The Greek Case Before the European Human Rights Commission

Author(s): James Becket

Source: Human Rights , August 1970, Vol. 1, No. 1 (August 1970), pp. 91-117
Published by: American Bar Association

Stable URL: https://www.jstor.org/stable/27878926

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The Greek Case Before the European
Human Rights Commission
James Becket *

ON APRIL 15, 1970, the Committee of Ministers of the

Council of Europe passed a resolution to make public the Report
of the Human Rights Commission on the Greek Case, which found
that the Greek government had violated most of the basic articles
of the European Human Rights Convention. The Greek govern
ment, a military dictatorship, presented the Council of Europe and
the Human Rights Commission with the most serious challenge of
their history. Europe's collective system for the protection of
human rights was used from the first stage of complaint through
investigation, and to the final step of the sanction of publication.
Even though the Greek government ultimately withdrew from the
Council of Europe and denounced the Convention on Human
Rights, the Greek Case before the European Commission of Hu
man Rights stands as the most important effort by such an organi
zation in the history of the international protection of human rights.
This article will first briefly describe the European Conven
tion System, then the Greek Case in its procedure and history, the
Report itself, and finally the lessons and conclusions that can be
drawn from this landmark case.

The Convention System

The European Convention on Human Rights was signed on
November 4, 1950 and came into force on September 3, 1953.1
* LL.B 1962, Harvard Law School ; author of Barbarism in Greece
(Walker & Co. 1969).
1. The Convention, whose proper title is "Convention for the Protection of
Human Rights and Fundamental Freedoms", has been ratified by all the member
states of the Council of Europe with two exceptions, Switzerland and France.
Those who have ratified are: Austria, Belgium, Cyprus, Denmark, Federal
Republic of Germany, Greece, Iceland, Ireland, Italy, Luxembourg, Malta,
Netherlands, Norway, Sweden, Turkey, United Kingdom.

(91)

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92 Human Rights

The Convention was conceived in the post-war period when the

memory of recent tragedy was fresh and the spirit of European
unity strong. The Council of Europe and the Convention on
Human Rights were viewed as institutions expressing a common
heritage of democracy and human rights which would serve as
steps toward European unity.
The Convention is a unique document in the field of human
rights as it attempts to make the principles expressed in the Uni
versal Declaration of Human Rights legal obligations. The Con
vention sets out the basic civil and political rights, institutes a
machinery for providing remedies for these rights, and seeks in a
realistic fashion to balance the right of the individual with the
right of the state to defend itself. It is the only existing inter
national agreement for the protection of human rights equipped
with sanctions, and it is the only agreement that gives the individ
ual standing before an international tribunal.
The organs of the "Convention System" which are charged
with making the system work are the Commission of Human
Rights, the Court of Human Rights, and the Committee of Minis
ters. In the framework of the Council of Europe, the Court and
the Commission can be thought of as the judicial side, while the
Consultative Assembly, made up of parliamentarians of member
states, can be thought of as the parliamentary side. Actual power
is very limited and the Commission and the Consultative Assembly
only have the power to recommend to the Committee of Ministers.
It is the Committee, made up of the Foreign Ministers of the mem
ber states, which has the power to make decisions and levy sanctions.
The Commission is considered by many commentators to be
the greatest accomplishment to date of the Council of Europe.
The Commission, once a petition is accepted, is given two functions
under Article 28 : the first is to "ascertain the facts", and the second
is to attempt to secure "a friendly settlement of the matter on the
basis of respect for Human Rights in this Convention." This
"European conscience" has been likened to a juge d'instruction
who carries out a preliminary investigation, yet the Commission,
which can proceed in a very flexible manner, is essentially a judicial
organ. It is also the "workhorse" of the Convention system.

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 The Greek Case 93

While the Court has been used only sparingly, the Commission has
received since July 1955, when it began to hear individual petitions,
through 1967, 3,450 applications. It has heard seven inter-state
applications, though the seven dealt with three cases. The Greek
Case was to present the Council of Europe and the Convention
system with the most severe challenge of its history.

