The adoption of foreign case law by the Greek courts and the emergence of the Existenzminimum doctrine by numbers - Between constitutional interpretation and legitimacy

• Pages: 1-20

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Balkan Journal of

Interdisciplinary Research

E-ISSN 2411-9725

ISSN 2410-759X

Vol.10 No.1

May, 2024

1

Vol. 9 No.2

September, 2023

Balkan Journal of Interdisciplinary Research

IIPCCL Publishing, Graz-Austria

E-ISSN 2411-9725

ISSN 2410-759X

Research Article

© 2023 Ardita Abazi Imeri

This is an open access article licensed under the Creative Commons

Aribution-NonCommercial 4.0 International License

(hps://creativecommons.org/licenses/by-nc/4.0/)

Deliberating in the Gray Zone: North Macedonia’s Hybrid Regime and

Deliberative Democracy Exercise

Ardita Abazi Imeri

European Policy Institute (EPI) – Skopje

DOI: hps://doi.org/10.2478/bjir-2023-0001

Abstract

Deliberative polling has emerged as a promising method for promoting democratic reform

and citizen engagement in various contexts, however, its potential and limitations in hybrid

regimes, where democratic governance is challenged by a mix of democratic and authoritarian

features, remain relatively unexplored. This paper focuses on the case of North Macedonia,

as a country that has undergone signicant political and societal transformation especially in

the recent years. Despite eorts to promote democratic reforms, the country continues to face

challenges in terms of ensuring democratic governance and citizen participation. In a hybrid

regime, like North Macedonia’s, political leaders might not be inclined to value citizens’

input, and the media environment might not be free from inuence, which limits access to

varied and reliable sources of information. Civil society organizations may also encounter

limitations on their operations, and institutional assistance may be insucient. Additionally,

the population’s diversity could make it dicult to reach and build trust with citizens. In

this context, deliberative polling represents an opportunity to engage citizens in meaningful

political dialogue and institutional reform. This paper examines the potential of deliberative

polling as a tool for promoting governance in North Macedonia and highlights the challenges

and limitations faced in this process.

Keywords: deliberative poll, hybrid regime, authoritarian, democracy.

1. Introduction

Democracy around the world is in crisis. In general, the state of democracy world-

wide indicates a lack of progress (Economist Intelligence Unit, 2022). Looking at the

global picture, 2022 fell short of expectations for democracy, as it was anticipated that

the lifting of pandemic-related restrictions might result in an improvement in the

overall score. Both the Freedom House Report 2022 and the Economist Intelligence

Unit’s Democracy Index (EIU) 2022 indicate that the state of democracy around the

world is facing signicant challenges and setbacks.

Research Article

© 2024 Styliani (Stella) Christoforidou

This is an open access article licensed under the Creative Commons

Aribution-NonCommercial 4.0 International License

(hps://creativecommons.org/licenses/by-nc/4.0/)

The adoption of foreign case law by the Greek courts and the emergence

of the Existenzminimum doctrine by numbers - Between constitutional

interpretation and legitimacy

Styliani (Stella) Christoforidou

DOI: hps://doi.org/10.2478/bjir-2024-0001

Abstract

The study is divided in two major parts. First, a presentation of the history of the Greek

legal order and the organization of the judicial system with a focus on the judicial system of

control of constitutionality highlights the legal culture regarding the use of foreign precedents

in constitutional cases, describes the complexities regarding the exercise of control of

constitutionality, and justies the reasons that the constitutional case law of the Council of State

(CoS) is selected for quantitative measurement. Second, the study analyses from a quantitative

and qualitative perspective the results of the measurement of the number of explicit citations

in foreign precedents in the constitutional cases of the CoS. It is worth noting that the majority

of the citations in German case law refer to the case law of the Existenzminimum, a nding that

is being approached from a qualitative perspective too.

Keywords: decent living, control of constitutionality, foreign precedents.

I. I ntroduction

Quantitative measurement follows strict rules regarding the methodology. Gathering

and processing data has as a prerequisite the previous clarication of what exactly is

going to be measured. In the context of diuse system of control of constitutionality,

this could be considered as a real challenge, because rst of all, it is the court that

must be selected for the measurement and, secondly, the decisions that should be

considered as constitutional cases. Given that the purpose of the research is to seek

the evolution of cross-judicial fertilization, the second most signicant challenge is to

dene the way that is going to be adopted for the research as for citations to foreign

precedents which must be measurable.

In the Greek judicial system, there is no Constitutional Court, but there are three

Supreme Courts, the Council of State (Symvoulio tis Epikrateias) (hereinafter CoS),

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Vol.10 No.1

May, 2024

Balkan Journal of

Interdisciplinary Research

E-ISSN 2411-9725

ISSN 2410-759X

which is the Supreme Administrative Court, the Areios Pagos, i.e. the Supreme

Court for Civil and Penal cases, and the Court of Audit. For the purposes of the

present research, as constitutional cases dened the cases that claims regarding the

violation of the Constitution are included in the applications before the Court. Since

an application is considered admissible, the Court must proceed to constitutional

interpretation examining the claim of violation of the Constitution, which claim

always is examined rst, -if other claims are included too-. Taking into consideration

the evolution of the constitutional case law in the Greek legal order, the study focuses

on the constitutional cases of the CoS. The time period that is examined, between 1rst

January 2011 to 1rst January 2021 corresponds to the nancial crisis in Greece. During

this decade, constitutional cases had to deal with the austerity measures that put at

risk the protection of social rights. These cases belong to the jurisdiction of the CoS.

Regarding the citations to foreign precedents, the study focuses on explicit citations

which means that within the text of the decision must be cited the court and a full

reference to the case law. It is worth noting that the majority of the citations in

German case law refer to the case law of the Existenzminimum (right to minimum

level of subsistence) of the German Federal Constitutional Court. The right to a

minimum level of subsistence is processed systematically during the nancial crisis

for the rst time and the impact of the CoS’s case law is so great that nally leads

to the constitutional recognition of the right during the fourth amendment of the

Constitution in 2019.

The study is divided into two major parts. First, a presentation of the history of the

Greek legal order and the organization of the judicial system with a focus on the

judicial system of control of constitutionality highlights the legal culture regarding

the use of foreign precedents in constitutional cases, describes the complexities

regarding the exercise of control of constitutionality, and justies the reasons that

the constitutional case law of the CoS is selected for quantitative measurement.

Second, the study analyses from a quantitative and qualitative perspective the results

of the measurement of the number of explicit citations in foreign precedents in the

constitutional cases of the CoS.

II. Greek constitutionalism in context

1. The judicial system

During the seing up of the justice and the legal order, there followed civil law and,

specically, the two-tier system1 with private disputes belonging to civil courts and

the Areios Pagos and the administrative disputes coming under the Council of State,

which has the general competence of cassation,2 and the ordinary administrative

1 According to Article 93(1) of the Greek Constitution (hereinafter Gr Const) ‘Courts are separated into

administrative, civil and criminal courts, and they are organised by special statutes’.

2 See Article 95(1 and 3) of the Greek Constitution ‘1. The jurisdiction of the Supreme Administrative Court

pertains mainly to: a. The annulment upon petition of enforceable acts of the administrative authorities for excess

of power or violation of the law. b. The reversal upon petition of nal judgements of ordinary administrative