The Exclusion of Improperly Obtained Evidence in Greece: Putting Constitutional Rights First
| Author | Dimitrios Giannoulopoulos |
| Date | 01 July 2007 |
| Published date | 01 July 2007 |
| DOI | 10.1350/ijep.2007.11.3.181 |
| Subject Matter | Article |
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF (2007) 11 E&P 181–212 181
EXCLUSION OF IMPROPERLY OBTAINED EVIDENCE IN GREECE
The exclusion of
improperly obtained
evidence in Greece:
putting constitutional
rights first
By Dimitrios Giannoulopoulos*
Lecturer, Brunel University
Abstract In contrast with England and Wales, where there is a discretion to
exclude improperly obtained evidence, exclusion in Greece is automatic. Article
177 para. 2 of the Code of Penal Procedure mandates that evidence obtained by
the commission of criminal offences is not taken into consideration. In
addition, article 19 para. 3 of the Constitution prohibits the use of evidence
obtained in violation of the right to privacy. Inspired by the rigidity of these
exclusionary rules, the rights-centred approach that they reflect and the
context of a constitutional criminal procedure within which they apply, this
article sheds light on the protection of constitutional rights as a rationale for
the exclusion of improperly obtained evidence. It does so against the
background of the reliability-centred exclusionary doctrine in England.
he study of other legal systems makes us understand our own system
better; what it is, what it must be, what it can become.’1With these
questions in mind, this article attests to the need to study other legal
‘T
1 Justice S. Bryer (United States Supreme Court), ‘Préface’ in A. Garapon and I. Papadopoulos, Juger en
Amérique et en France—Culture juridique françaiseet common law (Odile Jacob: Paris, 2003) 8 (in French).
* Email: Dimitrios.Giannoulopoulos@brunel.ac.uk. I am indebted to Ilias Bantekas, Andrew Choo,
Eric Jeanpierre, Valsamis Mitsilegas, Jonathan Rogers, Emmanuel Voyiakis, Geoffrey Woodroffe,
Alexandra Xanthaki and the anonymous referees for their invaluable suggestions. The usual
disclaimers apply. Translations of the details of publications in Greek and of Hellenic statutes are
my own, with the exception of translations of the Constitution. For the Constitution of Greece in
English see www.parliament.gr/english.
systems’ solutions to one of the most tormenting problems in the law;2that of the
admissibility of improperly obtained evidence. While there is some interest in
England and Wales in developments in the Commonwealth and more generally
the common law world,3reference to other legal traditions’ responses has been
rare.4This article’s main ambition is to demonstrate that important lessons might
be learnt by stepping beyond the boundaries of the common law tradition in this
domain.5More specifically, this article focuses on the exclusionary rules
developed in Greece, which are automatic and absolute, and have largely grown
under the influence of constitutional doctrine and jurisprudence. As an obvious
counterpoint to the discretionary approach to excluding improperly obtained
evidence favoured in England and Wales, comparative consideration of Hellenic
law and jurisprudence might usefully inform English debates on improperly
obtained evidence. The following discussion will be limited to the exclusion of
inherently reliable non-confession evidence,6in particular evidence obtained in
violation of the right to privacy. This is where the English debate on improperly
obtained evidence is at its most controversial, and the comparative study of
Hellenic law may be most illuminating.
1. The road to automatic exclusionary rules in Greece
Given that the first Arios Pagos (Cassation Court of Greece) decision prohibiting
the use of unconstitutionally obtained evidence dates back to 1871,7abrief
historical review is in order. Hellenic law on improperly obtained evidence has
182 E & P
EXCLUSION OF IMPROPERLY OBTAINED EVIDENCE IN GREECE
2 R. Traynor, ‘Mapp v. Ohio at Large in the Fifty States’ (1962) 3 Duke Law Journal 319.
3 See, e.g., A. Choo and S. Nash, ‘Improperly Obtained Evidence in the Commonwealth: Lessons for
England and Wales?’ (2007) 11 E & P 75; B. Emmerson and A. Ashworth, Human Rights and Criminal
Justice (Sweet & Maxwell: London, 2001) 422–6; P. Mirfield, Silence, Confessions and Improperly Obtained
Evidence (Clarendon Press: Oxford, 1997) 319–70.
4 See A. Choo, ‘Improperly Obtained Evidence: A Reconsideration’ (1989) 9 Legal Studies 26; J. Spencer,
‘Evidence’ in M. Delmas-Marty and J. Spencer (eds), European Criminal Procedures, Cambridge Studies
in International and Comparative Law (Cambridge University Press: Cambridge, 2005) 594 at
603–10. To my knowledge, few are the examples of studies of Continental exclusionary rules even
if one looks at other common law countries. See, however, C. Bradley, ‘Mapp Goes Abroad’ (2001) 52
Case Western Reserve Law Review 375; C. Bradley, ‘The Emerging International Consensus as to
Criminal Procedure Rules’ (1993) 14 Michigan Journal of International Law 171; C. Bradley, ‘The
Exclusionary Rule in Germany’ (1983) 96 Harvard Law Review 1032; W. Pakter, ‘Exclusionary Rules in
France, Germany and Italy’ (1985) 9 Hastings International and Comparative Law Review 1.
