.6. The Greek Code of Penal Procedure (CPP) is not
divided into a general part and a special part but into eleven parts. (See Table 3 which shows the titles
of parts and chapters of the Code of Penal Procedure).
TABLE 3
Contents of the
Code of Penal Procedure
Chapter
Articles
Part One: General Provisions
I. Criminal Courts and
Officials
1 - 26
II. Prosecution
27 - 62
III. Civil claims in the
criminal proceedings 63 - 71
IV. Parties in the criminal
proceedings
72 - 108
V. Competence of the
Courts
109 - 137
VI. Acts of Procedure
138 - 176
I. Investigation
239 - 250
II. Acts of Investigation 251
- 304
III. Procedure before the
judicial councils
305 - 319
Part Four: Trial procedure
I. Procedure preparatory to
the trial
320 - 328
II. Trial Procedure
329 - 408
Part Five: Special Procedures
I. Summary procedures 409
- 427
II. Procedures against absentees
and fugitives
428 - 435
III. International assistance in criminal matters 432
- 461
Part Six: Appeals
I. General provisions
462 - 476
II. Appeals against decisions of the judicial
councils 477 - 485
III. Appeals against decisions of the courts
486 - 524
Part Seven: Extraordinary legal remedies
I. Revision of the Proceedings 525
- 530
II. Reinstatement of persons deprived of civil
rights 531
- 532
III. Compensation of persons
unjustly convicted or detained 533 - 545
Part Ten: Judicial Expenses 581
- 589
Part Eleven: Transitional
Provisions
590 - 603
6.2. Special issues
6.2.1. Article 6 para 1 of the Constitution provides that «no person shall
be arrested or imprisoned without a reasoned judicial warrant which must be
served (upon the arrested person) at the moment of arrest or detention pending trial, except when he/she is caught
while committing a criminal act.» A parallel provision is found in art. 276 para 1 CPP stating that, except of the cases of art. 275
(offender caught «in the act») no person shall be arrested without a specially
and sufficiently reasoned warrant of the investigating judge or the judicial
council, which must be served at the moment of arrest».
6.2.2. Pre-trial detention is
provided by art. 282 para 3 CPP, as a last resort,
instead of the restricting conditions (e.g. bail or obligation to report every
day to the police station or prohibition to stay in or to leave a certain place
). The legal prerequisites of
pre-trial detention are as follows:
(a) it may be ordered in felony cases only (exceptionally
it may be ordered in misdemeanor cases if he/she has not complied with the
restrictive conditions previously imposed on him/her) and
(b) one of the five
conditions mentioned below should be fulfilled. Namely the accused:
-
has no known
residence in the country; or
-
has made
preparations to facilitate his absconding; or
-
has been a
fugitive in the past; or
-
has been declared
guilty for escape from prison or for breach of restrictions with respect to the
place of residence; or
-
if set free, it
is estimated that he/she may commit more
crimes; this estimate is the result of reasoning based on facts concerning the
previous life of the accused or on
the
special circumstances under which the act with which the accused is charged
has
been committed
6.2.3. The investigating judge is competent to
order the provisional detention of the accused.
But the judge shall receive also the agreement of the p.p. for it (art.
283 para 1 CPP). In case of disagreement between
these two officials, the judicial council decides. It should be noted that the
p.p., before expressing his/her opinion should hear the accused and his/her
counsel (art. 283 para 1 last sentence CPP).
6.2.4. The maximum term of pre-trial detention is
determined by : (a) art. 6 para 4 of the Constitution
and (b) art. 287 para 2 CPP. The latter provides it only with
respect to felony cases, since the pre-trial detention for misdemeanor cases
has been recently (by Law 2408/1996 art. 2 para 2)
abolished, as a rule. The maximum term is one year, which in extraordinary
cases can be extended, by specially reasoned decision of the judicial council,
for up to six more months. Against the decisions of the judicial council in
these matters an appeal to Areios Paghos
(the Supreme Court) is granted to the accused and to the p.p. (287 para 5 CPP).
At present there is no trend to shorten
this maximum term.
6.2.5. By art. 285 CPP, the accused may start proceedings,
challenging the lawfulness of the warrant of pre-trial detention, to the
judicial council, which decides definitely on the issue. But if the detention
is based on a warrant of the judicial council itself, no legal remedy is
provided.
The automatic control of the pre-trial detention is effected in the
following way: By art. 287 para 1 CPP, if the
detention has lasted six months, the judicial council shall decide whether the
accused shall be either released or detained for an additional period. Against
the decisions of the judicial council an appeal to Areios
Paghos (the Supreme Court) is granted to the accused
and to the p.p. (287 para
5 CPP).
By art. 287 para
3 CPP. if the detention is not extended within 30 days after the completion of
six months, the force of the warrant ceases and the p.p. orders the release of
the person detained.
6.2.6. Art. 87 PC and art.
371 para 4 CPP provide that, when a custodial
sentence is imposed and after its duration has been determined by the
sentencing court, the term of the
pre-trial detention of the accused as well as the time between arrest and
order of pre-trial detention shall be deducted
from the sentence.
6.2.7. The appeals against a decision of a court
of first instance are : (a) the appeal de
novo to a court of second instance and (b) the appeal for legal error to Areios Paghos (the Supreme
Court). The appeal de novo is
basically granted to the accused and the p.p. It is also granted to the civil
claimant - however, in exceptional cases only. This appeal authorizes the court
of second instance to try the case again as to all offences and points that are
mentioned in the appeal. The case is re-tried from all sides - both of law and
of fact - and the procedure is basically the same as in the first instance. The
court may examine more evidence, even new witnesses, provided that they are
present in the courtroom and that the p.p. or one of the parties requests it.
If the appeal has been lodged by the accused or by the p.p. in favor of the
accused, the decision of the court of second instance cannot worsen the
position of the accused. It can only either sustain the appeal and ameliorate
his/her position or reject it and keep the conviction as it has been pronounced
by the first instance court (prohibition of the reformatio in pejus). But if the p.p. has lodged a
contrary appeal requesting the reform of the decision to the detriment of the
accused, then the court of second instance is free to decide either way.
Art.510 CPP provides for an appeal for
legal error to Areios Paghos;
this appeal is permitted for certain legal grounds only. The Supreme Court is
not authorized to evaluate facts. It may, however, control the reasoning of the
trial court and judge whether it is missing or insufficient. In case Areios Pagos rescinds the
decision, four possibilities exist. The Supreme Court may:
(a) apply the law itself properly (art. 518 para 1
CPP); or
(b) dismiss the case (art. 517 CPP); or
(c) refer the case for retrial to another court of the
same kind as the one which had issued the decision rescinded; or
(d) refer the case for retrial to the same court, if it may be composed by different judges (art.
519 CPP).
6.2.8. The answer to the
question whether a case may be tried in
the absence of the defendant is both “yes” and “no”. Article 340 CPP
provides that the accused is obliged to appear at the trial personally; he/she
may appoint a counsel for his/her defense (340 para 1
CPP). In cases of petty offences and not serious misdemeanors, the accused may
be represented at the trial or the hearing by his/her counsel. If the accused
who has been legally summoned to the trial does not appear, he/she is tried as
if he/she were present (340 para 3 CPP). This means
that the court, which has the duty to investigate and find the truth ex officio, shall inquire all aspects of
the facts, including whatever may be to the benefit of the defendant.
With respect to felonies, however, more strict
provisions apply (432 para 1 CPP). If the accused is absent and his/her residence
is unknown, the service of the decision of the judicial council referring
him/her to trial and the summons to it are effected:
(a) to some close family member of his/her living with
him/her or
(b) if no such persons can be found to the mayor of the
town, or
(c) to the parish priest, who shall have the summons
affixed in a public place (156 CPP).
This procedure is called “fictitious
service procedure” by some authors. If the accused neither appears, nor is
arrested within a month as of the service of the above documents, the
proceedings are suspended until the accused appears or is arrested. But if the
accused: (a) had been released from pre-trial detention because the maximum
limit had been completed, and (b) has been legally summoned to the trial,
he/she is tried as if he/she were present, even in felony cases. The same
applies if the accused, being in custody, has caused to himself/herself
incapacity to appear. In these cases, however, if a person convicted in absentia appears or is apprehended,
then the case is re-tried in his/her presence, while the sentence is executed
until the end of the re-trial proceedings (432 paras
2 and 3 CPP). If the absence of the
accused who has been convicted in
absentia, was due to a force majeure event which he/she was unable to communicate to
the court before or during the trial, a legal remedy - called “petition for the
annulment of the proceedings” - is granted (340 para
1 CPP). If the accused can prove such an event, the proceedings are declared
null and void and a date for a new trial is fixed (340 para
2 CPP).
Furthermore, the accused is granted a
legal remedy called “petition for the annulment of the decision” if the
accused: (a) had been considered a
person of unknown residence, (b) had been summoned by the above fictitious
service procedure, (c) was tried and convicted in absentia and (d) did not
lodge an appeal against the sentencing decision. This petition shall be lodged
within 8 days after the execution of the sentence or even before that. The
accused has the burden to prove that he/she had a known address. If he/she
proves it, the case is re-tried.
6.2.9. In the Greek CPP the
principle of «moral evidence» -intime conviction
in French law - is followed. Namely, by art. 177 «the judges are not obliged to
follow any legal rules of evidence, but they must decide according to their
conviction, following the voice of their conscience and being guided by the
impartial judgement which results from the
proceedings, with respect to the truth of the facts, the trustworthiness of the
witnesses and the value of the other pieces of evidence».
The «main» means of evidence are (a) the indications, (b) the judge’s observations
during the trial (c) the expertise, (d) the confession of the accused, (e) the
witnesses and (f) the documents. Beside these, any other kind of evidence is
permitted (art. 179 para 1 CPP). However, art. 177 para 2 CPP provides that those pieces of evidence which have
been obtained by means of criminal offences, are not taken into consideration
in order to pronounce the accused guilty. Moreover, they are not considered in
the sentencing or the imposing of measures of constraint during criminal
proceedings. Exceptions are possible in cases of felonies punishable by
confinement in a penitentiary for life, in which a reasoned decision of the
court shall justify the consideration of such evidence.
The witnesses testify in the following way:
First, they are asked to say whatever they know on the subject in a narrative
way, without being interrupted. Then, questions are put to them by the
president of the court, the p.p., the other judges, the counsel of the civil
claimant and lastly by the counsel of the defense, in that order (art. 357
CPP).
Next, the experts’ reports are read and the
experts may be asked (in the same order as above) to clarify some points of
their report.
