Greece-OECD Project: Technical Support on Anti -Corruption

Review of Legal and Regulatory Asset

Recovery Framework in Greece

This document is published under the responsibility of the Secretary-General of the OECD. The opinions expressed and

arguments employed herein do not necessarily reflect the official views of OECD member countries.

This document and any map included herein are without prejudice to the status of or sovereignty over any territory, to the delimitation of international frontiers and boundaries and to the name of any territory, city or area.

This document was produced with funding by the European Union. The views expressed herein can in no way be taken to reflect the official opinion of the European Union.

About the OECD

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www.oecd.org

About the Greece-OECD Project

The Greek government is prioritising the fight against corruption and bribery and, with the assistance of the European institutions, is committed to taking immediate action. Under the responsibility of the General Secretariat against Corruption, Greece’s National Anti-Corruption Action Plan (NACAP) identifies key areas of reform and provides for a detailed action plan towards strengthening integrity and fighting corruption and bribery. The OECD, together with Greece and the European Commission, has developed support activities for implementing the NACAP. This project is carried out with funding by the European Union and Greece.

www.oecd.org/corruption/greece-oecd-anti-corruption.htm

Table of Contents

I. Introduction ..................................................................................................................................... 4

I. Tracing Assets ................................................................................................................................. 4

A. International Standards on Tracing of Assets ................................................................................ 4

B. Framework for Tracing Assets in Greece ...................................................................................... 5

II. Securing Assets – Freezing & Seizure........................................................................................... 14

A. International Standards ................................................................................................................ 14

B. Provisions in Greek Law on Freezing Assets .............................................................................. 15

C. Need for Uniformity in Provisions on Freezing .......................................................................... 18

D. Seizure of Assets in Greece ......................................................................................................... 19

III. Confiscation Of Assets .................................................................................................................. 21

A. International Standards on Confiscation in Corruption Cases .................................................... 21

B. Conviction-based Confiscation ................................................................................................... 21

C. Extended Confiscation................................................................................................................. 24 D. Non-Conviction Based Confiscation ........................................................................................... 24

E. Confiscation against Legal Persons ............................................................................................. 26

F. Court of Audit.............................................................................................................................. 27

G. Civil Proceedings......................................................................................................................... 27

IV. International Asset Recovery ......................................................................................................... 28

A. Tracing Assets in Foreign Jurisdictions ...................................................................................... 28

B. Freezing, Seizure and Confiscation ............................................................................................. 32

C. Asset Repatriation ....................................................................................................................... 33

V. Collecting Data on Asset Recovery ............................................................................................... 33

VI. Annexes ......................................................................................................................................... 34

A. Draft Revised CPP Provision on Asset Freezing ........................................................................ 34

B. Draft Penal Code Provision on Confiscation............................................................................... 36

I. Introduction

Under the responsibility of the General Secretariat against Corruption, Greece’s National

Anti-Corruption Action Plan (NACAP) identifies key areas of reform and provides for a plan for

strengthening integrity and fighting corruption. Through its Greece Technical Assistance Project, the

OECD has committed to supporting the Greek authorities and to provide technical guidance to

implement the NACAP in a series of pre-identified areas. The Project was made possible with funding

by the European Union.

This document has been produced under Outcomes 10.1, 10.2, and 10.7 of the Technical

Assistance Project. It contains an analytical assessment of the current legal and regulatory framework

relating to asset recovery in Greece. The document addresses both domestic and international

recovery (i.e. recovery of assets located in Greece and abroad) because of overlap between the two

areas. Information is drawn from independent research by the OECD; responses to a questionnaire

submitted by Greek authorities in January-February 2017; consultation meetings with Greek authorities in Thessaloniki and Athens in mid-February 2017; and additional consultation workshops

in Thessaloniki and Athens in November 2017. An assessment of Greece’s institutional framework

for asset recovery (Outcomes 10.3 and 10.4) and guidelines to practitioners on asset recovery

(Outcome 10.5) are covered in separate deliverables.

In addition to analysing the existing Greek framework, this document provides

recommendations for improvement. The proposals for reform take into consideration international

standards from the OECD, Council of Europe, the United Nations and other national and international

bodies. A central tenet underlying the recommendations is to replace a fragmented Greek legislative

and institutional framework with a common and co-ordinated approach towards asset recovery for all

authorities. The analysis is divided according to the different phases of asset recovery: (i) asset

tracing; (ii) freezing and seizure of assets; (iii) confiscation of assets; and, (iv) international asset

recovery, which addresses the international dimensions of the three preceding topics. Draft legislative

provisions are in the Annex.

I. TRACING ASSETS

A. International Standards on Tracing of Assets

International conventions on the fight against corruption provide that countries should take

measures as may be necessary in order to identify and trace proceeds of corruption or other property

the value of which corresponds to that of such proceeds or property, equipment or other

instrumentalities used in or destined for use in corruption offences, for the purpose of eventual

confiscation.1 The power to identify and trace property that is subject to confiscation, including the

ability to access financial accounts and bank records, should be considered a basic investigative tool

for all law enforcement agencies.2 In discharging their law enforcement duties, such entities should

be able to carry out parallel and proactive financial investigations for the purpose of identifying the

extent of criminal networks, identifying, tracing and securing proceeds of crime for eventual

confiscation, as well as developing evidence that can be used in criminal proceedings.3

1 UNCAC, Article 31; UNTOC, Article 12; Council of Europe Convention on Laundering, Search, Seizure and Confiscation

of the Proceeds from Crime and on the Financing of Terrorism (Warsaw Convention), Article 4. 2 UNODC – Technical Guide to the United Nations Convention against Corruption (2009), p. 96. 3 Financial Action Task Force, Report - Operational Issues – Financial Investigations Guidance, Recommendation 30.

Special investigative techniques are essential for identifying and tracing assets subject to

confiscation.4 Special investigative techniques include wiretapping, tracking devices, video or

physical surveillance, witness interviews, seizure orders, monitoring of bank accounts and online

activity, and undercover operations (e.g., controlled deliveries).

International standards also establish the importance of tracing assets at an early stage of the

investigation, and of the creation of an investigation plan.5 Additionally, it is vital that law

enforcement authorities have access to databases such as bank account registers, real estate records,

and vehicle and legal person registers to identify assets at the domestic level.6

Lastly, robust and efficient international cooperation is essential to enabling law enforcement

authorities to trace assets in foreign jurisdictions.7

B. Framework for Tracing Assets in Greece

This section provides an overview of the legislative framework for tracing assets in Greece. It

first considers the overlapping tools available to investigators, prosecutors and investigative judges to

trace assets. A streamlining of these provisions is recommended. The section then considers additional

bodies with powers that may be useful for asset tracing, and the means for obtaining information

regarding common types of assets. The last section considers law enforcement officials’ use of these

asset tracing tools in practice.

1. Tracing Tools Generally Available to Law Enforcement

In most corruption cases, the evidence necessary to trace assets is also needed to prove guilt.

Tools for gathering evidence during an investigation are therefore also relevant to tracing assets. In

criminal corruption investigations, Greek penal procedure may include a preparatory examination,

preliminary investigation, and main investigation. The preparatory examination and the preliminary

investigation are performed by general investigative officers8 and special investigative officers (e.g.

SDOE, customs) listed in Articles 33-34 of the Greek Code of Penal Procedure (CPP). The Public

Prosecutor may conduct the preparatory examination and the preliminary investigation him or herself

(Article 31 CPP). The main investigation is conducted by the Investigative Judge.

a) Seizure powers and access to bank records under Article 260(2) CPP

According to Article 260(2) CPP, investigative judges and investigative officers (those

entities listed in Article 251 CPP – including SDOE, and the Financial Police Division) can seize asset

(securities) certificates in private or public banks and other institutions deposited in current accounts,

and any other deposited item or document, even when contained in safe deposit boxes. Further, they

may inspect the correspondence and activity logs held by these institutions to locate items to be seized

or to further their investigation generally. If the institutions housing the assets refuse such inspections,

the investigative agencies may search the institution and seize relevant assets and documents.

4 Council of Europe Criminal Law Convention on Corruption, Article 23(1); UNODC (2012), Manual on Confiscation of

Proceeds of Crime, p. 11. 5 Stolen Asset Recovery Initiative – StAR, Asset Recovery Handbook (2011), pp. 41-42. 6 UNODC – Technical Guide to the United Nations Convention against Corruption (2009), p. 96. 7 UNODC (2012), Manual on Confiscation of Proceeds of Crime, p. 20. 8 This category includes examining magistrates, who are low ranking judges and low ranking civil judges who try petty

offences (Πταισματοδίκες and Ειρηνοδίκες respectively), and police officers above a certain rank. These judges are general

investigative officers according to Article 33 CPP and can conduct preliminary investigations and preparatory examinations

pursuant to a prosecutorial order.

According to the Hellenic FIU, such information is normally obtained through the Registry

System (described below).9

Additionally, Article 3 of Legislative Decree 1059/1971 also allows for law enforcement

authorities to access information subject to certain conditions:10

It is exceptionally permitted to provide information about confidential money or

other deposits with banks operating in Greece following a special reasoned order,

an application or a decision of the body responsible for the penal prosecution, the

preliminary investigation, the preparatory examination, or the main investigation

through the court or judicial council in which the relevant proceedings are

conducted, if providing such information is absolutely necessary for the detection

and the punishment of a felony […].

The “absolutely necessary” threshold is very high, particularly in light of the procedural

nature of intelligence gathering efforts and investigations at their incipient stages. Requiring law

enforcement authorities to justify that such a measure is absolutely necessary for the detection and

punishment of a criminal offence makes investigations nearly if not impossible. Indeed, the purpose

of such investigative efforts is to collect evidence that will eventually allow a prosecutor to meet a

much higher burden of proof that justifiably exists at the trial phase.

b) Access to bank records under Law 3691/2008 (AML Law)

According to Law 3691/2008 (AML Law), prosecutors, investigative judges and courts have

access to the books and records kept by obligated persons (Article 50). Obligated persons include

entities such as credit and financial institutions.11 AML Law Article 35 requires obligated persons to

keep the following documents and information:

i. customer identification information and data on its verification, upon the conclusion of any

agreement;

ii. authorisation documents, photocopies of documents on the basis of which the identity of the

customer was certified and verified, and originals or copies of the documentation of all kinds

of transactions;

iii. internal documents concerning approvals or verifications or proposals in cases related to

investigations into the above offences or cases reported or not reported to the FIU;

iv. data on business, commercial and professional correspondence with customers, as these may

be specified by the competent authorities.

Information in (i)-(iii) must be kept for at least five years after the relevant transaction or

business relationship with the customer has ended. The record keeping requirement applies to

subsidiaries of credit and financial institutions and their foreign branches. When implemented in

Greek law, the recent Fourth European Union Anti-Money Laundering Directive 2015/849 (Fourth

EU AML Directive) will introduce further changes to customer due diligence.

There is overlap between Article 260(2) CPP and AML Law Article 50. Both provisions allow investigative judges to obtain the same types of evidence (e.g. documents, correspondence, etc.)

from the same types of entities (i.e. financial institutions). This is inconsistent with international best

9 Hellenic FIU Response to Asset Recovery Questionnaire, pp. 2-3. 10 A precondition for seizures foreseen by Article 260 CPP is the lifting of (bank) secrecy as foreseen by Article 3 of

Legislative Decree 1059/1971 – Charalampos Sevastidis, Code of Penal Procedure-Explanation/2015, Volume III, p. 3095. 11 Article 5 of Law 3691/2008 defines inter alia obligated persons as the following: (a) credit institutions; (b) financial

institutions; (c) venture capital companies; (iv) companies providing business capital; (v) chartered accountants, audit firms,

independent accountants and private auditors; (vi) tax consultants and tax consulting firms; (vii) casino enterprises; (viii)

auction houses; (ix) notaries and other independent legal professionals who participate in (or assist) any financial or real

estate transaction; and, (x) natural or legal persons providing services to companies and trusts.

practice. In general, a particular type of investigative measure should derive from a single legislative

provision. Duplicate provisions offering the same investigative technique are unnecessary and risk

being inconsistent, as the discussions below on the Greek provisions for freezing and confiscation of

assets show. The location of investigative measures is also important. The most logical place for

placing investigative measures for asset recovery in Greece is the CPP where other criminal

investigative measures are found. The AML Law, on the other hand, should contain only anti-money

laundering measures, such as customer due diligence, suspicious transaction reporting etc.

Greek authorities stated that there will be new draft legislation presented to the Greek

National Parliament to implement the Fourth EU AML Directive which was enacted on 20 May 2015.

The Fourth EU AML Directive covers the following areas: (i) measures that EU Member States must

take with regard to identifying, assessing and mitigating the risks of money laundering and terrorist

financing (Articles 7-8); (ii) customer due diligence practices (Articles 10-29); (iii) issues relating to

beneficial ownership information (Articles 30-31); (iv) reporting obligations and activities of national

financial intelligence units (Articles 32-39); (v) data protection, record-retention and statistical data

(Articles 40-44); and (vi) Cooperation among national and international institutions across EU

Member States (Articles 49-62).

The introduction of new legislation to implement the Fourth EU AML Directive could be an

opportune moment to eliminate overlap between the CPP and the AML Law, including the

duplication between Article 260(2) CPP and AML Law Article 50. The Directive deals with anti-

money laundering (AML). It does not deal with criminal investigative tools for recovering or tracing

assets, which are more natural in the CPP. The Greek authorities could thus amend the AML Law so

that the Law only deals with AML issues (including those in the Fourth Directive). Asset recovery-

related provisions currently enshrined in Greece’s AML Law (including Article 50) could then be

moved to the CPP, thereby harmonising similar or overlapping provisions.

Recommendation

• Implement the Fourth EU AML Directive by amending the AML Law to provide only AML measures, and relocating the provisions on investigative tools for asset recovery – including asset tracing – from the AML Law to the CPP.

c) General Search Warrants under Article 253 CPP

The execution of a search warrant can allow investigative authorities to gather evidence of

assets.12 Article 253 CPP allows an investigative judge, a prosecutor, and general and special

investigative officers to conduct a search if: (i) there is an investigation in progress (preliminary

investigation, preparatory examination, and main investigation); (ii) the investigation should concern

felonies or misdemeanours (and not petty violations); and, (iii) it can be reasonably assumed that such

a search will assist investigative authorities in discovering and/or arresting the individuals involved in

the commission of the crime(s) or otherwise advance efforts that would allow for restitution and/or

compensation relating to said crime(s).

d) Account Monitoring

An account monitoring order is an ex parte order issued by an investigative judge requiring a

financial institution to provide information about the future activity of an account over a specified

period of time. The information sought must be given to an appropriate official in a specific manner

or at a specified time. The order allows real-time surveillance of transactions which can help establish

typologies of activity, identify additional accounts, and may provide grounds for a further order to

disclose, freeze, or search and seize assets.

12 Stolen Asset Recovery Initiative – StAR, Asset Recovery Handbook (2011), p. 54.

Article 28 of EU Directive 2014/41/EU (concerning the European Investigation Order in

criminal matters) provides for the monitoring of banking or other financial operations that are being

carried out through one or more specified accounts. In September 2017, the Hellenic Parliament

passed Law 4489/2017 transposing EU Directive 2014/41/EU into Greek Law.13 However, Greece

seems to currently lack the necessary infrastructure to fully implement the Directive, but has stated

that it plans to address these issues by improving the existing Registry System of Bank and Payment

Accounts (see section below).14

Recommendations

• Implement in practice Article 30 of Law 4489/2017 (which transposed Article 28 of the EU Directive 2014/41/EU) as soon as possible.

• Make account monitoring also available for domestic investigations.

e) Special Investigative Techniques

Article 253B CPP allows special investigative techniques (SITs) (e.g. covert investigations,

wiretapping) to be used to investigate corruption offences, except when the offence is committed by a

criminal or terrorist organisation:

Especially for the punishable acts of Articles 159, 159A, 235, 236, 237 and 237A

Penal Code-PC, provided they are not committed in the framework of a criminal or

terrorist organization, the investigation can include and the conduct of: …” [said

special investigative acts follow in the text].

However, there are no known examples where SITs have been used for asset recovery in

corruption cases. Further, some stakeholders are unsure as to whether SITs listed in Article 253B CPP

can be used for such a purpose.

Two further issues described in a separate project output also limit the use of SITs for asset

tracing.15 First, Article 253A CPP allows for certain SITs to be used in cases involving offences

listed in Article 187 PC, which does not include corruption offences (i.e. Articles 159, 159A, 235,

236, 237 and 237A PC). Second, Article 253B CPP is not yet operational because a Joint Ministerial

Decision defining the details and the procedure for “covert investigations” has yet to be issued.

13 Article 30 of Law 4489/2017 transposed Article 28 of EU Directive 2014/41/EU. 14 See Article 62 of Law 4170/2013 (which transposed the EU Directive 2011/16 on administrative cooperation in the field

of taxation into national legislation), the Article 11of Law 4211/2013, Article 71 of Law 4446/2016, and Article 107 of Law

4387/2016. 15 See Technical Proposals and Reference Materials for Building Capacity and Mobilisation of Greek Law Enforcement

Authorities, Chapter 5 “Use of special investigative techniques (SITs) in corruption investigations”.

Recommendations

• Issue the Joint Ministerial Decision foreseen in Article 253B CPP regarding covert investigations as soon as possible.

• Include the crimes of corruption listed in Article 253B CPP (i.e. Articles 159, 159A, 235, 236, 237 and 237A PC) in the list of crimes that fall under Article 187 PC, thereby ensuring that SITs listed in Article 253A apply in cases of corruption.

• Once Article 253B CPP is operational, raise awareness among practitioners that the SITs foreseen by the provision can be used for asset recovery in corruption cases.

2. Asset Tracing by Specific Bodies

In addition to tools available to criminal law enforcement bodies generally, there are

additional asset tracing provisions applicable to the Hellenic FIU and SDOE.

a) Hellenic FIU

Under Article 7B of the AML Law, the FIU may require obligated persons to provide all

information required for the performance of its duties, including grouped information about certain

categories of transactions or activities of domestic or foreign natural or legal persons or entities. In

serious cases and at its own discretion, the FIU may also carry out unannounced checks of public

services or in organizations and enterprises of the public sector, co-operating, if necessary, with the

relevant competent authorities.

Financial intelligence gathered by the FIU can also reveal financial flows and help trace

assets. Under AML Law Article 7(A), the FIU is responsible for collecting, investigating, and

evaluating (1) suspicious transaction reports filed by obligated persons, and (2) information received

from other sources (including foreign authorities) concerning transactions or activities potentially

linked to economic crime and money laundering. After its evaluation, the FIU decides whether to

archive the case16 or to refer it, with a reasoned findings report, to the competent Public

Prosecutor.17 However, law enforcement officials cannot compel the FIU to provide information for

an investigation or asset tracing.

b) SDOE18

Under Article 30(5)(b) of Law 3296/2004, SDOE may search and seize relevant evidence and

documents19 at places that do not concern the professional occupation of an investigated person,

when elements or well-founded suspicions for the commission of economic offences exist. Searches

require the prior consent of the investigated person, a prosecutor, or a judge. House searches must be

conducted in the presence of a judge.

According to Article 30(5)(c) of Law 3296/2004, SDOE may: (i) arrest and interrogate

persons; (ii) carry out searches of transportation, goods, persons, stores, warehouses, houses and other

areas; and, (iii) execute special investigative techniques. Article 30(5)(d) of Law 3296/2004 also

16 An archived case may be revived at any time in order for the investigation to be resumed or for the case to be correlated

with any other investigation. 17 Hellenic FIU Response to Asset Recovery Questionnaire, p. 9. 18 Article 30(14) of Law 3296/2004 provides that the rights and duties of the SDOE personnel are determined in detail by a

Presidential Decree18, which is issued by a proposal of the Ministers of Interior, Public Administration and Decentralization

and Finance, and the provisions of Article 2(6)-(7) of Law 2343/1995, as well as Article 25(2) of Law 820/1978 (Off. Gaz.

174 A’). 19 Article 30 para. 5 of Law 3296/2004, Articles 107-113 of Presidential Decree 111/2014, and Article 253 CPP.

enables SDOE officials to seize books, documents, goods, transportation means and other elements,

including electronic means of data storage and transfer.

Additionally, Article 30(6) of Law 3296/2004 provides that SDOE officers may access and

obtain any information or element related to or in order to perform their tasks, following a relevant

official order issued by their Service i.e. SDOE, not falling under restrictions of provisions on

secrecy.20

3. Means for Obtaining Specific Types of Information

This section describes the means by which law enforcement authorities may obtain certain

types of information necessary for tracing assets.

a) Obtaining Bank Information through Registry of Bank and Payment Accounts

The General Secretariat of Information Systems of the Ministry of Finance houses a Registry

System of Bank and Payment Accounts (Registry).21 Banks are required by law to maintain account

information for five years22 though many do so for longer. The following information up to ten years’

old can be requested through the Registry: account holder information; account balances; and

transaction amounts, dates and currency. The law gives the following Greek authorities access to the

Registry: (i) the Economic Crime Prosecutor (ECP); (ii) the Public Prosecutors against Crimes of

Corruption (PPACC) in Athens and Thessaloniki; (iii) all Services of the General Secretariat for

Public Revenue (now Independent Authority for Public Revenue-AADE); (iv) all Services of the

Special Secretariat of the Financial & Economic Crime Unit - SDOE; (v) the Financial Police

Division, and (vi) the Hellenic FIU.

Law enforcement authorities that have access to the Registry must send their requests for

bank information through the Registry. The requested information is also returned via the Registry.

The transmission of requests and information may take place outside of the Registry only where the

investigated person does not have a Tax Registry Number (TIC), where it is technically impossible to

do so, or for information that is older than ten years.

A significant shortcoming with the Registry is inaccessibility.23 Investigative judges of Law

4022, who play an essential role in the fight against corruption, are unable to access the Registry. The

law gives the PPACC access, but in practice this has not been implemented for the Thessaloniki

PPACC.24 Additionally, the following bodies currently do not have access to the Registry: the

General Inspector of Public Administration (GEDD), Inspectors-Controllers Body for Public

Administration (SEEDD), the Internal Affairs Directorate of the Hellenic Police (Police IAD), and the

Ministry of Shipping and Island Policy Internal Affairs Service. However, during the consultation

meetings, these bodies stated that access to the Registry would be significantly advance their

investigative efforts.

The Registry also contains two technical deficiencies. First, it does not allow a query for

information relating to one individual over multiple years. For example, if an investigator seeks information spanning several years relating to several different accounts belonging to a single

20 However, SDOE officials are obliged to observe the provisions on secrecy and discreetness of Article 26 of the Clerical

Code (Law 2683/1999, Off. Gaz. 19 A’). 21 See Article 62 of Law 4170/2013 (which transposed the EU Directive 2011/16 on administrative cooperation in the field

of taxation into national legislation), the eleventh Article of Law 4211/2013, Article 71 of Law 4446/2016, and Article 107

of Law 4387/2016. 22 AML Law Article 35. 23 Based on information obtained from various stakeholders in the consultation meetings and questionnaire responses. 24 As stated in the questionnaire (Q.15), and at the workshop in Thessaloniki.

individual, he or she is required to make separate queries for each account for each year.25 Second,

the Financial Police Division (FPD) identified a malfunction in the search algorithm that leaves some

relevant transactions unidentified. To overcome this problem, the FPD requests bank information in

writing through the Bank of Greece. Having to resort to such a practice is time-consuming and defeats

the purpose of the Registry.

Additional problems relate to the Registry’s scope. First, a public database of all institutions

(banks, etc.) covered by the Registry is foreseen by Article 62(7) of Law 4170/201326 but has yet to

be created. Second, the Registry does not allow requests for information regarding safe deposit boxes,

loans or credit cards. Third, account transactions are available for some but not all institutions.27

Fourth, there has been discussion about including information about securities and derivative products

in the Registry. Currently, such information is provided by the Athens Exchange Group28 which

includes the Athens Securities Depository S.A. The Hellenic Capital Market Commission29 also

responds to requests for information about securities and mutual funds. Requests for information

regarding life insurance policies can be sent to the Department of Private Insurance Supervision

(DEIA) of the Bank of Greece.30

Recommendations

The Registry is an indispensable tool for efficient asset tracing. To fully exploit its potential, Greece should address the following deficiencies:

• Grant access to the Registry to Law 4022/2011 investigative judges, Thessaloniki PPACC, GEDD, SEEDD, Internal Affairs Directorate of the Hellenic Police, and Ministry of Shipping and Island Policy Internal Affairs Service (the control and law enforcement bodies should act pursuant to a prosecutorial order). This should entail not only legislative amendments to provide access, but should also ensure that these bodies have the technical capability to access the Registry.

• Address technical shortcomings in the Registry, namely by: (1) allowing for a query for information relating to one beneficiary (in relation to one and/or multiple accounts) for a multiple-year period, and (2) rectifying the malfunction in the search algorithm identified by the FPD.

• Expand the scope of the Registry to include: (1) a public database of all institutions (banks, etc.) covered by the Registry as foreseen by Article 62(7) of Law 4170/2013; (2) information regarding safe deposit boxes, loans and credit cards; (3) transactional information for up to 10 years, for all institutions; and (4) securities, derivatives and mutual funds.

b) Tax-Related Information

The databases of the Independent Authority for Public Revenue (AADE), which include

annual tax declarations, also contain information on movable items with a value in excess of

EUR 10 000. All taxpayers are obliged to declare in their annual tax declarations: (a) new purchases

in the respective year and (b) leases of movable items, if these items exceed EUR 10 000. The same obligation exists for (irrespectively of the value/price): vehicles, vessels, aircrafts, shares, businesses,

companies, securities, real estate including swimming pools, loans given to any party, grants given to

any party (other than the state) of EUR 300 or more, and loans repayments. Additionally, taxpayers

25 The ECP, Athens PPACC and SDOE identified this shortcoming in the consultation meetings and/or questionnaire

responses. 26 Article 62(7) of Law 4170/2013 was added by Article 71(2) of Law 4446/2016. 27 Some financial and credit institutions do not provide transactional data for the entire 10-year period; this has to do with

mergers and takeovers, as in some cases transactional data cannot be given for a period prior to the date of the merger or

takeover. 28 https://www.helex.gr/web/guest/home 29 http://www.hcmc.gr/en_US/web/portal/home 30 Law 3867/2010 and Law 4364 (Government Gazette A 13/5.2.2016).

have to justify/prove the legitimate source of the respective funds. Failure to declare constitutes a tax

violation and potentially a penal offence.

A major midterm reform pillar for achieving Strategic Objective 2 “Fight Against Tax

Evasion and Smuggling’’ of the Strategic Plan 2017-2020 of the Independent Authority for Public

Revenue (AADE)31 is the establishment of an electronic assets database including all taxpayers

(ηλεκτρονικό περιουσιολόγιο). It has been announced32 that this database will become fully

functional in March 2019.

The electronic assets database of AADE including all taxpayers (ηλεκτρονικό

περιουσιολόγιο) will also be a source of information for investigators in order to trace assets,

especially regarding movable items with a value in excess of EUR 10 000.

A Joint Ministerial Decision foreseen in Article 44 of Law 4249/2014 giving the Financial

Police Division (FPD) access to the databases of the Ministry of Finance (AADE) has not been issued.

FPD stated that this creates problems and delays in investigating organised economic crime and

corruption cases.

Recommendation

• Take necessary measures to give judicial and prosecutorial authorities as well as the Financial Police Division access to the databases of the Ministry of Finance/Independent Authority of Public Revenue-AADE.

c) Asset Declarations

Individuals obligated to submit asset declarations (e.g. public officials, members of the

judiciary) also have to provide information regarding:

• High value movable items: The individuals obligated to submit asset declarations have to

report high value movable items (e.g. paintings, jewellery, etc.) that exceed EUR 30 000.

• Cash: The individuals obligated to submit asset declarations have to report cash of

EUR 15 000 or more (or the equivalent in foreign currencies).33

This information is stored in a database controlled by the Source of Funds Investigation Unit

(SFIU) of the Anti-Money Laundering, Counter-Terrorist Financing and Source of Funds

Investigation Authority (“Ant-Money Laundering Authority”).34 Law enforcement, prosecutorial, and

judicial authorities may request – but not compel – the SFIU to provide the information. Currently,

AML Law Article 7(B)(2) stipulates that the three units of the Anti-Money Laundering Authority

must provide law enforcement entities in Greece with relevant information unless providing such

information would impede upon the confidentiality of Authority’s investigations or would otherwise

impede the exercise of the Authority’s duties. This may be one reason why law enforcement officials

had difficulties obtaining information from the FIU.35 This is very unfortunate, since the information

in asset declarations can be extremely useful for asset recovery in corruption cases. The FIU’s

investigations also should not take precedence over those of criminal law enforcement authorities.

Article 7(B)(2) was taken into consideration when drafting the present asset recovery

framework analysis. Nevertheless, the drafters considered that the below recommendation was

appropriate.

31 http://www.aade.gr/sites/default/files/2017-04/statigiko_sxedio_2017_2020.pdf 32 http://www.kathimerini.gr/909963/article/oikonomia/ellhnikh-oikonomia/apo-ton-martio-toy-2019-8a-te8ei-se-leitoyrgia-

to-perioysiologio 33 The Union of Judges and Prosecutors has appealed before the Council of the State their obligation to report high value

movable items and cash. 34 Information provided during consultation meetings. 35 Information from consultation meetings with Greek law enforcement authorities.

Recommendation

• Considering that asset declaration information gathered by the SFIU, including information on cash and other valuable items, is often a valuable source of information, the SFIU should be required, upon request, to provide information to law enforcement authorities.

d) Real Estate Data

There is no single real estate electronic database (πρωτογενής) in Greece covering the whole

country. The real estate & property tax electronic database (E9 – ENFIA) of the Independent

Authority for Public Revenue (AADE - -ΙΑΠΡ) allows fast real estate inquires at the national level.

However, this is a ‘’derivative’’ database whose accuracy also depends on taxpayer declarations.

A new Cadastre system is foreseen to be completed in 2020.36 Cadastre is much more

effective than the old system of Registrations and Mortgages which was often time-consuming and

unreliable. When registering properties in the Cadastre, full registration of information is achieved

related to each property individually, combining both spatial and legal details. Cadastre is run by the

company ‘’National Cadastre & Mapping Agency S.A.’’,37 whose sole shareholder is the Ministry of

Environment and Energy.

Recommendation

• Priority should be given to the timely completion of the Cadastre system.

e) Information Regarding Vessels and Aircrafts

The Civil Aviation Authority (YPA)38 has a public database (νηολόγιο αεροσκαφών) of civil

aircrafts (including helicopters), their owners and commercial users.39 Unlike its counterparts in other

countries,40 the Ministry of Shipping & Island Policy has no electronic database regarding vessels.

