How often are extradition requests executed?
Indicatively, in 2014-2018 Greece sent 61 and received 304 extradition requests, as well as around 300 requests for the execution of European Arrest Warrants. Regarding requests received, Greece has refused extradition in about 10-20% of all cases, mainly due to the lack of dual criminality, the Greek nationality of the requested person, because he/she had been granted asylum, or for reasons of possible human rights violations. This percentage is estimated to be higher in respect of requests for the execution of European Arrest Warrants, due the frequent existence of further obstacles to the surrender of the requested person, such as the partial commission of the crime on Greek territory or the raising of criminal charges in Greece for the same offence.
In contrast, the vast majority of requests sent to non-EU States are not satisfied, with the exception of Albania. Issues have been encountered with some countries due to increased evidentiary requirements, leading to their not accepting to proceed with the extradition requested.
Which offences are extraditable under Greek law?
Greece grants cooperation on extradition based on the principle of dual criminality. Extradition shall normally be granted in respect of offences punishable under the laws of both the requesting and the requested Party by deprivation of liberty or a security measure for a maximum period of at least one year or by a more severe penalty. In cases of multiple crimes the extradition is permitted for all acts, if one of them is punishable by one of the above penalties. Where a conviction to a penalty has occurred or a security measure has been ordered in the territory of the requesting Party, the punishment issued must have normally been for a period of at least four months.
An important exception to the dual criminality principle is provided for with regard to EU Member States in Law 3251/2004. This refers to the execution of the European Arrest Warrant, which is allowed, without verification of dual criminality, for a catalogue of 32 offences, if they are punishable in the issuing Member State by a custodial sentence or a detention order for a maximum period of at least three years.
What are grounds for refusing / defending against extradition?
Although the rules fluctuate significantly depending on the applicable legal basis, extradition (or the execution of a European Arrest Warrant) may be denied, among others: (a) if the person for which extradition is requested was Greek when the act was committed or is Greek or resides in Greece when the request is made; (b) if the competence for prosecution and punishment of the crime belongs to the Greek courts; (c) if, in accordance with the Greek laws, the crime is characterised as political, military, tax-related or related to the press, or is prosecuted only by complaint of the victim; (d) if the requested person has already been irrevocably tried for the same act in another State and, in case of a conviction, the penalty has been or can no longer be served; (e) if, in accordance with the laws of the state requesting extradition or the Greek state or the state where the crime was committed, a lawful reason preventing prosecution or execution of the sentence or excluding or cancelling punishment has emerged prior to the decision on extradition (e.g. amnesty or the time-barring of the offence or the penalty); (f ) if the act for which the requested person is sought was committed in whole or in part on Greek territory; (g) if it is appears that the person for whom extradition is requested will be prosecuted by the state to which he surrenders for a different act than the one for which extradition is requested; and (h) if there are substantial grounds for believing that the request has been made for the purpose of prosecuting or punishing a person on account of his race, religion, ethnic identity, nationality, language, sexual orientation or political opinion, or that that person’s position may be prejudiced for any of these reasons.
What is the normal procedure for extradition?
Extradition procedures for requested persons in Greece normally deploy in two phases: (a) judicial, involving the courts, and (b) administrative, involving the Minister of Justice. First of all, when there is reasonable suspicion that the person who will be sought for extradition will leave the place he is located, the public prosecutor at the Court of Appeal has the right to issue a provisional arrest warrant (e.g. on the basis of an Interpol Red Notice). As soon as the request and the extradition supporting documents are received, an arrest warrant is issued by the locally competent President of the Court of Appeal and next the case is brought to hearing before the competent Athens Court of Appeal sitting in council, which rules for or against the extradition. If the Court rules for the extradition, the requested person may lodge an appeal against the related judgment within 24 hours before the Supreme Court, which acts as a second instance court. Should the competent Court of Appeal rule against the extradition and the competent Court of Appeal Prosecutor does not lodge an appeal before the Supreme Court, the requested person is set free. If, however, the competent Prosecutor of the Court of Appeal lodges an appeal, the requested person remains in detention until the Supreme Court renders its judgment. Should the Supreme Court rule for the extradition, the requested person remains in detention and the final decision is made by the Minister of Justice. Should the Supreme Court rule against the extradition, the requested person stops being in detention and his extradition procedure is terminated.
Usually, extradition procedures take up to 5-6 months to complete, whilst in cases where more time is required, the persons requested exercise their legal appeal rights or follow tactics such as filing a request for cancellation against the related ministerial judgment, or applying for asylum.
An expedited and more flexible surrender procedure is provided for in the case of European Arrest Warrants, in accordance with Council Framework Decision 2002/584/JHA. Interestingly, according to recent case law this procedure also allows the requesting States to be represented at the relevant hearing through an attorney of their choice. Other expedited procedures exist in the context of bilateral treaties such as the ones with the USA and Mexico.