The court views all documents and other
objects related to the subject matter and even may move to and view any place
which has an evidentiary value (art. 363 CPP). The last mentioned practice is
however, seldom.
All documents that should be taken into
consideration by the court must be read aloud, according to the principle of
oral proceedings. The prosecutor and the parties may comment on each piece of
evidence after it has been taken (art.
358 CPP).
6.3. The
organization of detection and investigation
6.3.1. The national agency responsible for the
detection and investigation of crime is the Hellenic Police, commonly known
by the abbreviated name «EL.AS.». It is a service of the Ministry of Public
Order, and therefore its status is provided by Law 1481/1984 «re : organization
of the Ministry of Public Order.» The competent department of police security
is vested with the task of prevention and suppression of crime (art. 5 para 1 Law 1481/1984). Hellenic Police has jurisdiction on
all types of crime, including drug law violations, smuggling, illegal commerce
of antiquities, gambling, all acts of violence and terrorism. Furthermore, the
law regulates the use of scientific and technical methods for the detection of
crime and the cooperation with international police organizations and foreign
police authorities. Art. 13 of the same Law provides that the police officers
exercise their duties of investigation and detection according to art. 33 CPP.
Art. 33 CPP para 1
provides that the summary investigation of offences (cf. supra 6.1.1.) are
conducted by order of the p.p. and under his/her supervision by magistrates and
by officers of the police having no
lower rank than that of a sergeant; these are called “investigating
officers”. But if (a) there is an
imminent danger in case of delay or (b) the case concerns a «red handed»
offence (offender caught in the act), no written order is necessary. In such a
case the investigating officer performs all the necessary act of investigation.
Then he/she notifies the p.p. without delay and submits to him/her the dossier
in order to prosecute the case properly (art. 243 para
2 CPP). This type of investigation is called in practice «police investigation»
and usually precedes the regular forms provided by the law, namely the
«summary» and the «ordinary» investigations.
The ordinary investigation is mandatory in
cases of felonies. It is conducted by an ordinary judge, who is obliged to
conduct all acts of investigation necessary (art. 248 para
1 CPP). Furthermore, art. 13 CPP provides that the police authorities are under
an obligation to carry out without delay the orders of the judicial authorities
and those of the p.p. Consequently, they have to assist the investigating
judge, whenever he/she needs their assistance.
6.3.2. The summary and the
preliminary investigation are controlled
by the p.p. The extraordinary form of art. 243 para
2 CPP is conducted at first without the instructions of the p.p. but
subsequently, after the investigating officer submits the dossier to him/her,
the proceedings take the form of a regular investigation. By contrast, in felony
cases the investigating judge conducts the ordinary investigation which is
mandatory and he/she is not obliged to follow any instructions of the p.p. The
latter may submit to him/her motions, but the investigating judge may consider
them only if he/she thinks it expedient (art. 248 para
1 CPP). Yet, if the investigating judge decides to (a) issue a warrant of
arrest or of pre-trial detention or
(b) order restrictive conditions,
he/she is obliged to request the opinion of the p.p. Whenever this opinion is
mandatory and the views of the investigating judge and the p.p.differ,
the judicial council decides on the matter (art. 283 para
1 subpara b CPP).
6.3.3. As stated above, the p.p. is competent to give instructions
to the investigating officers (magistrates and police officers) in the
summary and the preliminary investigations, but not in the ordinary
investigation conducted by a judge.
6.3.4. While the above ways
of detection and investigation are the general forms of pre-trial proceedings,
for certain categories of offences the so-called special investigating officers
are competent to conduct the summary investigation, always under the
instructions and control of the p.p. These are the customs offences (e.g.
smuggling), for which customs officers are investigating, arson where officers
of the fire brigade are competent, arson of woods for which forest service
officers investigate etc. By contrast, the same general investigating officers
investigates the traffic offences, the narcotic offences, the firearm offences
and the environment offences.
Another category of special investigating officers has been introduced recently with
respect to economic crime. This is the so-called “Body for the Investigation of
Economic Crime” (hereinafter: BIEC). BIEC is under the authority of the
Ministry of Finance. Its functions include the investigation and detection of
all economic criminal activities, i.e. tax evasion, smuggling, drug
trafficking, currency offences and fraud against the financial interests of the
Greek State, the broader public sector, the national economy and the European
Union. The BIEC, inter alia is competent
to conduct searches in order to locate documents and other means of
evidence, to make arrests and to question persons, under the special provisions
applicable each time and the general provisions of the CPP.
6.4. The organization of the prosecution
agency
6.4.1. The national prosecution agency consists of
the public prosecutors’ office which is
a separate body of judicial officials. It is composed of persons who have the
same qualifications, are recruited by the same procedure and enjoy the same
constitutional guarantees as the judges (art. 88 - 91 of the Constitution). The
office is organized in three levels, corresponding to the first instance
courts, the court of appeals and the Areios Paghos (the Supreme Court in civil and criminal matters).
At each level (i.e. the first instance courts, the court of appeals and the
Supreme Court) there are two grades of p.ps, called “p.ps.” and “deputy p.ps.”.
The public prosecutors’ office is
characterized by the following two principles (art. 24 π 1 Law
1757/1989 «re: Organization of the Courts», as amended):
(a) The principle of
“indivisibility”. This means that the office is represented each time by one of
its members, but it functions as an indivisible entity. Therefore, any act
performed by one of the incumbents is considered as an act of the office.
(c) The
principle of «hierarchical
subordination» (internal subordination of the p.ps
office). It logically correlates with the previous one. Each deputy is bound to
follow the instructions of the p.p., and each p.p. to follow the instructions
of those at higher levels. At the top of the hierarchical pyramid is the p.p.
of the Supreme Court. The hierarchical subordination is limited :
(i)
by the principle
of legality, which does not allow an inferior p.p. to carry out an illegal
order of his/her superior; and
(ii)
by the principle of expression of personal
conviction, i.e. while a subordinate is bound to act according to the
instructions of his/her superior (e.g. to prosecute a case or to lodge an
appeal), when the subordinate p.p. submits a motion or at the end of the trial
sums up, he/she is free to express his/her own opinion.
6.4.2. The main duties of the p.p.’s office in
criminal cases are the following.
- To prosecute
all cases which come to his knowledge, provided that they are based on the law
and are not manifestly unfounded as to the facts.
- To supervise the
preliminary and the summary investigations and to cooperate where it is
provided with the investigating judge in the ordinary investigation, and to
take all necessary initiatives needed in the pre-trial stage.
- After the end of all kinds
of investigation, to make motions to the judicial council either to refer the
case to trial or to dismiss it (acquit) without trial.
- To lodge appeals against
the decisions of the judicial councils.
- To make the necessary
arrangements in order to prepare the trial and
the accusation at the trial.
- To sum up and make a motion
at the end of the trial to the court, either to convict or to acquit the
defendant and in general to make motions to the court before any decision.
- To lodge appeals against
the decisions of the courts.
- To take the necessary measures
for the execution of the punishments and security measures and to supervise
such execution.
6.4.3. According to art. 24 para 1 Law 1757/1989 «re: Organization of the Courts», as
amended, the p.p. is an authority
independent both of the courts and of the executive power. It acts in a
unified and indivisible way and its task is to protect the citizen and the keep
the norms of public order (art. 24 para 2 of the same
Law).
The acts of the lower p.ps'.
are in certain cases subject to review by his/her superior p.p. So, if the p.p.
at the first instance court receives a denunciation of a criminal offence and
does not think that it is based on the law, he/she may file it and report to
the p.p. at the court of appeals the reasons for his refusal to prosecute. The
latter may order to p.p. at the first instance court to prosecute the case
(art. 43 para 1 CPP). Likewise, if the p.p. considers
that a complaint of the victim is not founded on the law etc. he/she may reject
it (art. 47 para 1 CPP). The complainant however, may
lodge a petition to the p.p. at the court of appeals. If the petition is
sustained the p.p. of appeals orders his/her inferior to prosecute.
According to art. 24 para
5 Law 1757/1989, the p.p. of the Supreme Court has the right to address to all
members of the p.ps.’ office of the country orders,
general instructions and recommendations relevant to the exercise of their
duties. Likewise the p.ps. at the court of appeals
and at the first instance courts have the right to address such messages to the
members of such office of their respective districts (art. 24 para 5 Law 1757/1989).
Under the previous Law on the Organization
of the Courts and Notary Public Offices of 1834 (see supra 4.1.) the Minister
of Justice had a wide power to give instructions to the p.p.’s. («external
subordination of the p.p.’s office»). This power was seldom exercised
officially, but anyway it was abolished by Law 1757/1989. The only remnant of
power of the Minister of Justice to give instructions to the p.ps. is the right to order the competent p.p. to prosecute
any criminal offence, still provided by art. 30 para
1 CPP. However, even this power is of very small practical value, since the
Minister as any other public authority is obliged to report to the p.p. any
criminal act he is informed of and the latter is obliged to prosecute it
according to the legality principle.
6.4.4. Since the prosecution
of criminal offences is governed by the legality principle, neither the police
nor the p.p.’s office is entitled by law to abstain from prosecuting a case by
settlement, composition etc.
Likewise, after a case is prosecuted, there
is no way to close the proceedings other than a decision of the judicial
council to dismiss the case (acquit) without trial or a judgement
of the court after the trial.
At the present time some propositions are
pending concerning the possibility for the police or the prosecution to
close the proceedings officially.
6.5. Organization of the courts
6.5.1. The composition and internal organization of
the court system may be briefly described as follows: There exist three
categories of jurisdictions and corresponding courts: (a) The civil courts, (b)
the criminal (penal) courts and (c) the administrative courts. The civil and criminal
courts are composed by the same judges who sometimes exercise the duties of the
one and sometimes of the other capacity. Areios Paghos is the Supreme Court in civil and criminal matters.
It is divided into 4 civil and 2 criminal chambers, composed each year as a
rule by different justices, sitting in different courtrooms on different days.
The criminal courts are:
(a) the petty offences courts
(one-member, a magistrate);
(b) the misdemeanor courts
(one-member and three-member ones);
(c) the juvenile courts
(one-member and three-member courts);
(d) the mixed courts
(composed of three judges and four jurors), competent to try the most serious
felonies (e.g. homicide, rape).
