Strasbourg,
8 June 2009 CDL-UD(2009)007
Or.
Engl.
EUROPEAN
COMMISSION FOR DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
in co-operation with
THE CENTRE
FOR POLITICAL AND CONSTITUTIONAL STUDIES (CEPC)
UNIDEM SEMINAR
"SUPERVISING ELECTORAL
PROCESSES"
Madrid, Spain, 23 – 25 April 2009
|
A
COMPARATIVE ANALYSIS OF THE BODIES IN CHARGE OF ELECTORAL SUPERVISION,
ESPECIALLY THE JUDICIAL ONES - THE SITUATION IN GREECE
by
Mr Vassilis Androulakis (Greece)
Associate Judge
Supreme Administrative Court
Before the 1911 Constitution,
responsibility for scrutinising the lawfulness of electoral operations in
Greece lay entirely with Parliament. As was to be expected, Parliament monitored
the elections on the basis of political and not legal criteria. On occasion,
parliamentary majorities ratified the unlawful election of their own members
and invalidated the election of opposition members of parliament, even though
they had been lawfully elected. For these reasons, from 1911 onwards the
country's Constitutions have assigned responsibility for reviewing the validity
of elections to a judicial body, while Parliament is still responsible for monitoring
disqualifications and cases where people are not entitled to stand for office.
Article 58 of the Constitution
currently in force, which dates from 1975 (and was revised in 1986, 2001 and
2008), assigns responsibility for monitoring parliamentary elections entirely
to a court, known as the Special Supreme Court and provided for in
Article 100 of the Constitution. It should be specified that disputes
concerning elections in the municipalities and prefectures (Nomoi) may
be the subject of administrative-law action and come under the jurisdiction of
the higher administrative courts, subject to appeal on points of law to the Supreme
Administrative Court. Supervision of the election of the President of the Republic
is the responsibility of Parliament, which elects the President, and not of a
judicial body.
Before looking at the role of the
Court in judging elections (II), it is worth outlining the way in which it is
organised generally (I).
I. General
description of the Special Supreme Court
1. The Court is a type of
court new to Greek law, set up under the 1975 Constitution. It is a court with
special jurisdiction that differs from the existing types of jurisdiction
(administrative jurisdiction and ordinary jurisdiction).
2. The Court's jurisdiction
is provided for in Article 100 of the Constitution and covers: a) disputes
concerning parliamentary and European elections (the latter are not mentioned
in the Constitution: jurisdiction was assigned to the Court under Act 1180/1981), and the validity and returns
of referenda, b) judgment in cases involving disqualification from or
forfeiture of office of a member of parliament c) settlement of disputes
concerning jurisdiction, d) "... settlement of controversies on whether
the content of a statute enacted by Parliament is contrary to the Constitution,
or on the interpretation of provisions of such statute when conflicting
judgments have been pronounced by the Supreme Administrative Court, the Supreme
Civil and Criminal Court or the Court of Auditors and, lastly, e) settlement of
controversies related to the designation of rules of international law as
generally acknowledged.
The organisation and working
arrangements of the Court are governed by Act 345/1976 and the rules of court.
With regard to matters not settled by the above-mentioned Act, the latter
refers to the Code of Civil Procedure.
3. In accordance with
Article 100 of the Constitution and Act 345/1976, the Special Supreme Court is
composed of three ex officio members, namely the three Presidents of the
supreme courts (Supreme Administrative Court, Supreme Civil and Criminal Court
and Court of Auditors) and eight members with a two-year term of office, namely
four members of the Supreme Administrative Court and four members of the
Supreme Civil and Criminal Court, all chosen by lot every two years, in
December, before a plenary public sitting of the Supreme Administrative Court.
In addition to these 11 members of the judiciary, there are two university law
professors (also chosen by lot) in cases where the Court is ruling on a dispute
concerning jurisdiction or an objection to a law on grounds of unconstitutionality.
The Special Supreme Court is presided over either by the President of the
Supreme Administrative Court or by the President of the Supreme Civil and
Criminal Court, depending on which of them has seniority in the office of
President.
