In Greece, the independence of the justice is safeguarded by the Constitution. According to section E' of the Constitution (Articles 87-100A):
Only professional and regular judges dispense justice. This 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:
The penal justice
Crimes are judged as follows:
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.
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 appealled 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 appealled 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 apealled 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 jurisdicion 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 constitutionallity, 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 Karamanlis included within the plans of the scheduled constitutional ammendment 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 hasnt' t taken its final form, it is not clear yet whether it entails the replacement of the "diffused" constitutional control with a more "concencetrated" one or whether the Supreme Constitutional Court shall have a jurisdiction similar to this of the existing Supreme Special Court, consisting in the resolutin of contradictions and disputes between the three Supreme Courts.
The EU Law and the Constitution
The Court of Justice of the European Communities considers the law of the EU superior to the national laws, including the national constitutions. The greeek courts and, especially, the Council of State have avoided to express themselves about the superiority of the Constitution or the EU law.
In 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, ND and PASOK, agreed to this provision, aiming, according to those who proposed it, at promoting transparency. In 2005 the Parliament passed a law, materialising the constitutional provision. The European Commission reacted 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 Commission threatened 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, annuling the administrative act. With this "trick" the Chamber of the Council reinforced 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.
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