Collateral Consequences of Conviction in Greece[1]

by Dimitra Blitsa

1. Access to Greek Criminal Records 

In Greece, a criminal record is created for every adult[2] person who has been irrevocably convicted of a misdemeanor or a felony (i.e. by a decision not subject to an appeal before the Supreme Court). Unlike in the U.S. but consistent with continental European countries, a Greek criminal record does not contain arrest information. Individual criminal history records are considered “sensitive personal data.” Disclosure and access is restricted to protect the convicted person’s privacy and to promote rehabilitation. Although Greek court proceedings are open to the public, court records are not available for public inspection.

Under certain prescribed circumstances, a criminal record “extract” is available to certain parties for specific reasons. There are two types of criminal record extracts: one intended for general use (GU) and the other for judicial use (JU). The GU and JU extracts differ with respect to what information they contain and who is entitled to access them. Convictions remain on a GU extract until the convicted individual is “legally rehabilitated,” i.e. for misdemeanors 3 or 8 years without another conviction; for felonies, 20 years. The prosecutor can reduce these time limits by half. The GU extract may be disclosed to the record subject and to occupational licensing/certification authorities. Private sector employers do not have access to GU extracts.[3] The commercial sale of criminal record information is illegal.

The JU extract is available to judicial authorities, prison directors and public services/agencies considering employment applications, a few occupational licensing/certification authorities and to foreign embassies for immigration purposes. (The police have access to a separate law enforcement database containing information on arrested individuals and fugitives.) Legal rehabilitation is not applicable to the JU extract; thus it discloses all convictions.

Both GU and JU extracts may be expunged if  a) the record subject died or reached age 80, b)  the conviction was annulled by an irrevocable court decision, c) the conviction was covered by amnesty, d) the offense conviction ceased being punishable, e) the court suspended the execution of the sentence, provided that the suspension was not revoked or cancelled,  f) in case of a pecuniary penalty or a sentence up to 1 or 2 months (for an intentional crime or criminal negligence respectively), the record is expunged 10 years following the execution of the penalty, provided that the defendant did not recidivate. Expunged records must be destroyed and cannot be used for any purpose.

2. Employment Disqualification for Convicted Individuals

Special laws regulate the criminal background of certain public sector occupations (e.g. judiciary, police & military officers, university professors).[4] The Public Servants Code regulates all other public sector employments. A person cannot be appointed to a public service position (excluding public sector assistants or unskilled positions) if: a) she has been convicted or is facing charges for a felony or specified  misdemeanor such as theft, embezzlement, fraud, extortion, forgery, breach of confidence by an attorney, bribery, abuse of office, repetitive defamation, including any sexual offence. Similarly, a public servant who is convicted of one of the above offenses is subject to removal from office. In short, a conviction poses a lifelong obstacle to public employment.

In addition, certain convictions (usually financial crimes, drug related and sexual offences) render a person ineligible for a number of private sector occupations and positions (e.g. lawyer, accountant, taxi driver, sailor). Unfortunately, as in the U.S., many disqualifications seem arbitrary:

In many cases, there is no apparent relationship between conviction offenses and the inability to safely perform the inherent requirements of the occupation. For example, a person may not own a gym if she has been convicted of a felony, or such  misdemeanors as theft, embezzlement, fraud, extortion, forgery, breach of confidence by an attorney, bribery, oppression, abuse of office, breach of an official confidence, sexual offences, drug related offences.

Employment disqualification laws for low-skilled occupations are significantly over-inclusive. For example, a person cannot work as a waiter if he has ever been convicted of an intentional offence against life or bodily health, a sexual offence, or a gun- or drug-related crime.

There is no apparent consistency as to the applicability of occupational bars to persons who face a pending charge or whose conviction is on appeal.  For example, a waiter’s license must be revoked if the waiter is charged with a gun-related crime. However, similar charges do not require revocation of the bar/theater owner’s license. Similarly, although requiring a clean JU record extract (i.e. an extract not subject to legal rehabilitation) is justifiable for ‘sensitive’ occupations and positions that relate to public safety or child care, treating internet-café owners, waiters and antiquers as ‘sensitive’ is arbitrary.

There are certain private sector professions for which criminal background checking legislation is inadequate. For example, although all personnel in a private kindergarten must go through a criminal background check, such mandatory clearance is limited to a private schools’ teaching faculty.

Comprehensive law reform with respect to conviction based employment discrimination is long overdue.

 

[1] The present post is a synopsis of the article «Διάκριση στον Τομέα της Εργασίας λόγω Προηγούμενης Ποινικής Καταδίκης» (“Employment Discrimination based on a Criminal Record”) published in Greek by Ποινική Δικαιοσύνη law journal, Vol.7 (2014), p.626-636 & Vol.8-9 (2014), p.739-752.

[2] Juvenile criminal records are not examined in this post.

[3] The Athens Criminal Records Register indicates that a significant percentage of private employers do require job applicants to submit a GU extract with their employment application (2011-2013). Subsequently, in 2013, the Hellenic Data Protection Authority issued an opinion calling the practice illegal, but the impact of that opinion on employer behavior is unknown. There is a crying need for legislation on this issue.

[4] Alternatively, employment disqualification may, but is infrequently, imposed by the sentencing judge. A criminal court judge may order a defendant ineligible to hold a certain job for up to 5 years, provided that: i) she is convicted of a felony or is sentenced to more than 3 months in prison, ii) her criminal conduct is related to a gross breach of her professional duties, and iii) the defendant is likely to abuse her professional duties in the future. Following Directive 2011/93/EU on Combating the Sexual Abuse and Sexual Exploitation of Children and Child Pornography, a Greek criminal court may prohibit a convicted child sex offender from working in positions involving direct and regular contacts with children for up to 5 years. If the defendant recidivates, the court must then impose a life-long prohibition.

NOTE:  Dimitra Blitsa is a Greek criminal lawyer, who received an LLM in 2007 from NYU Law School, where she studied with Professor James Jacobs.   She has published several articles about criminal records as coauthor with Professor Jacobs, including:

Major ‘minor’ Progress under the Third Pillar: EU Institution Building in the Sharing of Criminal Record Information, Chicago-Kent J. Int’l & Comp. L. (2008).

Sharing Criminal Records: The United States, the European Union and Interpol Compared, Loyola L.A. Int’l & Comp. L. Rev. (2008).