Courtroom in the Aeropag. Image: W. Aswestopoulos
Government and opposition want own judges
A dispute of bizarre proportions has broken out in Greece over the filling of the leading positions in the highest court, the Areopagus. The background is the plan of the government of Prime Minister Alexis Tsipras to reassign the posts of chief prosecutor and chief justice of the Areopagus. The Areopagus is the highest court for civil law and criminal jurisdiction. The Public Prosecutor’s Office of the Areopagus is responsible, among other things, for initiating proceedings against politicians who have been convicted of crimes. The court assumes a key position in the Greek state system.
The incumbents of the Areopagus retire
The two incumbents of the positions of Chief Prosecutor of the Areopagus, currently Xeni Dimitriou, and Chief Justice, currently Vassilios Peppas, will retire on June 30. June. It is not possible to extend their term of office. The issue of filling the two posts overshadows the affairs of last resort, with which the government provides a civil servant post to loyal supporters on the last printers. In view of the importance of the posts, the legalization of black constructions in forest areas, which was quickly brought to parliament last week, recedes into the background.
Numerous important proceedings are pending in Greece. Top politicians from PASOK (now KinAl) and Nea Dimokratia face charges of being corrupted by the pharmaceutical industry. At the same time, the Tsipras government fears that the opposition, which was strengthened in the European elections, will start criminal proceedings against current government politicians. This has already been announced several times by the current defendants.
The highest judges of the Areopagus and the public prosecutor’s office decide in the last instance also on vacation requests of imprisoned persons. A prominent current example is Dimitris Koufontinas. Koufontinas was charged with being the executor of the terrorist group of the "17. Novembers", sentenced to multiple life imprisonment for multiple murders. According to Greek criminal law, convicts with such sentences after a few years, have the right to apply for a vacation. This may be educational leave for taking examinations or a short family visit.
The leave can be refused only if new crimes are feared. Whether this is the case is decided by the prison management, judges and prosecutors. Politicians of Nea Dimokratia, PASOK and representatives of the USA are up in arms against Koufontina’s request for leave, who has already exercised his right several times. They see the granting of the legally enshrined leave of absence as a reward for the victims of the "17. November". However, they are less squeamish in other cases involving crimes committed by right-wing extremists or common criminals.
Koufontina’s vacation, which was recently approved by the prison management, was blocked by a prosecutor’s order. Koufontinas went on hunger strike and managed to get the prosecutor of the Areopagus to annul the decision of the lower court by decree and to refer the case to the court of the Areopagus for review. Nea Dimokratia now fears that Koufontinas, as well as his comrades who are also in prison, will continue to receive leave while in government. This, according to the logic of the supporters of Nea Dimokratia, would significantly damage the party’s nimbus as a law-and-order party.
Under this prism, the doubts that both sides have raised about the otherwise vaunted "independent judiciary" are understandable. However, this very public dispute is disturbing the associations of the judiciary servants, who in turn feel compromised.
The European elections and the early parliamentary elections
The presidents of the highest courts in Greece are also given the office of prime minister by the President of the Republic in the event of a government crisis. After the parliamentary elections, the President gives the mandate to the parties in the order of the percentages they obtained in the elections. Within three days, this must result in the formation of a government, otherwise the order is passed on to the next party. If this procedure remains fruitless, new elections are called. In the meantime, unlike in Germany, for example, Greece does not have the custom of allowing the prime minister in office until the elections to continue governing, as was the case, for example, with the months-long government formation in Germany after the 2017 elections.
The business of government is taken over in such cases, but also when a government overturns a parliamentary vote of no confidence, by one of the judicial presidents of the Areopagus or the Council of State, the supreme administrative court. This, too, is a reason for each of the parties to have a judge in office who is well-disposed toward them.
In fact, this year’s appointment of the new supreme judicial representatives would have been a mere formality. Tsipras wanted the parliamentary elections to be held at the latest date, that is, four years plus one month after the last elections. His landslide defeat, however, put a spoke in his wheel. In the night from Sunday, 26. May to Monday, 27. In a public address on May 1, the prime minister had decided that, in view of the high electoral defeat, he would apply to the president for the dissolution of parliament immediately after the second round of the regional and local elections held in parallel with the European elections.
