페이지 이미지
PDF
ePub

Common act exists where either the act of each participant constitutes the factual elements of a crime, or a crime is perpetrated by the convergence of the act of the participants.

Under the circumstances set out above, each participant will be subject to the same punishment. If a person assists another in the commission of an act but before the crime is committed, such person will not be deemed to be a principal but an accomplice and will be punished under the provisions of Article 47. The distinction between the two cases is that the act of the perpetrator is an act of commission whereas the act of an accomplice is an act of assistarce before the commission of the crime. If a person has offered assistance at the time of the commission, such person shall be deemed to be an accomplice during the act and shall be punished as a perpetrator.

QUESTION 14

A rule similar to "felony-murder” does not exist in Greek criminal law.

QUESTION 16

Article 195 specifies that whoever, without authority, forms, supplies, or undertakes the leadership of an armed group, as well as anyone who participates therein, shall be punished by imprisonment for not less than 6 months.

QUESTION 17

Where the victim consents to certain acts, then either there is no crime, or there is a crime but it is not punishable.

The first occurs whenever an element of a crime is that it is perpetrated against the will of the victim, and such an element is lacking (consent isgiven). Here no crime exists (e.g., illegal detention) (Art. 325).

In the second case, the factual elements of a crime are perpetrated but the act is not punishable due to the victim's consent. This happens only where minor bodily injuries are involved which were caused with the consent of the victim in a way not contrary to good morals (Art. 308, par. 2).

Drugs are governed by the Law 5539/1932 and Law 3084/1954 in combination with Laws 6169/1934, 911/1937, 803/1948, and 1765/1951. It is spelled out therein what narcotic substances are, and that their possession or sale shall be punished by confinement in a penitentiary for up to 10 years and a fine of up to 10 million metallic drachmas. When the quantity of narcotics in the possession of the accused is trivial, the penalty shall be up to 2 years of imprisonment.1

Violation of the aforementioned laws is a major crime and therefore, shall be tried by a criminal court.? The factual element of the above crimes is the mere possession or sale of narcoties. It is irrelevant whether or not the victims consent or that they are customers of the defendant.

By virtue of Law 256/1939 as amended by Laws 621/1937, 2155/1943, and 1620/1951, gambling is permitted only where permission is given by a competent authority (Ministry of Public Security). The facual element of the crime of gambling is perpetrated if it is done without authorization. Consent is an element of the crime.

According to Law 3310/1955 which has replaced Law 3032/1922, a committee has been established with the objective of implementing the provision concerning prostitution. Generally, women engaging in prostitution are not prosecuted provided that the various regulations established by the committee are observed, mainly that women under 18 years of age are not involved or that two or more women do not practice the prostitution in joint enterprise.

Obscenity is regulated by Law 5060/1931 which was enacted in compliance with the international Geneva Agreement of December 19, 1923, as amended by Law 2306/1953, enacted to implement a protocol agreement signed by the members of the United Nations at Lake Success on December 11, 1947.

According to the provisions of the above laws, the judge must decide whether material is obscene or not, taking into consideration the personality of the author, the purpose of the document and the effect which it may have on

* Athens Court of Appeals 188/1958.
2 Supreme Court (Areios pagos) 330/1957.

the public. If the court decides that the material is obscene, it is confiscated and destroyed.

The above-mentioned laws are not contained in the Criminal Code. According to Article 34, sexual activities between males is punished by imprisonment for not less than 3 months, if one of the parties is an adult and the other a minor, or such activities are the result of an abuse of a position of authority in any public or private office, or if it is perpetrated for any kind of gain. It seems that "a contrario” homosexuality between consenting adults is ant punishable.3

QUESTION 18 The Penal Code does not contain provisions about firearms and explosives. This matter is governed by special laws such as Law 286/1914 and Law 2:218/1952.

