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Voting rights of Greek expatriates

One of the legal provisions of the Greek Constitution that struck me most as a young law student was Article 120, paragraph 4. I still remember its impact on my thinking during my first year at the Law School of the Aristotle University of Thessaloniki. This provision, whose origins can be found in the post-1821 years of the Greek Revolution and early constitutions of the country, says that ‘Greeks’ patriotism’ is entrusted with the observance of the constitution. It adds that Greeks have the right and the duty to resist by all possible means any attempts to abolish the Constitution by violence.

As far as I know this is a somewhat rare constitutional provision. Moreover, I think it is an example of one of the paradigm principles of democracy, because apart from indicating the rights of citizens, it also recalls that they have duties, both collectively and individually. Indeed, one of the major factors that may make democracies function properly is the effective participation of citizens in the evolution of their polities. As Pericles famously said, a citizen who is not involved in public matters is useless.

One of the fundamental rights and duties of a citizen is to vote for his/her country’s parliamentary elections. In this regard, ever since 1975, Article 51, paragraph 4, of the Greek constitution provides for the enactment of legislation that would enable Greek expatriates to vote in parliamentary elections wherever they happen to reside. However, more than forty years have passed and this law has not been adopted. It is clearly an area of policy which needs further thought and attention.

***

It was against this background and the government’s decision on 18 August 2007 to carry out early parliamentary elections on 16 September 2007 that Christos Giakoumopoulos, Stephanos Stavros and myself met up in early September 2007 and, after some discussion on the subject, decided to ‘do something’ in order to exercise our voting rights.
This ‘something’ was no less than an application to the European Court of Human Rights claiming that Greece had violated our ‘right to free elections’ as enshrined in Article 3 of the First Protocol to the European Convention on Human Rights (ECHR). This Article provides for the obligation of states to create conditions that ‘ensure the free expression of the opinion of the people in the choice of the legislature’, an obligation that Greece had not fulfilled at that time, and still has yet to do so. Yes, we were determined to act, and to do so speedily since the early parliamentary elections were due in two weeks’ time.

Nonetheless, we were far from sure that we would have any impact on Greek state practice, let alone win the case in Strasbourg. Actually I remember discussing the lodging of this application in London with a well-known human rights lawyer who told me ‘forget it’. He was sure that we had no chance whatsoever to win. And he was not alone to warn me. Others also told me, in rather derisory tones, that we could surely afford to pay the €500 or so travel expenses in order to get ourselves to Greece in time to vote. But this was not the point. Nor did it concern me alone. The question was much more fundamental: should Greek citizens really have to pay money to exercise their basic human rights?

Although, according to the ECHR, we did not need to exhaust any domestic legal remedies before addressing the Court, we thought it was proper to make a formal contact with the Greek authorities beforehand. So I drafted a joint letter to the Ambassador of Greece to France in Paris and faxed it to his offices on 10 September 2007. By this means, the three of us – Greek citizens, staff members of the Council of Europe, and residents of Strasbourg – were formally submitting a request to the Greek authorities to take urgent and appropriate measures to enable us to vote in France for the forthcoming parliamentary elections.

On 12 September 2007 we received an urgent reply from the Greek ambassador. He noted that the Greek state intended to facilitate the voting by Greek expatriates in their countries of residence but given that no law to that effect had been adopted yet, our voting in France was de facto impossible. It was an important admission. In other words, the Greek authorities not only acknowledged the long-standing existence of a legal obligation, under ECHR and the Greek Constitution, to pass the appropriate legislation, but also admitted the state’s failure to fulfill this obligation which had been pending, unimplemented, since 1975.

Eight days later I crossed the bridge between the Palais de l’Europe and the Palais des Droits de l’Homme and handed a blue folder to the secretary of the Court’s Greek division. It contained the application that I had drafted in co-operation with my other two Greek colleagues, and was formally identified as No: 42202/07, Sitaropoulos et autres c. Grèce. The case was later renamed Sitaropoulos et Giakoumopoulos c. Grèce, given that the third colleague subsequently withdrew his participation.

I will not elaborate on the legal arguments put forward to substantiate a violation of the Convention due to the fact that we could not vote in Greece on 16 September 2007. The essence of our claim was that to travel from Strasbourg to Samos, Corfu and Thessaloniki, where each of us had our respective voting venues, would involve a total of about two days of travel, including multiple flights or very long drives, the distance from Strasbourg to Thessaloniki being around 2 000 kms. We added that we found unreasonable the fact that while expatriates can vote for the elections of the European Parliament in Greek consulates in whatever country they happened to reside , Greece was unable to organize similar arrangements in the case of their parliamentary elections.

On 8 July 2010, the Court’s First Chamber delivered its judgment. It was in our favour, by five against two deciding judges. Although the judgment noted that states are autonomous when it came to regulating their voting procedures, it found that Greece had indeed violated the Convention; it confirmed that there had been no enactment of the law provided for by the Greek constitution enabling expatriates to vote from abroad for more than three decades. The Court took also into account the relevant state practices in Europe which indicated that the vast majority of European states authorized and made it possible for their expatriates to vote from abroad for parliamentary elections.

