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

Because of the habit (the “custom”?) of our compatriots systematically to deceive the (so-called) public sector (in the strict and broad sense), fraudulently collecting sums of money to which they are not entitled, and because pensions were collected for many years by relatives of pensioners after the latter had died, I.K.A., faithful to bureaucratic procedures and to the tradition of clarifying the self-evident, issued the following document, protocol no. S00/35/10.07.2012, clarifying and explaining what the competent employees must do.

These “clarifications”, of course, are unnecessary, because they concern the work of the employees, who ought to know their duties, their competences and, in general, the reason for which they are paid.

However, it is worth seeing the clarifications of the deputy governor of I.K.A., with our own clarification that the underlining and bold elements were added by us for emphasis.

I.K.A. protocol no.: S00/35/10.7.2012

Clarifications regarding the submission of criminal complaints

Athens, 10/07/2012

Protocol No. S00/35

HELLENIC REPUBLIC

SOCIAL INSURANCE INSTITUTE

UNIFIED INSURANCE FUND FOR EMPLOYEES

ADMINISTRATION

GENERAL DIRECTORATE OF INSURANCE SERVICES

BENEFITS DIRECTORATE

MAIN PENSION DEPARTMENT

Postal address: Ag. Konstantinou 8 (10241)

Information: Ch. Tsampanaki

Telephone number: 2105215194

FAX: 2105230046

e-mail : diefpar@ika.gr

URGENT

GENERAL DOCUMENT

SUBJECT: Clarifications regarding the submission of criminal complaints.

Ref.: General Document of the Benefits Directorate, protocol no. S00/15/01.07.2011

As you have been informed by the relevant General Document, in cases where the Institute has not been informed of the death of a pensioner, resulting in the illegal collection of his pensions by persons not entitled to them, you have the competence to file a criminal complaint against those persons with the Prosecutor’s Office of the Court of First Instance.

We point out that the fact that the model criminal complaint communicated to you by the above relevant document refers to a specific provision of the Criminal Code (Article 386 para. 1) for “unfair concealment of an event” (death) does not mean that it cancels your obligation to prepare and file a criminal complaint when other unlawful acts also come to your attention. This is because, according to opinion 58/28.12.1993 of the former Legal Adviser of I.K.A., D. Diamantopoulos, which was re-communicated to all Directorates of the Administration by document protocol no. 1866/2.2.1999 of the Legal Directorate (Office of the Legal Adviser) and subsequently also to the Regional and Local Branches of I.K.A.-E.T.A.M. by document protocol no. G10/313/2.9.1999 of the Directorate of Administrative Personnel regarding notification of punishable acts to the Prosecutorial Authority by public employees, as well as Article 37, para. 2 of the Code of Criminal Procedure, public employees are obliged to report in writing and without delay to the competent Prosecutor anything they learn, in the exercise of their duties, concerning a punishable act prosecuted ex officio.

Therefore, you must not be limited by the above provision of the Criminal Code and must initiate the relevant procedure before the competent Prosecutor, adapting accordingly the content of the criminal complaint also in cases where the death of the pensioner has indeed been declared but third persons collect pensions credited without due cause, so that the legal ground for criminal prosecution is sufficiently and reasonedly established, regardless of the amount of the Institute’s financial damage.

We draw your attention especially to the following:

a) As mentioned above, the obligation to submit a criminal complaint arises directly from a provision of law and therefore its violation by a public official is impermissible and constitutes the commission of a punishable offence (primarily breach of duty), as is also pointed out in the opinion of the Legal Adviser, protocol no. 58/28.12.1993, communicated by document G10/313/2.9.1999 of the Directorate of Administrative Personnel. On the contrary,

the public employee must be an example of legality, must apply it and enforce it by every appropriate lawful means in cooperation with the competent judicial authorities.

Consequently, there is no issue of discretion of the directors as to whether or not to submit a criminal complaint as above.