QUESTION 19 Capital punishment is provided for the following cases: (1) an assassination attempt against the King or against a person substituting for him in his offical duties (Art. 134); (2) where a Greek citizen serves in the army of another country with whom Greece is at war (Art. 143); (3) where a person acts in a way that may assist the enemy in connection with a war which is imminent or has already broken out against Greece (Art. 144); (4) espionage against Greece in time of war (Art. 148); (5) where a person intentionally kills another (Art. 299); (6) where a person kills another by willfully violating the mules agreed upon for dueling ; (7) in the case of heavily bodily injuries or death caused in connection with a robbery (Art. 380) ; (8) in the case where a Derson, in order to derive illegal property benefit, extorts another by threaten ing his limb or life.

With regard to the above cases, the judge shall impose the death penalty, if the type or means of commission is extraordinarily odious or if the perpetrator is dangerous to the public.

By virtue of Law 1608/1952, Article 1, the death penalty may be im sed in the case of Articles 216, 218, 242, 256, 258, 372, and 376 of the Criminal Code, where the person continued perpetrating the crimes described therein for a long time or where the profit derived therefrom is particularly high. All of the above articles are referred to as abuses against public property.

The death penalty is imposed by a jury and in some instances by the court of appeals. No separate proceedings are provided.

QUESTION 20

A distinction is made in Article 94 between the case where the perpetrator commits several offenses by independent acts and the case where several offenses are committed by the same act. The perpetrator shall be subject to one trial if these offenses are committed at one time or successively (Supreme Court 384/1953), and the imposed sentence shall be, in the first case, a compound one consisting of an augmentation of the severest concurrent punishments. In the second case, the court shall increase, at its discretion, the severest of the concurrent punishments, but not to exceed the maximum provided.

Article 57 of the Code of Criminal Procedure defines that the prosecution is barred by former prosecution of the same offense.

Only one jurisdiction exists in Greece. Therefore, there are no provisions equivalent to Sections 707, 708, and 709.

BIBLIOGRAPHY

Barbareton, G.A. Kodix Poinikes Dikonomias (Code of Criminal Procedure). Athens, D. Tzakas-$. Delagrammatika, 1956, 575 p.

Poinikos Kodix. (Criminal Code). Athens, D. Tzaka-S. Delagrammatika, 1956. 572 p. Bouropoulos, Aggelos. Hermeneia tou poinikou kodikos (Interpretation of the

Criminal Code). Athens, Sakkoulas, 1960. 3 v. Chorafa, Nikolaou. Genikai Archai tou poinikou Dikaiou (General Principles of the Criminal Law). Athens, P. Sakkoula, 1962. 386 p.

"G. Gardicas. "Crimes against Morals," Poinika chronika. v. B. 1952. p. 211.

Gafou, Elia. Poinikou Dikaiou (Criminal Law). Thessalonike, Theodoride,

1948, 447 p. Moschandrea, Bas. Hermaneia tou neou poinikou Kodikos (Interpretation of

the New Criminal Code). Athens, 1951. 321 p. Staikou, Ant. Hermeneia poinikes Dikonomias (Interpretation of the Code of Criminal Procedure). Athens, Fragouli, 1955. 1070 p.

Hermeneia tou poinikou Kodikos (Interpretation of the Criminal Code). Athens, Fragouli, 1955. 2000 p.

QUESTION 12 I. Gencral Remarks

A State may claiin jurisdiction over an offense on the ground that a crime affects the national interests, although it has been committed abroad. In regulating this matter, some principles have been developed which have been followed by most of the European countries. These principles (universality, territoriality, personality and the protective principle) are often referred to as “principles of international law” and the group of criminal laws which governs these cases as “international criminal law.” These terms are misused because each State, when enacting such laws, does not act to regulate its relations with other States, but acts as a sovereign (imperium) in stipulating under which circumstances its criminal law should apply to offenses which have been committed abroad but nevertheless effect its legal order.

According to the principle of universality, a country may apply its law to any crime, regardless of the place where the crime was committed the nationality of the perpetrator or whether its national interests are affected or not. It stems from the necessity for international cooperation in combating crime, but it lacks legal realism and has been criticized as extremely broad and difficult to apply. More particularly, its application by a State may be in the nature of a violation of the sovereignty of the other States, and the difficulty in collecting the evidence necessary for the prosecution, especially when the crime has been committed in a remote country, is apparent. In addition, the difference between the laws of different States may lead to injustices, for an act mas not be regarded as an offense according to the law of one country, whereas the same act constitutes a crime in another State.