Hence it is not possible to obtain reliable information from a database on whether a natural or legal

person owns a vessel in the country.

Recommendation

• Establish an electronic vessels database covering all of Greece.

f) Lack of a Single Assets Database

Currently there is a lack of a single, reliable database covering all types of assets. The

creation of such a database would significantly help investigators in efficiently and effectively

identifying and tracing the proceeds of the crime(s). It would also address the Hellenic FIU’s

concern41 that, to trace assets, it has to turn to a high number of parties each with its own

particularities.

Recommendation

36 http://www.ktimatologio.gr/aboutus/Pages/htSwFsW1ELgXfYD8.aspx 37 http://www.ktimatologio.gr/sites/en/Pages/Default.aspx 38 http://www.ypa.gr/ 39 http://www.ypa.gr/el/flight-safety/aircraft-register 40 For examples, authorities in Argentina maintain a national register of boats under its flag (Prefectura Naval de Argentina).

The French Customs maintains a public register of boat owners in that country. 41 Questionnaire response, p.8.

• Take necessary measures to establish a single, reliable database covering assets included in existing reliable databases.

4. Proactive Use of Available Tracing Tools

According to the Financial Action Task Force’s Recommendation 30 and the accompanying

interpretative note, at least in all cases related to major proceeds-generating offences, designated law

enforcement authorities should develop a proactive parallel financial investigation when pursuing

money laundering, associated predicate offences and terrorist financing. One of the purposes of

financial investigations is to identify and trace the proceeds of crime, terrorist funds and other assets

that are, or may become, subject to confiscation.

However, it is not clear that Greek authorities are using the asset tracing tools described

above to conduct proactive and parallel financial investigations alongside or in the context of the

criminal corruption investigations. According to a Europol study,42 Greece ranks 18th in the

European Union in terms of suspect money transactions and confiscated just 1% criminal proceeds in

the EU in 2006-2014.

Recommendation

• Encourage authorities to conduct a parallel and proactive financial investigation, alongside or in the context of the criminal investigation into the corruption crime(s), with a view to: (i) identifying and tracing the proceeds of crime or the equipment or instrumentalities used in or destined for use in criminal activity; and (ii) freezing such proceeds before they disappear or are dissipated, injected into the legal economy, or used to commit other offences.

• Authorities should receive training on how to develop proactive parallel investigations and the tools that are made available in such contexts.43

II. SECURING ASSETS – FREEZING & SEIZURE

Once assets have been traced, law enforcement authorities must secure such assets to prevent

their transfer or dissipation. Methods for securing assets include: (i) freezing or restraining assets, by

blocking access to assets or restricting how they are dealt with; and, (ii) seizing assets, by transferring

their possession from the individual to the authorities.

A. International Standards

International conventions establish that countries should enable law enforcement bodies to

freeze and seize (1) proceeds of corruption or other property the value of which corresponds to that of

such proceeds;44 and (2) equipment or other instrumentalities used in or destined for use in corruption

offences. In order to obtain a freezing or seizure order, authorities must establish that the assets sought

are connected to or derive from criminal activity. Due to the provisional nature of freezing and

seizure, the standard of proof is generally not as stringent as the standard required at trial.45 Law

enforcement authorities should be able to quickly and effectively freeze and seize assets related to

criminal activity. A seizure can result directly from an action by law enforcement or an order directing

42 http://www.ekathimerini.com/221563/article/ekathimerini/news/europol-says-crime-profits-are-slipping-through 43 See Technical Proposals and Reference Materials for Building Capacity and Mobilisation of Greek Law Enforcement

Authorities, Chapter 8 “Systematic Provision of Training to Greek Law Enforcement Authorities”. 44 UNCAC, Article 31; UNTOC, Article 12. 45 UNODC (2012), Manual on Confiscation of Proceeds of Crime, p. 56.

an investigator to seize.46 Additionally, law enforcement authorities should be required by law to

obtain judicial authorisation prior to freezing assets that are connected to criminal activity.47 In

emergency situations however, authorities should be able to freeze (e.g. bank accounts) seize assets

(e.g. cash) without prior judicial authorisation but48 be obligated to obtain authorisation subsequently.

International instruments provide that authorities should also be able to freeze and/or seize

assets belonging to third parties as well as illicitly obtained assets that have been intermingled with

legitimately acquired property.49 With regard to the former, the freezing and seizure must not

prejudice the rights of bona fide third parties.50 Lastly, international co-operation is imperative to

securing assets in foreign jurisdictions. As such, international standards require Greek authorities to

freeze and/or seize proceeds of crime pursuant to a formal mutual legal assistance (MLA) request or

through other informal channels if circumstances so require.

B. Provisions in Greek Law on Freezing Assets

There are five legislative provisions that allow the freezing of assets obtained through

corruption: AML Law Article 48, Law 2523/1997, Law 2713/1997, Law 3296/2004, and Law

4022/2011. The provisions differ in terms of scope, time limits, and the need for prosecutorial or

judicial authorisation.

1. Article 48 of the AML Law

Article 48(1) of the AML Law allows the freezing of suspected proceeds of crime found at a

credit or financial institution:

During a main investigation for the offences referred to in Article 2, the investigating

judge may, with the consent of the public prosecutor, freeze any accounts, securities

or financial products kept at a credit or financial institution, as well as any safe

deposit boxes of the accused, including those owned jointly with any other person,

provided that there are well-founded suspicions that these accounts, securities,

financial products or safe deposit boxes contain money or things derived from the

commission of the offences referred to in Article 2. […] In case of a preliminary

examination or investigation such freezing is ordered by the Judicial Council. The

order of the investigating judge or the decree of the Judicial Council shall have the

power of a seizure report and shall be issued without prior summoning of the accused

or third person […].

Article 48(1) meets some international standards relating to freezing. The provision permits

Greek law enforcement to freeze assets and accounts either belonging to individuals involved in

criminal activity or jointly owned with third parties. Freezing can be ordered without the presence of

the asset’s owner (i.e. ex parte) to prevent tipping off suspects.51 There must be “well-founded

suspicions” that the assets derived from the commission of a corruption offence.52 However,

Article 48(1) does not explicitly provide for the freezing of (1) property that has been intermingled

46 UNODC (2012), Manual on Confiscation of Proceeds of Crime, p. 56. 47 See German Code of Criminal Procedure (Strafprozessordnung – stop), Section 111e, paragraph 1; United Kingdom

Proceeds of Crime Act of 2002 (POCA), Articles 40-43; United States Department of Justice Policy Manual on Asset

Recovery (2016), Chapter 1, Section II.B. 48 Stolen Asset Recovery Initiative – StAR, Asset Recovery Handbook (2011), p. 76. 49 UNCAC, Article 31; UNTOC, Article 12(8); Council of Europe Convention on Laundering, Search, Seizure and

Confiscation of the Proceeds of Crime and on the Financing of Terrorism (Warsaw Convention), Article 5. 50 UNCAC, Article 31(9); UNTOC, Article 12. 51 Stolen Asset Recovery Initiative – StAR, Asset Recovery Handbook (2011), pp. 78-79. 52 During the consultation meetings, investigative judges of Law 4022/2011 explained that well-founded suspicions exist

when there is serious evidence that the accused committed the offence.

with legitimately acquired assets or (2) instrumentalities or property used to commit corruption

offences.

To freeze assets, prosecutors are required to apply to the competent Judicial Council (during

preparatory and/or preliminary investigations) which consists of a panel of three judges. Decisions on

such applications by the Judicial Council can take up to three months, which could lead to the loss of

the asset.53 In the context of a main investigation, investigative judges may freeze with the consent of

a prosecutor.

Under Article 48(4), individuals whose assets are frozen pursuant to Article 48(1) have 20

days to appeal the freezing order:

The accused as well as third parties shall have the right to appeal a freezing order or

decree by submitting an application […] within twenty (20) days from the service of

the order or the decree. The appeal does not have a suspensive effect. The order or the

decree may be revoked if there is new evidence.

Article 48(5) gives the Hellenic Financial Intelligence Unit (FIU) freezing powers in

emergency situations:

Where the FIU conducts an investigation, in emergencies, the President of the FIU54

may order the freezing of accounts, securities, financial products or safe deposit

boxes, or order the prohibition of sale or transfer of any asset […] and shall

subsequently transmit the case file to the competent prosecutorial body.

Article 48(5) does not explicitly set out a timeline or procedure for obtaining subsequent

judicial authorisation for the order.

2. Article 2(6) of Law 4022/2011

Article 2(6) of Law 4022/2011 gives investigative judges in charge of serious corruption

offences (listed under Article 1 of the Law) similar freezing powers as those found in Article 48 of the

AML Law. The two provisions nevertheless differ in several respects. First, Article 48 gives the

aggrieved party 20 days to appeal a freezing order, whereas Article 2(6) only allows 10 days.

Secondly, Article 48 explicitly states that freezing orders can be issued ex parte but Article 2(6) is

somewhat vague on regarding when the accused is to be notified of the order. Lastly, unlike

Article 48, Article 2(6) does not allow investigative judges of Law 4022/2011 to impose

imprisonment and/or a fine on managing officers of financial or credit institutions who fail to comply

with freezing orders.55

3. Article 17A(8) of Law 2523/1997

Article 17A(8) of Law 2523/1997 gives the ECP the power to freeze assets for one year that is

renewable with judicial authorisation:

During a preliminary investigation, the Economic Crime Prosecutor and his deputy

prosecutors may freeze bank accounts, contents of safe deposit boxes and immovable

and movable assets, if doing so is in the public interest. The freezing order shall only

53 Consultation meeting with Thessaloniki PPACC, February 2017. 54 The head of the FIU is a public prosecutor. 55 Article 232A of the Greek Penal Code provides that anyone who intentionally fails to comply with a provisional court

order may be punished by up to one year’s imprisonment. This provision would therefore apply to a manager of a financial

institution who fails to comply with a freezing order issued pursuant to Article 2(6). However, because Article 48 of the

AML Law allows for such penalties to be imposed and Article 2(6) does not, it is possible that Article 232A will not be

applied in cases involving the failure to comply with freezing orders issued pursuant to Article 2(6).

be valid for one year. The accused may appeal the order within thirty (30) days of

being notified, and the appeal does not have a suspensive effect.

If the preliminary investigation is not completed within the one-year time period, the

freezing order may be extended by a decree issued by the Judicial Council upon a

showing of good cause. The accused must be notified within twenty (20) days of the

order’s extension. The freezing order may be amended or revoked if new evidence is

found.

Unlike the PPACC, in preliminary investigations, the ECP does not have to apply to the

Judicial Council for a freezing order. During the February 2017 consultation meetings, the ECP stated

that at any given time it has about 400 to 500 freezing orders in place, and the Judicial Council

regularly approves requests to extend the ECP’s freezing orders.

4. Article 30(5)(e) of Law 3296/2004

The Financial and Economic Crime Police (SDOE) under the Ministry of Finance has its own

power to freeze assets pursuant to Article 30(5)(e) of Law 3296/2004:

Freezing, in special cases of securing the interests of the State or in cases of economic

crime and extensive tax evasion and smuggling, of bank accounts and assets by a

document of the head of the competent Regional Directorate of SDOE informing

about this action, within twenty-four (24) hours, the competent public prosecutor.

SDOE stated that the language “secure the interests of the State” and “economic crime”

applies to corruption offences.56 Additionally, although the Council of State (the supreme

administrative court in Greece) has declared Article 30(5)(e) unconstitutional,57 SDOE continues to

apply the provision because it has yet to be repealed by new legislation.58 In light of the foregoing,

the continued application of the provision by SDOE is problematic in particular because such freezing

measures are not time limited or subject to judicial oversight.

5. Article 6(3) of Law 2713/1999

The Internal Affairs Directorate of the Hellenic Police, when conducting a preliminary

investigation or a preparatory examination, also has the authority to request the freezing of assets

pursuant to Article 6(3) of Law 2713/1999. In such cases, the order of the competent prosecutor or the

decree of the competent Judicial Council is executed on an ex parte basis.

6. Article 2 (2) of Law 4312/2014

The provision is relevant for both freezing and seizure. It does not affect or influence the

powers of the State as such or provide for a new freezing or seizure procedure and it is therefore applicable only if a freezing and/or seizure order has already been issued. Article 2(2) stipulates that if

the suspect or accused consents on a voluntary basis to pay the sum of money to the Greek State that

was initially the object of the freezing or seizure order, the freezing or seizure is lifted.

56 Questionnaire responses and consultation meetings with SDOE. 57 See Decisions No. 3316/2014 and 1260/2015. The Council of State found the provisions unconstitutional because: (i) there

are no specific requirements in the provisions to order SDOE to proceed to the freezing of bank accounts and assets; (ii) the

wording of the provisions is vague; (iii) there are no time limits for the duration of the freezing; (iv) there are no

requirements regarding proportionality (i.e. the value of the bank accounts/assets that SDOE can freeze in relation to the

potential damage/loss of the State); and, (v) there is no set procedure to lift the freezing. 58 SDOE Questionnaire Responses (Question 9 & Question 26).

C. Need for Uniformity in Provisions on Freezing

It is evident that these five provisions on freezing differ in important respects. For example,

the time to appeal a freezing order is 20 days under AML Law Article 48, 10 days under Article 2(6)

of Law 4022/2011, 30 days under Article 17A(8) of Law 2523/1997 and no limit under Article

30(5)(e) of Law 3296/2004. Only Article 48 explicitly states that freezing orders can be issued ex

parte, provides for emergency freezing orders, and prescribes penalties against managers of financial

institutions for violating freezing orders.

Such fragmentation is undesirable. Provisions with different scope and requirements are more

difficult to apply since practitioners have to be aware of each provision’s nuances. Inconsistencies are

also arguably arbitrary and unfair. There is no justification why the owner of an asset should have

greater rights when freezing is ordered under the AML Law instead of Law 4022/2011 or vice versa.

As mentioned in the section on tracing, the best practice is that each investigative measure derives

from a single legislative provision.

One area of inconsistency that poses particular concern is the absence of judicial authorisation

for freezing. The ECP can freeze for up to one year without such authorisation; other prosecutors such

as the PPACC cannot. Unlike other police bodies, SDOE can freeze for 24 hours before referring the

matter to a prosecutor. The absence of judicial authorisation for freezing in these cases removes a vital

check and balance that helps ensure the infringement of an individual’s rights are lawful and justified.

The recent EU Directive 2014/42 provides that freezing orders should not be maintained longer than

necessary and that such orders should be reviewed by a court in order to ensure that the purpose of

preventing the dissipation of the property remains valid.59 Other prosecutorial bodies such as the

PPACC and first instance prosecutors in Athens and Piraeus have stated that such powers would be

helpful but are not essential, arguing that a judicial filter is necessary when deciding to freeze assets.

In addition, the legal systems of a number of OECD countries – including Germany, 60 the United

Kingdom,61 and the United States62 – require prior judicial authorisation to freeze assets that are

linked to criminal activity.

The choice of the judicial forum for issuing a freezing order and its subsequent review should

also be streamlined and made consistent. The current framework is overly bureaucratic and

cumbersome for practitioners seeking to carry out freezing measures in a timely manner, which in

turn negatively affects their ability to stay one step ahead of sophisticated criminal actors. Under

AML Law Article 48, prosecutors conducting a preliminary or preparatory examination are required

to apply to the competent Judicial Council (which is a three-judge panel) to obtain freezing orders. In

main investigations, investigative judges may obtain a freezing order with the consent of the

competent public prosecutor. In either case, interested parties may appeal a freezing order to the

competent Judicial Council. As stated above, the convening of a three-judge panel to hear applications

engenders delay, sometimes up to three months. Law enforcement bodies involved in the fight against

corruption in Greece – in particular both PPACC offices in Athens and Thessaloniki – state that this

specific issue creates significant obstacles for their work. Such bureaucracy and delay hamper not

only the effectiveness of freezing orders but also the protection of the rights of interested parties.

Instead, a single judge of the competent court is sufficient for hearing these applications.

One last issue is the length of time freezing orders should be valid. Currently, freezing orders

do not expire, with the exception of those issued by the ECP. Given the slow pace of corruption

investigations, assets can be frozen for several years, which can be unfair and also create hardship for

interested individuals. Mandatory regular reviews of freezing orders would better balance the rights of

interested individuals with the State’s interest in securing assets for eventual confiscation.

59 Directive 2014/42/EU of the European Parliament and of the Council of 3 April 2014, Article 8. 60 German Code of Criminal Procedure (Strafprozessordnung – stop), Section 111e, paragraph 1. 61 Proceeds of Crime Act 2002 (POCA), Articles 40-43. 62 Policy Manual: Asset Forfeiture Policy Manual (2016), Chapter 1, Section II.B. available at

https://www.justice.gov/criminal-afmls/file/839521/download

Recommendation

Greece should consider amending its legislation so that a single provision in the CPP applies to freezing of assets. It is recommended that the new consolidated freezing provision of the CPP meet the following requirements:

• The provision should apply to at least all corruption and related offences (such as money laundering).

• The provision should explicitly allow the freezing of assets that are reasonably suspected to be proceeds or instrumentalities of crime. Freezing should also be available when such property (1) has been intermingled with legitimately acquired assets, or (2) belongs to non-bona fide third parties.

• In order to minimise bureaucracy in freezing proceedings and ensure prosecutorial and investigative efficiency, in preliminary or preparatory examinations, the competent prosecutor shall apply for a freezing order before a single judge of the competent Court of First Instance who has been designated to hear freezing applications. To ease the burden, this designation should rotate regularly among judges. Such a procedure will reduce the regular significant delays highlighted by numerous Greek stakeholders which result from the obligation to request such orders before a three-judge panel of the Judicial Council. In main investigations, an investigative judge may obtain a freezing order with the consent of the competent prosecutor.

• An interested party may seek a review of the freezing order. If the issuing authority dismisses the review, then a further appeal is available to a single judge of the Court of Appeal.

• The new CPP provision should also allow for emergency freezing in specific cases without prior judicial authorisation. Judicial authorisation by the competent Court of First Instance or by consent of a competent prosecutor should be obtained within 72 hours of such emergency freezing measures. Given that freezing constitutes a measure that limits the peaceful enjoyment of property by an individual,63 a freezing order should be automatically lifted if authorization or consent is not granted. The new CPP provision should also provide for the regular review of freezing orders by the issuing authority every 18 months. Bureaucratic delays may be avoided through recourse to a designated single judge.

• Other current features in AML Law Article 48 that should be merged into the new CPP provision include expressly allowing a freezing order to be issued ex parte; a 20-day period for an individual to appeal a freezing order; and sanctions against officers of financial institutions for non-compliance with freezing orders.

A draft text of the new CPP provision is in Annex A.

D. Seizure of Assets in Greece

1. Article 243(2) of the Greek Code of Penal Procedure (CPP)

Article 243(2) CPP also provides investigative officers with seizure powers in the absence of

judicial authorisation:

If an immediate danger arises due to the delay, or if it is a red handed felony or

misdemeanour, all investigative officers under Articles 33 and 34 (CPP) are obliged

to conduct all preliminary investigative acts that are necessary in order to attest the act

and to discover the perpetrator, even without a prior order of the Public Prosecutor. In

63 See AGOSI v. UK, European Court of Human Rights, Application No. 9118/80, 24 October 1986; Butler v. UK, European

Court of Human Rights, Application No. 41661/98,Decision on Admissibility 27 June 2002.

that case they shall notify the public prosecutor by the fastest means possible, and

shall submit to him, without delay, the reports that have been drafted. The public

prosecutor, after receiving the reports, acts in accordance with the provisions of

Articles 43 et seq.

Article 243(2) obligates investigative officers to carry out preliminary investigative acts, such

as seizures, when a criminal offence has been committed or when an individual has been caught in the

act of committing a crime. After carrying out a seizure, an investigative officer must immediately

report the seizure to the prosecutor who will then determine the appropriate next steps. Article 243(2)

meets some international standards. Specifically, best practices allow seizures to be carried out in the

absence of judicial authorisation when exigent circumstances exist. Article 243(2) allows for this but

does not explicitly require that investigative officers have a reasonable basis to believe that a crime

has been committed in order to act.

However, Greek judges appear to define “immediate danger” under Article 243(2) on a case-

by-case basis. For example, in Decision 298/2017 issued by the Athens Court of Misdemeanours, the

judges reasoned that under Article 243(2) the mere commission of a criminal offence - such as money

laundering – would not be sufficient on its own to create an imminent danger. Rather, there must be

an additional element present that would create such a danger, such as a risk that evidence may be

destroyed or lost. Additionally, Greek authorities also refer to relevant bibliography on the matter

(e.g. Χαράλαμπος Σεβαστίδης, ανάλυση ΚΠΔ σελίδα 2839).

2. Articles 260 et seq. CPP

Article 260(1) CPP is the primary provision governing asset seizures in Greece in all types of

criminal cases:

Authorities referred to in Article 251 (i.e. investigative judges and the general and

special investigative officers mentioned in Articles 33 and 34) may seize asset

(securities) certificates in banks and other institutions, private and public, in quantities

deposited in current accounts, and any other deposited thing or document, and when

contained in safe deposit boxes, even if such items do not belong to the accused or are

not registered in his or her name, so long as they are related to the crime.

According to Article 260 CPP,64 investigative officers (such as the Hellenic Police and

SDOE) may seize assets with the approval of a public prosecutor or investigative judge.65 Unlike

AML Law Article 48(1), Article 260 does not provide an explicit standard for issuing a seizure order.

Article 260 also does not explicitly provide for the seizure of instrumentalities of the offence or of

assets belonging to third parties (although this may very well be the case in practice), and therefore

does not meet international standards relating to seizure.

Article 263(1) CPP enables the competent judge – regardless of the procedural phase of a case

– to order the seizure of assets, documents or other types of objects when necessary:

If the seizure of objects or documents related to the crime was either not possible or

not believed to be necessary during the course of the investigation, seizure may be

ordered by the court at any stage of the proceedings, even ex officio, in which case

the seizure should be executed as soon as possible.

64 A precondition for seizures foreseen by Article 260 CPP is the lifting of (bank) secrecy as foreseen by Article 3 of

Legislative Decree 1059/1971 – Charalampos Sevastidis, Code of Penal Procedure-Explanation/2015, Volume III, p. 3095. 65 Financial Action Task Force, Third Mutual Evaluation on Anti-Money Laundering and Combating the Financing of

Terrorism, 29 June 2007, para. 160 (www.fatf-gafi.org/media/fatf/documents/reports/mer/MER%20Greece.pdf).

3. Article 147(8) of Law 2690/2001 (Hellenic Customs Code)

Article 147(8) of Law 2690/2001 allows the discretionary seizure by the competent customs

authority of cash over EUR 10 000 entering or leaving the European Community that has not been

disclosed under Article 3 of Regulation 1889/2005. The cash may be held for three months while an

investigation takes place. There is no explicit provision allowing for an extension of the seizure

period. This provision is particularly important to Greece as it is the entry point to Europe from non-

Schengen countries.

III. CONFISCATION OF ASSETS

After tracing and securing assets, the next step is to confiscate assets, i.e. transfer title to the

assets from a private individual to the state. This section considers international standards on

confiscation in corruption cases before examining the different types of confiscation available under

Greek law.

A. International Standards on Confiscation in Corruption Cases

Most international conventions on corruption and money laundering require parties to be able

to confiscate the direct and indirect proceeds of corruption, as well as property, equipment or other

instrumentalities for committing this crime. Confiscation must be available against not only a corrupt

official but those who corrupt them. In a case of bribery, this would include confiscation of not only

the bribe but the gains from the crime, such as revenues or profits from a bribery-tainted contract. If it

is not possible to confiscate the property in question, then parties must confiscate property of

equivalent value or impose monetary sanctions of comparable effect. Confiscation property in the

possession of non-bona fide third parties may also be required.66 The recent EU Directive 2014/4267

on the freezing and confiscation of instrumentalities and proceeds of crime further requires additional

measures such as extended confiscation. International best practices further suggest that countries

provide additional measures such as non-conviction based confiscation and civil recovery.

B. Conviction-based Confiscation

As its name suggests, conviction-based confiscation allows property to be confiscated when

an individual has been convicted of a criminal offence. Greece has three provisions that provide for

conviction-based confiscation, namely Penal Code (PC) Articles 76 and 238, and Article 46 of

Law 3691/2008 on anti-money laundering (AML Law). Further, Law 4312/2014 contains provisions

regarding funds whose title is passed to the State.

66 OECD Anti-Bribery Convention, Article 3(4); UNCAC, Article 31; Council of Europe Criminal Law Convention on

Corruption, Article 19(3); Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds

from Crime, Article 2. 67 Law 4478/2017 ratified the Warsaw Convention (Council of Europe Convention on Laundering, Search, Seizure and

Confiscation of the Proceeds from Crime and on the Financing of Terrorism - 2005), and transposed into the Hellenic

legislation EU Council Framework Decision 2003/577/JHA on the execution in the European Union of orders freezing

property or evidence, EU Council Framework Decision 2005/212/JHA on Confiscation of Crime-Related Proceeds,

Instrumentalities and Property, EU Council Framework Decision 2006/783/JHA on the application of the principle of

mutual recognition to confiscation orders, as amended by EU Council Framework Decision 2009/299/JHA, and EU

Directive 2014/42/EU on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union.

1. Article 76 of the Penal Code

Article 76 Penal Code (PC), which was amended in late June 2017,68 is the general provision

for confiscation:

76(1). Objects or assets that are proceeds from a felony or an intentional

misdemeanour, as well as the value of such proceeds, anything acquired through such

proceeds directly or indirectly, and additionally objects that were of use or were

destined to be used in the performance of such an act may be confiscated if they

belong to the principal or to any one of the accomplices. As far as other punishable

acts are concerned, this measure may be taken only when the law specifically

provides so. If the above objects or assets have been mixed with property acquired

from legal sources, the property concerned is subject to confiscation up to the

specified value of the assets.

Article 76 meets many aspects of international standards. The provision allows confiscation in

cases of corruption since such crimes qualify as felonies or misdemeanours. Direct and indirect

proceeds as well as instrumentalities are covered. The provision addresses confiscation against the

offender and accomplices. Confiscation is available for property that “belongs” to the convicted

offender. In other words, proof of ownership is necessary; it is not enough that the offender had

possession of the property. Proceeds of crime that are intermingled with lawfully acquired assets can

be confiscated if the amount confiscated does not exceed the value of the proceeds. Value

confiscation (Article 76(3)) and a pecuniary penalty in lieu of confiscation (Article 76(4)) are

available. Where confiscation would be disproportionate or result in hardship to the accused or a third

party (e.g. excessive and irreparable damage), Article 76(2) allows the court to order limited

confiscation or impose a pecuniary penalty.

Article 76(5) addresses confiscation of property in the possession of non-bona fide third

parties, i.e. individuals who have received the property knowing that it was proceeds of crime and that

the purpose of the transfer of property to the third party was to avoid confiscation. Knowledge may be

inferred from, for example, the transfer was for a price substantially below market value. However,

such confiscation can only be ordered when confiscation cannot be imposed against the offender.

Additionally, unlike relevant freezing provisions, Article 76 does not explicitly provide for how a

third party may appeal or otherwise challenge a confiscation order. Lastly, under Article 76(7), in any

case of confiscation, the court decides whether the confiscated assets are to be destroyed or whether

they can be used in the public interest or for social purposes or for the satisfaction of the victim.

2. Article 46 of Law 3691/2008

A second provision on confiscation was introduced when Law 3691/2008 (AML Law) was

enacted:

Article 46(1) Assets derived from a predicate offence or the offences referred to in

Article 2 or acquired directly or indirectly out of the proceeds of such offences, or the

means that were used or were going to be used for committing these offences shall be seized and, if there is no legal reason for returning them to the owner according to

Article 310(2) and the last sentence of Article 373 of the Code of Criminal Procedure,

shall be compulsorily confiscated by virtue of the court’s sentence. Confiscation shall

be imposed even if the assets or means belong to a third party, provided that such

party was aware of the predicate offence or the offences referred to in Article 2 at the

time of their acquisition. The provisions of this paragraph shall also apply in cases of

attempt to commit the above offences.

68 Amended by Article 6 of Law 4478/2017.

(2) Where the assets or proceeds referred to in para. 1 above no longer exist or have

not been found or cannot be seized, assets of a value equal to that of the said assets or

proceeds as at the time of the court sentence shall be seized and confiscated according

to the conditions of para. 1. Their value shall be determined by the court. The court

may also impose a pecuniary penalty up to the value of the said assets or proceeds if it

rules that there are no additional assets to be confiscated or the existing assets fall

short of the value of the said assets or proceeds.

AML Law Article 46 overlaps and is, at times, inconsistent with Article 76 PC in corruption

cases. The provision allows confiscation of proceeds of not only money laundering but also listed

predicate offences. These include domestic and foreign bribery (Articles 235-237 PC). Article 46

provides for confiscation against non-bona fide third parties but only Article 76 requires that the

purpose of the transfer to the third party be to avoid confiscation. Both provisions allow value

confiscation and monetary sanctions with comparable effect to confiscation.

AML Law Article 46 allows the confiscation of both direct and indirect proceeds though the

language is not the most clear. Direct proceeds are covered by the language “Assets derived from a

predicate offence or the offences referred to in Article 2”. Indirect proceeds, i.e. the proceeds of

proceeds, are covered as “Assets […] acquired directly or indirectly out of the proceeds of such

offences”.

3. Article 238 PC

A third provision in Article 238 PC applies to bribery offences:

Article 238(1). In cases covered by articles 235-237B, the decision orders the

confiscation of gifts and any other assets given, as well as those acquired directly or

indirectly through them. If such proceeds have been intermingled with property

acquired from legitimate sources, such property shall be liable to confiscation up to

the assessed value of the intermingled proceeds. Income or other benefits derived

from such proceeds, from property through which such proceeds have been acquired

or from property with which such proceeds have been intermingled shall also be liable

to forfeiture to the same extent as proceeds of crime.

(2) If the assets subject to forfeiture in accordance with the preceding paragraph, no

longer exist, have not been found, cannot be seized or belong to a third party against

whom it is not possible to impose confiscation, assets of the liable person, of equal

value to those in the time of the conviction, as specified by the court, are confiscated.

The court may also impose a fine up to the amount of the value of assets, if it

considers that there are no additional assets for confiscation or the existing are of less

value than of those subject to forfeiture.

Article 238 PC also overlaps and is inconsistent with the other provisions on conviction-based

confiscation. Unlike Article 76(1) PC, it applies to bribery but not other corruption offences in Chapter 12 PC. Article 238 PC also differs from the other provisions because it is silent on

instrumentalities of crime. It contains special provisions on intermingled assets not found in the other

provisions. It provides for value confiscation if the assets belong to a third party and cannot be

confiscated. However, it does not state affirmatively whether confiscation can be imposed against a

third party (e.g. a non-bona fide party).