What is the position regarding extradition requests involving Greek nationals?
As already mentioned, Greece in general does not permit the extradition of its nationals. In case of an extradition request issued by a third State, based on a bilateral/multilateral convention or on the principle of reciprocity, then Greece, through its competent authorities, shall consider the possibility of initiating penal proceedings so that the accused Greek national stands trial and, if found guilty, does not remain unpunished (aut dedere aut judicare). If extradition is sought for the purpose of enforcing a sentence, Greece shall consider the enforcement of the foreign sentence, if there is a relevant bilateral or multilateral agreement in force.
In case of a European Arrest Warrant issued for prosecution purposes, and provided that the conditions for its execution are met, the Greek national in question shall be surrendered to the requesting Member State in order to stand trial. As soon as a final judgment is rendered, the requested person shall be re-transferred to Greece and serve the imposed sentence there. If there are no prior assurances for such re-transfer the execution of the European Arrest Warrant is refused. In case of a European Arrest Warrant issued for sentence serving purposes, and provided that all legal conditions are met, the competent Greek judicial authority shall refuse the execution of the Warrant and the Greek national in question shall immediately serve the sentence in compliance with the applicable Greek penal laws.
Is the transfer of sentenced persons possible?
Greece has ratified the Council of Europe Convention on the Transfer of Sentenced Persons and the Additional Protocol thereto. It has also entered into bilateral agreements on the transfer of prisoners with Albania and Egypt.
There have been numerous transfers of sentenced persons in the past, mainly based on the above mentioned Convention, according to the criteria and conditions stated therein. The relevant procedure involves copies of the foreign judgment being transferred to the competent Public Prosecutor, who confirms whether the relevant acts or omissions constitute an offence according to Greek law or would have constituted an offence had they been committed in Greece. Following this the convicted person is informed about the legal consequences of his transfer to Greek penitentiaries and is called upon to submit a signed form of consent. If he accepts, the General Secretary of Criminal Policy of the Ministry of Justic decides on the approval or dismissal of the transfer demand.
In addition to this “regular” procedure, Law 4307/2014 transposed into Greek law Council Framework Decision 2008/909/JHA on the application of the principle of mutual recognition of judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the EU. Accordingly, the transfer of sentenced persons involving other EU States is nowadays handled in an expedited manner directly by the competent Public Prosecutors.
What is the legal basis for mutual legal assistance (MLA)?
Greece is party to numerous multilateral MLA treaties and there are currently also bilateral treaties in force with 12 countries. 8 other bilateral MLA treaties are no longer in use because international cooperation with those countries is based on the 1990 Convention applying the Schengen Agreement or the 1959 European Convention on Mutual Assistance in Criminal Matters. Among others, Greece is party to multilateral criminal law conventions that contain MLA provisions for specific offences and claim direct application regarding the execution of relevant requests, such as the UNCAC, the UNTOC, and the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism (CETS No. 198 – Law 4478/2017).
International treaties prevail over domestic law. In the absence of a treaty, domestic law is applied on the condition of reciprocity (Article 28 of the Constitution). In such cases, Greece can provide or grant MLA under the ancillary and supplementary provisions of Articles 457- 461 CCP.
At the EU level, Law 4489/2017 has incorporated Directive 2014/41/EU of the European Parliament and of the Council regarding the European Investigation Order in criminal matters. Additionally, the execution of freezing or confiscation requests originating from other EU countries is regulated by Arts 10ff. Law 4478/2017, which incorporate the provisions of Council Framework Decisions 2003/577/JHA on the execution in the EU of orders freezing property or evidence, and 2006/783/JHA on the application of the principle of mutual recognition to confiscation orders.
How often are MLA requests executed?
Indicatively, during the period 2014-2018, Greece sent 704 MLA requests and received 2.232. The large majority of incoming and outgoing requests are satisfied. Reasons for countries denying the execution of a request coming from Greece have often been the inability to locate a witness, the fact that the requested action is not allowed under the national Constitution (e.g. USA), and the fact that the offence in question is considered of minor importance (e.g. USA, China).
Is it possible to provide MLA in criminal proceedings against legal persons?
Theoretically, Greece can provide MLA in investigations against legal persons, even though its own legal system does not recognize the criminal liability thereof. This is because the provision of MLA is tied to the commission of an offence and the existence of investigations, prosecutions or judicial proceedings in another State, not to the identity of the offender. Nonetheless, there is limited practical experience in this field.
What kind of MLA can be provided?