The only cases in which a criminal complaint will not be prepared are those in which the debtors appear and voluntarily return the pensions credited without due cause within a three-month period, in the case where pensions are credited after the death of a pensioner, given that the computerized possibility of stopping the crediting after the date on which the death is notified to the service is within two months.

b) Due to the seriousness of the matter, the Administration is determined to check at regular intervals the implementation of the above. For this reason, every month you must send to the O.P.S. I.K.A.-E.T.A.M. Benefits Subproject Team by fax (210-3828410) a report on your actions regarding this matter, including the data requested in the attached table at the end of this document. (Note:

In Part A of the Table the statistical data concerning both the New Cases of each reporting month and the total of the branch’s cases from the beginning of data recording [from June 2011 onward] will be recorded. In Part B of the Table detailed information will be recorded for all cases of the branch from the beginning of data recording [June 2011]).

From now on, therefore, you will enter all these cases in the attached table and the Pension Interruption Worksheets (for persons not inventoried) will no longer be sent.

Consistency in applying the above obligations constitutes a weighting factor in assessing the performance of your services within the framework of monitoring the performance of the Pension Services.

We remind you that in your correspondence with credit institutions for the search of the details of co-beneficiaries of joint accounts, you must mention to them their relevant obligation, which arises from the provisions of Article 19 of Law 2972/2001 (Government Gazette 291/issue A/27.12.2001) [relevant circular 24/11 of the Benefits Directorate].

In addition to the above, an important priority of the Administration remains both the search for and collection of the amounts credited to accounts of pensioners after death, and the filing of criminal complaints against the persons who collected those pensions. This is because these actions will operate as an example and will contribute decisively to eliminating the phenomenon of illegal collection of benefits.

THE DEPUTY GOVERNOR

Dionysis Patsouris

Article 286 § 1 of the Criminal Code, referred to in the above document of the deputy governor of I.K.A., punishes fraud as a misdemeanor and provides that

“whoever, with the purpose of obtaining for himself or another unlawful financial benefit, damages another’s property by persuading someone to an act, omission or tolerance through the knowing presentation of false facts as true or the unfair concealment or suppression of true facts is punished with imprisonment of at least three months and, if the damage caused is particularly large, with imprisonment of at least two years”.

That is, the perpetrator of the fraudulent collection of pensions may be punished with a sentence of up to five years at the maximum.

Article 27 of the Code of Criminal Procedure, paragraph 2 of which is also referred to in the document of the deputy governor of I.K.A., provides that

“1. Investigative officials must report without delay to the competent prosecutor anything they learn by any means about a punishable act prosecuted ex officio. 2. The other public employees, as well as those to whom public service has been temporarily assigned, have the same obligation for the punishable acts of para. 1, if they learned of them during the performance of their duties. 3. The report is made in writing and must contain all existing data concerning the punishable act, the perpetrators and the evidence”.

And Article 259 of the Criminal Code punishes breach of duty, providing that

“An employee who intentionally violates the duties of his service with the purpose of procuring for himself or another unlawful benefit or of harming the state or another person is punished with imprisonment of up to two years, unless the act is punished by another criminal provision”.

With this article, the corrupt employee who violates his duties suffers no substantial consequence for his harmful conduct, because the prescribed penalty is symbolic and, practically, it is almost impossible for any employee to be convicted for breach of duty.

Nevertheless, the question remains: for so many decades, did the competent employees of I.K.A. (and of the public sector, in the corresponding cases of plunder) not apply these well-known provisions? Besides, “ignorance of the law is not permitted”!

The question is rhetorical because, as we know, violation of the law and of the duties of the armies of public employees was the rule, on the basis of another formed “custom”: that illegalities be covered up and the performance of employees not be checked, very many of whom were (and continue to be) idle payroll holders.

Let us hope that the situation of inertia, indifference, breach of duties and corruption will change and that the performance of the employees whom we maintain with the most onerous and unjust taxes will improve.