How are the criminal courts in Greece structured?
Criminal Courts are organized following the triple division of offences in petty offences, misdeameanours and serious crimes (felonies) to: a) Petty Offences Courts, b) Misdemeanour Courts (One-Member or Three-Member First Instance Court) and c) courts that handle serious crimes, which may be either Mixed Criminal Courts (composed of judges and jurors) or Multi-member Courts of Appeal (One-Member or Three-Member Courts, hearing the case in first instance and composed of judges strictly). Mixed Criminal Courts hear serious crimes such as homicides, rape, sexual abuse of children etc. while Courts of Appeal for Serious Crimes hear serious felony charges relating to corruption, misappropriation of property, fraud, organised crime, etc.
Areios Pagos is the highest jurisdiction that hears appeals by way of cassation against judgments of all criminal courts while there are Courts of Appeal hearing appeals against decisions of lower jurisdiction (e.g. Three-Member Misdemeanour Courts hear appeals against judgments of One-Member Misdemeanour Courts, Five-Member Courts of Appeal hear appeals against decisions of Three-Member Courts of Appeal etc.).
How are criminal proceedings initiated?
Criminal proceedings are initiated by the Public Prosecutor of the First Instance Court. The Public Prosecutor opens criminal proceedings after receiving a notitia criminis, i.e., information that a criminal offence has been committed. The primary source of information is usually the person filing a criminal complaint stating the facts which constitute a criminal offence and the alleged perpetrators. The Prosecutor may also start criminal proceedings ex officio for any criminal offence of which he is informed by any other means e.g., other public authorities, the press etc.
For certain offences such as those committed within families or offences which lack a strong public interest (e.g. non serious bodily harm, defamation etc.), filing a criminal complaint by the victim is a legal condition in order to initiate criminal proceedings.
What are the stages of criminal process?
The criminal process comprises two basic stages: 1) Pre-trial proceedings (preliminary inquiry, main investigation of offences, process of indictment), which are non-public and non-adversarial, and 2) trial proceedings, which are public, oral and moderately adversarial. Pre-trial stages are shorter in misdemeanour cases as opposed to felony charges (see below at 5 and 6).
The pre-trial stage in misdemeanour cases
After receiving a notitia criminis the Public Prosecutor orders, as a rule, a preliminary inquiry (in practice carried out by the competent Investigating Magistrates) aimed at collecting the evidence which would justify prosecution.
After conclusion of the preliminary inquiry, the Public Prosecutor decides to prosecute filing charges or to dismiss the case on the grounds that there is no evidence indicating that a criminal offence has been committed or on legal grounds. The decision to dismiss the case must be confirmed by the competent Prosecutor of the Court of Appeal. If the latter disagrees, he can instruct the Prosecutor with the First Instance Court to start prosecution. The criminal complainant has the right to appeal against the dismissal decision before the Prosecutor of the Court of Appeal, who can confirm dismissal of the case or order prosecution.
In case the Public Prosecutor decides to start prosecution for a misdemeanour offence (or is instructed to do so) he refers the case to trial before the Misdemeanour Court issuing a Writ of Summons. This document is served on the defendant comprising the accusation, the trial date, the Court the defendant has to appear before, the witnesses to be examined at the court hearing and the evidence to be introduced by the Public Prosecutor, etc. Foreign defendants receive also a translation of the summons in a language they understand.
In case the defendant is summoned before the Three-Member Misdemeanour Court, he has the right to appeal against this indictment by lodging an appeal before the Public Prosecutor of the Court of Appeal on factual or legal grounds.
The pre-trial stage in serious crimes
A preliminary inquiry is also conducted in cases of serious crimes. The Prosecutor, however, may not refer directly a felony case for trial after the closing of the preliminary inquiry but has to order a main investigation. The investigation is carried out by the Investigating Judge and aims at collecting all evidence, which is considered necessary for the Judicial Council to decide if a person has to stand trial.
The Investigating Judge has to carry out the inquiry in rem and to involve all participants to
the offence. Hence, he is entitled to examine witnesses, inspect places, order expert opinions, pre-trial detention etc. The ordinary investigation is not completed without prior notification of the defendant.
After conclusion of the main investigation, the case file is forwarded to the Public Prosecutor. The latter submits a written and reasoned recommendation with the Judicial Council recommending the referral of the case to trial or the acquittal of the defendant(s). After having heard the Prosecutor, the Judicial Council issues a decision, which may follow or disagree with the Prosecutor’s recommendation. The Judicial Council may order the parties to appear before it in order to argue their case.