MLA can be afforded for any investigative measure when a bilateral or multilateral convention exists or under the principle of reciprocity, the only limitation being that the measure in question should be allowed by Greek law for the offence in question. Such measures include: (a) taking evidence or statements from persons; (b) effecting service of judicial documents; (c) executing searches and seizures, and freezing of property or evidence; (d) examining objects and sites; (e) providing information, evidentiary items and expert evaluations; (f ) providing originals or certified copies of relevant documents and records, including government, bank, financial, corporate or business records; (g) identifying or tracing property, instrumentalities or other things for evidentiary purposes; (h) undertaking controlled deliveries or covert investigations; and (i) facilitating the voluntary appearance of persons in the requesting State or the temporary transfer of persons held in custody.
Are there measures in place to coordinate seizure and confiscation actions with other countries?
Yes. The Financial and Economic Crime Unit (SDOE) is competent for the recovery of assets and funds derived from criminal activities, and cooperates with the relevant Departments of EU Member States, to detect and trace proceeds and other property resulting from crossborder crime, which may be subject to freezing, seizure or confiscation. The relevant Department cooperates, at the national level, with all competent authorities to respond to requests made by EU Member States, as well as that of third countries covered by mutual administrative assistance conventions signed by Greece. It has been designated as the National Bureau for the recovery of funds and assets derived from criminal activities and aims both to facilitate mutual administrative cooperation and assistance, by rapidly exchanging information and data through the CARIN network and increase mutual understanding of the methods and techniques used in this field. The recovery of funds takes place in the context of judicial assistance, following the prescribed procedure, through the Ministry of Justice, Transparency and Human Rights.
What is the normal procedure for providing MLA?
In most cases MLA requests are channelled through the Central Authority in the Ministry of Justice to the locally competent prosecutor of the Court of Appeal, and from there to the investigating officer(s) of its region, who proceed to the required interrogatory acts. In emergencies, requests may also be sent through Interpol channels. As soon as evidence is collected, it is transferred through the competent prosecutor of the Court of Appeal to the Ministry of Justice and next to the requesting authority.
Requests under the EU Schengen Agreement may be directly made to the locally competent prosecutor of the Court of Appeal and the aforementioned procedure shall be followed. In such cases, the executed request is sent directly to the foreign requesting authority. The same goes for the execution of European Investigation Orders.
In the event that the judicial assistance request is filed on the basis of article 21 of the European Convention on Mutual Assistance in Criminal Matters, and involves prosecution, then the request shall be submitted to the Ministry of Justice, which transfers the request to the locally competent prosecutor of the Court of Appeal and the latter to the locally competent prosecutor of the Court of First Instance who reviews the case. The requesting authority is informed on the progress of its request.
Judicial assistance is executed based on Greece’s domestic law. If, exceptionally, it is not possible for some requests to be satisfied, Greek judicial authorities will send a justified response on the grounds that render them unable to satisfy the request.
What are grounds for declining MLA?
As a rule, the execution of MLA requests calls for the occurrence of dual criminality, as stipulated in the applicable treaties and provisions mentioned above. In verifying dual criminality, consideration is given to the relevant conduct rather than the strict wording or terminology of the offence. An important exception are the 32 categories of offences excluded from the verification of double criminality in the European Investigation Order, provided that they are punished with a minimum sentence of 3 years.
MLA may also be refused, among others: (a) if the underlying offence is not extraditable; (b) if execution of the request is likely to prejudice national sovereignty, security, ordre public or other essential interests; (c) if the authorities would be prohibited by domestic law from carrying out the action requested with regard to any similar offence, had it been subject to investigation, prosecution or judicial proceedings under their own jurisdiction; (d) if the execution of the request would be contrary to the principle of ne bis in idem; e) if there are substantial grounds to believe that the execution of the request would be incompatible with the ECHR, the Charter of Fundamental Rights of the EU, or fundamental principles of the national legal order.
Can MLA be granted for tax offences?
The European Convention on Mutual Assistance in Criminal Matters provides that legal assistance “may not be granted” for tax offences. However, after the entry into force of the Schengen Agreement, judicial assistance is granted for tax offences committed in EU countries
and those that have transposed the Schengen Agreement into their domestic law (e.g. Switzerland). Equally, the recognition or execution of a European Investigation Order concerning an offence in connection with taxes or duties, customs and exchange, may not be refused on the ground that the Greek legislation does not impose the same kind of tax or duty or does not contain a tax, duty, customs and exchange regulation of the same kind as the law of the issuing State. Finally, some conventions with other States provide that MLA requests cannot be refused on the sole ground that the offence is also considered to involve fiscal matters.
Can MLA be declined on the grounds of bank secrecy?
At the non-EU level, bank secrecy may only be lifted for actions that the Greek criminal law defines as felonies, i.e. offences punishable with incarceration from 5-20 years of for life. In contrast, the lifting of bank secrecy may be denied in cases of misdemeanours, i.e. offences punishable with imprisonment from 10 days to 5 years.
Is the transfer of criminal proceedings possible?
The transfer of criminal proceedings is possible at the level of the Member States of the Council of Europe, the legal basis being Article 21 of the European Convention on Mutual Assistance in Criminal Matters.
