- Judicial system of Greece
Greece, the independence of the justice system is safeguarded by the Constitution. According to section E' of the Constitution (Articles 87-100A):
* Only professional and regular judges dispense justice. These judges are professional, permanent and irremovable, enjoying full personal and functional independence. All Greek judges are graduates of the National School of Judges.
* Judges serve only the Constitution and the laws, which are in accordance with it.
* Judges are appointed by a presidential decree and they are dismissed only after a juridical decision. Their promotions are decided by the Supreme Board of Justice of the civil and penal justice and by the Supreme Board of Justice of the administrative justice respectively. The presidents and the vice-presidents of the three Supreme Courts as well as the Prosecuting Attorney of the Court of Cassation are chosen by the Cabinet. The presidents of the three supreme courts serve for a maximum three-year term.
The two branches of the Greek judicial system
According to the Constitution there are three categories of courts: civil courts, penal courts and administrative courts. The supreme court of the civil and penal justice is the Court of Cassation, while the supreme court of the administrative justice is the Council of State. Hence, Greek judges belong to one of these two branches. Consequently, an administrative judge is not entitled to judge a penal or civil case, while a civil judge is entitled to judge a civil or penal case but not an administrative one.
The civil justice
Civil cases are judged:
* At first instance, by the District Courts or the Courts of First Instance, according to the estimated value of the matter disputed at law.
* At second instance, by the Courts of First Instance or the Courts of Appeal, according to the estimated value of the matter disputed at law.
* By the Court of Cassation, when a "writ of certiorari" is filed against a final decision of the Court of Appeal. Court of Cassation's decisions are irrevocable. If the Court of Cassation concludes that a lower court violated the law or the principles of the procedure, then it can order the rehearing of the case by the lower court.lalala
The penal justice
Crimes are judged as follows:
* "Felonies" are judged, at first instance, by the "mixed" Court of First Instance and, at second instance, by the "mixed" Court of Appeal. In these "mixed" courts participate four jurors and three professional judges (of first instance and of appeal respectively). A constitutional provision allows the exception of certain crimes from the jurisdiction of the "mixed" courts. These crimes are judged, at first instance, by the three-member Court of Appeal and, at second instance, by the five-member Court of Appeals, without the participation of any jurors. For example, the members of the
Revolutionary Organization 17 Novemberterrorist group were judged according to this procedure, because felonies of terrorism or organised crime belong to the competence of the Court of Appeal and not to the "mixed" courts.
The Court of Cassation examines "writs of certiorari" against the final decisions of the ("mixed" or not) Courts of Appeals and it can order the rehearing of a case by the lower court, if it concludes that the lower court violated the law or the principles of the procedure.
* "Misdemeanours" are judged, at first instance, by the Misdemeanours Court and, at second instance, by the Court of Appeal. A writ of certiorari against the final decision of the Court of Appeal is possible.
* "Infringements" are judged by the Magistrate's Court.
The administrative justice
The judicial control of an administrative act goes either on its merits either not. The administrative acts of the first case are appealed against with the legal remedies of the "recourse" or of the "suit" and they belong to the jurisdiction of the Administrative Courts (of First Instance and of Appeal), while all the other administrative acts are appealed against with the legal remedy of the "writ of annulment" and they belong to the jurisdiction either of the Council of State or of the Administrative Court of Appeal. The control of these acts has to do with matters of legality, namely whether they are issued in accordance with the Constitution and the laws. At second and final instance, the Council of State is always competent to judge these acts. The decisions of all the administrative courts may be appealed against with a "writ a certiorari", which is judged by the Council of State.
The Chamber of Accounts is also a supreme administrative court, whose jurisdiction is limited in certain particular areas (e.g. disputes between the state and the civil servants concerning their pensions). Its decisions are irrevocable and out of the control of the Council of State.
