Universal Succession

Power of Attorney After Inability to Act / After Death

Joint Account

Gifts

Executorship

Right of Information of Heirs

Foreign Account Holder

Bank Accounts and Structures

Prof. Dr. Hans Rainer Kunzle, ,

1. Universal Succession

1. After death of a client the account is transferred by law to the (community of) heirs (Art. 560 Swiss Civil Code [SCC]). Upcoming is the question how the bank becomes knowledge about the demise of their clients. On a regular basis the bank will receive a message from heirs such as by receiving a notice of death. The question comes up, at what point of time the bank must start a procedure on its own initiative. This is at the latest necessary if the period of time for a declaration of presumed death is given or if the requirements for such a procedure are fulfilled ex officio (according to Art. 550 SCC if the testator would have become 100 years old).

2. Power of attorney after inability to act / after death

2. On the date of death of the bank client, powers of attorney on a bank account basically cease

(Art. 35 al. 1 Swiss Code of Obligations [SCO]).

3. Powers of attorney are especially useful, if the account holder and (future) deceased has health- impaired problems (is in a coma, mentally unstable or otherwise incapacitated) and is no more able, to handle his own matters. In these cases it may happen that the ability to act may be affected, in the first place factually and later on also legally, temporarily with variable degrees (see GEISER, p. 30). The capacity to consent must be given in both moments, at the time of advising as well as at the time of the execution of an affair (Swiss Federal Supreme Court [Schweizerisches Bundesgericht - BGer] 5A_12/2009). This capacity lacks if a person is no more able to deprive from the influence of another person (BGer 5A_748/2008: old testator with relation to young woman). Based on the text of Art. 35 SCO the old doctrine assumed that the power of attorney ends compulsory with loss of the ability to consent respectively with the making of a ward of court (see ZACH, Art. 35 SCO N 16). Following the new doctrine (see GEISER, p. 30) the Swiss Federal Supreme Court (Entscheide des Schweizerischen Bundesgerichts [BGE] 132 III 221 consideration [c.] 2: continuation of a court procedure for the victim of an accident) decided that the power of attorney may continue after inability to act if the principal has disposed accordingly. This is necessary in many cases in order to prevent a lack of representation (GEISER, p. 30). As many old forms are in circulation which do not regulate this question expressly the question comes up if the regulation that the power of attorney shall be valid after death covers also the case after inability to act. In case of doubt the answer is yes.

4. The power of attorney, coming into existence with the death of the deceased is existing in Swiss law (BGer Semaine Judiciaire [SJ] 2000 I 421 c. 3c; ZACH, Art. 35 SCO N 47) but is subject to the form of a testamentary disposition (Art. 498 et seq. SCC) (GEISER, p. 35). As banks fear the misuse of these powers they do not accept them usually and therefore such powers are not of practical relevance (ZOBL, Aktuelle Juristische Praxis [AJP] 10/2001 p. 1009; OEXL, p. 17).

5. The power of attorney after death can be established without any formal restriction and is the usually used by banks (so called “T-power”) (ZOBL, AJP 10/2001 p. 1008). In the field of real estate law the power after death does not exist (BIBER, p. 59). At the time of death the principal is replaced by his heirs. The content of the power remains basically unchanged (Blatter fur Zurcherische Rechtsprechung [ZR] 1998 No. 24). It may be that special instructions of the principal are added at this time. Furthermore the new purpose must be respected (ZACH, Art. 35 SCO N 59) which is to keep the interests of the heirs (BGer 4C.234/1999, c. 3 = Praxis des Bundesgerichts [Pra] 2002 Nr. 73 = SJ 2000 I 421; OEXL, p. 16). As every heir can revoke the power of attorney banks ask for a certificate of inheritance (Art. 559 SCC) as soon as the demise of the bank client becomes known. With this document the bank can determine the persons which have the right to revoke the power of attorney. A power of attorney can be used continuously if all heirs agree, what happens in many cases. As the issuing of a certificate of inheritance can last several months (the heirs have a time limit for renunciation of three months

