ARTICLES
Legislation ensures the prosecution of certain crimes against financial institutions can only take place following the filing of a complaint rather than ex officio
In November 2019, just a few months after the passing of the new Criminal Code and the new Code of Criminal Procedure, law 4637/2019 was passed, amending a number of provisions of these two codes of basic criminal legislation.
Based on paragraph 3 of article 12 of this law, an additional paragraph is added to paragraph 1 of article 405 of the Criminal Code, providing that the criminal prosecution of the crimes described in article 390 paragraph 1 subparagraph b, when committed directly against a credit or financial institution or businesses in the financial sector, must be prosecuted on the basis of a complaint filed, rather than ex officio. It is noted that this provision was introduced for voting with an amendment 80/3 12.11.2019 which was submitted late.
Furthermore, according to paragraph 2 of article 6 of Law 4637/2019, pending criminal proceedings relating to these crimes which have been opened without the submission of a criminal complaint will continue so long as the victim declares within four months that they wish the case to progress. This four-month period would normally expire on 18-3-2020.
Joint Ministerial Decision Δ1α/ΓΠ.οικ.17734/12-3-2020 temporarily suspended, from 13-3-2020, all Courts and Prosecutors’ Offices in the country and all legal and judicial deadlines for procedural acts and other actions. However, about a month later, the forty-sixth article of legislative act 13-4-2020 Π.Ν.Π specified that the deadline for declarations of the desire to proceed with pending criminal proceedings, as described above, was not included in this general suspension. It is noted that this legislation was passed after the deadline for submitting these declarations had already “expired”.
These legislative interventions cannot but raise questions and concerns around the rule of law. This is due to the effects that these provisions have on the prosecution and punishment of serious (financial and/or corruption-related) crimes (especially those already being investigated by the judicial authorities), the legal uncertainty that seems to be created in this particular case, as well as the contrast between the leniency shown in this specific provision with the strict (and/or punitive) spirit that the legislator has shown in other criminal legislation recently. Various opinions were expressed on a theoretical and jurisprudential level (see among others 1, 2, 3, 4, 5, 6, 7, 8, 9and 1, 23p77,4, 5), on the constitutionality (or not) of the provision both in general as regards prosecuting these specific criminal acts only after the submission of a complaint, as well as regarding the regulation of the deadlines.
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