Greece: April 21, 1967

On April 21, 1967, a group of military officers carried out a
successful coup d'etat in Greece. Their first public announcement
enumerated certain articles of the Constitution which were being
suspended?those guaranteeing human rights.2 Instead of the
elections that had been scheduled for May, there were mass arrests,
purges, martial law, censorship?all the familiar features of mili
tary dictatorship. This was done in the name of "The National
Revolution", which saved the country from "a Communist take
over", and would restore democratic life when the "aims of the
Revolution" were carried out.
Greece had ratified the Convention in 1953 and had in fact
been the first state to make use of it when it filed two applications
against the United Kingdom charging violations of the Convention
by British authorities on Cyprus. The Greek Permanent Repre
sentative to the Council of Europe, acting under Article 15(3)
which obliges a High Contracting Party that derogates from the
Convention to keep the Secretary-General fully informed of the
measures it has taken, wrote a letter on May 3, 1967, informing
the Secretary-General of the suspension of certain constitutional
rights, and invoking Article 15 of the Convention which allows
the suspension of certain basic articles "in time of war or other
public emergency threatening the life of the nation . . ."3
2. This radio announcement was Royal Decree No. 280 (which the King in
fact did not approve) which, aside from suspending basic constitutional rights,
established martial law.
3. This is the article in the Convention that gives the state a certain leeway
to defend its legitimate interests. As it is a crucial article in the Convention
and was central to the pleading in the Greek Case, it would be worthwhile to
cite in its entirety:
"(1) In time of war or other public emergency threatening the life of the nation
any High Contracting Party may take measures derogating from its obligations

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 94 Human Rights

Five days after the coup d'etat the Consultative Assembly,

meeting in Strasbourg with the notable absence of the Greek mem
ber parliamentarians, called upon "the Greek authorities to restore
the constitutional regime and system of parliamentary democracy",
and protested "against all measures contrary to the European Con
vention on Human Rights."4 On June 23, 1967 the Standing
Committee of the Assembly adopted Resolution 346 which ex
pressed "the wish that the Governments of the Contracting Parties
to the European Convention on Human Rights refer the Greek
case ... to the European Commission of Human Rights . . ."
Greece had not ratified the right to individual position and if the
machinery of the Convention were to be used in the developing
Greek situation, the only way was for a member state to file an
application.

Application by the Scandinavian Governments

On September 20, 1967 the governments of Norway, Sweden,
and Denmark filed identical applications to the Commission charg
ing the Greek government with violating eight articles of the
Convention,5 and further contending that the respondent govern
under this Convention to the extent strictly required by the exigencies of the
situation, provided that such measures are not inconsistent with its other obliga
tions under international law.
(2) No derogation from Article 2, except in respect of deaths resulting from
lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made
under this provision.
(3) Any High Contracting Party availing itself of this right of derogation
shall keep the Secretary-General of the Council of Europe fully informed of
the measures which it has taken and the reasons therefor. It shall also inform
the Secretary-General of the Council of Europe when such measures have ceased
to operate and the provisions of the Convention are again being fully executed."
4. Order 256, 26 April 1967.
5. The eight articles were 5, 6, 8, 9, 10, 11, 13 and 14. Article 5 guarantees
the right to personal liberty and security; Article 6 guarantees the right to fair
trial by independent and impartial tribunals in criminal as well as civil cases ;
Article 8 guarantees the right to respect of a person's private and family life, his
home and his correspondence; Article 9 guarantees the right to freedom of
thought, conscience and religion ; Article 10 guarantees the right to freedom of
expression; Article 11 guarantees the right to the freedoms of peaceful assembly
and association; Article 13 guarantees the right to an attentive legal remedy
against violations of the above-mentioned rights and freedoms ; Article 14 pro
vides safeguards to the effect that such rights and freedoms shall be enjoyed
without discrimination on any ground including that of a person's political
opinion.