However, the necessity for cooperation in the field of criminal law is unquestionable. International agreements with the objective of combating some crimes, such as the agreements of 1910 and 1923 on obscene literature, and the agreement of 1925 and 1931 on narcotics, is an expression of that need.

Under the territoriality principle, a country may claim jurisdiction over offenses which have occurred only within its own territory. No distinction is made as to the nationality of the perpetrator.

This system although advocated by many prominent authors, has been abandoned as an exclusive concept. It postulates that each State must preserve the existing legal order and secure the rights of its own citizens. Therefore, any deed violating those interests must be punished by its laws, even if it is committed by an alien within the territory.

This principle ignores the fact that such acts may occur within as well as outside the State. Therefore, it does not provide for those acts which are committed abroad and which affect the national interests, or its nationals.

Under the personality principle, the criminal laws of a State are personal and must apply to citizens wherever they commit a wrongful act. The concept is based upon an inner relationship between the State and its citizens. On the one hand, it prevents a State from extraditing its nationals for crimes which they have committed abroad and on the other hand, it enables the State to punish them for each acts. For aliens who violate the laws, the principle creates a "fictio juris” by virtue of which aliens living in a country are regarded as its citizens (subditus temporarius). Thus, the laws apply to them not because the wrongful act was committed within the legislating State, but because under a fictio juris, they are regarded as nationals.

The personality principle does not offer complete protection because, besides the fact that the creation of a “fictio juris” is out of place here, it does not provide for crimes which are committed by aliens abroad and affect the national interests.

The basis of the protective principle is that each State has the right to secure its national interests. These interests can be affected not only by acts

re

committed within its territory but also by acts which take place abroad. The means of safguarding the State's interests rests in the criminal laws, consequently, those laws must protect :

la) all rights which are enjoyed within the State by nationals or aliens;

b! all rights which belong to the State or to its citizens and are exercised al road. The offense against those rights must be punished wherever it is comuitted and regardless of by whom because it is an inherent right of any State iu safeguard such rights.

1C) those rights which two or more countries are interested in securing. These are known as “common" or "international" rights, e.g., the security of international trade, currency, etc. II. The Greek Criminal System

The Greek Criminal Code deals with territorial jurisdiction in Articles 5 to 11. Article 5 provides that all offenses committed within the State shall be punished according to its provisions regardless of the nationality of the perpetrator and the gravity of the offense. This provision is an expression of the territorial principle. Offenses committed within territorial waters or in Greek spate are to be considered to have occurred on the country's territory. Furthermore, paragraph two of the same Article provides that Greek ships and Danes are to be regarded as Greek territory even when they are abroad unless there is an exception in accordance with international law.

Article 6 is an expression of the principle of personality. It is designed to Secure the punishment of those who commit crimes abroad. Without this provision, perpetrators would remain unpunished in the event that they returned to Greece, because extradition of Greek citizens is not provided for under Greek law. A condition for the applicability of this Article is that the act must be a major or a minor crime according to the laws of the country where the offense was perpetrated as well as according to Greek law. If the place of the crime is not subject to any criminal jurisdiction, Greek law is applicable.

Paragraph two of the same Article provides that the perpetrator shall be unnisbable if at the time of commission of the act, he was Greek by fiter] his uitionality afterwards, or if he was an alien at that time but as800d Greek nationality afterwards.

Tlie wording of Article 6 may lead to difficulties in its application because it does not make clear whether or not it applies exclusively to major or minor times. It simply implies that it must be illegal. Some authors contend that an ofense is punishable if it is a petty offense. The opinion that the act must be & major or minor crime seems to be in accord with the whole spirit of Article 6.

diso, there is the question of what the applicable penalty shall be in the erent that the law of the country where the act took place provides for a milder punishment than the law of Greece. It appears that the Greek law applies even when the penalty which it requires is severer.

If the offense committed abroad is a minor crime, prosecution must be requested either by the victim or the country where the act took place (paragraph 3). Petty offenses are punishable only where the law expressly so provides (paragraph 4).

