In
Greece
Greece, officially the Hellenic Republic, is a country in Southeast Europe. Located on the southern tip of the Balkan peninsula, it shares land borders with Albania to the northwest, North Macedonia and Bulgaria to the north, and Turkey to th ...
, the Special Highest Court,
() is provided for in the article 100 of the
Constitution of Greece
The Constitution of Greece () was created by the Fifth Revisionary Hellenic Parliament in 1974, after the fall of the Greek junta and the start of the Third Hellenic Republic. It came into force on 11 June 1975 (adopted two days prior) and has ...
. 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 are irrevocable and binding for all the courts, including the Supreme Courts. However, the ''Special Highest Court'' does not have an hierarchical relation with the three Supreme Courts (the
Supreme Civil and Criminal Court of Greece, the
Council of State
A council of state is a governmental body in a country, or a subdivision of a country, with a function that varies by jurisdiction. It may be the formal name for the cabinet or it may refer to a non-executive advisory body associated with a head ...
and the
Court of Audit
A Court of Audit or Court of Accounts is a supreme audit institution, i.e. a government institution performing financial and/or legal audit (i.e. statutory audit or external audit) on the executive branch of power.
See also
*Most of those ...
). It is not considered higher than these courts and it does not belong to any branch (civil, penal, administrative) of the Greek justice system.
Composition
According to the article 100 of the Constitution the ''Special Highest Court'' comprises eleven members. Namely:
* the presidents of the three Supreme Courts,
* four members of the
Court of Cassation
A court of cassation is a high-instance court that exists in some judicial systems. Courts of cassation do not re-examine the facts of a case; they only interpret the relevant law. In this, they are appellate courts of the highest instance. In ...
, chosen by lot for a two-years term,
* four members of the
Council of State
A council of state is a governmental body in a country, or a subdivision of a country, with a function that varies by jurisdiction. It may be the formal name for the cabinet or it may refer to a non-executive advisory body associated with a head ...
, chosen by lot for a two-years term.
The Court is presided over by the seniormost president of either the
Court of Cassation
A court of cassation is a high-instance court that exists in some judicial systems. Courts of cassation do not re-examine the facts of a case; they only interpret the relevant law. In this, they are appellate courts of the highest instance. In ...
or the
Council of State
A council of state is a governmental body in a country, or a subdivision of a country, with a function that varies by jurisdiction. It may be the formal name for the cabinet or it may refer to a non-executive advisory body associated with a head ...
.
When the ''Special Highest Court'': a) resolves the conflicts between the administration and the courts or between the administrative and the civil courts or between the
Chamber of Accounts and the other courts, or b) resolves a dispute about the constitutionality of a legal provision or about the real meaning of a legal provision, then the Court comprises two extra members: two (full) professors of Law, appointed by lot.
History
The history of the ''Special Highest Court'' is quite short, as it was first founded by the Constitution of 1975. Its organisation and function is regulated by the article 100 of the Constitution of 1975/1986/2001 and the Law 345/1976. Germs of this Court exist in the article 73 of the Constitution of 1952 (providing for a special electoral court) and in the constitutions of the
military junta
A military junta () is a system of government led by a committee of military leaders. The term ''Junta (governing body), junta'' means "meeting" or "committee" and originated in the Junta (Peninsular War), national and local junta organized by t ...
(1967-1974), providing for a special court resolving the disputes between the Supreme Courts.
Jurisdiction
The jurisdiction of the ''Special Highest Court'' is strictly defined by the Constitution (article 100). Hence:
* It judges pleas against the validity of the results of the legislative elections
* It controls the validity of the results of the referendums.
* It decides the deposition of a member of the
Parliament
In modern politics and history, a parliament is a legislative body of government. Generally, a modern parliament has three functions: Representation (politics), representing the Election#Suffrage, electorate, making laws, and overseeing ...
, according to the constitutional provisions.
* It resolves the conflicts between the administration and the courts or between the administrative and the civil courts or between the
Chamber of Accounts and the other courts
* It resolves a dispute about the constitutionality of a legal provision or about the real meaning of a legal provision
* It decides whether a rule of international law belongs to the
customary international law
Customary international law consists of international legal obligations arising from established or usual international practices, which are less formal customary expectations of behavior often unwritten as opposed to formal written treaties or c ...
.
The Court as the "Supreme Electoral Court"
Since the ''Special Highest Court'' has the power to issue an irrevocable and binding decision, with which a member of the
Parliament
In modern politics and history, a parliament is a legislative body of government. Generally, a modern parliament has three functions: Representation (politics), representing the Election#Suffrage, electorate, making laws, and overseeing ...
loses their position, it becomes the "supreme electoral court". According to the article 58 of the Constitution, the court examines pleas concerning electoral violations or lack of legal qualifications of candidates. It also controls whether a member of the Parliament has undertaken duties incompatible with their office. These incompatible duties are enumerated in article 57 of the Constitution. If the ''Special Highest Court'' ascertains the incompatibility of the undertaken duties, the deputy loses their office "by operation of law".
