Machas & Partners authors new article for Chambers Europe 2023. “Reforming Greek Criminal Law: A Comprehensive Overview”

It is widely accepted that significant reforms have been introduced into the Greek legal system, particularly in criminal and economic crime law since 1 July 2019, with the implementation of the new Criminal Code (CC) and the new Code of Criminal Procedure, followed by a series of legislative amendments. It is evident that there is a desire on the part of the legislature to establish new rules and make use of existing opportunities to expedite criminal proceedings, whose slowness been a persistent problem in recent years.

Crimes Against Property

From ex officio prosecution to prosecution at the request of the complainant

Prior to the introduction of the new Penal Code, prosecuting authorities originally dealt with offences on their own initiative as a rule, with no need for any involvement of the affected party or any other third party. Those offences that were brought to justice solely at the victim’s request were rare and were usually not similar in nature.

However, the enactment of the new Penal Code has made it possible to prosecute crimes against property on the basis of complaints brought by the victim. Under the new provision of Article 405 CC, as amended by Laws 4367/2019 and 4855/2021, “Criminal prosecution of the offences provided for in Article 386 § 1 (“instances of fraud ruled as a misdemeanour or felony that is not committed against the State”), in Article 386A §§ 1, 2 (“computer-related or assisted fraud ruled as misdemeanour or felony that is not committed against the State”), Articles 387 (“minor fraud”) and 389 (“fraudulent damage”), Article 390 § 1a (“breach of fiduciary duties ruled as misdemeanour”) and Articles 397 (“defrauding of creditors”) and 404 (“usury ruled as a misdemeanour or felony”) shall be subject to a criminal complaint brought by the affected person(s). Criminal prosecution of the offences covered by Article 390 § 1b (“breach of fiduciary duties ruled as felony”) shall require a criminal complaint brought directly by the affected party in the event that such misappropriation is committed against a credit or financial institution or a company operating in the financial sector. The prosecution of the offences set out in Article 394 (“receiving and distribution of proceeds of crime”) will also require the filing of a complaint by the affected party in cases where such proceeds come from an activity prosecuted by a complaint by the affected party.” The recitals of the new CC stipulate that the right of prosecution on the affected party’s initiative should be based on the nature of the property concerned.

The elements underlying this legislative reform are mainly pragmatic. For example, it is argued that this will help ease the workload of criminal courts, prevent the improper filing of complaints, and reduce the number of third parties present in criminal proceedings who undermine the economy.

Among the various counterarguments raised, the most important one is the problems that are bound to arise in connection with the prosecution of property crimes against legal persons brought by a complaint. Even where there is no de facto issue as to who is ultimately entitled to bring a criminal complaint, as is often the case when a crime is committed against the property of offshore companies, when a crime is committed against a legal person, there is always a risk that the legal representatives of the companies concerned may fail to file a complaint against the perpetrator(s) on behalf of the companies directly concerned. All the more challenging are cases where the persons liable for the alleged offences are the very legal representatives of the legal entities concerned, who will obviously not file a complaint against themselves. In fact, even though there are still ways of protecting the legal entity, even in this situation – by lodging, for example, a petition with the Single-Member Court of First Instance to appoint an interim administrator, so that the legal entity may then file a complaint – it is clear that many of the offences will not be investigated in the criminal proceedings, given the strict three-month deadline to file a complaint.

Further grounds for exemption from punishment due to active repentance or the full compensation of the affected party

Part of the legislature’s overall aim in introducing new conciliation methods in Criminal Law, speeding up criminal proceedings and reducing the workload of criminal courts is to help exempt certain offences from prosecution – namely almost all property crimes – if the perpetrator(s) show active repentance or satisfy the affected party in full. In fact, under Article 405 § 3a of the new Criminal Code, if the perpetrator manages to compensate the affected party by paying the principal and interest on arrears from the day the crime was committed, by the time they are brought before the court, they will be exempt from any sanction. This ensures that the perpetrators of misdemeanour and felony offences are given a second chance to be exonerated, even after criminal prosecution against them has already started. It should also be noted that the Law-Drafting Committee ruled that an exemption on the grounds of active repentance would not ultimately undermine the deterrent effect of the relevant criminal provisions, as some believed.

Recent amendments to the constituent elements of property crimes

It should, however, be stressed that even after the entry into force of the new Criminal Code, no significant changes have been made to the constituent elements of property crimes. Nevertheless, in certain offences of the relevant Chapter – including fraud and breach of fiduciary duties – the legislature intended, with Law 4855/2021, to introduce stricter penalties for specific instances of misdemeanour forms of these crimes, in cases where the loss incurred is serious, but does not exceed the amount of EUR120,000, where they will be punished as felonies.

Criminal Tax Law – Non-payment of Debts to the State

Pursuant to the provisions of Article 469 of the new Criminal Code, any confirmed debts from tax evasion (Article 66 of the Code of Tax Procedure) may no longer be included in the lists of debts giving rise to prosecution due to non-payment of debts to the State (Article 25 of Law 1882/1990). This provision, which is commonly applied in court, was the result of a legislative initiative that proved to be beneficial, since it remedied the inconvenience of a double criminal assessment and punishment for the same tax loss.

The interpretation and application of this provision has recently been an issue of concern and disagreement in the VII Criminal Division of the Supreme Court (Reference No 1579/2022, “NOMOS” Legal Database). The majority ruled that, as regards the debts unaccounted for the determination of the debtor’s liability to the State, Article 469 will only apply when the debts included in the list constitute a tax offence in their own right, exceeding the amount required by Article 66 of the Code of Tax Procedure for the establishment of the existence of a tax offence. The court also dismissed the opposite notion – that, irrespective of the amount of the debt or its classification as a tax offence, any debts mentioned in Article 66 are not taken into account to establish an offence of non-payment of debts to the State, even where these debts are either less than the amount which gives rise to the tax offence or come from simple tax violations which are not classified as tax offences – as being contrary both to the text and the interpretation of legislature’s intention at the time Article 469 of the CC was enacted.

In fact, the majority of the Court expressed concern that instead of the legislature’s intention of preventing cases of double punishment, this version would lead to the impunity of tax evaders. Nonetheless, two members observed that the criterion for whether such debts should be subject to Article 469 of the CC is their source, irrespective of the amount of the debt; ie, whether acts or omissions under paragraphs 3, 4 and 5 of Article 66 of the Code of Tax Procedure should become punishable or not on account of the amount of the debt per fiscal or administrative year. As a result of this disagreement among the members of the Supreme Court, the VII Criminal Division referred the above issue to the Plenary session of the Supreme Court, which will now be called upon to remedy the interpretation of the above rule, consequently affecting thousands of pending criminal cases.

Conclusions

The changes in substantive criminal law and criminal procedure, from the enactment of the new Codes, make it clear that the legislature perceives criminal procedure differently than it once did. Whereas the so-called traditional framework, according to which the notion of crime is understood primarily as an offence against the legal order, played a primary role up until 2019, it is now clear that a restorative and private framework of criminal proceedings applies. This is a new management model for Greece, which interprets criminal acts above all as offences against individual rights. Notwithstanding any misgivings, this change may have been inevitable due to the excessive workload of criminal courts and the fact that the administration of justice was, to a large extent, excessively slow.

In view of the ongoing legislative amendments over the last few years, it is becoming evident that the overall field of criminal law in our country is still in transition. It is for this very reason that we, as lawyers and collaborators in the justice system, have a duty to adapt to the new reality, to promote legal certainty, and to advocate for the best legal solutions for our clients across the board in criminal proceedings.

• You can also read our Criminal’s law team Overview for Chambers Europe 2023 here.