The Relation between the Public Prosecutor and the Minister of Justice
Chapter II
The Relation between the Public Prosecutor and the Minister of Justice
The Greek prosecution service is organised hierarchically and nation-wide. There is a public prosecutor office at each of the three levels of the court system. There is a public prosecutor office at each court of first instance, a public prosecutor office at each Court of Appeal, and a public prosecutor office at the Areios Paghos (Supreme Court in civil and criminal matters). The only public prosecutor who has the duty to prosecute is the prosecutor at the court of first instance (Sect. 30 CCP). The Public Prosecutor at the Areios Paghos and the public prosecutors at the courts of appeal only have the power to mandate the public prosecutor at the court of first instance to prosecute a case.
Some basic provisions in the Constitution (Sects. 87-91) referring to matters of guarantees to judicial functionaries include the public prosecutors specifically. The organisation of the prosecution service is provided mainly in Sects. 24 and 25 and also, partly, in Sect. 19 of the present COA and in several provisions of the Code of Penal Procedure. These provisions regulate the competences and activities of the prosecution service and of individual public prosecutors in the various phases of the proceedings.
According to Sect. 88 of the Constitution, public prosecutors, as all judicial functionaries, are appointed by decree of the President of the Republic in accordance with the law, which sets out the qualifications required and the procedure to be applied in their selection. Presently, the judicial officials must have a law degree, and pass a competition by entrance examinations, after which those who succeed in them are required to attend a School of Judges first. Studies in the School of Judges have a postgraduate character and last 18 months, after which the public prosecutors can be appointed.
The following ranks of public prosecutors exist. There are:
a. assessors;
b. substitute public prosecutors at courts of first instance;
c. public prosecutors at courts of first instance;
d. substitute public prosecutors at courts of appeal;
e. public prosecutors at courts of appeal;
f. substitute public prosecutors at the Areios Paghos (Supreme Court); and
g. the public prosecutor at the Areios Paghos.
As special national public prosecutors may be considered the following:
a. in the four largest cities (Athens, Piraeus, Thessaloniki and Patras) a special public prosecutor at the courts of first instance is appointed to prosecute juveniles, that is to say youngsters between 8 and 18 years of age (Sect. 27 subs. 1 CCP);
b. military public prosecutors exercise the relevant duties before the military courts according to the Military Penal Code (Law 2287/1995) and, on a subsidiary basis, the CCP; and
c. finally, the prosecution of petty offences, like disturbing of the night peace (Sect. 417 CC) is conducted by police officers.
According to Sect. 25 subs. 4 COA, the highest authority in the prosecution service is the public prosecutor at the Areios Paghos. He has the task to supervise all public prosecutors and their clerks nation-wide (Sect. 19 subs. 1 (c) COA. He has the right to address orders, general instructions and recommendations relating to the exercise of their duties to all public prosecutors of the country. The public prosecutor at the Areios Paghos may give an order to a public prosecutor at a court of first instance to prosecute a certain case. Or, he could give an order to the public prosecutor at a Court of Appeal to lodge an appeal against a decision of that court to Areios Paghos for the cassation of that decision.
And generally, any superior public prosecutors have the right to address such orders to their subordinate prosecutors and to other functionaries and civil servants, (but of course not to judges). Therefore, the prosecution service is governed by two principles, which also govern the corresponding systems of most other continental European countries:
- the principle of indivisibility, which means that any procedural act of a public prosecutor is considered as an act of the prosecution service; and
- the principle of hierarchical subordination, which means, generally speaking, that public prosecutors are obliged to follow the instructions of their superiors. The subordination is stricter amongst members of the same public prosecutor office, e.g. the office belonging to a certain court of first instance or a Court of Appeal or Areios Paghos. Public prosecutors are obliged to follow the instructions their head of office. In the relations between the various public prosecutor offices, the heads or members of public prosecutor offices of inferior courts are obliged to follow instructions of their superior public prosecutor offices, and finally, of the public prosecutor at the Areios Paghos.