(e) the courts of appeal or
higher courts, which are also competent to try several felonies as first
instance courts (e.g. drug offences,
robberies, frauds) in addition to appeals from decisions of the misdemeanor
courts;
(f) the higher mixed courts
(composed of three judges and four jurors), which try the most serious offences,
and
(g) Areios
Paghos as a Supreme Criminal Court (art. 1 and 109 -
115 CPP).
6.5.2. There is no clear
delineation between courts of first
instance and those at the appellate level. The same court may exercise both
functions: So, the misdemeanor courts, the three member juvenile court, the
courts of appeal or higher courts exercise both functions, trying cases at
first instance and also appeals against courts lower than them. Also the
Supreme Court may act as court of appeal hearing appeals against decisions of
the higher courts on matters of extradition requests (art. 451 CPP).
6.5.3. The main rules of jurisdiction ratione materiae are
mentioned briefly above (under 6.5.1.) The jurisdiction ratione loci is determined by the place where the offence has been
committed or where the accused has his domicile or temporary residence (art.
122 para 1 CPP).
6.5.4. The petty offences and
the less serious misdemeanors are tried, the former by the petty offences
courts composed of a single judge, a
magistrate, and the latter, by the one-member misdemeanor courts composed also
of a single judge. All other criminal courts are composed of three or five members, while the mixed
courts are composed of seven members. (See infra 6.5.5.)
6.5.5. Laypersons are participating in the mixed courts of first instance
and of appeal. They are composed of four jurors and three professional judges.
All members of these courts decide jointly on all matters of fact and of law.
Exceptionally, some minor purely legal matters, not directly connected with the
questions of criminal liability of the accused, are decided by professional
judges only (art. 405 CPP).
6.5.6. As already mentioned, the highest court in criminal matters
is Areios Paghos. It is
competent to control the due process, the correct interpretation or application
of the law and the reasoning of the decision of the trial court, according to a
limited number of grounds of appeal for legal error, provided in art. 510 CPP.
6.5.7. The decisions of Areios Paghos are not legally
binding in cases other than the one, which concerned the appeal to it. There is
no rule obliging the lower courts to follow the case law created by the Supreme
Court. However, the lower courts usually take such case law into consideration,
since if they do not follow it, the case is going to be appealed and the
Supreme Court will rescind their decision. Also the Supreme Court itself
follows as a rule its precedents in
other cases, but it is not unusual that a new decision supports a different
view.
6.6. The Bar
and legal counsel
6.6.1. The legal rights of the counsel are the same as those of the accused.
According to art. 96 para 1 CPP every party to the
criminal proceedings may be represented or accompanied by no more than two
counsels at the pre-trial stage and three at the trial. The counsel appointed
properly has the right to represent the accused in all acts of procedure
concerning the particular case, unless the document appointing the counsel
restricts his/her powers (art. 96 para 2 CPP). The
main legal rights of the counsel are in particular the following:
- By art. 97 para 1 CPP the parties (i.e. the accused, the civil
claimant and the civilly liable third party) may through their counsel be
present at every act of investigation, except of the examination of witnesses
and of the accused. But the accused himself/herself has the right to be
accompanied by his/her counsel, in each appearance before the investigating
authorities, in order to defend himself/herself or to be questioned or to confront
other accused or witnesses.
- The counsel and the accused
that are present in an act of investigation (e.g. a house search) may put
questions and make statements, which are included in the record (art. 99 CPP).
- The accused, as soon as
he/she appears before the investigating authority in order to defend
himself/herself, has the right to take knowledge of the contents of the
accusation and of all other documents of the dossier. The accused or his/her counsel may study them
and receive copies of them. The same rights has the counsel whenever his/her
clients are summoned to appear again before the investigating authority, and if
the investigation lasts for more than a month, to take such knowledge once a
month (art. 101 CPP).
- The accused has also the
right to submit his/her defense in writing in form of a brief (art. 104 para 2
CPP).
- The accused may submit
applications to the judicial councils, concerning matters of provisional
detention, restrictive conditions etc. and lodge appeals against the decisions
of the judicial councils (art 307, 465 CPP).
6.6.2. The accused has the right to have a counsel as soon as he/she appears before any
investigating authority (art. 100 para 1 and 101 para 1 CPP, cf. also art. 6 para
2 c European Convention for the Protection of Human Rights and Fundamental
Freedoms -hereinafter: the European Convention-, ratified by Greek Law-Decree
Nr. 53 of 19-9-74). The suspect or accused has the right to counsel during the
pre- trial detention.
6.6.3. If the accused has no
counsel at the ordinary investigation (usually concerning a felony), the
investigating judge is obliged to appoint one ex officio. According to an opinion, this right should be
recognized also to the accused in the summary investigation, if the good
administration of justice requires it (cf. art. 6 para
2 c European Convention and art. 20 of the Constitution). Although the law does
not provide the appointment of a counsel in the above sense as cost-free appointment, in practice it
is considered as such. Except of the provisions mentioned above, no other one
of the Greek laws provides expressly cost-free legal aid. Nevertheless, the
Athens Bar Association provides legal assistance for special categories of
offenders in economic need as aliens, minors, gypsies or drug addicts. Bar
Associations of other parts of the country may provide sporadically legal aid.
Such aid is also offered for certain specific categories of cases by the
National Refugee Council, the Marangopoulos
Foundation for Human Rights, the Office of Legal Aid of the Law Faculty of the
6.6.4. Members of the Bar have special qualifications. They are lawyers who have: (a) received a law
degree from a law school of a
6.7. The position of the victim
6.7.1. Legal descriptions of
the victim of a crime and of similar concepts (e.g. injured person, complainant, civil claimant) are included in
several provisions. According to art. 46 CPP, a person directly damaged may submit a complaint to the p.p. and
request that he/she prosecutes the offence. Furthermore, by art. 63 CPP a civil
action seeking indemnity for material damage or compensation for moral damage
or for pain and suffering, may be brought before the criminal court by the
persons entitled to it according to the Civil Code. Art. 914 of the Civil
Code on tort provides that he who has damaged another person illegally and by
his fault shall be obliged to indemnify the injured person. Furthermore, by
art. 932, in case of a tort, apart from the indemnity for the material damages,
the court may adjudicate an equitable compensation, according to its judgement, for moral damage. This applies especially to the
person who has suffered a damage to his/her health, honor or chastity or who
has been deprived of his/her freedom.
In case a person was killed, such compensation may be adjudicated to the family
of the victim due to pain and suffering.
6.7.2. The victim of the
crime as such has no other role in the
criminal proceedings than that of a witness. But the victim may acquire an active role, if he/she becomes a civil party
by declaring that he/she participates in the proceedings as a civil claimant
demanding either indemnity for material damages or compensation for moral
damage or pain and suffering. This declaration may be effected either in the
pre-trial stage, usually by an express statement, included in the complaint to
the p.p. or in another official form. The declaration or constitution of civil
party may also be effected at the trial proceedings before the taking of
evidence begins.
After this, the injured person
becomes a party to the proceedings, enjoying almost the same rights as the
accused, especially the right to counsel and the right to know the documents of
the dossier (art. 108 CPP). He/she may also bring any kind of evidence,
including witnesses, request that an expertise be conducted etc. In pre-trial
proceedings in which the parties are allowed to be present, the civil claimant
and his counsel have the right to put questions and make statements to be
included in the written records.
6.7.3. The victim in an
indirect way has legal remedies
against a decision of the p.p. According to art. 47 para
1 CPP, if the p.p. considers that a complaint of the victim is not founded on
the law etc., he/she may reject it. The complainant may lodge a petition to the
p.p. at the court of appeals, who may sustain the petition and order his/her
inferior p.p. to prosecute.
6.7.4. The victim of the crime may become a civil
party to the criminal proceedings, by declaring that he/she participates in
them as a civil claimant, claiming either indemnity for material damages or
compensation for moral damage or for pain and suffering. (See also supra
6.7.1.)
6.7.5. The victim of the
crime has no right to present criminal
charges himself/herself. However, the victim can request the p.p. to
prosecute the case. According to art. 46 CPP, a person directly damaged may
submit a complaint to the p.p. and request that he/she prosecutes the offence.
The p.p. examines the complaint and, if it is not based on the law, or if it is
so vague that the courts cannot evaluate it, he/she rejects it. The complainant
may, however, lodge a petition to the superior p.p. who, may sustain the
petition and order the inferior p.p to prosecute the
case.
If the injured person becomes a civil party
to the proceedings, he/she almost enjoys the same rights as the accused,
especially the right to counsel and the right to know the documents of the
dossier (art. 108 CPP). However, he/she has also the right to lodge appeals
against the decisions of the judicial council. At trial, he/she has the same
rights as the accused, (e.g. bring evidence, ask questions, make statements),
except of the privilege of the last word, which belongs to the accused and his
counsel. At the end of the trial, after the p.p., the counsel of the civil
claimant has the right to sum up. He/she may speak about the guilt question as
a condition of his/her claims, but not about the sentence. The civil
claimant has almost no possibility to lodge appeals against decisions of the
trial courts. (See infra 6.7.7.)
If the victim does not become a civil
party, he/she has no right to be heard at the criminal proceedings, except as a
witness.
6.7.6. If the victim
participates in the criminal proceedings as a civil claimant, he/she has the right to counsel, as all
parties to these proceedings (art. 96, 108 and 101 CPP), but not the right to
ask the appointment of a counsel ex
officio.
6.7.7. The victim as civil
claimant has the right to appeal
decisions of the judicial council. The right to appeal decisions of the
trial courts, is limited. In cases of:
(a) convicting decisions as to the adjudication or rejection of his/her
claims and (b) acquitting decisions as
to the conviction of the victim to pay the judicial costs (art. 468 para 1 CPP).
6.7.8. As a rule, the victim
is not assisted by the State in claiming compensation from the offender. This
task is left to the victims themselves. An exception is provided for victims
who are not in a position to bring a civil action before the criminal court,
due to mental illness. In that case the p.p. may make the necessary declaration
(art.70 CPP).
6.7.9. There are no victim support schemes, either national
or local. However, certain NGO’s offer services (legal, counseling, physical or
psychological treatment and/or support) for various categories of victims e.g.
neglected or physically or sexually abused children, abused women, victims of
torture etc. Furthermore, any injured victim, Greek or alien, may be treated
free of charge in state hospitals.
7. SENTENCING AND THE SYSTEM OF SANCTIONS
7.1.-7.2. The penal sanctions
provided in the Greek Penal Code are classified
into penalties (punishments) and
security measures; the penalties are
distinguished in main penalties and supplementary ones. The former include: (a)
the custodial, (b) the pecuniary and (c) the community penalties (e.g.