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 The Greek Case 95

ment had failed to show that the conditions for invoking Article 15
had been satisfied. A week later the Government of the Nether
lands made an application which corresponded to those of the
Scandinavians and the Commission joined the four applications on
October 2, 1967.6
The question arises as to why it was the Scandinavian govern
ments that brought this case. In previous inter-state cases before
the Commission there had been an ethnic link between the com
plaining state and the individuals allegedly wronged, that is in the
Cyprus case when Greece applied on behalf of Greek Cypriots and
in the South Tirol case when Austria applied on behalf of German
speaking Italian nationals. The Scandinavians also did not have
any commercial or territorial interest, motives which usually move
a state to bring an action before an international tribunal. For the
Scandinavians in this case it was quite the opposite, as in these
terms they had something to lose and nothing to gain; and, as it
turned out, their goods were subjected to attempts at boycott in the
Greek market, a market in which they enjoyed a considerable sur
plus in their balance of trade.
The reason that the Scandinavians brought his case, a reason
which might well be without precedent in international affairs, was
a belief in human rights and a belief that it was their moral duty
under the Convention to act when the rights of fellow Europeans
were being flagrantly violated. Public opinion in the Scandinavian
countries was deeply concerned about events in Greece, a Scandi
navian parliamentary delegation had visited Greece and recom
mended action, and there was the resolution of the Consultative
Assembly calling upon member states to bring the case before the
Commission. Article 24 of the Convention gives to member states
the right of application, but nowhere is there the language of legal
duty. However, it is clear that if the member states failed to act
in a case as blatant as that of Greece where individual petition was

6. The Application Nos. were: No. 3321/67 (Denmark v. Greece), 3322/67

(Norway v. Greece), 3323/67 (Sweden v. Greece), and 3344/67 (Netherlands
v. Greece).

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96 Human Rights

not possible, the whole European collective system for the protec
tion of human rights would be rendered meaningless.7
The men who would see this case through were in the main
lawyers working in the legal departments of the Foreign Ministeries
of the three governments. Their personal dedication to the prin
ciples of human rights would be put to a severe test. They were
not aware when they began how important this case would become
nor could they foresee the many obstacles they would encounter,
not the least of which would be the numerous pressures put on
their governments to withdraw the case. The Scandinavians, in
particular the Swedes, were of all the member states probably the
least susceptible to economic, military, and diplomatic pressures.
That these pressures were not negligible is demonstrated by the
Netherlands, which after bringing an application, withdrew from
active participation in the case.

Year of the Lawyers

Once the applications were made, the Commission had first
to decide if they were admissible, and if they were found to be
admissible a Sub-Commission would be formed to examine the
merits. The first year of the Greek Case before the Commission
and the Sub-Commission was the year of the lawyers, as the agents
of the applicant and respondent governments presented in written
memorials and oral hearings their arguments. The issues dealt
with were essentially legal, they were presented by lawyers, and
the Commission and Sub-Commission acted like a court in its pro
cedure and in making reasoned decisions based on the Convention,
the Rules of Procedure, the jurisprudence or case law, and general
concepts of law.
The main function of the Commission is to find facts. In
practical terms during the first year the burden was on the Scandi
navians to make the facts available to the Commission, that is to
7. The final paragraph of the Preamble to the Convention states, "Being
resolved, as the Governments of European countries which are likeminded and
have a common heritage of political traditions, ideals, freedom and the rule of
law to take the ^ first steps for the collective enforcement of certain of the
Rights stated in in the universal Declaration ..." See also, Espersen, Ole,
"Denmark and the European Convention of Human Rights, p. 19, in manuscript.

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 The Greek Case 97

provide the evidence. Producing evidence presented particular

problems that would not be encountered in a municipal legal sys
tem. Here was the problem of a different culture, a different
language, and a government that was deliberately attempting to
suppress such evidence and prevent it from being known abroad.8
The original applications were to base themselves almost exclu
sively on public decrees of the new regime which on their face
violated articles of the Convention. The Commission and Sub
Commission adopted very flexible rules of evidence to meet the
difficult and special circumstances, and the Commission was will
ing to receive such evidence as newspaper articles, though the final
Report was to be based on a very rigorous standard of evidence.9
On the question of admissibility, the respondent government
argued that the Commission was not competent to hear the case
as it concerned a "revolutionary government" and "the original
objects of the revolution could not be subject to the control of the
Commission." Further it was argued that the jurisprudence of
the Commission as established in the Lawless and Cyprus cases
allowed a "margin of appreciation" to the government in deciding
whether or not there was a public emergency threatening the life
of the nation, and, if so, what exceptional measures were required.10
The Commission rejected these arguments and held that it was
competent to examine the acts of governments "even in political
situations of an extraordinary character, such as after a revo
lution." 11
From the time of the first application, alarming reports con
tinued to filter out of Greece, especially reports of torture against
8. In Greece there was a thoroughly censored press, letters were opened,
passports refused to persons "unfriendly" to the regime, investigators declared
persona non grata, and witnesses intimidated.
9. The question of evidence also arose in the Cyprus case. In that case the
Greek government argued that newspapers should be admitted as evidence, while
the United Kingdom lawyers argued that they should not. In the Greek Case
the shoe was on the other foot, and the Greek government argued that news
papers were not acceptable evidence for the consideration of the Commission.
10. "Margin of Appreciation" is an example of a common law concept of
impossibility.
11. Decision of Jan. 24, 1968. See p. 15, The Greek Case: Report of the
Commission, Vol. I, Part 1.