The subordination discussed here concerns the relations of public prosecutors within the prosecution service, and can be called internal subordination, as opposed to external subordination concerning the relations with the executive power and the Minister of Justice in particular.
The public prosecutor at the Areios Paghos supervises the implementation of a proper prosecution policy. The supervision takes usually the form of circular letters to all public prosecutors, including general regarding the exercise of their duties. For example, in circular letter no. 3/21.6.2001, the public prosecutor at the Areios Paghos gave instruction to the public prosecutor at the courts appeal how to apply the provision of Sect. 35 CCP, which gives them the competence to conduct a preliminary investigation on any crime committed in their district, provided it has not yet become the object of such an investigation by the public prosecutor at the court of first instance. After that investigation, the public prosecutor at the Court of Appeal may either file the case or instruct the public prosecutor at the court of first instance to prosecute. The circular letter referred to some details in the applying that provision.
Also, the public prosecutor at the Areios Paghos issues orders concerning individual cases.
The public prosecutor at the court of first instance is generally competent to receive all forms of information concerning criminal offences (Sect. 42 subs. 2 CCP). The Greek prosecution service is governed by the principle of mandatory prosecution (or the legality principle). Consequently, if a public prosecutor receives a denunciation by any citizen, or a report by a civil servant, or a complaint by the victim of a crime, he is obliged to prosecute the case, and to initiate criminal proceedings. If, however, the description of the criminal offence included in these documents is not based on law, or is obviously unfounded as to the substance, or is not susceptible to evaluation by a court, the public prosecutor files the document. He then submits a copy to the public prosecutor at the Court of Appeal reporting the reasons for the decision not to prosecute (Sect. 43 subs. 2 CCP).
In the case of a complaint of the victim, the public prosecutor serves a document to the victim, explaining the grounds for not prosecuting. The victim may appeal the decision of the public prosecutor of the court of first instance to the public prosecutor at the Court of Appeal (Sect. 47 subs. 1 CCP). In both cases mentioned above, the public prosecutor at the Court of Appeal may instruct the public prosecutor at the court of first instance to nonetheless prosecute the case.
In view of the above provisions, there is little room for priorities to be set and even more limited possibilities for waiver of prosecution of a crime when the information received fulfils the statutory requirements for prosecution.
The Code provides, however, some exceptions to mandatory prosecution. They provide for postponement or suspension of the prosecution in the following cases:
a. if the criminal offence is a misdemeanour, and the penalty and other legal consequences expected to be imposed will be trivial in comparison to a penalty which has been irrevocably imposed on the accused in the past for another crime and which penalty he is actually serving;
b. if the accused has already been indicted before the court for a more serious criminal offence (Sect. 44 CCP);
c. in cases of an extortion committed by the threat that an offence of the victim would be denounced or of a fraud, where if the victim would denounce, probably an offence of his relevant to the fraud would be revealed. In such cases the public prosecutor may, with the consent of the public prosecutor at the Court of Appeal, refrain from prosecuting the relevant offences of the victim, provided that in view of their seriousness compared to the seriousness of the extortion or the fraud, their prosecution is not necessary in order to protect the public interest (Sect. 45 CCP );
d. in case of a misdemeanour or a petty offence committed by a minor (8-18 years), the public prosecutor may refrain from prosecution, when, considering the circumstances under which the offence was committed and the personality of the young offender, he considers that the prosecution is not necessary in order to restrain him from committing further offences (Sect. 45a CCP);
e. in cases of political offences and of offences which may result in disturbing the international relations of the country, the Minister of Justice may, after receiving the conforming opinion of the whole Government, postpone the prosecution of a case, or suspend it, if it has been initiated (Sect. 30 subs. 2 CCP).
It is also provided that, in exceptional cases, the Minister of Justice may request the public prosecutor at the Areios Paghos to mandate that the investigation and the committal to trial of a certain case be given absolute priority (Sect. 30 subs. 3 CCP).
The public prosecutor at the Areios Paghos has the right to address orders, general instructions and recommendations to all public prosecutors of the country, relating to the exercise of their duties (Sect. 24 subs. 5 COA).
