Article by Elli Ampatzi, Attorney & Elena Pouli, Attorney at Law at Greek Law Digest
Civil Courts
What constitutes evidence in civil proceedings?
Only actual facts that have significant influence on the outcome of the proceedings may be object of evidence. Conclusions deriving from common experience and well-known facts are examined ex officio and without proof. The same applies to the law applicable to a foreign state, customs and fair commercial practices.
Who bears the burden of proof in civil proceedings?
Each of the parties must prove the alleged actual facts to support their application. In the event that a presumption of fact is provided by law, proof to the contrary is permitted, unless otherwise specified. The evidence submitted by a party is taken into account by the Court in order to prove the allegations made by another party as well.
What means of evidence can be used?
The following means of evidence can be used: confession, autopsy, expert opinion, documents, witnesses’ examination, parties’ examination, judicial presumption and affidavits.
What constitutes a confession and how is it assessed?
Confession may be judicial or extra-judicial. It is at the Court’s discretion to assess extrajudicial confessions. The party’s confession, oral or in writing, before the Court constitutes a complete proof against the confessor.
In which cases is an autopsy ordered?
The Court orders an autopsy if it deems necessary to examine the subject of proof with its own means.
In which cases are expert opinions ordered?
The Court may appoint experts when it considers that issues requiring knowledge of science or art have arisen. The Court must appoint experts when a party requests so, and when it considers that such knowledge is needed. The assessment of the experts’ opinions is at the discretion of the Court. In case the Court appoints the experts, each party may appoint a technical adviser as well, at its own expense.
How is testimonial evidence being carried out?
Proof of contracts or collective acts, the value of which exceeds € 30,000.00 by witnesses is forbidden. Testimonial evidence against a document’s content is not allowed. Exceptionally, testimonial evidence is permitted if: (i) an existing document states facts which, although are not proven, seem probable; (ii) a document is difficult to be obtained; (iii) a document was accidentally lost; and (iv) testimonial evidence is justified by the nature of the act or the specific circumstances under which it was drafted and in particular in case of commercial transactions.
Ιn which cases does parties’ examination take place?
The Court may examine parties upon request of a party or ex officio. Parties are usually examined without taking an oath. The assessment of their testimony is at the Court’s discretion.
How are affidavits provided?
The parties may provide affidavits, which are obtained before a magistrate or a notary. The number of affidavits submitted for each party to the proceedings cannot exceed five. Three affidavits may be obtained for the rejoinder.
When do documents have probative value?
Documents have probative value when they are drafted in a lawful and valid manner, not altered in their essential parts and they are legible. The alteration of a document is presumed to have been occurred to suppress its probative value, unless proven otherwise.
What is the probative value of public documents?
Public documents constitute complete proof. Counter-evidence is only allowed by challenging the document as counterfeit. In order for foreign documents to have probative value in the Greek territory, they must satisfy the requirements for public documents under the laws of the country where they were issued.
Does a void public document have probative value?
A public document, which does not meet all the legal requirements, does not have the probative value of a public document. It can be valued as a private document, though, if it bears the issuer’s handwritten signature.
What is considered as private document?
Private documents are those drafted by individuals. They include accounting records kept by merchants and professionals, lawyers, notaries, bailiffs, doctors, pharmacists and midwives, photographic or cinematographic representations and other mechanical imagery.
When do private documents constitute evidence?
Private documents provide proof that the statement they contain originates from the document’s issuer, provided that their authenticity has been acknowledged or proven. Proof to the contrary is permitted. Private documents provide proof in favor of the issuer, if they are submitted by the other party. Business accounting records provide complete proof of their content between merchants or other persons obliged to keep such records, provided that they are legally drawn up. Proof to the contrary is permitted. Photographic or cinematic representations and any other mechanical imagery provide complete proof of the events or things they are depicting. Proof to the contrary is permitted.
What is the approach taken to public documents?
Public documents are considered authentic and may only be challenged as forged.
How is the authenticity of a private document assessed?
The authenticity of a private document, if challenged, must be proven by the person who invokes and submits it to the Court, unless it is so manifestly altered, that the Court can immediately and certainly verify that it is not genuine. The person against whom a private document is filed must declare immediately whether they acknowledge or deny the authenticity of the signature, otherwise the document is deemed to be recognized. If the authenticity of the signature is acknowledged or proven, it is assumed that the authenticity of the content has been ascertained. It can only be challenged as counterfeit. The authenticity of photographic or cinematic representations, as well as any other mechanical representation, if challenged, must be proved by the person who invokes and submits them.
