Participation in Criminal Proceedings in Support of the Prosecution in Cases Involving a Large Number of Victims Under Greek Law

Definition and purpose

Αs is commonly known, “collective redress” is a broad term used, especially in Europe, to describe legal procedures that allow a group of people who have experienced the same or similar harm (eg, as a result of a company’s product, policy or conduct) to seek collective legal remedies. This umbrella term can include class actions, group litigation orders, representative actions, mass torts and public interest litigation. Its purpose is mainly to provide efficient access to justice for individuals who might not be able to afford individual lawsuits and to enhance judicial efficiency by consolidating similar cases.

On the contrary, a class action is a specific form of collective redress in which one or several individuals (representative plaintiffs) file a lawsuit on behalf of a larger group (“the class”) with common legal or factual issues. Its purpose is to streamline litigation when there are many victims of the same wrongdoing, such as in the case of defective products, data breaches, or securities fraud.

Collective redress and class actions are civil law institutions because they deal with private law disputes (eg, product liability, consumer rights, competition law), they provide civil remedies, such as compensation and injunctions, and they involve plaintiffs v defendants.

Class actions in the Greek jurisdiction

Under Greek law, class actions are limited in scope and are not as broadly developed as in some common law jurisdictions like the United States. However, Greece recently implemented the EU Directive 2020/2018 of the European Parliament and of the Council of 25 November 2020 on representative actions for the protection of the collective interests of consumers, repealing Directive 2009/22/EC through Law 5019/2023.

EU Directive 2020/2018 aims to contribute to the functioning of the internal market and the achievement of a high level of consumer protection by enabling qualified entities, that represent the collective interests of consumers, to bring representative actions for both injunctive measures and redress measures against traders that infringe provisions of EU law. Those qualified entities should be able to request that such infringing conduct be ceased or prohibited and to seek redress, as appropriate and available under EU or national law, such as compensation, repair or price reduction.

Articles 1–12 of Law 5019/2023 describe and specify:

• the general definitions and purpose of the Law;
• the definition of consumer associations;
• the bodies authorised to bring representative actions to protect consumer interests;
• the manner of bringing representative actions;
• the measures to cease and prohibit illegal conduct by suppliers;
• the measures for redress and/or compensation;
• the financing of representative actions;
• the allocation of legal costs; and
• the provision of information to consumers.

However, since this report focuses on issues of a criminal law nature, after the above necessary introduction, attention will be focused on the question of the existence of a large number of victims of a criminal offence and the way in which they can safeguard their interests before the Greek criminal justice system.

Participating in criminal proceedings in support of the prosecution under Greek law

What should be clarified at the outset is that there is no provision in the Greek Code of Criminal Procedure for a person to bring civil claims before the criminal court. Furthermore, neither Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, nor Law 4478/2017 transposing it into national law, provides for any relevant regulation regarding efficient access to criminal justice for individuals who might not be able to afford individual criminal complaints.

However, Article 63 of the Greek Code of Criminal Procedure specifically stipulates the following:

“Those entitled under civil law to compensation or redress for a crime or to monetary satisfaction for moral damage or mental suffering, even when the obligation to compensate for the damage or satisfy the moral damage or mental anguish is limited exclusively to a third party by law, may appear in criminal court to support the prosecution.”

Based on the above Article, the victim of a criminal offence is considered a party to the criminal proceedings, provided that they have an active civil claim. An additional condition to having the right to appear in support of the prosecution as a party to the proceedings before the criminal court, is that the person must be the victim of the offence or the person directly harmed by it.

The victim’s participation in criminal proceedings as a party to the proceedings in support of the prosecution is of great importance, because any conviction against the perpetrator is, to a large extent, a prerequisite for the corresponding proceedings before the civil courts.

Although criminal and civil proceedings are formally independent from each other, in practice the outcome of the criminal trial, in which the court seeks the substantive truth of the case on its own initiative, also prejudges the outcome of the civil proceedings.

However, before a criminal case reaches the criminal court, it must usually undergo a preliminary examination and, in some cases, depending on the seriousness of the offence, a main investigation conducted by an investigating judge. In order to initiate a preliminary investigation, it is sufficient to inform the police or judicial authorities by any means, in the case of offences that are prosecuted ex officio. On the other hand, in the case of offences that are prosecuted upon complaint, then, according to Article 114 of the Greek Penal Code, the offence is eliminated if the beneficiary does not file a complaint within three months from the day they became aware of the act and its perpetrator or one of the accomplices.