“suspension of sentence” with or without supervision, “conversion of a
custodial sentence into a kind of day-fine” and “community service”).
7.3. Adolescents (between 12
and 17 years of age) who are considered by the court as criminally responsible
may be sentenced to a special sanction.
This sanction consists in a semi-indeterminate commitment to a correctional
institution and it may be imposed to an adolescent, if the court finds that
educational measures will not be effective. The court’s decision takes into
consideration: (a) the circumstances under which the offence was committed, (b)
the personality of the perpetrator, and (c) the necessity of this type of penalty
in order to deter the adolescent from the commission of offences. (Art. 127 PC.
See also supra 1.3 and 5.3.)
By contrast, educational measures are
imposed to: (a) minors who are not criminally responsible, i.e. children
between 7 and 12 years of age not completed, and (b) adolescents (12 -17 years), if the court finds that there is
no ground for imposing a special penal sanction. These educational measures
include: a) reprimand, b) placing the minor under the responsible supervision
of his/her parents or guardian, c) placing the minor under the supervision of a
supervisor for minors (probation officer) or d) placing a child in a special
state, community or private institution. (art. 122 para
1 PC).
In certain exceptional cases where the
minor offender is physically or mentally handicapped or is dependent on alcohol
or drugs, the court may impose therapeutic measures i.e. to commit the said
offender to a suitable institution (art. 123 para 1
PC).
7.4. The only special sanctions that are provided for special groups of persons
are the sentences provided by the Military Penal Code for the military
personnel.
7.5. The main penalties
include:
-
Capital punishment which has been abolished in
of Law 2172/1993. Previously, however, it was a
standing practice not to execute death sentences; therefore no execution had
taken place since 1972. Recently, also Protocol Nr. 6, to the European
Convention on Human Rights, signed in
-
Imprisonment is a custodial sentence, in principle between a
minimum of 10 days
and a maximum
of 5 years (art. 53 PC).
- Confinement in a
penitentiary, either for life or for a period between 5 years
and 20 years (art. 52 PC) is
the second kind of custodial sentence.
-
Deprivation of liberty for an indeterminate period is provided for habitual
recidivists (arts. 90 and 91PC). However, in practice
this third kind of custodial sentence has never been imposed.
-
Probation
has been formally introduced in
provision constitutes presently art. 100a PC. However,
due to lack of technical infrastructure, (i.e. because probation officers for adults
have not been hired as yet), this community sanction is not enforced.
-
Community service has been instituted in two forms and by two different kinds of
legislation. Firstly, by the CBRTD (art.61 of Law
1851/1989), for inmates who were
sentenced to a short-term imprisonment that was converted into a pecuniary
sentence; these inmates, nevertheless, were serving a prison sentence because
they could not (or they did not want to) pay the required amount of the
“conversion”. Secondly, by art. 1 of Law
2145/1993, for the category of offenders, who before entering prison, at the sentencing stage were sentenced to a
short term imprisonment which could
be converted to a pecuniary sentence and subsequently to community
service.(This last provision has been added to art 82 PC and constitutes
presently paragraphs 6 – 9, as amended again by art. 1 para
1 d of Law 2408/1996). Community service is granted on condition that the
person convicted requests or accepts the
conversion. The sanction of community service has a rather short life and is
still applied hesitantly in cases of adults. In cases of minors community
service is enforced effectively, within the frame of educational measures and
the wide discretionary powers of the juvenile court (art.122 para 2 PC), without a concrete reference to the institution in the Juvenile
Law.
- Compensation orders are not provided in
the Greek penal sanction system. Decisions adjudicating indemnity for material
damages and compensation for moral damage or pain and suffering to civil
claimants are provided in the CPP (cf. supra 6.7.4.). The claims for material
damages are usually referred to the civil proceedings, since they are often
considered as not liquidated. By contrast, the adjudication of compensation for
moral damage or pain and suffering is quite usual in practice.
-
Pecuniary penalties are of two kinds: pecuniary penalties proper (circa USD 210.00
-21,000.00) and fines (circa 40.00 – 840.00). They are provided in the Greek PC
and they are imposed directly in a minority of cases (about 3% of the
sentences.(See supra 2.3. and infra under 11, Table 8). However, the most
commonly used penalty is that of conversion of custodial sentences into
pecuniary ones. In fact, all custodial penalties not exceeding one year
shall be converted into pecuniary penalties (art. 82 PC.) The court may also
order the conversion of penalties up to three years, unless the defendant is a
recidivist and the court is of the opinion that his /her incarceration is
necessary for deterrence purposes. The conversion is effected by counting each
day of imprisonment imposed for a certain sum determined by the court within a
framework, according to the financial situation of the person convicted. In
this way the conversion functions as a system of punishment having much in
common with the institution of day-fines. The courts apply the institution of
“conversion” in most cases, so that only 3% (circa) of the custodial sentences
are served in prisons.(See infra under 11,
Table 8).
The supplementary penalties include: (a)
the deprivation of the civil rights, (b) the prohibition to exercise a
profession for which a special permission of the authority is needed, (c) the
publication of the sentencing decision. The expulsion of an alien criminal may
also be a supplementary penalty (art. 74 PC as amended by a.1 Law 1941/1991).
Furthermore, the withdrawal of a driving license is provided by arts. 103 and
106, of Law 2696/1999 (Code of Traffic Regulations). (However, this penalty is
an administrative and not a penal sanction).
7.6. In
case of default of payment of a fine, a distinction must be made between:
(a) fines imposed from the beginning as such and (b) fines being the result of
conversion of a custodial penalty into a pecuniary one. In the first case, a
fine is considered as part of the public revenues and is collected as every
other part of it. The coercive means applied are the usual ones provided in the
law (e.g. seizure or attachment of the property, garnishment etc.), but they
include also the (civil) arrest and detention (art. 2 Law 1867/1990).
By contrast, in case of the conversion of a
custodial penalty into a pecuniary one, the PC art. 82 para
5 provides expressly that «...the custodial punishment is executed, until the
whole of the pecuniary penalty or fine is paid. And in order to facilitate the
understanding and application of this provision para
10 of art. 82 provides that «the custodial penalty which has been converted
into a pecuniary one or into community service maintains its character as
custodial penalty, even after the total or partial payment or service of the
converted penalty.»
7.7. Security measures are imposed, irrespective of the imputability
of the defendant, in order to protect the public order., either as substitutes
for main penalties for persons who are not criminally responsible or for persons criminally responsible in
addition to penalties. The Greek Penal Code, in other words, provides for a
bifurcated system of sanctions: a) penalties and b) security measures. The
latter include:
-
Custody of offenders in a state therapeutic institution. This measure is applied to
convicts who due to a mental illness or deaf-muteness cannot be punished for a
criminal offence they have committed but who are dangerous to the public safety
(art. 69 PC).
-
Commitment of alcoholics and drug addicts into a therapeutic institution (art. 71 PC).
-
Referral to a workhouse (art. 72 PC) of offenders whose acts may be
attributed to laziness or to a tendency towards vagrancy and irregular life.
This provision is not applied in practice.
-
Other measures
are : the prohibition of residence in certain areas (art. 73 PC), the expulsion
of alien criminals upon their release from prison (art. 74 PC), the
confiscation of objects which are considered as dangerous to the public
order, irrespective of the conviction of
a certain person (art. 76 PC).
7.8. The Penal Code contains certain general provisions on sentencing. More
specifically, the law specifies that the court shall fix the sentence within
the limits set forth in the provisions of the Special Part of the PC or the
special penal laws. The key article on sentencing is art. 79 PC, which provides
that the court in sentencing must consider (a) the seriousness of the offence
committed and (b) the personality of the offender (art.79 para
1 PC). In particular, the court while determining the seriousness of the
offence, shall examine : (a) the damage resulting from it or the danger it
presented, (b) the quality, type and object of the offence, as well as all circumstances
of time, place, method of commission and means, which attended its preparation
and commission and (c) the intensity of intent or the degree of the negligence
of the perpetrator.
In considering the personality of the
offender, the court shall examine the degree of his/her criminal disposition as
evidenced by the offence. Moreover, the court shall examine (a) the reasons and
aim which prompted the offender to commit the act, (b) the character and level
of psychological development of the offender, (c) his/her personal and social
circumstances and life history, and (d) his/her conduct during and after the
offence, including his/her remorse and his/her willingness for restitution.
Furthermore, art. 83 PC provides grounds of
mitigation resulting in a tariff of penalties, applicable either when a special
provision refers to that article (e.g. if the offence remained in the stage of
attempt -art. 42 para 1 PC -) or if the offender was
a simple accomplice (art. 47 para 1 PC).
7.9. No specific sanctions or
measures are provided for certain types of offences. For example:
For traffic
violations the administrative sanctions of withdrawal of the driving
license of the driver and/or the circulation license of the automobile are
provided (art. 103 paras 1 and 2 Code of Traffic
Regulations). The policeman sanctions offenders of petty traffic violations by
a fine equal to one half of the fine provided by the law. If the offender pays
the fine imposed by the traffic policeman, no criminal prosecution is
conducted. Otherwise, the case is prosecuted as a usual petty violation before
the competent magistrate courts (art. 105 Code of Traffic Regulations).
Drug
offences are punished by custodial
sanctions, which are: (a) less severe for users, with possibilities to avoid
punishment, if they are addicts and submit themselves to a detoxification
program and (b) more severe for those involved in drug trafficking[11].
Firearm
offences (possession of firearms) are
punishable by imprisonment and pecuniary punishments (art. 7 and 10 of Law
2168/1993).
Environmental
offences are also punishable by
imprisonment (art. 28 Law 1650/1986).
Economic
offences are of various categories,
i.e. tax evasion, smuggling, bankruptcy, money laundering etc. They are all
punishable by imprisonment and pecuniary punishments.
8. CONDITIONAL AND/OR SUSPENDED SENTENCE AND PROBATION
8.1. The institution of
suspension of sentence is provided in articles 99 - 104 PC. Art. 99 sets up the
requirements and the duration of the suspension of sentence in cases of a
sentence not exceeding 2 years; art. 100 describes the requirements in cases of
a sentence above 2 years but less than 3 years; art 100A refers to the
suspension of sentence with supervision and enumerates the conditions and rules
for the person under supervision and regulates revocation for technical
violations (of rules); art. 101 refers to revocation of suspension due to
revelation of a prior conviction and art. 102 concerns revocation due to an
offence committed while the sentence is suspended; finally art. 103 provides
for the effect of a foreign judgment and art. 104 for the judicial cost and the
supplementary sanctions in case of suspension of a sentence.