Act 345/1976 also provides for auxiliary staff composed of members of the legal
service and lecturers in law from the Law Faculty of the University of Athens.
The members of the Court carry out their main occupation in parallel.
The fact that the composition of the
Court is not stable, along with its vast range of responsibilities, has
prompted some legal writers to argue that, at the very least, the way in which
the composition of the Court is determined should be reviewed.
The duties of Secretary General of the
Special Supreme Court are performed by the Secretary of the Supreme Court whose
President presides over the Court.
4. When cases are referred
to the Court, its President sets the date of the hearing and appoints a
rapporteur from among its members. The rapporteur, with the help of one of the legal
service members or professors who are members of the Court, makes arrangements
to obtain any evidence needed to hear the case and drafts a report, which is
lodged with the Court registry five days before the hearing and may be examined
by the parties. The Court, of its own motion, considers the admissibility of
the application and the merits of the submissions, but confines itself to
examining the grounds pleaded by the applicants (judgment 16/2008).
5. The Court does not hand
down a very large number of judgments: to take recent years as an example, it
delivered eight judgments in 2002 and 51 in 2000. As is to be expected, most of
the cases concern elections. Apart from those concerning elections, the Court's
judgments are published in the Official Gazette.
II.
The Court as an electoral court
Some preliminary remarks
I shall refer not only to the
Court's jurisdiction to review the electoral process in the strict sense of the
term but also to its jurisdiction to rule on disqualifications from office
concerning parliamentarians that emerge after the elections have taken place.
It should be pointed out that the Court does not have any case law concerning
referenda for the simple reason that none has been announced to date. Moreover,
there is no point in making a distinction between national elections and
European elections because the principles applied are largely the same.
I shall consider, in this connection,
firstly the conditions of the admissibility of applications (A), then the rules
governing the Court in the performance of its duties (B) and, lastly, the
consequences of its judgments (C).
A. Admissibility of
applications
1. Firstly, it should be
observed that cases may not under any circumstances be referred to the Court ex
officio: a case must be brought by an applicant. The following have the right
to take a case to the Court, and hence to challenge the election of a member of
parliament:
a. any
voter on the electoral roll of a constituency, for the purpose of challenging
the validity of the election results in that constituency. The applicant must
prove that he or she is on the electoral roll (judgment 26/2004);
b. any
candidate standing for parliament in a constituency who has not been elected.
The applicant (voter or substitute member of parliament) may neither call for
the annulment of the elections as a whole (judgment 30/2004), nor contest the
election of a member of parliament in another constituency, unless he or she
can argue that a violation of electoral law in another constituency affected
the results in his or her own constituency (judgments 8/2008, 12/2005, 26,
30/2004).
The Court has held, on the basis of a
strict interpretation of the law and the Constitution, that an application from
a political party or legal entity is inadmissible (judgments 26, 30/2004). It
merely acknowledged that political parties could intervene in the proceedings.
2. Electoral operations are
complex operations, the main stages of which are as follows:
a. Dissolution
of Parliament and announcement of elections (by decree). The Court is not
competent to set aside the decree dissolving Parliament, and therefore rejects any
application containing such a request as inadmissible. It may nevertheless, in
connection with a specific case, consider whether the decree complies
technically with the law; obviously the grounds for dissolving Parliament may
not be reviewed (judgments 9/2008, 30/2004, 47/2000). Nor does the Court have jurisdiction
to set aside the decree allocating seats to members of parliament, but it may
examine its lawfulness in connection with a specific application challenging
the election of a member of parliament, in which case its review covers all the
aspects of the lawfulness of the decree.
b. Submission
of candidacies and announcement of the names of the candidates. The latter
operation is entrusted to the Regional Court located in the capital of the
constituency. On the occasion of the 2007 elections, the problem arose of the
scope of the review carried out by the courts in this connection, in other
words whether they had jurisdiction to consider, at that stage of the election
proceedings, whether a particular candidate was entitled to stand for election or
whether they must confine themselves to formal scrutiny of candidacies. Some
legal writers considered that only the Special Supreme Court had jurisdiction
to carry out such a review. This was not the view taken by the Supreme Civil
and Criminal Court, which refused to ratify one candidacy on the grounds that
the candidate held a post that disqualified her from standing for election,
even though she had resigned beforehand.
