M. Pikramenos
Associate Councillor Council of State

1.The Constitution of 1975/1986/2001

The military dictatorship of 21.4.1967 ended in July 1974 and it left behind a national tragedy, the Turkish invasion of Cyprus, and political chaos. The government of National Unity, which was formed, proclaimed general elections. The 5^th Revisionary Parliament, which came out of the November 17^th,1974 elections enjoyed an almost absolute constitutional power. The new Constitution was voted in June 1975. The first article provides that the form of government is parliamentary republic. The principles of the new Constitution are the popular sovereignty, the parliamentarism, the separation of powers, the rule of law and the political pluralism.

The Constitution 1975 has been revised twice. At first in 1986 but the revision was limited to the competences of the President of the Republic.The second revision came into force in April 2001. The Parliament modified many provisions in different sections of the Constitution, including the individual and social rights and the judicial power.

2.The separation of powers and the rule of law

The Constitution declares the principle of the separation of powers (article 26), which is not subject to revision. As in every parliamentary system of government, the separation of powers is not absolute but relative. The practical importance of this principle lies nowdays, bacicly in the independence of the judiciary. Its main consequence is that judicial decisions may not be altered by statutory law.

The principle of the rule of law was not explicitly mentioned in the Constitution up the recent revision of 2001. The new article 25 provides the rule of law which is supplemented by the welfare state. The rule of law guarantees the independence of the judiciary (article 87 et seq), the duty of the judiciary to review the constitutionality of laws (article 93 ll) and everyone’s right of access to courts (article 20 I).

3. The judicial independence

The fifth section of the Constitution has the title “Judicial Power’’ and embodies the guarantees of judicial independence and the bacic principles of judicial organisation.

1. Organisation and Jurisdiction of the Courts

The Greek courts are distinguished into administrative, civil and criminal courts (article 93 I).

The civil courts have jurisdiction on all private disputes (article 94 III), and the punishment of crimes belongs to the jurisdiction of criminal courts (article 96 I). On top of the pyramid stands the Supreme Court. The jurisdiction of the Supreme Court pertains the reversal upon petition of final judgements of civil and criminal courts.

The hearing of administrative disputes belongs to the jurisdiction of administrative courts (article 94 I). The Council of State is the Supreme Administrative Court, which is competent, mainly, to receive applications for annulment of administrative acts and appeals on law against judgments of administrative courts (article 95).

In the article 100 the Special Highest Court is founded. The Court is composed of the Presidents of Supreme Court, of the Council of State and of the Court of Accounts, four members of the Council of State and four members of Supreme Court. The Special Highest Court is not a Constitutional Court of general jurisdiction. To the jurisdiction of this court belong special cases, which concern the review of parliamentary elections, the review of the results of referenda, the settlement of any conflict between the courts, the settlement of controversies on whether the content of a statute is contrary to the Constitution.

2. Functional and Personal Guarantees of Independence

Independence is specified in article 87 II: “In the discharge of their duties, judges shall be subject only to the Constitution and the laws”. The meaning of this provision is that judges are not subject to other state powers or judges of higher rank.

The guarantees of personal independence serve the functional status of judges. The greek Constitution includes sufficient guarantees of personal independence, which cover, entirely, the career of the judges. The judicial functionaries are appointed in compliance with the law determining the qualifications and the procedure for their appointment (article 88 I). The law provides that judges are appointed, after finishing, successfully, a training period in National School of Justice. They remain in office until they reach the age of 65 or 67, even if the post, in which they are appointed, is abolished by law (article 88 IV, V). Promotions, transfers etc of judges are effected by presidential decree, in compliance with a prior decision by the Supreme Judicial Council. The Council is composed of the president of the respective highest court and of members of the same court (article 90 I). After the recent constitutional revision, in the Supreme Judicial Council participate two judges of inferior ranks with advisory vote.

4. The judicial review of the constitutionality of laws

According to the greek Constitution, the judicial review of the constitutionality of laws is allowed to every court (article 93 IV). The revision of 2001 has introdused an exception to this rule concerns the panels of the three Supreme Courts. If they incline to accept the view that a formal law is unconstitutional, they may not render a final judgment but are obliged to refer the matter to the full bench (article 100 IV).

The review of the constitutionality of laws is restricted to content of the law, and it does not refer to its formal constitutionality. Under these provisions, the courts may not examine whether the rules of procedure for the enactment of the law in Parliament have been complied with.

