Abstract
Given the rapid advancements in neuroscience and its growing involvement in legal proceedings, in this paper, we aim to address the question of whether and to which extent Greek legislation could be revisited in the light of the most recent neuroscientific discoveries. “Reading” the human cognitive and emotional functions by modern neuroscientific technology is relevant to a number of Greek legal provisions, an overview of which is presented in this paper. In the first chapter, we describe the general framework that governs an adult’s capacity of will, taking into consideration the constitutional aspect, the civil law’s approach and some special topics concerning medical law and research, with the aim to examine how these issues could be illuminated with a neuroscientific perspective. The second chapter is exclusively dedicated to criminal law, in an effort to evaluate the potential influence of neuroscience on the Greek criminal justice system. The penal legislation concerning the assessment of criminal responsibility, the evaluation of the sentence, and the admissibility of neuroscientific techniques in criminal Courts, as well as some special issues concerning juvenile offenders and crime prevention are presented. Finally, a unique Greek case where the use of a lie detector was permitted in the context of a criminal trial is cited and briefly analysed. This overview leads to conclude that although the Greek legal system refers extensively to situations of interest for neurolaw, the acceptance of neuroscientific methods for determining the cognitive or mental status of persons involved in civil, medical and criminal relationships is rarely considered as important. However, the aforementioned judicial step towards the acceptance of these methods in criminal settings, as well as the innovative spirit that the Greek legislator shows in regulating biomedical matters during the last decades, lead to consider that a revision of the Greek legislation in the light of new neuroscience, should not be excluded for the future. Providing more information on neurolaw and its expected benefits could be, perhaps, the best motivation for taking action in this promising field.
Takis Vidalis, Hellenic National Bioethics Commission, PGP in Bioethics, University of Crete Georgia-Martha Gkotsi, Ph.D candidate, University of Lausanne, Faculty of Biology and Medicine Ethos - Interdisciplinary Platform of the University of Lausanne, University of Athens, Greece, Faculty of Law
This is a preview of subscription content, log in via an institution.
Buying options
Tax calculation will be finalised at checkout
Purchases are for personal use only
Learn about institutional subscriptionsNotes
- 1.
See Chapter II on consent:
Article 5 (General rule)
“An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it.
This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks. The person concerned may freely withdraw consent at any time.”
Article 6 (Protection of persons not able to consent)
“1. Subject to Articles 17 and 20 below, an intervention may only be carried out on a person who does not have the capacity to consent, for his or her direct benefit.…
3. Where, according to law, an adult does not have the capacity to consent to an intervention because of a mental disability, a disease or for similar reasons, the intervention may only be carried out with the authorisation of his or her representative or an authority or a person or body provided for by law.The individual concerned shall as far as possible take part in the authorisation procedure.
4. The representative, the authority, the person or the body mentioned in paragraphs 2 and 3 above shall be given, under the same conditions, the information referred to in Article 5.
5. The authorisation referred to in paragraphs 2 and 3 above may be withdrawn at any time in the best interests of the person concerned.”
Article 7 (Protection of persons who have a mental disorder)
“Subject to protective conditions prescribed by law, including supervisory, control and appeal procedures, a person who has a mental disorder of a serious nature may be subjected, without his or her consent, to an intervention aimed at treating his or her mental disorder only where, without such treatment, serious harm is likely to result to his or her health”.
- 2.
The Greek legal system belongs to the family of Roman systems. Its basic elements reflect the influence of both the German and the French law. Greece is also a member State of the EU (since 1981), therefore EU law covers a large part of internal law.
The Constitution protects a large catalogue of fundamental rights (civil liberties, political rights, social rights, and rights of “3d generation”). All courts have the power to control the constitutionality of laws (non-existence of a Constitutional Court). All ratified international conventions as well as all generally recognized rules of international law prevail over domestic laws.
- 3.
See in extenso Dagtoglou (1991), pp. 1133–1141.
- 4.
See Manessis 1982, pp. 118–119.
- 5.
See Vidalis-Mitrou-Takis 2006, pp. 281–285 (Vidalis).
- 6.
See Vidalis-Mitrou-Takis 2006, pp. 308–312 (Mitrou).
- 7.
This is the example of articles 4 par. 1 pertaining to the equal treatment before the law, 5 par. 2, 3, 4 on the habeas corpus principle, 21 par. 3 concerning the social right to health etc.
- 8.
See articles 1677, 1685, 1686 C.C.
- 9.
See article 1669, 1682 C.C.
- 10.
See article 1682 C.C.
- 11.
See article 1687 C.C.
- 12.
See below at (c).
- 13.
See articles 11 par. 4, 12 par. 2 bb of Act 3418/2005.
- 14.
See article 9 of the Oviedo Convention and article 29 par. 2 of Act 3418/2005.
- 15.
In contrast, voluntary hospitalization does not raise special problems, since patients consent themselves to this kind of treatment, which has as an additional condition the confirmation of its necessity by the scientific director of the hospital concerned. Therefore, the law equates in this case mentally ill patients with other patients, regarding the protection of their fundamental rights (see article 94 par. 4 of Act 2071/1992).
- 16.
See, in detail, Vidalis (2007), pp. 56–63.
- 17.
Article 95 of Act 2071/1992.
- 18.
Article 95 of Act 2071/1992.
- 19.
Article 96 of Act 2071/1992.
- 20.
Article 98 par. 1 of Act 2071/1992.
- 21.
Article 99 of Act 2071/1992.
- 22.
See, in general, Hellenic National Bioethics Commission (2005), III, 2.
- 23.
See article 13 of Act 3418/2005.
- 24.
See article 7 of Act 2472/1997.
- 25.