• Art. 567 al. 1 SCC - and the consultation of the civil registry records by the probate office requires some time) a bank account can be blocked for a long time (banks pay in this intermediate period the estate liabilities and the so called “courant normal” (current costs) from the estate account (BREITSCHMID, successio 5/2010, 89; HAMM/FLURY, Schweizerischer Treuhander [ST] 2002 p. 36). This time frame can be bridged by accounts of surviving spouses and/or children on their own name, by joint accounts or by an executor (Art. 517-518 SCC) who receives his certificate within a few days. If no executor has been appointed by the testator, in situations of conflict only a representative of the community of heirs (Art. 602 al. 3 SCC) can act on behalf of the heirs (BREITSCHMID, successio 5/2010, 89).

• 3. Joint Account

  5. A joint account/depot (compte-joint / depot-joint) where the remaining holder can dispose singly after the death of the other holder is called an «Or-account/depot» (ZOBL, AJP 10/2001 p. 1010). But this does not mean that the property of the assets has passed entirely to the surviving holder of the account/depot (BREITSCHMID, Erbfolge, p. 54). The parties regulate (among themselves / internally) how the account is divided up between them (for example according to the rules of the marital community, or the rules of the simple partnership) (ZOBL, AJP 10/2001 p. 1011). In case of doubt every holder of the account/depot gets an equal share (see Art. 646 al. 2 SCC: co-ownership). If two spouses own a joint account/depot half of the value belongs to the estate (Art. 215 al. 1 SCC). The disadvantage of a joint account is that the bank may ask questions (for example concerning the beneficial owner) or it may check certain points (such as the one if interests of heirs can be violated) before payments are executed. But sooner or later the survivor will be able to dispose of the assets on the account/depot.

  6. Sometimes bank agree with their clients a „provision to exclude heirs“ with the content that the account/depot shall be transferred totally to the survivor and that the heirs of the deceased do not take over his position. The problem is that the concept of joint ownership in the sense of the common law does not existing within the civil law of Switzerland. In recent cases the courts ruled that the right of information of the heirs cannot be excluded by such a clause (ZR 2002 No. 26; Basler Juristische Mitteilungen [BJM] 2006 p. 100). The uncertainties lead to the conclusion that this clause is not appropriate for high volume business (OEXL, p. 18).

  7. A joint account which allows only that the survivor and the heirs of the deceased dispose jointly is called «And-account/depot» (ZOBL, AJP 10/2001 p. 1010). After death of an account holder his heirs take over his position what leads to the common complications with the power to draw from the account/depot (HAMM/FLURY, ST 2002 p. 36).

1. Schenkungen - Gifts

   8. The gift payable on death is a construction which has been used many times but in rare cases with success. If the deceased establishes a bank account in another’s name and does not communicate this to the third person, the missing acceptance of the donee makes the transfer invalid. Besides gifts payable on death have to fulfill the formal requirements of testamentary dispositions and they usually fail due to inadequate form (BGE 127 III 390).

   9. Gifts inter vivos are executed with more success. The testator can dispose during his lifetime and hand over assets (especially to the surviving spouse) assets which becomes their own property and which can be used until the estate is distributed.

   4. Executorship

   10. The executor has an irrevocable power to dispose of the estate (Art. 517-518 SCC). Among others he has the duty to manage the assets (especially in big estates, where it takes quite some time until the distribution can take place). He can also execute advance payments. He receives his certificate within a few days (KONZLE, p. 371 et seq.).

   5. Information right of the heirs

   11. The heirs can ask the bank to get information about the accounts/depots of the deceased. They need the information in order to prove their compulsory portions (forced shares) and to start a claim for the reduction of testamentary dispositions (Art. 522 et seq. SCC). It is amazing that banks again and again strike back at information requests as this cannot be successful: Neither the argument that a single heir has no information right is valid nor the argument that the bank agreed with the client a provision to exclude heirs (ZR 101 No. 26). The right of information is not limited in time, but the duty of the bank to keep records is limited to 10 years (Art. 962 CO), although most banks (if you give them enough time) can produce in most cases more than the records of 10 years.