According to Sect. 25 subs. 1 COA the competences and duties of the prosecution service are:
a. conducting preliminary investigations (before prosecuting, in order to decide whether a denunciation has some substance);
b. prosecution of criminal offences;
c. direction of summary investigations;
d. supervision and control of police authorities with respect to prevention and prosecution of crime;
e. submission of proposals to judicial councils (indictment chambers) and courts;
f. lodging appeals;
g. enforcement of penal decisions and assistance in enforcement of enforceable documents;
h. supervision of establishments of detention; and
i. the control of various subordinate judicial officers such as police officers, public notaries etc.
The prosecution service has a monopoly in prosecution. Sects. 36 and 27 CCP provide that the public prosecutor prosecutes any offence in name of the State; if a complaint or a request of an authority is required for prosecution, the public prosecutor prosecutes after these conditions have been fulfilled. The possibility of private prosecution, which existed previously, was abolished in 1920 (by Law 2236/1920).
The reason for abolishing private prosecution was obviously the fact that criminal proceedings became overburdened with, often unfounded, private prosecutions. Therefore, it has been provided that any denunciation or complaint by a citizen has to be addressed to the public prosecutor at the Areios Paghos, who screens it. When it is based in law and not obviously unfounded as to the facts, prosecution will then be initiated by the public prosecutor.
The public prosecutor may refrain from prosecuting a case, if the information included in the documents addressed to him is lacking the minimum requirements for a successful prosecution. Also, after conducting a preliminary investigation or after evaluating an administrative enquiry, which has taken place, he may file the case and submit a copy to the public prosecutor at the Court of Appeal reporting the reasons for the decision not to prosecute the case (Sect. 43 subs. 2 CCP). Apart from these cases, criminal proceedings, initiated by the competent public prosecutor, cannot be terminated other than by a final decision of a court after a trial, or by an irrevocable decision of an indictment chamber after the pre-trial phase.
The dismissal of a case by the public prosecutor is considered, like the decisions of courts or indictment chambers, as an act of independent judicial power, for which no other authority is politically accountable. Exceptions are the acts of the Minister of Justice mandating the prosecution or the suspension of prosecution mentioned above under e (political offences and offences disturbing the international relation of Greece with other countries). Therefore, with the aforementioned exceptions, the Minister of Justice may not be questioned by Parliament, either on prosecution policy in general or on individual prosecution decisions.
The dependence on, and the subordination of the prosecution service to, the Minister of Justice (the so-called external subordination) has caused much discussion in the past. In Sect. 94 of the Organisation of the Courts Act of 1834 it was provided that at the top of the hierarchy of the prosecution service was the public prosecutor at the Areios Paghos, who received instructions from the Minister of Justice, gave instructions to public prosecutors at the Courts of Appeal and received reports from them. The public prosecutors at the courts of appeal gave instructions to public prosecutors at the courts of first instance and received reports from them. In this way the internal subordination system was connected to the external subordination. It should be noted, that the latter form of subordination rarely functioned in a manifest way, e.g. through written orders of the Minister to the public prosecutor at the Areios Paghos relating individual cases. Therefore, in spite of Sect. 94 of the previous COA, most public prosecutors, whenever participating informally in scientific meetings or discussions in the past, stressed that they did not feel in any way obliged to follow orders or instructions of Ministers.
So, it was only in line with this attitude, that in the present COA, the external subordination has been abolished.
Section 24 subs. 1 of the COA provides that the prosecution service is a judicial authority, independent both of the courts and of the executive power. Subs. 2 stresses the indivisibility principle and subs. 4 contains the principle of internal subordination, specifying the hierarchy within the organisation with the public prosecutor at the Areios Paghos at its head.
The competence of the Minister of Justice is described clearly in Sect. 19 COA which reads as follows: subs. 1 (a): ‘The Minister of Justice superintends the administration of Justice’. And subs. 2: ‘The superintendence consists of supervision and of issuing general instructions concerning the smooth running of the services of courts and public prosecutor offices’. Finally, in subs. 3 it is provided: ‘Any instruction, recommendation, or indication to a judicial official on a substantive or procedural matter of a concrete case, or of a category of cases, is forbidden and constitutes a disciplinary offence’.