Regardless of whether an offence is prosecuted ex officio or upon complaint, in order to enjoy the privilege of being a party to the criminal proceedings, one must file a statement of appearance in support of the prosecution.

As can be easily understood from the above, the current regulatory framework established by the Greek Penal Code and the Greek Code of Criminal Procedure subjects victims to a particularly time-consuming and costly process if they wish to exercise their rights and participate as parties in criminal proceedings. This raises particular concerns, especially in cases where there are multiple victims who have suffered limited damage and would be willing to participate in criminal proceedings, but the cost of their participation would exceed the amount of damage they have suffered. Such cases usually concern criminal offences of a financial nature (white-collar crime), such as embezzlement, fraud, breach of trust, forgery, capital market manipulation, etc. The absence of a respective institution, such as class action, acts as a deterrent to victims who wish to participate in criminal proceedings in such cases.

Support of criminal prosecution in cases involving a large number of victims

On the other hand, in contrast to certain foreign legal systems, such as that in Germany, the Greek Code of Criminal Procedure does not prohibit the joint representation of multiple parties in the context of criminal proceedings – whether these are victims of the offence (which is the category of interest here) or defendants. Consequently, in practice, and despite the absence of an explicit procedural provision, it is possible for several victims of the same criminal conduct to be represented by the same lawyer or law firm. Such an arrangement not only reduces the cost of representation for each individual victim, but also contributes to ensuring a more coherent and co-ordinated advocacy of the victims’ interests, particularly in cases where the harm has occurred under identical or at least comparable circumstances. This possibility is consistent with the general principle of the free choice of counsel in criminal proceedings and does not infringe upon any procedural rules governing conflicts of interest, provided that the individual interests of the victims do not diverge.

Furthermore, the joint filing of a criminal complaint and a declaration of participation in support of the prosecution by multiple victims of the same criminal conduct, represented by common counsel, offers several significant advantages.

• It allows the criminal court to conduct a comprehensive investigation and deliver a unified assessment of a broader criminal conduct involving multiple victims within a single criminal proceeding. In this way, the fragmentation of the case into several separate proceedings is avoided, where each victim would otherwise have to establish individually the commission of the offence against them.
• Moreover, this approach facilitates a consistent evaluation of the evidence, reduces the risk of contradictory judgments, and contributes to the efficiency of the proceedings, both for the victims and the court.

In practice, joint representation prevents the dilution of the victims’ claims and ensures that offences affecting a large number of individuals are properly assessed in terms of their total impact.

The issue of repeat offences pursuant to Article 98 of the Greek Penal Code

This approach is particularly advantageous in the context of repeat offences, as the comprehensive assessment of the total value of the object and the total damage or benefit supports the practical and coherent joint representation of multiple victims within a single proceeding. According to Article 98 (1) of the Greek Penal Code, a repeat offence occurs when several similar acts are committed at different times by the same perpetrator, connected by the unity of execution of the criminal decision. That is, the perpetrator commits multiple acts that differ in time and are independent of each other, but that all affect the same legal interest. The individual acts of a repeat offence may be carried out in the same or in different ways. Pursuant to Article 98(2) of the Penal Code, the value of the object of the act and the damage to assets, or the benefit in the form of assets deriving from the repeated commission of the criminal offence, will be taken into consideration in their entirety if the perpetrator aimed for this outcome through their partial acts. In such cases, the penal character of the act is determined on the basis of the total value of the object and the total damage to assets or total benefit in the form of assets derived from the offence which may have occurred or was intended.

Consequently, the joint filing of a criminal complaint – or multiple similar offences committed by the same perpetrator(s), even at different points in time – together with the participation of multiple victims in the criminal proceedings, ensures the correct characterisation of the alleged conduct. In particular, in offences against property, the Greek penal legislator differentiates the severity of the criminal sanction according to the amount of damage caused.

