In June and July 2024, legal analyses by constitutional law experts raised concerns about the compatibility of the Court of Cassation’s intervention in an ongoing criminal case with the constitutionally protected principle of judicial independence.
More specifically, on 18 June 2024, the Union of Judges and Prosecutors issued a statement regarding an intervention by the Court of Cassation the previous day. In that intervention, the Court’s President, Ioanna Klapa, and Prosecutor, Georgia Adilini, ordered an urgent preliminary disciplinary investigation into the potential liability of a judge and a prosecutor for their handling of the pre-trial phase in a domestic violence case involving lawyer Apostolos Lytras. According to press reports, Lytras has admitted to committing violence against his wife; however, the presumption of innocence applies until the conclusion of the criminal proceedings.
The intervention by the Court of Cassation reportedly aimed to scrutinize the judicial decision not to remand the defendant in custody, raising questions about the boundaries of hierarchical oversight and the autonomy of judicial discretion.
Citing Article 87 of the Constitution, Article 109(1) of the Code on the Organisation of Courts and the Status of Judges (KODKDL), and Article 7(1) of the Universal Charter of the Judge, the Union of Judges and Prosecutors stressed in its statement that the investigating judge and the prosecutor handling the case file are the only ones with access to and knowledge of the evidentiary material, and therefore the only ones competent to determine the appropriate procedural coercive measures to be imposed on the defendant.
The Union of Judges and Prosecutors further stated that pre-trial detention is an exceptional measure applicable only in felony cases, and that judicial decisions—whether correct or flawed—are subject solely to the provisions of the Code of Criminal Procedure, not to disciplinary review. It also noted that legal institutions such as bail conditions, suspended sentences, and conditional release are increasingly perceived as undue leniency, despite being fundamental components of the rule of law. In contrast, pre-trial detention, denial of appeal suspensions, and lengthy prison terms are often portrayed as the only effective response to criminality.
The Union concluded that judicial independence—an essential aim of any democratic state—is undermined when external considerations and third-party expectations influence a judge’s reasoning, particularly when those parties hold disciplinary authority. This position reflects the Union’s clear opposition to the intervention by the Court of Cassation in the aforementioned case.
According to Article 87 of the Greek Constitution, which enshrines judicial independence, “1. Justice shall be administered by courts composed of regular judges who shall enjoy functional and personal independence. 2. In the discharge of their duties, judges shall be subject only to the Constitution and the laws; in no case whatsoever shall they be obliged to comply with provisions enacted in violation of the Constitution.”
Furthermore, under Article 109(1) of the Code on the Organisation of Courts and the Status of Judges (KODKDL), a disciplinary offence is committed through a culpable and imputable act or omission by a judicial officer, whether in or outside the scope of their duties, which contravenes their obligations under the Constitution and applicable laws, or is incompatible with their office and undermines their personal integrity or the integrity of the judiciary.
Article 7(1) of the Universal Charter of the Judge provides that the administration of the judiciary and the disciplinary procedures against judges must be structured in a way that safeguards their substantive independence, and that such procedures should be based solely on objective and relevant grounds.
The same provision further clarifies that, except in cases of intentional misconduct or gross negligence—established by a final and binding decision—no disciplinary action may be taken against a judge for their interpretation of the law, assessment of facts, or evaluation of evidence in the course of forming their judicial opinion.
In an article published in TA NEA on 27 June 2024, Professor Antonis Karampatzos of the University of Athens Law School expressed concern over the erosion of fundamental legal safeguards. He argued that core guarantees—such as the deprivation of liberty only following a criminal conviction and the presumption of innocence—must not be undermined. He further warned against the transformation of pre-trial detention into a default measure or a form of anticipatory punishment, particularly under the pressure of public opinion.
According to Professor Karampatzos, pre-trial detention is an exceptional measure and should only be imposed when specific, serious grounds exist—namely, when the accused poses a flight risk or a danger of reoffending, as stipulated in Article 282 of the Code of Criminal Procedure. Commenting on the intervention by the Court of Cassation, Professor Karampatzos described it as “an extremely unfortunate development” when, in response to high-profile cases that understandably provoke public outrage, the executive branch and the leadership of the judiciary—specifically the Court of Cassation—appear to align in the view that judicial decisions by judges and prosecutors are subject to disciplinary review.
