View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Cadmus, EUI Research Repository EUDO CITIZENSHIP OBSERVATORY ACCESS TO ELECTORAL RIGHTS GREECE Dimitris Christopoulos June 2013 CITIZENSHIP http://eudo-citizenship.eu European University Institute, Florence Robert Schuman Centre for Advanced Studies EUDO Citizenship Observatory Access to Electoral Rights Greece Dimitris Christopoulos June 2013 EUDO Citizenship Observatory Robert Schuman Centre for Advanced Studies Access to Electoral Rights Report, RSCAS/EUDO-CIT-ER 2013/16 Badia Fiesolana, San Domenico di Fiesole (FI), Italy © Dimitris Christopoulos This text may be downloaded only for personal research purposes. Additional reproduction for other purposes, whether in hard copies or electronically, requires the consent of the authors. Requests should be addressed to [email protected] The views expressed in this publication cannot in any circumstances be regarded as the official position of the European Union Published in Italy European University Institute Badia Fiesolana I – 50014 San Domenico di Fiesole (FI) Italy www.eui.eu/RSCAS/Publications/ www.eui.eu cadmus.eui.eu Research for the EUDO Citizenship Observatory Country Reports has been jointly supported, at various times, by the European Commission grant agreements JLS/2007/IP/CA/009 EUCITAC and HOME/2010/EIFX/CA/1774 ACIT, by the European Parliament and by the British Academy Research Project CITMODES (both projects co-directed by the EUI and the University of Edinburgh). The financial support from these projects is gratefully acknowledged. For information about the project please visit the project website at http://eudo-citizenship.eu Access to Electoral Rights Greece Dimitris Christopoulos 1. Introduction The Third Hellenic Republic refers to the current Greek state as it has existed since its inauguration in 1974, following the demise of the dictatorial regime in 1967. The beginning of this historical period is marked by the use of the term “Metapolitefsi” (Μεταπολίτευση), virtually translated as “after the change-over of the political regime”. During the unstable democratic periods before the dictatorship, free elections had been more the exception than the norm in the so-called “wan democracy” (Nikolakopoulos 2001). Therefore, ‘Metapolitefsi’ is widely considered in Greece as the sole period of the Greek State under which parliamentary democracy has been consolidated. An eminent Greek constitutionalist recently used the term “belated settlement’’ to define the period extending from 1974 to 2010 (Alivizatos 2011). The Referendum of 8 December 1974 gave birth to the current Greek parliamentary Republic constitutionally enshrined as the Form of Government (Art. 1, par. 1). In this regime, particularly under the heavy historical legacy of authoritarianism which lasted throughout most of the twentieth century, electoral rights for all Greek citizens, without discrimination based on political affiliation, have been regarded as the sacred principle of the body politic. During this period, electoral rights for Greek citizens abroad has been an issue which caused heated public debate from 1974 to 1984, and more recently in 2009. Whereas overseas residence does not represent a legal impediment to the exercise of electoral rights, in practice there are obstacles since the Greek state never facilitated such rights from abroad. Electoral rights for EU- citizens in the country has never been a public issue, whereas on the other hand, electoral rights for third country nationals created a heated debate in 2010 when the right to vote and to stand as a candidate in local elections had been awarded for the first time for some foreign residents. These rights have been abolished three years later by a ruling of the Greek State Council, the country’s highest administrative Court. This ruling provoked strong political reactions and social protest in February 2013, not so much for having abolished electoral rights for foreigners than for nullifying major changes resulting from the 2010 nationality Code reform. RSCAS/EUDO-CIT-ER 2013/16 - © 2013 Author 1 Dimitris Christopoulos 2. Eligibility: Who has electoral rights under national law? 2.1. Citizen residents The Greek electorate is composed of those Greek citizens endowed with the right to vote. General preconditions for the right to vote are a) Greek citizenship b) being at least eighteen years of age c) having legal capacity and d) having no criminal conviction for certain felonies. Article 51 of the Constitution reads as follows: 1. The number of the Members of Parliament shall be specified by statute; it cannot, however, be below two hundred or over three hundred. 2. The Members of Parliament represent the Nation. 3. The Members of Parliament shall be elected through direct, universal and secret ballot by the citizens who have the right to vote, as specified by law. The law cannot abridge the right to vote except in cases where a minimum age has not been attained or in cases of legal incapacity or as a result of irrevocable criminal conviction for certain felonies. 