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98 Human Rights

political opponents.12 The three Scandinavian applicants in a

joint memorial on March 25th, 1968 extended their original alle
gations to include Articles 3 and 7 of the Convention and Articles
1 and 3 of the First Protocol. These introduced the issues of
torture, ex post jacto laws, right to property, and right to free
elections.13
The Greek government again argued that these new appli
cations were not admissible, and on Article 3 they argued, inter
alia, that the doctrine of exhaustion of local remedies applied. The
Scandinavians argued that torture was "an administrative practice"
of the regime and as such the doctrine of exhaustion of local reme
dies did not apply, and in the alternative, they argued that local
remedies were "in fact inadequate and ineffective." The Commis
sion, in what was probably their most significant decision during
the first year, held that though the applicant governments had not
given sufficient evidence to show an administrative practice existed
the Commission "did not find that, in the particular situation pre
vailing in Greece, the domestic remedies indicated by the respond
ent government could be considered effective and sufficient." The
day before in Greece thirty top judges and public prosecutors had
been dismissed as they were involved in a decision that displeased
the regime. The Commission took note of this fact which indicated
the Greek judiciary was hardly independent.14 The Commission,
therefore, held that the new submissions were admissible.
As provided in Article 29, a Sub-Commission of seven mem
bers was constituted on April 3, 1968, to deal with the merits of
the case. After memorials and counter-memorials to the original
allegations had been filed with the Sub-Commission, there was a
hearing of the parties on the merits of the whole case before the
Sub-Commission at the end of September.15
12. There had been articles in the press and in particular a report of
Amnesty International. See Barbarism in Greece for the two Amnesty Reports
on the Greek Situation.
13. Article 3 which was to be most important to the case states, "No one
shall be subjected to torture or to inhuman or degrading treatment or punish
ment."
14. p. 18 Report, Vol. I, Part 1.
15. This session was held on September 23, 24, 25 and 27, 1968.

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 The Greek Case 99

After this "Year of the Lawyers" the basic issues, upon which
the Commission would have to find the facts and state an opinion
about whether or not the Convention had been violated, were clear.
The points at issue were :

(1) "Whether or not the respondent Government had

violated Articles 5, 6, 8, 9, 10, 11, 13 and 14 of the Conven
tion and Article 3 of the First Protocol by Royal Decree No.
280, other legislative measures and certain administrative
practices ;

(2) whether or not Constitutional Act Eta of 11th July,

1967, violated Article 7 of the Convention and Article 1 of
the First Protocol ;

(3) whether or not political prisoners had been tortured

or subjected to inhuman or degrading treatment by police
officers of the respondent Government and, if so, whether this
amounted to an "administrative practice" (violation of Article
3 of the Convention) ; and

(4) whether or not the measures of derogation taken by

the respondent Government were justified under Article 15
of the Convention." 16

The decision to admit Article 3 changed the nature of the

case. Not only was it of greater interest to the general public as
the issue of torture roused European public opinion, but it changed
the pleading strategies of the two parties. Article 15 specifically
excludes Article 3 from those articles which a state can suspend in
time of emergency. In other words, the Convention holds that no
situation permits a state to use torture to defend itself. Previously,
the Greek government could concentrate solely on Article 15 and
16. p. 19, Report, Vol. I, part 1. The second point referred to a Constitu
tional Act which allowed for the withdrawal of nationality and the confiscation
of property of Greek nationals residing abroad who act or acted "unpatriotically".
The applicant governments argued that this was an ex post facto law as it could
punish for acts previous to the law and that it contravened Article 1 of the
First Protocol which gives the right to every person "the peaceful enjoyment
of his possessions." The government first attempted to employ this against
Melina Mercouri, the noted actress, active against the Greek regime.

