Criminal Law in Greece

Transcription

1 Criminal Law in Greece by Ilias G. Anagnostopoulos and Konstantinos D. Magliveras 2000 Kluwer Law International The Hague London Boston Sakkoulas Athens

2 The Authors 3 List of Abbreviations 17 General Introduction THE GENERAL BACKGROUND OF THE COUNTRY 19 I. Geography and Climate 19 II. Population 19 III. Economy 20 IV. Historical Background, Political System and Administrative Structure 20 V. The Judicial System CRIMINAL LAW, CRIMINAL JUSTICE AND CRIMINAL SCIENCE 23 I. Definitions of Criminal Law 23 A. Criminal Law 23 B. Substantive Criminal Law 24 C. Criminal Procedure 24 D. Criminal Offences 24 II. Characteristics of Greek Criminal Law 25 III. Overview of the Criminal Justice System 25 A. The Police 25 B. The Prosecution Service 26 C. Investigating Judges and Investigating Jurisdictions 26 D. TrialJurisdictions 26 E. Prison System and After-Care 26 F. The Bar 27 G. Statistical Overview 27 Selected Bibliography 29

3 Parti. Substantive Criminal Law 33 Chapter 1. General Principles THE PRINCIPLE OF LEGALITY 33 I. Limitation of Penalization 33 II. Legality and Interpretation THE PRINCIPLE OF THE INDIVIDUAL GUILTY MIND THE PRINCIPLE OF PROPORTIONALITY 37 Chapter 2. Scope of Application of Criminal Statutes PRINCIPLES CONCERNING THE TEMPORAL APPLICABILITY OF CRIMINAL STATUTES 38 I. Prohibition of Retroactive Criminal Law 38 II. Retroactivity of the Milder Statute 38 III. The Extent of the Prohibition Against Retroactive Criminal Law PRINCIPLES CONCERNING THE APPLICABILITY OF CRIMINAL STATUTES WITH RESPECT TO SPACE 40 I. The Territorial Principle 40 II. Extraterritorial Criminal Jurisdiction 41 A. The Effect of Foreign Adjudication and Execution PRINCIPLES CONCERNING THE APPLICABILITY OF CRIMINAL STATUTES WITH REGARD TO PERSONS 44 I. Immunities Based on National Public Law 44 II. Immunities Based on Public International Law 45 Chapter 3. General Principles of Criminal Law INTRODUCTION - THE BASIC ELEMENTS OF CRIMINAL OFFENCES THE MATERIAL OR PHYSICAL ELEMENT (ACTUS REUS) 47

4 I. Description II. Explication III. Acts, Omissions and Causation A. Offences of Action B. Corporate Liability C. Offences of Omission D. Causation Offences IV. Classification of Offences from the Point of View of the Material Element A. Momentary and Continuous Offences B. Occasional and Habitual Offences THE MORAL OR MENTAL ELEMENT (MENS REA) 54 I. Subjective Guilt or Culpability 54 II. Intent 54 A. Types of Intent With Reference to Their Consequences 55 B. Degrees of Intent 55 C. The Distinction between Premeditated and Non-premeditated Intent 56 III. Negligence 56 A. Definition 56 B. Types of Negligence 57 C. Evaluation of Negligence 57 IV. The Required Form of Guilt 58 Chapter 4. Justification, Excuse and Other Grounds of Impunity GENERAL PRINCIPLES GROUNDS OF JUSTIFICATION 60 I. Superior Orders 60 II. (Self-) Defence 61 A. Posing the Problem 61 B. Position Under Greek Law 61 C. Conditions Conditions Relating to Attack Conditions Relating to Defence 62 D. Prohibited (Self-) Defence 64 III. Legitimate Resistance Against Unlawful Acts of Civil Servants 64

5 IV. Necessity 64 A. Necessity as a Justification 64 B. Conditions 65 C. Prohibited Necessity 66 D. Conflict of Interests 66 E. Consent of the Victim GROUNDS OF EXCUSE 69 I. Introduction 69 II. Minority 69 III. Insanity 70 A. Insanity at the Moment of the Act or Omission 70 B. Insanity at the Moment of the Trial 71 IV. Intoxication 71 V. Force Majeure and Coercion 72 VI. Ignorance or Mistake 72 A. Ignorance or Mistake of Law 72 B. Ignorance or Mistake of Fact OTHER GROUNDS OF IMPUNITY 73 I. Report of Some Criminal Offences to Public Authorities 73 II. Remorse After the Offence 73 III. Impunity Based on Family Grounds 73 Chapter 5. Incomplete or Partly Perpetrated Offences CRIMINAL ATTEMPT 75 I. Describing the Problem 75 II. Conditions 75 A. Intent to Commit a Serious Crime or a Misdemeanour 75 B. Commencement of Execution 76 C. Incompletion of the Offence Independent of the Perpetrator's Will - Voluntary Withdrawal 76 III. Attempting the Impossible 77 IV. The Punishment of Attempt PARTICIPATION IN OR PARTIES TO, CRIMINAL OFFENCES 78 I. General Remarks 78 II. Greek Law on Participation 78

