By Dimitris Christopoulos, EUDO CITIZENSHIP expert   

20 November 2012            

The facts

According to press reports, on 13 November 2012 the Plenary Session of the Greek Council of State confirmed an earlier ruling by the Council’s 4th Chamber (Symvoulio tis Epikrateias) on the constitutionality of Law 3838/2010, dealing with nationality provisions and the political participation of immigrants (see EUDO CITIZENSHIP news item of February 2011). At the core of the ruling, the Council finds that both the automatic access to Greek citizenship for children of immigrants and the extension of the right to participate in municipal elections by non-citizens violate the constitutionally enshrined principle of the ‘Greek people’. While the ruling has not yet been published, the Greek government has 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.

The main points of the earlier judgment of the 4th Chamber as regards to Law 3838/2010 addressed:
(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 regarding the applicant’s “national conscience” is necessary before he or she is offfered 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 the municipal elections are also held in order to elect a public authority, the right to participate must be restricted to citizens.

What’s next?

Within the Greek legal system, rulings from the Council of State are not self-executing. Subsequently, Law 3838/2010 and the administrative acts which have been issued according to the provisions of this act remain in force until a new law is promulgated.

In anticipation of the ruling, two new drafts aiming at the reform of Law 3838/2010 had already been worked out by the Secretariat General of Migration and Social Cohesion of the Ministry of Interior in August 2012. Both drafts, which remain unpublished, transferred the threshold for acquisition of nationality via declaration for the second and one-and-a-half generation to the age of majority.

On 14 November, the day after the Court’s ruling, the General Secretariat of the government announced that “by order of the prime minister” the ministers in charge “are requested to provide the appropriate instructions for the immediate implementation of yesterday’s ruling of the State Council as to the conditions of acquisition of Greek nationality by birth of the foreign individual in Greece and as to the naturalisation procedure in order to examine, inter alia, if they have a tie with the Greek Nation, as the Court has ruled. The prime minister ordered the Deputy Minister of Interior to elaborate a new draft law compatible to the Court’s ruling within 7 days.”

The government’s announcement provoked a heated debate among political parties. Among the governmental partners, PASOK said such reforms “should not be rushed or taken without the agreement of all coalition partners” while Democratic Left described as unjustifiable any reforms that “yield to racism and xenophobia” and said that the link to the country of immigrants who were born and grew up in Greece must be recognised. The left-wing opposition SYRIZA said the move showed that “the government has adopted the agenda of hate and fear set out by Golden Dawn,” the Greek neo-nazi party (which has elaborated in September 2012 a proposed new Nationality Code prohibiting naturalisation to all foreigners apart from ethnic Greeks).

Comment

For the time being (November 2012) there is no Court decision, no legal factum, but only reports for the press. That is the reason why – even more than the Court’s eventual decision that has been leaked to the press – the announcement of the Government has caused a huge reaction on the part of political parties and civil society regarding inappropriate links between the executive and judiciary, putting in question the independence of the latter. Its timing has not been accidental, as it came only a few days after the recent parliamentary vote on a new austerity package by the three governmental partners. Samaras precipitated the Court decision and asked his government to align the law with a Court decision that has not yet been seen by the public. Such practices threaten in a fundamental way the rule of law and the principle of the separation of powers.

The Greek Nationality reform of 2010 certainly seems to be facing a radical restrictive shift. This shift has been initiated in an extremely dangerous way for the rule of law in a country which already sees the financial devastation acquiring characteristics of a deep institutional crisis. The “nationality debate” triggered by the 2010 reform and the reactions to it are only a part of this broader institutional crisis involving a revitalisation of harsh ethnicist perceptions of nationhood and citizenship.

Read related articles in the press:
http://www.ekathimerini.com/4dcgi/_w_articles_wsite1_1_14/11/2012_470058
http://www.ekathimerini.com/4dcgi/_w_articles_wsite1_1_13/11/2012_469868