Particularly heartening to me was the partly dissenting opinion of Judges Spielmann and Jebens. They believed that, given the finding of a violation of a fundamental right, the Court should have awarded us just satisfaction in order to redress the moral harm that we had suffered. This opinion is just one page long but its tone and sensitivity touched me a great deal. It brought to my mind the famous acclamation of the humble miller in Potsdam, ‘There are still judges in Berlin’.

The judgment was a cause for celebration and gave us all much joy. It was an outcome that could benefit not just us as applicants but also around four million Greeks living abroad. With a group of Greek friends I fêted our victory by drinking beer at the terrace of Franchi’s, opposite the Court. Our hope was that there would be no appeal of this judgment by the government, that it would become final and that we would be able to exercise our voting rights from Strasbourg for the next elections.

***

As was to be expected, the Chamber judgment attracted considerable international and national media attention. It even seemed to trigger or at least accelerate legislative changes in Turkey, which created an overseas voters registry in 2012, allowing Turkish expatriates to vote in the countries of their residence for parliamentary elections. In recent years, Albania too appears to be moving in this direction, another European country whose government has reportedly made clear its aim to grant out-of-country voting rights to expatriates.

This was not, however, the case with Greece. Our hopes proved to be only wishful thinking. On 7 October 2010 the Greek government requested that the Chamber’s judgment be referred to the Grand Chamber. One of the government’s main arguments was that the judgment distanced itself from the Court’s established case law that grants national authorities a large margin of appreciation in matters relating to voting rights.

On 22 November 2010 the Court accepted the government’s request and the case was referred to the Grand Chamber which delivered its judgment on 15 March 2012. This followed a hearing on 4 May 2011 in which I participated along with the Greek lawyer, Yannis Ktistakis, who had taken over the case. Although I was familiar with the Court, having worked in its building for more than three years, it was quite stressful to be sitting there for almost three hours, alone with my lawyer and his assistant, having the entire mechanism of the Greek state, represented by two lawyers, ranged before me. A couple of questions which were posed by the judges at the end of the hearing made me realize that at least some members of the Grand Chamber were not entirely certain that Greece was under an obligation, under ECHR, to give effect to our voting rights abroad.

Regrettably, my fear proved to be true. The Grand Chamber overturned the 2010 judgment by a unanimous vote. All 17 judges concluded that there was no violation of the Convention given that the very essence of our voting rights had not actually been impaired. Some of the major arguments on which this conclusion was based were that under international law, states had no obligation to enable expatriates to exercise their right to vote. The Court, therefore, could not instruct Greece on how and when and in what manner it should give effect to Article 51, paragraph 4, of its Constitution. The judgment also noted that the government had actually made an unsuccessful attempt to pass relevant legislation in 2009. In addition, it determined that the disruption to our financial, family and professional lives caused by our travel to vote in Greece in 2007, would not have been disproportionate.

Like most Grand Chamber judgments, this too became a cause célèbre and gave rise to a number of academic publications and press releases in Greece and elsewhere in Europe. Notably, Lina Papadopoulou, a Constitutional Law Professor, clearly pointed out in an article she published a day after the Grand Chamber judgment, that although Greece might be absolved from an international duty to regulate expatriates’ voting rights, it remained under its own constitutional obligation to do so.

Sitaropoulos and Giakoumopoulos also became a textbook case taught in constitutional and European human rights law courses from that time. In the major ECHR reference book by Harris, O’Boyle and Warbrick (OUP 2014) the Grand Chamber judgment is cited with disappointment noting that ‘the unanimous ruling did not acknowledge – as the Chamber judgment did- the crippling impact on voting rights that the lack of absent voting facilities may have on expatriates unable to afford to travel to Greece to vote’.

***

So perhaps our efforts were not in vain. Apart from the above-mentioned electoral policy changes in certain states following these judgments, experts have noted that there is now a clear trend in favour of out-of-country voting in Europe. In this context, Sitaropoulos and Giakoumopoulos is mentioned as a landmark case and has definitely contributed to this evolution. More recent case law of the Strasbourg Court has also indicated that globalization and modern technology changes should be considered as factors favouring out-of-country voting nowadays.

As regards Greece in particular, the efforts to give Greek expatriates their voting rights have not ceased. As of April 2016, a law proposal to this effect, tabled by seventy-five Greek MPs, has been pending in the Greek parliament, while earlier this year the government announced its intention to launch a public debate on this issue, expressly acknowledging the existence in Europe of a trend that favours out-of-country voting.

Application No. 42202/07 was an enriching adventure for me. Although its end was not an entirely happy one, the journey towards it gave me great satisfaction because I felt that it contributed to the evolution of law and policy concerning a fundamental political right for every human being: that of voting for one’s national parliament. In addition, it was the fulfillment of a civic obligation I believe I had towards my country’s democratic institutions and values that, as a first year law school student, I had discovered that I had the constitutional right and duty to defend. In addition, it fulfilled a moral obligation I felt I had as a staff member of the Council of Europe, an international organization which enshrined the highest standards of democracy and human rights whose protection, I also believe, should start at home.

N. Sitaropoulos

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