c. The
actual ballot and, lastly (d), the validation of the results by the Regional
Court. The 15-day deadline for appealing runs from the date on which the
validation decision is published. An application may not be submitted to the
Court before the elections take place and the results have been announced. An
appeal against forthcoming elections is inadmissible (judgment 9/2007), as is
an appeal registered before the official announcement of the results (judgments
22/1985, 5/2005 concerning the European elections) or an appeal registered
after the expiry of the deadline.
There is no deadline for appeals to
have a member of parliament removed from office on the grounds that he or she
is disqualified from office (judgments 1/2007, 5/2006).
As for the registration of voters on
the electoral roll, which is an administrative decision (and therefore subject
to appeal to the administrative court), the Court reviews the lawfulness of registration
in connection with specific cases (16/2005).
3. Applications must be
submitted in writing and contain the surname, first name and status of the
applicant and the (elected) persons against whom they are addressed, and set
out the facts and the grounds for annulment. They must also indicate the
constituency concerned by the prospective annulment of the election. They do
not have a suspensive effect. Once an application has been submitted to the
Court, the hearing takes place before the Court even if the applicant withdraws
the appeal (judgment 7/2005, which held that the fact that it was impossible
for the applicant to withdraw the appeal was not contrary to Article 20 of the
Constitution, which guarantees the right to legal protection from a court). A
friendly settlement is not possible. Lastly, the Court holds that there is no
need to rule on cases that are pending if the parliamentary session ends before
the hearing (31/1997).
B. The rules governing the
Court in the performance of its duties
1. Review of compliance with
the constitutional principles governing elections
a. Article 51 of the
Constitution provides that elections shall take place by direct, universal
suffrage and secret ballot and that parliamentary elections shall be held
simultaneously throughout the country. The Court reviews compliance with these
principles by considering whether legislation governing elections is in keeping
with the Constitution. It should be noted that Greece has a system of
widespread review of the constitutionality of the law, in that every court has
the duty to review the constitutionality of the law applicable. It can therefore
happen that the Court reviews the electoral laws it has occasion to apply in
the light of constitutional principles.
b. In its judgment 34/1985 it
had occasion to review the law in the light of the constitutional principle of
direct suffrage. The case concerned the abolition, by the law existing at the
time, of the system whereby a voter could choose which of the candidates on the
list submitted by a party he or she wanted to see elected. This system was
replaced by a fixed-party-list ballot. The Court held that the law was not
contrary to the above-mentioned principle (or indeed to any other
constitutional principle) because, even in this circumstance, the will of
another party (an electoral college) did not intervene between the expression
of the will of the voter and the election. Suffrage therefore continued to be
direct.
According to the Court's case law, Parliament
is free to choose the electoral system it wishes, provided it complies with
constitutional principles. The Court held that the Constitution provided for
equal suffrage, which meant that a voter could not vote in more than one
constituency and that each vote had the same value, in that it must have the
same influence on the election results of a constituency. It considered that
the electoral law provision whereby no member of parliament could be elected if
his or her party had not obtained at least 3% of the total number of votes cast
in the country was constitutional. According to the Court, this was an
objective, impersonal percentage that made it more likely that stable, viable
governments would be formed (judgments 26/2001, 74/1997). On the same grounds,
the Court considered that the provision whereby seats not filled after the
initial allocation were assigned to the party that obtained the largest number
of votes was constitutional (judgment 47/1978).
