Co.Co.A. Constitutional Control in Greece. Greece. Prepared by: Maria Protopapa

Transcription

1 Co.Co.A. Comparing Constitutional Adjudication A Summer School on Comparative Interpretation of European Constitutional Jurisprudence 3rd Edition Concrete control of constitutionality Greece Constitutional Control in Greece Prepared by: Maria Protopapa 1

2 Constitutional Control in Greece Maria Protopapa I. Generally Greece follows the system of the decentralized, known as diffuse, incidental and concrete control of constitutionality 1. Scholars use the term control of unconstitutionality. The above system was initially established at the 19 th century by means of caselaw. Then it was introduced at the current Constitution of 1975, ever since constituting positive law. Nowadays, the constitutional control of laws is founded on the fundamental principles of rule of law (art. 25 of the Constitution) and the division of state powers (art. 26 of the Constitution). In more detail, art. 93, para. 4 of the Constitution imposes to the courts the obligation not to implement laws which contravene the constitutional provisions. It could be argued that the above provision does not explicitly establish the incidental control of constitutionality. However, it is deduced a contrario on the absence of a general provision centralizing the said control. Furthermore, art. 87, para 2 of the Constitution provides that the judges while exercising their power are only subject to the Constitution and in no case do they ought to conform with norms aiming at the disruption of the constitutional order ). 1 See Catherine Sakellaropoulou (judge of the Highest Administrative Court-Court of Cassation), The constitutional control of laws and article 100 paragraph 5 of the Constitution. Procedural organization or shrinkage of the diffused control?. This article is only available in Greek at: 2

3 II. The main characteristics of constitutional control 2 By diffuse it is meant that the constitutional control is performed by every court of every jurisdiction, irrespective of degree, while settling a dispute brought before it. Courts are legitimized to do so, because they are competent to exercise the judicial power and they are provided with the guarantees of independency and impartiality (art. 26 of the Constitution). By incidental it is meant that it takes place when the conditions of admissibility and in general the procedural preconditions of each trial are met. Unconstitutionality may be either proposed on an initiative of the parties or taken into account by the court itself at every stage of the trial. By concrete it is meant that the constitutional control is performed within the framework of a certain dispute, on the occasion of the interpretation and implementation of a specific legal provision or normative act, (i.e.) that is to say that constitutional control goes through every substantial law (laws, presidential decrees, ministerial decisions 3 ) on the basis of the merits and legal facts of the case under dispute and only for the purposes of its settlement. Another characteristic of the constitutional control in Greece is that it is declaratory 4. This means that the diagnosis of unconstitutionality does not lead to the annulment of the relevant norm, (whose unconstitutionality has been ascertained), whereas it is just being set aside and is not being implemented only for the purposes of 2 See Catherine Sakellaropoulou, The constitutional control of laws and article 100 paragraph 5 of the Constitution. Procedural organization or shrinkage of the diffused control?. This article is only available in Greek at: 3 By virtue of article 43 of the Constitution, the President of the Republic is given the power to issue regulatory decrees, each time, according to a relevant authorization provided by a special legal provision. The regulatory field of such decrees must not go beyond the framework of the relevant legal authorization and nay only be issued based upon a proposal given by the competent Minister. The same authorization may be granted to other administrative bodies, but only, in order for more special issues to be regulated. 4 See Catherine Sakellaropoulou, The constitutional control of laws and article 100 paragraph 5 of the Constitution. Procedural organization or shrinkage of the diffused control?. 3

4 this specific case. Besides, the assessment on unconstitutionality is not mentioned at the pronouncement (at the minor clause) of the judgment but at the grounds (major clause). As a result it does not constitute res judicata. It has the binding power of the precedent. Then the precedent as every precedent in Greece, which is a civil-law country, becomes more binding in view of the degree of the Court 5. At this point it is important to mention that in case of cassation of an administrative act for the reason that it has been issued on the basis of an unconstitutional legal provision, other administrative acts with identical legal basis continue to be valid until they get recalled or annulled, whereas until then they are presumed legal 6. III. Aspects of centralized and abstract control of constitutionality i. The jurisdiction of the Supreme Special Court According to art. 100, para. 1 of the Constitution, when at least two of the three Highest Courts at the top of the three ordinary jurisdictions (which constitute the third degree of jurisdiction, where only legal facts are examined by the courts) have delivered different opinions on the constitutionality of a provision of law adopted by the Parliament exercising their ordinary jurisdiction, the Supreme (Special) Court becomes competent (its jurisdiction is exceptional) to lift the said dispute, which is actually a controversy. Then if the Supreme Court regards the legal provision in question as unconstitutional (and this is the difference from the ordinary jurisdiction) it proceeds in its annulment. The ruling of the Supreme Court has erga omnes effect and renders the law invalid ex nunc, while in some cases even ex tunc. (individuals, who have been parties for the purposes of a dispute may lodge a complaint asking for compensation or 5 See Catherine Sakellaropoulou, The constitutional control of laws and article 100 paragraph 5 of the Constitution. Procedural organization or shrinkage of the diffused control?. 6 The presumption of legality, which is a basic principle of Greek Administrative Law, covers all administrative acts that have not been recalled or administratively or judicially annulled. 4

