GREECE Trends and Developments Contributed by: Ovvadias S. Namias, Vasileios Petropoulos, Ilias Spyropoulos and Emmanouil Apostolakis, Ovvadias S. Namias Law Firm
Importance of Internal Investigations Under the Greek Legal System The Greek legal system does not contain any specific provisions that focus on a reaction to the violations of rules that have already been committed with the aim of clarifying them and limiting their consequences. However, that does not mean that the practice of internal investiga - tions is foreign or unknown to the Greek legal order. First of all, new “general provisions” (Articles 381 and 405 of the Greek Criminal Code) were introduced into the Criminal Code, according to which, in some property crimes (ie, breach of trust and embezzlement), prosecution only occurs at the request of the injured party. These provisions concern the core of the matter of eco - nomic criminal law. A company can also be considered an injured party. Legal entities can lodge criminal com - plaints and participate in the criminal proceed - ings as civil prosecutors. It goes without saying that, after this fundamental legal change, the companies concerned hire external consultants or investigators – in practice, mostly specialised lawyers – to prepare a report to clarify possible criminal conduct as well as to determine the cir - cle of potential offenders. On the basis of the report, the decision is made on the part of the company whether to file a criminal complaint – and, if so, against whom. In order to prepare the report, an internal investigation is carried out in the company, based on the entirety of the avail - able material, such as email correspondence, records, documents, balance-sheet rolls, inter - views, etc. The most crucial part of the report is the legal assessment and proposal regarding the criminal misconduct that was investigated. The practical relevance of internal investigations
after the reform of the Economic Criminal Law in Greece is thus evident. Internal investigations can also be crucial for the purpose of determining the amount of the damage caused by a criminal conduct against the interests of the company or by an agent of the company. This is particularly important in view of the introduction of alternative proce - dural forms for settling criminal trial in the Greek legal order, ie, criminal conciliation (Articles 301, 302 of the Greek Code of Criminal Procedure), plea bargaining (Article 303 of the Greek Code of Criminal Procedure) and satisfaction of the harmed person (Article 381 (2) and 405 (2) (3)). That way, an internal investigation, even after the commencement of a criminal prosecution, can simplify and accelerate proceedings, which is critical because of the serious delays in the administration of justice in Greece. Furthermore, Article 102 of the Greek Compa - nies Act is equally fundamental in relation to the conduct of internal investigations. Article 102 (1) states that the members of the BoD will be liable to the company for any damage incurred as a result of acts or omissions contrary to their duties. Pursuant to Article 102 (4), the liability of the members of the board of directors may be excluded if such acts or omissions are based on expert opinion or assessment of an exter - nal, independent third party who has relevant expertise. Board members are often faced with a tough dilemma when there is a suspicion of certain illegal conduct within the legal entity but it is not sufficiently substantiated. The filing of an unsub - stantiated complaint, especially if it is directed against a specific person, carries the risk of incriminating board members for the offences of defamation (Article 363 of the Greek Criminal
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