   12. In this context a decision of the Federal Supreme Court (BGE 128 III 314) has special relevance where Art. 527 par. 4 SCC (relinquishing of assets with the purpose of evasion) was interpreted in an extensive way. This decision gives estate planners reason to believe that in coming cases not only transfers inter vivos of the last 5 years before death (Art. 527 par. 3 SCC) but all transfers before death have to be reviewed. The right of information therefore becomes even more important for the heirs.

   13. Neither the banking secrecy nor the protection of personality are a barrier for the right of information of the heirs. In the same way as the deceased was able to ask for information (Art. 400 CO), now the heirs - who stepped in his place (Art. 560 SCC) - can ask for information. The protection of personality may restrict some categories of information from passing down to the heirs but information about assets and payments do not belong to those categories of information.

   6. Foreign Account Holder

   14 If a bank client does not live in Switzerland nevertheless Swiss law is applied on the

   relationship between this client and a Swiss bank (General Terms of banks and Art. 117 al. 2

   Swiss International Private Statute [SIPS]). The settlement of the marital property (among

   spouses) and the division of the estate is - according to the rules of the international private law

   • on a regular basis - subject to foreign law (Art. 55 and Art. 91 SIPS). As a consequence in such cases it is likely that several laws are applied at the same time and that complex questions arise.

     15. The determination of jurisdiction shows a similar picture: Switzerland has only jurisdiction if the deceased had his domicile in Switzerland or if he has chosen Swiss jurisdiction (Art. 86-87 SIPS). Besides this Swiss jurisdiction is also given for some provisions such as the safeguarding in context of an action for recovery of an inheritance (BGer 5P.17/2002).

     16. What does this mean for international estate planning? As far as possible the testator should determine the jurisdiction and the applicable law. Furthermore the heirs resp. the executor should clarify in advance what kind of documents are necessary in order to get access to bank accounts/depots in the different countries and what kind of powers the executor has in these countries.

     7. Bank Accounts and Structures

     17. If someone contributed money into a structure (foundation or trust with underlying company), the question arises if the heirs can ask for information from the trustee/board of foundation concerning a bank account of this structure. Under certain circumstances the court practice grants to the heirs an information right (Cour de Justice de Geneve from march 20, 2003).

     18. And what about the chances to execute a claim for reduction against a foreign structure? This depends from the country of origin of the structure and can be quite different. Some countries do not respect foreign compulsory portion rights of heirs and therefore do not recognize foreign judgments. But in other countries foreign compulsory portions are recognized for example Swiss compulsory portions vis a vis a Liechtenstein foundation (FL OGH from march 7, 2002).

