New Criminal Code and New Code of Criminal Proceedings to come into force as of 01.07.2019 in Greece

Date: 1st July 2019

Laws 4619/2019 and 4620/2019 respectively have been published on 11 June 2019 (Government Gazettes 95Α /11.06.2019 and 96Α /11.06.2019 respectively) replacing the existing legislation and introducing a whole new sets of rules as regards the criminal law and proceedings in Greece.

Highlights of the new legislation include the abolition of minor offences, the introduction of community service amongst the main sanctions provided for by the law, several amendments as regards the calculation and imposition of monetary sanctions, as well as the abolishment of the existing suspension of the execution of sentences of over 3 years of imprisonment.

Moreover, notions depicting the restorative justice approach are being introduced into Greek criminal proceedings, such as the criminal conciliation and the criminal negotiation. Said new rules are expected to expedite the criminal proceedings in Greece and lead to the decongestion of the number of cases finally reaching the courtrooms.

Introduction

The much debated and long expected revision¹ of the Greek Criminal Code (GCC) and the Greek Code of Criminal Proceedings (GCCP) has finally taken place, since both Laws have been voted by the Greek Parliament on 06.06.2019² .

New sanctions – Abolishment of the suspension of execution or conversion of any sentence over 3 years of imprisonment

The new Criminal Code defines imprisonment (10 days-5 years), monetary fine (max. of 360 units, each unit amounting to Eur 1-100) and community service (100-720 hours of service) as the main sanctions against all misdemeanors (art. 50 and 51 of GCC)³ .

Sentences of over 3 years of imprisonment shall neither be suspended, nor converted henceforth. Instead, 1/10 of such sentences must be obligatorily actually served in prison (art. 105A GCC). Following said service, the convicted person may request for the court to convert the rest of his/her sentence to community service, according to the provisions of the law.

Following the conviction for a felony, the incarceration to be imposed may vary from 5 to 15 years, unless the defendant has been given a life sentence (ar. 52 par. 5 of GCC).

Prosecution against property offences to be initiated only following the filing of a complaint by the victim – Abolishment of Law re protection of the State’s property – Offences included in special criminal laws

Most of the property offences (fraud, embezzlement, breach of fiduciary duty as a misdemeanor, defrauding creditors and usury), when causing damage to natural persons or private legal entities, shall be prosecuted henceforth only following the filing of a criminal complaint by the harmed person/entity (art. 381 and 405 of GCC). Same offences may be prosecuted by the competent Prosecutors on their own motion (proprio motu) only when causing damage to the Greek State and public entities.

Furthermore, Law 1608/1950 re protection of Greek State’s property, which had lately caused a great debate for its austerity and anachronistic provisions, is being abolished (ar. 462 GCC).

Finally, GCC provides for new sentences for all felonies included in special criminal laws and for which said special laws provided for sentences of incarceration of up to 10 years until the introduction of the new GCC (i.e. 5-10 years). These new sentences should vary from either 1-5 years of imprisonment or to 5-6 years of incarceration, depending on the specific circumstances of each case (ar. 463 par. 3 of GCC)⁴ . Should the special laws provide for sentences of incarceration of at least 15 years, the new sentence shall be the one of incarceration of minimum 10 years⁵ .

Explicit introduction of the presumption of innocence and of specific requirements as regards the justification of the Judgements and accusations

The new GCCP, following the incorporation into Greek Law of the Directive 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings6 , includes explicit reference (for the first time) to the presumption of innocence (ar. 71 of GCCP), as well as to the specific requirements for the justification of the criminal judgments (ar. 139 of GCCP) and to the fact that the defendants are not obliged to produce evidential material in favor of their defense, rather that the courts are the ones charged with the burden of proving a defendant’s guilt (ar. 178 par. 2 of GCCP).

