1. Pre-trial detention in Greece
Dr. Maria Mousmouti, Lecturer, IALS, Executive Director, CECL

2. Purpose and method of the research
The starting point: limited research into the practice of pre-trial detention decision-making
Objective: a unique evidence base regarding what is causing the use of pre-trial detention – understand in depth decision making procedures of decision-making & motivations and incentives of stakeholders (defense practitioners, judges, prosecutors) & findings were disseminated among policy-makers, judges, prosecutors and defense lawyers
5 research stages:
Desk-based research - national law, practical procedures & data
Defense practitioner survey - asked lawyers for their experiences
Monitoring pre-trial detention hearings
Case file reviews – understand the full life of a pre-trial detention case
Structured interviews with judges and prosecutors - intentions and motivation

3. What we did in Greece
a) desk research on legislation, academic literature and case law
b) survey for defence practitioners respondents
c) review of 44 case files accessed through the archive of 3 attorneys (files are not public) – reviewed for the purposes of the project
d) interviews with 5 investigating judges from the Court of First Instance of Athens and
e) interviews with 4 prosecutors from the Court of Athens who deal with PTD cases.
Trial monitoring was not possible - proceedings are not public - access was not granted
Although the scope of the research and the data collected is limited it highlights some important issues relating to the use of PTD in Greece

4. Contextual information
Legal system: Civil law tradition - Penal Code, Code of Criminal Procedure, special penal laws
Criminal justice system: based on Continental tradition - criminal procedure follows a «mixed» model of inquisitorial and accusatorial system
Pre-trial procedures: written, non-public, non-adversarial (art. 33, 34, 241 CCP) with some accusatorial features - parties can submit applications, bring in evidence etc
Actors: Investigating judge orders PTD with consent of prosecutor (art. 246 CCP) – overall agreement between them – judicial council decides in case of disagreement
Data:
Big increase of foreign prisoners: 90s - less than 3%, 00s 40%, ,20%, ,4%
Pre-trial detainees 1/3 of prison population ( %, %, %)
‘Chronic overcrowding’ of prisons – prison occupancy 128,3% (2014)

5. The legislative framework
Article 6 par. 1 of the Constitution:
no person arrested or imprisoned without a reasoned judicial warrant served (upon the arrested person) at the moment of arrest or detention pending trial, except when caught while committing a criminal act - a person arrested must be brought before the examining magistrate within 24 hours or within the shortest time required (art. 6 par. 2).
The examining magistrate must decide on release of the detainee or issue a warrant of imprisonment at the latest within three days from the day the person was brought before him/her (art. 6 par.2) - this time limit can be extended by two days upon application of the detainee or in case of force majeure - If these time-limits elapse without action, the arrested person must be released (art. 6. Par. 3 Constitution), subject to punishment for illegal detention and liable to restoration of damages (art. 6. Par. 3 Constitution).
Maximum duration of PTD (art. 6 par. 4 of the Greek Constitution): cannot exceed 1 year for felonies or 6 months for misdemeanors. In exceptional cases, these maximum limits can be extended by six or three months respectively (decision of judicial council required Art 287 CCP).

6. Grounds for PTD
Measure of last resort - applied only if restrictive conditions do not suffice (Art. 282 par. 3 CCP)
Purpose: to prevent the risk of new crimes + ensure presence at the investigation or trial (art CPC)
Subject to double reasoning: a) inadequacy of restrictive conditions and b) how legal prerequisites apply
Requirements: Accusation of a felony or misdemeanour punished with imprisonment of at least 3 months, serious indications of guilt, no known residence, preparations to flee, has been a fugitive or has violated restrictions in the past or might commit other crimes (art. 282 CCP)
Maximum duration: 1 year for felonies, 6 months for misdemeanours, in exceptional cases possibility to extend by 6 or 3 months - decision of judicial council

7. The practice
In 66% of cases reviewed PTD was ordered - 18% released with restrictive conditions - 14% released unconditionally (in the remaining 2% none of the above applied)
When PTD was ordered - most common ground
risk of reoffending (46%),
risk of fleeing (30%),
risk of hindering the investigation (15%),
being a danger to the public (7%)
previous attempts to flee (2%).
Greek legislation links restrictive measures and PTD to ‘serious’ crime ie felonies or misdemeanors punishable with at least 3 months imprisonment – violent, dangerous or anti-social crimes are closely ‘linked’ to PTD – also crimes caught in the act
Critical features included the existence of permanent or known residence and the possibility to flee