     Literature

     BIBER RENE, Der Umgang des Willensvollstreckers mit Grundstucken im Nachlass, in: Willensvollstreckung - Aktuelle Rechtsprobleme, ed by Hans Rainer Kunzle, Zurich 2004, p. 51-73 (= ZBGR 86/2005 p. 1-18); BREITSCHMID PETER, Informationsanspruche der Erben und ihre Durchsetzung - insbesondere Informationsanspruche gegenuber Banken und ihre Geschaftsbeziehung mit dem Erblasser, successio 1/2010 p. 85 et seq.; id., Das Bankkonto im Erbgang - Probleme rund um die Vermogensverwaltung vor und nach dem Tod, in: successio 1/2007 p. 220 et seq.; ID., Vorweggenommene Erbfolge und Teilung - Probleme der Herabsetzung und Ausgleichung, in: Praktische Probleme der Erbteilung, hrsg. v. Jean Nicolas Druey und Peter Breitschmid, Bern 1997, p. 49 et seq. (cited as BREITSCHMID, Erbfolge); EMCH URS/RENZ HUGO/ARPAGAUS RETO, Das Schweizerische Bankgeschaft, 6th ed., Zurich 2004; GASSMANN RICHARD, Asset Tracing trotz Bankgeheimnis - Die Bank im Visier des Glaubigers ihres auslandischen Kunden, in: Festschrift fur Kurt Siehr, ed by Peter Johannes Weber [et al.], Zurich 2001, p. 25 et seq.; GEISER THOMAS, “Ober den Tod hinaus wirksame Vollmacht und wirksamer Auftrag, in: Temi scelti di diritto ereditario, ed by Giorgio A. Bernasconi [et al.], Basle 2002, p. 21 et seq.; HAMM MICHAEL/FLURY ROBERT, Zuwendungen im Todesfall: Wie konnen die Verfugungsfreiheit erweitert und die Gefangenschaft in der Erbengemeinschaft vermieden werden?, in: ST 2002 p. 33 ff.; HAUSHEER HEINZ, Die Abgrenzung der Verfugungen von Todes wegen von den Verfugungen unter Lebenden, in: Testament und Erbvertrag, hrsg. v. Peter Breitschmid, Bern 1991, p. 96 et seq.; KONZLE HANS RAINER, Anfang und Ende der Willensvollstreckung, in: Festschrift fur Ernst A. Kramer, Basle/Genva/Munich 2004, S. 317 et seq.; OEXL OLIVER, Praktische Probleme der Vermogensverwaltung und Nachlassplanung aus der Sicht des Bankjuristen, in: Vermogensverwaltung und Nachlassplanung, hrsg. v. Wiegand Wolfgang, Bern 2005, S. 13 ff.; WOLF STEPHAN, Vermogensverwaltung und Nachlassplanung, insbesondere aus der Optik des Erbrechts und der notariellen Praxis, in: Vermogensverwaltung und Nachlassplanung, hrsg. v. Wiegand Wolfgang, Bern 2005, S. 59 ff.; ZACH ROGER, Kommentar zum Schweizerischen Privatrecht, Band VI: Obligationenrecht, 1. Abteilung: Allgemeine Bestimmungen, 2. Teilband, 2. Unterteilband: Stellvertretung (Art. 32-40), Bern 1990; ZOBL DIETER, Probleme im Spannungsfeld von Bank-, Erb- und Schuldrecht, in: AJP 10/2001 p. 1007 ff.

Exclusion of Illegally Obtained Evidence in Greek Civil and

Penal Proceedings - An Outline

Athanasios Kaissis

Professor at the Law Faculty of Aristotle University of Thessaloniki and Member of the Governing Board of the International Hellenic University. He is the Scientific Director of the “LLM in Transnational and European Commercial Law, Mediation, Arbitration & Energy Law” and of the “Master in Art, Law and Economy”.

He is Corresponding Fellow of the Institute for Foreign Law, International Law, Comparative Law, Conflicts of Law and International Business Law at University of Heidelberg.

I dedicate this contribution to my friend Peter Gottwald with enormous admiration for his research and writing achievements which have made him so well known around the globe. I am incredibly fortunate to have such an eminent legal authority and exceptional human being enfold me with his trust and friendship.

I. Legal Framework

The legal rules in Greece restraining persons from obtaining evidence in breach of fundamental rights, such as physical and moral integrity, privacy, etc., are derived from the Constitutional provisions (under 1.1), from International Conventions (under 1.2) and from other statutory provisions (under 11.3).

1. Constitutional provisions

The Constitution is the cornerstone of the Greek legal system1. The present Constitution of Greece entered into force in 1975, immediately after the fall of the military junta2. The experience of the dictatorship facilitated the implementation of some modern provisions of protective fundamental rights and privacy. The Constitution contains a detailed catalogue of Human Rights. Among them, emphasis must be given to the provisions of Art. 2, Par. 13, Art. 5, Par. 14, Art. 6, Par. 15, Art. 7, Par.26, Art. 9, Par. 17 and Art. 198.

The Constitution of 1975 was first amended in 1986, then again very extensively9 in 2001 and recently - to a smaller extent - in 2008. The second Amendment “…has probably been the worst Amendment in Greece’s constitutional history”10. It is, nevertheless, of great importance as far as our issue is concerned. In 2001, the rights of access to information (Art. 5A)11 and the right of protection of personal data (Art. 9A)12 were added to the Constitution.gh

2. International Conventions

International human rights instruments are implemented m the Greek civil and criminal procedure systems. Art. 28 of the Constitution establishes that “The generally recognized rules of international law, as well as international conventions as of the time they are sanctioned by statute and become operative according to their respective conditions, shall be an integral part of domestic Greek law and shall prevail over any contrary provision of the law The rules of international law and of international conventions shall be applicable to aliens only under the condition of reciprocity.” Thus the generally accepted rules of the international law and the international treaties ratified by Greece take precedence over the national law13. The international statutes, following ratification in Greece, prevail over conflicting provisions of Greek law.