6 A. Principal Actors B. Instigators C. Accessories D. Agents Provocateurs Chapter 6. Classification and Survey of Criminal Offences GENERAL CLASSIFICATION OF CRIMINAL OFFENCES 82 I. Statutory Trichotomy of Criminal Offences 82 II. Ordinary and Political Offences 82 III. Ordinary and Printing-Press Offences SURVEY OF CRIMINAL OFFENCES 84 ^nmmal Utte:nces ot the Penal Code Title I. Title II. Title III. Title IV. Title V. Title VI. Title VII. Title VIII. Title IX. Title X. Title XL Title XII. Title XIII. Title XIV. Title XV. Title XVI. Title XVII. Title XVIII. Title XIX. Title XX. Title XXI. Title XXII. Title XXIII. Title XXIV. Title XXV. High Treason Treason Offences Against Foreign States Offences Relating to the Free Exercise of Civil Rights Offences Against Public Authority Conspiring Against Public Order Misdemeanours Against Religious Peace Offences Relating to Military Service and Conscription Offences Relating to Currency Offences Relating to Notes Offences Relating to the Award of Justice Offences Relating to Civil Servants Common Dangerous Offences Offences Against Security in Transportation Offences Against (Human) Life Bodily Injuries Duel Offences Against Personal Freedom Offences Against Sexual Freedom and Offences Relating to the Economic Exploitation of Sexual Life Offences Relating to Marriage and Family Offences Against Honour Offences Relating to Breach of Secrecy Offences Against Property Offences Against Property Rights Begging and Vagrancy

7 Title XXVI. Petty Offences 98 Title XXVII. Violation of Administrative and Police Regulations 98 II. Criminal Offences in Special Penal Statutes 98 A. Introduction 98 B. Offences Relating to Antiquities 99 C. Offences Relating to Narcotics 99 D. Offences Relating to Organized Crime and Terrorism 101 E. Offences Relating to Money Laundering 101 Chapter 7. The Sanctioning System THE GENERAL SANCTIONING SYSTEM PUNISHMENTS 103 I. The Principal Penalties 103 A. The Death Penalty 103 B. Custodial Penalties 105 C. Pecuniary Sanctions 108 D. The Conversion of Custodial Sentences into Pecuniary Sanctions 109 II. Accessory Penalties 112 A. Special Confiscation 112 B. Publication 113 C. Loss of Rights 114 D. Deprivation of Political and Civil Rights 114 E. Other Accessory Penalties MEASURES OF SECURITY AND REFORM 115 I. Protective and Educational Measures Relating to Minors 116 II. Protective Measures Against Abnormal or Habitual Offenders 117 III. Protective Measures Against Alcoholics and Drug Addicts 117 IV. Deportation of Foreigners 117 V. Internment to Work Institutions 118 VI. Prohibition of Residing in Certain Areas MODES OF PUNISHMENT 119 I. The Postponement of Sentencing 119 II. The Suspended Custodial Sentence

8 5. PRINCIPLES AND RULES CONCERNING SENTENCING 123 I. The General Principles 123 II. Grounds for Increasing Punishment 124 A. Aggravating Circumstances 124 B. Recidivism Serious Offences and Intentional Misdemeanours Misdemeanours Committed Negligently Petty Offences 126 III. Grounds for Mitigating Punishment 126 A. Extenuating Excuses 126 B. Mitigating Circumstances 127 IV. Concurrence of Offences 128 Part II. Criminal Procedure 131 Chapter 1. Principles, Institutions, Stages THE JUDICIAL ORGANISATION 131 I. Trial Jurisdictions 131 II. Investigating Jurisdictions THE STAGES OF THE CRIMINAL PROCESS 135 I. Basic Distinctions 135 II. The Pre-Trial Stage 135 A. The Ordinary Investigation The Beginning of the Ordinary Investigation The Closing of the Ordinary Investigation 136 B. The Summary Investigation 138 C. The Summary Investigation in Flagrant Offences and Other Emergency Cases 139 D. The Preliminary Inquiry 140 III. The Prosecution 140 A. The Right to Prosecute 140 B. The Object of the Right to Prosecute 144 C. Conditions of the Right to Prosecute 144 D. Dissolution of the Right to Prosecute Decriminalisation, Amnesty, Death of the Defendant Withdrawal of Complaint, Friendly Settlement Limitation by Time Non bis in idem (Provisions Against Double Jeopardy) 146 IV. The Trial Stage