Because these provisions have different requirements and scope, it is important to determine

which provision applies to which offences, but the answer to this question is not always clear. For

example, Greek authorities have stated that for the bribery offences under Articles 235-237 PC,

Article 238 PC would apply in lieu of Article 76 PC by reason of lex specialis.69 Furthermore, would

the lex specialis principle also exclude the application of Article 46 AML Law in bribery cases even

though this Law expressly refers to Articles 235-237 PC? If not, which provision (Article 238 PC or

Article 46 AML Law) takes precedence?

Recommendation

Current Greek law contains three different provisions that allow conviction-based confiscation in corruption cases, each with different scope and requirements. In order to ensure legislative clarity and certainty, Greece should instead consolidate these into Article 76 PC to meet all international requirements on confiscation described at p. 21 (see Annex B at p. 36 for a draft provision), which would make conviction-based confiscation easier to apply. A single provision would also be more visible and hence likely to be used by practitioners and should be in the Penal Code, which is the natural place for criminal sanctions and remedies. Additionally, due to forthcoming Greek legislation implementing the Fourth EU AML Directive, it would also advisable for AML-related provisions to be consolidated into an amended AML Law.

C. Extended Confiscation

Extended confiscation applies where a person has been convicted of an offence that produces

an economic benefit. In such cases, any of his/her property may be confiscated on the basis that it is

the proceeds of criminal conduct, including conduct that has not been the subject of the conviction.

Article 5 of EU Directive 2014/4270defines extended confiscation as follows:

Article 5(1). Member States shall adopt the necessary measures to enable the

confiscation, either in whole or in part, of property belonging to a person convicted of

a criminal offence which is liable to give rise, directly or indirectly, to economic

benefit, where a court, on the basis of the circumstances of the case, including the

specific facts and available evidence, such as that the value of the property is

disproportionate to the lawful income of the convicted person, is satisfied that the

property in question is derived from criminal conduct.

AML Law Article 4771 provides limited extended confiscation when an individual has been

convicted of one offence but prosecution of – and confiscation for – a second offence is not possible:

Article 47(1) The State may, on an opinion from the State Legal Council, raise a

claim before the competent civil courts against anyone irrevocably convicted to at

least three years of imprisonment of an offence referred to Article 47(2) AML Law, in

order to any other assets acquired by him through another offence referred to in the

same paragraph (i.e. para 2), even if no criminal proceedings were instituted for such

offence because of death of the offender or if prosecution was terminated or declared

inadmissible.

Article 47(3) further provides for value extended confiscation and extended confiscation of

property in the possession of third parties.

D. Non-Conviction Based Confiscation

According to international best practice, countries should establish a wide range of asset

recovery mechanisms that includes non-conviction based confiscation or equivalent mechanisms.72

69 OECD (2015), Phase 3bis Report on Greece, para. 75. 70 Directive 2014/42/EU was transposed into the Hellenic legislation by Law 4478/2017. 71 Article 47 of the AML Law, as it was replaced by para. 3 of Article 7 of Law 4478/2017. 72 G20 Anti-Corruption Working Group (2013), Nine Key Principles of Asset Recovery, Principle 4.

As its name suggests, non-conviction based confiscation does not require criminal proceedings or a

conviction. There must still be proof that the property in question is the proceeds or instrumentalities

of crime, but the standard of proof may be lower than the criminal standard:

A criminal confiscation requires a criminal trial and conviction, followed by the

confiscation proceedings; [non-conviction based] confiscation does not require a trial

or conviction, but only the confiscation proceedings. In many jurisdictions, [non-

conviction based] confiscation can be established on a lower standard of proof (for

example, the “balance of probabilities” or “preponderance of the evidence” standard),

and this helps ease the burden on the authorities. Other (mainly civil law) jurisdictions

require a higher standard of proof - specifically, the same standard required to obtain

a criminal conviction.73

The justification for the lower standard of proof is because the confiscation is seen as a

property-based action against an asset, not a person with possession or ownership. Furthermore, the

liberty of an individual is not at stake in the proceedings. A number of other jurisdictions, such as the

United Kingdom, Ireland, and the United States, regularly use non-conviction based civil proceedings

to recover unlawfully obtained assets. For example, Part 5 of the UK Proceeds of Crime Act of 2002

(POCA) allows the government to apply for orders for recoverable property (e.g., property obtained

through unlawful conduct, intermingled, converted or transformed proceeds, etc.) and associated

property (e.g., interest in property, partial ownership of property).74 Additionally, international

standard-setting bodies, such as the Financial Action Task Force, recommend that countries adopt

measures to allow for illicit assets to be confiscated without requiring a criminal conviction or that at

least require an offender to demonstrate the lawful origin of the property believed to subject to

confiscation.75

Non-conviction based confiscation has pros and cons. It allows confiscation when criminal

prosecution is not possible, such as when an offender has fled or died, is unknown, or has immunity.

If a lower standard of proof applies, then confiscation may occur even when there is insufficient

evidence to seek a criminal conviction. On the other hand, non-conviction based confiscation is not a

shortcut for avoiding an effective investigation because there must still be sufficient evidence to prove

that the property in question is proceeds or instrumentalities of crime. Furthermore, the lower

evidentiary standard and multiplicity of proceedings may be seen by some as unjust. For this reason,

some jurisdictions allow non-conviction based confiscation only after the criminal investigation

and/or proceedings have been completed or exhausted.76

In Greece, non-conviction based confiscation is available under AML Law Article 46(3)

when the offender has died, or the prosecution has concluded or is “inadmissible” (e.g. time-barred):

Article 46(3). Confiscation shall be ordered even where no criminal proceedings have

been initiated because of death of the offender or where prosecution was terminated

or declared inadmissible. In these cases, confiscation shall be ordered by a decree of

the competent judicial council or by a decision of the court that terminated the prosecution or declared it as inadmissible, and if no criminal proceedings have been

instituted, confiscation shall be ordered by a decree of the competent judicial council of misdemeanours. 77 The provisions of Articles 492 and 504(3) of the Code of

Penal Procedure shall also apply by way of analogy to this case.

73 Stolen Asset Recovery Initiative – StAR, Asset Recovery Handbook (2011), p. 11. 74 Section 304(1) of the POCA provides that the unlawful conduct need not be that of the person holding the recoverable

property but could be that of another person whether identified or not. 75 See Financial Action Task Force, Recommendation 4 (regarding Confiscation and Provisional Measures) (http://www.fatf-

gafi.org/media/fatf/documents/recommendations/pdfs/FATF_Recommendations.pdf). 76 Stolen Asset Recovery Initiative – StAR, Asset Recovery Handbook (2011), pp. 106-107. 77 Misdemeanours are criminal offences punishable by a term of imprisonment from one to five years.

This provision, like its conviction-based counterpart in Article 46(1)-(2), applies to proceeds

of listed offences. This includes domestic and foreign bribery but not all corruption offences in

Chapter 12 PC.

Article 76 PC also provides non-conviction-based confiscation and thus overlaps with AML

Law Article 46. Article 76(6) provides that where there is no prior conviction or a prosecution was not

possible, confiscation may, at the prosecutor's request, be ordered by the court that handled the case or

the court of first instance.

Recommendation

• Criminal sanctions and remedies most naturally belong in the Penal Code. The introduction of new legislation in Greece to implement the Fourth EU AML Directive presents an opportune moment to eliminate overlap between the abovementioned provisions in the CPP and the AML Law. This could be achieved by moving legislative provisions on extended confiscation and non-conviction-based confiscation from the AML Law to the PC (said provisions should be consolidated into the provision on conviction-based confiscation described above) and by amending the AML Law so that the Law only deals with AML issues (including those in the Fourth Directive). A draft provision is in Annex B at p. 34.

E. Confiscation against Legal Persons

It is vital that confiscation be available against legal persons. Where companies engage in

corruption to win business, the resulting revenues or profits are proceeds of crime. Disgorgement of

these illegal gains, which in major cases can amount to tens and hundreds of millions of euros, is

essential.

Unfortunately, current Greek law does not clearly provide for confiscation against legal

persons in corruption cases. As noted in a previous deliverable in this project,78 the regime of

corporate liability for corruption in Article 51 of the AML Law79 is not yet operational. Even if these

provisions are in force, however, it is unclear whether confiscation could be imposed against legal

persons for corruption. Article 51 provides for a range of sanctions against legal persons including

fines; withdrawal or suspension of a permit to operate; ban on specific business activities; and

debarment from public procurement. Confiscation is not listed as an available sanction.

However, Article 76(5) provides for confiscation against a legal person when a legal person

received the property knowing that it was proceeds of crime and that the purpose of the transfer of

property was to avoid confiscation. To determine knowledge, the competent court should assess if

such knowledge was shared by one of the following individuals: (i) the legal representative of the

legal person; (ii) the natural person authorised to make decisions on the exercise of control; or, (iii) a

natural person who exercises, on a de facto basis, the responsibilities mentioned in the first two

categories.

Additionally, Greek authorities have stated that confiscation may be ordered against a legal

person under AML Law Article 46(1) which like Article 76(5) allows confiscation against a third

person, but this position is doubtful.80 Article 46(1) permits confiscation only if the third person “was

aware of the [foreign bribery offence] at the time of [the assets’] acquisition”. Unlike Article 76(5),

78 Output 4.3-4.4: Technical Proposals and Reference Materials for Building Capacity and Mobilisation of Greek Law

Enforcement Authorities, Chapter 9. 79 Article 51 of Law 3691/2008 has been replaced by the 6th Article of the Law passed in the Parliament on 5 December

2017. The new Article does not require a Joint Ministerial Decision in order to become operational. The foreseen penalties

include: fines up to 10 million euros, permanent or withdrawal or suspension of a permit to operate, ban on specific business

activities, and debarment from public procurement, state subsidies, etc. If the legal person is an obligated person the

sanctions are imposed by the competent supervising Authority. If the legal person is not an obligated person the sanctions

are imposed by SDOE. The Article refers to money laundering and all the predicate offences. 80 OECD (2015), Phase 3bis Report on Greece, para. 76.

nothing in the provision, however, indicates how knowledge would be attributed to a legal person.

Moreover, this approach is counterintuitive. A legal person that engages is corruption is liable as a

first party, not third.

F. Court of Audit

As the auditor of the public sector in Greece, the Court of Audit performs functions such as

monitoring State revenues and compliance with public accounting regulations, and auditing of public

bodies and projects. More importantly for the purposes of recovering criminal assets, audit units of

government bodies that detect irregularities in the asset declaration of an official may refer the case to

the Court of Audit. Article 12 of Law 3213/2003 provides that if the official cannot justify the origin

of the assets belonging to him/her or his/her minor child, then the Court may impose a charge in an

amount up to the value of said assets.81 The charge is then passed to the tax authorities for collection.

G. Civil Proceedings

A country’s legal framework should ideally allow the recovery of criminal assets (e.g.,

proceeds of crime, instrumentalities of crime, etc.) through civil proceedings. Such causes of action

may include: (i) proprietary claims for assets that have been misappropriated and bribes accepted by

officials; (ii) tort claims;82 (iii) breach of contract; and, (iv) illicit or unjust enrichment.

Civil proceedings may be an effective option when law enforcement authorities are unable to

obtain criminal confiscation, non-conviction based confiscation, or mutual legal assistance for the

enforcement of confiscation orders.83 Additionally, from a procedural standpoint, initiating civil

recovery proceedings may offer additional advantages such as a lower standard of proof or the

possibility of carrying out proceedings in the absence of a defendant who has been properly notified.

Greek civil law recognises tort claims arising from the commission of unlawful acts.84 As

such, the Hellenic State can bring a civil action for asset recovery of criminal assets: (i) as a civil

plaintiff in penal proceedings; or (ii) as a plaintiff in civil proceedings.

With regard to the first category, the Hellenic State may, through the Legal Council of State,

participate as a civil plaintiff in a penal trial to claim compensation against a defendant. According to

Article 65(2) CPP, the penal court is required to consider and rule on the civil claim. In exceptional

circumstances, the court may refer the civil action to the civil courts if the claimed damages exceed

15 000 drachmas (EUR 44). Additionally, a criminal court may not rule on a civil claim if it decides

that a prosecution cannot go forward or acquits the defendant for any reason.

Secondly, the act of paying a bribe may be considered as an unlawful act in the sense of

Articles 914 and 932 of the Civil Code. This would enable the Hellenic State to file a civil action –

also through the Legal Council of State – seeking financial compensation from the alleged wrongdoer.

However, such a practice is seldom and almost never occurs in practice.85 Rather, the Hellenic State

usually chooses to participate in penal proceedings as a civil plaintiff.86 Lastly, if the Hellenic State

indeed decides to seek compensation via civil proceedings but the civil court does not issue a final

decision, it may then file the same claim before a penal court upon the conclusion of the civil

proceedings.

81 Court of Audit Response to Asset Recovery Questionnaire, p. 3, q. 1 and p. 5, q. 6. 82 Article 53(a) of UNCAC provides that States Parties should allow requesting jurisdictions to claim compensation for

damages by initiating civil actions to establish title to or ownership of property acquired through corruption. 83 Stolen Asset Recovery Initiative – StAR, Asset Recovery Handbook (2011), p. 159. 84 Articles 914 and 932 of the Greek Civil Code allow plaintiffs to seek compensation for pecuniary or moral harm or mental

anguish (in case of death). 85 From research and discussions with Judges. 86 Supreme Court (Areios Pagos) decisions: (penal) 268/1989, 489/1996.

Recommendation

• Greece should consider launching civil proceedings under the Civil Code before the Civil Courts to seek compensation for corruption, especially where penal proceedings cannot be instituted or a prosecution does not go forward (e.g. due to the statute of limitations or the death of the defendant).

IV. INTERNATIONAL ASSET RECOVERY

Greek authorities dispose of a number of resources, networks and international legal

instruments to identify, trace, freeze, seize and ultimately confiscate assets obtained through criminal

activity. In large part, the process involves mutual legal assistance (MLA) but may also be carried out

through informal co-operation.

A. Tracing Assets in Foreign Jurisdictions

The tracking of assets located overseas is an aspect of MLA in corruption cases. Much of

what is said in two deliverables on MLA in the OECD Greece Anti-corruption Technical Assistance

Project87 is therefore also applicable and will not be repeated in detail here. In brief, assistance can be

sought through bilateral and multilateral treaties; non-treaty based co-operation; and informal co-

operation and information exchange.

1. Treaty-Based and EU Instruments

a) Bilateral MLA Treaties

Greece has 14 bilateral MLA treaties.88 Some treaties89 specifically provide for assistance to

trace, locate or identify assets connected to criminal activity. Other treaties90 provide for general

investigative assistance but do not refer to asset tracing or identification measures. Practitioners have

two options in such cases. They can inquire with their treaty partners whether and to what extent the

types of assistance that are available can be used to trace assets (e.g. whether general search and

seizure provisions could nevertheless be used to obtain bank records). Alternatively, practitioners

should use other channels, such as the multilateral instruments described below.

b) Council of Europe Convention on Laundering, Search, Seizure and Confiscation of

Proceeds from Crime and on the Financing of Terrorism (Warsaw Convention of 2005)

The Warsaw Convention of 2005 was transposed into Greek legislation through

Law 4478/2017.91 Article 16 of the Convention requires relevant authorities in Member States to

87 See Deliverables on Output 9.3-9.4: “Mutual Legal Assistance - Assessment and revision of the current legal and

regulatory framework” and Output 9.5: “Guidelines to Practitioners on Seeking Mutual Legal Assistance in Corruption

Cases”. 88 Greece currently has bilateral MLA relations with the following countries: Albania, Armenia, Australia, Canada, China,

Cyprus, Egypt, Georgia, Lebanon, Mexico, Russia, Syria, Tunisia, and the United States of America. Additional bilateral

treaties are not in use because cooperation with those countries is predicated on the 1990 Convention applying the Schengen

Agreement or the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959. 89 For example, Greece’s treaties with Australia (Article 17(1)), Canada (Article 13(1)) and US (Article 13(2)). 90 See for example the Greece-Mexico MLA treaty. 91 Law 4478/2017 ratified the Warsaw Convention (Council of Europe Convention on Laundering, Search, Seizure and

Confiscation of the Proceeds from Crime and on the Financing of Terrorism - 2005), and transposed into Hellenic legislation

EU Council Framework Decision 2003/577/JHA on the execution in the European Union of orders freezing property or

assist with the identification and tracing of instrumentalities, proceeds and other property subject to

confiscation.92 The Convention also stipulates that Member States provide, upon request, information

regarding bank accounts (Article 17), banking transactions (Article 18), and even monitoring of bank

transactions (Article 19). Greek authorities are also required to provide the reasons for which they

seek the information as well as additional details regarding the overall investigation.

c) Council of Europe Convention on Laundering, Search, Seizure and Confiscation of

the Proceeds of Crime (1990)

The Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the

Proceeds of Crime (1990) (Convention of 1990) facilitates international co-operation and mutual

assistance in investigating crime and tracking down, seizing and confiscating the proceeds thereof.

Much like Article 16 of the Warsaw Convention, Articles 8 and 9 of the Convention of 1990 provides

that Member States shall provide each other, upon request, the widest measure of assistance in the

identification and tracing of instrumentalities, proceeds and other property liable to confiscation.93

d) United Nations Convention against Corruption (UNCAC)

Article 46(3) of UNCAC provides that MLA may be requested for, among other things:

(i) examining objects and sites; providing information; and, (ii) identifying or tracing proceeds of

crime, property, instrumentalities or other things for evidentiary purposes. In urgent situations, Article

46(14) enables States Parties to make requests orally with subsequent written confirmation.

e) United Nations Convention against Transnational Organised Crime (UNTOC)

Articles 13(2) and 18(g) of UNTOC allow Greece to request another State Party to take measures to identify and trace proceeds of serious transnational organised crime, property, equipment or other instrumentalities for the purpose of eventual confiscation to be ordered either by Greece or by the requested State Party.

f) OECD Anti-Bribery Convention

Greece and 42 other countries are Parties to the Convention on Combating Bribery of Foreign

Public Officials in International Business Transactions. The Convention covers only the bribery of

foreign public officials in international business transactions and related money laundering and

accounting offences. Article 9 of the Convention requires Parties to provide prompt and effective

MLA to another party for the purpose of investigations and proceedings relating to offences in the

Convention. Article 9(3) states that “A Party shall not decline to render mutual legal assistance for

criminal matters within the scope of this Convention on the ground of bank secrecy.”

g) European Investigation Orders

Article 28 of EU Directive 2014/41/EU (concerning the European Investigation Order in

criminal matters) provides for the monitoring of banking or other financial operations that are being

carried out through one or more specified accounts. Under the Directive, EU Member States are

evidence, EU Council Framework Decision 2005/212/JHA on Confiscation of Crime-Related Proceeds, Instrumentalities

and Property, EU Council Framework Decision 2006/783/JHA on the application of the principle of mutual recognition to

confiscation orders, as amended by EU Council Framework Decision 2009/299/JHA, and EU Directive 2014/42/EU on the

freezing and confiscation of instrumentalities and proceeds of crime in the European Union. 92 Such assistance shall include any measure providing and securing evidence as to the existence, location or movement,

nature, legal status or value of the property sought. 93 Such assistance shall include any measure providing and securing evidence as to the existence, location or movement,

nature, legal status or value of the property sought.

obligated to recognise and carry out investigative requests from other EU Member States, just as they

would with a decision coming from their own authorities. The Directive provides practitioners with

guidance regarding the scope of an EIO (Article 3), the types of proceedings for which an EIO can be

issued (Article 4), the content and form of an EIO (Article 5), and the procedures and conditions for

issuing and transmitting an EIO (Articles 6-8). In September 2017, the Hellenic Parliament passed

Law 4489/2017 transposing EU Directive 2014/41/EU into Greek Law.94

2. Non-Treaty Based MLA

Article 457 CPP governs outgoing requests for non-treaty MLA. Article 457(1) only

explicitly allows Greek judicial authorities to seek the following types of MLA: (i) examination of

witnesses and defendants; (ii) onsite inspections; (iii) expert opinions; and, (iv) seizure of evidence.

Recommendation

• Amend legislation to enable Greek authorities to seek MLA involving the tracing and identification of direct and indirect proceeds of crime.

3. Informal Co-operation and Information Exchange

Greek practitioners may resort to three informal channels of co-operation when tracing assets:

the Asset Recovery Office under the Camden Assets Recovery Interagency Network (CARIN); the

International Police Co-operation Division; and the Hellenic FIU.

a) Asset Recovery Office (ARO)

Greece’s National ARO is housed within SDOE.95 Under Article 108(3) of Presidential

Decree 111/2014, the ARO is responsible for carrying out, among others, the following functions:

being the national ARO according to European law, and a CARIN contact point, cooperating with

domestic and foreign competent parties for the detection of products and other assets originating from

criminal activities and which may be the subject of mutual legal assistance for freezing or seizure or

confiscation in criminal cases, handles Mutual Administrative Assistance requests from and to the

counterparts of the Member States of the European Union, the European Anti-Fraud Office (OLAF)

as well as third countries, collects and transmits Irregularity Factsheets and Irregularity Reports, as

well as any other data deemed necessary, in accordance with European law, within the framework of

its anti-fraud powers and has the coordination responsibility on behalf of SDOE regarding the

operation of the Antifraud Information System (AFIS).

Greece’s ARO also serves the national contact point for CARIN,96 which allows Greek law

enforcement officers (e.g., police, customs), prosecutors and judges to request information from

foreign jurisdictions through the Greek ARO. When the Greek ARO receives a response from the foreign CARIN contact point, it provides the information to the requesting Greek authority. The

Hellenic Police also serves as a CARIN contact point for Greece.

94 Article 30 of Law 4489/2017 transposed Article 28 of EU Directive 2014/41/EU. Greece seems to currently lack the

necessary infrastructure in order to fully implement the Directive, and in particular Article 28 of the Directive (Article 30 of

the implementing Law 4489/2017) regarding the monitoring of banking of other financial operations that are being carried

out through one or more specified accounts (i.e. real time account monitoring). Greece has stated that will implement real

time account monitoring, as foreseen by Article 28 of the Directive and Article 30 of Law 4489/2017, in the context of the

Central Registry of Bank and Payments. 95 Established pursuant to Article 88(2) of Law 3842/2010 (amended by Article 1 of Law 4254/2014). 96 CARIN is an informal network of contacts and a cooperative group focused on tracing and confiscating the proceeds of

crime. It is a network of practitioners from 53 jurisdictions.

Recommendation

• Encourage Greek ARO to identify areas deserving improvement with respect to obtaining information from foreign jurisdictions and engage in regular dialogue with key partners to streamline the exchange of information between AROs and CARIN contact points.

b) International Police Co-operation Division

Through the International Police Cooperation Division (IPCD) of the Hellenic Police, Greek

law enforcement authorities may seek information from foreign partners and organisations for the

purpose of tracing and identifying assets. Article 8 of Presidential Decree 178/2014, governs

practitioners’ access to three channels: (i) INTERPOL; (ii) EUROPOL; and, (iii) SIRENE

(Supplementary Information Request at the National Entries).

Articles 8(5)(c) and (k) permit Greek law enforcement authorities to request information from

foreign INTERPOL agencies to determine the location and ownership of assets. Such requests may

involve the exchange of financial information and registration records for vehicles, property, and

other types of assets believed to be connected to criminal activity.

Articles 8(6)(b) and (g) enable Greek authorities to, through the IPCD, submit requests for

information and intelligence to other EUROPOL national units and EUROPOL itself. Additionally,

pursuant to Article 9(3) of the Europol Convention,97 Greece’s liaison officer assigned to EUROPOL

may offer and seek access to other national units and facilitate the rapid exchange of information,

including requests to trace assets or other types of financial activity. Article 9 even permits liaison

officers to exchange information that covers crimes outside the competence of Europol, as far as

allowed by national law.

Lastly, Article 8(4)(i) enables the SIRENE bureau (operated by the IPCD) to access and

search the Schengen Information System (SIS II)98 and if necessary, request more detailed

information from the Member State concerned.99 SIS II alerts often include information essential for

tracing assets and furthering criminal investigations, such as activity involving vehicles, boats,

aircrafts, containers, firearms, stolen documents, banknotes, and other types of property.

c) Hellenic FIU

Article 7A(v) of Law 3691/2008 (AML Law), provides that the Hellenic FIU shall exchange

information with its foreign counterparts, in particular the EU Financial Intelligence Units Network

(FIU-Net)100 and the Egmont Group.101 Article 40(2) enables the Hellenic FIU to exchange

information with foreign counterparts, although the modalities for such exchange may be subject to

relevant memoranda of understanding (MOUs). Currently, the Hellenic FIU has entered into 11 such

MOUs.102 FIU representatives have previously stated that they do not consider the existence of an

MOU essential in order to exchange information with foreign FIUs.103 However, the practice of

foreign FIUs may very well differ.

97 Council Act of 26 July 1995 drawing up the Convention based on Article K.3 of the Treaty on European Union, on the

establishment of a European Police Office (Europol Convention)(95/C 316/01) (amended by Council Decision of 6 April

2009 establishing the European Police Office (Europol) (2009/371/JHA). 98 Council Decision 2007/533/JHA of 12 June 2007 on the establishment, operation and use of the second generation

Schengen Information System (SIS II), OJ, L 205/63, 7.8.2007. 99 Council of the European Union, Note from the Presidency to the Working Party on Information Exchange and Data

Protection (DAPIX), Document 6704/16, 7 March 2016, p. 47. 100 https://www.europol.europa.eu/about-europol/financial-intelligence-units-fiu-net 101 https://www.egmontgroup.org/ 102 Ukraine, Italy, France, Belgium, Romania and Singapore, among others. 103 Financial Action Task Force, Third Mutual Evaluation on Anti-Money Laundering and Combating the Financing of

Terrorism, 29 June 2007, para. 857. (www.fatf-gafi.org/media/fatf/documents/reports/mer/MER%20Greece.pdf).

B. Freezing, Seizure and Confiscation

Once the assets located overseas have been identified, the next step is for Greek authorities to

freeze, seize and confiscate the assets. In this respect, Greece has adhered to a number of other

multilateral treaties pursuant to which Greek authorities may seek the execution of freezing and

confiscation orders overseas. Greece has adhered to a number of other multilateral treaties pursuant to

which Greek authorities may seek the execution of freezing, seizure, and confiscation orders overseas.

The process generally involves MLA channels. In general, such orders by Greek authorities are either:

(i) enforced directly by the requested foreign jurisdiction; or, (ii) incorporated into an order issued by

the competent domestic entity within the foreign country and then executed pursuant to that country’s

domestic legislation. The latter option is somewhat less common, however, and depends on the

several factors such as the requested country’s legal framework and the familiarity of its judges with

the procedure.

With regard to bilateral MLA treaties, as stated above, some bilateral MLA treaties contain

specific provisions that require Greek governmental authorities and their counterparts to freeze or

confiscate assets resulting from criminal activity.104 Where no bilateral MLA treaty provides for

such assistance, Greek authorities should resort to multilateral instruments described below.

With regard to non-treaty based requests seeking the execution of freezing or confiscation

orders, the CPP does not provide for these types of assistance (please see the Recommendation in the

International Tracing section above).

Lastly, Greek authorities dispose of several multilateral conventions for the purpose of

executing freezing and confiscation measures overseas.

Pursuant to the Warsaw Convention of 2005, Greek authorities may also seek to freeze or

confiscate the proceeds of crime pursuant to Articles 21 and 23 of the Convention, respectively.

Additionally, Articles 11 and 13 of the Council of Europe Convention of 1990 provide for the

execution of Greek freezing and confiscation orders, respectively (the latter Article being identical to

Article 23 of the Warsaw Convention). Additionally, Article 47 enables FIUs to submit urgent

requests to counterpart FIUs to freeze specific transactions that are related to money laundering. The

requested FIU blocks the transaction for a specified amount of time while the requesting FIU submits

an official MLA request seeking further action as appropriate (e.g. extension of the freezing or

confiscation).

Greek authorities may also seek assistance with respect to the execution of freezing and

confiscation orders by the competent authorities of other EU Member States. For example,

Framework Decision 2003/577/JHA allows authorities of EU Member States to recognise and execute

freezing orders issued for the purposes of securing evidence or the subsequent confiscation of

property. Additionally, EU Framework Decision 2006/783/JHA establishes the rules under which a

Member State shall recognise and execute in its territory a confiscation order issued by a court

competent in criminal matters of another Member State. Such execution does not require additional recognition formalities or procedures. The abovementioned EU Framework Decisions apply to cases

involving corruption, fraud, money laundering, and participation in a criminal organisation, among

other offences.

Greek authorities may also resort to United Nations instruments such as UNCAC and

UNTOC in order to freeze or confiscate assets overseas so long as the relevant request involves

criminal activity falling within the instruments’ scope of application. Article 46(1) of UNCAC

provides that MLA may be requested for, among other things, search and seizure and freezing

proceeds of corruption. Additionally, Article 55 of UNCAC enables Greek authorities to request that

other States Parties to the Convention give effect and carry out confiscation orders with respect to the

instrumentalities and proceeds of corruption and bribery.

104 For example, see treaties with Australia (Article 17(2)), Canada (Article 13(2)) and the US (Article 17(2)).

Articles 13(2) and 18(3)(c) of UNTOC allow Greece to request another State Party to freeze

or seize proceeds of serious transnational organised crime, property, equipment or other

instrumentalities for the purpose of eventual confiscation. With respect to confiscation, Article 13(1)

allows Greek authorities to seek the enforcement of a confiscation order by the competent authorities

in another State Party (either directly or through a domestic order).

C. Asset Repatriation

Once a foreign court issues a final order of confiscation for assets, Greek authorities must

secure their return. Such repatriation of assets may take place pursuant to (1) treaties to which Greece

is a party or (2) the judicial process of the foreign jurisdiction.

Greece is a party to some bilateral MLA treaties that provide for the repatriation of assets.105

Additionally, the following multilateral instruments to which Greece is a party allow for repatriation:

(i) UNTOC, Article 14; (ii) UNCAC, Article 57(3)(a) and (b); (iii) Warsaw Convention of 2005,

Article 25(1); and, (iv) Council of Europe Convention of 1990, Article 15.106

Additionally, under UNCAC, UNTOC and the Warsaw Convention of 2005 provide that

Greece may enter into agreements with other States Parties for the purpose of sharing confiscated

assets (i.e. asset-sharing agreements).107

In the absence of a specific legal provision or agreement providing for asset repatriation or

asset sharing, Greek authorities may resort to Article 16(1) of EU Framework Decision

2006/783/JHA. The Decision allows funds that have been obtained from the execution of a

confiscation order to be disposed of as follows: (i) if the amount obtained is below EUR 10 000 or the

equivalent to that amount, the amount shall accrue to the executing State; (ii) in all other cases, 50%

of the amount which has been obtained shall be transferred by the executing State to the issuing State.