8.2. Suspension of sentence
without and with supervision is provided in the following cases:
8.2.1. Mandatory suspension
without supervision: If an offender who has not been previously punished with a
custodial sentence exceeding one month, is now punished with a sentence not
exceeding 2 years of imprisonment, the court shall order the suspension
of sentence for a definite period (3 - 5 years), unless the court decides that
the execution of the custodial sentence is absolutely necessary for individual
deterrence (art.99 PC).
8.2.2.Discretionary
suspension without supervision: In cases where an offender is now punished with
a sentence amounting to more than 2 and
no less than 3 years of imprisonment, the court may order the suspension
of sentence for the same definite period (3 - 5 years) (art. 100 PC). In this
case the court considers, inter alia, (a) the circumstances under which the offence was
committed, (b) the motives of the offender, (c) the offender’s previous life
and character, and (d) the necessity of the custodial sentence for purposes of
individual deterrence.
8.2.3.Discretionary
suspension with supervision: Such a suspension of sentence is possible, if (a)
the requirements of the above mentioned arts. 99 and 100 are fulfilled and (b)
the offender is now punished with more than 3 and less than 5 years of
imprisonment. In this case the court may order the suspension of
sentence on certain conditions and under the supervision and care of a
probation officer for the same definite period (3 - 5 years) (art. 100A PC).
However, suspension of sentence with supervision has not been applied until now
due to the fact that the body of probation officers has not been instituted as
yet. (See supra under 7.5.).
8.2.4. If an alien - who has
not been granted political asylum by the Greek State - is punished with a main
custodial sentence not exceeding 5 years and with a supplementary sentence of
expulsion from the country, the court may order (a) the suspension of the
custodial penalty for an indefinite period and (b) his/her immediate expulsion.
The expelled person may enter the country only after the lapse of 5 years, and
if the Minister of Justice permits it. If the said alien enters the country
illegally, he/she shall be punished by imprisonment of 2 - 5 years and he/she
shall also serve cumulatively the time of the suspended sentence (paras 2-4 of art.99 PC).
8.3. There is no possibility
for a court to suspend a sentence only
in part.
8.4. The general condition of all suspended sentences is that the convicted
person does not commit a new offence during the period of suspension (3 - 5
years). Otherwise, he/she shall serve the suspended sentence cumulatively with
the new one (art. 102 PC).
- Furthermore, in the case of
the discretionary suspension of art. 100 PC, the court may set as a condition
the prior payment of the judicial expenses and indemnity and compensation to
the victim (art. 100 para 3 PC).
- Finally, in the case of
suspension with supervision of art. 100A, the court may impose various
conditions provided in the law (art. 100A para 2 PC).
Such conditions are e.g. the prohibition to the sentenced person to leave
his/her usual domicile without permission of the court, or to leave the
country, combined with the delivery of his/her passport, or to report to an
authority at certain regular dates. There are also conditions for which the
consent of the convicted person is needed e.g. to subject himself/herself to a
certain therapeutic treatment, to offer community service etc.
8.5. The probation officer
supervises the compliance with the
conditions and rules. Until the creation of a body of probation officers
for adults, the law provides that supervision duties are exercised by the p.p.
of the court which ordered the suspension under supervision (art. 100A para 8 PC). (See also supra under 7.5.).
8.6. If during the period of
suspension, the convicted person is convicted again to a custodial sentence for
an offence committed during that period, the suspension is revoked and the suspended sentence is executed after
the new one. However, if the offence is not a serious one, the court may not revoke the suspension of
sentence (art.102 para 1 PC.). If the convicted
person violates the special conditions imposed on him/her, the court, upon an
application of the competent p.p., decides whether the suspension shall be revoked
or not (art. 100A para 5 PC).
8.7. A probation service for minors has existed since 1954 (Law 2793/1954
especially as amended by Law 378/1976). By contrast, such a service for adults,
although provided by art. 100A PC introduced by Law 1941/1991 has not been
created as yet. Therefore, the law provides that, until the creation of a body
of probation officers for adults, supervision duties are exercised by the p.p.
of the court which ordered the suspension under supervision (art. 100a para 8 PC). (See supra under 7.5.).
8.9. There are no volunteers engaged in probationary
activities, in spite of the fact that the institution of probation service for
juvenile delinquents, at its initial stages, had functioned with volunteers
only.
9. THE PRISON SYSTEM AND AFTER-CARE OF PRISONERS
9.1.
Organization of the prison system
9.1.1.
The Greek prison system includes 27 institutions of various kinds, dispersed all
over the country; all run by the central government: the Ministry of Justice. As of 1 August 1999 in the prison system
7,538 inmates (adults and minors) were detained, while the available places
were 4,543 only. (See also Table 4 under 9.1.5).
9.1.2
The main lines of the organization of the prison administration include :
(a) a Director (Warden), (b) a social work service, (c) a health service
including a medical doctor, a dentist, a psychologist, nurses etc., (d) an
administration or secretariat, (e) a number of correctional officers (guards)
supervised by a chief correctional officer and (f) the necessary technicians
and other staff[12]. Prison institutions are
administered by Directors who are accountable to the Direction of Crime
Prevention and Correctional Treatment of Minors or the Direction of
Correctional Treatment of Adults, of the Ministry of Justice. (Presidential
Decree 278/1988, re: Organization of the Ministry of Justice). The Health and
Social Work staff is accountable to the relevant Direction of the Ministry of
Justice. Teachers and other educational personnel are provided by the Ministry
of Education and are accountable to the relevant Direction of the said
Ministry. Certain institutions are staffed with additional specialized
personnel, e.g. the Psychiatric Hospital for Inmates with psychiatrists and
other necessary staff, the Agricultural Prisons with specialists in agriculture
and animal breeding etc.[13]
The execution of sanctions, the protection
of the rights of detainees and in general the immediate supervision of prison
rests with the “public prosecutor for the execution of sentence”, i.e. the p.p.
at the court in the area of which a particular prison is situated. The
functions of this p.p. include (a) all decisions on the prison conditions, the
rights, the complaints and the appeals against disciplinary punishments imposed
on inmates. and (b) other duties
delegated to him/her by the CBRTD and the other laws. (Art. 572 CPP). (See also
9.1.7).
As of 1995 two full-time p.ps for the execution of sentence (the main prosecutor and
his/her substitute) is assigned to each of the four largest prisons of the
country [Athens/Piraeus "Korydallos"
(capacity: 640), Thessaloniki (capacity: 370),
Larissa (capacity 363) and Patra (capacity: 343) ]
are assigned. (Art. 572 para 2 CPP). All these p.ps are
hierarchically accountable to the Public Prosecutor of the Supreme Court and to
the Minister of Justice.
Detainees are only deprived of their
freedom of movement; hence they may exercise in person or by a representative
all their remaining rights (art.5 para 1 CBRTD). For
instance, the right to petition to the correctional authorities and
subsequently to the court of the execution of sentence in case of alleged
violation of their rights (art.5 para 2 CBRTD), the
right to ask for a medical doctor of their choice in case they start a hunger
strike (art. 34 CBRTD), the right to wear their own cloths (art. 36 CBRTD), the
right to vote (art. 3 para 9, Law 2508/1996 and
Decision of the Minister of Justice no 5162/1996 regulating the right of
inmates to vote).
9.1.3.
As of 1995, in principle, responsible
for the development of prison policy is the Central Scientific Council of
Prisons (KESF). This Council operates within the Ministry of Justice and is
constituted by persons distinguished in
the field of corrections and human rights as well as by high rank officials of
the said Ministry (art. 7, Law 2298/1995). More specifically the Council is
responsible for making recommendations to the Minister of Justice on (a) the
correctional policy as a whole, (b) the measures to be taken for the
improvement of the conditions of functioning of the institutions of detention
and (c) the protection of the rights of detainees. However, in practice, the
Minister of Justice with his four special advisers and an ad hoc law drafting committee (when there is a need for legislative
interventions) usually operate without asking the opinion of the Central
Scientific Council of Prisons. Moreover, only rarely the Council’s recommendations
are taken into consideration. This dysfunction of the Council is, inter alia,
attributed to the fact that its recommendations often presuppose expenditures,
and research and evaluation of measures to be taken. The short and difficult
life of the Council has, however, already assisted the Administration of the
Ministry to apply the provisions on the institution of community service, which
now functions to some extent. (See above 7.5.)
On the other hand, it should be pointed
out that recently the Greek Parliament was involved in drafting correctional
policy through a special inter-party committee, which was called upon to study
the prison problem and propose solutions to it. The Ministry of Justice
seriously took certain of the recommendations into account.
9.1.4.
The execution of sentences and fines
is basically regulated by the Code of Basic Rules for the Treatment of
Detainees, enacted by the Law 1851/1989) (CBRTD) and is effective as of 1
January 1990. Since then the CBRTD has been amended a number of times.
The ideological orientation of the CBRTD
mainly draws from the Greek Constitution of 1975, the Rome European Human
Rights Convention of 1950 (ratified by L.D.53/1974), the Standard Minimum Rules
for the Treatment of Prisoners of the Council of Europe of 1973 and 1986 and to
a lesser extent from the European Prison Rules[14] -
since these were not available at the time when the drafters started this task
-and from those of the United Nations of 1955, the Declaration of Human Rights
of the United Nations of 1948 and other international documents. The drafters
also have focused their work on the realities of the Greek prison system and
the available means of the Greek government as well as the cultural specificity
of the country.[15] The CBRTD consists of 15 chapters and 123
articles. Another key instrument for the fair and humane execution of sentences
has been proven to be the U.N. Convention against the Use of Torture and other
means of Cruel, Inhuman or Degrading Treatment or Punishment of 10 December1984
(ratified by Law 1782/1988) and the Council of Europe Convention for the
Prevention of Torture and the inhuman or Degrading Treatment or Punishment
(ratified by Law1949/1991).
The CBRTD does not deal with the execution
of fines. There is only one article stating that those detained because they
are fine defectors or they have not paid the judicial costs are kept separately
from the other inmates and they are not submitted to other restrictions, except
for their deprivation of liberty.
9.1.5.
In theory, the Greek prison system consists of (a) general institutions of
detention and (b) special institutions. The general institutions are
distinguished in type A institutions (for pre-trial detention, people detained
for debts and inmates convicted to short term imprisonment) and type B ones
(for the remaining inmates). Women are kept in separate institutions or in
separate sections of the main male institution. The special institutions
include the institutions for juveniles, the semi-open prisons etc. (art. 18
CBRTD).
