by Dennis Chionis
PhD Candidate, Lawyer – Criminologist,
Center for Penal and Criminological Research
Have you ever considered what it would be like to be wrongly arrested by the authorities, detained on remand, and after a few months it was proved that you had wrongly accused of and you had nothing to do with the case? It sounds like an extreme scenario, but who said extreme scenarios don’t occur on a daily basis?
The issue of wrongful prisoners on remand came to light again in Greece with the case of a young man from Agiasos on the greek island of Mytilene. Mr. H.A. was arrested on the island of Mytilene and prosecuted for rape and attempted serial rape of 5 women. Some of the victims identified him, although he has the slightest similarity to the suspect’s description. According to his testimony this happened because of the fact that he had been led to the police station directly from the building-site where he worked without changing his clothes, whilst the rest of the suspects were better dressed. The (dubious) identification of the suspect was followed by prosecution and prison on remand, with the full consent of the investigator and prosecutor.
The mother of the detained says: "punishing somebody who is innocent is a crime"
Local newspapers were quickly condemned and stigmatized the accused, with headlines such as " O Drakos (=The Dragon, Villain)” of Agiasos in the hands of the police”, “The Rapist of Agiasos Arrested”. Following the remand of the 20 year-old in Mytilene there were five more attacks on women and eventually an army sergeant on a 5-year term duty was arrested as suspect and alleged perpetrator. The recently reviled "O Drakos (=The Dragon, Villain)”, H. A., was released, and the police superintendent of Mytilene acknowledged the mistake made by the authorities. By the year 2006, the young man is serving his duty in the armed forces.
The most important axiom in greek legal culture, "better one guilty culprit free rather than an innocent imprisoned”, had been violated. The poor criminal investigation by the police was followed by the poor assessment of the evidence collected by the prosecutor and the poor investigation carried out by the regular investigator (magistrate) led to the wrongful accuse of an innocent man.
Even though the recent case, which came to light in the media, caused a great surprise, it should be noted that this case is neither the first nor, unfortunately, may it reasonably be assumed the last. Several similar cases came to light in recent years in Greek judicial chronicles:
• S. K. was acquitted by the Three-Member Court of Appeal in Thessaloniki[ after 14 months of detention on charges of drug trafficking, imposed without even the a plea being lodged, since the calls to plea had been posted to the wrong address. His crime was to be caught smoking a cigarette laced with hashish ("Kathimerini" greek newspaper, 17/1/01)
• Commodore P.T. was acquitted amidst, but prior to this had been temporarily detained in Korydallos Prison Complex in Athens of Greece for a period of 17.5 months, as co-accused along with ship-owners, businessmen and freight agents, of transporting 3,800 kilograms of drugs on the ship "Cannes". In this case it is worth noting firstly that P.T. was the only one eventually acquitted, while the others received life sentences and secondly, that he had already been interrogated for the same case in the U.S. where they were first arrested, and nothing was brought against him ("TA NEA" greek newspaper, 4-5/1/03).
• Two shepherds (V.P., and K.K.), were detained for 2.5 years on allegations of murdering with intent two Albanians. They were sentenced to life imprisonment by the First Degree Criminal Court, and unanimously acquitted in the Appeals court. The evidence of guilt against them was a shotgun shell found near the hut, which fit according to the Press, but did not actually match with the shells of the weapon used in the double homicide ("TA NEA" greek newspaper, 10/12 / 02).
• B.K., after 16 months in custody, was acquitted by the First Degree Criminal Court (before a jury) of Katerini of participation in a fatal bank robbery that cost the life in a 20 year-old female student, whilst three others were sentenced. B.K. had had differences with the perpetrators over past drug transactions, and so when arrested, they identified him as the perpetrator of the student’s murder, resulting in his arrest and temporary detention ("TA NEA" greek newspaper, 5/6/02).
• 25 year-old H. M. was attending his cousin’s party in Anavyssos, and in the spirit of the moment ascended onto the terrace with his friend N.G., a policeman, and two others, to shoot into the air, which he did. The policeman asked for the rifle in order to fire as well. In his inebriated state, H.M. lost his grip of the weapon, which fell to the floor and discharged, killing N.G. instantly. A series of failings by doctors, nurses, police and the magistrates resulted in H.M. being accused of murder with intent of his friend. He was charged, and remanded in detention. He remained in prison for 6 months, and was acquitted in court unanimously, after a detailed presentation of the compounded failures that had made him a suspect and accused, in a hearing that lasted all of 20 minutes! That was all it took to prove the lack of a case against him ("TA NEA" greek newspaper, 1/12/93).
• N. I. was sentenced to four years imprisonment for livestock theft by the First Degree Criminal Court (before a jury) of Chania. He appealed, but by the time the appeal came to court, he had already served the sentence and sat in the dock as a free man. And…. he was acquitted!!!! (no comments) ("EXOUSIA" greek newspaper, 1/4/97)
• S. K. was sentenced twice to life for the murder of her parents (!). She was detained for 4.5 years in prison and was finally acquitted by the Appeals Court after an appeal brought by the Prosecutor of the Supreme Court against the acquittal was dismissed by the national Supreme Court. In 1991 she was sentenced by the First Degree Court and in 1997 her innocence was confirmed by an irreversible judicial decision. In January 2005 a discussion took place before the Council of State about a compensation claim she had lodged against the Greek government, and the rapporteur, despite requesting the act be rejected as inadmissible based on lack of administrative jurisdiction, entered into the minutes that the compensation request was granted, and authorized the payment. The court decision is still pending ("Eleftherotipia" greek newspaper, 8/12/96).