Lastly, Greek authorities may also seek the repatriation of assets located overseas through

domestic court proceedings in the foreign jurisdiction. Such returns can take place if the court orders

compensation or damages to be made directly to the Greek government. Additionally, repatriation

may be made pursuant to settlement agreements or plea bargains concluded by foreign jurisdictions.

This practice has been increasing in frequency (such as through settlements with the United States

Department of Justice and repatriation of disgorgements) and may be considered by competent Greek

authorities when dealing with foreign jurisdictions.

V. COLLECTING DATA ON ASSET RECOVERY

EU Directive 2014/42 requires Member States to keep statistics on freezing and seizure at a

central level in order to increase reliable data and identify areas deserving of improvement. Greek law

enforcement authorities do not maintain comprehensive statistics and have only some non-uniform

and centralised data. For example, some stakeholders are uncertain about the types of cases that should be recorded108 while others keep track of freezing and seizure orders not for statistical

purposes but to determine when to request extensions of such orders.109

105 For example, see treaties with Australia (Article 17(5)), Canada (Article 13(2)) and the US (Article 17(3)). 106 UNCAC and UNTOC only allow for the repatriation of assets for offences falling within the scope of their respective

instruments. 107 Such agreements may either be standing or case-specific agreements. For example, the United States has entered into

standing sharing agreements with 20 countries. Such agreements generally provide the circumstances in which assets may be

shared, the channels of communication between authorities in each State, the procedures for requesting asset sharing, and

how assets are to be paid. 108 Consultation meeting with SDOE, February 2017. 109 Consultation meeting with ECP, February 2017.

According to Article 88 of Law 3842/2010, law enforcement and judicial authorities are

required to “promptly inform SDOE of all freezing, seizure and confiscation of assets and capital in

Greece. Such an obligation serves two objectives. First, it enables SDOE to maintain a comprehensive

record of all asset recovery measures carried out by Greek authorities. Secondly, it ensures that SDOE

is able to readily access information and quickly respond to requests from Europol and the EU

member states, in its capacity as a national contact point for Camden Assets Recovery Interagency

Network (CARIN).

However, according to SDOE such reporting is not done in practice despite SDOE’s efforts to

provide guidance to judicial and prosecutorial authorities on the types of cases that should be

reported.110

Further, according to Article 40 of Law 3691/2008 (AML Law) the FIU is required to report

all asset freezing measures taken to SDOE, if said assets fall under the latter’s competence.

Recommendations

• In line with Article 11 of EU Directive 2014/42, maintain comprehensive statistics regarding the number of freezing orders issued in corruption cases, the estimated value of property frozen, and the number of requests for freezing orders sent to foreign States for execution.

• Take necessary measures in order law enforcement and judicial authorities to promptly inform the ARO of SDOE of all freezing, seizure and confiscation of assets and capital as foreseen by Article 88 of Law 3842/2010.

• Ensure that the FIU reports all asset freezing measures taken to SDOE, if said assets fall under SDOE’s competence

VI. ANNEXES

The draft legislative provisions below are intended as a general guide and a starting point for

implementing the recommendations described earlier in this document. As the Greek authorities have

indicated, the provisions would need to further adjusted and adapted, so as to abide by the standards

of Law 4048/2012 (FEK A’34/23.02.2012).

A. Draft Revised CPP Provision on Asset Freezing

Article XX CPP - Freezing of Assets

1. All types of assets described in Article 76(1) PC are subject to freezing measures provided that there are well-founded suspicions that the assets are the direct or indirect proceeds of an offence for which an investigation is underway or have been used in or are destined to be used in an offence for which an investigation is underway.

2. Assets described in Article 76(1) belonging to third parties are subject to freezing measures if there are well-founded suspicions that the assets are the direct or indirect proceeds of criminal activity. A third party is not subject to freezing measures if said third party

Άρθρο ΧΧ ΚΠΔ - Δέσμευση περιουσιακών στοιχείων

1. Τα αναφερόμενα στο άρθρο 76 παρ.1 ΠΚ περιουσιακά στοιχεία υπόκεινται σε δέσμευση εφόσον υπάρχουν βάσιμες υπόνοιες ότι τα παραπάνω περιουσιακά στοιχεία αποκτήθηκαν αμέσως ή εμμέσως από κακούργημα ή πλημμέλημα για το οποίο διεξάγεται ανάκριση ή έχουν χρησιμοποιηθεί ή προορίζονται να χρησιμοποιηθούν για την τέλεση αδικημάτων για τα οποία διεξάγεται ανάκριση.

2. Η δέσμευση των αναφερόμενων στο άρθρο 76 παρ.1 ΠΚ περιουσιακών στοιχείων επιβάλλεται σε τρίτο αν υπάρχουν βάσιμες υποψίες ότι

110 Consultation meeting with SDOE (Athens), February 2017.

is able to meet the requirements listed in Article 76(2) PC.

3. During a main investigation, the freezing is ordered by the investigating judge with the consent of the public prosecutor. In case of a preparatory examination or preliminary investigation, the freezing is ordered by a single judge of the competent Court of First Instance.

4. The order has the power of a seizure report and is issued without prior summoning of the accused or third person. The order is served upon the accused and the public registrar authority or the credit or financial institution where the investigating judge or the public prosecutor is based. In case of jointly owned assets the order must also be served upon co-owners.

5. The freezing measure applies from the time of service of the order upon the public authority credit or financial institution. From this time, any juridical act, mortgage, or other act registered by the mortgage registry is null and void. The safe deposit box cannot be opened and any withdrawal of money from an account or any sale of securities or financial products is null and void. Any public official or management officer or employee of the credit or financial institution who intentionally violates the provisions of this paragraph shall be punished with a term imprisonment of up to 2 years and a pecuniary penalty.

6. A party with an interest in an asset subject to freezing has the right to request the review of the order, by an application addressed to the issuing authority within 20 days from the service of the order. If the issuing authority upholds the issuance of the order the accused, the suspect or interested third person may file an appeal within 20 days from the decision on the review before a single judge of the competent Court of Appeal. The submission of the application for review or the appeal shall not suspend the enforcement of the order.

7. In cases where a delay in obtaining the consent of the prosecutor or an order of the judge of the competent Court of First Instance poses an imminent danger of loss of the asset in question, the investigative judge or the prosecutor may attempt the necessary freezing measures in order to secure the asset. In such cases, the consent of the prosecutor or the order of the issuing judge of the competent Court of First Instance must be sought within 72 hours of freezing; otherwise the freezing order is automatically lifted.

8. The freezing measures are lifted after 18 months from the date of the issuance of the order unless the issuing authority decides with a reasoned decision to extend the duration. The extension of an order may be appealed based on the procedure described in

αποκτήθηκαν αμέσως ή εμμέσως από εγκληματική δραστηριότητα. Ο τρίτος δεν υπόκειται σε μέτρα δέσμευσης εάν δύναται να αποδείξει την πλήρωση των προϋποθέσεων κατ’ άρθρο 76 παρ.2 ΠΚ.

3. Όταν διεξάγεται κύρια ανάκριση, τη δέσμευση διατάζει ο ανακριτής με σύμφωνη γνώμη του εισαγγελέα. Σε περίπτωση διεξαγωγής προκαταρκτικής εξέτασης ή προανάκρισης, η δέσμευση διατάσσεται από το αρμόδιο μονομελές πρωτοδικείο.

4. Η διάταξη επέχει θέση έκθεσης κατάσχεσης και εκδίδεται χωρίς προηγούμενη κλήση του κατηγορουμένου ή του τρίτου. Η διάταξη επιδίδεται στον κατηγορούμενο και στην αρμόδια δημόσια αρχή ή το πιστωτικό ίδρυμα ή τον χρηματοπιστωτικό οργανισμό του τόπου όπου εδρεύει ο ανακριτής ή ο εισαγγελέας. Σε περίπτωση κοινών περιουσιακών στοιχείων η διάταξη επιδίδεται και στον τρίτο.

5. Η δέσμευση ισχύει από τη χρονική στιγμή της επίδοσης στην αρμόδια δημόσια αρχή ή το πιστωτικό ίδρυμα ή τον χρηματοπιστωτικό οργανισμό. Από τότε κάθε δικαιοπραξία, υποθήκη, ή άλλη πράξη που εγγράφεται στο βιβλίο του υποθηκοφυλακείου είναι άκυρη. Δημόσιο λειτουργός, διευθυντικό στέλεχος ή υπάλληλος του πιστωτικού ιδρύματος ή του χρηματοπιστωτικού οργανισμού, που παραβαίνει με δόλο τις διατάξεις της παραγράφου αυτής, τιμωρείται με φυλάκιση μέχρι δύο ετών και με χρηματική ποινή.

6. Οποιοσδήποτε δικαιολογεί έννομο συμφέρον επί περιουσιακού στοιχείου υποκείμενου σε δέσμευση, δικαιούται να ζητήσει την άρση της διάταξης, με αίτηση που απευθύνεται προς την εκδούσα αρχή μέσα σε είκοσι μέρες από την επίδοση διάταξης. Αν η εκδούσα αρχή απορρίψει την προσφυγή ο κατηγορούμενος, ο ύποπτος ή ο ενδιαφερόμενος τρίτος δύνανται να καταθέσουν ένδικο μέσο κατά της απορριπτικής απόφασης μέσα σε είκοσι μέρες από την απόφαση στο αρμόδιο κατά τόπον μονομελές εφετείο. Η υποβολή της προσφυγής ή του ενδίκου μέσου δεν αναστέλλουν την εκτέλεση της διάταξης.

7. Αν από την καθυστέρηση της σύμφωνης γνώμης του εισαγγελέα ή της διάταξης του αρμόδιου πρωτοδικείου μπορεί να τεθεί σε άμεσο κίνδυνο ή να απολεσθεί το περιουσιακό στοιχείο ο εισαγγελέας ή ο ανακριτής μπορεί να προχωρήσει σε όλες τις απαραίτητες ενέργειες της προκειμένου να διασφαλίσουν το περιουσιακό στοιχείο. Στην περίπτωση αυτή ο εισαγγελέας ή ο ανακριτής είναι υποχρεωμένοι να εισαγάγουν το ζήτημα στο αρμόδιο πρωτοδικείο ή εισαγγελέα εντός 72 ωρών. Διαφορετικά η ισχύς της σχετικής διάταξης παύει αυτοδικαίως με

paragraph 6 of this Article. τη λήξη της προθεσμίας.

8. Η δέσμευση παύει αυτοδικαίως με την παρέλευση 18 μηνών από την ημερομηνία έκδοσης της διάταξης, εκτός αν η εκδούσα αρχή αποφαίνεται με ειδικά αιτιολογημένο απόφαση για την παράταση της δέσμευσης. Η παράταση μπορεί να αποτελέσει αντικείμενο προσφυγής σύμφωνα με τη διαδικασία της παρ. 6.

B. Draft Penal Code Provision on Confiscation

Article 76 PC - Confiscation

1. Assets including property, equipment, instrumentalities, as well as accounts, securities or financial products kept at a credit or financial institution, including any safe deposit boxes of the accused, including those owned jointly with any other person, that are the direct or indirect proceeds of a felony or an intentional misdemeanour offence or have been used in or are destined to be used in the commission a felony or an intentional misdemeanour offence and belong to or are in the possession of the principal or of any one of the accomplices are subject to confiscation. Assets that have been transformed or converted, in part or in full, into other property or have been intermingled with property acquired from legitimate sources are also subject to confiscation up to the assessed value of the intermingled asset. Income or other benefits derived from such assets, from property through which such assets have been acquired or from property with which such assets have been intermingled are also subject to confiscation to the same extent as the assets.

2. The assets mentioned in paragraph 1 of the present Article that belong to a third party are subject to confiscation, unless the third party is able to demonstrate that it: (i) has a legitimate legal interest in the assets; (ii) cannot be imputed to have participated, colluded, or otherwise been involved in the criminal activity carried out by the accused or in any other serious offence that is connected to the proceedings; and, (iii) lacked knowledge and did not intentionally or wilfully ignore the illegal source, content, use, or purpose of the assets. In line with Article XX(2) CPP, the requirements in this paragraph apply to freezing measures.

3. If the assets subject to confiscation in of paragraph 1, no longer exist, have not been found, cannot be seized or belong to a third party against whom it is not possible to impose confiscation, assets of the liable person of equal value to those in the time of the conviction, as specified by the court, are confiscated. The court

Άρθρο 76 ΠΚ - Δήμευση

1. Περιουσιακά στοιχεία συμπεριλαμβανομένης της κινητής και ακίνητης περιουσίας, κάθε είδους λογαριασμών, τίτλων ή χρηματοπιστωτικών προϊόντων που τηρούνται σε πιστωτικό ίδρυμα ή χρηματοπιστωτικό οργανισμό, καθώς και των θυρίδων θησαυροφυλακίου, έστω και κοινών οποιουδήποτε είδους με άλλο πρόσωπο, που προέρχονται από τέλεση κακουργήματος ή πλημμελήματος το οποίο πηγάζει από δόλο ή έχουν χρησιμοποιηθεί ή προορίζονται να χρησιμοποιηθούν για την τέλεση κακουργήματος ή πλημμελήματος το οποίο πηγάζει από δόλο και ανήκουν ή βρίσκονται στην κατοχή του αυτουργού ή κάποιου από τους συμμέτοχους υπόκεινται σε δήμευση. Περιουσιακά στοιχεία που μεταφέρθηκαν ή μετατράπηκαν, εν μέρει ή πλήρως, σε άλλα περιουσιακά στοιχεία ή έχουν αναμιχθεί με περιουσιακά στοιχεία που αποκτήθηκαν από νόμιμες πηγές, υπόκεινται επίσης σε δήμευση μέχρι την καθορισμένη αξία του αναμειχθέντος στοιχείου. Το εισόδημα ή άλλα οφέλη που απορρέουν από τα εν λόγω στοιχεία, από περιουσία που αποκτήθηκε με τα εν λόγω στοιχεία ή από περιουσία με την οποία έχουν αυτά αναμιχθεί υπόκεινται επίσης σε δήμευση στον ίδιο βαθμό, όπως τα προϊόντα του κακουργήματος ή πλημμελήματος.

2. Τα αναφερόμενα στην παρ. 1 περιουσιακά στοιχεία που ανήκουν σε τρίτον υπόκεινται σε δήμευση, εκτός εάν ο τρίτος δύναται να αποδείξει ότι: (α) διαθέτει έννομο συμφέρον επί των περιουσιακών στοιχείων, (β) δεν τεκμαίρεται ότι ήταν συνεργός ή άλλως συμμετείχε στην εγκληματική δραστηριότητα που ασκεί ο κατηγορούμενος ή σε οποιαδήποτε άλλη σοβαρή παράβαση που συνδέεται με τη διαδικασία και (γ) δε γνώριζε και δεν αγνοούσε εκ προθέσεως την παράνομη αιτία, περιεχόμενο, χρήση ή προορισμό των περιουσιακών στοιχείων. Σύμφωνα με το άρθρο ΧΧ(2) ΚΠΔ, οι ανωτέρω προϋποθέσεις εφαρμόζονται επίσης στα μέτρα δέσμευσης.

may also impose a fine up to the amount of the value of assets, if it considers that there are no additional assets for confiscation or the existing assets are of less value than of those subject to confiscation.

4. Where confiscation would be disproportionate or result in hardship to the accused or a third party, the competent court may order limited confiscation, impose a pecuniary penalty, or order both limited confiscation and a pecuniary penalty.

5. When no criminal proceedings have been initiated, confiscation may still be ordered when: (i) the offender has died; (ii) the offender cannot be identified or found; or (iii) the prosecution was terminated or declared inadmissible. If no criminal proceedings have been initiated, confiscation is ordered by a decree of the judicial council of misdemeanours having competence ratione loci, and in cases where the prosecution was terminated or declared inadmissible by a decree of the competent judicial council or the court decision terminating prosecution or declaring prosecution inadmissible. The provisions of Articles 492 and 504(3) of the Code of Penal Procedure apply by way of analogy to this case.

3. Αν τα περιουσιακά στοιχεία που υπόκεινται σε δήμευση σύμφωνα με την παρ.1, δεν υπάρχουν πλέον, δεν έχουν βρεθεί, δεν είναι δυνατόν να κατασχεθούν ή ανήκουν σε τρίτο σε βάρος του οποίου δεν είναι δυνατόν να επιβληθεί δήμευση, δημεύονται περιουσιακά στοιχεία του υπαιτίου ίσης αξίας με αυτά κατά το χρόνο της καταδικαστικής απόφασης, όπως την προσδιορίζει το δικαστήριο. Το δικαστήριο μπορεί να επιβάλλει και χρηματική κοινή μέχρι το ποσό της αξίας των περιουσιακών στοιχείων, αν κρίνει ότι δεν υπάρχουν πρόσθετα περιουσιακά στοιχεία για δήμευση ή τα υπάρχοντα υπολείπονται της αξίας των υποκειμένων σε δήμευση.

4. Εφόσον η κατάσχεση είναι στη συγκεκριμένη περίπτωση δυσανάλογη ή υπάρχει κίνδυνος να αποστερήσει τον κατηγορούμενο ή τρίτο από πράγμα που εξυπηρετεί τον αναγκαίο βιοπορισμό, το αρμόδιο δικαστήριο μπορεί να διατάξει περιορισμένη κατάσχεση, να επιβάλει χρηματική ποινή ή να διατάξει αμφότερα.

5. Δήμευση διατάσσεται και όταν δεν ασκήθηκε δίωξη στις ακόλουθες περιπτώσεις: (α) λόγω θανάτου του υπαιτίου (β) λόγω αδυναμίας ταυτοποίησης ή ταυτοποίησης του υπαιτίου ή (γ) λόγω οριστικής παύσης ή κήρυξης της δίωξης ως απαράδεκτης. Αν δεν ασκήθηκε δίωξη η δήμευση διατάσσεται με βούλευμα του κατά τόπον αρμόδιου συμβουλίου πλημμελειοδικών και στις περιπτώσεις που δίωξη έπαυσε οριστικώς ή κηρύχθηκε απαράδεκτη με βούλευμα του δικαστικού συμβουλίου ή με απόφαση του δικαστηρίου που παύει ή κηρύσσει απαράδεκτη την ποινική δίωξη. Οι διατάξεις του άρθρου 492 και του άρθρου 504 παρ. 3 Κ.Π.Δ. εφαρμόζονται αναλόγως και στην προκειμένη περίπτωση.

Guidelines for Practitioners in Greece on

Domestic and International Asset Recovery

This document is published under the responsibility of the Secretary-General of the OECD. The opinions expressed and arguments employed herein do not necessarily reflect the official views of OECD member countries.

This document and any map included herein are without prejudice to the status of or sovereignty over any territory, to the delimitation of international frontiers and boundaries and to the name of any territory, city or area.

This document was produced with the financial assistance of the European Union. The views expressed herein can in no way be taken to reflect the official opinion of the European Union.

About the OECD The OECD is an international organisation in which governments compare and exchange policy experiences, identify good practices in light of emerging challenges, and promote decisions and recommendation to produce better policies for better lives. The OECD’s mission is to promote policies that improve economic and social well-being of people around the world. www.oecd.org About the Greece-OECD Project The Greek government is prioritising the fight against corruption and bribery and, with the assistance of the European institutions, is committed to taking immediate action. Under the responsibility of the General Secretariat against Corruption, Greece’s National Anti-Corruption Action Plan (NACAP) identifies key areas of reform and provides for a detailed action plan towards strengthening integrity and fighting corruption and bribery. The OECD, together with Greece and the European Commission, has developed support activities for implementing the NACAP. This project is funded by the European Union and Greece. www.oecd.org/corruption/greece-oecd-anti-corruption.htm

Please cite this publication as: OECD (2018), Guidelines for Practitioners in Greece on Domestic and International Asset Recovery

GUIDELINES FOR PRACTITIONERS IN GREECE ON DOMESTIC AND INTERNATIONAL ASSET RECOVERY │ 3

TABLE OF CONTENTS

Introduction ..................................................................................................... 4

I. DOMESTIC ASSET RECOVERY.......................................................................... 6

A. BEGINNING AN INVESTIGATION ........................................................................ 6 B. TRACING ASSETS .............................................................................................. 12 C. FREEZING OF ASSETS ........................................................................................ 22 D. SEIZURE OF ASSETS .......................................................................................... 26 E. MANAGEMENT OF ASSETS ............................................................................... 27 F. CONFISCATION OF ASSETS ............................................................................... 28

II. INTERNATIONAL ASSET RECOVERY .............................................................. 34

A. GETTING STARTED: INFORMAL COOPERATION AND INFORMATION EXCHANGE ........................................................................................................ 34

B. MUTUAL LEGAL ASSISTANCE ........................................................................... 40 C. ENFORCING ORDERS ISSUED BY GREEK AUTHORITIES PERTAINING TO ASSETS

LOCATED OVERSEAS ......................................................................................... 50 D. PROCEEDINGS IN FOREIGN JURISDICTIONS..................................................... 50 E. REPATRIATION OF FUNDS ................................................................................ 51

4 │ GUIDELINES FOR PRACTITIONERS IN GREECE ON DOMESTIC AND INTERNATIONAL ASSET RECOVERY

Introduction

Modern day corruption cases frequently have an international dimension. Companies and individuals sometimes bribe officials from other countries to win business and increase profits. The evidence and proceeds of corruption are often moved, disappeared, transferred to third parties, or intermingled with legitimate sources of income to avoid detection and confiscation. Criminal actors not only move or modify the nature of assets at the domestic level, but also resort to spreading their illicitly obtained goods across multiple jurisdictions, even further from the reach of Greek authorities. The ability of Greek practitioners to identify and secure such assets is increasingly important and can be crucial to the successful investigation and prosecution of corruption cases.

Greece’s National Anti-Corruption Action Plan (NACAP) identifies key areas of reform and defines priorities in order to strengthen integrity, transparency and fighting phenomena of corruption.

Through its Greece Technical Assistance Project, the OECD has committed to supporting the Greek authorities and to provide technical guidance for the purpose of implementing the reform agenda in a series of pre-identified areas.

The present document contains guidelines, best practices, and tools relating to asset recovery in corruption cases, and is produced under Outcomes 10.5 and 10.7. The deliverable provides guidance ranging from the beginning (e.g. investigative plan, international dimensions, etc.) to the end of the asset recovery process (e.g. confiscation, asset management, etc.). The document also includes international dimensions of asset recovery such as information cooperation and mutual legal assistance (MLA). In particular, this document is intended for Greek investigators, prosecutors, and judges who are in charge of corruption cases and who wish to

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identify and trace proceeds of corruption or property, equipment or other instrumentalities used in or destined for use in corruption offences, for the purpose of eventual confiscation. The guidelines are meant to be a step-by-step guide that is practical, easy to use and accessible. To avoid overloading the document with detailed information, the guidelines provide links and references to additional materials for consultation.

These guidelines prepared based on experiences and good practices, and only contain guidance on the current legislation in force in Greece, including the specific practices identified by Greek authorities in their responses to a questionnaire in January 2017, and during consultation meetings with OECD staff in Thessaloniki and Athens in February and November 2017.

This document focuses primarily on practices at the operational level in the domain of asset recovery. An assessment of the legal and regulatory framework will be covered by a separate document under Outputs 10.1, 10.2, and 10.7 of the Technical Assistance Project: “Assessment of the Current Legal and Regulatory Framework applicable to Asset Recovery, including International Dimensions and Review of Legal Framework applicable to Asset Recovery and Draft Legislation Proposals.”

This document does not provide in-depth or detailed guidance in the area of MLA generally, and instead focuses primarily on MLA only with respect to tracing, freezing, confiscating and repatriating the proceeds of corruption. General topics relating to MLA are covered in separate publications on MLA and international cooperation (Outputs 9.3-9.4).

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I. DOMESTIC ASSET RECOVERY

A. BEGINNING AN INVESTIGATION

Before carrying out investigative measures or intelligence gathering activities related to asset recovery, Greek authorities must first take special care to design a comprehensive action plan. Such considerations in this respect include understanding the facts of the case, the key players involved, what jurisdictions may eventually be relevant to the investigation, the types of expertise that may be required, and specific team members. Of course, a plan may be modified as the investigation takes its course, but these types of questions and decisions necessarily impact the first stage of momentum in an investigation and should not be overlooked.

1. First steps - establishing an investigative team and plan

An important initial action is to assemble an investigative team, including investigators with the required experience and expertise.1 Investigators should have specialized expertise and practical experience in financial and data analysis, forensic accounting, tracing illicit financial flows, tax knowledge, etc. Investigators should have experience in conducting various types of searches, in employing different types of surveillance, in addition to witness interviews and the like. Prosecutorial authorities should also have similar expertise and be in regular communication with investigative teams to remain aware of any developments and need for quick action.

1 “Investigative teams should include individuals with the expertise necessary to analyse significant volumes of financial, banking, and accounting documents, including wire transfers, financial statements, and tax or customs records. They should also include investigators with experience in gathering business and financial intelligence; identifying complex illegal schemes; following the money trail[…].”Asset recovery Handbook – STAR, p. 23 - https://star.worldbank.org/star/sites/star/files/asset_recovery_handbook_0.pdf

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Once the scope of the investigation has been identified, practitioners should assess the need for international investigative assistance and consider establishing a joint investigative team (JIT), which is a group of law enforcement officials from two or more European Union Member States which carries out criminal investigations in one or more of the Member States represented in the team. JITs offer several advantages2 but may not be available in all corruption cases.3 Therefore, Greek practitioners who are investigating a corruption case and who wish to use a JIT will need to determine whether their case also involves one of these eligible offences.4

Once the investigative team has been assembled, and the scope of the investigation has been identified, an investigation plan should be established, taking into account the particularities and the nature of each case. An important goal to be considered when establishing any investigative plan is identifying and tracing the proceeds of crime or the equipment or instrumentalities used in or destined for use in criminal activity, and freezing them, before they disappear or are dissipated, injected into the legal economy, or used to commit other offences.

The investigation plan is not static, and should be reviewed and if necessary modified, depending on the findings, the course and the needs of the investigation. Another important aspect that has to be considered when establishing/modifying an investigation plan is the permitted duration of each investigation. For example, according to Article 31(3) Code of Penal Procedure (CPP) a preparatory examination can last up to three months and in exceptional cases

2 For more information on JITs, please refer to OECD MLA Guidelines.

3 Under Greek law,3 a JIT may be constituted to investigate only certain

listed offences including forgery (Article 216 Penal Code (PC)), aggravated theft (Article 374 PC), embezzlement (Article 375 PC), and fraud (Article 386 PC). See Articles 13 to 24 of Law 3663/2008.

4 The 29 May 2000 Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union does not restrict JITs to listed offences. Greece, however, is not party to the Convention.

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this time period may be extended up to three more months or, if the nature of the case or of the investigative acts that need to be carried out so require, for a reasonable period of time, by a specially reasoned act of the First Instance or Appeals Prosecutor, as the case may be.

2. Identifying scope of investigation

Investigations should revolve around the type of assets are sought, including: (i) direct and indirect proceeds of corruption; (ii) instrumentalities, property, or equipment used in whole or in part to commit a corruption offence; and, also intermingled assets (i.e. proceeds of crime and instrumentalities that have been intermingled with property acquired from legitimate sources). The scope should also take into consideration third party assets (bona fide and non-bona fide).

Taking into account all available information and pieces of evidence, investigators should try to determine the various types of assets that exist in the case, i.e. direct and indirect proceeds, instrumentalities, and intermingled assets, and what actions are needed in order all these assets to be identified and frozen at an early stage. As such, practitioners should be aware that confiscation covers direct and indirect proceeds of corruption, property, equipment and other instrumentalities and should seek to confiscate not only the direct profit, but also the gains from the crime, such as revenues or profits from a bribery-tainted contract. Practitioners should be aware that Article 76 of the Penal Code (PC) covers both direct and indirect proceeds, as well as instrumentalities.5 In bribery offences, confiscation of gifts and any other assets given should be targeted, as well as objects acquired directly or indirectly from these assets under Article 238 PC. In money laundering or predicate offences, confiscation of assets acquired directly or indirectly from such proceeds and instrumentalities of such offences should also be sought under Article 46 of Law 3691/2008, otherwise known as Greece’s Anti-Money Laundering Law (AML Law).

5 Article 76 (1) PC.

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Concerning intermingled assets, i.e. illegal assets mixed with property acquired from legitimate sources, practitioners can invoke Article 76(1) PC, Article 238 (1)PC or Article 46 (1) AML Law. All articles provide for confiscation up to the assessed value of the intermingled assets.

The scope of the investigation should also be tailored so as to allow for flexibility. A proactive asset recovery investigation is one that critically analyses intelligence gathered to determine next steps and can evolve over time. What is important is that the focus remains on the identification of assets for freezing purposes, in order to make the investigation viable in the long-term.

3. Jurisdiction

In Greece, a number of law enforcement, prosecutorial, and judicial authorities are competent for and may seek the recovery of assets in criminal cases, including corruption cases. At early stages of an investigation, authorities should consider questions relating to their jurisdiction to investigate. General and special investigative officers, prosecutors and investigative judges have jurisdiction and powers as foreseen by the respective provisions of the CPP and other applicable legislation such as the AML Law, and Article 17A of Law 2523/1997. Additionally, there are also provisions applicable to specific bodies such as additional asset tracing provisions applicable to the Hellenic FIU (Article 7B of the AML Law).

Authorities should also consider questions regarding foreign countries that may have an interest in the case, or that would otherwise be able to exercise jurisdiction over the same criminal conduct. It is possible that another State may impose its jurisdiction. Such may be the case if its own national committed the offence or if part of the criminal activity occurred in its jurisdiction (e.g. a phone call agreeing to a bribe, letters sent using its postal system, or an email passing through a server located in its territory). Investigators should therefore be aware of all jurisdictional dimensions of a case and prepare accordingly, in order to ensure proper coordination if necessary. Such measures should only be taken if there is a serious risk of tipping off the criminal actors involved.

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4. Statute of Limitations

Statutes of limitation on the punishability of offences may, if ignored or improperly assessed, may adversely impact investigations and prosecutions. Investigators should therefore bear in mind that Article 111 PC stipulates that the period for prescription is twenty (20) years for felonies punishable by life imprisonment and fifteen (15) years in all other felonies. For misdemeanours, the period for prescription is five (5) years. However, Article 113(1) PC provides that the period for prescription is suspended during the period of time that a prosecution cannot commence or continue. Article 113(2) provides that the prescription is suspended for as long the main proceedings last. Lastly, Article 113(3) PC stipulates that the suspension of the period for prescription cannot last more than five years for felonies, or more than three years for misdemeanours.