Criminal Conciliation – Criminal Negotiation

Criminal Conciliation (Defendant – Prosecutor – Victim): Criminal conciliation refers to cases where charges have been pressed for specific felonies provided for by the law (forgery, false certification, fraud/embezzlement/theft when not committed with violence or threat, as well as felonies included in the Greek Customs Code, Greek Code of Tax Proceedings and Greek Law re Money Laundering which incorporates the 4^th AML Directive). In such cases, the Prosecutor or the Court⁷ , following a specific request filed by the defendant or his/her lawyer, shall invite the defendant and the victim to conciliation (ar. 301 and 302 of GCCP). Should the above attempt be successful, the Prosecutor drafts the so called “Minutes of Criminal Conciliation” which include the defendant’s confession and certify that the damage, as defined through the accusation writ, has been fully restored. Following the above, the case shall be introduced to a public hearing and the competent court shall declare the defendant as guilty of charges and shall impose a reduced sentence which may not exceed 3 years of imprisonment.

Criminal Negotiation (Defendant – Prosecutor): Criminal negotiation refers to cases where charges (either for misdemeanors or for felonies) have been pressed by the respective Prosecutors on their own motion (proprio motu/ex officio), except for those felonies for which a life sentence is threatened by the law and the felonies against sexual freedom, as well as the felonies related to terrorist actions/organizations. In such cases, the defendant may request for the initiation of negotiations with the competent Prosecutor as regards the sentence to be imposed against him/her (ar. 303 of GCCP). Should the outcome of the above negotiations be successful, the Prosecutor drafts the so called “Minutes of Criminal Negotiation” which include the defendant’s confession, the agreed sentence to be imposed, as well as the way(s) of the service of said sentence. Following the above, the case shall be introduced to a public hearing and the competent court shall declare the defendant as guilty of charges and shall impose a sentence which may not exceed the agreed one between the defendant and the Prosecutor.

Criminal Order (ar. 409-416 of GCCP)

Criminal Order is a new notion and refers to misdemeanors for which the GCC threatens either imprisonment of up to 1 year (10 days-1 year) or a monetary fine, or both sanctions. In such cases, should the Prosecutor consider that there is enough evidence included in the pending criminal file to prove the guilty of the defendant/suspect, he/she is entitled to file a request before the competent Judge for the issuance of a “criminal order”. If the Judge agrees with the Prosecutor, he/she proceeds to imposing a sentence to the defendant without the defendant’s prior summoning and hearing. Said sentence shall be a reduced one when compared to the initial sentences provided for the respective offences by the law. If the Judge disagrees, he/she shall refer the case to the ordinary proceedings. Within 15 calendar days from the service of a criminal order, the defendant has the right to file his/her “Objections”, which shall automatically introduce the case to an ordinary trial, if filed timely. If no Objections are filed or if Objections are filed out of time, the order shall be executed and there is no further right to appeal against it.

For any questions and further information on the above newsletter, please feel free to reach out to Harry Karampelis at C.Karampelis@lambadarioslaw.gr.

¹ The legislation drafting committees have been composed by Judges, Prosecutors, University Professors and lawyers.
² Just before the dissolution of the Greek Parliament due to the early elections announced by the Greek Government and without the participation of the main parliamentary opposition force.
³ Crimes are divided into misdemeanors and felonies, based on their gravity and certain circumstances under which they have been committed.
⁴ This new favorable provision refers to several serious offences included in special criminal laws, such as the offences against antiquities (Law 3028/2002), offences related to the providing of unlawful online gaming services without a license (Law 4002/2001), money laundering (Law 4557/2018), pollution or degradation of the environment (felony offence, Law 1650/1986), market manipulation (Law 4443/2016) and offences related to assets declaration regime by obliged persons (Law 3213/2003).
⁵ This provision has been inserted following the publication of the new Criminal Code, through an Act of Legislative Content dated 27.06.2019.
⁶ Through prior Law 4569/2019.
⁷ Depending on the procedural step of each pending case.