In cases of specific serious crimes against the state property (Act 1608/1950) the referral of the case to trial or the acquittal of the defendants lies within the competence of the Judicial Council of the Court of Appeal. This is also the procedure (referral to trial by a Judicial Council of the Court of Appeal) for corruption offences related to public officials or cases of major public interest in accordance with Law 4022/2011.
In principle referral to trial in serious offences (felonies) is done by a decision of the Judicial Council of the First Instance Court or the Court of Appeal as set out above. There are though certain categories of crimes such as tax offences, robbery, drug trafficking etc., which are referred directly to trial by the Public Prosecutor with the Court of Appeal. The Prosecutor with the First Instance Court is responsible for processing the case until the conclusion of the main investigation and then forwards the case file to the Public Prosecutor with the Court of Appeal. After conclusion of the investigation and forwarding of the case-file to the Prosecutor with the Court of Appeal who then decides on referral to trial. If the Prosecutor decides to refer the case to trial, he issues a Writ of Summons after receiving written consent by a Judge with the Court of Appeal. There is no legal remedy against the Writ of Summons of the Prosecutor with the Court of Appeal.
Trial Proceedings
General Principles in trial proceedings
As already mentioned, the inquiry in court is public, oral and moderately adversarial. According to Art. 93 of the Constitution and Art. 329 GCCP all trials on pain of nullity are held in public and all court decisions are pronounced in public. The public character of the trial can be hindered only in order to protect public morals or the personal or family life of the parties.
The trial in court must be oral and the Court’s decision shall rely on the evidence which is heard during the trial. Witnesses are examined by the Court and the parties, all relevant documents are read out and the Public Prosecutor as well as counsel address the Court orally.
The inquiry in court is of moderately adversarial character (see below at 7.2 and 7.3).
The Attendance of the Parties
The defendant, who is duly summoned, is under a duty to appear personally before theCourt. However, he has the right to appoint defence counsel (no more than three) in order to represent him at trial.
In case of serious crimes, legal assistance is mandatory and the presiding judge officially assigns up to two members of the Bar to defend the accused who has not appointed counsel of his choice. The defendant may also request legal assistance before the court hearing (Art. 340 GCCP).
If the defendant’s presence is considered necessary, the Court has the power to order him to appear in person.
The defendant, who fails to appear in Court though duly summoned, is tried in absentia.
The civil claimant is not under an obligation to appear in person and can choose to be represented by counsel; however, the Court may order him to appear in his capacity as a witness.
The Course of the Trial
The court hearing starts with the announcement of the defendant’s name who is also informed by the President of the Court of his rights. At this stage the defendant may submit any objections to the trial proceedings on procedural grounds.
The following step is the examination of witnesses and experts who are questioned by the Court, the Prosecutor and the parties. All evidence is read out in court so that the Court and the parties are fully informed. After the examination of the evidence it is the time for the defendant’s statement. He is called to answer the charges orally and shall not be interrupted. The defendant has the right to remain silent; however, as a matter of practice most defendants avoid making use of this right for tactical reasons. Only the President, the Court members and the Public Prosecutor are entitled to put questions to the defendant after his submission.
The defendant has the right to communicate with his counsel during the hearing but is not allowed to consult him before answering a question (Art. 366 GCCP).
The following step is the closing arguments of the Public Prosecutor and those of the counsel for the civil claimant and the defendant. The defendant and his counsel have always the right to speak the last word.
The Court retires to deliberate on the issue of guilt and returns its verdict in public. If the defendant is found guilty, the Public Prosecutor recommends the sentence to be imposed and the Court hears the defendant’s and his counsel’s submissions on this issue. The Court retires again to deliberate and pronounces in public its decision on the sentence.
Rules of Evidence
The presumption of innocence (Art. 6(2) ECHR) is a fundamental principle. In the Greek system, the burden of proof lies with the prosecution and the defendant is not under an obligation to disclose his evidence before trial. On the contrary, the Public Prosecutor must
serve on the defendant a catalogue of the witnesses and documents to be examined in trial (Art. 326 GCCP).
Moreover, the defendant benefits from any doubts regarding his guilt (in dubio pro reo).
The standard of proof for delivering a verdict is proof before reasonable doubt and the decision does not need to be unanimous.