He warned that such positions undermine judicial independence and, among other concerns, contravene Article 109(4) of the Code on the Organisation of Courts, which establishes that judicial decisions are not subject to disciplinary scrutiny—except in cases of intentional misconduct or gross negligence
According to Article 109(4) of the Code on the Organisation of Courts and the Status of Judges (KODKDL), the following do not constitute disciplinary offences for judicial officers:
In an article published on SyntagmaWatch.gr on 1 July 2024, constitutional law scholar Dr. Kostas Botopoulos addressed the intervention by the Court of Cassation, stressing that disciplinary review cannot be applied to the substance of a judicial decision, except in cases where intent or gross negligence is alleged and proven as per Article 109 of the Code on the Organisation of Courts.
He warned that allowing such review would directly contradict not only Articles 87, 88(4), and 91(3) of the Constitution, but also the foundational tenet of the judiciary: the free and independent judgment of the competent judge. In this context, independence refers not to the separation of powers from the executive and legislative branches (Article 26 of the Constitution), but to the judge’s inherent and institutionally protected ability to form their substantive legal opinion without interference.
“Free” judgment, he clarified, does not mean unaccountable, but rather free from external or internal pressures—such as the looming threat of disciplinary sanctions for decisions that lie at the core of judicial reasoning.
According to Article 88(4) of the Greek Constitution, “magistrates may be dismissed only pursuant a court judgment resulting from a criminal conviction or a grave disciplinary breach or illness or disability or professional incompetence, confirmed as specified by law and in compliance with the provisions of article 93 paragraphs 2 and 3.”
Article 91(3) further provides that, “the disciplinary authority over all other magistrates shall be exercised, in the first and second instance by councils composed of regular judges chosen by lot, as specified by law. Disciplinary action may also be initiated by the Minister of Justice.”
In a public statement, Dimitris Vervesos, President of the Plenary of Greek Bar Association Presidents and of the Athens Bar Association, criticised the leadership of the Court of Cassation for what he described as “communications-driven interventions” in pending judicial cases. He argued that such practices are incompatible with the dignity of the judiciary and the rule of law, and that they inevitably lead to institutional regression and the erosion of public trust in the justice system.
On 25 June 2024, the Supreme Court issued a second public statement responding to public criticism of its earlier intervention. It explained that the disciplinary investigation into a judge and a prosecutor in a case involving a lawyer was launched at the request of the Court’s President and Prosecutor, who are legally tasked with overseeing judicial officers under Law 4938/2022. The Court criticised what it described as “self-appointed” voices in the public debate who, under the guise of defending judicial independence, confuse it with a lack of accountability. It argued that these individuals question the legitimacy of official disciplinary procedures while claiming the authority to judge judicial decisions on pre-trial detention and the legitimacy of the charges brought.
The Court emphasized that core principles of the rule of law include both the protection of each judge’s and prosecutor’s freedom of substantive judgment—regardless of rank—and the corresponding protection of citizens from arbitrary decisions. To uphold these principles, the Constitution and the Code on the Organisation of Courts provide for disciplinary procedures, which are to be conducted exclusively by the competent bodies. These procedures aim to reinforce the sense of independence that judicial officers must possess and to strengthen public trust in the judiciary. From a procedural standpoint, the Court noted that disciplinary law includes a preliminary investigation phase. If disciplinary action is deemed appropriate, a review is conducted to determine whether the judicial officer’s opinion exceeded the outer limits of their lawful discretion, as defined by law and case law (notably Supreme Court Plenary Decision 9/2015).
In his article, Dr. Kostas Botopoulos argued that the Court of Cassation’s second statement, intended to justify its intervention, ultimately further undermined the Court’s credibility. He rejected the notion that the “principle of protecting citizens from arbitrary decisions” could be used to expand disciplinary procedures beyond the limits set by the Constitution, statutory law, judicial reasoning, and case law.
He also challenged the claim that disciplinary proceedings—when applied beyond their lawful scope—enhance judicial independence or public trust. On the contrary, he warned that judges cannot feel truly independent if they are implicitly threatened with disciplinary action for their decisions. Public confidence in the judiciary, he concluded, is earned through the quality of judicial rulings and the integrity of the justice system as a whole.
In a state governed by the rule of law, judicial independence must not only be constitutionally and legislatively enshrined, but also respected in practice by all branches of government—judicial, executive, and legislative alike.
However, based on legal analyses by experts in the field, concerns have been raised in this case regarding a potential breach of the principle of free and independent judicial decision-making.
This concern persists despite the safeguards provided by Article 87(1) and (2) of the Constitution, Articles 109(1) and (4) of the Code on the Organisation of Courts and the Status of Judges, Article 7(1) of the Universal Charter of the Judge, and Articles 88(4) and 91(3) of the Constitution.
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