These provisions are interpreted as entrusting the minister with the duty to supervise, to issue general instructions and to secure the material and technical infrastructure which are necessary for a good functioning of the courts and the prosecution service, but not to give any instructions, recommendations, or indications concerning any substantive or procedural matter with respect to an individual case, or even a category of cases. The supervision concerns merely the running of the prosecution service as a civil service, not the functioning of its members in their competence as public prosecutor.
Much discussion has been caused by Sect. 30 subs. 1 CCP, which provides that the Minister of Justice has the right to mandate the public prosecutor to conduct a preliminary investigation on any criminal offence. After the changes to the status of public prosecutors provided in the Constitution of 1975, and the provisions of the COA, the conformity of this provision with the Constitution and its validity after all these changes has been strongly disputed, especially by members of the prosecution service, but also by academics and other lawyers in various articles and presentations published in Law Reviews. It has been maintained with almost no opposition, that in view of the present guarantees to public prosecutors, it is unconstitutional to provide a member of the Executive with a right to give orders to a member of the judicial power. The fact that Sect. 30 CCP has not been formally abolished does not affect its unconstitutionality.
In view of the principle of (internal) subordination, and presently, according to the provisions in force of the COA, public prosecutors are required to follow instructions from their superiors, even in individual cases.
However, traditionally, hierarchical subordination was subject to two restrictions:
- the first is the principle of legality, which dictates that activities of members of the prosecution service should always be in conformity with the law. Therefore, an order of a superior public prosecutor to a subordinate prosecutor to proceed with an illegal act does not oblige him to comply with it;
- the second restriction is the freedom of opinion of the public prosecutor which is expressed by the traditional French adage: ‘La plume est serve mais la parole est libre’. The literal meaning of this principle is that, public prosecutors are obliged to comply with the order of a superior concerning a procedural act, e.g. to prosecute an offence or to lodge an appeal. However, when they take the floor at a public hearing or in a debate, probably even concerning the offence which they have prosecuted or the appeal which they have lodged due to the order of the superior, they are free to express their opinion and during the court session they may request that the accused be acquitted or that the appeal be rejected.
It should be noted, that the distinction between obligatory written acts and free oral opinion is not always correct. There are cases in which the opinion of the public prosecutor is submitted in writing, e.g. before the indictment chambers. In these cases the public prosecutor is free to express his opinion notwithstanding the written form. Consequently, the above principle should be rather expressed in the following way: the public prosecutor is bound to proceed with procedural acts; however, in expressing his opinion – orally or in writing – he is free.
General instructions of the public prosecutor at the Areios Paghos are issued from time to time. Special orders concerning individual cases are also issued.
Public prosecutors are obliged to motivate any decision not to prosecute. Section 139 CCP provides that – not only court decisions but also orders of public prosecutors have to be motivated. Special provisions on the decision not to prosecute have to be motivated.
Officially, a criminal case cannot be settled out of court; consequently, public prosecutors are not competent to conduct such kinds of settlements. However, public prosecutors have a duty to prevent crimes. Section 25 subs. 4 (a) COA provides that the public prosecutor at a court of first instance has the right to urge persons in dispute to abstain from committing criminal offences and to try to settle their differences peacefully. This peacekeeping activity is often applied in pre-delinquent situations in order to avoid criminal offences.
Another possible interference of the public prosecutor in order to avoid proceedings before a court is the following: If a minor has committed a criminal offence such as misdemeanour or petty offence, the public prosecutor may refrain from prosecuting, if he judges that criminal proceedings are not necessary in order to deter the minor from committing further criminal offences (Sect. 45a subs. 1 CCP). The public prosecutor may also impose reformatory measures and payment of an amount of up to 1,000 Euros to a non-profit or a common utility organisation on the minor. If the minor complies with these conditions, the public prosecutor files the case, if not, he will prosecute (Sect. 45a subs. 2 CPP).