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 100 Human Rights

if they were upheld, they would have a defense to the original

complaints. Now with Article 3 admitted, they could win on 15,
and still be held in violation of the Convention if found to have
violated Article 3. These two articles, 3 and 15, were the crucial
articles of the case.
The Sub-Commission decided to hear witnesses, witnesses
who would testify on the issues relevant to Articles 3 and 15. Both
parties submitted a list of witnesses whom they wanted to be heard
on these articles.

The Year of the Witnesses

The Sub-Commission fixed the first hearing of witnesses for
the week of November 25, 1968 in Strasbourg. From the North
came the representatives of the three Scandina\dan governments,
mostly lawyers from the legal departments of the Ministeries of
Foreign Affairs. From Athens came a planeload of Greeks, in
cluding lawyers, security policemen, witnesses, and diplomats.17
Since the Greek government did not permit anyone to leave Greece
who might be a hostile witness, the witnesses requested by the
Scandinavians were either Greek exiles in Europe or foreigners.
Only one victim of torture willing to testify had managed to escape
from Greece.
The first year of the proceedings took place in an atmosphere
of judicial calm as the case dealt with essentially procedural and
juridical issues. When live witnesses entered the proceedings the

17. The question of legal representation for the Greek government before
the Commission presents an interesting problem of ethics for the legal profes
sion. In domestic law, it is generally the belief that every client, no matter how
patently a scoundrel or no matter how unpopular, has a right to proper legal
counsel. Does this apply on the international level? Does the international
lawyer have the duty to defend a regime which expressly violates the rule of law
and in particular imprisons fellow members of his profession for daring to
defend clients who are disapproved of by the regime? The Greek government
sought to hire international lawyers outside Greece, but none accepted. Many
refused inside Greece, but not all. The principal defender of the regime, Mr.
Basil Vitsaksis, number one in his law school class after the war, directed the
case with some skill and great conviction, and was rewarded by being made
Ambassador to Washington, the most important post in the Greek diplomatic
service. Another lawyer, Mr. Anghelos Tsoukalas, who was brought in from
outside government service, was rewarded by being made Minister of Justice.

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 The Greek Case 101

human element of human rights burst upon the Commission. "The

Greek Case" suddenly became front page news. During that
November week in Strasbourg the hearing room was like the eye
of a hurricane as outside swirled armed Greek security police,
French Sarete, Greek exiles, witnesses, and hordes of journalists.
What turned the attention of the world to the French pro
vincial capital were the events of Sunday, the day before the hear
ings were to open. Two Greek witnesses brought by the regime
escaped their guards and came to the Norwegian delegation to ask
for sanctuary.18 They said that they had been brutally tortured
and were being blackmailed by threats to their family to testify to
the Commission that they had been well treated.
The first session opened the next day with the swearing-in of
the witnesses. The atmosphere was extremely tense. The Greek
delegation was waiting for instructions from Athens. The issues
before the Sub-Commission were not obscure points of law that
would interest only one individual directly concerned and others
academically concerned. These were issues affecting every citizen
of an entire nation. The far-reaching political significance of the
issues before the Sub-Commission was obvious to all. It was a
situation that demanded great diplomacy from the Commission
and its Secretariat, as there was always the possibility that the re
spondent government might choose to stand on its "sovereignity"
and walk out, an act which at that stage would have been a blow
to the Convention System.
The immediate problem for the Sub-Commission was to de
cide whether or not they would hear the two transfuges. The
Agent for the Greek government announced that he was with
drawing them as witnesses. The Sub-Commission held that the
witnesses were not witnesses of either party, but they were Com
mission witnesses, and therefore these two witnesses would be
heard.

18. The arrival at the Norwegian _ delegation's hotel of Greek nationals

asking asylum from them on French soil posed some nice legal questions, but
even the most dispassionate legal scholars present were caught up in the
excitement of events. For a description of these events see Barbarism in Greece
pp. 38-55.