In practice, the Statistical Office of the
Ministry of Justice distinguishes five categories of institutions of detention:
a) three semi-open agricultural prisons b) three correctional institutions for
minors c) six closed prisons one of them for females, d) two therapeutic
institutions - third one to treat drug addict inmates will
operate soon- and e) thirteen judicial[16]
(temporary prisons), all of them being closed except for one which houses
inmates working in the bakery institution which delivers bread to a number of
hospitals in the greater Athens area. (See Table 4).
Officially, no distinction is made between
high-security and low-security prisons. All closed prisons are relatively
secure. However, gradually an internal classification has been created. Thus,
in the prison of Patras mostly sentences for drug
violation are executed, in the prison of Kerkyra
(Corfu) long-term sentences etc. The agricultural prisons, on the other hand,
are open prisons, even if they are not classified as such; the inmates every
morning leave the prison premises and work in the fields or they take care of
sheep, cows, pigs, etc. which are free in pasturing-grounds.
TABLE 4
The
Greek prison system (1 August 1999)
Prisons Capacity No. of Inmates
Agya 146 139
Kassandra 300 262
Tyrintha 200 249
Kassavetia 250 149
Volos for Minors 65 137
Alikarnassos 105 279
Kerkyra 115 161
Patra 343 652
Trikala 125 173
Chalkida 120 203
Korydalos
for Females 270 328
Prevantorium 100 175
Psychiatric
Hospital 160 206
Thessaloniki 370 540
Ioannina 80 203
Komotini 105 162
Korydallos
for men 640 1843
Kos 45 108
Larissa 363 636
Nafplio
80 163
Neapolis 45 107
Tripolis 65 96
Chania 67 114
Chios 100 118
Korinthos 35
20
Bakery
Prison 38
41
---------------------------------------------------------------------------------------------------------------TOTAL 4,543 7,538
Source: Ministry of Justice: Direction of Correctional Treatment for Adults
(Unpublished data).
9.1.6. The juvenile prison system presently
consists of three institutions, all of them for males. Two of them for boys, 13
to 21 years of age, who serve a sentence (art.127 PC), and one of them for
younger boys to whom educational measures have been imposed (art. 122 PC). (See
also supra under 5.3.). There are no institutions for female juvenile
delinquents as of 1998. The existing one has been abolished because the cost
was high and the benefit almost null. The few, very young female detainees have
been transferred to welfare institutions. At the present time the juvenile
court judges are using non-custodial measures, and in the rare cases (usually
no more than 5) in which a custodial sanction has to be pronounced, a special
section of the Korydallos prison for women is used. A
new institution for both boys and girls, 13-18 years, has already been designed
and it will be built soon.
9.1.7.
The placement of prisoners is within
the competence of the penal court, which imposes the penalty of deprivation of
liberty. Subsequently, on the basis of a list classifying prisons and vacancies
communicated by the Ministry of Justice to all courts of the country, the p.p.
for the execution of sentences assigns the convicted person to a particular
prison. In the rare cases in which the Warden cannot accept a particular
convicted person in his/her institution, the Secretary General of the Ministry
of Justice decides on the matter. Often certain detainees wish to be transferred
to another institution. In this case, they make a petition to a three member
Committee on Transfers (KEM) operating within the Ministry of Justice. The
Committee makes its decision on the basis of written guidelines[17].
9.1.8.
Old prisons are built in order to accommodate two or more prisoners per cell. The new ones that are being built
follow the “one prisoner per cell policy”. However, the system allows two in a
cell due to prison overcrowding.[18].
(See also Table 7). Inmates are free to move around inside the section of the
prison to which they are assigned. During certain hours and at night they are
locked in their cells. In each prison 2-3 single cells are reserved for
solitary confinement of inmates who create disciplinary problems.
9.1.9.
Greek penal establishments as a rule follow a regime free of compulsory tasks. Educational, recreational activities or
vocational training and sensitization groups for drug dependents, and
especially work inside the prison, are provided on a voluntary basis. This is due
to the fact that the Greek Constitution, which prevails over the European
Convention for the Protection of Human Rights and Fundamental Freedoms,
prohibits forced or compulsory labor. Our Constitution in art.22 para 3 does not include a provision similar to that of art
4 para 3a of the said Convention, stating that forced
labor does not include work required to be done in the ordinary course of
prison detention[19]. Hence, Greek
correctional policy aims at motivating inmates to follow working regimes and educational
programs by providing incentives. The most important incentive is the counting
of one day of work as 2 or 1 1/2 days of imprisonment, depending on the type of
work. This means that if a person is convicted to 6 years of imprisonment and
if he/she works during all this period, he/she may complete this sentence
within 3 years. This privilege also exists for the persons detained awaiting
trial. Parenthetically, it should be reminded that since 1996 pre-trial
detention is the exception. It may only be imposed for people that have
allegedly committed a felony and even felons are detained under certain
conditions only. (See also supra 6.2.2.)
9.1.10.
A prisoner may work or pursue education
outside of prison under certain conditions. In the first place the regime
of furloughs[20] allows inmates to leave
the prison premises certain hours in order to follow an educational program
under certain conditions (educational furloughs). In order for such a furlough
to be granted: (a) no prosecution for escape from prison or for any other
offence committed either before or after their detention should be pending, (b)
the inmates should be in prison when they are not in an educational
institution, and (c) details concerning the educational program to be followed
should be clearly stated in the decision of the special furlough committee,
e.g. the educational institution to be attended, days and hours of absence from
prison etc. (art. 56 CBRTD).
Education outside the prison in fact has
worked satisfactorily especially with young inmates who started or continued
university education. Young inmates are even granted scholarships to meet their
expenses, and older ones are getting by the prison administration some
"pocket money".
Work
outside prison, is possible only in the agricultural prisons[21].
(See supra Table 4). The provisions regulating semi-closed institutions where
working outside is a must (art. 58-60 CBRTD) have been suspended, due to
insufficient economic resources.
9.1.11. Under Greek law
(art. 52 CBRTD) furloughs are an
essential part of the execution of custodial sentences. There exist three kinds
of furloughs: regular, exceptional and educational. Regular
furloughs
aim at the humanization of the treatment of detainees and their social
re-integration. In the rare cases, when the conditions required by law for
regular furloughs are not satisfied but there is a proven and cogent need for a
leave of absence from prison, an exceptional furlough may be granted by
the p.p. of the execution of punishment. Exceptional furloughs may last a few
hours only and the detainee is constantly escorted. Finally, detainees who wish
to complete their primary, secondary or tertiary education or technical or
occupational training may be granted an educational furlough. (See supra
under 9.1.10).
The institution of furloughs started with
carefully drafted, rather conservative provisions in 1989. Gradually, with
consecutive amendments[22] the
conditions under which a regular furlough can be granted have been liberalized
in most of the cases. Yet, in certain cases they have been restricted (e.g. a
new regular or educational furlough cannot be granted for a period of 2 years
to detainees who did not return to prison upon the end of the period of their
furlough or upon revocation of it).
Regular furloughs are granted on the following conditions:
a) In principle, the convicted persons should have served
1/5 of the imposed sentence and at least three months of it. However, in cases
of life imprisonment the detainees should have served at least 8 years and in
cases of adolescents or young adults, they should have served 1/3 of the
imposed minimum period of correctional treatment. (This type of sentence is
partially indeterminate and the court sets a minimum and maximum period.)
b) A penal prosecution for a felony should not be pending against the convicted person.
c) The five member Furlough Granting Committee consisting
of the public prosecutor, the prison warden, the psychologist, the special
scientist and the senior social worker of the prison, who makes
recommendations, estimates that there is no risk of either escape or commission
of offences.
9.1.12.
Absconding from prison is considered
an offence.. According to art.173 PC, any detained person absconding from
prison shall be punished by imprisonment of 10 days up to one year. It should be noted that almost half of the
cases of absconding consist in not returning from a furlough or returning at a
later date than the one prescribed.
9.1.13. Before the 90’s
less than 3% of the prison population were aliens. Approaching the year 2000
the Greek prison system contains over 40% (3,338 or 44.4% out of a total of
7,511 on 1 July 1999) of aliens,
mostly Albanians, Rumanians, nationals from the former Yugoslavia or the former
USSR, Turkey, Syria, Iraq, etc.
TABLE 5
Changes in the alien prison
population (1993-1999)
1993 1994 1995
1996 1997 1998 1999
Total 7,135
6,884 5,695
5,897 6,075 6,150 7,511
Aliens 1,650
1,560 - 1,720 2,338
- 3,338
(23.1%) (22.6%)
(-) (29.1%) (38.4%)
(-) (44.4%)
Source: Unpublished data of Ministry of Justice. Data refer to 1 December for the years 1993
and 1997. For the years 1994,1995, 1996 and 1998 data refer to I January and
for 1999 data refer to 1 July.
9.1.14. Given the fact that nearly 50% of the
inmates are aliens, one would expect that the issue of prison overpopulation
could have been considerably alleviated by the signing and ratification of the Convention on the Transfer of Sentenced
Persons (Strasbourg, 1983). This Convention was ratified by Law 1708/1987
and entered into force, as of 1 April 1988; however, due to the required
consent of the sentenced person has not changed the picture dramatically.(See
infra 9.2.1.)
9.2.
Conditional release (parole), pardon and after care
9.2.1.
The Convention on the Transfer of Sentenced Persons did not find among foreign
convicted persons a positive response. The overwhelming majority would prefer
to remain in Greek prisons than be transferred to prisons of their home
country. Thus crowded conditions did not improve. A population reduction policy
through front door and back door strategies was the next option. Both the Penal
Code and the CBRTD include provisions facilitating the conditional release with and without supervision and consecutive
amendments have changed conditional release to an early almost unconditional
release.
Conditional release with supervision (and suspension
of sentence with supervision) has remained in the books. The enactment of Law
1941/1991 which provided for the creation of a service of "supervisors/assistants for sentenced
adults" - a body of probation officers for adults, has not been established so far (see supra
7.5. and 8.8); therefore, there is no supervision. Moreover, conditional
release is mandatory, unless the court with a specific reasoning based on the
behavior of the inmate during custody, considers the continuation of custody absolutely
necessary. (Art. 106 para 1 PC). Furthermore,
art.110, para 2 states that the Prison Directorate is
not required to justify its decisions for early release of convicts. By
contrast, it has to justify its decision to deny conditional release
after the laps of the required minimum period of custody.
9.2.2.
