In this article we bring you an insightful overview of the latest legislative changes and pivotal decisions in white- collar Crime in Greece as authored by our Founder Petros Machas, Partner Alexandros Androutsopoulos and Associate Dimitrios Zanganas for Chamber’s White Collar Crime 2024 Global Practice Guide.
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Even though 2023 saw several legislative amendments and several interesting Decisions were adopted relating to Criminal Law in general, we will attempt to summarize the most important new developments in financial Criminal Law, both in terms of legislation and case law, so as to better understand the ongoing trends which are shaping not only the field of law itself, but also the way court proceedings are carried out.
Further alignment of the Greek legal order to the institution of the European Public Prosecutor’s Office – Adoption of Law 5026/2023
As we know, the European Public Prosecutor’s Office (EPPO) was established to combat large-scale, cross-border and organised cases of fraud affecting the EU budget. Some of the crimes covered by EPPO’s jurisdiction include: (a) Corruption of an official that is likely to damage the EU’s financial interests; (b) Cross-border VAT fraud involving total damages of at least EUR 10,000,000, (c) Fraud in relation to EU grants; (d) Fraud in relation to EU funds and commissions; (e) Misuse of the EU’s financial interests.
The EPPO undertakes investigations, carries out acts of prosecution and exercises the functions of prosecutor in the competent courts of the participating Member States, until the case has been finally disposed of. In February 2023 Law 5026/2023 was adopted as a follow-up to Laws 4516/2019 and 4786/2021, and resolved several issues concerning criminal procedures in Greece.
More specifically, in cases falling under the jurisdiction of the EPPO, although the preliminary examination and enquiries are still carried out as usual, the European Delegated Prosecutors (EDPs) now assume all powers exercised by the investigating judge, excluding any duties relating to hearing the defendant’s statement and ordering coercive measures such as the provisional custody of the accused (Art.49 § 2 of Law 5026/2023).
Furthermore, for offences which the EPPO has brought to judgment and for which the Permanent Chamber has decided on a committal for trial pursuant to Art. 10 § 3 and Art. 36 and 40 of Council Regulation (EU) No 2017/1939, the hearing of these proceedings is carried out by a writ of summons issued by the EDP. Specifically: (a) in the case of misdemeanours, the EDP brings the case to a hearing by sending a writ of summons, pursuant to Art. 322 CCP, while (b) in the case of felonies, after the issuance of the decision of the Permanent Chamber, pursuant to Art. 309 CCP, the EDP submits a proposal to the Justice of the Court of Appeal of Athens to bring the case to trial, which contains both the summons and the committal decision issued by the Permanent Chamber.
Subject to the agreement of the President of the Court of Appeal, the EDP then issues a writ of summons, which cannot be challenged by the defendant. If, however, the Justice of the Court of Appeal finds that there are insufficient evidence or that there are grounds to suspend the prosecution either permanently or temporarily or to pronounce it inadmissible, the case is referred to the Council of Appeal Court Judges which will decide whether to indict or acquit the defendant, or forward the case to the EDP (Art. 51 of Law 5026/2023).
New developments in the case law of the Supreme Court regarding money-laundering
In relation to the case law on money laundering, the Supreme Court Council recently issued a decision (Plenary Decision No. 1/2022), which contains some interesting yet questionable assumptions. The decision addresses the issue of the freezing of assets by order of the President of the Anti-Money Laundering Authority.
In particular, it was questioned whether the President should continue to have such power, even when the relevant case has been brought under criminal prosecution and is being examined by the Investigating Judge. Incidentally, it is mentioned in the relevant Law (Art. 42 §§ 1, 3 of Law 4557/2018) that, during this procedural stage, the Investigating Judge may, with the consent of the Public Prosecutor, order both the freezing of all accounts, securities or financial products held in a credit or financial institution, as well as the contents of the defendant’s safe deposit boxes, even if they are held jointly with another person, as well as the prohibition to sell the property or any other assets of the accused, provided that there are serious indications that those assets are derived directly or indirectly from money laundering. In addition, pursuant to Art. 42 § 7 of Law 4557/2018, when the Anti-Money Laundering Authority is conducting an investigation, the President has the same powers and may in extraordinary circumstances issue orders so long as there are reasonable suspicions – albeit not necessarily serious grounds – of money-laundering activities.
The Supreme Court finally ruled in favour of the President of the Anti-Money Laundering Authority issuing orders, even when the criminal case in question is under examination by the Investigating Judge, with the following reasoning: “From the same provisions mentioned above it is shown that the power of the Anti-Money Laundering Authority to conduct examinations as aforesaid, as well as the power of its President to issue any orders for the freezing of assets and prohibiting the sale of property owned by the suspect, may be exercised in parallel with the regular criminal proceedings and with the work of the court authorities and prosecution services involved. […] The explicit reference in the Law that the investigation may be continued by the Authority even after the case file has been sent to the Public Prosecutor, in order to proceed with the legal proceedings, inevitably leads to the assumption that these are two parallel procedures. This is because it is not possible for the Authority to conduct an investigation without the concurrent powers of its President, who is an honorary prosecuting officer, […] to be able to take special restrictive measures provided for by the aforementioned provisions, and in particular those concerning the freezing the suspect’s assets.
In fact, it is neither mentioned in the law nor in particular in the provisions of article 42 of Law 4557/2018 that the Authority and its President become incompetent once the main examination or the criminal proceedings in general commence or once the case file is sent to the competent prosecutor. This interpretation is based on an incorrect premise and is contrary to the text (Article 42(5)) and to the purpose of Law 4557/2018, which is, inter alia, the prevention, detection and recovery of the proceeds of money laundering and consists, among other things, in the swift and legally and procedurally unobstructed international investigation and detection of “illicit money” by the Anti-Money Laundering Authority. Moreover, the premise of “extraordinary circumstances”, which, by law, must be met for the President of the Authority to be able to take the above restrictive measures, can exist even during the main proceedings, and in no way is this urgency ruled out by the fact that, during the main examination, the accused is under investigation and his assets are being examined by the Investigating Judge […]“.
Conclusions – Further trends and developments in the field of Financial Crime Law
In conclusion, it is evident that the adoption of Law 5026/2023, which re-regulates the adaptation of the Greek law to the institution of the European Public Prosecutor’s Office, was a de facto necessity. Since the Greek Code of Criminal Procedure does not provide for a single investigative procedure but divides the procedure into a “prosecutorial” investigation (preliminary examination) and a “judicial” examination (main proceedings/examination), it was necessary to establish certain specific measures. Otherwise, more questions regarding the interpretation of Regulation (EU) 2017/1939 would emerge over time, with all the implications this would have for the legal certainty we seek. Regarding the Decision of the Supreme Court Council mentioned above, it regrettably favours the early freezing of assets without the added safeguards of the main proceedings, also disregarding the fact that the affected persons are often unjustifiably unable to carry out any transactions necessary to their business and day-to-day activities.
In addition to the above, we should also note the ever-increasing number of internal corporate investigations, which are generally outsourced to independent specialised law and auditing firms. This is the result of the establishment – through subsidiaries – of many multinational companies listed on the American or British Stock Exchange and is certainly a welcome development, considering that internal audits carried out at an early stage by lawyers who are experts in the area and by auditors can serve as a stepping stone for improving the pace and quality of the criminal justice system in cases of financial crime and corruption. Finally, there is no question that the fact that these subsidiary companies have adopted the appropriate practices will also push Greek companies in general to do the same.
-> You can read the article as published at Chambers here