9 A. General Characteristics 147 B. The Judge: an Active but Impartial Adjudicator 149 C. The Beginning and Closing of the Inquiry in Court The Beginning of the Inquiry The Closing of the Inquiry THE LEGAL POSITION OF THE ACCUSED AND THE CIVIL PARTY 152 I. Introductory Remarks 152 II. The Legal Position of the Defendant 153 A. The Provisions in the Code of Criminal Procedure and the Constitution 153 B. The Provisions of the European Convention of Human Rights and the International Covenant on Civil and Political Rights 154 III. The Legal Position of the Civil Party 155 A. General Observations 156 B. The Civil Party at the Pre-Trial Stage 157 C. The Civil Party at the Trial Stage THE RULES OF EVIDENCE 158 I. The Principles of Evidentiary Law 159 II. The Means of Proof 160 III. The Exclusion of Evidence 163 Chapter 2. Powers, Rights and Duties in the Pre-Trial Proceedings THE POWERS AND DUTIES OF THE INVESTIGATING JUDGE AND THE RIGHTS OF THE DEFENDANT IN THE ORDINARY INVESTIGATION 165 I. Introductory Remarks 165 II. The Powers of Inspection, Entry, Search and Seizure 165 HI. The Powers to Examine the Defendant and the Witnesses 167 A. The Interrogation of the Defendant 167 B. The Interrogation of Witnesses 168 IV. Miscellaneous 169 A. Mental Examination of the Defendant 169 B. Interception of Telephonic or Other Communications 169 C. Freezing and Opening of Bank Accounts

10 2. POWERS, RIGHTS AND DUTIES WITHIN THE FRAMEWORK OF ARREST AND PRE-TRIAL DETENTION 171 I. Introductory Remarks 171 II. The Warrants of Attachment and Arrest 171 A. The Warrant of Attachment 171 B. The Warrant of Arrest 171 III. Release Under Conditions 172 IV. Pre-Trial Detention 173 A. Conditions and Procedure 173 B. Continuation and Time Limits to Pre-Trial Detention THE POWERS AND DUTIES OF THE PUBLIC PROSECUTOR AND THE INVESTIGATING OFFICERS IN THE SUMMARY INVESTIGATION AND IN THE PRELIMINARY INQUIRY 176 I. Introductory Remarks 176 II. Powers in the Summary Investigation 176 III. Powers in the Investigation of Flagrant Offences and in Other Emergency Cases 177 IV. Powers in the Preliminary Inquiry 177 Chapter 3. The Inquiry in Court THE TRIAL IN THE MISDEMEANOUR COURTS 179 I. The Attendance of the Parties 179 II. The Course of the Trial THE TRIAL IN THE COURTS FOR SERIOUS CRIMES 182 I. The Trial in the Mixed Criminal Courts 182 II. The Trial in the Courts of Appeal for Serious Crimes THE LEGAL REMEDIES 184 I. Introductory Remarks 184 II. The Ordinary Legal Remedies Against the Decisions of the Judicial Councils 186 A. Appeal 186 B. Appeal by Way of Cassation 187 III. The Ordinary Legal Remedies Against the Decisions of the Courts

11 A. Appeal 188 B. Appeal by Way of Cassation 189 Part III. Execution and Extinction of Sanctions 193 Chapter 1. Sources of Penitentiary Law and Nature of Regulations 193 Chapter 2. General Principles Governing the Execution of Sentences and Orders 196 Chapter 3. The Prison System ORGANISATION STRUCTURE 197 I. Prison Administration and Classification of Penitentiaries 197 II. Classification of Prisoners THE PENITENTIARY REGIME 198 I. Introduction 198 II. Aspects of Living Conditions 198 A. Visits, Correspondence and Telephone 198 B. Information and Media 199 C. Prison Labour 199 D. Disciplinary Measures 200 E. Leave from Prison 201 III. Forms of Alternative Execution of the Prison Sentence PRISONERS RIGHTS, COMPLAINTS PROCEDURES AND JUDICIAL CONTROL EARLY RELEASE 203 I. Conditional Release 203 Chapter 4. Extinction of Sanctions and Sentences PARDON BY THE PRESIDENT OF THE REPUBLIC AND AMNESTY THE LIMITATION OF THE PENALTY BY TIME

12 3. DELETION OF THE CONVICTION AND REHABILITATION OF OFFENDERS 207 I. Deletion of the Conviction 207 II. Rehabilitation REPETITION OF CRIMINAL PROCEEDINGS IN FAVOUR OF THE CONVICTED PERSON 208 I. Conditions Relating to the Nature of the Sanction Imposed 208 II. Circumstances Justifying Repetition of Criminal Proceedings 208 III. Procedure REPETITION OF CRIMINAL PROCEEDINGS AGAINST THE ACQUITTED DEFENDANT 209 Index