In March 2011 the 4th Chamber of the State Council, responding to a claim made by a Greek citizen, has questioned the constitutionality of the local voting rights for foreigners introduced by law 3838/2010. The issue was referred to the Plenary Session in March 2011. This referral of the case to the Plenary Session came as a surprise to the Ministry of Interior and to most civil society actors. The constitutionality of the law had been assessed in the relevant parliamentary committee that had processed the bill in early 2010. It had then been made clear that the Greek Constitution foresees that local authorities are elected by universal suffrage (the Constitution makes no further specification as to whether those having the right to vote in local elections should be citizens or not). By contrast in the case of parliamentary elections the Constitution specifies that the national government is elected by the citizens who have the right to vote. The question of the constitutionality of the law as regards conceding local political rights to third country nationals had been questioned again during the parliamentary debate over the law on 9-10 March 2010 by the MPs of the extreme right wing party LAOS. However, all other political parties (including the main opposition Conservative party, New Democracy, and all the smaller left-wing parties) had rejected the claim.
Indeed it is against this background that the recommendation of the State Council’s chairperson, vice chair and rapporteur to consider the new citizenship law anti-constitutional has come as a big surprise to many experts and civil society actors (published in the media on 13 November 2012). The reasoning of the State Council judges was that voting rights of whichever type are for citizens only even if the Constitution does not specify this as regards local election. In addition they sustained that the new provisions for naturalization of first or second generation migrant are against the Constitution because they disregard that naturalization can only happen if there is a ‘real bond’ between the foreigner and the Greek nation. Such ‘real bond’ cannot be ascertained, they argue, by formal legal requirements such as the length of residency or the fact of being born in Greece or the fact of having studied at a Greek school for 6 years.
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Nationalism Studies Network 