White collar crimes & detention

του Θεόδωρου Π. Μαντά*

Economic crime is a new form of crime, which is part of the broader category of crimes against property of the Criminal Code and is usually determined by the object of the crime as “the pursuit and achievement of large, unbounded economic benefit with correspondingly large damage to many people”.

These crimes are usually mentioned as “white collar” crimes, which identifies the subject of the crime as an individual that is a member of an upper socioeconomic class, committing illegal acts in the context of their professional activities.

Illustrative offenses that may be included in the concept of economic crimes are customs offenses, money laundering, illegal receipt of grants and subsidies from EU funds (fraud against the EU), fraud, brokerage offenses, bribery (passive and active), the actions of unfair competition, cyber crime and internet crime.

Most of the economic crimes are felonies because the law threatens them with a penalty of five to ten years and therefore the accused is led to an interrogator judge, who decides, with the consent of the prosecutor, after the accused apology, if he will be set in provisional detention or he will have restrictive conditions.

Indeed, the most severe interrogation act following the apology of the accused before the judge -interrogator, is arguably the custody thereof, that the deprivation of personal liberty for some time before the hearing of the charge against him.

The ability to receive such an onerous procedural coercion is based on Article 6 of the Constitution and Article 5 paragraph 3 case c the European Convention on Human Rights (ECHR).

Today, with the modification that has occurred in the provision of paragraph 3 of Article 282 of Civil Code with Article 24 of Law 3811/2009 and now with Article 31 of Law 4055/2012, the criteria and conditions for enforcing or maintaining custody have been restated.

Specifically, with regard to the risk of flight, the affirmation of existence must be linked to clear criteria, by the accused not having known residence in the country, preparations that have been made in order for him to flee, actions that he has done in the past, that he was once a fugitive and that he has been convicted of escaping a prison or of violating restrictive conditions.

As for the risk of committing further offenses, formerly associated with the evaluative and vague term of “particularly dangerous offender”, we now have the formulation of the criteria of “specifically indicated facts of past life” of the offender, this criteria has to be connected with the existence of previous convictions of the accused for felonies or with criminal acts that are punished by life imprisonment or temporary imprisonment to a maximum of twenty years or after the application of Law 4055/2012, when the crime has been committed repeatedly or by a criminal or terrorist organization, or when a large number of casualties have been caused due to the act, based on the specific characteristics of the act.

Further, paragraph 3 of Article 24 of Law 3811/2009 has been replaced by Article 296 Code of Criminal Procedure, which specifies again that in order to impose restrictive conditions, which now is to ‘prevent the risk of committing new crimes and ensure that the person/accused will be present if required during the investigation or the court and present in order to comply with the judgment. “

It should be noted that in order to impose a provisional arrest the judge should expressly, specifically and thoroughly justify why in this case the imposition of restrictive conditions were not conducive to achieving the objectives of Article 296 CCP and then justify if the conditions of detention are fulfilled.

Detention in financial crimes differs in nothing from custody for an offense under ordinary criminal law and must be exceptionally ordered, as the last procedural measure (ultimum refugium), after having exhausted the possible enforcement of all of the constraints provided.

In many of these crimes that the sentence is up to ten years, detention should be imposed only in cases where the accused had been convicted for other felonies, while in the case of economic crimes that are punished by life imprisonment, such as those related to misappropriation of public funds (Law 1608-1650) or crimes that have imprisonment to a maximum of twenty years, and only if the restrictions are not enough, based always on the specific characteristics of the act.

Of course, with the change made by the law 4055/12, new objective criteria (large number of casualties, repeated crime) associated with the risk of committing new crimes, which could be applied especially in financial crimes, is vague and indefinite, and would risk being applied excessively as efficient, and not as intended by the legislature as merely necessary conditions that base grounds for probability in committing new crimes.

* To παρόν κείμενο είναι μέρος της ομιλίας του κ. Θεόδωρου Π. Μαντά στην 1η συνάντηση της Fair Trials International στην Αθήνα, στις 27 Απριλίου 2013.

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