According to art.105 PC the requirements
for conditional release (without supervision) are as follows:
a) the persons convicted to a custodial sentence should
have served 3/5 of their sentence and no
less than a year ( if the convicts are more than 70 years old they should have
served 2/5 of their sentence), and
b) the persons convicted to a life sentence should have served 20 years ( if the convicts
are more than 70 years old they should have served 18 years of their sentence),
It should be noted that the decision,
which imposes a custodial sanction, is not required to be irrevocable.
9.2.3. Certain conditions are attached to conditional
release. These conditions concern the place of residence and the way of
life of the conditionally released inmates. Usually they are required to
present themselves twice a month to the police station nearest to their
residence.
9.2.4.
Conditional release is granted by the
competent court (the so-called judicial council of misdemeanors) of the
place where the custodial sentence is served. The person whose release is
considered appears personally or is represented by an attorney.
The proceedings are initiated by a
petition of the prison directorate submitted one month before the time of
maximum stay in prison expires. A report of the prison social worker is
required in the exceptional cases where a person is not recommended for early
release (art. 110 PC).
9.2.5.
Conditional release is, for the time being, without supervision. Hence, police
is supervising compliance with
conditions, to the extent that this is possible.
9.2.6.
Conditional release may be revoked for two reasons: either because of
commission of an offense (art.108 PC) or because of breach of the conditions ("technical violation" of ar.107
PC). In case of revocation, conditionally released persons return to prison to
continue their sentences (art.108 PC).
9.2.7.
Amnesty and pardon are two different
institutions. According to art. 47 paras 3 and 4 of
the Constitution, amnesty is granted only for political offenses by law passed
in a plenary session of the Parliament with a majority of the 3/5 of the total
number of its members. It extinguishes the punishable character of these
offenses on the basis of general criteria, concerning the offenses and not
individual circumstances of the perpetrator(s). By contrast, the pardon
requires a decision of the President of the Republic on recommendation by the
Minister of Justice and after consulting with a council composed in its
majority of judges, by which sentences against certain perpetrators may be
pardoned, commuted or reduced.
9.2.8.
and 9.2.9. A number of institutions are
involved in after-care:
1.
The Societies for
Released Prisoners (Law of 869/1937 and Royal Decree of 5/19.04.1938) which,
grant an almost symbolic economic assistance.
2.
The Organization of Employment of the Labor
Force (OAED). This is the most important institution because it: (a) provides
economic assistance to unemployed ex-prisoners, (b) organizes programs of
vocational training, (c) subsidizes employers who are employing ex-prisoners,
(d) assists ex-prisoners to start their own small business and become
self-employed, etc.[23]
3.
Vocational
training and support through the assistance of the Social Fund of the EU are
offered by the Law Schools of various Universities. For instance, in Athens the
Center for Penal and Criminological Research and the Legal and Social Aid
Clinic. In Thessaloniki the Bureau of Acceptance and
Support of Released Persons, etc.
4.
Additional
services are provided by various institutions such as, the General Secretariat
of Lay Education, the National Organization of Welfare, the Municipalities of
Athens and of other cities, certain technical institutions, etc.
Housing
and long term-counseling services are usually not provided.
10. PLANS
FOR REFORM
10.1
Globalization of the economy and the social life in general brought about
qualitative and quantitative changes in the Greek crime scene. Greece is
meeting these new challenges - and quite often problems - with initiatives
stimulated by European or international conventions, Directives of the European
Union and Recommendations on crime and criminal justice of the Council of
Europe and the United Nations. The criminal justice system during the last
decade is undergoing consecutive legislative and structural changes. Therefore,
plans for reform are in process. It
is worth mentioning:
-
The Draft Code of
Penal Procedure. A drafting legislative committee of the Ministry of Justice is
re-examining a first draft prepared in 1996 in the light of comments made by
various Law Schools of the country, the Bar Association, the Associations of
Public Prosecutors and Judges etc.
-
The Draft Law on
the establishment of Units for Care of Juveniles. This legislation provides for
the re-orientation of the treatment of juvenile delinquents and young persons
at social risk (offenders and victims) in the light of the UN Convention on the
Rights of the Child (Law 2101/1992), the UN Rules for the Protection of
Juveniles Deprived of their Liberty (General Assembly decision 45/113), the
Riyadh Guidelines (General Assembly decision 40/112), the Beijing Rules
(General Assembly decision 40/33) and a number of relevant recommendations of
the Council of Europe.
-
The Draft Code of
Corrections. A drafting committee of the Ministry of Justice - the sixth one
for the same Code - is re-examining the aforementioned Code which is going to replace the CBRTD.
-
The Draft on the
establishment of an Institute on Crime Policy of the Ministry of Public Order
is under consideration by a committee of experts - mainly professors of
Criminology. It is expected that it will soon materialize.
-
The body of
supervisors (probation officers) of adults under suspension of sentence,
executing community sanctions or released under conditions will be created, as
it is provided already by law 1941/1991. (See supra 8.7. and 9.5).
-
The restructuring
of the police forces: A) With respect to education: Police Academy (art.3 of Law 2296/1994) has
acquired the status of university level, providing four year studies and
students being accepted through general examinations as all other University
students. A graduate training will be soon provided within the Universities. B)
With respect to policing: a) foot patrols will be increased and partnership
in crime control is expected to be encouraged; b) a special body of frontier
guards has been created and will be further developed by hiring more guards; c)
the local government will soon have its own police. And the Greek Police will
transfer certain of its competencies (e.g. violation of provisions concerning
public nuisance, hours of operation of recreation shops, pollution etc.) to the
municipal police. C) With respect to computerization: Police is
increasingly using electronic and other technological advanced equipment and
devices for clearing up crime suspects, for neutralizing bombs of terrorists,
for statistical purposes etc.
-
The development
of local government will encourage the creation of local Crime Prevention
Councils. Already a couple of municipalities introduced the institution of such
councils.
-
The emphasis on
victims which has been stimulated by activities of Greek professional
associations of penal law scholars echoing policies and recommendations of the
United Nations and the Council of Europe.
-
A number of
international documents has been signed and their ratification is envisaged,
such as of the European Convention on the International Validity of Criminal Judgements, the European Convention on the Transfer of
Proceedings in Criminal Matters and others.
10.2 There is a tendency
to reduce the use of imprisonment and/or
to expand the use of non-custodial sanctions. Primarily imprisonment is
converted into financial penalty. Some years ago, conversion was possible
only for sentences up to 18 months; an amendment changed 18 months to 24 months
in the first place, and now to 3 years. Thus, at present time almost all
sentences of imprisonment up to three years can be converted into fines. The
emphasis on non-custodial sanctions and measures is the result of relevant
recommendations of international organizations and pressures created by prison
overcrowding. However, the materialization of such reforms has encountered
difficulties mainly due to the fact that financial resources have not been
found for the institution of supervisors (probation officers) of adult
offenders whose sentence has been suspended or who are ready for early release.
Hence, suspension of sentence without supervision and conversion of custodial
penalties into pecuniary ones are still the most usual alternatives to
custodial sentences.
10.3 There is a
tendency towards both penalization (increasing penalties) and criminalization (creating new
crimes)[24].
Sentences provided for certain offences such as drug trafficking in
schools, military installations etc. or for certain violent offences have been
increased. Furthermore, a few new
offences e.g. torture as such, certain forms of tax evasion, environmental
offences, computer crime and money-laundering have been created in the last two
decades. This tendency was the result either of international influence or of a
belief in general and specific deterrence. There has not been any real
evaluation of such penal reforms. In certain cases the courts have found ways
and means to apply such legislation reluctantly (e.g. torture) or attorneys
have succeeded in convincing the courts that their clients committed a lesser
offence and not the one for which they were indicted (e.g. drug trafficking or
money laundering).
10.4. In view of the wide possibilities granted to the
victims under the CPP, (see supra under 6.7.) there is no significant tendency
to increase the support provided to
victims of offenses. Most of the resolutions of the Second Congress (1989)
of the Greek Association of Penal Law on the position of the victim in the
criminal justice system concerned the correct application of the existing
provisions.
11. STATISTICS AND RESEARCH RESULTS ON CRIME AND CRIMINAL JUSTICE
11.1. Greece in the 90’s seems to have lost the last
elements of a Gemeinschaft
society. Anonymity, heterogeneity and urbanization are constantly increasing
while informal controls are decreasing and formal controls are not effective.
Thus, the picture of criminality in Greece as it is depicted through crime
statistics - with their inherent limitations - is a picture of rising crime
rates, especially in particular offences. (See Table 6). More specifically:
Between the years 1988 and 1998, while the total crimes (not the total of
suspected offenders) reported by the Police presented an increase less than
25%, there was a trend of dramatic increase in particular offences e.g. drug
offences (which increased by more than 300%),
robberies (which increased by almost 200%), and thefts as well as homicides
(which increased by approximately 100%). Looking in the differences between the
years 1997 and 1998, robberies and drug offences seem to be the great social
problem, while homicides present a small decrease (-1.7%). Bodily injuries
increased more between the years 1997 and 1998 (5.5%) than between 1988 and
1998 (3.6). Drugs and (more or less) organized crime of clandestine immigration
and exploitation of women became a social issue after 1990.
Due to
the quantitative and qualitative changes in criminality after the 90’s the
clearance rate has dropped from 58.4% for felonies and 90.4% for misdemeanors
in 1987 to 45.9% for felonies and 77.4% for misdemeanors in 1997 (1997 is the
last year with published, available data). The worst year for felonies has
been, however, 1995 with a clearance rate of 38.7% for felonies, which have
always presented a problem.
It appears that the whole criminal justice system was not prepared to
receive the abrupt changes in criminality. Police seems to have responded more
effectively than the subsystem of courts. This lagging behind of the court
system is especially reflected in conviction statistics which, inter alia,
face a special problem: the computerization of the court system has started to
be applied but the old system (punching IBM cards) is still being used
unsuccessfully due to this transitional situation. Thus there are no recent
statistics on convicted offenders and on sanctions available. This explains the
emphasis on the years 1990-1995 in the Tables which follow.
The statistics of convicted
offenders are in discordance with the statistics of cases reported to the
Police. This is probably due to the fact that the court system cannot keep pace
with the input of criminality and the output of the police system. After the
90’s a considerable court delay is creating bottlenecks and vice versa.
The
provisions on sentences and hence, sentencing practices are quite peculiar
under the Greek criminal justice system. The basic sentence is imprisonment.
