Criminal modernization or regression? | Dawn

Now that the legislative ink has dried and Law 5090/2024 has become law, the legal community and Greek society are called upon to make a sober assessment of the changes that are coming. Is this about criminal modernization or criminal populism?

The 2019 Code, the result of a long law-making process, in which prominent representatives of the legal profession, the academic community and the judiciary participated, was an important intervention and addressed a number of issues that had been raised in theory or had arisen in practice, without, however, missing some failures , which we had pointed out from the beginning.

The new P.C., which is the 12th amendment of the P.C. of 2019 within four years, negates to a significant extent the acquis of the 2019 changes, as it turns the penal system in a punitive direction, with the pseudonymous – and ultimately populist – appeal of impunity, which attempts to hide under the carpet the real problems of criminal justice and anti-crime policy: the chronic delays in the delivery of justice, the inability to fight organized crime, the failure of the prison system.

The legal community expressed its absolute opposition from the first moment through the decisions of its highest institutional body, the Plenary Session of the Presidents of Bar Associations, in defense of the constants of our legal culture, which are dealt with in the constitution and in the European jurisprudence.

At the level of substantive law, the tightening is presented as a panacea for dealing with crime, although the statistics of EL.AS itself. they do not strengthen the causal relationship between tougher sentences and reduced crime. The criminal legislator is not allowed to act in the heat of the moment nor to serve expedients. A serious anti-crime policy presupposes a study of statistical data and a multi-level approach, with elements bearing the strengthening of prevention, the early detection of crimes, penitentiary care and, of course, social policy.

On the altar of tightening, unproven and useless regulations are being introduced that should concern us:

* Mitigating circumstances are stripped away and their impact on sentencing is reduced in a way that raises questions of proportionality.

* The vertical limitation of the institution of the suspension of the execution of the sentence is foreseen and its application only when the offender is sentenced to a sentence that does not exceed one year. The institution of conversion is reinstated, while prison sentences of more than two years will be served, partially or fully as the case may be, without any previous study on the carrying capacity of the prison system and on the possible criminogenic contamination of the first-time misdemeanor offender from his incarceration .

* Also, the exclusion of the suspension of the execution of the sentence upon a previous conviction even for a negligent misdemeanor, which may in fact be completely unrelated in nature to the act in question, goes against the fundamental principle of the individualization of the sentence and makes mandatory the incarceration in prison of convicted persons for whom it is clearly contraindicated. Thus, a complete questioning and stripping of the jurisdictional work and role of the trial judge by the legislator emerges, as has been done with the regulation of article 187 par. 6 of the Civil Code, with the result that his jurisdictional judgment is suffocatingly limited.

* The proposed abolition of simple defamation as a criminal offense is incomprehensible. P.K. (under the earlier provisions) protected honor and reputation with a carefully harmonized network of provisions that ensured the right balance between freedom of expression and the protection of honor and reputation, entitled to “absolute” protection under the constitution (Article 5 , par. 2). These provisions have been fully processed by the jurisprudence of the criminal and civil courts and are applied without problems. The legislative intervention completely overturns the above-mentioned balanced system of protection and allows the impunity of slanderous allegations with potential fraud as well as the dissemination of true facts that go back to the constitutionally protected private and family life (article 9, par. 1, sec. b’ of constitution).

The criminal legislator is the one who, more than anyone else, must not forget for a moment that justice is administered in the name of the Greek people and only under the guarantees of the constitution and the ECHR. Any reduction in the field of criminal legislation constitutes a defeat for Democracy and the Rule of Law.

* Dimitris K. Vervesos is president of the Plenary Session of the Presidents of the Bar Associations of Greece and president of the Athens Bar Association