The European Convention for the Protection of Human Rights and Fundamental Freedoms of4th November 1950 (ECHR) and its Protocols14 115, 216, 317, 518, 619, 720, 821, 1122, 1323 and 1424 have been signed and ratified25. The right to liberty (Art.5 ECHR), the right to a fair trial (Art.6 ECHR) and the right to privacy (Art. 8 ECHR) exert a profound influence on both criminal and civil proceedings. The jurisdiction of the European Court of Human Rights and the right of individuals to petition the Court also recognised.Greek Courts occasionally refer to the ECHR26 and to the jurisprudence of the Court on the right of fair trial27.

Greece has also signed and ratified the European Social Charter, which was adopted in 1961 and revised in 199628.

The International Covenant on Civil and Political Rights29, the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment30, the European Convention for the Prevention of Torture, Inhuman or Degrading Treatment of 26/11/198731 and the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (Strasbourg 1981)32 have also been ratified.

Greece is a full member33 of the European Communities since 1981. The Treaty of Lisbon amended the Treaty on the European Union and the Treaty establishing the European Community34. According to An. 6.1: “The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties. The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties. The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions.

3. Other statutory provisions

a) EU-Directive 95/46/EU is implemented in Greece by Law 2472/1997 on the Protection of Individuals with regard to the Processing of Personal Data, which has already been modified by Laws 2663/1998, 2703/1999, 2721/1999, 2819/ 2000, 2915/2001 and 3471 /2006. Law 2472/1997 provides, in articles 21-23. Administrative and penal sanctions as well as the civil liability of persons who unlawfully “process” personal data. As mentioned above, not only is the right of privacy constitutionally protected but also the right to the protection of personal data has been guaranteed by the Constitution (Art. 9A) in Greece since 2001.

b) The Greek Penal Code (PC) includes provisions which criminalize35:

c) The violation of secrecy of letters (Art. 370 PC).

d) The tapping and recording of telephone calls (Art. 370A, Par. 1 PC). This is an important provision which has been incorporated into the Penal Code in order to give more effective protection of human rights36.

e) The eavesdropping on, and recording of, private conversations (Art. 370A, Par. 2 PC)37.

f) The use of information from a sound or video recording obtained through the violation of Par. 1 and 2 of Art. 370A (Par. 3). According to Par. 4 of Art. 370A. which is now derogated38, the crime under Par. 3 was not punishable if the evidence was brought before the Court m order to protect legitimate interests which could not the protected by other means39.

g) The unlawful copying, use or disclosure to third persons of computer data or software constituting state, scientific, professional or trade secrets of the private or public sector (Art. 37OB PC)40.

h) The unauthorized copying and use of computer software (Art. 370C PC).

i) The violation of professional secrecy (Art. 371 PC).

j) Unlawful opening of sealed letter by employees of state post offices (Art. 248 PC)

k) In Art. 18741, 187A, 187B42 and 188, the Penal Code penalizes organized crime43. Action subject to penalty is the accord between two or more persons to commit serious offences, given in Art. 187, as a group. According to Art. 253A44 of the Code of Criminal Procedure, given specific legal requirements (253A Par 2), several means of investigation (e.g., undercover agents) are foreseen under Art. 253A, Par. 1, in order to combat the criminal acts of the organization. The results of such investigations and the knowledge gained through such investigations can be used only for the reasons determined by the Judicial Council. Exceptionally, the evidence, or the knowledge obtained, can be used, provided the Judicial Council passes a specific decision in this regard (Art. 253 Par 4. PPC), in order to furnish proof of a crime, to arrest perpetrators, and to dismantle another criminal organisation.

l) The Greek Code of Civil Procedure (CCP) also erects barriers to the search for truth in certain exceptional situations, giving priority to other legal interests45, e.g. Art. 393, 394, 399, 400, 401, 402, 450 Par. 246.