Investigators should also have in mind that non-conviction based confiscation is available under AML Law Article 46(3) when the offender has died, or the prosecution has concluded or is “inadmissible” (e.g. time-barred). This provision, like its conviction-based counterpart in Article 46(1)-(2), applies to proceeds of listed offences. This includes domestic and foreign bribery but not all corruption offences in Chapter 12 PC.

Further, Article 76(6) PC provides that where there is no prior conviction or a prosecution was not possible, confiscation may, at the prosecutor's request, be ordered by the court that handled the case or the court of first instance.6

6 Article 76(6) PC also provides for non-conviction based confiscation in cases where the public order is endangered (e.g. explosives, etc.). However, the application of this provision in corruption cases is likely rare. While the language of Article 76(6), on its face, may appear to apply exclusively to security measures, some of its text indicates that the provision may apply in other situations. For example, the second sentence of Article 76(6) states that “[t]he confiscation is also carried out against the heirs if the decision became irreversible while the person against whom the confiscation was committed was alive. Such language does not necessarily require that the object subject to confiscation pose a danger to

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5. Execution of the confiscation order

The confiscation order is either an incidental penalty or a security measure. Since the decision ordering confiscation is irrevocable, issues may arise concerning the time period for the execution of the order. Notwithstanding the statute of limitations of the offence which constitutes the legal basis of the confiscation order, the parameter of the statute of limitations of incidental penalties and security measures arises.

Apart from the general provisions on the statute of limitation of penalties,7 new article 552A CCP regulates the procedure and competent authorities for the execution of confiscation as a penalty. Given the specialized nature of the issue and the different scope of the present Deliverable, a more detailed study of this parameter is not provided.

6. Standard of proof

Greek authorities should also consider the required standard of proof for obtaining freezing, seizure and confiscation orders. Generally, to obtain such orders, authorities must have a reasonable belief that assets sought are connected to or derive from criminal activity. For example, this is the standard applied to freezing orders under Article 48 AML Law.

Further, according to Article 3 of Legislative Decree 1059/1971:

It is exceptionally permitted to provide information about confidential money or other deposits with banks operating in Greece following a special reasoned order, an application or a decision of the body responsible for the penal prosecution, the preliminary investigation, the preparatory examination, or the main investigation through the court or judicial council in which the relevant proceedings are

the public order. Therefore, because it is possible that authorities could interpret the provision differently, the provision should be further clarified in order to ensure that it is applied in a proper and uniform manner.

7 Articles 114-116 PC.

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conducted, if providing such information is absolutely necessary for the detection and the punishment of a felony […].

With regard to JITs, the applicable standard of proof of a country in which targeted property, assets or pieces of evidence are located may be a concern.8

B. TRACING ASSETS

When it comes to tracing assets, investigators usually carry out their work depending on the type of asset. Greek authorities have several types of databases and information sources from which valuable intelligence can be extracted. In addition to such information sources, authorities may also trace assets through: (i) reports/information from other government agencies; (ii) witness statements; (iii) informants; (iv) civil society reports; (v) media outlets; and, (vi) open source information.

With regard to databases and available sources of information, authorities may seek to trace assets using the following:

1. Bank accounts

A very important tool for bank account searches is the Registry System of Bank and Payment Accounts (Registry), 9 which is housed in The General Secretariat of Information Systems of the Ministry of Finance. The following authorities have access to the Registry: (i) the Economic Crime Prosecutor (ECP); (ii) the Public Prosecutors against Crimes of Corruption (PPACC) in Athens and Thessaloniki; (iii) all Services of the General Secretariat for Public Revenue (now

8 See Article 12 (9) UNTOC on the carrying out of seizure and confiscation measures

(“Nothing contained in this article shall affect the principle that the measures to which it refers shall be defined and implemented in accordance with and subject to the provisions of the domestic law of a State Party.”).

9 See Article 62 of Law 4170/2013 (which transposed the EU Directive

2011/16 on administrative cooperation in the field of taxation into national legislation), the eleventh Article of Law 4211/2013, Article 71 of Law 4446/2016, and Article 107 of Law 4387/2016.

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Independent Authority for Public Revenue-AADE); (iv) all Services of the Special Secretariat of the Financial & Economic Crime Unit - SDOE; (v) the Financial Police Division, and (vi) the Hellenic FIU.

The Registry holds the following types of information for up to ten years’ old can be requested through the Registry: (i) account holder information; (ii) account balances; and, (iii) transaction amounts, dates and currency. A publicly available list of all institutions (banks, etc.) covered by the Registry is foreseen by Article 62(7) of Law 4170/201310 but has yet to be created. The traditional procedure of requesting information from financial institutions should be followed if the information required is more than 10 years old or the requesting authority does not have access to the Registry. This procedure includes sending relevant documents to the respective financial institutions.

If necessary to expedite an investigation, authorities may establish direct communication with the compliance departments of the relevant bank.

Banking information

Article 260(2) CPP allows investigative officers to (1) seize asset (securities) certificates in banks and other institutions, and (2) inspect the correspondence and activity logs held by a bank or other types of financial institution in order to locate the items to be seized or to further their investigation generally. If the institutions housing the assets refuse to permit such inspections, the investigative agencies may search the institution and seize relevant assets and documents. Additionally, Article 50 of the AML Law also allows prosecutors and investigative judges to access to the books and records kept by credit and financial institutions.11 Such information

10 Article 62(7) of Law 4170/2013 was added by Article 71(2) of Law 4446/2016.

11 Article 5 of Law 3691/2008 defines inter alia obligated persons as the following: (a) credit institutions; (b) financial institutions; (c) venture capital companies; (iv) companies providing business capital; (v) chartered accountants, audit firms, independent accountants and private auditors; (vi) tax consultants and tax consulting firms; (vii) casino enterprises; (viii)

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may include (1) customer identification information; (2) documents pertaining to account authorisations and transactions; (3) internal documents concerning approvals or verifications or proposals in cases related to investigations; and (4) correspondence with customers.

Account monitoring

Judges may issue ex parte orders that require a financial institution to provide information about the future activity of an account over a specified period of time. Such orders allow for real-time surveillance of transactions which can help establish typologies of activity, identify additional accounts, and provide grounds for a further order to disclose, freeze, or search and seize assets.

Article 28 of EU Directive 2014/41/EU (concerning the European Investigation Order in criminal matters) provides for the monitoring of banking or other financial operations that are being carried out through one or more specified accounts. In September 2017, the Hellenic Parliament passed Law 4489/2017 transposing EU Directive 2014/41/EU into Greek Law.12 However, Greece seems to currently lack the necessary infrastructure to fully implement the Directive.

Prohibition of disclosure

Additionally, it is advisable when sending requests to the banks, outside the Registry, and there is also a money laundering element in the case (practically always), to cite also Article 31 of Law 3691/2008 (AML Law), entitled “Prohibition of disclosure”.13

auction houses; (ix) notaries and other independent legal professionals who participate in (or assist) any financial or real estate transaction; and, (x) natural or legal persons providing services to companies and trusts.

12 Article 30 of Law 4489/2017 transposed Article 28 of EU Directive 2014/41/EU.

13 Article 31 Prohibition of disclosure: The obligated legal persons, their employees and their managers and the obligated natural persons are prohibited from notifying the client or third parties that information has been properly communicated or requested or that an investigation is being carried out or is likely to be carried out for offences under Article 2 of this

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2. Suspicious Transaction Reports

Suspicious transaction reports (STRs) can be important sources of information that often establish crucial leads in investigations. Generally, STRs provide the following information: (i) source and destination of funds; (ii) entries made by bank employees regarding the reason for suspicion; (iii) the number of wire transfers, checks, etc.; and (iv) information on other assets or products held by the target at the financial institution.

According to the AML Law (Law 3691/2008, amended by Law 3932/2011), obligated persons (banks, etc.) have to file suspicious transaction reports (STRs) with the FIU.14 Under AML Law Article 7(A), the FIU is responsible for collecting, investigating, and evaluating (1) suspicious transaction reports filed by obligated persons, and (2) information received from other sources (including foreign authorities) concerning transactions or activities potentially linked to economic crime and money laundering. Greek authorities could contact the Hellenic FIU to seek relevant information.

FIU powers

Under Article 7B of the AML Law, the FIU may require obligated persons to provide all information required for the performance of its duties, including grouped information about certain categories of transactions or activities of domestic or foreign natural or legal persons or entities. In serious cases and at its own discretion, the FIU may also carry out unannounced checks of public services or in organizations and enterprises of the public sector, cooperating, if necessary, with the relevant competent authorities.

The Hellenic FIU contact responsible for responding to inquiries from law enforcement authorities:

Konstantinos Papastergiou Police Captain

Law[…]Natural persons who intentionally violate the duty of confidentiality shall be punished by imprisonment of at least three months and by a pecuniary fine.

14 As foreseen by Article 26 of Law 3691/2008 (the AML Law).

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Department of International Relations Hellenic Financial Intelligence Unit Address: Piraeus 207 & Alkifronos 92, Athens 11853 Tel.: 210 340 1908 Email: k.papastergiou@hellenic-FIU.gr

3. Customer Due Diligence Documents

According to the AML Law, obligated persons are required to apply customer due diligence and enhanced customer due diligence measures and keep all relevant documents and records.15 These documents and records constitute an important source of information for investigators. Greek authorities may seek such documents pursuant to Article 26(1)(b) of the AML Law, which stipulates that obligated persons16 and their staff (including managers) shall promptly furnish anti-money laundering authorities or other relevant authorities with all necessary information provided for by the AML Law.

4. Safe Deposit Boxes, Loans and Credit Cards

The Registry currently does not cover safe deposit boxes17, loans and credit cards. Hence, such requests have to be sent to the banks following the traditional procedure outside the Registry.

5. Securities, Derivative Products, and Mutual Funds

Requests for information, regarding securities and derivative products, can be sent to the Athens Exchange Group18 as well as

15 As foreseen by Articles 13, 17, and 19 of Law 3691/2008.

16 For a list of obligated persons under the AML Law, please refer to Article 5 of the Law.

17 In the replies, received through the Registry system, of one of the four major commercial banks, there is a code indicating the existence of other products, and possibly a safe deposit box, however it could be another item (e.g. a credit card).

18 https://www.helex.gr/web/guest/home

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the company ATHEXCSD S.A. There are central data systems regarding securities and derivative products.

The Hellenic Capital Market Commission19 can accommodate requests regarding securities and derivative products as well as mutual funds. Requests for information, regarding securities, derivative products and mutual funds should be also sent to banks, as many bank customers invest in such products through their bank.

Athens Exchange Group 110 Athens Avenue, Athens 104 42 Tel: +30 210 3366800 Fax: +30 210 3366101 Email: protocol@athexgroup.gr Hellenic Capital Market Commission (HCMC) str., 105 62 Athens Tel: +30 210 3377100 HCMC Thessaloniki Regional Office., 546 25 Thessaloniki Tel: +30 2310 224010 Contact person: Mr A. Tsoukalas

6. Life Insurance Portfolios

The supervisory duties regarding life insurance portfolios are carried out by the Department of Private Insurance Supervision (DEIA) of the Bank of Greece.20 Requests for information relating to life insurance portfolios may be sent to the DEIA as well as to banks, as many bank customers invest in such products through their bank. Greek authorities may make inquires with DEIA:

Bank of Greece Department of Private Insurance Supervision (DEIA) Address: 21 E. Venizelos Avenue, GR 102 50 Athens Tel: +30 210 320 1111 Fax: +30 210 323 2239 (or +30 210 323 2816)

19 http://www.hcmc.gr/en_US/web/portal/home

20 http://www.bankofgreece.gr/Pages/en/deia/default.aspx

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7. Inquiries relating to Companies

To gather information relating to business transactions or the financial situation of companies and business, authorities may access databases maintained by AADE. Such databases include, among others, TAXIS and ELENXIS. Authorities may also obtain information from a General Commercial Registry (GEMI) which contains information on companies and businesses at the national level21. The Central Service of GEMI operates within the Central Union of Chambers in Greece (ΚΕΕΕ).22 The General Secretariat of Commerce and Consumer Protection23 of the Ministry of Economy and Development24 also supervises the functioning of GEMI.

Central Union of Chambers in Greece (KEEE) Address: Akadimias 6, 10671 Athens Tel: +30 210 3387104 , (-106) Email: keeuhcci@uhc.gr General Secretariat of Commerce and Consumer Protection Address: Plateia Kaniggos, 101 81 Athens Email: gge@gge.gr

8. Real Estate

Investigators may consult the real estate & property tax electronic database (E9 – ENFIA) of AADE. The database allows fast real estate inquires at the national level. However, this is a “derivative” database whose accuracy depends also on taxpayer declarations. A new Cadastre system is currently being developed and is expected to be completed in 2020.25 The Cadastre will be operated by the National Cadastre and Mapping Agency and will contain all data

21 http://www.businessportal.gr/

22 http://www.uhc.gr/newsite/index.php?menu=main_menu&page=home

23 http://www.gge.gr/

24 http://www.mindev.gov.gr/

25 http://www.ktimatologio.gr/aboutus/Pages/htSwFsW1ELgXfYD8.aspx

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relating to each individual property. For the time being, requests can be also sent to the specific Cadastre offices and/or the Registrations and Mortgages offices, provided that there is some information also regarding the location of item(s) of real property.

The contact information for AADE is the following:

AADE Address: Kar. Servias 10, 101 84 Athens Tel: +30 210 337 5000, +30 213 152 5000

For the National Cadastre and Mapping Agency, authorities may contact:

Athens

Address: 288 Messogion Ave. 155 62 Athens

Tel: +30 210 6505600

Fax: +30 210 6505949

Thessaloniki

Address: 136 Tsimiski Street, 546 21 Thessaloniki

Tel: +30 2310 370500

Fax:+30 2310 370513

9. Vehicles, Planes, Helicopters and Shipping Vessels

Regarding vehicles, the Hellenic Ministry of Transportation has a vehicles database which is made available also to other authorities. Further, AADE has a vehicles database containing also information on payments of traffic charges for vehicles.

The Civil Aviation Authority (YPA)26 has a public database (νηολόγιο αεροσκαφών) of civil aircrafts (including helicopters), their owners and commercial users.27 Investigators may submit a request to YPA

26 http://www.ypa.gr/

27 http://www.ypa.gr/el/flight-safety/aircraft-register

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if they need more detailed information. The contact information for the YPA is the following:

Civil Aviation Authority Address: Vasileos Georgiou 1, Helliniko T.K. 16604 Tel: +30 210 8916000 Email: ypa@hcaa.gr Fax: +30 210 8947101 Telex: 21444

Unlike its counterparts in other countries,28 the Ministry of Shipping & Island Policy has no electronic database regarding vessels. Therefore, it is currently not possible to obtain reliable information from a database on whether a natural or legal person owns a vessel in the country. However, investigators can submit general requests to the Central Service of the Ministry of Shipping and Island Policy. If specific enough information is available, the request can be sent to the competent Port Authority. The contact information for the Central Service of the Ministry is the following:

Ministry of Shipping and Island Policy Address: Gate E1 – E2, Piraeus P.C. 185 10 Tel: +30 213 137 1700 (or +30 213 1374700) Fax: +30 210 419 1561 (or +30 210 419 1562) Email: info@yen.gr or ddy.b@yna.gov.gr

10. High Value Movable Items and Cash

Individuals obligated to submit asset declarations (e.g. public officials) have to provide information also regarding: (i) high value movable items that exceed EUR 30 000 (e.g. jewellery, precious stones, works of art, etc.)29; and (i) cash of EUR 15 000 or more (or the equivalent in foreign currencies). Greek authorities without

28 For examples, authorities in Argentina maintain a national register of boats under its flag (Prefectura Naval de Argentina). The French Customs maintains a public register of boat owners in that country.

29 The individuals obligated to submit asset declarations have to report high value movable items (e.g. paintings, jewellery, etc.) that exceed EUR 30 000.

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access to AADE’s databases may request from AADE information regarding annual tax declarations and information on movable items with a value in excess of EUR 10 000. Authorities may find such declarations to be useful as they often reveal increases in assets that are not in line with an individual’s declared income.

In addition, all taxpayers are obliged to declare in their annual tax declarations: (a) new purchases in the respective year and (b) leases of movable items, if these items exceed EUR 10 000. The same obligation exists for the following assets, irrespective of the value/price: vehicles, vessels, aircrafts, shares, businesses, companies, securities, real estate including swimming pools, loans given to any party, grants given to any party (other than the Greek State) of EUR 300 or more, and loan repayments. Taxpayers are also required to justify/prove the legitimate source of the respective funds. Failure to declare constitutes a tax violation and potentially a penal offence.

High value movable items and cash, and also securities, are often hidden in safe deposit boxes. The investigative team should find out at an early stage whether an investigated person has (or had) a safe deposit box.

To obtain tax records for individuals and businesses, authorities would contact AADE:

AADE Address: Kar. Servias 10, 101 84 Athens Tel: +30 210 337 5000, +30 213 152 5000

Practical Tip: Comparing Assets

Investigators should compare declared assets with assets actually owned and used by the individuals obligated to submit asset declarations (e.g. bank account balances, transactions) as such a practice often reveals discrepancies which would lead to evidence of illicit activity.

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11. Search Powers

The execution of a search warrant allows investigative authorities to gather valuable evidence and intelligence regarding assets.30 Article 253 of the Greek Code of Penal Procedure (CPP) allows for searches when an investigation is in progress (preliminary, preparatory or main investigation) which concerns a felony or misdemeanour offence as long as it can be reasonably assumed that the search will advance efforts that would allow for restitution and/or compensation relating to an offence. Searches of private residences must be conducted in the presence of a prosecutor or judge.

C. FREEZING OF ASSETS

Greek authorities involved in asset recovery should consistently think of how to secure the proceeds and the instrumentalities derived from criminal offences they are investigating. This involves proactive and reactive investigative techniques and understanding the steps that must be taken to quickly freeze or seize assets. As a preliminary rule, all investigators and officials should immediately notify the competent prosecutorial authority once illicit assets have been identified. This is the case with respect to both preliminary investigations and preparatory examinations, as well as during general asset tracing activity that may not have prosecutorial involvement. This is very important in order such illicit assets to be frozen before they disappear or are dissipated, injected into the legal economy, or used to commit other offences. What is more, according to Article 37(1) CPP, all investigative officers have to report, without any delay, to the competent prosecutor any piece of information, they receive or obtain in any way, about a punishable offence. Under Article 37(2) CPP, all other types of civil servants must also transmit information they receive about a punishable offence during the performance of their duties to the competent prosecutor.

30 Asset Recovery Handbook: Guide for Practitioners, Stolen Asset Recovery Initiative (World Bank & UNODC) (2011), p. 54.

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Additionally, in the context of preparatory examinations, prosecutors shall apply for a freezing order before the competent Court of First Instance as soon as possible. In main investigations, an investigative judge shall refer to the competent prosecutors immediately in order to obtain a freezing order.

As a general matter, in order to obtain a freezing order there must be well founded suspicions that the assets subject to freezing are linked to criminal activity. Currently, there are five legislative provisions that allow the freezing of assets obtained through corruption: AML Law Article 48, Law 2523/1997, Law 3296/2004, Law 4022/2011, Article 6(3) of Law 2713/1999.and Law 4312/2014. The provisions differ in scope, time limits, and the need for prosecutorial or judicial authorisation.

1. Article 48 AML Law

Article 48(1) of the AML Law allows for the freezing of suspected proceeds of crime found at a credit or financial institution, including: (i) bank accounts; (ii) securities; (iii) financial accounts; and (iv) safe deposit boxes (which can be opened for an inspection). There must be a reasonable suspicion that such assets derive from corrupt acts.

When the freezing is sought during a preliminary examination or a preparatory examination, the application must be made before the competent Judicial Council. In the context of a main investigation, the investigative judge is required to obtain the authorization of the competent prosecutor. The decree issued by the Judicial Council or the order issued by the investigative judge shall have the effect of a seizure report and is executed on an ex parte basis (without informing the accused or interested third party).

According to Article 48(5) of the AML Law, the FIU may, in emergencies, freeze assets or order the prohibition of sale or transfer of assets. After doing so, the FIU must transmit the case file to the competent prosecutorial body.

In case of a preliminary investigation or a preparatory examination practitioners should be sure to seek a freezing order without any

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delay, as decrees of the judicial councils on such applications can take up to three months, which could lead to the loss of the asset.31

Practical Tip: Prepare for Freezing Orders in Advance

Decisions on freezing applications can take up to three months, during which time assets may disappear or be moved. In order to minimise such risk, practitioners should remain proactive and anticipate the need to apply for a freezing order by preparing draft applications that contain up to date information on the investigation and which can be submitted to the relevant judicial authority immediately upon the identification of relevant assets.

2. Article 2(6) Law 4022/2011

Under Article 2(6) of Law 4022/2011, investigative judges in charge of serious corruption offences may freeze accounts and related assets. While Article 2(6) does not explicitly provide that such orders are ex parte in nature, they should be executed without giving prior notice to the accused in order to ensure that the assets sought are not moved or disappeared.

3. Article 17(8)(A) Law 2523/1997

Article 17A(8) of Law 2523/1997 gives the ECP the power to freeze assets (accounts, safe deposit boxes and immovable and movable assets) for up to one year after which time the order may be renewed by a decree of the competent Judicial Council. The freezing order may be amended or revoked if new evidence is found.

4. Article 30(5)(e) of Law 3296/2004

The Financial and Economic Crime Police (“SDOE”) under the Ministry of Finance has its own power to freeze assets pursuant to

31 Consultation meeting with Thessaloniki PPACC, February 2017.

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Article 30(5)(e) of Law 3296/2004.32 The Council of State (the supreme administrative court in Greece) has declared Article 30(5)(e) unconstitutional,33 and it should therefore not be applied. Rather, SDOE officials should instead apply the current AML Law Article 48.

5. Article 6(3) of Law 2713/1999

The Internal Affairs Directorate of the Hellenic Police, when conducting a preliminary investigation or a preparatory examination, also has the authority to request the freezing of assets pursuant to Article 6(3) of Law 2713/1999. In such cases, the order of the competent prosecutor or the decree of the competent Judicial Council is executed on an ex parte basis.

6. Article 2 (2) of Law 4312/2014

The provision is relevant for both freezing and seizure. It does not affect or influence the powers of the State as such or provide for a new freezing or seizure procedure and it is therefore applicable only if a freezing and/or seizure order has already been issued. Article 2(2) stipulates that if the suspect or accused consents on a voluntary basis to pay the sum of money to the Greek State that was initially the object of the freezing or seizure order, the freezing or seizure is lifted.

32 Freezing, in special cases of securing the interests of the State or in cases of economic crime and extensive tax evasion and smuggling, of bank accounts and

assets by a document of the head of the competent Regional Directorate of SDOE

informing about this action, within twenty-four (24) hours, the competent public prosecutor.

33 See Decisions No. 3316/2014 and 1260/2015. The Council of State found the provisions unconstitutional because: (i) there are no specific requirements in the provisions to order SDOE to proceed to the freezing of bank accounts and assets; (ii) the wording of the provisions is vague; (iii) there are no time limits for the duration of the freezing; (iv) there are no requirements regarding proportionality (i.e. the value of the bank accounts/assets that SDOE can freeze in relation to the potential damage/loss of the State); and, (v) there is no set procedure to lift the freezing.

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D. SEIZURE OF ASSETS

1. Articles 260 et seq. Greek Code of Penal Procedure

Investigative judges as well as general and special investigative officers, may, pursuant to Article 260 CPP, seize asset (securities) certificates in banks and other institutions, and (2) inspect the correspondence and activity logs held by a bank or other types of financial institution in order to locate the items to be seized. Article 263(1) CPP enables the competent judge – regardless of the procedural phase of a case - to order the seizure of assets, documents or other types of objects if the seizure of objects or documents related to the crime was either not possible or not believed to be necessary during the course of the investigation.

2. Article 243(2) of the Greek Code of Penal Procedure

When investigative officers are faced with an emergency situation in the framework of a preliminary investigation or otherwise witnesses the commission of a penal offence, Article 243(2) CPP provides that said officers shall conduct all preliminary investigative acts (including the seizure of assets or other related items) without a prior order of a public prosecutor. In such cases, the officer shall notify the public prosecutor by the fastest means possible, and shall submit to him, without delay, the reports (e.g. seizure report) that have been drafted.

3. Article 147(8) of Law 2960/2001 (Hellenic Customs Code)

Article 147(8) of Law 2960/200134 allows the discretionary freezing by the competent customs authority of cash over EUR 10 000 entering or leaving the European Community that has not been disclosed under Article 3 of Regulation 1889/2005. The cash may be held for three months while an investigation takes place. There is no explicit provision allowing for an extension of the seizure period.

34 Para. 8 of Article 147 of the Customs Code (Law 2960/2001) was added by para. 2 of Article 24 of Law 3610/2007.

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E. MANAGEMENT OF ASSETS

Asset management concerns the maintenance of assets that have been seized or frozen but not yet confiscated.35 The purpose of management is to preserve the assets for evidentiary purposes, eventual confiscation, or return to the owner if confiscation is not ordered. However, there is no proper asset management programme in Greece. On the other hand, to a limited extent the CPP covers the administration of assets which have already been confiscated. As such, Article 266(1) CPP requires practitioners to ensure that:

• Confiscated assets are transferred to the physical custody of the court clerk. If this is not possible, the investigating official shall appoint a competent and trustworthy custodian;

• Money or other valuables are deposited with the Consignments, Deposits and Loans Fund according to the provisions applicable to its operations;

• The relevant delivery report (the document governing the transfer and custody of the confiscated asset) refers to the custodian’s obligation to secure the assets and to surrender the same whenever requested by the competent court authority.

Practitioners should be aware that Law 251/1976 provides for the transfer of assets to Greek state institutions or municipal bodies for social re-use, allowing for any corporate movable items, especially vehicles, ships, and machinery to be transferred for socially beneficial uses. Similarly, Article 180 of Law 4270/2014 allows the Greek state to spend funds deriving from criminal activities on education, research, health, training, and social solidarity programmes. However, these provisions concern the use of assets after they have been confiscated, i.e. after the Greek state acquires

35 These guidelines do not cover assets that have already been ordered

confiscated by a court or whose title has otherwise passed to the State (e.g. as envisioned in Article 180 of Law 4270/2014 and Articles 1-7 (other than Article 1(1)) of Law 4312/2014). For guidance on the management of such assets, please refer to the abovementioned provisions.

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ownership to the assets. Strictly speaking, they do not concern asset management, which deals with the maintenance of assets after seizure but before confiscation.

Lastly, Article 1(1) of Law 4312/2014 introduces an asset management process relative to cash and bank accounts. More specifically, the authority that has issued the relevant freezing or seizure order may order that the frozen or seized funds be deposited in a bill to the Consignments, Deposits and Loans Fund, as a pecuniary claim against the suspect or accused. The provision applies also to corruption related offences.

F. CONFISCATION OF ASSETS

After tracing and securing assets, the next step is to confiscate assets, i.e. transfer title to the assets from a private individual to the state. This section provides practitioners with an overview of the various provisions under Greek law that allow different types of confiscation.

1. Conviction-based Confiscation

As its name suggests, conviction-based confiscation allows property to be confiscated when an individual has been convicted of a criminal offence. Greece has three provisions that provide for conviction-based confiscation, namely Penal Code (PC) Articles 76 and 238, and Article 46 of Law 3691/2008 on anti-money laundering (AML Law). Before launching the confiscation process, practitioners should confirm that the type of confiscation that they seek is available under the applicable provision, according to the corruption offence in question.

• Article 76 PC: Greek practitioners should apply Article 76 PC in all corruption cases (given that it applies to all felonies and misdemeanours offences found in the PC). Under Article 76(1) PC, Greek practitioners may seek the confiscation of direct and indirect proceeds as well as instrumentalities of corruption crimes, so long as such assets belong to the convicted offender or his or her accomplices. Therefore, Greek practitioners must show proof of ownership, meaning that simply demonstrating possession is insufficient to meet the applicable standard.

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Practitioners may also apply Article 76(5) to confiscate assets belonging to legal persons. Specifically, Article 76(5) provides for confiscation against a legal person when a legal person receives an asset knowing that said asset resulted from a crime and that the purpose of the transfer of the asset was to avoid confiscation.36

• Article 238 PC: Article applies to most corruption crimes. However, when seeking to confiscate the instrumentalities of corruption crimes, practitioners should apply Article 76 as Article 238 is silent on the issue. Additionally, Article 238 does not explicitly provide for confiscation of assets belonging to third parties (e.g. non-bona fide parties).

• AML Law Article 46: Greek practitioners may apply Article 46 of the AML Law in order to confiscate assets in cases of money laundering or listed predicate offences, but should only do so when Articles 76 and 238 PC are inapplicable. Unlike Article 238 PC, Article 46 provides for confiscation against non-bona fide third parties, but only explicitly allows for such confiscation when the assets in question were transferred to an “heir” after confiscation has been ordered.

2. Confiscation in Civil Proceedings

Greek law provides for confiscation under civil proceedings in two cases. Public authorities should be aware that they can obtain a confiscation order, either: (i) as a civil plaintiff in penal proceedings according to Articles 63, 64, 65(2), 66 CPP; or (ii) as a plaintiff in civil proceedings, notably under Articles 914 and 932 of the Civil Code (CC). Practitioners should make recourse to civil confiscation, since the standard of proof is lower than criminal cases, in which case they should contact the Legal Council of State to institute

36 To determine knowledge, the competent court should assess if such knowledge

was shared by one of the following individuals connected to the legal person: (i) the legal representative of the legal person; (ii) the natural person authorised to make decisions on the exercise of control; or, (iii) a natural person who exercises, on a de facto basis, the responsibilities mentioned in the first two categories.

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proceedings. Practitioners should take into consideration that the standard of proof is lower in civil than criminal proceedings, which usually ranges from a preponderance of the evidence to near certainty. The standard of proof required in order to obtain a criminal conviction may be difficult to obtain as the applicable standard is that of proof beyond reasonable doubt.

Practitioners may also consider launching civil proceedings under the CC before the Civil Courts to seek compensation for corruption, especially where penal proceedings cannot be instituted or a prosecution does not go forward (e.g. due to the statute of limitations or the death of the defendant).

Article 53 of the United Nations Convention against Corruption applies regarding the possibility for other States parties to the Convention to seek asset recovery in Greece. I would also respectively allow the Greek authorities to recover assets abroad. Therefore, reference to Article 53 UNCAC would not be relevant for Greek practitioners seeking to carry out asset recovery measures domestically in Greece.

3. Value-based Confiscation and Pecuniary Penalty in Lieu of Confiscation

In cases where the actual proceeds or instrumentalities of a corruption crime are no longer available or cannot be located, Greek law provides for the confiscation of equivalent value of assets. Therefore, in such cases they should seek value-based confiscation under Article 76 (3) PC, naming an amount of money owed by the accused.