Regarding the means of proof, every lawfully acquired evidence is in principle admissible and can be adduced before Court (Arts. 177, 178). Investigating authorities and courts as well have a duty to search for the factual truth (Arts. 177, 351, 357) being entitled to initiate any investigating act with respect to any evidence considered necessary to reveal the truth
Procedural law does not entail rules concerning the probative value of the various means of proof and all lawfully acquired evidence is in principle subject to the court’s free evaluation.
Art. 178 GCCP mentions the most common means of proof: indices, inspection of persons, places and objects, expert’s reports, confessions, statements of witnesses and documents. Though the defendant’s confession is considered to be strong evidence of his guilt, it is subjected, like all other evidence, to the court’s judgment.
What is the legal position of the Public Prosecutor?
The Public Prosecutor is not a ‘judge’ stricto sensu but a Judicial Official executing the right to prosecute in the name of the State. His role is significant throughout the criminal proceedings, since no court decision including those of the Judicial Council is valid without prior hearing of the Public Prosecutor. Although he represents the State, the Public prosecutor is not under an obligation to support the charges in all circumstances and plead against the defendant. Though he is not technically a party to the proceedings, his procedural rights are balanced against those of the defendant and of the civil party.
What is the legal position of the defendant?
The Greek Code of Criminal Procedure (combined with the provisions of the Greek Constitution and the European Convention of Human Rights and its Protocols as well as the International Covenant on Civil and Political Rights which prevail under domestic law) provides a well-developed system of defendant’s rights at the pre-trial as well as at the trial stage including the right to be informed of the charges against him in a language he understands and of his rights before being called to answer the charges, the right to receive copies of the case file and ask for adequate time for preparation of his defence, the right to remain silent or to submit a written defence statement, the right to appoint defence counsel from the very beginning of the police or judicial investigation, the right to be present at most acts of the investigation (not including the examination of witnesses), the right to legal aid, the right to request the examination of witnesses, etc.
At the trial stage the defendant has some further rights including the right to ask the Public Prosecutor to call witnesses he wishes, the right to examine witnesses and experts and to comment on all evidence submitted in the course of the trial, the right to defend himself in person or through his counsel, to have the last word, the right to appeal against a conviction etc.
What is the legal position of the civil party?
Under the Greek Code of Criminal Procedure a person can participate as a civil party if he has suffered material or moral damage resulting directly from the alleged criminal offence, e.g. the defamated person, the victim of the bodily harm, etc. The civil claimant is considered as an important party of the proceedings since he is vested with a wide range of rights, i.e., the right to counsel, the right to receive copies of the case file, to present evidence, to request investigating acts, to appoint experts on his behalf, examine witnesses at the trial etc.
Legal Remedies
What are the ordinary legal remedies against the decisions of judicial councils?
The defendant has the right to appeal against an indicting decision of the Judicial Council if he is charged with a serious crime (felony) only on specific procedural or legal grounds (Art. 478 GCCP) and within ten days after the decision has been served on him.
The Public Prosecutor of the Court of Appeal can appeal against all decisions of the Judicial Council in favour or against the defendant within one month (Art. 479 GCCP).
All aforementioned appeals are heard by the Judicial Council of the Court of Appeal. The appellate Judicial Council decides in camera as a three-member council after hearing the Public Prosecutor, who files a reasoned written recommendation. The Judicial Council with the Court of Appeal has the power to quash, amend or confirm the decision.
Furthermore, the Public Prosecutor of the Misdemeanour Court has the right to appeal by way of cassation before Areios Pagos against a decision of the Judicial Council in favour or against the defendant in cases of indictment for a serious crime as well as in cases of acquittal or of provisional stay of the proceedings (Art. 483 GCCP). The same right is attributed to the Public Prosecutor of the Court of Appeal with respect to the decisions issued by its Judicial Council.
The Prosecutor of Areios Pagos has the right to appeal by way of cassation against all decisions (including preliminary ones) of any Judicial Council for an error of law within thirty days after issue of the decision (Art. 483 GCCP). After this period of time, he has the right to appeal by way of cassation in the interests of law against any decision of any Judicial Council for an error of law including the infringement of procedural provisions. The appeal by way of cassation in the interest of law does not affect res judicata in the case involved.
The errors of law which can sustain an appeal before Areios Pagos are mentioned exclusively in Art. 484 GCCP including infringement of procedural provisions on pain of nullity; erroneous interpretation or application of the relevant substantive criminal provisions; res
judicata, failure to mention the relevant provisions of criminal law etc.