In a recent judgment (4/2008), the
Court had the opportunity to assess the constitutionality of a statutory
provision whereby former prime ministers standing for election were considered
to have obtained all the votes cast for their party in the constituency in
which they were standing without the need for voters to express a preference
for them. According to the Court, this provision did not violate any
constitutional principle, in particular the principle of equality of
candidates, which required that the law treat candidates in the same way,
without discrimination, for in the current system the Prime Minister played a
preponderant and dominant role, as was borne out by a series of constitutional
provisions. The challenged provision merely acknowledged that role, admittedly introducing
an exception to the equality rule (in the case of other candidates, voters had
to express a choice in their favour for them to be elected), but it was
constitutionally tolerable because it was based on objective criteria related
to the political life of the country.
While in most cases the Court
recognises the constitutionality of electoral provisions, thereby acknowledging
that Parliament has a wide measure of discretion when legislating on the
subject, there are two cases in which it did not hesitate to reject its choices.
Blank ballot papers raise tricky
constitutional issues. Electoral law provides that the electoral quotient is
calculated on the basis of valid ballot papers, with no account being taken of
spoilt and blank ballot papers. In its judgment 12/2005, the Court, in a
reversal of precedent, held that the provision in question was contrary to the
principles of the sovereignty of the people and the equality of votes and hence
at variance with the Constitution and inapplicable. Blank ballot papers should
therefore be taken into account in calculating the electoral quotient and
allocating seats. The Court, in accordance with its case law, was therefore to
reallocate the seats in the main constituency of Central Macedonia. This
judgment, which was moreover taken by a narrow majority of six votes to five,
was severely criticised. Parliament, for its part, did not, in the Electoral
Act that followed, amend the provision in question concerning blank ballot
papers (Act 3434/2006 and decree 96/2007 codifying the electoral legislation).
Given that Parliament has retained the provision, it will be interesting to see
whether in future, in the context of "dialogue" between Parliament and
the Court and on the occasion of a forthcoming election, the Court will stand
by its new case law.
In another judgment (judgment 36/1990),
the Court held that the Electoral Act in force at the time infringed the
principle of equality and Article 52 of the Constitution, which reads "The
free and unfalsified expression of the popular will, as an expression of
popular sovereignty, shall be guaranteed by all State officers ...". More
specifically, under the electoral system in question, constituencies in which
only one member of parliament could be elected were dealt with differently from
the others: once it had been established who had been elected, the votes cast
in that constituency in favour of the candidate who had not obtained a majority
no longer counted when votes were added up to obtain the total number of votes
that the party to which that candidate belonged was deemed to have obtained at
national level (this figure is designed to serve as a basis for determining the
number of seats to be allocated during the second round of apportionment and
allocation of seats). By contrast, unused votes in favour of candidates from
the same party in constituencies where several members of parliament were
elected were added up. The Court ordered a new census, in keeping with
constitutional principles, to establish the total number of voters at national
level that was to serve as a basis for recalculating the allocation of seats.
2. Review of violations of
electoral law
The Court ensures that the
provisions of the Electoral Act and any other rules concerning the election
have been complied with. Any application alleging failure to comply with the
provisions in question may be submitted to the Court.
Here are a few examples. The Court frequently
has occasion to rule on the validity of ballot papers. It considers as invalid
those ballot papers that bear distinctive marks that could violate the secrecy
of the ballot (which is a constitutional principle) by making it possible
directly or indirectly to identify the voter. The Court seeks to ascertain
whether the mark was made intentionally for the purpose of revealing the
voter's identity. Any mark made by chance, because of the voter's advanced age,
haste, state of emotion, etc does not cause the ballot paper to be invalidated
(judgments 9/2005, 25/1999). In case of doubt, the Court considers the ballot
paper to be valid (judgment 12/2005).
The Court has held that failure by
the presiding officer of the polling station to initial ballot papers taken out
of the ballot box, serious shortcomings in the drafting of election reports, a
lack of election material in a polling station making it impossible for a
number of voters to express their preference for a candidate or party and the
use of non-regulation ballot papers constitute infringements of the electoral
rules. With regard more specifically to failure to initial the ballot papers,
this may invalidate the ballot papers only if their validity is contested
(judgments 12/2005, 26/2001).