8. Major findings: procedure
Duration: maximum limits not violated - average duration long (exceeds six months) - average duration 6-12 months (ECBA 2009)
organisational and bureaucratic issues (workload, lack of support staff, small number of judges, delays in investigation, ineffective operation of the justice system)
Statutory limit in duration of PTD: positive impact on the speed of the trial
Presence of the suspect in hearings: ensured - challenges in remote participation
Interpretation: available but quality not monitored & documents not translated - effective participation for foreign individuals? – respect of standards of EU Directives?
Presence of defence lawyers + access to case file: ensured - challenges: limited time and information (crimes caught in the act) especially for foreigners - effective defence?
Access to lawyer, understanding of proceedings, access to case file: guaranteed- challenges - representation of foreign nationals, interpretation, translation and information?
Role of parties: possibility to contribute with evidence - but PTD orders rarely have detailed and specific reasoning making reference to specific evidence and arguments

9. Major findings: substance
No in depth research on judicial decision making – the findings suggest that:
the type & nature of offence, the personality of the accused, the risk of reoffending weigh in the mind of judges and prosecutors - deviation from ECtHR standards (risk of reoffending and severity of the crime are insufficient grounds)?
Aim of PTD to ensure presence in trial - negative impact on people without permanent residence - deviation from ECtHR standards (lack of fixed residence is not sufficient ground?)
Reasoning: viewed critically by practitioners. Overall, decisions are considered justified but brief and general, repeat provisions, do not link requirements to facts and evidence – deviation from ECtHR standards on convincing and specific justification?
No specific training for investigating judges – limited familiarity with ECHR standards – limited access to case law - decision making is hindered by bureaucracy, organisational shortcomings, backlog and lack of human resources and infrastructure.

10. Major findings: alternatives to detention
PTD ordered only when less strict measures are not sufficient
Discretion in choice: freedom to adapt or combine to respond to specificities of each case
Lack of trust in restrictive measures – deviation from ECtHR standards on the presumption in favour of release?
Examination of alternatives: limited faith in their effectiveness, especially when no permanent residence exists, violent crimes and high risk of reoffending
Example: electronic surveillance – gaps in implementation - high cost – burden on the accused (to request & pay) – critical stance from judges
Judges share a strong feeling of duty to protect the public and satisfy a common sentiment of justice - important in decision making + lack of faith + challenges – is PTD a one way solution?
No data on the effectiveness of alternatives - alternatives do not appear to impact the length of proceedings

11. Major findings: review of pre-trial detention orders
Essential for lawfulness of prolonged detention – can take place a) automatically after 6 months; b) upon request of the accused at any time c) with a reasoned order of the investigating judge to replace or change PTD or other measures - possibility to all parties to review PTD
Review hearings are not public - parties can attend only upon invitation from the judicial council
Major challenge: specific reasoning for continuing detention - presumption in favour of continuation of detention? reproduction of reasoning of previous orders, no specific reasons to prove the need for continued detention
Reasoning of review decisions - formalistic and repetitive – insufficient focus on specific circumstances
Barriers reported: reasoning, automatisms in judicial practice and reluctance from the part of judges and prosecutors to reverse or question decisions made by their colleagues

12. Major findings: outcomes
The case-file analysis examined the final outcome of the case and the type of sentence ordered – important connection
Number and proportion of acquitted pre-trial detainees: no official data – microdata (2007) from Korydallos prison - 1,54% of PTDs were found innocent or prosecution was paused
No definite conclusions – small sample – interesting directions:
In 44 cases, where 66% of the accused were detained pre-trial, 55% of them were convicted (24 cases), 11% were acquitted (5 cases) while in 2% charges were withdrawn (1 case) (14 cases, trial is still pending).
Connection between PTD and sentencing - the duration of PTD is reduced from the sentence.

13. Conclusions & recommendations
Challenges exist mainly in the application of legislative standards - change required at multiple levels: legislative, institutional, organisational & mentality
Improved application through unified standards + consistent monitoring of PTD and alternative measures
Robust statistical data & further research especially on restrictive measures
Simplification of procedures to address bureaucratic and organisational barriers
Introduce time limits for alternative measures and the completion of the investigation process?
Use of technology to facilitate effective participation?
Close monitoring of interpretation and translation - mechanisms to ensure quality
Simplification of procedure for appointing attorneys – sufficient time to prepare
Training to investigating judges on ECHR standards – tools to assist their application + professional services for risk assessment and supporting resources (online information etc)
Solutions to enhance effectiveness of restrictive measures - credible alternatives for groups vulnerable to detention due to the lack of permanent residence