REPORTS
Concerns raised around the compatibility of new legislation with the protection of the presumption of innocence
On 17 November 2022, law 4995/2022 (Government Gazette 216 Α’/18.11.2022) was passed, incorporating EU regulations on the European Criminal Records Information System (ECRIS) into the national legal order.
Article 14 of Law no. 4995/2022 also reformed Art. 3 of the Code of Criminal Procedure (CCP), extending the data recorded in the criminal records of citizens. Indeed, according to the new provision, criminal records shall also record any criminal prosecution brought, even in its procedural stage, for the crimes provided for in Articles 299, 306, 312, 323A, 324, Chapter 19 of the Special Part of the Criminal Code [Law 4619/2019 (A’ 95)], Articles 20, 22 and 23 of Law No. 4139/2013 (A’ 74) and in Law No. 3500/2006 (A’ 232) for dealing with domestic violence when these crimes are committed against a minor, until the final adjudication of the case.
The government has justified this extension of the information recorded in the criminal record by arguing that it allows for the greater protection of minors. The explanatory memorandum of Law. 4995/2022 notes that the addition was weighed on the basis of the overriding consideration of the obligation to protect minors against the potential breach of the presumption of innocence, which they say is not ultimately affected, since when a final judicial decision is reached, the entry in question would be deleted if the accused is acquitted, whilst in the event of a conviction, the conviction is entered in accordance with paragraph 2 of Article 569 of the Code of Criminal Procedure.
The presumption of innocence is protected by Article 6 para. 2 of the European Convention on Human Rights (ECHR), which provides that “everyone charged with an offence shall be presumed innocent until proven guilty according to law”. As such, serious concerns have been raised as to the compatibility of this provision with international conventions. In a statement on 16 November 2022, the Association of Judges and Prosecutors lodged their objections to the new provision and to the principle of recording prosecutions on criminal records before the courts have ruled on the case. They suggest that the protection of minors could be achieved through other means, such as by creating a database of persons prosecuted for the stated crimes against minors, for example, rather than entering prosecutions on a criminal record.
Similar concerns were expressed by the Scientific Service of the Parliament, which in its report on the bill noted that the relationship between the purpose of the regulation, which is the protection of childhood as an obligation of the state, and the means to achieve it, which is the restriction of the right to the protection of personal data, is governed by the principle of proportionality. They therefore also suggest that a different strategy may be more suitable, in accordance with the principle of proportionality, such as the issue of a special, different, type of copy of the criminal record which would include information on criminal proceedings and pending proceedings, and would be issued only under specific conditions (such as in the case of hiring people to work with minors), with a corresponding amendment of the articles of the CCP.
A state governed by the rule of law must protect the principle of the presumption of innocence.
However, new legislation raises serious compatibility concerns with the presumption of innocence, as protected by Article 6 para. 2 of the ECHR.
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