Areios Pagos sitting in camera as a three member council of its Criminal Section (Art. 485 GCCP) decides on the appeal after hearing the Public Prosecutor.
What are the legal remedies against the decisions of the courts?
The defendant has the right to appeal against convicting decisions of all courts under the terms set by Art. 489 GCCP, e.g., decisions of the Three-Member Misdemeanour Court may be appealed by the defendant, if he has been convicted to imprisonment exceeding five months or to a pecuniary sentence higher than € 3,000.00.
The Public Prosecutor has also the right to appeal convicting decisions under specific terms and time limitations either in favour or against the defendant.
Acquittal decisions can be appealed against by the defendant only if the basis of the acquittal is remorse or if the decision’s reasoning contains assessments infringing unnecessarily his reputation (Art. 486 GCCP).
The Public Prosecutors of the Misdemeanour Court and of the Court of Appeal have the right to appeal against acquittal decisions of the Petty Offences and the Misdemeanour Courts in their judicial district.
Unanimous acquittal decisions of the Mixed Criminal Court or of the Court of Appeal for Serious Crimes cannot be appealed against.
An appeal by way of cassation before Areios Pagos can be lodged against decisions of the first instance courts, which cannot be appealed as well as against decisions of the Appellate Court (Art. 504 GCCP).
The defendant has the right to appeal by way of cassation against a conviction within ten days after the decision has been registered with the official Registry of the Court (Arts. 505, 473 GCCP) or within twenty days by serving his appeal to the Prosecutor of the Supreme Court (Art. 473 par. 2 GCCP).
The Public Prosecutor of the Misdemeanour Court can appeal by way of cassation against convictions by the Court to which he is attached as well as against the aforementioned decisions of the One-Member Misdemeanour Courts and the Petty Offences Courts in his judicial district. This right is provided for the Public Prosecutor of the Mixed Criminal Court with regard to such decisions of said Court to which he is attached. The Public Prosecutor of the Court of Appeal can appeal by way of cassation convictions by the Court of Appeal, the Mixed Criminal Courts and the Misdemeanour Courts in his judicial district.
The Prosecutor of Areios Pagos can appeal by way of cassation against any decision (including preliminary ones) of any Court within thirty days after its pronouncement (Art. 505 GCCP). After this period of time he can lodge an appeal by way of cassation only in the interests of law.
The defendant can appeal by way of cassation against an acquittal decision only if he has been acquitted on grounds of remorse after the criminal offence (Art. 506 GCCP).
The Public Prosecutors of the Courts mentioned above have said right against acquittal decisions only for erroneous interpretation or application of the relevant substantive criminal provisions (Art. 506 GCCP).
An appeal by way of cassation is also provided for the defendant and the Public Prosecutor against the decision of a Court which declined its competence ratione materiae and referred the case to the competent court, if the said decision cannot be challenged before an Appellate Court (Art. 504 GCCP).
Areios Pagos considers only errors of law those mentioned exclusively in Art. 510 GCCP: infringement of procedural provisions on pain of nullity in the course of the trial; violation of the public character of the trial hearing; lack of sufficient reasoning of the Court’s decision, etc.
Areios Pagos quashes the appealed decision and depending on the error of law will refer the case for a new trial before the competent Court, terminate the proceedings or acquit the appellant.
Statute of Limitations
Criminal prosecution shall not start or continue if the offence in question is time barred. Prosecution of serious crimes is barred after 15 to 20 years from the commission of the offense, misdemeanours after 5 years and petty offenses after one year (Art. 111-116 of Greek Criminal Code). The limitation by time is suspended for five years in cases of serious crimes, for three years in cases of misdemeanours and for one year in cases of petty offences only while the case is pending before a court.
Extradition and Judicial Assistance
Greece has ratified numerous multilateral and bilateral Treaties regarding extradition and judicial assistance in criminal matters, the most important of which are the European Convention
on Extradition of 13.12.1957 (Law 4165/961) and the European Convention on Mutual Legal Assistance in Penal Matters of 20.04.1959 (Legislative Decree 4218/1961).
Provisions setting out the guidelines for extradition of suspected or convicted persons to another nation and mutual assistance in general can also be found in the GCCP (Arts. 436- 461), which are applicable in supplement.
With Law 3251/2004 Greece implemented the Framework Decision of 2002 on the European Arrest Warrant, which introduced a new process increasing the speed and ease of extradition throughout EU.