Archive note: This text comes from the old archive of Nomika Epilekta and is preserved with care for historical and informational reading.

Acquittal for a drug-related offence does not preclude conviction for the organization of the same offence, according to decision no. 1018/2011 of the Areios Pagos. In June 2011, decision no. 1018/2011 of the Areios Pagos was issued, which dealt with interesting legal issues that were resolved against the defendants, on the basis of settled case law according to which the defendant's accusations, complaints and objections against the convicting decision are rejected by adopting the most unfavorable versions that can be supported. The decision dealt with many important issues and (in application of special criminal Law 1729/1987, as in force after its amendment by Law 2459/2006) gave solutions, some of which are set out below in summary. Interpreting the relevant provisions of the above special criminal law, the supreme court accepted that (a) the offence of transit of narcotic substances, that is, moving them by any means from place to place, is an international crime, provided the transit is carried out for resale at a profit or also for disposal in any manner to third persons. It is committed even if Greek territory is not interposed in the transit between other countries. It is prosecuted and punished regardless of whether that act is also punishable under the laws of the countries through which the transit took place, (b) the act of organization, financing etc. provided for by Article 5 § 1, case c, of Law 1729/1987 is committed as a principal perpetrator by the person who, acting intentionally, organizes, finances, directs or supervises in any way the commission of one of the above-mentioned acts (under items a to l of the same article), or gives related instructions or orders. By the above provision the preparatory and participatory acts of instigation and of simple and direct complicity are upgraded into a completed offence. Cases of organization include all preparatory acts, such as finding a means of transport or making it available, recruiting personnel, determining the route, providing advice to avoid checks by state organs, etc. For the punishment of the perpetrators of this act (case m of Article 5 of Law 1729/1987), the plan must then be implemented or at least there must be the beginning of execution of one of the acts of Article 5 that the perpetrator guides, finances or supervises, (c) the principle of specialty is not violated during the extradition of a person from one country to another when the operative part of the extradition decision, in this case of the Court of Appeal of Paris, states that a favorable decision is issued on the extradition request and for the facts characterized as "attempted transport and trafficking, together with others, of a prohibited narcotic substance by non-addicts, as well as the financing, direction and supervision, together with others, of the transport of a prohibited narcotic substance by non-addicts", without using the words "organization" and "transit", if the extradited person is convicted of organization of transit, because the Greek court has the right to supplement and interpret the foreign extradition decision freely and without being bound. Specifically, the Areios Pagos accepted that "...By a permissible supplementation, however, of the above operative part of the decision from its reasoning, it is clearly inferred that alongside the word "transport" the word "trafficking" is also used, while reference is made to "direction and organization of a group of persons for the purpose of the illegal transport of narcotic substances". Consequently, and without adherence to these words, whose conceptual content is not strictly determined in the law, it becomes clear that the extradition took place (among other things also) for certain conduct of the defendant characterized as organization, direction and supervision of the trafficking (or transport or transit, words that it is not certain were used by the translators of the French text into Greek with particular precision) of a specific quantity of narcotic substance from one place to another. Therefore, no violation of the principle of specialty during extradition arises, and the contrary arguments supported by the defense are unfounded...". With these admissions, the Areios Pagos complied, as it explains in its decision, with Article 14 § 1 of the European Convention on Extradition of 13.12.1957, ratified by Law 4165/1961, under the title "rule of specialty", which provides that "the person surrendered shall not be prosecuted, tried or detained for the execution of a sentence or security measure, nor shall he be subjected to any other restriction of his personal liberty, for any act prior to surrender other than that on which the extradition is based". Consequently, if the extradition decision does not accurately describe the act for which extradition takes place, the Greek court may supplement the foreign decision and try the case, determining without any limitation the act that is not described, trying (and convicting) the defendant who was extradited, (d) although the defendant was declared innocent of the act of attempted transit of a narcotic substance, he was correctly convicted of organizing the attempted transit of which he was acquitted. In support of this view, the Areios Pagos decision accepted that "...the defendant was declared innocent of the act of attempted transit of the above narcotic substance, but (...) that act is not identical to the acts of organization, direction and supervision of transit...", because "...execution of the transit of that quantity by third persons had begun, which was not completed for reasons independent of the will of the third-person transit operators...", (e) if the charge is not described accurately in the summons, Article 321§§1, case d, and 4 of the Code of Criminal Procedure, which requires the charge to be described with every possible detail (in conjunction with Article 6 of the European Convention on Human Rights), is not violated if supplementary elements completing the imperfect description of the charge can be inferred from the remaining content of the summons (in which the remaining acts for which the defendant was acquitted are described), (f) Article 211 case a of the Code of Criminal Procedure, which provides that "under penalty of nullity of the procedure, persons who exercised prosecutorial or investigative duties or the duties of secretary of the investigation in the same case shall not be examined as witnesses at the hearing", is interpreted narrowly, because it introduces an exception to the use of an evidentiary means, by balancing on the one hand the defendant's interest not to face as a prosecution witness a person who may have acquired prejudice against him because of the exercise of the above duties, and on the other hand the purpose of the criminal trial, which is the substantive search for the truth. The investigative officials who exchanged views with their American counterparts and visited the detainees, who voluntarily and without coercion narrated before them what they had testified at an earlier time when examined by foreign authorities, did not perform a specific investigative act and did not sign any report, but merely exchanged knowledge that could be useful for the further processing of the case by the competent prosecutorial and judicial authorities. It is in this sense that the word "interrogated" is used by the drafter and translator of the document dated 10.07.2001. Consequently, they cannot be placed in the category of officials who exercised investigative duties and they are not considered unsuitable to be examined as witnesses before the criminal court. That is, these witnesses are objective. The other investigative acts (transcriptions, recording of telephone conversations, signing of investigation documents) do not render those officials prejudiced and unsuitable, because either their acts do not concern the specific criminal case, or they are not investigative acts but administrative, service actions, and (g) according to Article 224 § 2 of the Code of Criminal Procedure, a person examined as a witness has the obligation to name the source of his information, otherwise his testimony is not taken into account. However, according to the same decision of the Areios Pagos, "the said provision does not preclude the co-assessment of that witness's testimony together with the other evidentiary means, even if he was asked to reveal the informant, nor does it entail nullity of the procedure, because no sanction is provided for the violation (lex imperfecta) and therefore no ground of cassation is thereby created". By the same decision, all the other accusations and complaints of the defendants against the convicting decision nos. 3081/2008, 3159/2008 and 399/2009 of the Five-Member Court of Appeal of Athens were also rejected.