For example, in the case of one or more acts of fraud committed by the same perpetrator against multiple individuals, where each victim has suffered relatively minor financial loss (eg, around EUR1,000 or less), separate complaints by each victim may result in prosecution for fraud as a misdemeanour, punishable by imprisonment of ten days to five years. However, if the victims file a joint complaint, the individual losses are aggregated. If the total damage exceeds EUR120,000, the prosecution will charge fraud as a felony, punishable by incarceration of five to ten years, thus resulting in a more severe penalty for the offender. This practice follows the legislator’s logic of linking the degree of criminal liability to the total harm caused and highlights the practical importance of joint representation of victims in the proceedings.

Support of criminal prosecution in specific types of criminal offences

However, there are certain criminal behaviours which, despite their serious social and economic consequences and the infringement of institutional legal interests – that is, interests contributing to the orderly functioning of society and the economy – may, when viewed solely in terms of the harm caused to each individual victim, appear to be of minor criminal significance. This, however, does not reflect the true gravity of these offences. This category includes, for instance, offences against free competition as well as capital market violations, which often involve a large number of victims, each of whom may have suffered only a relatively small loss. The aggregated impact on economic and social functioning is, however, substantial. Accordingly, considering the aggregated impact highlights the seriousness of these acts and the corresponding weight of the criminal sanctions.

Regarding offences against free competition, although such offences protect a supra-individual legal interest, namely free competition as an institutional framework, the legislator also grants persons directly affected by a cartel agreement or the abusive exploitation of a dominant position in a particular market – whether they are competitors of the perpetrator or consumers – the right to participate in support of the prosecution within criminal proceedings (Article 44(6) of Law 3959/2011). This right exists in addition to the possibility of filing a complaint and participating as a party in the (administrative) proceedings before the Hellenic Competition Commission.

With specific regard to offences relating to the capital market, which perfectly constitute the type of offences to which the logic of collective redress or class action is traditionally applicable under Anglo-Saxon law, the corresponding legal framework in Greece is governed by Law No 4443/2016. By virtue of this statute, Directive 2014/57/EU on criminal sanctions for market abuse (the so-called “Market Abuse Directive”) was transposed into the Greek legal order. This legislative instrument introduced criminal liability for acts constituting market manipulation and the misuse of inside information, thereby harmonising Greek law with the broader acquis of the EU in the field of capital market integrity.

In such cases, the number of affected investors may be particularly large, given the diffuse and systemic nature of the harm caused by market abuse. Nevertheless, under the express provisions of Law 4443/2016 and the relevant procedural norms of the Greek Code of Criminal Procedure, the sole authority vested with locus standi to participate in criminal proceedings, both at the stage of preliminary investigation and before the competent criminal courts, for the purpose of supporting the prosecution, is the Hellenic Capital Market Commission (HCMC). The Commission thereby acts in the public interest to ensure the protection of market transparency and investor confidence.

Greek jurisprudence has consistently held that, even where individual investors suffer pecuniary losses as a result of acts constituting market abuse, such private persons lack standing to appear in criminal proceedings as civil claimants (politikos enagōn) in support of the prosecution. This is because they are not regarded as “directly injured” within the meaning of the above-mentioned relevant provisions of criminal procedure. The rationale underlying this exclusion rests upon the inherent nature of capital market offences: such acts are deemed to infringe the orderly functioning, transparency and reliability of the market as a whole, rather than the proprietary interests of specific investors. Consequently, the harm to individual investors, while potentially real and economically measurable, is considered derivative and indirect, resulting from distortions in the market mechanism rather than from direct infringement of individual rights.

It follows that offences such as market manipulation or insider dealing do not necessarily correspond to the existence of a clearly identifiable victim. Indeed, it is conceivable that certain investors may even profit from such unlawful conduct, depending on the timing and structure of their transactions. For this reason, criminal proceedings in this domain are structured around the protection of the market’s institutional integrity rather than the redress of private losses.

Conversely, there is an ongoing doctrinal debate as to whether, within the framework of civil proceedings, acts of market abuse may constitute a tortious act (ad delictum) giving rise to a private law claim for damages. The prevailing view in Greek legal scholarship and case law remains cautious (although not negative), as the causal nexus between the wrongful conduct and specific individual loss might appear too remote or speculative to satisfy the requirements for delictual liability. Accordingly, the feasibility of a collective civil action akin to the Anglo-American class action remains, under current Greek law, both procedurally and substantively uncertain.