How is a document contested as forged?
Any document may be contested as forged. If forgery is attributed to a particular person, it may be proposed at any time in the proceedings. Whoever puts forward allegations of forgery is required to submit the documents proving the forgery and name witnesses and other means of evidence, otherwise any allegations are unacceptable. If a document is contested as forged without forgery being attributed to a specific person, the Court orders evidence only if the person who issued the document insists on using it and if the document is, upon a judgment’s Court, essential for the identification of the case.
Criminal Courts
How do judges in criminal Courts decide cases?
Judges decide to their own discretion. They assess evidence according to the requirements of their conscience. In principle, any means of proof may be used in the formation of the judiciary’s conviction.
Can evidence acquired illegally be taken into account?
Evidence obtained by means of criminal offenses is not taken into account in criminal proceedings.
What means of evidence are allowed in criminal proceedings?
Generally any means of evidence are allowed.
What are the main means of evidence used?
The main means of evidence are: circumstantial evidence, autopsy, experts’ opinion, testimony of the accused, witnesses and documents.
What is considered as circumstantial evidence?
Actual fact from which one can deduce the existence or non-existence of another fact associated with the commission of a crime can be considered as circumstantial evidence. Traces are of particular importance.
When does an autopsy take place?
An autopsy can take place at all stages of the proceedings with regards to places, things or people, in order to ascertain the crime and the circumstances.
When is an expert’s opinion ordered?
If special knowledge is required in order to make an accurate identification of an actual fact, investigating officers or the Court may order an expert’s opinion ex officio or at the request of a party or the prosecutor.
How is a psychiatric expert’s opinion conducted?
In the case of an expert’s opinion regarding the mental health of the accused, the investigator may order the examination of the mental health of the accused in a public psychiatric hospital, upon the consent of the prosecutor, the current opinion of the experts, and after hearing the counsel. If the need for psychiatric examination arose during the proceedings, the Court orders the aforementioned actions, postponing the discussion until the psychiatric examination of the accused is completed.
When is a DNA analysis conducted?
When strong indications that an individual has committed a felony or misdemeanor punishable by a term of imprisonment for at least one year, the prosecuting authorities must take genetic material for DNA analysis in order to verify the identity of the perpetrator. The collection of genetic material shall be conducted with absolute respect of the dignity of the accused. The accused is also entitled to request DNA analysis for his defense. Finally, DNA analysis is also conducted for the felonies of sexual exploitation and abuse of minors.
When is a technical adviser appointed?
When interrogation concerning a felony takes place, the person who is appointed to conduct the interrogation appoints further experts, they must simultaneously notify this appointment to the accused, the plaintiff and the liable according to civil law for remuneration of the injured party. The aforementioned individuals may appoint a technical adviser at their own expense.
What is a guilty plea?
A guilty plea is the voluntary acknowledgement by the accused of the actual facts that constitute the basis of the accusation against them. A prerequisite for the admissibility of the confession is that it has been given without duress.
Is an obligation to testify provided in the Greek criminal procedure law?
Yes. If an individual is legally summoned to testify, he/she cannot, in principle and upon certain exceptions, deny the testimony.
Can the testimony of a co-accused lead to the conviction of the accused?
No, if no other evidence exists.
How are witnesses summoned?
In preliminary and main proceedings, witnesses are summoned in writing. The subpoena shall be delivered to the witness, at least 24 hours before the preliminary proceedings, and 15 days before the hearing. The prior notification for the appearance in the Court may be 60 days, if the witness resides abroad or his residence is unknown.
Is there an obligation for witnesses to take oath?
Yes. Every witness must take religious or civil oath, subject to some exceptions.
What happens when a witness does not appear in the interrogation?
If a witness is legally summoned and does not appear in the interrogation, a peremptory writ can be issued against them. If a witness is summoned by a prosecutor, an inquisitor or a magistrate, they are liable to pay a fine and they may also be liable to pay the judicial fees. The conviction is revoked if the person convicted for failure to appear, presents himself in order to be examined and proves that the failure to appear was due to a legal restraint.
What happens when a witness or an expert does not appear to testify?