The Relation between the Public Prosecutor and the Minister of Justice
The Greek prosecution service is organised hierarchically and nation-wide. There is a public prosecutor office at each of the three levels of the court system. There is a public prosecutor office at each court of first instance, a public prosecutor office at each Court of Appeal, and a public prosecutor office at the Areios Paghos (Supreme Court in civil and criminal matters). The only public prosecutor who has the duty to prosecute is the prosecutor at the court of first instance (Sect. 30 CCP). The Public Prosecutor at the Areios Paghos and the public prosecutors at the courts of appeal only have the power to mandate the public prosecutor at the court of first instance to prosecute a case.
Some basic provisions in the Constitution (Sects. 87-91) referring to matters of guarantees to judicial functionaries include the public prosecutors specifically. The organisation of the prosecution service is provided mainly in Sects. 24 and 25 and also, partly, in Sect. 19 of the present COA and in several provisions of the Code of Penal Procedure. These provisions regulate the competences and activities of the prosecution service and of individual public prosecutors in the various phases of the proceedings.
According to Sect. 88 of the Constitution, public prosecutors, as all judicial functionaries, are appointed by decree of the President of the Republic in accordance with the law, which sets out the qualifications required and the procedure to be applied in their selection. Presently, the judicial officials must have a law degree, and pass a competition by entrance examinations, after which those who succeed in them are required to attend a School of Judges first. Studies in the School of Judges have a postgraduate character and last 18 months, after which the public prosecutors can be appointed.
The following ranks of public prosecutors exist. There are:
a. assessors;
b. substitute public prosecutors at courts of first instance;
c. public prosecutors at courts of first instance;
d. substitute public prosecutors at courts of appeal;
e. public prosecutors at courts of appeal;
f. substitute public prosecutors at the Areios Paghos (Supreme Court); and
g. the public prosecutor at the Areios Paghos.
As special national public prosecutors may be considered the following:
a. in the four largest cities (Athens, Piraeus, Thessaloniki and Patras) a special public prosecutor at the courts of first instance is appointed to prosecute juveniles, that is to say youngsters between 8 and 18 years of age (Sect. 27 subs. 1 CCP);
b. military public prosecutors exercise the relevant duties before the military courts according to the Military Penal Code (Law 2287/1995) and, on a subsidiary basis, the CCP; and
c. finally, the prosecution of petty offences, like disturbing of the night peace (Sect. 417 CC) is conducted by police officers.
According to Sect. 25 subs. 4 COA, the highest authority in the prosecution service is the public prosecutor at the Areios Paghos. He has the task to supervise all public prosecutors and their clerks nation-wide (Sect. 19 subs. 1 (c) COA. He has the right to address orders, general instructions and recommendations relating to the exercise of their duties to all public prosecutors of the country. The public prosecutor at the Areios Paghos may give an order to a public prosecutor at a court of first instance to prosecute a certain case. Or, he could give an order to the public prosecutor at a Court of Appeal to lodge an appeal against a decision of that court to Areios Paghos for the cassation of that decision.
And generally, any superior public prosecutors have the right to address such orders to their subordinate prosecutors and to other functionaries and civil servants, (but of course not to judges). Therefore, the prosecution service is governed by two principles, which also govern the corresponding systems of most other continental European countries:
- the principle of indivisibility, which means that any procedural act of a public prosecutor is considered as an act of the prosecution service; and
- the principle of hierarchical subordination, which means, generally speaking, that public prosecutors are obliged to follow the instructions of their superiors. The subordination is stricter amongst members of the same public prosecutor office, e.g. the office belonging to a certain court of first instance or a Court of Appeal or Areios Paghos. Public prosecutors are obliged to follow the instructions their head of office. In the relations between the various public prosecutor offices, the heads or members of public prosecutor offices of inferior courts are obliged to follow instructions of their superior public prosecutor offices, and finally, of the public prosecutor at the Areios Paghos.