Article 76(3) PC provides the following: “If the objects or assets referred to in paragraph 1 no longer exist or have not been found, the court may impose a confiscation (surrogate confiscation) on assets of the offender of an equal value at the time the decision of conviction is issued.”

Practitioners should also make recourse to the exceptional provision for a pecuniary penalty in lieu of confiscation under Article 76(4) PC. They should do so only if either of the following are applicable: (i) full confiscation would be disproportionate, for example when it causes the convicted person or a third party excessive and

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irreparable damage, or risks depriving them of property which supports their basic livelihood; (ii) the abovementioned assets are lost, no longer exist or belong to a third party; or (iii) the existing assets fall short of the value of the said assets or proceeds.

In corruption crimes covered by Articles 238 PC and 46 AML Law, practitioners may also seek value-based confiscation. Article 238(2) PC provides for value confiscation if the assets belong to a third party and cannot be found or confiscated, as well as pecuniary penalty in the aforementioned scenario (iii). Article 47(2) AML Law also provides for value-based confiscation in these cases.

4. Confiscation of Third-Party Assets

Practitioners should be aware that confiscation of third-party assets is provided under Greek law, taking into consideration third-party interests. If the offender passes away, Article 76(6) PC provides for confiscation that is ordered against an individual while he/she is alive and the property subsequently passes to an “heir”. Article 76(5) PC addresses confiscation of property in the possession of non-bona fide third parties, i.e. individuals who have received the property knowing that it was proceeds of crime, and also knowing that the reason of the transfer was to avoid confiscation, e.g. when the transfer or acquisition of the asset was made in exchange or in return for a price substantially lower than its market value. Article 46 AML Law also provides for confiscation against non-bona fide third parties, if they were aware of the predicate offence or the offences referred to in Article 2 of the AML Law (i.e. the money laundering offences) at the time of their acquisition

Article 76(5) PC provides:

“Confiscation is ordered against a third person on objects or assets that were transferred, directly or indirectly, from the offender to the third person or were acquired by him/her or came under his ownership in a different way, if when the third person acquired the assets was aware that they may emanate from an offence, as well as that the reason of the transfer consisted in avoiding confiscation. Awareness, according to the previous sentence, must derive from the combination of different elements,

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including in particular that the transfer or acquisition of the asset was made in exchange or in return for a price substantially lower than its market value or than a price that would have been agreed according to the common practice in respective social relations. The confiscation is imposed against the third party only if confiscation of the counterpart for the transfer or alternative confiscation cannot be imposed against the offender […].”

Article 46(1) of Law 3691/2008 provides:

“[…]Confiscation shall be imposed even if the assets or means belong to a third party, provided that such party was aware of the predicate offence or the offences referred to in Article 2 at the time of their acquisition. The provisions of this paragraph shall also apply in cases of attempt to commit the above offences […].”

5. Extended Confiscation

In cases of extended confiscation practitioners should apply Article 47 (1) AML Law, which provides the following:

“The State may, on an opinion from the State Legal Council, raise a claim before the competent civil courts against anyone irrevocably convicted to at least three years of imprisonment of an offence referred to Article 47(2) AML Law, in order to any other assets acquired by him through another offence referred to in the same paragraph (i.e. para 2), even if no criminal proceedings were instituted for such offence because of death of the offender or if prosecution was terminated or declared inadmissible.”

6. Non-Conviction based Confiscation

Non-conviction based confiscation is provided for under Article 46(3) AML Law and Article 76(6) PC. Under Article 46(3) AML Law, practitioners may only apply the provision when the offender has died or the prosecution has concluded or is “inadmissible” (e.g. time-barred).

Article 76(6) PC provides for non-conviction based confiscation in cases where the public order is endangered (e.g. explosives, etc.).

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However, the application of this provision in corruption cases is likely rare. Article 76(6) further provides that where there is no prior conviction or a prosecution was not possible, confiscation may, at the prosecutor's proposal, be ordered by the court that handled the case or the court of first instance.

Article 46(3) of the AML Law stipulates the following:

“Confiscation shall be ordered even where no criminal proceedings have been initiated because of death of the offender or where prosecution was terminated or declared inadmissible. In these cases, confiscation shall be ordered by a decree of the competent judicial council or by a decision of the court that terminated the prosecution or declared it as inadmissible, and if no criminal proceedings have been instituted, confiscation shall be ordered by a decree of the competent judicial council of misdemeanours. The provisions of Articles 492 and 504(3) of the Code of Penal Procedure shall also apply by way of analogy to this case.”

Article 76(6) PC provides:

“The confiscation of the objects referred to in paragraph 1 shall be obligatory to the detriment of the holder, even without the conviction of a certain person for the act committed, if by their nature they pose a danger to the public order. […]. If there is no prior conviction of a certain person, or there could be no prosecution , the confiscation would either be ordered by the court that handled the case or the court of first instance , at the prosecutor's proposal.”

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II. INTERNATIONAL ASSET RECOVERY

In many cases, asset recovery and international cooperation go hand in hand because criminal actors frequently move assets across borders to avoid detection. The present section focuses on the resources, networks, and international legal instruments available to Greek authorities seeking to identify, trace, freeze, seize, confiscate, and ultimately repatriate assets obtained through criminal activity, as well as property, equipment or other instrumentalities used in such activity, that are located abroad. While this section focuses specifically on asset recovery, practitioners who need general guidance on international cooperation may consult the OECD Guidelines to Practitioners on Seeking Mutual Legal Assistance in Corruption Cases (OECD MLA Guidelines). The OECD MLA Guidelines cover a wide array of issues relating to MLA and provide practitioners with useful resources including a model MLA request template.

A. GETTING STARTED: INFORMAL COOPERATION AND INFORMATION EXCHANGE

During the course of a corruption investigation, Greek authorities will often come across evidence of criminal conduct or suspicious behaviour of an international dimension. Knowing how to trace assets at the international level and which specialised entities can offer assistance can be a determining factor in creating a successful outcome. Various informal channels of co-operation are available to Greek practitioners when investigating criminal activity and when tracing assets, as described below.

1. Hellenic Asset Recovery Office

Greece’s national Asset Recovery Office (ARO)37 is housed within SDOE,38 and is responsible for carrying out the following functions

37 Asset Recovery Offices are authorities within national administrations

that facilitate the tracing and identification of proceeds of crime and other crime related property for the purposes of facilitating their freezing, seizure or confiscation both domestically and overseas.

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with regard to international asset recovery: (i) tracing and identifying proceeds of crime through cooperation with AROs of other EU Member States pursuant to EU Council Decision 2007/845/JHA; (ii) acting as national contact point for the Camden Asset Recovery Interagency Network (CARIN);39 and (iii) cooperating generally with foreign counterparts for the purpose of detecting assets related to criminal activity which may be the subject of MLA requests for freezing, seizure or confiscation.

Greek authorities in need of such assistance should contact the Hellenic ARO to discuss investigative steps already taken and to identify the specific type of assistance required.40 The Hellenic ARO will then submit a request to the national ARO of the relevant EU Member State and transmit the response to the requesting Greek authority. In cases not involving EU Member States, the ARO may also engage in direct information exchange to facilitate the measures required by Greek authorities. Law enforcement officials who wish to use these channels should contact:

Financial and Economic Crime Unit (SDOE) Directorate for Strategic Planning and Planning of Research Department D

38 Established pursuant to Article 88(2) of Law 3842/2010 (amended by Article 1 of Law 4254/2014).

39 CARIN is an informal network of contacts and a cooperative group focused on tracing and confiscating the proceeds of crime. It is a network of practitioners from 53 jurisdictions. Requests information between CARIN contact points may include, among other things: (i) general information on the possibilities and options relating to asset recovery measures in the foreign jurisdiction; (ii) providing intelligence that may provide additional leads or be used to further investigations.

40 Article 3(2) of EU Council Decision 2007/845/JHA, provides that the requesting ARO shall: (i) specify the object of and the reasons for the request and the nature of the proceedings; (ii) provide details on property targeted or sought (bank accounts, real estate, cars, yachts and other high value items) and/or the natural or legal persons presumed to be involved (e.g. names, addresses, dates and places of birth, date of registration, shareholders, headquarters).

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Hellenic Ministry of Finance 207 Pireos Street & 92 Alkifronos Street, Athens 118 53 Tel: +30 210 340 1007 FAX. +30 210 341 1022 Email: aro-sdoe@1968.syzefxis.gov.gr For further information: Chaido Veliouri

2. International Police Cooperation Directorate

Through the International Police Cooperation Directorate (IPCD) of the Hellenic Police, Greek law enforcement authorities may seek information from foreign partners and organisations for the purpose of tracing and identifying assets. Specifically, Article 8 of Presidential Decree 178/2014, governs practitioners’ access to three channels: (i) INTERPOL; (ii) EUROPOL; and, (iii) SIRENE (Supplementary Information Request at the National Entries).

• INTERPOL Athens: Enables Greek law enforcement authorities to request information from foreign INTERPOL agencies to determine the location and ownership of assets. Such requests may involve the exchange of financial information and registration records for vehicles, property, and other types of assets believed to be connected to criminal activity.

• EUROPOL National Unit: The IPCD may, on behalf of Greek authorities, submit requests for information and intelligence to other EUROPOL national units and EUROPOL itself. The IPCD may also action the Greece’s liaison officer assigned to EUROPOL, who often have access to other national units and are able to facilitate the rapid exchange of information, including requests to trace assets or other types of financial activity.

• SIRENE Department: The IPCD also has access to the Schengen Information System (SIS)41 which contains useful information

41 Council Decision 2007/533/JHA of 12 June 2007 on the establishment, operation and use of the second generation Schengen Information System (SIS II), OJ, L 205/63, 7.8.2007.

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and possible leads for the purpose of asset tracing, such as activity involving vehicles, boats, aircrafts, containers, firearms, stolen documents, banknotes, and other types of property.

Practitioners should contact the following divisions to seek assistance:

International Police Cooperation Directorate (DDAS) of the Hellenic Police: P. Kanellopoulou 4, Athens 101 77, Tel.: 210-6988117, Email: registry@ipcd.gr. Additional information is on its website.

Europol National Unit: P. Kanellopoulou 4, Athens 101 77, Tel.: 210-6984286, Email: europol@astynomia.gr

Interpol Athens: Leof. Athinon & Antigonis 2-4, Athens 10442, Tel.: 210-5103540, 210-6448888, Email: athens.interpol@astynomia.gr

SIRENE Department: P. Kanellopoulou 4, Athens 101 77, Tel.: 210-6998262 (on a 24/7 basis), 210-6998263, Fax: 210-6998264, 210-6998265, Email: sirene@sirene.gov.gr

3. European Judicial Co-operation Unit (Eurojust) and European Judicial Network (EJN)

Eurojust was set up in 2002 to facilitate co-ordination and to support criminal investigations and prosecutions among EU Member States.42 It consists of a national member from each EU Member State. Eurojust also has co-operation agreements and contact points with many non-EU countries. Greece’s Eurojust National Member is:

Paraskevas Adamis P.O. Box 16183 2500 BD The Hague Netherlands

42 European Council Decision 2002/187/JHA as amended. See also Eurojust Report on Asset Recovery, including Freezing and Confiscation (2014).

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Tel: +31 70 412 5180 Email: padamis@eurojust.europa.eu

The European Judicial Network (EJN) is a network of national contact points for facilitating judicial cooperation in criminal matters. On EJN’s website, a Judicial Atlas provides information on the appropriate authority for receiving MLA requests related to asset-recovery relate in 37 countries. The Fiches Belges tool provides summaries of legal information on freezing, seizure and confiscation measures in EJN member countries. Greece’s National Correspondent for EJN is:

Ms. Maria MALOUHOU Appeals Prosecutor and Head of the MLA Department Athens Court of Appeals Prosecutor’s Office K. Loukareos 14, Athens 11475 Tel: 210-6404229, 210-6404655, 210-6404612 Email: cpejn1@otenet.gr

4. Tax Authorities

Greek tax authorities may be able to provide financial information about individuals and companies that is located overseas. An increasing number of international instruments allow tax information to be exchanged for use in investigations of serious crimes, including corruption.43 This includes the Convention on Mutual Administrative Assistance in Tax Matters of the OECD and Council of Europe to which Greece is party.44 Law enforcement officials who wish to use these channels should contact:

Mr. Odysseas Pylalis International Economic Relations Directorate Independent Authority for Public Revenue (IAPR)

43 OECD MLA Typology, pp. 57-62. See Chapter III, Section I of Convention on Mutual Administrative Assistance in Tax Matters of the OECD and Council of Europe.

44 OECD (2015), Greece Phase 3bis Report, para. 158.

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8 Kar. Servias Street, 10184 Athens, Greece Email: ypoik@otenet.gr

5. Hellenic Financial Intelligence Unit (FIU)

The Hellenic FIU is a valuable source of intelligence for Greek practitioners in need of asset tracing investigative assistance. The Hellenic FIU regularly and rapidly exchanges information with foreign FIUs through real-time platforms and networks (e.g. Egmont Group, FIU-Net), allowing it to request and obtain information on financial transactions and cross-border activity. For purposes of tracing assets located overseas, practitioners may resort to FIU for the following types of assistance: (i) obtaining suspicious transaction reports collected by foreign FIUs; (ii) obtaining other types of financial activity reports (e.g. cross-border transportation of currency or bearer negotiable instruments); and, in some cases (iii) freezing or blocking transactions related to money laundering.45

Generally, information obtained from a foreign FIU may be provided to Greek law enforcement authorities only with the consent of the foreign FIU. Consent is usually provided in a memorandum of understanding (MOU) between the FIUs or as a separate agreement.46 Currently, the Hellenic FIU has 11 such MOUs.47 Even in the absence of an MOU, Greek practitioners should nonetheless seek assistance as a foreign FIU may still have the discretion to grant a request or otherwise have an interest in providing the requested intelligence.48 The Hellenic FIU may also informally obtain information through other channels such as FIU-Net.

45 See Article 47 of the Warsaw Convention of 2005. For additional

information, please refer to Section B on Mutual Legal Assistance.

46 OECD MLA Typology, pp. 62-68.

47 Ukraine, , Panama, Israel, Lebanon, Georgia, Moldova, Australia, Albania, the Philippines, Russia, Mexico. .

48 For example, representatives of the Hellenic FIU have previously stated

that they do not consider the existence of an MOU essential in order to exchange information with foreign FIUs. This could well be the case with foreign FIUs as well.

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The Hellenic FIU contact responsible for responding to inquiries from law enforcement authorities may be found above (Tracing of Assets Section – Suspicious Transaction Reports).

B. MUTUAL LEGAL ASSISTANCE

After deciding that mutual legal assistance (MLA) should be sought, the next step is to select the appropriate legal framework. The choice depends on whether the framework covers the foreign country from which MLA is sought, and whether the framework provides the type of assistance sought. For issues related to asset recovery in corruption cases, the following options are available:

(a) Bilateral MLA treaties and non-treaty requests

(b) Council of Europe Convention on Laundering, Search, Seizure and Confiscation of Proceeds from Crime and on the Financing of Terrorism (Warsaw Convention of 2005)

(c) Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds of Crime (Convention of 1990)

(d) EU Framework Decision 2003/577/JHA on the Execution of Orders Freezing Property or Evidence

(e) EU Framework Decision 2006/783/JHA on the Application of the Principle of Mutual Recognition to Confiscation Orders

(f) United Nations Convention against Corruption (UNCAC)

(g) United Nations Convention against Transnational Organised Crime (UNTOC)

(h) OECD Anti-Bribery Convention

(i) European Investigation Orders

The abovementioned instruments contain useful guidance for Greek practitioners in the area of MLA, such as the content and language of MLA requests, the grounds on which a requested State may refuse to execute an MLA request, and evidentiary standards and

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limitations on the use of assistance provided. Practitioners must be aware of such provisions in order to ensure the submission of complete MLA requests and to avoid unnecessary delay. Specific guidance on these issues as well as others (e.g. where to send your MLA request and what to do after) may also be found in the OECD MLA Guidelines.

Practical Tip: Getting the most out of your MLA request

Additionally, prior to drafting the request, it is advisable to find out as much as possible about obtaining assistance from foreign jurisdictions in asset recovery.49 In fact, many countries have produced written step-by-step manuals for the purpose of providing international partners with guidance on asset recovery, including several G20 countries such as the United Kingdom, Germany, France, and Canada.

For questions relating to MLA, practitioners may contact the Greek Central Authority, housed within the Ministry of Justice, Transparency, and Human Rights. Inquiries may be made with:

• Ms. Argyro Eleftheriadou (aeleftheriadou@justice.gov.gr) Head, Division of Legislative Work, International Relations and International Judicial Cooperation

• Ms. Aikaterini Papanikolaou (kpapanikolaou@justice.gov.gr) Head, Department of International Judicial Cooperation in Civil and Criminal Cases

• Ministry of Justice, Transparency and Human Rights Mesogeion 96, 11527 Athens

• Ground Floor, Office 53 Email: minjustice.penalaffairs@justice.gov.gr

49 See OECD MLA Guidelines, p. 20.

42 │ GUIDELINES FOR PRACTITIONERS IN GREECE ON DOMESTIC AND INTERNATIONAL ASSET RECOVERY

1. Bilateral MLA Treaties

Greece has 14 bilateral MLA treaties in force with Albania, Armenia, Australia, Canada, China, Cyprus, Egypt, Georgia, Lebanon, Mexico, Russia, Syria, Tunisia, and the United States of America.50 These bilateral MLA treaties differ in the crimes to which they apply and the range of assistance available. Some treaties explicitly provide for assistance in asset recovery matters, and contain separate provisions for tracing, freezing, seizure, confiscation and return of assets. For example, Greece’s bilateral MLA treaties with Australia, Canada and the United States all contain such distinct provisions.

However, not all bilateral treaties explicitly provide for assistance in asset recovery. Some treaties, such as the Greece-Mexico bilateral MLA treaty, simply provide for general investigative assistance. Practitioners should therefore take extra care in referring to a specific treaty before deciding to proceed with an MLA request. Additionally, some of the treaties are quite old and may not contain all of the features of modern MLA treaties, in which case a more recent multilateral treaty may be a better alternative. Of the 14 countries with bilateral MLA treaties with Greece, only one – Syria – is not a State Party to UNCAC.

2. Non-Treaty Requests

Article 457 CPP governs outgoing requests for non-treaty MLA, but fails to explicitly provide for asset tracing measures. Greek authorities should resort to multilateral instruments such as UNCAC (181 Parties at the time of writing) or request execution of a request on the basis of reciprocity, if applicable.

50 Greece currently has bilateral MLA relations with the following countries: Albania, Armenia, Australia, Canada, China, Cyprus, Egypt, Georgia, Lebanon, Mexico, Russia, Syria, Tunisia, and the United States of America. Additional bilateral treaties are not in use because cooperation with those countries is predicated on the 1990 Convention applying the Schengen Agreement or the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959.

GUIDELINES FOR PRACTITIONERS IN GREECE ON DOMESTIC AND INTERNATIONAL ASSET RECOVERY │ 43

3. Council of Europe Convention on Laundering, Search, Seizure and Confiscation of Proceeds from Crime and on the Financing of Terrorism (Warsaw Convention of 2005)

Greece is one of 32 countries that have ratified the Warsaw Convention of 2005:51 Albania, Armenia, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Former Yugoslav Republic of Macedonia, France, Georgia, Germany, Hungary, Italy, Latvia, Malta, Moldova, Montenegro, Netherlands, Poland, Portugal, Romania, San Marino, Serbia, Slovak Republic, Slovenia, Spain, Sweden, Turkey, Ukraine, and United Kingdom.

With regard to asset identification and tracing:

• Article 16 allows Greek authorities to request investigative assistance in the identification and tracing of instrumentalities, proceeds and other property liable to confiscation. Such assistance includes any measure providing and securing evidence as to the existence, location or movement, nature, legal status or value of such property.

• Articles 17-20 provide for assistance involving specific types of tracing activity, such as: (i) requests for information on bank accounts (Article 17); (ii) requests for information on banking transactions (Article 18); (iii) requests for the monitoring of banking transactions (Article 19); and, (iv) spontaneous exchanges of information (Article 20).

With regard to freezing and seizure:

• Articles 21 and 22 provide that Greek authorities may request the execution of provisional measures such as freezing or seizing, to prevent any dealing in, transfer or disposal of property, which, at a later stage, may be the subject of a request for confiscation.

51 The Warsaw Convention entered into force in Greece on 1 March 2018,

COE, Chart of signatures and ratifications of Treaty 198, available online at

https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/198/signatures?p_auth=ziLuJD43

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Regarding confiscation:

• Article 23 allows Greek practitioners to request the enforcement of a confiscation order by the foreign jurisdiction. The requested State has two options in executing such a request, and may either: (i) enforce the Greek confiscation order directly; or, (ii) submit the request to its competent authorities in order to obtain and enforce a domestic confiscation order (explained in section below on Enforcing Orders by Greek Authorities Overseas).52

• Article 24 of the Convention provides that any property confiscated by the foreign jurisdiction will be disposed of in accordance with its domestic law.

The Warsaw Convention also provides Greek practitioners with two options when faced with a situation requiring urgent or immediate action:

• (1) Submit request directly to foreign judicial or prosecutorial authority: Article 34(2) provides for the direct transmission of requests in urgent cases, after which the requesting authority shall copy the central authorities in writing.53

• (2) Contact Hellenic FIU to facilitate freezing of assets: Article 47 enables FIUs to submit urgent requests to counterpart FIUs to freeze specific transactions that are related to money laundering. This provision gives Greek practitioners time to prepare an official MLA request seeking further action as appropriate (e.g. extension of the freezing or confiscation). The relevant FIU contact point would be Mr. Konstantinos Papastergiou (contact details in FIU section above).

52 Practitioners should be aware that Article 24 of the Convention provides that any property confiscated by the foreign jurisdiction will be disposed of in accordance with its domestic law.

53 Bilateral MLA treaties may also allow for such a possibility. For example, Article 4(1) of the the bilateral Greece-United States MLA treaty allows transmission “by the most rapid available means”.

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Lastly, Article 35 of the Convention does not require translation of requests. However, Parties to the Convention have made some 26 declarations requiring the request and annexed documents to be translated into its own language, the official languages of the Council of Europe, or one of the latter languages as specified. The full list of declarations is available online.

4. Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds of Crime (1990)

The Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds of Crime (Convention of 1990)54 facilitates international co-operation and mutual assistance in investigating crime and tracking down, seizing and confiscating the proceeds thereof. Greece55 and 48 other countries are Parties to the Convention of 1990. Where the foreign State from which Greek authorities require assistance is a Party to the Warsaw Convention of 2005, that Convention should be used as the legal basis for the requested assistance (unless the assistance required is only available under the Convention of 1990).

The Convention of 1990 allows Greek practitioners to seek various types of assistance from States Parties in the area of asset recovery, including: (i) the identification and tracing of instrumentalities, proceeds and other property liable to confiscation (Articles 8 and 9); (ii) the execution of freezing and seizure measures to prevent the dealing in, transfer, or disposal of assets subject to confiscation (Articles 11 and 12); and, (iii) the enforcement of a confiscation order concerning instrumentalities or proceeds (Articles 13 and 14). With respect to confiscation measures, the Requested State may either enforce a Greek confiscation order directly or submit the request to its competent authorities in order to obtain and enforce

54 Includes two non-European countries, namely Australia and Kazakhstan.

The full list of Parties are available online.

55 Ratified by Greece by Law 2655/1998.

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a domestic confiscation order (explained in section below on Enforcing Orders by Greek Authorities Overseas).56

In cases of urgency, Article 24(2) of the Convention of 1990 provides that Greek practitioners may submit requests directly to the relevant foreign judicial or prosecutorial authority. Such requests, however, must be followed by copying the central authorities in writing.57 Lastly, Article 25(1) states that requests made pursuant to the Convention do not have to be translated. However, several Parties have made declarations requiring the request and annexed documents to be translated into its their own language, the official languages of the Council of Europe, or one of the latter languages as specified. The full list of declarations is available online.

5. EU Framework Decision 2003/577/JHA

Greek authorities seeking to execute freezing orders in other EU Member States may resort to EU Framework Decision 2003/577/2003, in cases involving corruption, fraud, money laundering, and participation in a criminal organisation, among other offences. The Framework Decision allows for the competent authorities to recognise and execute freezing orders issued for the purposes of securing evidence or the subsequent confiscation of property. The executing State may execute the order submitted pursuant to the Article 4 of the Framework Decision without having to go through additional formalities, unless there are grounds for non-recognition or non-execution (described in Article 7) or postponement (Article 8).

56 Practitioners should be aware that like Article 24 of the Warsaw Convention of 2005, Article 15 of the Convention of 1990 provides that any property confiscated by the foreign jurisdiction will be disposed of in accordance with its domestic law.

57 Warsaw Convention of 2005, Article 34(2). Council of Europe Criminal Law Convention on Corruption, Article 30(2).

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6. EU Framework Decision 2006/783/JHA

The purpose of EU Framework Decision 2006/783/JHA is to establish the rules under which a Member State shall recognise and execute in its territory a confiscation order issued by a court competent in criminal matters of another Member State. Such execution does not require additional recognition formalities or procedures. According to Article 6 of the Framework Decision, Greek authorities may request execution of a confiscation order by the competent authorities of a Member State when the order relates to corruption, fraud, money laundering, and participation in a criminal organization, among other offences.

Article 4 of the Framework Decision governs transmission of the confiscation order. Greek authorities shall submit the confiscation order (accompanied by a signed certificate of authenticity and accuracy) to the competent authority of a Member State in which the Greek authorities have reasonable grounds to believe that the natural or legal person against whom the confiscation order has been issued has property or income, or in the alternative, where the natural or legal person is normally resident or has its registered seat respectively.

According to Article 5, a confiscation order may only be transmitted to one executing State at any one time, unless Greek authorities: (i) have reasonable grounds to believe that different items of property covered by the confiscation order are located in different executing States; (ii) the confiscation of a specific item of property covered by the confiscation order involves action in more than one State; or, (iii) have reasonable grounds to believe that a specific item of property covered by the confiscation order is located in one of two or more specified executing States.

Before submitting a request for execution, practitioners should verify that none of the conditions or grounds for non-recognition or non-execution listed in Article 8 of the Framework Decision is applicable.

48 │ GUIDELINES FOR PRACTITIONERS IN GREECE ON DOMESTIC AND INTERNATIONAL ASSET RECOVERY

7. United Nations Convention against Corruption

Greece is a State Party to the United Nations Convention against Corruption (UNCAC).58 At the time of these present guidelines were finalised, 181 countries are States Parties to UNCAC.59 Article 31 allows States Parties to take measures to enable the confiscation of proceeds of offences falling under the Convention and property, equipment or other instrumentalities used in or destined for use in such offences.

Under UNCAC, Greek practitioners may submit requests to other States Parties seeking the following types of assistance:

• Tracing or identification of proceeds of crime, property, instrumentalities or other things for evidentiary purposes – including searches and examinations of objects and sites (Articles 46 and 52);

• Freezings and seizures (Articles 46 and 54); and,

• Confiscation (Articles 53 to 55).

In urgent situations, Article 46(14) enables States Parties to make requests orally with subsequent written confirmation.

8. United Nations Convention against Transnational Organised Crime

The United Nations Convention against Transnational Organized Crime (UNTOC) has 187 Parties, including Greece.60

Under UNTOC, Greek practitioners may submit MLA requests to other States Parties in order to obtain assistance with the following measures:

58 Ratified by Law 3666/2008.

59 The complete list of States Parties to UNCAC is available online.

60 Ratified by Law No. 3875/2010. The full list of Parties are available online.

GUIDELINES FOR PRACTITIONERS IN GREECE ON DOMESTIC AND INTERNATIONAL ASSET RECOVERY │ 49

• Identification or tracing of proceeds of serious transnational organised crime, property, equipment or other instrumentalities (Articles 13(2) and 18(g));

• Freezing or seizure of proceeds of serious transnational organised crime, property, equipment or other instrumentalities (Articles 13(2) and 18(3)(c));

• Confiscation (Article 13(1)).

In urgent situations, Article 18(14) enables States Parties to make requests orally with subsequent written confirmation, when such a practice has been agreed to by the Parties involved.

Lastly, when drafting an MLA request pursuant to UNTOC, Greek practitioners should refer to Article 18(15) in order to determine which elements such a request should contain.

9. OECD Anti-Bribery Convention

Greece and 42 other countries are Parties to the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (Anti-Bribery Convention). The Anti-Bribery Convention covers only the bribery of foreign public officials in international business transactions and related money laundering and accounting offences. Article 9 of the Convention provides Greek practitioners with a legal basis to seek MLA from another party for the purpose of investigations and proceedings relating to offences in the Anti-Bribery Convention.

10. European Investigation Orders

Article 28 of EU Directive 2014/41/EU (concerning the European Investigation Order in criminal matters) provides for the monitoring (in real time) of banking or other financial operations that are being carried out through one or more specified accounts. Under the Directive, EU Member States are obligated to recognise and carry out investigative requests from other EU Member States, just as they would with a decision coming from their own authorities. The Directive provides practitioners with guidance regarding the scope of an EIO (Article 3), the types of proceedings for which an EIO can be issued (Article 4), the content and form of an EIO (Article 5), and

50 │ GUIDELINES FOR PRACTITIONERS IN GREECE ON DOMESTIC AND INTERNATIONAL ASSET RECOVERY

the procedures and conditions for issuing and transmitting an EIO (Articles 6-8). In September 2017, the Hellenic Parliament passed Law 4489/2017 transposing EU Directive 2014/41/EU into Greek Law.61 However, Greece seems to currently lack the necessary infrastructure to fully implement the Directive. Additionally, many EU Member States are still in the process of transposing the Directive into their national laws.

C. ENFORCING ORDERS ISSUED BY GREEK AUTHORITIES PERTAINING TO ASSETS LOCATED OVERSEAS

Bilateral and multilateral instruments mentioned above, such as UNCAC, often require Parties to take steps to give effect to freezing, seizure or confiscation orders issued by foreign authorities. In general, jurisdictions execute foreign freezing, seizure, and confiscation orders in two ways: (i) enforcing the order directly; or, (ii) incorporating the foreign order into a domestic order which is then executed pursuant to the country’s domestic procedure. Greek practitioners should be aware that some jurisdictions will only give effect to foreign orders issued by countries with which they have a bilateral MLA treaty. Additionally, other jurisdictions may not enforce foreign orders directly and will instead require Greek authorities to prove their case again in the foreign proceedings, which can be time consuming and costly. As such, Greek authorities should inquire as to the relevant foreign country’s practice before submitting an MLA request for enforcement of certain orders. A good first step would be to contact the Greek Central Authority (contact information in the first section of Part B).