5 For a stimulating discussion on legal traditions see generally H. Patrick Glenn, Legal Traditions of the
World, 2nd edn (Oxford University Press: Oxford, 2004).
6 In relation to improperly obtained confessional evidence there is again a contrast between
automatic exclusion in Greece and discretionary exclusion in England and Wales, s. 76(2) of the
Police and Criminal Evidence Act 1984 notwithstanding.
7 Arios Pagos 89/ 1871, 6 Ellinikoi Kodikes 165.
developed in connection with individual rights protected by the Constitution.8
In particular, the origins of contemporary Hellenic exclusionary rules can be
traced back to 19th century Arios Pagos case law developed in the context of the
right to secrecy of correspondence.9During that era, Arios Pagos read into the
right to secrecy of correspondence a prohibition on using evidence obtained in
violation of this right.10 As succinctly put by the General Prosecutor of Arios
Pagos, the right to secrecy of correspondence forbade ‘the seizure or unsealing of
letters as well as the use of their content with the aim of discovering and proving
the commission of crimes’.11 In reality, however, there was hardly ever exclusion
at this time. The seizure of unsealed letters was held not to amount to a breach of
the right to secrecy of correspondence.12 Moreover, the right ceased to produce
its protective effect after the delivery of a letter to its addressee, especially if the
addresseebecameawareofitscontent.
13 In other words, Arios Pagos construed
this constitutional right so narrowly that the seizure of letters hardly ever fell
within its scope. Arios Pagos’s pro-exclusion rhetoric was thus deprived of any
practical effect.
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF 183
EXCLUSION OF IMPROPERLY OBTAINED EVIDENCE IN GREECE
8 See Part B of the Constitution of 1975 (‘Bill of Rights’).
9 The right to secrecy of correspondence is a specific expression of the broader right to privacy. It is
protected by article 19 of the Constitution which states that ‘the secrecy of letters and all other
forms of free correspondence or communication shall be absolutely inviolable’. See D.
Giannoulopoulos, ‘Protecting the Right to Secrecy of Correspondence: Constitutional Myths and
Reality in Modern Greece’ (2005) 9(2) Mediterranean Journal of Human Rights 119; G. Kaminis, ‘Secrecy
of Telephone Communication: Constitutional Protection and its Application from the Criminal
Law Legislator and the Courts’ (1995) 43 Nomiko Bima 505 (in Greek); P. Paulopoulos, ‘Technological
Evolution and Constitutional Rights: The Modern Adventures of Secrecy of Correspondence’ (1987)
35 Nomiko Bima 1511 (in Greek); S. Tsakirakis, ‘Secrecy of Correspondence: Absolutely Inviolable or
a Wish of the Legal Order?’ (1993) 41 Nomiko Bima 995 (in Greek); P. Tsiris, The Constitutional Protection
of the Right to Secrecy of Correspondence (Ant. N. Sakkoulas Publishers: Athens-Komitini, 2002) 72–3 (in
Greek).
10 See G. Kaminis, Illegally Obtained Evidence and Constitutional Guarantees of Human Rights (The Exclusion
of Evidence in Criminal and Civil Proceedings) (Ant. N. Sakkoulas Publishers: Athens-Komotini, 1998) 23
at 25 (in Greek).
11 K. Kollias, Legal Opinion No. 31/ 1952, 3 Poinika Chronika 457.
12 See Court of Appeal of Athens 235/ 1920, ΛΑ′ Themis 484: ‘it is not permitted to seize or adduce
evidence of letters in court […] and it is not possible to make any use of their content […]. However,
this strict version of the inviolability [of the right to secrecy of correspondence] doctrine does not
apply in relation to letters in possession of the addressees who can adduce them as evidence […]’.
See also Arios Pagos 70/ 1891, Β′ Themis 345; Arios Pagos 169/ 1893, Δ′ Themis 388; Arios Pagos 76/
1894, Ε′ Themis 278; Arios Pagos 23/ 1909, Κ′ Themis 130; Arios Pagos 96/ 1919, Λ′ Themis 298; The
Court of First Instance of Athens 357/ 1923, ΚΓ′ Themis 14; Arios Pagos 347/ 1924, ΛΕ′ Themis 535;
Arios Pagos 189/ 1933, ΜΔ′ Themis 724; Arios Pagos 102/ 1935, ΜΣΤ′ Themis 857; Arios Pagos 581/
1939, ΝΑ′ Themis 181; Arios Pagos 861/ 1947, ΝΗ′ Themis 581.
13 N. Saripolos, System of Constitutional Law (Classic Legal Library: Athens-Komotini, 1987) 94; originally
published in 1923 (in Greek).
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