Kotsalis (2002), p. 88.
- 26.
Kotsalis (2002), p. 27.
- 27.
Kotsalis (2002), p. 28.
- 28.
Manoledakis (2001), p. 586: It is worth noting that according to the ruling opinion, the biological factors implied in the article 34 PC are used as legal concepts and they are not conceived as strictly medical terms; psychiatric science comes at this point to help legal science and not to replace it.
- 29.
Supreme Court 342/2010: “The reduced capacity of the offender should be evaluated always in relation to a specific crime and should be present at the time of the crime”.
- 30.
- 31.
Kotsalis (2002), p. 103.
- 32.
Androulakis (2000), p. 477; Supreme Court 2292/2003: “Morbid disturbance of mental functions” includes all forms of madness or insanity in the broadest sense. “Disturbance of consciousness” includes all the psychic disturbances, which do not arise from pathology of the brain but occur in mentally healthy people and are always transient”.
See also Supreme Court 449/1996: “A morbid disturbance of mental function includes any form of disturbance of mental functions from pathological causes, any disease of the mind, such as specific forms of insanity, or insanity in the broad sense. Disturbance of consciousness includes any kind of mental disturbance which does not emerge from a general situation of the brain but can also occur in mentally healthy subjects and which is transient”.
- 33.
Anagnostopoulos (1983), p. 779.
- 34.
Kotsalis (2002), p. 73.
- 35.
Leivaditis (1994), p. 393.
- 36.
Panoussis (1978) p. 776.
- 37.
Alexiadis (1986), p.131.
- 38.
Dimopoulos (2008), pp. 322–326.
- 39.
Kourakis (2007).
- 40.
Anagnostopoulos and Magliveras (2000), p. 160.
- 41.
Article 178 CCP: The main means of proof in criminal proceedings are: a) indications. b) inspection. c) expertise. d) the confession of the accused. e) witnesses and f) documents.
- 42.
Article 177 CCP: Evidence that has been introduced into court with or through illegal acts must not be taken into consideration for the declaration of guilt and the imposing of a punishment or of coercive measures, except if it has to do with crimes for which the penalty is life sentence and if the court issues a reasoned decision for this subject.
- 43.
Farwell and Donchin (1991), pp. 531–547.
- 44.
Praxis and Reasoning of Criminal Law (2003), 4th year, pp. 185–188.
- 45.
The neuropsychiatrists who conducted the examination testified in the court as “witnesses with special knowledge” in accordance with the article 203 CCP, and not as experts, since the criteria laid down in articles 183–186 CPR concerning the ordering of an expertise were not fulfilled, nor were the two neuropsychiatrists included in the tables of experts.
References
Alexiadis S (1986) The dangerousness of the criminals: a fake construction. Homage to Chorafas/Gafos/Gardikas, vol. 2. (in Greek)
Anagnostopoulos I (1983) “Dangerous” criminals and preventive procedural measures. Poinika Hronika ΛΓ’:769–784 (in Greek)
Anagnostopoulos I, Magliveras K (2000) Criminal law in Greece. Kluwer Law, The Hague-London-Boston/Sakkoulas, Athens
Androulakis N (2000) Penal law, general part. Sakkoulas PN ed, Athens (in Greek)
Dagtoglou P (1991) Constitutional law. Civil rights. Ant. Sakkoulas ed, Athens (in Greek)
Dimopoulos C (2008) Lectures on criminology. Nomiki Vivliothiki ed, Athens (in Greek)
Farwell LA, Donchin E (1991) The truth will out: interrogative polygraphy (“lie detection”) with event-related brain potentials. Psychophysiology 28(5):531–547
Hellenic National Bioethics Commission (2005) Report on biomedical experimentations involving human subjects and clinical trials of medicinal products. In: Rap: Manolakou K, Vidalis T, http://www.bioethics.gr/media/pdf/reports/report_ct_en.pdf
Kotsalis L (2002) Introduction to legal psychiatry. Ant N. Sakkoulas, Athens (in Greek)
Leivaditis M (1994) Psychiatry and law. Papazisis, Athens (in Greek)
Manessis A (1982) Constitutional rights. a. Civil liberties. Sakkoulas ed, Thessaloniki (in Greek)
Manoledakis I (2001) Penal law - general part. Sakkoulas ed Athens (in Greek)
Panousis G (1978) The notion of dangerousness. Nomiko Vima: 776–782 (in Greek)
Praxis and reasoning of criminal law (2003) 4th year, pp 185–188 (in Greek)
Vidalis T (2007) Biolaw. The Person, T. 1. Sakkoulas ed, Athens (in Greek)
Vidalis T, Mitrou L, Takis A (2006) Constitutional reception of technological developments and “New” rights. In: Centre of European constitutional law, five years after the constitutional revision of 2001, T I., Ant. Sakkoulas ed Athens, pp 273–312 (in Greek)
Κourakis N (2007) The problem of inefficient explanation in the decisions on the length of the sentence. http://www.poinikos-logos.gr/arxeio/07t3e.html (in Greek)
Author information
Authors and Affiliations
Corresponding authors
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2012 Springer-Verlag Berlin Heidelberg
About this chapter
Cite this chapter
Vidalis, T., Gkotsi, GM. (2012). Neurolaw in Greece: An Overview. In: Spranger, T. (eds) International Neurolaw. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-21541-4_10
Download citation
DOI: https://doi.org/10.1007/978-3-642-21541-4_10
Published:
Publisher Name: Springer, Berlin, Heidelberg
Print ISBN: 978-3-642-21540-7
Online ISBN: 978-3-642-21541-4
eBook Packages: Humanities, Social Sciences and LawLaw and Criminology (R0)