The subordination discussed here concerns the relations of public prosecutors within the prosecution service, and can be called internal subordination, as opposed to external subordination concerning the relations with the executive power and the Minister of Justice in particular.
The public prosecutor at the Areios Paghos supervises the implementation of a proper prosecution policy. The supervision takes usually the form of circular letters to all public prosecutors, including general regarding the exercise of their duties. For example, in circular letter no. 3/21.6.2001, the public prosecutor at the Areios Paghos gave instruction to the public prosecutor at the courts appeal how to apply the provision of Sect. 35 CCP, which gives them the competence to conduct a preliminary investigation on any crime committed in their district, provided it has not yet become the object of such an investigation by the public prosecutor at the court of first instance. After that investigation, the public prosecutor at the Court of Appeal may either file the case or instruct the public prosecutor at the court of first instance to prosecute. The circular letter referred to some details in the applying that provision.
Also, the public prosecutor at the Areios Paghos issues orders concerning individual cases.
The public prosecutor at the court of first instance is generally competent to receive all forms of information concerning criminal offences (Sect. 42 subs. 2 CCP). The Greek prosecution service is governed by the principle of mandatory prosecution (or the legality principle). Consequently, if a public prosecutor receives a denunciation by any citizen, or a report by a civil servant, or a complaint by the victim of a crime, he is obliged to prosecute the case, and to initiate criminal proceedings. If, however, the description of the criminal offence included in these documents is not based on law, or is obviously unfounded as to the substance, or is not susceptible to evaluation by a court, the public prosecutor files the document. He then submits a copy to the public prosecutor at the Court of Appeal reporting the reasons for the decision not to prosecute (Sect. 43 subs. 2 CCP).
In the case of a complaint of the victim, the public prosecutor serves a document to the victim, explaining the grounds for not prosecuting. The victim may appeal the decision of the public prosecutor of the court of first instance to the public prosecutor at the Court of Appeal (Sect. 47 subs. 1 CCP). In both cases mentioned above, the public prosecutor at the Court of Appeal may instruct the public prosecutor at the court of first instance to nonetheless prosecute the case.
In view of the above provisions, there is little room for priorities to be set and even more limited possibilities for waiver of prosecution of a crime when the information received fulfils the statutory requirements for prosecution.
The Code provides, however, some exceptions to mandatory prosecution. They provide for postponement or suspension of the prosecution in the following cases:
a. if the criminal offence is a misdemeanour, and the penalty and other legal consequences expected to be imposed will be trivial in comparison to a penalty which has been irrevocably imposed on the accused in the past for another crime and which penalty he is actually serving;
b. if the accused has already been indicted before the court for a more serious criminal offence (Sect. 44 CCP);
c. in cases of an extortion committed by the threat that an offence of the victim would be denounced or of a fraud, where if the victim would denounce, probably an offence of his relevant to the fraud would be revealed. In such cases the public prosecutor may, with the consent of the public prosecutor at the Court of Appeal, refrain from prosecuting the relevant offences of the victim, provided that in view of their seriousness compared to the seriousness of the extortion or the fraud, their prosecution is not necessary in order to protect the public interest (Sect. 45 CCP );
d. in case of a misdemeanour or a petty offence committed by a minor (8-18 years), the public prosecutor may refrain from prosecution, when, considering the circumstances under which the offence was committed and the personality of the young offender, he considers that the prosecution is not necessary in order to restrain him from committing further offences (Sect. 45a CCP);
e. in cases of political offences and of offences which may result in disturbing the international relations of the country, the Minister of Justice may, after receiving the conforming opinion of the whole Government, postpone the prosecution of a case, or suspend it, if it has been initiated (Sect. 30 subs. 2 CCP).
It is also provided that, in exceptional cases, the Minister of Justice may request the public prosecutor at the Areios Paghos to mandate that the investigation and the committal to trial of a certain case be given absolute priority (Sect. 30 subs. 3 CCP).
The public prosecutor at the Areios Paghos has the right to address orders, general instructions and recommendations to all public prosecutors of the country, relating to the exercise of their duties (Sect. 24 subs. 5 COA).
