Conference of the Association of Criminalists- Kehagioglou: The mob in any form and form cannot and must never be allowed to dispense justice

On the first day of her conference Association of Criminal Lawyers and Fighting Lawyers held on the weekend of 12 and 13/11/2022 at the Eugenide Foundation, the criminologist Sakis Kehagioglou, opening the conference, at the beginning of his speech, he paid tribute to the late professor of criminal law, Stefanos Pavlou. He then emphasized that the right to a fair trial is more than a nice perk. It is a fundamentally important guarantee in any democratic society.

He then asked a series of questions including:

• How fair is a procedure when an unjustified or poorly justified arrest warrant is issued while the accused is neither suspected of fleeing nor suspected of committing new crimes?
• And when this happens only for communication reasons and for reasons of satisfaction of the so-called “public feeling about justice”?
• How fair is a process when in many cases the arrested person is prohibited from communicating with his lawyer and is in fact forced to make a pre-trial statement on which investigators and prosecutors rely throughout the process, considering it spontaneous and honest, regardless of the circumstances of the statement being taken , the psychological state of the arrested person and the benefits that are often offered to him when the lawyer of his choice is not present?
• How much respect is there for the rights and the personality of the accused when he is dragged to the prosecutor’s offices, like a runner under the curses, slurs and insults of the gathered crowd of allegedly or truly “outraged” citizens. Are prosecutors and investigators affected or not? They themselves assure that they are never affected. I ask: does it apply in practice? And if it really is true, then what are the reasons for the heavy and excessive criminal prosecutions in thousands of cases which collapse in the audience? Because if we believe the criminal prosecutions brought under the charge of criminal organization, then in recent years Greece has been the first in the world in the production of criminal organizations. Or do the criminal prosecutions for organized crime that are brought have as their real objective the deprivation of the defendant’s appeal in order to issue a will in the first and last instance? Will I be considered excessive if I say that the obvious aim is also to burden the position of the accused so that they face more and heavier charges, both during the interrogation and in the audience?
• How fair is the treatment of an accused – with a clean criminal record in many cases – who is judged to be a temporary prisoner, remains in prison for more than a year, until his trial, while the conditions for the imposition of temporary detention are not actually met reservation? And in the end, temporary detention acts as an advance payment of a penalty, which is unfair and unacceptable.
Isn’t it time to finally give clear instructions to judicial and prosecutorial officers in the schools of judges and also by the leadership of the judiciary so that temporary detention is imposed in absolutely necessary – and only – cases as an extreme measure of procedural coercion? It is finally not the time to deal with the issue of mixed non-sworn telecourts, which without having knowledge of the case file and consisting, in the overwhelming majority, of people unrelated to legal science, impeach, judge, condemn and almost execute the sentences, after having previously publicly executed the accused and his family?
Does the eventual irrevocable acquittal of the accused in the future restore the irreversible damage or destruction of his personal, family and social life? Does the word innocent satisfy society’s instincts the same as the word guilty?
With all the experience I have, I publicly express once again my belief that in Greece there is no presumption of innocence, there is a presumption of guilt.
Everything we hear publicly about the presumption of innocence contains a profound hypocrisy. When something is heard or written against a citizen, even if it is a monstrous lie, it is accepted uncritically by a large part of public opinion and by all the members of the non-sworn telecourts, which condemn the alleged perpetrator without having any knowledge of the charges it faces or of the elements of the case file which they use fragmentarily and selectively.
Criminal populism has become too much in our time. The replacement of the natural judge by the irresponsible lay judges of television or the Internet constitutes a heavy blow to our legal culture, to the constitutional order and to the very concept of justice. The mob in any guise and form cannot and must never be allowed to dispense justice, except the judicial formations and bodies provided for and defined by the Constitution and laws.

Every person is innocent until proven guilty according to the Law. He has the right not to speak and not to admit his guilt. The ECtHR with its decisions reminds us that the presumption of innocence is one of the elements of a fair criminal trial guaranteed by Article 6§1 and that this presumption is violated if a statement by a public official about an accused person for the commission of a crime renders the opinion that that person is guilty, before his guilt is proved according to law. For the violation it is sufficient, even in the absence of any official finding of guilt, that there is some argument, on the basis of which the official treats the accused as guilty.
Is there any need to remind at this point that the burden of proving the guilt of an accused should be on the prosecuting authority and not on the accused the burden of proving his innocence? I am sure that the vast majority of those present here today as well as all those who follow the proceedings of our conference online are very well aware that in practice it is the accused who has to prove his innocence, which is extremely difficult if not impossible most of the time.
I hope I have the understanding of the delegates and especially the main judges and prosecutors if I formulate the position that in Greece and in judicial practice, doubt rarely leads to the acquittal of the accused as it should be. So I am entitled at this point to raise the question, whether this practice that we all know constitutes a fair trial. Isn’t it time for all the actors and functionaries of justice to teach and guide the new judges so that the doubt always works in favor of the accused? Why then are we fighting for human rights, the European acquis and legal culture?

Honorable delegates,

We could spend endless hours discussing the formulas and procedures required for a fair trial. The topic cannot be exhausted either in the context of my own presentation or of course in the suggestions of the following distinguished speakers. But even if the formulas and procedures are observed, we should be re-educated as a society in dialogue, in respecting the opposing point of view, in observing, with religious reverence, the rights of the accused, in critical thinking, in self-restraint, in leniency, in humanity. Mithridatism and society’s aphasia towards rudeness, gossip, keyhole, superficiality in judgments, the certainty that everyone is guilty and corrupt and the lynching of any opposing point of view, but also the inability of society to accept the acquittal of an accused who really is innocent, they dynamit the foundations of a fair trial. We have a duty as jurists, from which position we were qualified to serve, to strive for the conditions of a fair trial, even when we are alone, always pursuing the essence of Justice, true to our oath and our conscience and not obeying what, anything current and popular.
The concerns will never end. I see young lawyers taking steps forward, positively evolving many problematic areas in the practice of law. I’m optimistic that we won’t wake up one morning and be caught in our sleep, wondering to the end why we were arrested, like Kafka’s hero. I am optimistic that the castle will not collapse from the inside. The fact that we discuss our concerns based on everyday life and judicial practice outside the molds of theory means that we begin to provide solutions to our small and large problems. Practicing daily righteous actions, after all, those that arise from our conscience, we become righteous.
For us, for the others, for those who turned to us anxiously, having a problem and we assured them that they will be tried fairly.

In concluding my introduction, gentlemen, I am reminded of a quote by the distinguished liberal politician and US Vice President, Humbert Horatio Humphrey, who in his farewell address to the senate in 1977 emphasized: “The moral test of a society is how it behaves and treats those who are in the East of life, i.e. children, those who are in the West of life, i.e. the elderly and those who are on the margins of life, i.e. the sick, the poor and the disabled.” Paraphrasing this phrase, let me say that the moral test of our society is how it treats the persecuted, the accused, the condemned. In how it ensures that he will receive a fair trial with all the constitutional guarantees of legality. And that he exercised all his rights unhindered, so that in the reasonable and regulated violence that constitutes the Law according to Yannis Manoledakis in the philosophy of law, to recognize himself inwardly that it was rendered in the case of Justice.
Allow me to close with a personal statement: Honors and distinctions aside, I would like to assure you that the greatest title of my life was, is and will remain the title of defense attorney.

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