The lifting of banking secrecy

Postgraduate Thesis uoadl:2325065 953 Read counter

Κατεύθυνση Ουσιαστικό και Δικονομικό Δίκαιο
Library of the School of Law
Deposit date:
Bertidi Despoina
Supervisors info:
Νικόλαος Δημητράτος, Επίκουρος Καθηγητής, Τομέας Ποινικών Επιστημών, Νομική Σχολή
Original Title:
Η άρση του τραπεζικού απορρήτου
Translated title:
The lifting of banking secrecy
The subject of this thesis is the presentation and the thorough examination of the legal issues concerning the act of inquiry of the lifting of banking secrecy, not only on a theoretical level but also in the light of national and supranational jurisprudence. Firstly, an effort is made to present the historic progress of the shaping of banking secrecy in the area of the international and Greek law, which is considered to be necessary for the complete comprehension of the contemporary provisions of banking secrecy. Then, the semantic approach of banking secrecy follows, as well as its social meaning and its foundation on above the law legislative effect provisions. What is more, it is made clear that on a national law level, according to the legislative valuations, the simplification of the procedures of the inquiry act of the lifting of banking secrecy was considered an urgent need, as well as the elasticity of the protection of banking secrecy in the frame of Law 3691/2008, contrary to its absolute and strict protection in the light of the Legislative Decree 1059/1971 provisions, in view of the radical rise of financial criminality during the last decades in Greece and generally in the whole world.
However, except for the lifting of banking secrecy by the legal authorities, the possibility of access by other authorities to banking information of suspects for crimes according to the articles 2 and 3 of Law 3691/2008 was expanded. Particularly, the conditions of access to banking data by the Authority Fighting against Money Laundering, Sponsoring Terrorism and Controlling the Declarations of Property Condition, as well as by the Body against Financial Crime, in the frame of prevention and fighting against tax offences, became less strict. However, in the present thesis, it is supported that the Legislative Decree 1059/1971 is still in effect in the frame of the investigation of crimes not included in the articles 2 and 3 of Law 3691/2008 and that is why it continues to be applied by the Greek justice.
Moreover, in the present thesis, it is quite clear that in the sense of national and European Union law for the personal data protection, the banking data are considered to be personal data. On the basis of the provisions of Law 2472/1997 with which the abolished Directive 95/46 was incorporated in the Greek law, the legislation for the protection of personal data was not applicable in the frame of penal procedures, as there was an absolute provision in Law 2472/1997 which excluded its implementation in this case. This provision is also included in the recent General Regulation for the Data Protection, that is the Regulation (EE) 2016/679, which repealed the European Directive 95/46, but it has also no implementation on the process of personal data by official authorities for the prevention, the investigation, the detection or the prosecution of crime offences or the enforcement of crime penalties. Yet, the regulations of the new Directive 2016/680 which specifically concerns the protection of the individuals contrary to the process of personal data by official authorities for the aim of prevention, investigation, detection or prosecution of crime offences or enforcement of crime penalties and the free spreading of this data, will be of great importance for the lifting of banking secrecy, since the Directive will be incorporated in the Greek law.
In addition, the issue of the possibility of the competent authorities to take into account probative means which resulted from the illegal lifting of banking secrecy is also mentioned in the present thesis. Particularly, this writing work refers to the controversial issue of the constitutionality of article 65 of Law 4356/2015 about the non-implementation of par. 2 of article 177 of the Code of Criminal Procedure, in a specific category of crimes - within the competence of Public Prosecutor of Financial Crime and Corruption - and under specific circumstances. The aspect about the opposition of the regulation to the Constitution is also claimed, since par. 2 of article 177 of the Code of Penal Procedure is an extension of par. 3 of article 19 of the Constitution, whose provision is absolute and, consequently, it waives every opposite law regulation.
Furthermore, with regard to the dogmatic character of the lifting of banking secrecy as a general or special judicial inquiry, it is stated that this is a general judicial inquiry, granted that it is not included in the restrictively specific judicial inquiries mentioned in the article 253A of the Code of Criminal Procedure, among which the lifting of telephone correspondence secrecy is included. Besides, a distinctive characteristic of the special judicial inquiries is their conduct in the frame of the investigation of crimes restrictively mentioned by the law, which is not a characteristic of the lifting of banking secrecy, not only in the frame of the Legislative Decree 1059/1971, but also in the provisions of Law 3691/2008, as the list of crimes of articles 2 and 3 of Law 3691/2008 is particularly wide, covering a great spectrum of harsh criminality.
Additionally, the regulations of the inner law are indicated, as well as the most important provisions of the European and international contract law about the international judicial assistance, since they directly concern the lifting of banking secrecy as a judicial inquiry which takes place within the scope of the inter-border evidence. The new international scope of automatic exchange of banking information for the fight of tax offences is also analyzed in this thesis, with detailed presentation of the progress of the international cooperation on this field.
Finally, an effort is made of approaching de lege ferenda the legal issues related to the lifting of banking secrecy by presenting some recommendations for improving the effective national legislative frame, having as keystone the fundamental principles of the rule of law and the fair trial.
Main subject category:
Criminal Law
Other subject categories:
Criminal Procedure
banking secrecy, inquiry act, proportionality, personal data, money laundering
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