At the same time, the debate began as to whether SYRIZA had only suffered a setback in the elections or a strategic defeat "strategic defeat" or a strategic defeat. The former deputy prime minister Evangelos Venizelos already put it in a nutshell in February: "A strategic defeat of SYRIZA, which means that SYRIZA cannot influence the developments of the government, the constitutional reform, the electoral system or the election of a new president of the republic." To this statement, commenting on the election results, he added that with the admission of Tsipras, the loss of the electoral victory, now also lost the right to appoint new supreme judges.
Meanwhile, the government had already approved the election proposals for the new judicial superiors with the majority of the members of the Parliamentary Presidium. Only the formal election of the candidates by the government cabinet was pending. Venizelos, a professor of constitutional law and a constitutional expert by profession, had struck a nerve with his comments. Immediately, Nea Dimokratia questioned Tsipras’ right to fill the judges’ posts.
Had Tsipras made his announcement to run for office on 3. If Tsipras had decided to go to the presidency in June, there would have been no cabinet with the power to appoint supreme court judges as of that date. Because this is required by law 2190. The law, popularly known as the Peponis Law after its creator, prohibits, with a few exceptions, the replacement of civil servants when elections are called until a new government is formed. The few loopholes left open by the law concern natural disasters.
In addition, once the elections are called, the posts of interior minister and justice minister will be filled by independent candidates, putting the cabinet in a transitional phase. Especially critical is the reason that the prime minister gives to the president for calling new elections. Tsipras cannot claim the admission of a resounding defeat in the European elections, because this was seen as an acknowledgement of the loss of confidence and thus necessitated the appointment of a judge to the post of prime minister.
A further complication arises because of the date of the recall of the present incumbents at the Areopagus. The president must sign off on the appointment of successors, but cannot do so as long as they are still formally in office. Ergo, appointment of the successor is possible only after 30. June possible. A previous appointment became a paradox of two chief justices of the Areopagus, and thus led to a constitutionally highly questionable situation.
First reaction – postponing the election date
As a first reaction to the legal chaos, the government has postponed the already announced election date from June 30 to June 7. June to 7. July. In addition, Tsipras will not be elected on 3. The government will not go to the president in June, but at least a week later. The government quickly gave the reason that it did not want to block the central school-leaving examinations with elections and to enable the schoolchildren to participate in the elections, it says. The fact that the last examinations will take place on. June is apparently only a minor detail of this reasoning.
For a short time, the government tried to persuade the opposition to give in and elect the supreme court judges together. This failed already in the beginning. The government then declared that it had all powers until the last day in office and could therefore act freely.
Tsipras creates facts
Finally, on Friday, Tsipras convened the cabinet and appointed the new top representatives of the Areopagus. For the first time in the country’s history, both posts are held by women at the same time. In addition, Tsipras would like to choose a female judge for the post of chief public prosecutor. He thus broke with the tradition that this post is filled with prosecutors.
Irini Kalou is to become the new chief judge of the Areopagus. The 65-year-old has been a judge at the Areopagus since 2014. The post of chief prosecutor of the Areopagus will be held by Dimitra Kokotini, who is the same age as Kalou. Kokotini’s brother was a candidate for mayor in the elections, but failed. He ran with the support of SYRIZA, which gave the opposition another point of criticism in its argumentation.
In addition, the government appointed Evangelia Nika and Konstantinos Kousoulis, as well as Dimitrios, as deputy presidents of the judges of the Council of State. In the last week before the dissolution of Parliament, the government wanted to bring the reform of the Code of Criminal Procedure, which had been postponed for decades, to Parliament and have it passed.
The President has the last word
As far as the criminal procedure code is concerned, President Prokopis Pavlopoulos has little possibility of refusing to sign it. In the election of judges, Pavlopoulos, who is also a professor of constitutional law, can refuse to sign if he cites a violation of constitutionally enshrined laws, as well as applicable law, as a justification.
The Office of the President of the Republic refused to provide any information about Pavlopoulos’ intentions. These were made known in due course, when he was presented with the appointment documents for signature, it said.