If a court considers a law unconstitutional, it does not apply the law in concreto, but the law remains still valid. Judicial review of laws is not a review of conformity with the Constitution. Courts do not review whether a law complies positively to the Constitution, but whether it is not contrary to the Constitution.

on the unconstitutionality of formal laws when conflicting judgments have been pronounced by the three Supreme Courts. This provision is necessary for the unification of the Supreme Courts’ jurisprudence and for the benefit of the certainly of law.

5. The main problems of judicial independence in public practice

The greek constitutional and political history of 19^th and 20^th century, up to 1974, was characterised by continuous and deep crises of the political system and systematic violation of the Constitution. Geographic, political and social circumstances had imparted peculiar characteristics to the institutions, when compared to other european countries with the same type of government. The political life was full of tough conflicts, without rules, between the political parties and the Crown. The army had an autonomous political role and the result was the imposition of dictatorial regimes. The problematic function of the political institutions had destructive influence, all this period, to the judicial independence.

After the restoration of democracy, in 1974, the country has a stable and powerful parliamentary system, the function of the institutions is satisfactory and the State respects the individual and social rights of the citizens. Greece is an état de droit and the open interventions in the judicial independence, against the constitutional guarantees, belong in the past.

The establishment of judicial independence, in general, at the level of public practice, does not mean that there are not specific problems, which are connected with the nature of modern democracies. There are three main factors which threaten the judicial independence.

The first factor is the great economic interests, the criminal organizations and terrorism. The globalisation of economy and the development of criminal methods are the new parameters of our world. In this social and economic environment, judges have the great responsibility to guarantee the legality. It’s an extremely difficult effort, because they very often have to face corruption, blacmail, revenge and threats. The public opinion has the impression that there are judges who don’t resist and they exercise their duties under the influence of social and economic interests. In Greece the Minister of Justice has raised disciplinary action against judges and we can find condemnatory decisions of disciplinary councils, but the reliability of judicial power is still an open problem, especially when the litigants are powerful members of our society.

The second problem is the attitude of political power towords the judiciary. All the governments, from 1974 until now, have been criticized for interventions, of different types, in the judiciary. The criticism concerns, mainly, the article 90 of the Constitution, which provides that the promotion of the Presidents and the Vice-Presidents of the three Supreme Courts belongs to the Cabinet. There are complaints that the governments choose judges who are politically sympathetic to them, which is the most important criterion. Because of this criticism, not always justified, the article 90 has been revised recently and the Presidents are chosen for four years and then they retire. The new provision does’t concern the Vice-Presidents, and, anyway, it doesn’t solve the problem completely.

The third problem is the internal aspect of judicial independence. Judges of inferior ranks are, in constitutional terms, independent but, in practical terms, they are under the authority of judges of superior ranks. The members of the Supreme Judicial Council decide for the promotions, transfers, detachments of judges, and there have been complaints that they exercise, sometimes, their authority without objective and stable criteria. The recent constitutional revision provides the participation of judges of inferior ranks, with advisory vote, in the Supreme Judicial Council, but this solution is not efficient to guarantee an open and reliable system.

As I have already mentioned, all the greek courts shall be bound not to apply a statute whose content is contrary to the Constitution. In practical terms, this constitutional duty is exercised, mainly, by the Supreme Courts and especcialy by the Supreme Administrative Court. The courts are very close, generally, to the theory of “judicial self-restraint”, but there are exeptions in this rule. The most characteristic paradigm is the jurisprudence of the 5^th Section of the Supreme Administrative Court for the protection of the natural and cultural environment. The previous conservative government and the present government of the Socialist Party have reacted, declaring that judicial activism is against the democratic character of our State.

It is obvious that there are judicial decisions with great political and social interest. The reactions of the government depends on the results of the judicial review. If the court finds a law unconstitutional, the government accuses the judges for activism and on the other hand the opposition parties approve, usually, the attitude of the judges. The picture is different when the court finds a law constitutional. The government declares the judicial independence and the other political forces protest that government intervenes in the judiciary.

Under these circumstances, judiciary is in a very peculiar position, because judges are not politicians but their decisions have significant influence in the political life. The only answer of the judiciary is: judges far from the political interests and judicial decisions with convincing foundation.

Judicial independence in Greece is not, nowadays, a matter of constitutional provisions or institutions. It’s, in the first place, a matter of personal responsibility of judges. They are obliged, in this complicated political and social environment, to exercise their duties as guards of the individual and social rights, of the public interest and, finally, of the democratic and parliamentary system.