4. Parliamentary elections shall be held simultaneously throughout the State. Matters pertaining to the exercise of the right to vote by persons living outside the Country may be specified by law. 5. The exercise of the right to vote shall be compulsory. Exceptions and criminal sanctions shall be specified each time by law. To exercise their voting rights citizens must be registered on the electoral lists. All citizens of voting age have been automatically registered on the electoral lists since 1997. 2.1.1. Age thresholds Since 1981 every citizen who has completed his/her eighteenth year has been entitled to vote (Art. 1, L. 1224/1981) and every voter who has completed his/her twenty-fifth year is eligible to run as a candidate (Art. 55 I). These age thresholds apply to both national and EP elections. The age threshold for running in municipal and regional elections is 21 years old. Civil servants (but not university professors), soldiers, mayors, and chairmen of public corporations must resign before submitting their candidacy (art. 56, I, II). 2.1.2. Mental disabilities Mentally disabled persons can be disenfranchised on Art. 128 of the Civil Code. The current electoral law (Art. 5, Presidential Decree 96/2007) foresees the deprivation of voting rights for every citizen who finds him- or herself ‘according to the provisions of the Civil Code in full judicial guardianship’. In practice, this entails a Court decision certifying legal incapacity of the individual in case of serious mental disabilities. Such decision is automatically transmitted to the municipal authorities. In virtue of it, the municipality writes off the person in question from the electoral lists. The individual might regain his or her voting rights in virtue of a new judicial decision transmitted, ipso jure, to the municipal authorities. To our knowledge, in judicial practice mentally disabled people are seldom disenfranchised. According to the relevant FRA report (FRA, 2010: 15), Greece ranks among the EU countries where mentally disabled persons are excluded from their electoral rights along with most countries 2 RSCAS/EUDO-CIT-ER 2013/16 - © 2013 Author Access to Electoral Rights: Greece of Central Europe and the Baltic States. In light of the recent ECHR decision in Kiss vs Hungary 1 where the Court argued that the imposition of an automatic blanket restriction on the franchise of those under partial guardianship is impermissible and a disproportionate means of voting rights restriction, it seems that Greek legislation is likely to be in violation of Article 3 of the ECHR. Nevertheless, in Greece the ‘traditional’ societal attitude towards people with mental disability does not include massive over-institutionalisation as is the case in most countries of Central Europe and many of Greece’s neighbours. 2.1.3. Persons convicted of criminal offences According to Art. 4 of the Greek Penitentiary Code, ‘during incarceration no other individual right of the person in custody is limited apart from the right to personal freedom’. As a general norm, therefore, prisoners are not disenfranchised. The exceptions are those convicted of certain felonies which are specified by certain provisions of the Penal Code (Art. 59-66) as demonstrating severe ‘moral incapacity’. Ipso jure deprivation of voting rights occurs – obviously - in death penalty cases (which could not be imposed during peacetime), a life sentence (Art. 59), or enclosure in a psychiatric hospital (Art. 61). In case of incarceration for a shorter period, citizens could be disenfranchised for a period of two to ten years (Art. 60) if the Court so decides. According to Art. 66 of the Penal Code, whoever has been disenfranchised can regain his/her right to vote in virtue of a court appeal after between three and five years have elapsed, according to the nature of the felony committed. As a rule, deprivation of voting rights is an additional penalty which might be permanent or temporary depending on the nature of the felony. According to the Presidential Decree 55/1999, deletion from the electoral lists is compulsory and automatic for those who have been deprived of their voting rights. Article 63 of the Penal Code numbers the consequences of deprivation of voting rights: loss of all elected offices, loss of rank in the army, loss of the attribute of lawyer, and finally, loss of the attribute of a jury member. Despite the fact that imprisonment has never been considered a reason for disenfranchisement, it was only in 1996 (Art. 3, par. 9, L. 2409/1996) that Greek law provided for special polling stations within penitentiary institutions for national and regional elections. Before then, the practice had been that regardless of the penalty, all prisoners were de facto deprived of their voting rights given the absence of polling stations in penitentiary institutions. This situation has been heavily criticized for violating the Greek Constitution (Mavrias, 2004: 379-380) which prohibits any further limitation to voting rights apart from those deriving from legal incapacity and irrevocable penal sentence (Art.