5 if there is time they may appeal the decision on the grounds that the legal provision applied in their case has been judged unconstitutional). How does the Supreme Court become competent? Art. 48 & 49 of L. 345/1976 on the Supreme Court provides that the unconstitutionality of a legal provision may be proposed on an initiative of the Minister of Justice, the Public Prosecutor of the Highest Criminal Court, the General Delegate of the State at the Administrative Courts or everyone who can justify a personal interest on the case. At the same time, the Highest Courts themselves have the duty to refer the arising issue of constitutionality to the Supreme Court, in any case they are about to proceed in a different ruling with respect to a previously delivered decision by the other two Highest Courts on the constitutionality of a provision of law adopted by the Parliament. When the Supreme Court becomes competent posterior to an application of the abovementioned individuals and not by means of a preliminary decision by the Court before which the case is pending, the parties of the litigations which led to the different decisions do not directly become parties of the trial before the Supreme Court, but may intervene 7. ii. Article 100, para. 5 of the Constitution At the constitutional amendment in 2001, para. 5 was added to art. 100 of the Constitution provides that when a Section of one of the three Highest Courts 8 regards a legal provision as unconstitutional is obliged to refer the issue to the Plenary Session of the Court, except for if a decision on the same issue has been already delivered by the Plenary Session or the Supreme Court. The Plenary Session delivers a final opinion on the issue in question. It should be noted that the said constitutional provision has been 7 See art. 48, 49, 50 & 13 of L. 345/1976. See also decision no. 6/1992 of the Supreme Special Court. 8 Ordinary judicial jurisdiction is not unified; it is divided in Civil-Criminal jurisdiction and Administrative one. Areios Pagos is the Supreme Court of Civil-Criminal jurisdiction, while Court of Cassation (on administrative acts, in general) and Elegtiko Synedrio (on public finance) are the Supreme Courts of Administrative jurisdiction. 5

6 criticized in large as ineffective, while relevant legal provisions already provide for such reference to the Plenary Sessions of the Highest Courts in case the arising issues are of major importance. It has been judged by the Highest Administrative Court 9 that the obligation under article 100, para. 5 is not binding and shall not apply if the hearing of the case has taken place before , when the Resolution on the Amendment was published at the Gov. Gazette. It should also be noted that art. 100, para. 5 only applies, when the unconstitutionality refers to a law and not to secondary legislation (presidential degrees, ministerial decisions) 10. Besides, only law cannot be annulled, while other state acts may be directly challenged and annulled. IV. Commentary As indicated above, in Greece there is no special constitutional jurisdiction. Within the framework of the last constitutional amendment in 2008, there has been a large discussion on the necessity of the foundation of a Constitutional Court. The relevant proposal from the part of the government didn t gain the necessary majority vote and as a result the idea was set aside for the time being. However, it is important to briefly mention the main arguments of both supporters and opponents of the Constitutional Court. The main argument for the foundation of a Constitutional Court is the unity of case law and the certainty of law. More specifically, the supporters hold that the current system of constitutional control is not effective, whereas the courts seem irresolute to realize the said control. As a result of this malfunction a deficit of rule of law occurs; human rights are being risked and more and more restricted by the legislation. The restriction has become the rule, while according to the Constitution it should be exceptional. On the other hand, the opponents support that such a constraint change 9 See decision no. 1750/2001 of Section B of the Highest Administrative Court. 10 See decision no. 4078/2001 of the Section D of the Highest Administrative Court. 6

7 shall not cover the deficiencies of the existent system, on the contrary it will increase them. In particular, the opponents of the system of concentration of the constitutional control in one court, the Constitutional Court, especially in its proposed structure and function, argue that the delay as to the award of justice shall lead to the castration of the right to legal protection. 7