Article 7 has its roots in the protective principle and is designated to protect Greeks against whom an offense may be perpetrated abroad by aliens. It provides that the offense must be a major or minor crime according to the law of the country where it occurred as well as to Greek law. The injured party must be a Greek citizen at the time of the commission of the crime and it is irreleFant if he acquired another citizenship subsequently.

Article 8 specifies that Greek criminal law shall apply to the crimes without restriction, specified in Articles 5 to 7, to wit, without respect to the nationalits of the perpetrator, to the place of commission, and to the gravity of the crime. The enumeration of the crimes in Article 8 is exhaustive, hence, any crime not mentioned therein shall be tried under Articles 5 to 7, provided that the conditions set out therein are met. Those crimes are:

(a) Acts of high treason or treason against Greece;
(b) Offenses against the national defense ;
(C) Offenses committed by a Greek holding a public office;

d) Acts against Greek public officials during the performance of their official duties, or with relation to such duties;

(e) Perjury in a proceeding pending before a Greek authority; (f) Piracy;

(g) Offenses against the currency ;
(h) Unlawful traffic in narcotics ;
(i) Commerce in obscene literature;

(j) Any offense for which the application of Greek law is provided by international agreement.

Articles 9, 10, and 11 specify that if the perpetrator has committed a crime abroad and was convicted or acquitted, or if the prosecution of the act has been barred for lapse of time, or pardoned, or if prosecution has not been requested by the foreign country, it may not be prosecuted in Greece. If the perpetrator has serveil part of the sentence, that time shall be deducted from a punishment subsequently imposed by the Greek court for the same offense (Article 10). If a Greek national has been convicted abroad for a crime which entails additional punishment according to Greek law, the Greek court may im. pose such punishment. Likewise, the Greek court may impose security measures, if they are provided for by the Greek law. A translation of the above-mentioned Articles follows in the Appendix.

APPENDIX: TRANSLATION FROM THE GREEK

Articles 5-11, Greek Criminal Code Art. 5, par. 1. Greek criminal laws shall apply to all offenses committed within the State, even if the offender is an alien.

Par. 2. Greek ships and planes shall be regarded as Greek territory, wherever they are, unless subject to alien jurisdiction, in accordance with international law.

Art. 6. par. 1. Greek criminal laws shall apply to major and minor crimes committed abroad by Greek citizens if such acts are punishable according to the law of the place of the commission, or if that place is not subject to the sovereignty of any State.

Par. 2. Prosecution may be instituted against an alien who was a Greek at the time of the commission of the crime as well as against anyone who acquired Greek citizenship after the commission of the act.

Par. 3. In the case of minor crimes, it is necessary for the application of paragraphs 1 and 2 that either the injured party or the country where the act occurs, requests the prosecution of the perpetrator.

Par. 4. Petty offenses committed abroad are punished only where the law expressly provides therefor.

Art. 7, par. 1. The Greek criminal law shall apply to acts committed by aliens abroad against Greek nationals if such acts are major or minor crimes under Greek law and are also offences where committed or if the place of commission is not subject to the sovereignty of any State.

Par. 2. The provisions of paragraphs 3 and 4 of Article 6 shall be applicable to this Article.

Art. 8. The Greek criminal laws shall apply to the following acts regardless of the nationality of the perpetrator and the place of commission:

(1) High treason or treason against the Greek State;
(2) Offenses against the national defense;
(3) Offenses committed by Greek officials;

(4) Acts against Greek officials during the performance of their duties or in relation to such duties;

(5) Perjury in proceedings pending before Greek authorities;
(6) Piracy ;
(7) Offenses against the currency;
(8) Slave traffic;
(9) Unlawful traffic in narcotics;
(10) Commerce in obscene literature;

(11) Any other case where the application of Greek law is provided for by international agreements.

Art. 9, par, 1. Prosecution for an act committed abroad may not be instituted:

(a) If the perpetrator was tried abroad and acquitted or has served the penalty imposed;

(b) If the prosecution of the act or the penalty imposed has been barred for lapse of time;

(c) If no prosecution was requested, although required by the law of the place of commission.

« 이전계속 »