- Published on Monday, 18 February 2013 10:03
By EUDO CITIZENSHIP expert Dimitris Christopoulos*
* The author would like to thank Eva Giannakaki for her assistance with the translation of the Court’s ruling.
On February 2013, the Greek Council of the State issued its final ruling regarding the constitutionality of the acquisition of citizenship by children of 2nd and 1,5 generation as well as the right of third country nationals to participate in municipal elections. The decision 460/2013 came after the ruling of the Council’s 4th chamber (See previous commentary).
On 1 February 2011, the 4th Chamber of the State Council questioned the constitutionality of Law 3838/2010 concerning third country nationals' right to vote in local elections and the automatic ex lege acquisition of Greek citizenship by the second generation of migrant origins. The main points of the 4th Chambers' verdict as regards to Law 3838/2010 concern:
(1) the perception of the nation as a normative fact distinguished from the constitutionally enshrined concept of the”Greek people”,
(2) the proclamation of ius sanguinis as a constitutional principle,
(3) the assessment that, because of the above mentioned points, a personalised judgment as far as the applicant's “national consciousness” is concerned, is necessary before offering a childr born in Greece a place among the Greek people, on condition that s/he fulfils the requirements of five years of residence of his parents and six years of attendance in a Greek school. Therefore, it is only through naturalisation that a foreigner may acquire Greek nationality.
(4) finally, the claim that, since municipal elections are also held in order to elect a public authority, the right to participate is restricted to citizens.
In November 2012, according to press reports, the Council found that both the automatic access to Greek citizenship for children of immigrants and the extension of the right to participate in municipal elections to non-citizens violate the constitutionally enshrined principle of the ‘Greek people’ (See previous commentary). While the ruling had not yet been published, the Greek government announced that it will take the appropriate measures to ensure that the national code and the electoral law are in line with the constitutional requirements. A ministerial circular of the Deputy Minister of Interior required the competent authorities not to apply the law “in view of the forthcoming decision of the State Council”. The circular triggered strong reactions both within the government as well as among municipal authorities. The Mayors of the country’s bigger municipalities (Athens and Salonika included) wrote a letter to the Deputy Minister informing him that they will not comply with his circular. Despite these reactions, the law 3838/2010 (in particular, its article 1a which provided nationality acquisition by parents’ declaration for 2nd and 1,5 generation children) was ‘frozen’.
Today, after the publication of the Court’s decision, a tripartite commission is working on the amendments of law L.3838/2010 according to the 460/2013 ruling of the State Council.
According to the Court’s ruling:
• 5 years of permanent residence in Greece of both foreign parents is not sufficient to justify a right to nationality for children born in Greece.
• 6 years of schooling is not sufficient to justify a right to nationality for foreign children during the age of minority.
• Third country nationals are not entitled to vote or to be elected in municipal elections.
• The plenary ruling, which was issued with a strong minority vote (13 members versus 26), did however not follow the Chamber’s view according to which only a personalised judgment as far as the applicant's “national conscience” is necessary before offering her or him a place among the Greek people.
The Council of State is not a Constitutional Court - such as the German one – which can issue self-executing declarations that a law is unconstitutional. Quite on the contrary, the Greek system of constitutionality control is based on the so-called diffused constitutionality control by all courts in the country. Individual administrative acts of nationality acquisition that have been issued according to the provisions in question of Law 3838 over the last two years are not declared null and void ipso jure.
No doubt, the Council of State ruling represents a very restrictive shift, but yet not that restrictive as it could have been expected, given the circumstances in Greece today. It does not bind the Greek legislator to abolish the 2010 legislation, as the Chamber’s ruling did, but to minimize its scope. The decision has been heavily and justly criticized as a far right wing ideological – political manifesto rather than a judicial text by a great number of jurists, even by some who were against the 2010 reform. The main argument of this criticism is that the Court went too far by interfering in a crucial political ideological issue which should be dealt with by the legislator and not by the judges. It is to be noted that, for the first time in Greek politics, a large campaign favouring nationality acquisition for migrants’ children was launched by the Greek League for Human Rights with unexpected success.
The final outcome of this struggle depends on the amendments which will be decided by the government, the fragile parliamentary power constellations among the three parties of the Government coalition, and finally the impact of the far right pressure to the conservative prime-minister, a ferocious opponent himself to the 2010 reform.