The constitutional control of laws
According to the Greek judicial system every court is competent to judge the conformity or not of a legal provision with the Constitution. This judicial right constitutes the so-called "diffused" control of constitutionality, which is opposed to the "concentrated" control. The last one exists in most European countries, which have a Supreme Constitutional Court, such as Germany, Spain or even France, which has a Constitutional Council. Since there is no such court in Greece, all courts are deemed competent to decide upon the constitutionality of a legal provision.
The Supreme Special Court
The Supreme Special Court is not a "regular" and "permanent" court, namely it sits only when a case belonging to its jurisdiction arises, and its role is mainly: a) to resolve disputes between the Supreme Courts or between the courts and the administration, b) to take an irrevocable decision, when contradictory decisions of the Supreme Courts, concerning the true meaning or the constitutionality of a legal provision, are issued, c) to judge the pleas against the validity of the result of the legislative elections. Consequently, it is the only court that can declare an unconstitutional legal provision "powerless" (not "null and void") and expel it from the Greek legal system, while the Supreme Courts can only declare it as "inapplicable" for the particular case. The decisions of the Supreme Special Court are binding for all courts, including the Supreme Courts.
Is a "Supreme Constitutional Court" necessary?
At the outset of 2006, the prime minister of
Greece, Kostas Karamanlisincluded within the plans of the scheduled constitutional amendment the foundation of a Supreme Constitutional Court, which will replace the Supreme Special Court. Supporter of the proposition is the Minister for the Environment, Physical Planning and Public Works Georgios Souflias. Just after the prime minister's announcement an ardent debate broke out about the necessity of a Constitutional Court. The government's proposition is ambivalent and, since it hasn't' t taken its final form, it is not clear yet whether it entails the replacement of the "diffused" constitutional control with a more "concentrated" one or whether the Supreme Constitutional Court shall have a jurisdiction similar to this of the existing Supreme Special Court, consisting in the resolution of contradictions and disputes between the three Supreme Courts.
The EU Law and the Constitution
Court of Justice of the European Communitiesconsiders the law of the EUsuperior to the national laws, including the national constitutions. This, however, applies where the European Councilhave expressly legislated in particular areas; this being where treaty provisions provide for secondary legislation in furtherance of the former . The Greek courts and, especially, the Council of State have avoided to express themselves about the superiority of the Constitution or the EU law.
2001, a new provision was added to the Constitution, according to which the owners of private mass media are not allowed to participate in public procurements. Both big parties, NDand PASOK, agreed to this provision, aiming, according to those who proposed it, at promoting transparency. In 2005the Parliament passed a law, materialising the constitutional provision. The European Commissionreacted immediately and warned that this legal provision violates EU law of competition. The Greek government answered that the law materialises the respective constitutional provision, which is superior to the EU law. Ardent supporter of this opinion was the professor of law and Minister for the Interior, Public Administration and Decentralisation Prokopis Pavlopoulos. Nevertheless, the government receded and amended the law according to the European Commission's instructions, when the European Commissionthreatened to cut Community funds destined for Greece.
The Constitutional control and the Council of State
After the constitutional amendment of
2001, Supreme Courts can decide on the constitutionality of a legal provision only in Plenary Session. This amendment deprived the Chambers of the Council of State of their competence to judge the constitutionality of a legal provision. Now, the Chambers are obliged to submit the case to the Plenary Session of the "Council".
Nonetheless, a Chamber of the "Council" with the Decision 372/2005 on a case including a problem of constitutionality, instead of submitting the case to the Plenary Session, it kept it and applied the
European Convention on Human Rights, annulling the administrative act. With this "trick" the Chamber of the Councilreinforced its competence without violating the Constitution and avoided a time-consuming for the litigant procedure.
It should be noted that, according to the Constitution, the legal force of the international conventions is superior to the national laws but inferior to the Constitution.
* [http://www.ministryofjustice.gr/eu2003/indexENG.php Greek Ministry of Justice]
* [http://www.esdi.gr/english.html National School of Judges]
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