The Court as the "Supreme Constitutional Court"
In Greece every court controls the constitutionality of the laws and there is no "permanent" Supreme Constitutional Court, as in
Spain
Spain, or the Kingdom of Spain, is a country in Southern Europe, Southern and Western Europe with territories in North Africa. Featuring the Punta de Tarifa, southernmost point of continental Europe, it is the largest country in Southern Eur ...
,
Germany
Germany, officially the Federal Republic of Germany, is a country in Central Europe. It lies between the Baltic Sea and the North Sea to the north and the Alps to the south. Its sixteen States of Germany, constituent states have a total popu ...
etc. If any court judges a legal provision as "unconstitutional", it decides not to apply it, but it has not the power to declare the legal provision "null and void". This restriction is also binding for the Supreme Courts, which declare the unconstitutional legal provision "inapplicable". Nonetheless, if a case concerning the constitutionality of a law is introduced into the ''Special Highest Court'' (after the issuing of contradictory decisions of the Supreme Courts), the Court has the constitutional right to declare an unconstitutional legal provision as "powerless". This means that the unconstitutional legal provision still exists (it is not formally "null and void"), but it is expelled from the Greek "law and order".
The decision of the ''Special Highest Court'', declaring the unconstitutionality of a legal provision is final, irrevocable, binding for every Greek court, including the Supreme Courts, and judges the matter once for ever. No court has the right to take a different decision for the same legal provision in the future. If a court of first instance or a court of appeals or even a Supreme Court had judged the same matter in a contradictory way before the issuing of the decision of the ''Special Highest Court'', it is obliged to reverse is judgement and to reissue it in accordance with the ''Special Highest Courts decision.
Another "Special Court"
The ''Special Highest Court'' of article 100 must not be confused with the "Special Court" of article 86 of the Constitution. This last "Special Court" is an ''ad hoc'' court, competent to judge alleged criminal acts of members of government (previous or in service), committed in their ''official capacity only'' (i.e. not common criminal or civil offenses committed in their personal capacity) and only when impeached by
Parliament
In modern politics and history, a parliament is a legislative body of government. Generally, a modern parliament has three functions: Representation (politics), representing the Election#Suffrage, electorate, making laws, and overseeing ...
. It is also competent to judge the President of the Republic, if impeached by
Parliament
In modern politics and history, a parliament is a legislative body of government. Generally, a modern parliament has three functions: Representation (politics), representing the Election#Suffrage, electorate, making laws, and overseeing ...
for intentional violation of the Constitution or for high treason. In such cases, Parliament acts as the prosecuting attorney and the defendant(s) may be represented by lawyers of their choice, as in any court. Up until the
2001 constitutional amendment, the Parliament appointed 3 MPs (plus three surrogates) to serve as prosecutors in the trial; they have now been replaced by a member of the Prosecution of
Supreme Civil and Criminal Court of Greece (i.e. a professional prosecutor), ensuring Parliamentary disengagement and avoiding any potential political exploitation of the trial.
This "Special Court" comprises seven judges of the
Court of Cassation
A court of cassation is a high-instance court that exists in some judicial systems. Courts of cassation do not re-examine the facts of a case; they only interpret the relevant law. In this, they are appellate courts of the highest instance. In ...
and six judges of the
Council of State
A council of state is a governmental body in a country, or a subdivision of a country, with a function that varies by jurisdiction. It may be the formal name for the cabinet or it may refer to a non-executive advisory body associated with a head ...
, chosen by lot. It is presided over by the seniormost judge for the
Court of Cassation
A court of cassation is a high-instance court that exists in some judicial systems. Courts of cassation do not re-examine the facts of a case; they only interpret the relevant law. In this, they are appellate courts of the highest instance. In ...
.
Notes
See also
*
Constitution
A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organization or other type of entity, and commonly determines how that entity is to be governed.
When these pri ...
*
Constitutionalism
Constitutionalism is "a compound of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law".
Political organizations are constitutional to ...
*
Constitutional economics
Constitutional economics is a research program in economics and constitutionalism that has been described as explaining the choice "of alternative sets of legal-institutional-constitutional rules that constrain the choices and activities of econom ...
*
Jurisprudence
Jurisprudence, also known as theory of law or philosophy of law, is the examination in a general perspective of what law is and what it ought to be. It investigates issues such as the definition of law; legal validity; legal norms and values ...
*
Judiciary
The judiciary (also known as the judicial system, judicature, judicial branch, judiciative branch, and court or judiciary system) is the system of courts that adjudicates legal disputes/disagreements and interprets, defends, and applies the law ...
*
Rule of law
The essence of the rule of law is that all people and institutions within a Body politic, political body are subject to the same laws. This concept is sometimes stated simply as "no one is above the law" or "all are equal before the law". Acco ...
*
Rule According to Higher Law
The rule according to a higher law is a philosophical concept that no law may be enforced by the government unless it conforms with certain universal principles (written or unwritten) of fairness, morality, and justice. Thus, ''the rule accordin ...
{{Constitution of Greece
Politics of Greece
Judiciary of Greece
Greece
Greece, officially the Hellenic Republic, is a country in Southeast Europe. Located on the southern tip of the Balkan peninsula, it shares land borders with Albania to the northwest, North Macedonia and Bulgaria to the north, and Turkey to th ...