In a recent judgment, the
Court had to interpret a provision of the Electoral Act whereby it is forbidden
to engage in election campaigning or issue election messages on the eve or day
of the election. The Court held that the messages prohibited are those issued
publicly to a broad public and an indeterminate number of people. Text messages
sent by mobile phone are therefore not prohibited messages: they are private
messages addressed to a finite, albeit possibly large, number of people and
therefore constitute a means of personalised communication (judgment 23/2008).
The Court has ruled that illicit
promises and gifts to voters at election time constitute violations of the law
and may lead to the election being declared invalid in a particular
constituency (judgments 25/2001, 2/2000, 26/1994). It has also held that exit
polls are not, in principle, illegal. According to the case law, reference to exit
polls on certain television channels before the end of the ballot, although
reprehensible and subject to criminal and administrative penalties, cannot
influence the expression of the will of the voters sufficiently to warrant
annulment of the elections (judgment 66/1997).
According to the Constitution
(Article 29, paragraph 2) and Act 3023/2002, a member of parliament who exceeds
the authorised expenditure ceiling during the election campaign may be removed
from office by decision of the Court.
3. Review
of situations where people are not entitled to stand for election or are
disqualified from office
Articles 56 and 57 of the Constitution,
which are fairly detailed, set out the situations in which parliamentary
candidates are not entitled to stand for election and members of parliament are
disqualified from office.
a. Prohibition from standing
for election
It is generally accepted that
provision should be made for situations where people are not entitled to stand
for election, in order to prevent the election of persons who may influence the
electorate by virtue of the posts they occupied before standing for election.
This rule, which limits the freedom of citizens to stand for election and be
elected, is designed to enhance the neutrality and impartiality of persons in
public office. It is not appropriate here to go into the details of situations where
people are not entitled to stand for election or make constitutional
distinctions (absolute and relative prohibition).
As we have seen, entitlement to
stand for election may also be reviewed at the stage when candidacies are
announced. It is worth pointing out that, according to a long line of Court
decisions, given that cases where people are not entitled to stand for election
are exceptions that undermine electoral freedom, the relevant constitutional
provisions must be strictly interpreted (judgments 20/2008, 12/2004, 7/2002,
51, 18/2000). Accordingly, recent case law (that dating from after the 2001
revision, which largely reformed Article 56) has specified, pursuant to Article
56, that the following are entitled to stand for election: a) a deputy prefect
who was not elected to the post but appointed by order of the prefect (who was
elected to that post) and who is consequently not an elected official (judgment
5/2008); b) the deputy chair of the board of a public-law legal entity, who may
not be considered as chair simply because he stands in for the chair when the
latter is absent or otherwise engaged (judgment 7/2008); c) civil servants and
public-law legal entities bound by a private-law contract, since they do not
come under the scope of Article 56, paragraph 1, of the Constitution, which refers
to "civil functionaries" (judgment 13/2004); d) the chair of the
board of a private-law municipal undertaking, who is not covered by Article 56,
paragraph 3.a (judgment 10/2004) and e) an official of the European
Communities, who does not, ipso facto, have national civil servant status (judgment
20/2008). Furthermore, the Court held that that the public limited companies
"Greek Electricity" and "Hellenic Radio and Television" were
public enterprises within the meaning of Article 56, with all the consequences
that this status entailed for their directors (judgments 91/1997, 21/2000), and
that a dentist employed by Social Security under a private-law contract fell
into the category of "other employees" of the public sector and
"employees" of other legal entities of public law and was therefore
not entitled to stand for election if the conditions laid down in Article 56,
paragraph 1, were not fulfilled (i.e. if the dentist did not resign before his
candidacy was announced; judgment 26/2008).
b. Disqualification from
office (incompatibilities)
People may be disqualified from
office because they are engaged in occupations or activities that are not
compatible with parliamentary office. Disqualification is designed to guarantee
the independence of parliamentarians, the impartial performance of their duties
and the transparency of politics. Disqualification is an issue that emerges only
after the election, and the elected candidate must choose within the
constitutional time-limit between parliamentary office and his or her
occupation. Cases in which persons are disqualified from office are
exhaustively listed in the Constitution (judgment 2/1992) and, as in cases
where persons are not entitled to stand for election, the relevant
constitutional provision must be strictly interpreted (judgments 7/2002,
22/2001).