D. PROCEEDINGS IN FOREIGN JURISDICTIONS

If Greek practitioners are unable to obtain a domestic criminal or non-conviction based confiscation order, seeking the same result via proceedings in the foreign jurisdiction may be an option. Greek practitioners should maximise their involvement and maximise the

61 Article 30 of Law 4489/2017 transposed Article 28 of EU Directive 2014/41/EU.

GUIDELINES FOR PRACTITIONERS IN GREECE ON DOMESTIC AND INTERNATIONAL ASSET RECOVERY │ 51

possibility of securing the return of the assets in questions by: (i) ensuring that all requests for information relating to the foreign investigation are executed swiftly; (ii) participating in the foreign criminal proceedings as a civil party or victim; and, (iii) agreeing, if possible, on how the relevant assets will be shared should a conviction be secured. Often, jurisdictions will order restitution to be made to the victim State from any seized or confiscated assets, and repatriation of assets (discussed below) can occur quickly if relevant parties agree on the basis for such repatriation and extent of available restitution.

Greek practitioners may also be able to institute civil proceedings in the foreign jurisdiction. In such cases, the Greek State would act as a civil plaintiff in a proceeding directly against the individuals or entities involved in the wrongful conduct (e.g. tortious conduct, illicit enrichment, etc.), in order to seek compensation for the harm done to the State.

E. REPATRIATION OF FUNDS

Once a foreign court issues a final order of confiscation for assets, Greek authorities must secure their return. Greek practitioners may seek the repatriation of assets by resorting to:

• Bilateral MLA treaties: Some treaties to which Greece is a party explicitly provide for the return of assets, including the Greece-Australia MLAT (Article 17(5)), Greece-Canada MLAT (Article 13(2)) and the Greece-United States MLAT (Article 17(3)). Practitioners should make sure that a bilateral MLA treaty has such a provision, and should resort to multilateral instruments if not.

• Multilateral treaties: (i) Warsaw Convention of 2005, Article 25(1)); (ii) Council of Europe Convention of 1990, Article 15; (iii) UNCAC, Article 57(3) and (b); (iv) UNTOC, Article 14. With respect to UNCAC and UNTOC, practitioners must be sure that the offences for which they request repatriation of assets are included in the scope of the Conventions.

• EU Framework Decisions: In the absence of a specific legal provision or agreement providing for asset repatriation or asset

52 │ GUIDELINES FOR PRACTITIONERS IN GREECE ON DOMESTIC AND INTERNATIONAL ASSET RECOVERY

sharing, Greek authorities may resort to Article 16(1) of EU Framework Decision 2006/783/JHA. The Decision allows funds that have been obtained from the execution of a confiscation order to be disposed of as follows: (i) if the amount obtained is below EUR 10 000 or the equivalent to that amount, the amount shall accrue to the executing State; (ii) in all other cases, 50% of the amount which has been obtained shall be transferred by the executing State to the issuing State.

• Judicial process of foreign jurisdiction: Such returns are carried out in domestic court proceedings in the foreign jurisdiction and may involve the foreign court ordering compensation or damages to be made directly to the Greek government. Additionally, repatriation may be made pursuant to settlement agreements or plea bargains concluded by foreign jurisdictions.

• Asset-sharing agreements: Under UNCAC, UNTOC and the Warsaw Convention of 2005, the Greek government may enter into asset-sharing agreements with other States Parties for the purpose of sharing confiscated assets. Such agreements may either be standing or case-specific agreements.

Greek practitioners should contact the Greek Central Authority (contact information above) for purposes of establishing contact with counterparts in the relevant foreign jurisdiction for purposes of agreeing to and facilitating asset repatriation.

Greece-OECD Project: Technical Support on Anti -Corruption

Assessment and Review of Asset

Recovery Institutional Arrangements in

Greece

This document is published under the responsibility of the Secretary-General of the OECD. The opinions expressed and arguments employed herein do not necessarily reflect the official views of OECD member countries.

This document and any map included herein are without prejudice to the status of or sovereignty over any territory, to the delimitation of international frontiers and boundaries and to the name of any territory, city or area.

This document was produced with funding by the European Union. The views expressed herein can in no way be taken to reflect the official opinion of the European Union.

About the OECD

The OECD is an international organisation in which governments compare and exchange policy experiences, identify good practices in light of emerging challenges, and promote decisions and recommendation to produce better policies for better lives. The OECD’s mission is to promote policies that improve economic and social well-being of people around the world.

www.oecd.org

About the Greece-OECD Project

The Greek government is prioritising the fight against corruption and bribery and, with the assistance of the European institutions, is committed to taking immediate action. Under the responsibility of the General Secretariat against Corruption, Greece’s National Anti-Corruption Action Plan (NACAP) identifies key areas of reform and provides for a detailed action plan towards strengthening integrity and fighting corruption and bribery. The OECD, together with Greece and the European Commission, has developed support activities for implementing the NACAP. This project is carried out with funding by the European Union and Greece.

www.oecd.org/corruption/greece-oecd-anti-corruption.htm

3

Table of Contents

I. Introduction...................................................................................................................................... 4

II. Review of the current institutional arrangements in Greece ........................................................... 4

A. Lack of co-ordination between authorities .................................................................. 5

B. Lack of centralisation of available expertise and resources ........................................ 5

C. Lack of available data and statistics relating to asset recovery ................................... 6

III. Institutional arrangements in OECD Member Countries ................................................................ 7

A. France .......................................................................................................................... 7

B. Belgium........................................................................................................................ 7

C. Spain ............................................................................................................................ 8

D. United Kingdom .......................................................................................................... 8

E. Ireland .......................................................................................................................... 9

F. Portugal ........................................................................................................................ 9

IV. Recommendation to Create a Hellenic Asset Recovery Agency (HARA) ...................................... 9

A. Mandate ..................................................................................................................... 10

B. Independence ............................................................................................................. 10

C. Organisation ............................................................................................................... 11

D. Database access ......................................................................................................... 14

E. Consolidated internal HARA database ...................................................................... 14

V. Institutional framework for asset management .............................................................................. 15

A. The current institutional gap in regards to asset management ................................... 15

B. Establishment of a specialised asset management body ............................................ 16

C. Mandate and prerogatives of a proposed specialised asset management body ......... 16

D. Better-defined responsibilities and improved co-operation among competent

authorities ................................................................................................................................... 17

E. Regulatory framework for asset management: the need for clear principles and

operating rules .................................................................................................................................. 19

F. General principles that should govern asset management ......................................... 19

G. Good practices in the management and disposal of assets ........................................ 21

VI. Conclusion ..................................................................................................................................... 24

4

I.Introduction

Greece’s National Anti-Corruption Action Plan (NACAP) sets out key areas for reform and

defines priorities with a view to enhancing the integrity, transparency and the fight against corruption.

Through its Greece Technical Assistance Project, the OECD has committed to supporting the Greek

authorities and to provide technical guidance to implement the reform agenda in a series of pre-

identified areas. The Project was made possible with funding by the European Union.

This document has been produced under Outcomes 10.3 and 10.4 of the Technical Assistance

Project. It assesses Greece’s current institutional arrangements for asset recovery. This analysis

includes consideration for establishing a specialised state body to manage seized and confiscated

assets. It also considers the obligations of law enforcement officials to report freezing, seizure and

confiscation orders. The document is based on information obtained from independent research by the

OECD; responses to a questionnaire submitted by Greek authorities in January-February 2017; and

consultation meetings with Greek authorities in Thessaloniki and Athens in mid-February 2017.

Additional consultation workshops were held in Thessaloniki and Athens in November 2017. An

assessment of Greece’s current legal and regulatory framework for asset recovery (Outcomes 10.1 and

10.2) and guidelines to practitioners on asset recovery (Outcome 10.5) are covered in separate

deliverables.

In addition to analysing the existing Greek framework, this document provides

recommendations for improvement. After reviewing the existing Greek institutional arrangement for

asset recovery, the document examines the framework in other OECD countries. The document then

sets forth recommendations for reform in Greece with a view to establishing a common and co-

ordinated approach towards asset recovery for all authorities. The last part of the document examines

the existing system of managing seized as well as confiscated assets and proposes the creation of a

specialised body to address this problem.

II.Review of the current institutional arrangements in Greece

Various law enforcement, prosecutorial, and judicial authorities in Greece may seek the

recovery of assets in corruption cases:

• Prosecutorial authorities (e.g. PPACC, ECP, Prosecutors at the Court of First

Instance, etc.)

• Judicial Authorities (e.g. investigative judges of Law 4022/2011)

• Court of Audit

• Financial and Economic Crime Unit (SDOE)

• Hellenic Police (including the Financial Police Division, the Internal Affairs

Directorate, and the International Police Co-operation Directorate)

• Hellenic Financial Intelligence Unit (FIU)

• Internal Affairs Service of the Ministry of Shipping and Island Policy, & Hellenic

Coast Guard

• Independent Authority for Public Revenue: Tax Authorities and the Customs Service

The numerous bodies performing the same function leads to concerns about: (i) a lack of co-

ordination between authorities; (ii) lack of centralisation of available expertise and resources; and

(iii) a lack of available data and statistics relating to asset recovery.

5

A. Lack of co-ordination between authorities

Most of the abovementioned bodies act separately, have varying powers, and do not co-

ordinate amongst themselves in a regular and consistent manner. Additionally, members of several of

the bodies (e.g. SDOE, investigative judges of Law 4022/2011) have stated that they are not in a

position to describe the current Greek institutional and legal framework relating to the cooperation,

communication and coordination between all agencies involved in asset recovery.

For example, the Public Prosecutor against Crimes of Corruption (PPACC) and the Economic

Crime Prosecutor (ECP) do not have explicit co-ordination procedures and risk carrying out related

investigations without informing each other.1 Additionally, effective asset recovery efforts are often

hampered by the large amount of non-technical and irrelevant requests sent to specialised

investigative services (e.g. the Financial Police Division, etc.) which could be executed by general

police authorities. Lastly, the Hellenic FIU gathers intelligence on its own and does not engage in

regular and direct communication with other intelligence bodies such as the Hellenic Police

Intelligence Division.

It is also not uncommon for asset recovery bodies to be required to submit requests for

information to other authorities because they either do not have access to certain types of databases or

the information is typically held by other types of bodies. For example, while SDOE has access to

certain databases such as ELENXIS and the Registry System of Payments and Bank Accounts, it is

required to submit requests to other authorities for assistance with asset identification and tracing.2

Similarly, the FIU cites difficulty in coordinating efforts to identify criminal assets. For example, it

often experiences inefficient cooperation with other services such as the mortgage registry, consisting

of long delays in responding to its requests for information that should be readily available.3 Lastly

and more generally, the Financial Police Division (FPD) has stated that the lack of regular and

consistent information exchange and coordination leads to decreased institutional knowledge and lost

opportunity. Asset recovery efforts are inefficiently monitored and analysed across the various

services and best practices and successful investigative techniques often go unnoticed and therefore

unused.4

B. Lack of centralisation of available expertise and resources

Currently in Greece, asset recovery efforts are spread out across different bodies and often

depend on each body’s specific competencies and/or mandate and the tools each has at its disposal.

Such fragmentation of stakeholders disperses expertise and prevents economies of scale. Additionally,

numerous stakeholders have stated that asset recovery expertise and resources available to them are

grossly insufficient. It is not uncommon for judges and prosecutors investigating complex financial

crime to be supported by volunteer or ad hoc experts. For example, the PPACC has financial analysts

but not asset recovery experts. While adequate training is an important aspect of law enforcement

readiness and capacity, it is only one of several components of an effective asset recovery framework.

1 Consultation meeting with Athens PPACC, February 2017. The PPACC stated that while the office of

the PPACC engages in ongoing communication with the office of the ECP, there are no formalised standards

and in practice similar efforts are carried out in parallel. Additionally, there is no system in place that would

allow the PPACC to be informed or aware of existing corruption investigations (including efforts related to asset

recovery) that would fall under its jurisdiction. 2 SDOE Reply to OECD Questionnaire, Question 10. 3 Hellenic FIU Reply to OECD Questionnaire, Question 24. 4 Financial Police Division Reply to OECD Questionnaire, Question 13.

6

Authorities involved in asset recovery often undergo transformation, resulting in

fragmentation and confusion and overlap regarding mandates and competencies. For example,

recently in 2015, SDOE’s competence to investigate tax and customs offenses was transferred to the

Independent Authority for Public Revenue (IAPR), along with approximately 500 of its officers.5

SDOE has stated that, as a result, its capacity to trace and identify assets has been severely hampered,

which remains to be seen. SDOE management recently stated that it expects to hire 90 new officers

and incorporate an additional 78 officers from other government ministries and agencies. However,

this number is much lower than the 500 officers SDOE recently lost, and is unlikely to restore

SDOE’s capacity.

Such fragmentation is also particularly visible in the area of international asset recovery.

Currently, SDOE-ARO (national asset recovery office for Greece) facilitates asset recovery efforts

(tracing and identification for the purpose of eventual seizure and confiscation) through the European

ARO Platform and through other networks such as CARIN. Similarly, the International Police

Cooperation Directorate (IPCD) also assists Greek and foreign law enforcement seeking information

for the purpose of tracing and identifying assets, albeit through other channels such as INTERPOL,

EUROPOL, and SIRENE.6 Lastly, the FIU exchanges such information internationally through FIU-

Net and the Egmont Group.7

Lastly, the capacity of some asset recovery stakeholders to investigate corruption offenses and

recover assets is obstructed by a lack of permanent staff and organisational expertise. For example,

representatives of the FPD note a lack of continuity with respect to asset recovery efforts in corruption

cases due to a lack of operational support, highly-qualified analysts, and permanent staff.8 According

to the FPD, such deficiencies adversely impact their capacity and demonstrate the importance of

prioritising readily available expertise and the need to stay up to date on legal issues and trends in

criminal activity as they pertain to asset recovery.

C. Lack of available data and statistics relating to asset recovery

In Greece, there is a dearth of data and statistics regarding asset recovery actions for both

domestic law enforcement purposes in Greece and for international cooperation efforts with foreign

jurisdictions and entities such as Eurojust, Europol and Interpol. For example, Article 88 of Law

3842/2010 requires all Greek law enforcement and judicial authorities to inform SDOE-ARO of all

freezing, seizure, and confiscation actions, in order to allow SDOE to compile data and to respond to

requests from other jurisdictions in a timely manner. However, SDOE representatives have

highlighted that such reporting is not done in practice.

Data and statistics on asset recovery efforts (i.e., the number and value of assets frozen, seized, or confiscated) are essential in order to monitor the performance of the asset recovery systems and of investigative techniques used in complex investigations involving corruption and organised crime.9 According to paragraphs 36 and 37, and Article 11 of EU Directive 2014/42/EU on the freezing and confiscation of proceeds of crime provides that Member States shall regularly collect and maintain comprehensive statistics on asset recovery measures carried out by their domestic authorities. However, representatives of several judicial, prosecutorial and law

5 Pursuant to Article 2(subparagraph D.7) of Law 4336/2015. 6 See Article 8 of Presidential Decree 178/2014. 7 Article 7A(v) of Law 3691/2008. 8 Financial Police Division Reply to OECD Questionnaire, Question 17. 9 Europol, Does Crime Still Pay? Criminal Asset Recovery in the EU: Survey of Statistical Information

2010-2014 (European Police Office, 2016), p. 5.

7

enforcement bodies in Greece (e.g. investigative judges of Law 4022/2011, PPACC,10 ECP11, FPD)

have stated that they do not maintain statistics on asset recovery measures and do not have access to

asset recovery-specific databases. Many stated that such tools and resources would be effective.

The FPD stated that there are no readily available statistics on asset recovery because

authorities are under no obligation to provide such information and because there is no specialised

entity for processing such information.12 In this respect, it highlighted the need for an institutional

framework that would allow for the monitoring and recording of such asset recovery efforts. During

OECD consultation meetings, SDOE also highlighted a need for an electronic system that would

allow for data entry and the production and analysis of statistics pertaining to asset recovery efforts by

Greek authorities.

III.Institutional arrangements in OECD Member Countries

To address similar concerns about co-ordination and efficient use of expertise, many OECD

countries have created centralised, dedicated bodies for asset recovery.

A. France

The asset recovery office for France is the Central Directorate for Criminal Investigations

(Plateforme d’Identification des Avoirs Criminels - PIAC). PIAC is a division of the National Police

and operates under the umbrella of the Ministry of the Interior, consisting of police officers and

gendarmes. Under its mandate, PIAC is responsible for identifying assets related to criminal activity

and has the authority to conduct investigations under the supervision of a judicial authority.

Additionally, when a PIAC official identifies assets that are subject to seizure, it must notify the

competent prosecutor for further action.

In addition to its asset tracing and investigative powers, PIAC records the information it

obtains during its investigations and information it receives from local and regional law enforcement

authorities into a central database.13 This database serves as a source of information during its

investigations and allows PIAC officials to respond to information requests from foreign jurisdictions.

PIAC also serves as the French Asset Recovery Office (ARO) for purposes of EU Council Decision

2007/845/JHA and as the French CARIN point of contact.

B. Belgium

In Belgium, the handling of asset recovery matters falls to the Belgian Central Office for

Seizure and Confiscation – COSC. COSC is housed within the Office of Public Prosecutions and has

liaison officers from the Ministry of Justice, Ministry of Finance and the Federal Police. It is managed

by public prosecutors.

COSC is responsible for assisting judicial and police authorities seize and confiscate assets

related to criminal activity. COSC co-ordinates the enforcement of confiscation orders alongside the

Federal Public Finance Service (known as the Belgian Ministry of Finance). The actual confiscation is

carried out by the Federal Public Finance Service, whereas COSC may replace the public prosecutor’s

10 PPACC (Athens) Reply to OECD Questionnaire, Questions 16-18, 24, 26. 11 ECP Reply to OECD Questionnaire, Question 28. 12 Financial Police Division Reply to OECD Questionnaire, Question 11. 13 Minister of the Interior Circular NOR INT/C/07/00065/C (15 May 2007) to Police and Prosecutorial

Agencies in France.

8

office in overseeing the confiscation and make recommendations when necessary.14 Additionally, law

enforcement authorities in Belgium are required to report seizures and confiscations to COSC, which

enters the data into a database for the purposes of recording and analysing asset recovery measures.

Lastly, COSC also serves as the Belgian national contact point for CARIN.

C. Spain

In 2015, Spain created a joint Office for Asset Recovery and Management (Oficina de

Recuperación y Gestión de Activos – ORGA) operating under the umbrella of the Ministry of Justice.

The ORGA consists of: (i) one Sub-directorate for asset tracing and recovery; and, (ii) one Sub-

directorate for asset preservation and administration.15

The sub-directorate for asset tracing and recovery is responsible for identifying, searching for,

and locating assets, instruments and proceeds of crime located both inside and outside of Spain. It is

also in charge of providing intelligence to Spanish judicial authorities as well as foreign jurisdictions

and may act upon the order of the competent judicial authority or the Public Prosecutor’s Office, as

well as on its own when no judicial approval is required (e.g. intelligence gathering, voluntary

interviews, etc.). In carrying out its duties, the sub-directorate for asset tracing and recovery co-

ordinates with the central units of the Security Forces and may call upon the collaboration of any

public of private bodies that it deems necessary.16

D. United Kingdom

Created in 2014, the Proceeds of Crime Service of the Crown Prosecution Service is

responsible for overseeing all freezing, seizure, and confiscation orders in the United Kingdom. The

Proceeds of Crime Service is led by a Chief Crown Prosecutor who is assisted by a Deputy Chief

Crown Prosecutor responsible for day-to-day operational delivery of the unit. The service consists of

three central units and nine Regional teams. The central units focus on the high-priority cases that

meet pre-defined criteria. The regional teams are staffed by lawyers and investigators who are

responsible for general enforcement.17 Members of the Proceeds of Crime Service have access to a

Joint Asset Recovery Database (JARD), which stores information about all asset recovery cases going

through the criminal justice system. In addition to accessing outstanding orders, members may update

the database with relevant information as needed.

The United Kingdom Serious Fraud Office also has a Proceeds of Crime Division (a team of

specialist lawyers and financial investigators) which engages in asset recovery activity relating to its

cases, including carrying out confiscation investigations and seeking and enforcing confiscation

orders.18

14 Council of the European Union, Report on Belgium, 9518/2/19, 7 September 2010, p. 73. 15 Royal Decree 948/2015 of 23 October 2015, regulating the Spanish Asset Recovery and

Management Office. 16 Royal Decree 948/2015 of 23 October 2015, Article 6(1)(1). 17 Every CPS case that requires in-house restraint or enforcement work will be handled by a dedicated

proceeds of crime team. The teams will also carry out some confiscation work when there is a freezing order in

place. 18 The UK SFO Proceeds of Crime Division carries out its mandate using the powers in the Proceeds of

Crime Act of 2002, http://www.legislation.gov.uk/ukpga/2002/29/contents (see Part 2 on Confiscation).

9

The United Kingdom also has an ARO which is housed within the United Kingdom FIU,

under the umbrella of the National Crime Agency. The ARO also serves as the CARIN national

contact point for the United Kingdom and has access to JARD.

E. Ireland

In Ireland, the specialised asset recovery agency is the Criminal Assets Bureau (CAB).19 CAB

is an independent entity headed by a Chief Bureau Officer who is appointed by the Commissioner of

the Garda Síochána (Irish National Police).20 The CAB takes multi-agency collaborative approach to

asset recovery, employing officers of the National Police and officials from the Departments of

Revenue and Social Welfare. Its objectives consist of identifying and investigating the proceeds of

criminal conduct and denying and depriving people of the benefits of assets that are the proceeds of

criminal conduct by freezing, preserving an confiscating such assets. Officials of the CAB have a

range of tools at their disposal in addition to their general investigative powers, including the ability to

apply for search warrants.21 The CAB also assists foreign AROs by executing tracing requests for

assets believed to be located in Ireland. It serves as the CARIN point of contact.

F. Portugal

Portugal has a specialised asset recovery agency known as the Gabinete de Recuperação de

Activos (GAR). The GAR is part of the National Judicial Police and operates under orders from the

Public Prosecutor’s office.22 The mandate of the GAR is to identify, trace and seize property or

proceeds related to criminal activity (both domestically and internationally) and to co-operate with

AROs of other countries.23 GAR members may access several databases to gather intelligence,

including: (i) national tax database; (ii) customs database; (iii) social security database; (iv) insurance

and pension database; (v) securities and exchange commission; (vi) Bank of Portugal; (vii) civil

aviation service; (viii) maritime authority. GAR also operates as the country’s ARO for purposes of

EU Council Decision 2007/845/JHA. Lastly, the GAR also collects, analyses, and processes

statistics/data on seizure and confiscation of assets.

IV.Recommendation to Create a Hellenic Asset Recovery Agency (HARA)

It is recommended that Greece follow the examples of other countries and establish a Hellenic

Asset Recovery Agency (HARA). A dedicated asset recovery law enforcement agency could address

the problems of co-ordination caused by the current institutional fragmentation. It would also go some

ways to address and resolve an issue often raised by Greek judges and prosecutors: the lack of

19 Created by the Criminal Assets Bureau Act of 1996. 20 The CAB is neither a prosecuting body nor a police authority. It is an investigating authority which,

having investigated and used its powers of investigation, applies to the Court for assistance in enforcing its

functions. The CAB investigates for the purpose of securing assets which have been acquired as a result of

criminal activities and indeed ultimately paying those assets over to the State. 21 Irish Criminal Assets Bureau – Annual Report (2013), p. 7 (A Section 14 search warrant operates by

allowing a named CAB officer, who is a member of the Garda Síochána, to search, seize and retain material at

the location named). 22 Law No. 45/2011 of June 24 (as amended by Law no 60/2013, of 23 August) on the Establishment of

an Asset Recovery Office. 23 When judicial authorisation is required, the relevant GAR official must make an application to the

court with information regarding the information sought and the specific involvement of relevant individuals in

criminal activity.

10

available expertise and its negative impact on investigations and prosecutions.24 The mandate and

features of HARA are described below.

On 13 April 2018, Greece published a Joint Ministerial Decision 24256/18 to reform the

Asset Recovery Office (ARO) in SDOE. The Greek authorities state that the SDOE ARO is the new

HARA. The OECD Project Team held consultation meetings and workshops with Greek stakeholders

in February and November 2017. During these consultations, the Greek authorities did not indicate

that a reform of SDOE ARO was forthcoming. Since the current assessment report was finalised at the

end of April 2018, it is unlikely that the Joint Ministerial Decision has been fully implemented in

practice. Whether SDOE ARO corresponds to the features of HARA as described below would

therefore need to be assessed at a later time.

A. Mandate

HARA should employ both a reactive (e.g. facilitation of recovery measures once assets have been identified) and proactive (e.g. analysis of intelligence and criminal patterns/activities) approach

to asset recovery. Such an approach is similar to those implemented by PIAC in France and the CAB

in Ireland. The aim of HARA should not be to prosecute persons for offences but rather to secure

assets that have been obtained as a result of criminal activity and ultimately turning over such assets

to the Greek State. Its mandate is therefore to:

i. Provide centralised investigative support in the area of asset recovery at the request

of Greek investigators, prosecutors and investigative judges who are conducting

criminal investigations.

ii. Oversee and carry out international information exchange in asset recovery matters;

and

iii. Produce statistics, analysis and intelligence regarding asset recovery.

HARA’s jurisdiction should include all economic crimes excluding tax cases. Asset recovery

bodies in most OECD countries cover all economic crime cases. In Greece’s case, however, inclusion

of tax cases in HARA’s mandate would likely result in such offences receiving priority over asset

recovery related to corruption and other forms of economic and organised crime (ranging from insider

trading and fraud to drug trafficking). The OECD has expressed a similar concern over a merger of

the prosecutor offices responsible for corruption and tax cases.25 Rather, the authorities currently

responsible for enforcing tax provisions (namely ECP, FPD, and IAPR) should remain responsible for

asset recovery in tax cases and should allow relevant HARA officials to access necessary databases to

carry out their investigative duties. Such a division of labour would allow for greater efficiency by: (i)

ensuring uninterrupted and continued development of investigative expertise in the area of tax

enforcement; (ii) avoiding unnecessary bureaucracy and overlapping mandates across various bodies;

and, (iii) providing HARA with the necessary resources to effectively fulfil its mandate.

B. Independence

An important feature with the asset recovery agencies in other countries described above is

that they are independent from the executive. Because an asset recovery agency is part of an

24 See Output 4.3-4.4: Technical Proposals and Reference Materials for Building Capacity and

Mobilisation of Greek Law Enforcement Authorities, Section 6 (“Pooling of Experts”). 25 Output 4.3-4.4: Technical Proposals and Reference Materials for Building Capacity and Mobilisation

of Greek Law Enforcement Authorities, Section 2 (“Jurisdiction of the Public Prosecutor against Crimes of

Corruption”).

11

investigative team in a criminal case, its independence is vital to guaranteeing that the overall

investigation is free from external interference or pressure.

C. Organisation

HARA should be divided into three complementary units: operational (which is the core of

the agency); data collection and analysis; and legal.26

1. Operational Unit

a) General Considerations

The Operational Unit of HARA should be responsible for tracing and seizing assets with a

view towards confiscation. The unit should be staffed by law enforcement officials who have

significant experience in tracing, freezing and seizing assets and proceeds of crime.27 The United

Kingdom follows a similar approach by centralising subject-matter expertise within individualised

teams of law enforcement officials and investigators all of whom have experience in executing

freezing and seizure orders. Such teams regularly liaise with prosecutorial bodies when necessary

with a view to final confiscation.

It is also not uncommon for asset recovery agencies in other jurisdictions to employ

collaborative multi-agency approaches to asset recovery. For example, in Ireland, officials from

Departments of Revenue and Social Protection are seconded to the CAB to assist with subject-matter

specific responsibilities and to liaise with these departments. HARA should thus consider receiving

officials seconded from relevant agencies (e.g. tax and customs). However, HARA should have a

substantial core of its own officials who are not secondments to maintain continuity, stability and

independence (see above). Lastly, HARA should be empowered to hire experts on a case-by-case

basis to address issues that arise infrequently.

The unit’s officers should have the ability to either act upon:

1. receiving a request from prosecutorial, judicial or law enforcement authorities;

2. receiving a request from a foreign authority; or,

3. its own initiative after identifying assets through its own tracing activity.

To discharge these responsibilities, the unit’s officers should have the power to:

1. Identify and trace the direct or indirect proceeds of crime or other property the value of which

corresponds to that of such proceeds or property, equipment or other instrumentalities used in

or destined for use in criminal activity, wherever situated;

2. Seek orders to freeze, seize, and confiscate the direct or indirect proceeds of crime or other

property the value of which corresponds to that of such proceeds or property, equipment or

other instrumentalities used in or destined for use in criminal activity, wherever situated;

3. Carry out short-term freezing and seizure measures when assets are at immediate risk of

dissipating;

26 Additional units dealing with functions such as IT systems and human resources are of course

necessary but are not detailed in this proposal as they do not relate specifically to asset recovery. 27 See Recommendation by Stolen Asset Recovery (STAR) Initiative, Few and Far: The Hard Facts on

Stolen Asset Recovery (2014), p. 50.

12

4. Oversee the execution of freezing, seizure and confiscation orders.

The Operational Unit should also be responsible for ensuring international co-operation

regarding asset recovery. To this effect, it should also function as the Hellenic ARO for purposes of

EU Council Decision 2007/845/JHA and as the national contact point for CARIN. The unit should

also be the focal point for asset recovery issues with respect to information gathered by relevant

Greek officials stationed abroad – both in terms of collecting information and providing information.

To meet the standards of Articles 3 and 4 of the EU Council Decision 2007/845/JHA, the operational

unit should create standardised practices for exchanging information, including procedures for the

spontaneous exchange of information. The operational unit would also represent HARA at EU and

international levels.

A critical issue is resources. As mentioned above, during consultations with the OECD Team

in 2017, SDOE stated that its asset recovery capabilities were severely reduced in 2015 after it lost

some 500 officers to the Independent Authority for Public Revenue. In November 2017, SDOE stated

that there were plans to hire 90 new officers and incorporate 78 officers from other government

ministries and agencies. But this would replace only a fraction of the staff that was lost in 2015.

Furthermore, the new officers will need to have sufficient expertise in asset recovery if SDOE ARO is

to be effective.

b) Considerations regarding separation of tax and non-tax related cases

HARA’s jurisdiction should exclude tax cases for reasons outlined above in Section IV.A.