II. Admissibility

Does the fact that the evidence was obtained unlawfully make the evidence generally inadmissible in criminal or civil proceedings or does this fact have no consequence for the use of evidence obtained in an unlawful way? This question has not been answered in a uniform manner in the Greek legal system47. Initially the position of the Greek jurisprudence was that courts did not have the power to exclude evidence merely because it was obtained by illegal means48. Greek legal theory formerly also took the same position. However, in the last thirty years, the threats to the right of privacy brought about by modern technology have necessitated a reassessment of these old positions. In penal proceedings, the two main concurrent interests regarding the admissibility of illegally obtained evidence are, on the one hand, the necessity to discover, ex officio, the objective truth49 - a duty of judges and prosecutors deriving principally from the rule of law (Art. 23, Par 150, Art. 25. Art. 96. Par.151 , Art. 87, Par. 152 of the Greek Constitution) and from some legal provisions of the Greek Code of Criminal Procedure (An. 177, Art. 178, Art. 179, Art. 239. Par. 2, Art . 327,Art. 351 Par. 2, Art. 352. Art. 353) - and, on the other hand, the rights of the person as an individual and as a member of the society, rights which are, according to Art. 25, Par.1 of the Greek Constitution, guaranteed by the State53.

1.

The Greek criminal justice system is basically investigatory with strong adversarial elements54. Under the statutory regulations, the Code of Criminal Procedure plays significant role. It stipulates a series of procedural provisions which erect barriers to the search for truth giving priority to other legal interests, such as, for example, professional secrecy. Instances of such provisions include Articles 19255, 218, Par. 156, 21257,364, 36558 and 358 CCP. Their violation empowers the court to exclude the evidence through the legal instrument of absolute or relative nullities of the proceedings. They are regulated in Art. 171 and 170 of the Code of Criminal Procedure respectively. Nullities occur only in cases explicitly foreseen by the law (Art. 170, Par. 1). An absolute nullity and a relative nullity in the trial stage which is not remedied lead to the nullity of the whole proceeding or of the concrete procedural act and to the reversal of the judgment (Art. 510, Par. 1A and IB CCP). Through the nullities instrument, the Greek Code Criminal Procedure enables the exclusion of evidence obtained through specific procedural irregularities concerning procedural rights or formalities with regard to the production of evidence59.

2. There is also an explicit legal basis for the exclusion of evidence:60

Regarding criminal proceedings. Art. 177 CCP is of special significance. Art. 177, Par.2 of the Code of Criminal Procedure, as amended by Art. 2, Par. 7 of the Law 2408/9661 and by Art. 10, Par. 2 of the Law 3674/2008, introduce the exclusion of evidence which has been obtained by or through criminal acts to criminal proceedings. This is an effective exclusionary rule. Until 2008, the wording of Art. 177, Par. 2, was broader allowing such evidence to be admitted in exceptional cases of the criminal offence in question was punishable by a life sentence and if special reasons justified its admissibility. Illegally obtained evidence was also admissible in order to prove defendants’ innocence62. Although the version in force (of Art. 177, Par. 2) is now more rigid, providing no exceptions to the exclusionary rule, the Greek jurisprudence does not hesitate, in certain cases, to admit evidence obtained by or through criminal acts63. An instance of this would be the case when an unlawfully obtained sound recording leads to the proof of the innocence of the defendant64.

3.