This sentence, however, is by law converted into non-custodial sentences in the
overwhelming majority of cases. Non-custodial sentences are pecuniary penalty
or fines, community sentence and suspension of sentence with supervision. (The
last two non-custodial sentences are either not applicable or applicable in
extremely rare cases). The situation more or less remains the same over the
years with one exception: the legislative amendments which aim at increasing
the month-limit (from 12 to 18 months and then to 24 and now to 3 years) that
allows for conversion of imprisonment to a non-custodial pecuniary penalty.
Therefore, the trend is for use of
imprisonment, which is subsequently converted. Thus, finally more than 96%
of the offenders are convicted to a non-custodial sanction (see Table 8).
Conversion is getting more offenders out of prisons (73%) than what suspension
of sentence without supervision (19.5%) or fines imposed as such (3%) do.
Despite the
ample use of the institution of conversion on the one hand, and of conditional
release on the other, prison population is
increasing. Additional measures, which have been taken (e.g. early conditional
release, release of people serving life imprisonment after serving 16 years of
incarceration etc.), have not affected prison overcrowding in the long run[25].
(See Table 3 supra and Table 9 infra)
What is most interesting is
that prison population is increasing faster (+60.0 % change between 1985 and
1995) than cases on reported offences by police (+12.9%), while cases on
convicted offenders are even decreasing (-20.4%), probably due to court delay.
The trend of
prison population increase observed is the result not only of enforcement of
non-custodial sanctions but also of the qualitative changes which are occurring
in the committed crime (most serious offences for which longer sentences are
imposed) and involvement of alien population in crimes (see Table 11 infra).
Finally, the
prison situation and the characteristics of prison population are eloquently
described in Table 11.
11.2. The
state’s responses to the abrupt social and crime changes since 1990 are
continuous. Personnel and resources of the criminal justice system are
constantly increasing. The same is also true with respect of selection , hiring
and education of police personnel, members of the judiciary - public
prosecutors included – and correctional staff. However, the number of
prosecutors and correctional staff is still low[26].
TABLE 6
Crimes reported by the police (1988-1998)
Years Total Homicide Bodily
injury Thefts Robberies Drug offences
[Assault]
--------------------------------------------------------------------------------------------------------------1988 311179 176 6698 42501 657 1557
1989 287177 184 6559 43087 840 1750
1990 330803 204 6610 45324 1102 1968
1991 358998 231 6938 51591 1207 2020
1992 379652 261 6817 50626 1519 2024
1993 358503 254 7022 54181 1505 1577
1994 303311 264 7566 57349 1257 1837
1995 329110 285 6859 74236 1600 2930
1996 349476 318 6470 76197 1487 4272
1997 377811 350 6582 85070 1967 5970
1998 385681 344 6945 85207 2254 6574
-------------------------------------------------------------------------------------------------------------------%
Change
1988-98 +23.9 +95.4 +3.6 +100.4 +243.0 +322.2
-------------------------------------------------------------------------------------------------------------------
%
Change
1997-98 +2.0 -1.7
+5.5
+0.1
+14.5 +10.1
Source: Hellenic Police, Statistical Yearbooks of respective
years. Ministry of Public Order.
Notes on the Table:
For definitions
of offences see section 5.9. However, for statistical purposes some general
comments are noted below:
-
Police statistics
include non-cleared up cases as well.
-
"Total" does not refer to the total of the selected five offences. It refers
to the total number of violations of the Penal Code and the Special Penal Laws.
-
"Homicide"
includes intentional homicide (completed and attempts).
-
"Thefts" include all types
of theft. The category of "thefts" includes both misdemanors
and felonies.
-
"Robbery" includes all cases of robbery e.g. bank or store robberies as well as
those cases of purse snatching with the
use of violence which are not considered "theft". All robberies are
felonies.
-
"Assault"
is not provided by the Penal Code (see above 5.9). In Police statistics there
is a category of bodily injury, which excludes bodily injury due to a traffic
accident by negligence, and "simple bodily injury"" by
negligence. Bodily injury is a misdemeanor.
-
"Drug
offences" include all drug violations (from use and possession or cultivation of
cannabis to heroine trafficking).
TABLE 7
Convicted individuals 1990-1995
Years Total Homicide
Bodily injury Thefts Robberies Drug
[Assault] offences
--------------------------------------------------------------------------------------------------------------
1990 109190 42 3816 3235 48 952
1991 112203 35
2937 3336
53 1057
1992 107567 49
3101 3171
84 1151
1993 92427 46 4630 2773
84 1156
1994 83818 51 2779 2679
88 872
1995 85909 79 3344 3238 203
1569
-------------------------------------------------------------------------------------------------------------------%
Change
1990-1995
-21.3 +88.0 -12.3 +0.1 +322.9 +58.5
-------------------------------------------------------------------------------------------------------------------
Source: Hellenic Statistical Service, Judicial Statistics of
the respective years.
Imprisonment up to1year (usually converted) 77,978 (73.03%)
Suspension of sentence 20,856 (19.53%)
Imprisonment 1-5 years 4,175 (3.91%)
Pecuniary sentence (imposed as such) 3,275 (3.06%)
Temporary incarceration 438 (0.41%)
Life incarceration
37 (0.03%)
Unknown sentence
6 (0.00%)
------------------------------------------------------------------------------------------
TOTAL 106,765 (100%)
Source: Hellenic Statistical Service,
Judicial Statistics,1995.
TABLE 9
Police, Court and Prison
Statistics (1984-1998)
Years Police
Court Prison
1984 352,488 113,988 3,766
1985 291,355 108,011 3,559
1986 294,300 123,858 3,478
1987 303,182 140,403 3,873
1988 311,179 132,295 3,938
1989 287,177 108,983 4,274
1990 330,803 109,190 4,582
1991 358,998 112,203 5,255
1992 379,652 107,564 5,275
1993 358,503
92,427 6,555
1994 303,311
83,818 6,884
1995 329,110 85,909 5,695
1996 349,476
- 5,897
1997 377,871
- 6,075
1998 326,786 - 6,150
1999 - - 7,511
%
change
1985-1995 +12.9 -20.4 +60.0
-------------------------------------------------------------------------------------------------------------------
Sources: National Statistical Service of Greece, Judicial
Statistics, years 1984-1994. For prison statistics, unpublished data of the
Ministry of Justice referring to 1 January of each year, with exception of 1997
data referring to 1 July.
Prison population and prison rate per 100,000 inhabitants for selected years
YEARS PRISON
POPULATION
Total Per
100,000
--------------------------------------------------------------------------
1970 3,192
40.9
1980 3,016
36.6
1990 4,582 49.2
1997* 6,075 62.2
1999** 7,538 71.7
Source: Unpublished data of the Ministry of Justice..
* December
1997
** August 1999
TABLE 11
Characteristics of prison population (1 July 1997)
Prison capacity 4,542
Total number of
detainees* 7,511
Pre-trial detainees 2,333
Alien detainees 3,388
Female detainees
326
Minors detained 640
Detained for drug law violations 2,731
Convicted :death penalty** (4 Junta colonels) 6
life incarceration 433
5-10 years incarceration 1,518
10-15 years incarceration 871
15 years incarceration and above 776
up to 6 months imprisonment*** 211
6 months to 1 year imprisonment*** 29
1-2 years imprisonment ***
266
2- 5 years imprisonment 705
Detained for debts to the state
11
Source: Unpublished data of the Ministry of Justice
*. The total does not refer to the categories
listed due to overlapping of categories i.e. a person detained for drug
violations may also be counted as a pre-trial detainee, as a foreigner and
female.
** Death penalty has been converted into life
incarceration
*** Those cases of imprisonment have not been
converted: either because they are exempted from conversion or because the
convicts prefer not to convert their sentence into pecuniary penalty or they do
not posses the required amount of money.
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[1] Information
provided by data of the U.S. Department of State Background Notes,
[2] Ibid.
[3]A. Davanelos, Labor Issues, in: Hermes, No 20, February 1998
see, http://www.ana.gr/hrmes/1998/feb/labour.htm
[4] See
above footnote 1.
[5] Data
of the Ministry of Labor and of the General Association of Greek Workers as
quoted in newspaper ELEFTHEROTYPIA,
[6] Ibid.
[7] Approximate
figures as quoted in newspaper KATHIMERINI,
[8] U, S.
Department of State, op.cit. Footnote 2, p. 2.
[9] Data of the second trimester of 1998. Newspaper KATHIMERINI,
(Economic Section)
[10] Statistical
Office of the European Communities (personal communication).
[11] For more, see M.Mavris/C.D.Spinellis/P.Zagoura,
[12] See
esp. Decision of the Minister of Justice no. 3400 of
[13] Ibid.
[14] Recommendation no.R (87) 3
[15] For
more on the CBRTD see C.D.Spinellis, Human Rights in
Greek Prisons, in: International Penal and Penitentiary Foundation, Human
Rights and Penal Detention, (P.-H. Bolle ed.,)
Proceedings of the Seventh International IPPF Colloquium, Neuchatel/Switzerland,
3-7 October 1992, pp. 53-68.
[16] A
judicial prison, in principle, is a prison for inmates awaiting trial. These
inmates are either on remand or they are to be tried on appeal or they are
convicted for one offence and they are on remand for a second. They are usually
transferred from closed or agricultural prisons. In practice, judicial prisons
often accommodate inmates serving long term imprisonment.
[17] The
three members are: The President of the Central Scientific Council for Prisons,
a public prosecutor of the Athens Court of Appeals and the Director of
Penitentiary Affairs of the Ministry.
[18] See , C.D.Spinellis, Attacking Prison Overcrowding in
[19] Cf. Y.
Panoussis/Y.Lixouriotis/S.Koutsoubinas, Aspects juridiques du travail obligatoire
dans les prisons helleniques.
Une premiere approche interdisciplinaire, Athenes/Komotini,
1994.
[20] For more,see Kalliope Spinellis/Dionysios Spinellis, Urlaub aus der
Haft: Seine Entwicklung und Anwendung
in Griechenland, Festschrift fuer
Guenter Bemmann (J.Schultz/T.Vormbaum,Hrsg.,
[21] See, Cotsianos, S. Les Penitentiaires Agricoles (These), Paris, 1948.
[22] E.g.
art.21 of Law 2331/1995, art. 10 of Law 2298/1995, art.3 of Law 2408/1996, art.3 of Law 2479/1997 and
art. 22 of Law of 2521/1998.
[23] See esp. circulars of OAED no 99043 of
23/9/1985 and 91453 of 11/10/1994.
[24] See,
also, N.Courakis,
Crime in modern-day
[25] C.D.Spinellis, Attacking prison overcrowding in
[26] For more see chapter on