Judicial system of Greece
Encyclopedia
In Greece
, Constitution
firmly established the independence of the justice system.
According to section E';
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 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.
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.
. 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.
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.
, Kostas Karamanlis included 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 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.
have 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 expressing 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 the EU law of competition. The Greek government answered that the law materialises the respective constitutional provision, which is superior to the EU law. An 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.
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 Council reinforced its competence without violating the Constitution and avoided a time-consuming for the litigant procedure.
According to the Constitution, the legal force of the international conventions is superior to the national laws but inferior to the Constitution.
Greece
Greece , officially the Hellenic Republic , and historically Hellas or the Republic of Greece in English, is a country in southeastern Europe....
, Constitution
Constitution of Greece
The Constitution of Greece , was created by the Fifth Revisional Parliament of the Hellenes and entered into force in 1975. It has been revised three times since, most significantly in 1986, and also in 2001 and in 2008. The Constitutional history of Greece goes back to the Greek War of...
firmly established the independence of the justice system.
According to section E';
The two branches of the Greek judicial system
According to the ConstitutionConstitution of Greece
The Constitution of Greece , was created by the Fifth Revisional Parliament of the Hellenes and entered into force in 1975. It has been revised three times since, most significantly in 1986, and also in 2001 and in 2008. The Constitutional history of Greece goes back to the Greek War of...
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
Council of State (Greece)
In Greece, the Council of State is the Supreme Administrative Court of Greece.-Organization:...
. 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.
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 NovemberRevolutionary Organization 17 NovemberRevolutionary Organization 17 November , was a Marxist urban guerrilla organization formed in 1975 and believed to have been disbanded in 2002 after the arrest and trial of a...
terrorist 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 StateCouncil of State (Greece)
In Greece, the Council of State is the Supreme Administrative Court of Greece.-Organization:...
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
Chamber of Accounts (Greece)
In Greece, the Chamber of Accounts is both an administrative organ and a Supreme Administrative Court with a special jurisdiction...
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 ConstitutionConstitution of Greece
The Constitution of Greece , was created by the Fifth Revisional Parliament of the Hellenes and entered into force in 1975. It has been revised three times since, most significantly in 1986, and also in 2001 and in 2008. The Constitutional history of Greece goes back to the Greek War of...
. 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
Constitutional Council of France
The Constitutional Council is the highest constitutional authority in France. It was established by the Constitution of the Fifth Republic on 4 October 1958, and its duty is to ensure that the principles and rules of the constitution are upheld.Its main activity is to rule on whether proposed...
. 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 CourtSupreme Special Court (Greece)
In Greece, the Supreme Special Court is provided for in the article 100 of the Constitution of Greece. It is not a permanent court and it sits only when a case belonging to its special competence arises. It is regarded as the supreme "constitutional" and "electoral" court of Greece. Its decisions...
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 GreeceGreece
Greece , officially the Hellenic Republic , and historically Hellas or the Republic of Greece in English, is a country in southeastern Europe....
, Kostas Karamanlis included within the plans of the scheduled constitutional amendment the foundation of a Supreme Constitutional Court, which will replace the Supreme Special Court
Supreme Special Court (Greece)
In Greece, the Supreme Special Court is provided for in the article 100 of the Constitution of Greece. It is not a permanent court and it sits only when a case belonging to its special competence arises. It is regarded as the supreme "constitutional" and "electoral" court of Greece. Its decisions...
. Supporter of the proposition is the Minister for the Environment, Physical Planning and Public Works
Minister for the Environment, Physical Planning and Public Works (Greece)
The Ministry for the Environment, Physical Planning and Public Works of Greece . Following the electoral victory of the Panhellenic Socialist Movement on 4 October 2009, the ministry was split up into a Ministry for the Environment, Energy and Climate Change, while its Public Works sector was...
Georgios Souflias
Georgios Souflias
Georgios Ath. Souflias is a Greek politician. He is a member of the New Democracy political party and was Minister for the Environment, Physical Planning and Public Works for the duration of the Karamanlis administration....
. 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 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
The Court of Justice of the European Communities considers the law of the EU superior to the national laws, including the national constitutions. This, however, applies where the European CouncilEuropean Council
The European Council is an institution of the European Union. It comprises the heads of state or government of the EU member states, along with the President of the European Commission and the President of the European Council, currently Herman Van Rompuy...
have 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 expressing 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
ND
- Places :* North Dakota, a state in the United States* New Delhi * Notre Dame , for a number of churches and colleges- Science and medicine :* Neodymium, an element with the symbol "Nd"...
and PASOK
Panhellenic Socialist Movement
The Panhellenic Socialist Movement , known mostly by its acronym PASOK , is one of the two major political parties in Greece. Founded on 3 September 1974 by Andreas Papandreou, in 1981 PASOK became Greece's first social democratic party to win a majority in parliament.The party is a socialist party...
, agreed to this provision, aiming, according to those who proposed it, at promoting transparency. In 2005, the Parliament
Hellenic Parliament
The Hellenic Parliament , also the Parliament of the Hellenes, is the Parliament of Greece, located in the Parliament House , overlooking Syntagma Square in Athens, Greece....
passed a law, materialising the constitutional provision. The European Commission
European Commission
The European Commission is the executive body of the European Union. The body is responsible for proposing legislation, implementing decisions, upholding the Union's treaties and the general day-to-day running of the Union....
reacted immediately and warned that this legal provision violates the EU law of competition. The Greek government answered that the law materialises the respective constitutional provision, which is superior to the EU law. An ardent supporter of this opinion was the professor of law and Minister for the Interior, Public Administration and Decentralisation
Minister for the Interior, Public Administration and Decentralisation (Greece)
The Ministry of the Interior is a government department of Greece. Occasionally the office has been combined with that of the Ministry for Public Order...
Prokopis Pavlopoulos
Prokopis Pavlopoulos
Prokopis K. Pavlopoulos is a Greek lawyer, university professor and politician. In 2004-2009 he was Minister for the Interior .-Academic career:Pavlopoulos studied at and was an...
. Nevertheless, the government receded and amended the law according to the European Commission
European Commission
The European Commission is the executive body of the European Union. The body is responsible for proposing legislation, implementing decisions, upholding the Union's treaties and the general day-to-day running of the Union....
's instructions, when the European Commission
European Commission
The European Commission is the executive body of the European Union. The body is responsible for proposing legislation, implementing decisions, upholding the Union's treaties and the general day-to-day running of the Union....
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
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...
, annulling 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.
According to the Constitution, the legal force of the international conventions is superior to the national laws but inferior to the Constitution.