Under Article 57, paragraph 1, as it
stood before the 2008 revision, the Court annulled the election of a member of
parliament who was a practising barrister, on the grounds that he had not
chosen between parliamentary office and his profession. The problem was that
this provision was the result of the 2001 revision and had a retrospective
effect, in that it concerned members of parliament elected in the elections
that took place in 2000. The member of parliament against whom the appeal was
directed argued that the retrospective effect violated the principle of
legitimate expectations, which was a constitutional principle. The Court
rejected the argument on the grounds that constitutional provisions all had the
same value and that the provision preventing certain persons from standing for
election was applicable as a special law (judgment 11/2003). The member of
parliament then took his case to the European Court of Human Rights, which, in
the case of Lykourezos v. Greece (15.6.2006), sentenced Greece under Article 3
of the First Protocol (Right to free elections). According to the Strasbourg
Court, the Court had "to satisfy itself that the conditions imposed in the
right to vote and to stand for election [did] not curtail the rights in
question to such an extent as to impair their very essence and deprive them of
their effectiveness; that they [were] imposed in pursuit of a legitimate aim;
and that the means employed [were] not disproportionate ... In particular, any
conditions imposed must not thwart the free expression of the people in the
choice of the legislature – in other words, they must reflect, or not run
counter to, the concern to maintain the integrity and effectiveness of an
electoral procedure aimed at identifying the will of people through universal
suffrage ... Equally, once the wishes of the people [had] been freely and
democratically expressed, no subsequent amendment to the organisation of the
electoral system [could] call that choice into question, except in the presence
of compelling grounds for the democratic order." The European Court of
Human Rights went on to observe that "the applicant [had been] elected in
conditions which were not open to criticism, namely in accordance with the electoral
system and Constitution as in force at the material time. Neither the
applicant, as candidate, nor his electors could imagine that the former's
election could be called into question and held to be flawed while his term of
office was still in progress on account of a disqualification arising from the
parallel exercise of a professional activity". In the circumstances, the Court
concluded that the Special Supreme Court had caused the applicant to forfeit
his seat and had deprived his constituents of the candidate whom they had
chosen, in breach of the principle of legitimate expectation, and that this
situation was in breach of the very substance of the rights guaranteed by
Article 3 of Protocol No. 1. The Court therefore found that there had been a violation
of this provision.
This judgment is important,
particularly because it raises the question of the relationship between the Constitution
and the European Convention on Human Rights and seems to accept that the latter
takes precedence.
C. The
consequences of the Court's judgments
It should first be observed that judgments
of the Court annulling the election of a member of parliament are valid erga
omnes (judgment 8/2000). Such judgments are final and not subject to appeal:
any appeal would therefore be inadmissible (48/1982).
If the Court finds that a member of
parliament was not entitled to stand for election or is disqualified from
office, it merely declares the member's election invalid or rules that the
member must be removed from office. It is not competent to declare another
candidate elected (judgment 48/2000).
Since the 2001 revision of the Constitution,
removal of a member of parliament from office on grounds of disqualification
has no retrospective effect and applies only as from publication of the Court's
judgment (judgment 11/2003).
If the Court finds an error in the counting
of the votes obtained by a candidate, it recounts them itself, in which case it
may declare another candidate elected (judgment 36/1990). In that case, the
candidate declared elected by the Court is considered to have been elected from
the start of his or her term of office.
A judgment acknowledging that a
member of parliament was not entitled to stand for election has a retrospective
effect. Decisions by the Chamber to which the member of parliament who has been
removed from office belonged are considered valid even after his or her removal
from office.
Lastly, if the Court finds a serious
irregularity in the election procedure, it may annul the election in question,
in which case a new ballot is held. The Court has, however, made use of this
power only once since 1975.