Until 2001, the Constitution did not contain rules providing for the exclusion of illegally obtained evidence. The 2001 Amendment introduced a new paragraph to Art. 19 which established that “Use of evidence acquired in violation of the present article and of articles 9 and 9A is prohibited.’’ The significance of Art 19, Par 3, is evident: the Greek Constitution65 establishes a prima facie absolute exclusionary rule of superior rank, according to which evidence obtained in violation of the abovementioned constitutional rights, is inadmissible in criminal and civil proceedings. The exclusionary rule mainly concerns evidence obtained by unlawful use of modern electronic devices. With reference to Art. 25. Par. 1, pursuant to which the rights of a man as an individual and as a member of the society are guaranteed by the State, applying also to the relations between private parties, violation of the constitutionally protected rights of Art 9, 9A and 19 of the Greek Constitution has as a consequence the inadmissibility of the evidence before criminal civil and all other Greek Courts, not only in cases in which the evidence was obtained by the State but also when the evidence was obtained by a private party66.

a) This exclusionary rule attracted criticism by the Greek legal doctrine. While a part of the constitutional doctrine, especially in the period immediately after the Amendment, was based on the precise wording of the Constitution - strongly voting forthe absolute character of the exclusionary rule and accepting no exceptions67 - recent interpretations of Art 19, Par. 3, depart from this understanding and advocate the exceptional admissibility of evidence which proves the innocence or improves the position of the accused68, especially in cases of particularly serious offences69.

b) These concerns about the absolute character of the exclusionary rule are shared also by the courts in practice, as witnessed by their exceptional acceptance of illegally obtained evidence in order to protect constitutionally superior objects, such as a human life70.

c) Arguments such as the principle of proportionality71, the principle of practical concordance as a method of interpretation72 of Art 20, Par. 173 and Art. 19. Par.3, the priority of human dignity74 and especially the character of Art. 2, Par. 1, of the Constitution, which cannot be amended75, dominate the scientific discourse about this controversial issue. From the exceptional character of the admissibility it is derived that the evidence must be the sole76, necessary and adequate means to prove the innocence or generally to assist in the defense of the accused77.

d) According to a well-established opinion in the constitutional doctrine, the exclusionary rule of Art 19, Par. 3, encompasses not only the constitutional rights which are mentioned in its wording but also evidence obtained by violation of other constitutional rights, not included in Art. 19, Par.378.

4.

Evidence obtained m violation of the terms of the Law 2472/1974 on the Protection of Individuals with regard to the Processing of Personal Data is inadmissible according to Art. 19, Par. 3, of the Constitution and Art. 177, Par. 2, of the Code of Criminal Procedure79.

5.

The provision of Art. 14, Par. 2. of the Covenant on Civil and Political Rights stipulates that anyone charged with a criminal offence shall have the right to be presumed innocent until proven guilty according to the law, and Par. 3G of the same article provides that in determination of any criminal charge against a person, the latter is entitled not to be compelled to testify against himself or to confess guilt. Under the Greek Code of Criminal Procedure, the accused has the right to refuse to answer, i.e., to remain silent, with respect to the charges (Art. 104, 273. Par. 2 and 363, Par, 3). Violation of this right by undercover agents leads to inadmissibility of the evidence (Art. 172, Par. 2 CCP). The admissibility of this evidence causes an absolute nullity (Art. 171, Par. Id)80.

6.

Article 15 of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment imposes the obligation on the State Parties to ensure that “any statement which is to have been made as a result of torture” is inadmissible in any proceedings. Although the abovementioned81 Art. 7, Par. 2, of the Constitution, which prohibits torture, and Art. 137A and 137B of the Greek Penal Code do not provide an expressis verbis inadmissibility of the evidence thus obtained, it is clear that evidence obtained as a result of torture cannot be admitted either in penal or in civil proceedings82.

7.

In Civil Procedure Law, photographs, films, sound recordings and all kinds of mechanical reproductions are to be considered as private documents (Art. 443 CCP)83. In most reported cases, civil courts had to decide about illegally obtained sound recordings84. “Illegally obtained” means: sound recordings produced without the consent of one of the interlocutors85, irrespective of the location in which the discussion took place86 and irrespective of the person being secretly recorded87. It is now the consistent practice of the courts for illegally obtained sound recordings to be deemed inadmissible in civil proceedings against the person whose right of communication was violated88 or against a third person89. Sound recordings are exceptionally admissible m order to protect constitutionally superior objects, such as human life90. Evidence obtained illegally by violation of a rule which does not have a constitutional character remains admissible91 after weighing the conflicting interests. In this consideration of the respective interests, the constitutionally protected right to proof92 is given particular weight.