According to Sect. 25 subs. 1 COA the competences and duties of the prosecution service are:
a. conducting preliminary investigations (before prosecuting, in order to decide whether a denunciation has some substance);
b. prosecution of criminal offences;
c. direction of summary investigations;
d. supervision and control of police authorities with respect to prevention and prosecution of crime;
e. submission of proposals to judicial councils (indictment chambers) and courts;
f. lodging appeals;
g. enforcement of penal decisions and assistance in enforcement of enforceable documents;
h. supervision of establishments of detention; and
i. the control of various subordinate judicial officers such as police officers, public notaries etc.
The prosecution service has a monopoly in prosecution. Sects. 36 and 27 CCP provide that the public prosecutor prosecutes any offence in name of the State; if a complaint or a request of an authority is required for prosecution, the public prosecutor prosecutes after these conditions have been fulfilled. The possibility of private prosecution, which existed previously, was abolished in 1920 (by Law 2236/1920).
The reason for abolishing private prosecution was obviously the fact that criminal proceedings became overburdened with, often unfounded, private prosecutions. Therefore, it has been provided that any denunciation or complaint by a citizen has to be addressed to the public prosecutor at the Areios Paghos, who screens it. When it is based in law and not obviously unfounded as to the facts, prosecution will then be initiated by the public prosecutor.
The public prosecutor may refrain from prosecuting a case, if the information included in the documents addressed to him is lacking the minimum requirements for a successful prosecution. Also, after conducting a preliminary investigation or after evaluating an administrative enquiry, which has taken place, he may file the case and submit a copy to the public prosecutor at the Court of Appeal reporting the reasons for the decision not to prosecute the case (Sect. 43 subs. 2 CCP). Apart from these cases, criminal proceedings, initiated by the competent public prosecutor, cannot be terminated other than by a final decision of a court after a trial, or by an irrevocable decision of an indictment chamber after the pre-trial phase.
The dismissal of a case by the public prosecutor is considered, like the decisions of courts or indictment chambers, as an act of independent judicial power, for which no other authority is politically accountable. Exceptions are the acts of the Minister of Justice mandating the prosecution or the suspension of prosecution mentioned above under e (political offences and offences disturbing the international relation of Greece with other countries). Therefore, with the aforementioned exceptions, the Minister of Justice may not be questioned by Parliament, either on prosecution policy in general or on individual prosecution decisions.
The dependence on, and the subordination of the prosecution service to, the Minister of Justice (the so-called external subordination) has caused much discussion in the past. In Sect. 94 of the Organisation of the Courts Act of 1834 it was provided that at the top of the hierarchy of the prosecution service was the public prosecutor at the Areios Paghos, who received instructions from the Minister of Justice, gave instructions to public prosecutors at the Courts of Appeal and received reports from them. The public prosecutors at the courts of appeal gave instructions to public prosecutors at the courts of first instance and received reports from them. In this way the internal subordination system was connected to the external subordination. It should be noted, that the latter form of subordination rarely functioned in a manifest way, e.g. through written orders of the Minister to the public prosecutor at the Areios Paghos relating individual cases. Therefore, in spite of Sect. 94 of the previous COA, most public prosecutors, whenever participating informally in scientific meetings or discussions in the past, stressed that they did not feel in any way obliged to follow orders or instructions of Ministers.
So, it was only in line with this attitude, that in the present COA, the external subordination has been abolished.
Section 24 subs. 1 of the COA provides that the prosecution service is a judicial authority, independent both of the courts and of the executive power. Subs. 2 stresses the indivisibility principle and subs. 4 contains the principle of internal subordination, specifying the hierarchy within the organisation with the public prosecutor at the Areios Paghos at its head.
The competence of the Minister of Justice is described clearly in Sect. 19 COA which reads as follows: subs. 1 (a): ‘The Minister of Justice superintends the administration of Justice’. And subs. 2: ‘The superintendence consists of supervision and of issuing general instructions concerning the smooth running of the services of courts and public prosecutor offices’. Finally, in subs. 3 it is provided: ‘Any instruction, recommendation, or indication to a judicial official on a substantive or procedural matter of a concrete case, or of a category of cases, is forbidden and constitutes a disciplinary offence’.
