Extensive critique levelled at law 4855/2021 and the changes it makes to the Penal Code and the Code of Criminal Procedure

Law 4855/2021 changed once again the regulations of  basic criminal legislation, i.e. the Penal Code and the Code of Criminal Procedure. Both the fact that the provisions of these basic criminal laws are being changed once again, as well as the substantive content of these changes and questions around their purpose, have provoked reactions and concerns. This was both on the general basis of the legal uncertainty created by these frequent legal changes, as well as more specific concerns around the content conflicting with constitutional or European requirements and the rights of the citizen, as well as with existing jurisprudence and prevailing theory.  The objections expressed, however, failed to change the opinion of the majority of MPs and the changes were voted into law by Parliament.

With law 4855/2021 “Amendments to the Penal Code, the Code of Criminal Procedure and other urgent provisions,” extensive changes are made to  the new Penal Code (PC) and the new Code of Criminal Procedure (CCP).  Law 4855/2021 contains 203 articles, of which 170 are changes to the above Codes (see all changes in this comparative table).

The new PC and the new CCP first entered into force on 1/7/2019 with Laws 4619/2019 and 4620/2019  respectively. The legal uncertainty created by the constant changes of these basic criminal laws in such a short period of time, as well as the substance of the changes, were commented upon extensively by justice professionals. Some of the issues raised we will examine below:

The Union of Judges and Prosecutors, after stating that: “we believe that the legislature must take into account the legal uncertainty created by this legislative dithering and backtracking,” proceeds to comment on the problematic points of individual provisions.  Among other things, they point out the problems arising from the amendment of Article 191 of the Penal Code on the dissemination of false news, as well as highlighting the unjustified regression that takes place with the amendments to common dangerous crimes. They also suggest the retraction of the provision which restores the criminality of illegal fishing in territorial waters. 

The Plenary Session of the Bar Association comments on the fact that within two years from the entry into force of the new Penal Code, the provisions are already being amended for the third time, despite the fact that, “the Penal Code is a basic legislation, which by its nature should be long term in order to create legal certainty.” They also draw the legislator’s attention to the fact that tougher penalties alone is not the solution to fighting criminality.

The Board of Directors of the Athens Bar Association comments on the content of individual provisions and highlights their problematic elements (analyzing, for example, how the exclusive provision of the sentence of life imprisonment for intentional homicide substantially invalidates Article 79 of the Penal Code, the rules for measuring the sentence and the possibility for a substantive judgment on the amount of the sentence). They also acknowledge, however, that some changes (such as the amendment of Article 270 of the Penal Code) are justified.

The Union of Greek Criminologists comments that “the part of the bill concerning the Penal Code (Articles 1 to 93) is, taken as a whole, dogmatic… in the name of citizens’ security these fragmented interventions.. disrupt the coherence of the penal code, disorganize its regulations and undermine the rationalization and modernization of the system of sanctions brought about by the current penal code, according to prevailing scientific views… The criminal legislator thus appears to be subject to ephemeral “needs” to satisfy the -unspecified content- “of a sense of justice” by demonstrating a punitive fist, sacrificing on the altar of topicality the authentic purposes of the criminal judicial function.” On the other hand, their assessment of the amendments made to the Code of Criminal Procedure is generally positive. They proceed to the analysis of and commentary on the individual articles that have been changed, proposing changes or expressing the opinion that the article should remain as it was.

Reactions and concerns regarding the correctness but also the expediency of the changes (especially in the context of the Penal Code) also took place both outside (see 1, 2, 3, 4, 5) and inside the Parliament (see 1, 2, 3 and the minutes of the Parliament 1, 2).

1. Peponis ( Supreme Court Prosecutor) commenting on the general issue of legislation in the field of criminal law comments that, “the reduced and even weak ability of the modern Greek penal system to fulfill its core mission, which is to protect the legal property of its citizens effectively, and always within the framework of the principles of the Rule of Law in the fight against crime, is commonly accepted to a not inconsiderable degree to be a consequence and a result of bad legislation.”
2. Fitrakis (J.D., Lawyer) concludes an article stating that, “the problem is that government policy not only adopts fake news but also legislates it. The blow to rational criminal law seems particularly serious.” N. Paraskevopoulos (professor of Criminal Law and former Minister of Justice) comments in an interview that: “… but the legislation of the Ministry of Justice seems to consolidate and codify regulations that abolish the historical acquis of the rule of law…. The rule of law has at its core proportional sanction and punishment. However, this bill abolishes the principle of proportionality in the administration of justice , which is the very essence of the law.”

Concerns regarding the content of the changes were also expressed by the Scientific Service of the Parliament. Special reference is made to the changes that have taken place in the context of the crime of spreading false news and the crime of false testimony, as well as the individual examination of victims of infringements of personal and sexual liberty.

Later in the video, N. Bitzilekis (Professor of Criminal Law and member of the above Committee) states: “The issue, Mr. President, is that they don’t say that ‘our experts suggested this,’ because quite simply the experts never suggested that …they never suggested … life sentences as the only possible sentence or such proposals. … Let them take responsibility for their proposals … Because sometimes they just use us as a scientific cover for their proposals. That’s what we need to understand.” The content of this event is also generally reflected in an article in the Efimerida ton Syntakton.

The way in which the Parliament chooses to legislate and the good or bad legislative practices that are adopted, therefore, also affect the field of criminal law. Legislation that was formulated only recently in the year 2017 at the conference “Good legislation as a necessary condition for a fair and effective functioning of the state,” is being updated again. (See especially the presentation, “Forms of appearance and the consequences of bad legislation in the field of criminal justice ”p. 160).

Although the legislature undoubtedly has the first and last word in drafting and passing laws, the principle of the rule of law must be taken into account in the type and content of the interventions made by the legislator, in order to ensure compliance with constitutional principles and fundamental rights. As mentioned in this article by M. Caiaphas-Gbady (Professor of Criminal Law) in 2020, “… constitutional freedoms are not only guaranteed vis a vis executive power, but also vis a vis interventions made by the legislator … the rule of law is not just a tool for the formal restriction of state power, but is also an appeal for its fair and sensible use … ”   

Criminal law, its rules and its application, can have important consequences for the fundamental rights of an individual both at the substantive and procedural level. That is why the penal system in general (both in theory and in practice) and the rule of law are closely linked. This means that changes to the basic legislation of criminal justice, namely the Penal Code and the Code of Criminal Procedure, must obey the principles of the rule of law. Among these principles are the principle of legality, legal certainty and the effective guarantee of rights such as those of freedom, dignity, equality and justice. Furthermore, in a state governed by the rule of law, the opinion and concerns of relevant bodies should be taken into account by the legislature during the drafting process.

The above principles, however, don’t seem to have been followed in the passing of law 4855/2021, striking a blow to the rule of the law. The reactions and concerns that were noted were overcome, overlooked or simply ignored. Law 4855/2021 was passed and several articles of both the Penal Code and the Code of Criminal Procedure changed once again.