The usual interpretation of such phenomena is made through appealing to concepts such as judicial error. According to the president of the Union of Greek Criminal Lawyers, there are two types of error: "Arising from lack of evidence, that restricts the subject of the judicial process, but there we understand the difficulty. The court must exhaust all possibilities for clarification; however, sometimes evidence remains unknown. There are too of course, cases where error could be avoided if the judicial process had exhausted its legal duty to fully clarify the case. Sometimes however, the sheer volume of cases does not permit exhaustive investigation. When we say errors, we mean that there was an incorrect assessment of the evidence and this occurs to a very large degree. Whatever the reason for this, it is a deep blow to the credibility of justice and sense of security that we should all have, because that is what keeps us free. The human side, for that matter, is not restored.”
Exhaustive investigation of a case certainly does not occur in all instances of temporary custody, an institution which "bears a singular punitive shade” (Androulakis, 1972). and has been criticized by theory mainly for the way in which it is applied in practice. Although the law (282 paragraph 3 Greek Code of Criminal Procedure) sets strict conditions for the provisional detention of the accused who, let us not forget, is protected by the presumption of innocence, with super-legislative, force (Article 6 paragraph 2 of the European Convention of Human Rights), in judicial practice there is often preference of provisional detention over other restrictive conditions. This is a violation, without reflection, of the principle of subsidiarity of provisional detention versus restrictive conditions. More specifically, the law calls for provisional detention, criminal action for grave crimes that are penalized with incarceration (from 5 years to 20 years) an exception was made by Law 3346/05 regarding the offense of serial manslaughter after a fatal school bus incident in Tempe) and in cases of unknown residence, flight risk, a history of past absconding or escape, violation of restrictions by the accused, reasoned discretion based on particularities of the crime, or indications in the accused previous life pointing to a significant likelihood to commit new crimes. Finally, the law states unequivocally that the gravity of the offence dose not suffice to impose temporary detention on a citizen.
Despite these clear and strict limits of the law, there are many instances where provisional detention is imposed unjustly and several examples where media exposure of a crime is sufficient to impose the partial- sentencing of provisional detention, as a means to abate the media frenzy and satisfy the popular sentiment for swift justice.
And when, after a court battle involving someone with no connection whatsoever to the crime, save a vague resemblance to the perpetrator, possibly even a series of Lombrosian physical features, often evaluated informally by the authorities even today, the state concedes the error and returns his/her freedom. Then what? The forensic theory of symbolic interaction, the familiar theory of ‘labelling’, finds fertile soil, long cultivated by the official authorities and the press, from which the "resin" is hard to remove.
The States answer to the question of restoring the standing of someone wrongly detained or convicted is the right to request compensation. After the important decision of the European Court of Human Rights΄ Karakasis vs. Greece "(17-10-200), the Greek state has complied with the requirements of the European Convention of Human Rights, and Article 26 of Law 2915/2001 has replaced Articles 533 to 545 of Greek Code of Criminal Procedure. Nowadays, the third chapter of Greek Code of Criminal Procedure refers to compensation for those temporarily detained and later acquitted irrevocably by a ruling or court decision, those detained on conviction, that later disappeared irrevocably as a result of an appeal or retrial. The relevant body for ruling of compensation is the court that issued the decision on the case, along with a particular and simultaneous decision made following an application by acquitted. The amount of compensation awarded for each day of detention of an innocent citizen ranges from 8.80 to 29 euros. Hence there is even a (preliminary) price assigned to the presumption of innocence! In cases that the claimant believes the compensation awarded by the criminal courts is insufficient (and how may 29 euros compensation for each "lost" day be considered sufficient?), he/she may appeal to the civil courts and seek to restore any financial losses suffered during the execution of the sentence or detention, as well as moral damages. The civil courts are bound by the content of the criminal court and do not re-examine the existence of the dispute.
As can be seen from the above examples, eventually is too easy for someone to be wrongly accused and to find himself trapped in the criminal justice system. The accused must strive to prove his/her innocence (which according to the highest legal office is not established, but taken for granted), and will find it even more difficult to restore any damages resulting from the case. The only way to avoid the repetition of this phenomenon seems to be the general awakening of all those involved in the criminal justice system and compliance ‘to the letter’ with the strict conditions imposed by law, whenever questions of provisional detention, and more still, conviction, should arise.
Let us not reach the point of having to declare "freedom needs virtue and courage"...
N. Courakis; "Temporary detention: the failures of an institution”; Greek Journal of Poinika Chronica (“Penal Chronicles”); 36 /625 – in Greek
T. Mantas, "Abuses and Overruns in the Implementation of the Institution of Temporary Detention”, Greek Journal of Dikaiorama; April-July 2006 – in Greek
N. Androulakis, "Basic Concepts of Criminal Proceedings”; Vol.1, 1972 – in Greek
 Thessaloniki, Thessalonica, or Salonica is the second-largest city in Greece and the capital of the Macedonia region. It is a major economic, industrial, commercial and political centre, and a major transportation hub for the rest of southeastern Europe; its commercial port is also of great importance for Greece and its southeast European hinterland.
 Katerini is a town in Central Macedonia, Greece and the capital of Pieria prefecture. The town is one of the newest in Greece and is near the city of Thessaloniki which has contributed to Katerini΄s development over recent years.
 Anavyssos is a coastal Athenian suburb near Cape Sounion.
 Chaniá is the second largest city of the island of Crete, situated on the northern coast.
 The reference is to a fatal road traffic accident that occurred in Greece in the area of Tempe in April 2003, which claimed the lives of 21 students.