If any of the witnesses or the experts do not appear in the hearing, they are liable to pay a fine depending on the Court’s decision and they also may be ordered to pay the judicial fees. If the absence of the witness or the expert is a reason for postponement, the Court may additionally impose on them the costs incurred due to the postponement. The Court may also impose on then the penalty for disobedience and a peremptory writ may be issued against them.
What is considered a document in the context of criminal proceedings?
The Criminal Procedure Code does not contain specific provisions with regards to documents as evidence. According to the Criminal Code, a document is any text that can prove a fact, as well as any point intended to prove such an actual fact. Moreover, the notion of document includes any means used by computer or peripheral computer memory, electronically, magnetically or otherwise, for recording, storing, producing or reproducing non readable data, as well as any magnetic, electronic or other material in which any information, image, symbol or sound is written independently or in combination, provided that such means and materials are intended or are likely to prove actual facts.
Administrative Courts
What constitutes evidence in administrative proceedings?
Disputed facts, which have significant influence on the outcome of the proceedings may be object of evidence in administrative proceedings. The Court shall ex officio take into account any facts which constitute common knowledge, any facts known from previous judicial proceedings and the conclusions learned from experience. Foreign law, customs and fair commercial practices are taken into account ex officio, if known to the Court. If these are not known, proof can be ordered.
Who carries the burden of proof?
Each of the parties is required to prove the actual facts in support of their allegations, subject to some exceptions. The opposing party has the right to respond. Both parties have the right to rely on the data obtained from the administrative file. The party against whom a legitimate rebuttable presumption is presented has the burden to prove it wrong.
What is evidence based on?
Evidence is based on the administrative file, as well as on the evidence resulting from the procedure before the Court. The administrative file consists of data collected by the Administration.
What means of evidence are used?
Means of evidence are: autopsy, expert’s opinion, documents, confession of the individual party, explanations of the parties, witnesses and judicial evidence.
How are the means of evidence assessed?
The Court uses the means of evidence at its own discretion and assesses them freely.
When is the evidence presented?
Documents and witness testimonials must be submitted to the Court the day before the first hearing of the case.
In which cases is an autopsy ordered?
The Court orders an autopsy when it deems it necessary to have a direct understanding of the subject of evidence.
In which cases is an expert’s opinion ordered?
If special knowledge is required to make an accurate identification of an actual fact, the Court orders an expert’s opinion and appoints one or more experts. In some specific cases the order is mandatory for the Court. If the Court decides to appoint an expert, the parties may appoint, a technical adviser at their own expense.
How are documents in administrative proceedings classified?
Documents are classified as either public or private. Public documents are those prepared by a public authority. Private documents are those which are not public. Private documents must be signed by the issuer. The concept of documents also includes: professional accounting records and the photographic or cinematic representations and any other representation.
What is the probative value of documents?
Public documents legally issued by the competent authority constitute a complete proof. Evidence is possible to be ordered only if these documents are contested as counterfeit. For the rest, the content of public documents and all the content of private ones are freely assessed.
Do private documents have probative value in favor of their issuer?
No, unless they are presented by the opposing party or in case of business accounting records.
How is the challenge of a document as counterfeit conducted?
Anyone who challenges a document as a counterfeit must submit the evidence on which their claim is based. If the document is essential to the identification of the case and the falsifier is designated, and criminal prosecution is possible, the progress of the proceedings may be suspended until the end of the criminal proceedings unless the suspension puts the interests of a party to imminent danger.
How is a confession assessed?
An individual party’s confession may be judicial or extra-judicial. A confession may be revoked for material misconduct until the end of the last hearing.
Can the Court ask the parties for explanation?
Yes. If it is not possible to establish a complete conviction by other means of proof, the Court may request, by way of a preliminary ruling, the provision of explanations or information by the parties themselves, their legal representatives, or their attorneys.
When are witnesses examined?
The Court may order a witnesses’ testimony ex officio or upon a request of a party. In such case, the testimony is mandatory and witnesses must take an oath. Penalties are imposed for failure to appear or the refusal of a testimony or oath. Witnesses testify for actual facts that they perceive with their own senses or who know from other people’s narratives, under the obligation to name the person who communicated the actual facts to them.
Does the Court take into account judicial evidence?
Yes. The Court can draw conclusions about actual facts, from other facts that have already been proven.