Merging tax-related with non-tax related asset recovery efforts would result in increased focus and

priority on tax offences and prejudice efforts to investigate and prosecute crimes of corruption and

other forms of economic crime. This is particularly so due to the ECP’s broad jurisdiction under

Article 17A § 3 of Law 2523/1997, which, as a result, increases the likelihood that a large majority of

available resources are allocated to tax crimes given their importance today in Greece. Additionally,

the ECP works with specialized bodies such as the FPD and the IAPR in carrying out its mandate to

investigate and prosecute tax offences. Keeping such offences separate is therefore even more critical

with regard to asset recovery.

In light of the foregoing, Greece should establish two national Asset Recovery Offices for the

purposes of EU Council Decision 2007/845/JHA. Such a practice would be in line with Article 1(2) of

the Decision, which provides that: “where a Member State has more than two authorities charged with

the facilitation of the tracing and identification of proceeds of crime, it shall nominate a maximum of

two of its Asset Recovery Offices as contact point(s).”

As has been described throughout this document, there are various bodies charged with the

tracing and identification of criminal proceeds in Greece, which involve both tax and non-tax related

offences. It would be more appropriate for the authorities responsible for tax matters (i.e. the ECP and

IAPR) to be responsible for asset recovery in tax-related offences. Additionally, the practice of having

two national AROs depending on expertise and jurisdiction has been implemented in other

jurisdictions, such as Germany and the Netherlands. Separating such efforts in Greece would enhance HARA’s ability to focus on all types of economic crime, including corruption, and equally bolster the

country’s efforts to trace and identify funds that should have been subject to tax by the State.

2. Data Collection and Analysis Unit

As described above, part of HARA’s mandate is to maintain an internal asset recovery

database and produce statistics, analysis and intelligence regarding asset recovery. A Data Collection

and Analysis Unit should be created to discharge these aspects of HARA’s mandate. The unit would

consist of analysts who have experience in statistics, data management, and financial analysis. This

13

unit should ensure that the internal HARA database (see Database section below) is regularly updated

by gathering and organising all available information on asset recovery measures in Greece. It shall

assist the Operational Unit and analyse data it gathers to identify trends, intelligence, and areas for

improvement. This approach is consistent with international best practices and recommendations (e.g.

France, United Kingdom).28

The current provisions requiring the FIU29 and judicial and law enforcement authorities30 to

report to SDOE on all freezing, seizure and confiscation orders, should instead designate the Data

Collection and Analysis Unit as the relevant authority for such reports (see recommendation in Asset

Recovery Framework Analysis). Such a reporting obligation is important because it serves two

objectives: (1) reporting would enable HARA to maintain a comprehensive record of all asset

recovery measures carried out by Greek authorities; and, (2) reporting would ensure that HARA is

able to readily access information and quickly respond to information requests received through

EUROPOL, CARIN and other channels.31 Such a practice draws upon international standards. For

example, in the United Kingdom, law enforcement officials involved in asset recovery regularly

consult and update a Joint Asset Recovery Database (JARD), which stores information about all asset

recovery cases going through the criminal justice system. Such a tool not only ensures overall efficiency and reliability of information, but also makes actionable intelligence readily available to

investigators, and as a result further enables proactive asset recovery efforts (see further detail below

in section on consolidated internal HARA database). This would also address some of the needs

highlighted by various stakeholders throughout the course of the questionnaire and consultation

meetings phases. Additionally, creating harmonised practices under a uniform body would avoid

problems highlighted by expert bodies on asset recovery (e.g. EUROPOL Criminal Assets Bureau) –

which advise against having multiple national bodies collect different types of data (e.g. data

pertaining to different stages of proceedings).32

Lastly, the Unit should co-ordinate with other Greek government intelligence bodies (e.g.

Hellenic FIU and the Hellenic Police Intelligence Division) in order to enhance access to and use of

intelligence and also to ensure that intelligence efforts are not duplicated.

3. Legal Unit

HARA should have a unit dedicated to legal and policy issues. The unit should be headed by a

legal officer who reports directly to the President of HARA and is responsible for providing in-house

counsel on issues relating to the agency’s mandate. The legal officer should have demonstrated

experience in asset recovery and be responsible for handling all legal issues pertaining to freezing,

seizure and confiscations orders. The legal officer should also represent HARA in legal proceedings.

28 For example, the Europol Criminal Assets Bureau recommends the implementation of the collection

of data regarding asset recovery measures, including the collection of information at a central level, the

digitalization of confiscation orders, and allows asset recovery bodies to monitor trends and patterns. See

Recommendations 1 & 2 in Europol, Does Crime Still Pay? Criminal Asset Recovery in the EU: Survey of

Statistical Information 2010-2014 (European Police Office, 2016), p. 11; See Recommendation on Data

Collection by Stolen Asset Recovery (STAR) Initiative, Few and Far: The Hard Facts on Stolen Asset Recovery

(2014), p. 64. 29 Article 40 of Law 3691/2008. 30 Article 88 of Law 3842/2010. 31 CARIN is an informal network of contacts and a co-operative group focused on tracing and

confiscating the proceeds of crime. It is a network of practitioners from 53 jurisdictions. 32 Europol, Does Crime Still Pay? Criminal Asset Recovery in the EU: Survey of Statistical Information

2010-2014 (European Police Office, 2016), p. 12.

14

4. Asset Management Unit

It is proposed that HARA also contain a unit to manage seized and confiscated assets. The

rationale and details of this unit is discussed in Section V below.

D. Database access

In order to respond to tracing requests from judicial and prosecutorial authorities, HARA

officials would require unrestricted access to databases. Agency officials should be able to readily

request data held by the FIU. HARA officials should have access to the following types of databases,

among others:

• Registry System of Bank and Payment Accounts;

• All databases of AADE33 (including E9 –ENFIA, ELENXIS, TAXIS, ICIS, other customs

databases, etc.);

• Asset declaration forms34 (internal affairs divisions, SFIU, etc.);

• Land and mortgage registers;

• Cadastre system (to be established in 2020);

• Police database (Police Online);

• Civil Aviation Authority (YPA);35

• Vehicle, car, and ship registers; and

• An internal consolidated database within HARA (described below).

E. Consolidated internal HARA database

As mentioned above, HARA should also employ a proactive approach to asset recovery and

provide intelligence and analyses of trends to other law enforcement bodies. This activity would

require the establishment of Uniform Asset Recovery Database (“UARD”) that serves two functions:

(1) create a searchable platform containing information relating to all existing asset recovery

cases in the Greek criminal justice system (freezing, seizure and, confiscation). UARD would

organise intelligence in an efficient manner, making it a valuable resource for HARA officials

responsible for recovering assets. It would contain information collected by HARA officials during

their cases including updates on freezing, seizure and confiscation orders. UARD should also include

intelligence provided by local and regional, and foreign authorities. Such intelligence would

encourage proactive investigations by the Operational Unit and make essential information readily

available.

(2) allow for analysis of complex data and identification of trends in asset recovery. UARD

would allow the Data Collection and Analysis Unit to generate statistics to identify trends and

33 Without access to tax databases such as the one administered by AADE, HARA’s asset tracing

powers could be negatively impacted. For example, the officers of the Financial Police Division have cited the

many problems and delays in their investigations that are caused by lack of access to databases of the Ministry

of Finance. 34 Section II.B.3.c of Asset Recovery Framework Analysis (“Asset Declarations”). 35 http://www.ypa.gr/

15

evaluate existing efforts.36 Additionally, data collection and analysis would be useful in guiding future

policies on asset recovery and help identify how funds and human resources should be allocated.

Such statistics could be made publicly available in order to demonstrate the efforts of law

enforcement and highlight progress achieved. Publishing data in aggravated form and not about

specific cases would alleviate privacy concerns. The following types of data should be made available

on an annual aggregated basis: (i) number of assets frozen and confiscated; and (ii) number and

amount of reparations or restitution orders (including per country).

V. Institutional framework for asset management

Asset management concerns the maintenance of assets that have been seized or frozen but not

yet confiscated. The purpose of management is to preserve the assets for evidentiary purposes,

eventual confiscation, or return to the owner if confiscation is not ordered.37

A. The current institutional gap in regards to asset management

The main problems in existing practices in Greece with respect to asset management derive

from the lack of a specialised agency responsible for the management of all assets, a lack of

centralisation of custodial efforts across all agencies, and an unclear legal basis for the management of

assets. As a result, there is significant fragmentation in the area of asset management and no proper

programme in place in Greece, and the piecemeal administration of seized assets seems to be driven

more by the need to store assets than to preserve and optimize their value.

Examples of how seized assets are currently handled are compelling. Seized bank accounts of

all types are systematically frozen pending final decision. Monies held in a chequing account, for

instance, are not transferred to an interest-bearing bank account. Cash that has been physically seized

is generally placed in consignment under the supervision of the Consignments, Deposits and Loans

Fund (Ταμείο Παρακαταθηκών και Δανείων)(Deposits and Loans Fund), an independent public

institution supervised by the Minister of Finance.38 The representatives of the Deposits and Loans

Funds have stated that part of the cash it receives are used in order to issue risk-free loans, to be given

to local government (for purposes of regional development). The rest of the cash is generally

deposited in accounts with the Bank of Greece.

The Deposits and Loans Fund also receives jewellery and relatively small-sized valuable

items.39 Larger items such as cars or computers are put in the custody of the Directorate for Managing

Public Materials, which operates under the General Directorate for Customs and Excise. While the

Directorate is the recipient of certain seized assets, it seems to have very limited responsibilities for

their management. Cars are often stored outdoors, where they are exposed to climatic conditions.

Computers, which rapidly become obsolete, are placed in storage. In November 2017, a representative

of the Directorate’s Athens office stated that its warehouse contained over 4000 cars, 3000

motorbikes, 2000 computers, and other obsolete technical equipment such as hospital x-ray machines.

36 Currently in Greece, the data on asset recovery are held by several different agencies and by both

national and local actors. As such, there is no unified mechanism that allows for authorities to analyse datasets

in an efficient manner – yet an asset recovery agency could facilitate such an effort. 37 The final disposition of assets that have been ordered confiscated by a court or whose title has

otherwise passed to the State (e.g. as envisioned in Article 180 of Law 4270/2014 and Articles 1-7 (other than

Article 1(1)) of Law 4312/2014) is thus beyond the scope of this deliverable. 38 Article 1(1) of Law 4312/2014. 39 A joint ministerial decision foreseen by Article 7 of Law 4312/2014, which has yet to be issued, will

define important procedures and aspects of the functioning of the Deposits and Loans Fund.

16

Custody and management of less common assets, such as planes, real property and businesses, is not

assigned to any particular entity. Should a boat be seized, the services of the Ministry of Shipping and

Island Policy would probably step in and order for it to be moored in an outdoor port or marina, for

lack of appropriate management procedures. Regardless of the nature of seized assets, management

practices that apply are vague and systematically fail to account for the need to preserve their value.

B. Establishment of a specialised asset management body

In this context, designing and establishing a specialised asset management body should be

made a priority. The Greek Parliament recently passed Law 4478/2017 to implement EU Directive

2014/42/EU, which relates to the freezing and confiscation of instrumentalities and proceeds of crime.

Article 10 of the EU Directive foresees the establishment of an asset management office or equivalent

mechanisms to ensure the adequate management of frozen and seized assets. However, the law does

not fully implement the Directive, and Greece has yet to create a specialised asset management body,

which it should do urgently. In so doing, Greece should draw from lessons learned and good practices

implemented in other countries in this regard.

In OECD countries, asset management bodies are often organised within bodies that recover

and seize assets, such as the National Crime Agency in the United Kingdom and the Central Office

for Seizure and Confiscation in Belgium. The asset management body may also be organised under

several ministries. This is the case in France, where the Agency for the Recovery and Management of

Seized and Confiscated Assets (further referred as AGRASC) is placed under the joint supervision of

the Ministry of Justice and the Ministry of Budget.

As mentioned above, Greece published Joint Ministerial Decision 24256/18 on 13 April 2018

which gave asset management powers to the Asset Recovery Office (ARO) in SDOE. The OECD

Project Team held consultation meetings and workshops with Greek stakeholders in February and

November 2017. During these consultations, the Greek authorities did not indicate SDOE ARO would

be reformed. In any event, the Joint Ministerial Decision likely has not yet been fully implemented in

practice at the time of this assessment report. Whether SDOE ARO has the features of an effective

asset management body would therefore have to be assessed at a later time.

C. Mandate and prerogatives of a proposed specialised asset management body

The mandate of the specialised body should, at the very least, encompass the management of

frozen and seized assets, with the objective of preserving and, if possible, optimising the value of

these assets. This assignment typically includes the inspection, appraisal, administration, storage,

protection and maintenance of the assets pending final judicial determination. When assets are

confiscated to the state, the body should also be given the mandate to dispose of assets. Such an

arrangement would be convenient since the body already has possession of the assets.

To discharge its mandate, the body’s legal powers should include, without being limited to,

the following:

• authority to insure assets under control;

• authority to pay all necessary costs, expenses, and disbursements connected with the

management of the assets;

• authority to provide support and advice to law enforcement authorities involved in asset

recovery, in particular with respect to practical issues relating to freezing and seizure of

property;

• provided that a court has authorised it, authority to take the necessary measures, including

sale or transfer or property, in order to prevent assets from losing their economic value;

17

• in the case of a business, authority to operate the business, including to employ or terminate

the employment of people in the business, hire a business manager if required, and make

decisions necessary to manage the business prudently;

• in the case of assets that represent shares in a company, authority to exercise rights in respect

of those shares as if the asset manager were the registered holder of those shares;

• authority to pay salaries of the people involved in asset management;

• in the case where assets are located in a foreign jurisdiction: authority to hire contractors,

lawyers, and other agents in that jurisdiction for the purpose of obtaining the appropriate court

orders from that jurisdiction; and

• authority to dispose of assets that have been definitively confiscated to the state.

Recommendations

Greece currently does not have an adequate asset management programme. The country is thus losing value on its seized assets with every passing day. The present report therefore recommends that Greece:

• Create a specific body responsible for asset management.

• Set up the asset management body under HARA, given that no government entity currently has the mandate and expertise to manage seized assets.

• Give the asset management body mandates to manage seized assets and administer confiscated assets.

• Grant the asset management body, at a minimum, the powers listed above in order to efficiently preserve and, when possible, optimize the value of assets under its custody. This includes the creation of a governmental interest-bearing bank account for seized assets.

D. Better-defined responsibilities and improved co-operation among competent

authorities

1. The current lack of ownership over the asset management function

On par with the absence of a body or agency responsible for asset management, the lack of

clearly defined roles played by authorities involved in asset seizing and freezing contributes to the

overall inefficiency of the asset management system in Greece. In fact, neither the Public Prosecutor

against Crimes of Corruption (PPACC), Economic Crime Prosecutor (ECP), the Hellenic Police, nor

the Special Secretariat for Financial and Economic Crime Unit (SDOE) has a specific mandate when

it comes to asset management.

The asset manager inevitably relies on the competence of other actors to perform his/her

mandate. Before the manager receives custody of the assets, seizure must be ordered by a body

authorised by law, and the implementation of the order might require police intervention.

Notwithstanding the possible establishment of a specialised body, the roles of each authority involved

in the process should therefore be clear and the separation of duties strict.

2. Improving co-operation among competent entities through the specialised body

Inadequate co-ordination among authorities can significantly delay the asset recovery process,

which can in turn deteriorate their value. On par with a clear separation of duties, co-operation and co-

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ordination between competent authorities is critical to ensure the overall efficiency of the Greek asset

management programme. The involvement of judicial and investigative authorities ensures that the

asset management process accounts for the need to preserve assets not only for confiscation but also

for investigative and evidentiary purposes. The oversight of judicial authorities may also safeguard

the rights of the asset owner.

The specialised body should be in a strategic position to facilitate liaison and co-operation

among the various actors. This is the case in France, where AGRASC, which has no judicial or police

powers, provides support and assistance to the judicial and enforcement authorities, in addition to

being responsible for the day-to-day management of seized assets. Rules mandating regular

communication between actors should also be viewed as a good practice. In Italy, the judicial

administrator issues a monthly report on the status of seized assets (6 months for companies) to the

delegated judge.

The composition of the specialised body itself can reinforce its co-ordinating role. In several

OECD countries, while the competent body is organised under one ministry, it is composed of

representatives from judicial and government authorities involved in asset management. In Belgium,

the Central Office for Seizure and Confiscation is managed by public prosecutors and is composed of

two liaison magistrates (public prosecutors), two liaison officers from the Federal Police and four

from the Ministry of Finance.

Finally, rules should be designed to allow for the involvement of authorities in specific cases

where their competence might be needed. In Canada for instance, the Minister of Public Works and

Government Services (PWGS) is responsible for asset management. In case where real property is

seized and a third party claim arises, i.e. from the tenants, the PWGS settles the claim in consultation

with the Department of Justice.

Recommendation

Considering that the lack of co-ordination among competent authorities and a clear separation of duties weaken the institutional framework for asset management, the present report recommends that specific rules or guidance be drafted to streamline co-ordination among competent authorities:

• Authorities that first have custody of assets that have been seized or confiscated should be required by law to promptly deliver them to the asset management body, so as to prevent any unnecessary depreciation of the assets value;

• Experts from the appropriate ministries should advise asset managers on how to preserve and optimise the value of specific assets. For instance, the Ministry of Shipping and Island Policy should be involved in the management of boats, and the Ministry of Infrastructure, Transport, and Networks, should be involved in the management of real property.

• The process of obtaining authorization from the court to sell or dispose of assets should be expedited, in order to prevent any depreciation of value and/or unnecessary cost incurred by management. This could follow the same process as the proposal for asset freezing/seizure orders,40 i.e. court orders relating to asset management should be heard by a single judge of the Judicial Council designated to hear asset recovery applications.

40 See Outputs 10.1 and 10.2, Asset Recovery Framework Analysis, Section III.C. “Securing Assets – Freezing & Seizure, Need for Uniformity in Provisions on Freezing”.

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E. Regulatory framework for asset management: the need for clear principles and

operating rules

The Greek Code of Penal Procedure (CPP) covers, to a limited extent, the administration of

assets which have already been confiscated. Article 266(1) CPP provides that, “confiscated assets

shall be transferred to the physical custody to the court clerk, unless their physical custody by the

clerk is not possible, in which case the investigating official shall appoint a competent and trustworthy

custodian.” Money or other valuables shall be deposited with the Deposit and Loan Fund according to

the provisions applicable to its operations. Article 266 also requires that the delivery report – the

document governing the transfer and custody of the confiscated asset – refer to the custodian’s

obligation to secure the assets and to surrender the same whenever requested by the competent court

authority. In addition, the legal framework contains some provisions on how confiscated assets should

be used or allocated. Law 251/1976 provides for the transfer of assets to Greek state institutions or

municipal bodies for social re-use, allowing for any corporate movable items, especially vehicles,

ships, and machinery to be transferred for socially beneficial uses.

There are, however, no specific rules covering the management of assets that have been

seized but have yet to be confiscated. While designing its asset management programme, Greece

should include general principles to guide the direction of the programme, as well as specific

operational rules to be observed by the asset manager.

F. General principles that should govern asset management

1. Transparency and integrity

Managing seized assets transparently is essential for the programme to be efficient and

accountable. A broad range of procedures, starting with careful planning and record keeping at each

stage of the process, can make the system more transparent and accountable. Several OECD countries

have taken measures in that direction. For example, in France, AGRASC is required to maintain a

registry of all the requests for assistance with seizure and confiscation, as well as the relevant

information pertaining to the assets, their location, and the persons who own/hold them, regardless of

the type of asset in question. AGRASC is also required to publish real estate properties that are seized

and confiscated.

Equally important is the integrity of the asset management system. As a general principle, it

should be prohibited for the person in charge of asset seizure and management to receive any personal

financial reward from the management of assets, or to make personal use of these assets. To prevent

fraud and/or mismanagement, the financial records of HARA and the asset management body should

be certified and its activity reviewed annually by external auditors. The same safeguard should apply

to the asset managers and all the authorities involved in the asset management process.

Finally, rules governing the financing of the asset management programme should be clear,

specific, and aim at limiting undue external influence. In order to safeguard the independence of such programmes, some countries have taken measures to protect them from political interference. In

France, AGRASC finances itself essentially through the proceeds of assets sold by the Agency, and

the returns from seized monies invested in a Loan and Consignment Fund.

2. Protection of a Bona Fide Third-party

In the context of asset seizure and management, bona fide third-parties are essentially people

who are not the primary target of the asset recovery proceedings but are nonetheless impacted by

them, e.g. the individuals who reside in a house or the employees of a company that is subject to a

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seizure order. Several OECD countries have made third-party protection a founding principle of their

asset management programme. Greece can draw from practices and mechanisms implemented by

such countries to ensure the interests of third parties are protected in good faith.

In Belgium, the sale of a seized good requires the consent of the owner if the item is unique

and/or highly valuable (e.g. a Picasso painting). By the same token, in Italy, judicial administrators

who manage seized assets can sell, destroy or keep assets in their custody, but cannot perform

extraordinary activities without the authorisation of the delegated judge. They also cannot sell,

contract a mortgage or stipulate a loan on a real estate property without such authorisation.

Owners of seized assets may also find themselves in a situation where items have been sold

while in the custody of the asset manager but a final judicial decision overturns the initial one. A

mechanism can be put into place to ensure that in that case, monies in the amount equivalent to the

sold item are quickly returned to their owner.

On par with these types of safeguards, specific mechanisms can be implemented to facilitate

the resolution of third-party claims. As explained above, in Canada, when real property is seized and a

third party claim arises, i.e. from the tenants, the PWGS settles the claim in consultation with the

Department of Justice.

3. Cost management and efficiency

Cost management is paramount to an efficient asset management programme. Computerised

systems can significantly reduce costs of operation. For instance, computer-based solutions should be

considered for record keeping purposes, as they can help streamline processes, thus increasing

efficiency, and reducing the risk of error.

Rules governing the administration of assets should also contribute to managing costs. In

many OECD countries, including Austria, the asset management body has the right to sell seized

items that can only be stored at a disproportionate or excessive price. By the same token, property that

has little value should be destroyed if the cost of storage and/or management outweighs the value of

the asset.

Finally, efficiency of the asset management programme requires continuity. Where the

programme relies on government funding, predictable and adequate financing is critical.

Recommendations

• Considering that transparency and integrity are paramount to an efficient and sustainable asset management programme, the present report recommends that Greece implement the following measures and mechanisms:

o Measures to make information on asset management accessible to the public;

o Mechanisms to help streamline the record-keeping process;

o Measures to prevent and resolve situations of conflict of interests affecting the asset manager;

o Mechanisms to prevent external interference that may jeopardize the independence of the asset management body;

o Regular financial controls of the asset management body.

• Considering that asset seizure can affect bona-fide third parties, the present report recommends that Greece design and implement mechanisms to better anticipate and address claims over seized assets.

• Considering that asset management can incur significant costs, the present report

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recommends that rules of operation of the asset management body reflect the need to efficiently manage costs.

G. Good practices in the management and disposal of assets

1. Optimisation of the asset value

In line with existing best practices in OECD countries, rules governing asset management

should be driven by the objective of optimising the value of assets seized or confiscated. In Austria,

the rules mandate that confiscated assets of a certain nature be used according to their nature. For

instance, an asset of scientific interest must be used for this purpose.

Optimising value often means selling the assets that have been seized, especially when they

bear a high risk of perishing or diminution in value in short time. But keeping in mind that the seizure

might be overturned by a final judicial decision, the asset manager’s prerogative to sell assets should

be conditional on court approval, and exercised in the following cases:

• Assets are perishable (e.g. agricultural goods, livestock);

• Assets would lose value quickly (e.g. aircrafts, vessels, cars);

• Assets (and their storage) pose a public risk (e.g. flammable goods);

• Management of assets is overly complex or costly;

• Assets have been abandoned; and

• Assets are not suitable for storage.

In addition, a sale should not be permitted where seized assets are required for evidentiary

purposes or, in the case the asset is unique and/or highly valuable (see discussion on unique assets

below), when the owner does not consent.

2. Tailored rules per type of assets

Several OECD countries have adopted asset management rules tailored to the specific type of

assets to be managed. This effort helps to streamline processes, anticipate and therefore better address

challenges that are specific to one kind of asset. The rules typically reflect the guiding principles

presented under section F (General principles that should govern asset management), as well as the

goal of optimising the value of assets.

Certain assets are more challenging to manage than others. The sections below address

specific factors that should be considered when managing different types of assets. In particular, the

discussion of best practices focuses primarily on areas that Greek practitioners highlighted as

particularly problematic in practice.

a) Cash and tangible monies

Cash and other types of tangible monies should be securely stored or deposited until they are

eventually confiscated. However, such assets should not simply stay put without being put to good use

- rather, they should be managed in a way that maximises their value. In Greece, the Deposits and

Loans Fund receives tangible monies, but the management of such assets only takes the form of a

vault where denominations are stored without increasing in value. Greek authorities involved in asset

management have acknowledged that this process could be improved. Therefore, such assets should

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be placed into a low-risk asset management fund or other interest-bearing bank account to fructify

until a final decision is made as to their allocation. Such a practice ensures that the property is

protected while also optimising its value to the fullest extent.

b) Real property

Real property management can present a wide range of challenges. In a majority of OECD

countries, real property cannot be sold before a final decision has been made by the courts. This rule

poses some difficulty, as managing real property can be very costly. The management of real property

can therefore be divided into two categories: (i) rules applicable during the period in which the asset is

being managed; and, (ii) the conditions allowing for sale of the asset.

With regard to the first category, the existing legal framework should enable the Asset

Management Unit within HARA (see above in Section IV.C.4) to apply to the court to obtain written

authorisation to lease or rent the property. Such management should be sufficiently flexible so as to

enable necessary action when lease or rental conditions are not met. Other issues that can arise,

including claims from tenants, should be anticipated while drafting the rules.

In order to properly execute this portion of its mandate, HARA should engage existing

expertise within the Greek government (e.g. General Secretariat for Public Property or the State

Property Development Fund – both of which were established by Law 3965/2011), while ultimately

remaining responsible for the asset’s management. In the alternative, when the property in question

generates an income (i.e. rent, etc.), HARA could also consider calling upon private actors with a

proven record in property management to oversee the asset’s management. Because such entities earn

a profit from such activity, they have an incentive to ensure that the property is efficiently managed

and properly maintained, thereby retaining its overall value. Additionally, the delegation of such

activity minimizes the resource burden placed upon the government.

The second category (selling the property) becomes important when the cost of managing the

property involves excessive expenses (e.g. high property-related costs, increasing bills, and

maintenance needs), the property’s value is at risk of depreciating quickly, or when funds are not

available to pay taxes or mortgage loans that are attached to the property. In such cases, the

management and resource burden is too cumbersome for the government and should result in the

alienation of the property prior to a final confiscation order and pursuant to a court decision (with or

without the authorisation of the owner).

c) Businesses

Businesses can also be subject to seizure. Following the practice implemented in Canada,

equity valuation of the business should be undertaken before a seizure is requested in order to

accurately determine its debt load and equity. Such a valuation should be objective and transparent

and should be conducted by a government entity with relevant subject-matter expertise, such as the

tax authorities. In the alternative, the valuation of the business may be carried out by an external or

independent body with a proven ability to apply financial analysis and industry knowledge for the

purposes of quantifying, managing and building the value of assets.

With regard to the management of seized businesses (prior to a final confiscation order or

other permitted alienation), the applicable asset management framework should allow for the

appointment of an interim manager or receiver who has the requisite authority to make decisions on

behalf of the company. Professionals and experts on bankruptcy administration, whether in the public

or private sector, could be called upon to play this role. Such decision-making could include areas

such as accounting, human resources, data and operations management, liquidation and sale assets,

etc. Upon being appointed, the manager should conduct an initial assessment of the business’

operations in order to better understand its operations and to determine its overall viability (see

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below). In doing so, the manager should also interact with existing staff with the goal of establishing a

plan of action for the future.

Rules should also establish the specific procedures for dealing with business that are viable

(profitable and productive, low debt, etc.) and those that are not viable (entities with little value or

equity and relatively high risk of failure, bankruptcy, etc.).

d) Moveable assets (vehicles, ships, aircraft, electronic equipment, etc.)

Certain movable assets can require specific measures. Items such as boats, cars and planes are

costly to store due to their size and maintenance needs, and all see their value decrease at a rapid rate.

Electronic equipment (computers, processors, televisions, etc.) also require special care and depreciate

quickly. The concern regarding depreciation in the value of such assets was highlighted as a

significant problem by both the Athens and Thessaloniki branches of the Directorate for Managing

Public Materials (General Directorate for Customs and Excise). Such items should therefore be sold

on a regular basis – either privately or by public auction – so as to preserve value, ensure the

safekeeping of assets, and avoid unnecessary depletion of public resources and time. Such measures

are also often in the interest of the defendant due to the lengthy nature of legal proceedings and the

high likelihood of financial loss due to depreciation. In the alternative, the owner could be allowed to

retain them during the course of the proceedings and to post bond guaranteeing a payment amounting

to the items’ value at the time the case is initiated.

The funds received from the regular sale of such assets should be deposited into an interest-

bearing bank account to fructify until a final disposition is rendered in the relevant court proceeding.

Such an account should be the same as that mentioned above in the section on “Cash and tangible

monies”.

e) Livestock and agriculture

Due to the highly peculiar and complex nature of managing livestock and farms, the asset

management body should consider cooperating with entities specialising in the specific subject-matter

in order to properly administer and if necessary, dispose of the asset. Such high level of care would

ensure adequate safekeeping and maintenance of the assets and would necessarily include the

appointment of a technical expert and manager to oversee the initial management period. In the

alternative, a bond can also be posted in such cases when the target of the proceedings or an associate

wishes to continue the exploitation while the proceedings are ongoing.

f) Unique assets

Other assets that necessitate special care are precious metals, jewels and artwork. Such items

need to be inspected and their value assessed by experts. They also necessitate highly secure storage

and should not be readily sold due to their unique and subjective value. This is in part due to the low

likelihood of the original owner being able to re-purchase or otherwise recover such assets in the

event of an acquittal.

Recommendations

Considering that the value or nature of seized assets can make them challenging to manage, the present report recommends that:

• The asset manager be permitted to sell or dispose of the assets, under the limited circumstances described above in this section ;

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• Rules tailored to the types of assets be written and implemented.

• Greece enact an adequate framework to manage assets in the manner described above.

VI. Conclusion

Greece’s previous institutional framework for asset recovery in corruption cases was highly

unsatisfactory. As seen in Section II of the present document, there is a multitude of bodies who

engage in tracing, seizing, freezing and confiscating assets, raising problems of co-ordination,

institutionalisation of knowledge, availability of data and statistics, and dispersion of expertise. There

is no real management of seized and confiscated assets, leading to substantial loss in the value of

assets before they are confiscated to the state. The Greek authorities should assess whether these

matters have been resolved after the reform of SDOE ARO in April 2018 has been fully implemented.