These provisions are interpreted as entrusting the minister with the duty to supervise, to issue general instructions and to secure the material and technical infrastructure which are necessary for a good functioning of the courts and the prosecution service, but not to give any instructions, recommendations, or indications concerning any substantive or procedural matter with respect to an individual case, or even a category of cases. The supervision concerns merely the running of the prosecution service as a civil service, not the functioning of its members in their competence as public prosecutor.
Much discussion has been caused by Sect. 30 subs. 1 CCP, which provides that the Minister of Justice has the right to mandate the public prosecutor to conduct a preliminary investigation on any criminal offence. After the changes to the status of public prosecutors provided in the Constitution of 1975, and the provisions of the COA, the conformity of this provision with the Constitution and its validity after all these changes has been strongly disputed, especially by members of the prosecution service, but also by academics and other lawyers in various articles and presentations published in Law Reviews. It has been maintained with almost no opposition, that in view of the present guarantees to public prosecutors, it is unconstitutional to provide a member of the Executive with a right to give orders to a member of the judicial power. The fact that Sect. 30 CCP has not been formally abolished does not affect its unconstitutionality.
In view of the principle of (internal) subordination, and presently, according to the provisions in force of the COA, public prosecutors are required to follow instructions from their superiors, even in individual cases.
However, traditionally, hierarchical subordination was subject to two restrictions:
- the first is the principle of legality, which dictates that activities of members of the prosecution service should always be in conformity with the law. Therefore, an order of a superior public prosecutor to a subordinate prosecutor to proceed with an illegal act does not oblige him to comply with it;
- the second restriction is the freedom of opinion of the public prosecutor which is expressed by the traditional French adage: ‘La plume est serve mais la parole est libre’. The literal meaning of this principle is that, public prosecutors are obliged to comply with the order of a superior concerning a procedural act, e.g. to prosecute an offence or to lodge an appeal. However, when they take the floor at a public hearing or in a debate, probably even concerning the offence which they have prosecuted or the appeal which they have lodged due to the order of the superior, they are free to express their opinion and during the court session they may request that the accused be acquitted or that the appeal be rejected.
It should be noted, that the distinction between obligatory written acts and free oral opinion is not always correct. There are cases in which the opinion of the public prosecutor is submitted in writing, e.g. before the indictment chambers. In these cases the public prosecutor is free to express his opinion notwithstanding the written form. Consequently, the above principle should be rather expressed in the following way: the public prosecutor is bound to proceed with procedural acts; however, in expressing his opinion – orally or in writing – he is free.
General instructions of the public prosecutor at the Areios Paghos are issued from time to time. Special orders concerning individual cases are also issued.
Public prosecutors are obliged to motivate any decision not to prosecute. Section 139 CCP provides that – not only court decisions but also orders of public prosecutors have to be motivated. Special provisions on the decision not to prosecute have to be motivated.
Officially, a criminal case cannot be settled out of court; consequently, public prosecutors are not competent to conduct such kinds of settlements. However, public prosecutors have a duty to prevent crimes. Section 25 subs. 4 (a) COA provides that the public prosecutor at a court of first instance has the right to urge persons in dispute to abstain from committing criminal offences and to try to settle their differences peacefully. This peacekeeping activity is often applied in pre-delinquent situations in order to avoid criminal offences.
Another possible interference of the public prosecutor in order to avoid proceedings before a court is the following: If a minor has committed a criminal offence such as misdemeanour or petty offence, the public prosecutor may refrain from prosecuting, if he judges that criminal proceedings are not necessary in order to deter the minor from committing further criminal offences (Sect. 45a subs. 1 CCP). The public prosecutor may also impose reformatory measures and payment of an amount of up to 1,000 Euros to a non-profit or a common utility organisation on the minor. If the minor complies with these conditions, the public prosecutor files the case, if not, he will prosecute (Sect. 45a subs. 2 CPP).
