On April 18, the Cabinet elected a new General Commissioner of the Administrative Courts, and the following day, April 19, the President of the Republic issued a decree appointing the elected Mr. Ioannis Simeonidis to this position. This is one of the positions of the leadership of the judiciary, promotion of which is carried out in accordance with Article 90, paragraph 5 of the Constitution, by decree of the President at the proposal of the Cabinet of Ministers. The latter has exclusive decisive power in choosing the promoted. The previous months were preceded by a procedure provided for by the Organization of the Courts, which includes the preliminary selection of a certain number of judicial officials who are formally qualified for office, their hearing in Parliament, the formulation of the opinion of the Conference of Presidents of Parliament and the recommendation of the Minister of Justice.

The choice of Mr. Simeonidis was well deserved. He is a leading scholar and court official who enjoys universal respect. There was no one more suitable for the position of General Commissioner. Furthermore, the procedure followed was flawless and constitutionally unacceptable. Since the elected had formal requirements for the position held, the President of the Republic had the mandatory authority to accept the proposal of the Cabinet of Ministers and issue a decree on his promotion. It doesn’t matter that a few weeks earlier, on March 28, the prime minister called for early elections, which had not yet been called, when a new general commissioner was elected.

This was not the case in 2019. On May 31, 2019, after the conclusion of the trial (hearing defaulters and the conclusion of the conference of speakers of the chamber), the then cabinet selected judicial officials to fill positions in the leadership of the judiciary and sent draft decrees on promotion to the President of the Republic. The President refused to issue decrees, so the elected were not promoted. The reason was that a few days earlier, on May 26, the then Prime Minister announced the holding of early elections, which, however, were announced later, on June 11, 2019.

Not issuing promotion orders was illegal. The innovative concept that, as elections approach (not yet announced), the government does not exercise all of its constitutional powers, apart from being unsupported by the Constitution, is also dangerous: it implies a government with limited liability indefinitely until an election is called. The then illegality is confirmed by the current, constitutionally impeccable, election and promotion of the General Commissioner. Which is not without consequences. It establishes a requirement for those who were elected at the time but never promoted to require their reinstatement with their retroactive appointment to positions from which they were expelled. Otherwise, the impact on the state and the prestige of institutions will be heavy. Because that would mean that the Constitution is interpreted differently depending on which majority and which government is in power.

* Mr. Akritas Kaidatzis is Associate Professor of Constitutional Law at AUTH.