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 102 Human Rights

The Greek Case provides a good example of the utility, if not

the necessity, of in camera sessions. Clearly no state would will
ingly remain a member of an organization where its own nationals
were allowed to publicly denounce the tortures they had suffered
at the hands of government authorities. The testimony of the two
transjuges, which could only have been high drama, was, like all
testimony before the Commission, secret. If it were otherwise, the
Greek government could not have remained. Publicity also would
deprive the Commission of its one strength in bargaining for a
friendly settlement, public exposure is the only real sanction avail
able to the Convention System for enforcing the obligations under
the Convention.
The next hearing opened on December 18th. Again drama
was not lacking, for shortly before the hearing one of the trans
juges, Pantelis Marketakis, appeared in the Greek Embassy in
Stockholm. He said that he had been "kidnapped" by the Chief
of the Norwegian delegation, Mr. Jens Evensen. Now he wanted
to return to Strasbourg to "tell the truth". Flying from press con
ference to press conference, Mr. Marketakis came closer and closer
to Strasbourg. The Sub-Commission decided to hear him, but
held that due to the particular nature of this case where a witness
appeared to want to contradict previous sworn testimony, they
would hear him alone, without either party present. The Greek
Agent protested this decision, Mr. Marketakis never came, but
flew on to Athens.
At the end of this session, the Sub-Commission fixed February
6th, 1969 as the opening date for its investigation in Greece. The
Commission was thus exercising its most significant power in terms
of the traditional sovereignty of nation-states?its right to investi
gate on the spot. This power derives from Article 28 which obliges
the states concerned to "furnish all necessary facilities". A thorough
investigation in the present case clearly required an investigation
in Greece. There the Sub-Commission could not only physically
examine a number of detention centers to check the testimony given
in Strasbourg, but more important they could hear the testimony
of a number of persons the regime did not permit to leave the
country, as well as many members of the security forces.

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 The Greek Case 103

In a letter of January 13th, 1969 the respondent government

wrote that the presence of the applicant governments during this
investigation was "not necessary" and "could create difficulties."
After the Marketakis affair the Greek government had announced
that the Chief Agent for the applicant countries, Mr. Evensen, was
"a kidnapper" and had even placed wanted posters in Greek Police
stations. The Commission resolved this delicate problem by "re
serving" their rights to call upon both parties for assistance, but
deciding to hear all witnesses and visit all localities in the absence
of both parties. (The verbatum records would be sent to both
parties.) Though this decision did not conform to previous prac
tice and was criticized by many favorable to the Scandinavian case
as an abdication by the Sub-Commission, it proved to be a wise
decision. The Sub-Commission was able to hear witnesses in
Greece without the Greek authorities present, which many felt
would be intimidating to witnesses, and the procedure was spared
the interruptions of the lawyers, particularly on the Greek side
which attempted in Strasbourg to pursue delaying tactics.
After a delay requested by the Greek government, the session
opened in Athens on March 9, 1969. The Sub-Commission not
only heard key figures in recent Greek history who spoke on Article
IS, they were also able to confront alleged torturers and their vic
tims. In one such incident, a police officer named Fotinos was told
he would face a man who claimed Fotinos was one of his torturers.
Fotinos said he had never heard of the man. In an exchange the
policeman and the President of the Commission well expressed the
opposed concepts of absolute national sovereignty versus the inter
national protection of human rights.
"Mr. Fotinos : Isn't it necessary to have an approval for this?
Isn't it necessary to have the approval of the Government?"
Mr. President : "The Sub-Commission, Sir, does not need
such approval from the Government, because the Government is a
party to a Convention which enjoins it to observe the rules."
When the torture victim entered the room and identified the
policeman as his torturer, Fotinos rose and tried to run from the
1Q
room.

19. p. 180, Report, Vol. II, Part. I.

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 104 Human Rights

The Greek government, while allowing some witnesses to ap

pear, refused the Sub-Commission access to certain prisoners who
had been allegedly tortured, and had marks. The Sub-Commission
''decided to terminate its visit to Greece on the ground that it had
been prevented by the government, for reasons which it did not
consider justified, from hearing certain further witnesses in regard
to Article 3 of the Convention and from inspecting the detention
camps of the Island of Leros and Averof Prison in Athens."
The investigation in Greece marked a turning point in the
case, both in the attiude of the Sub-Commission and that of the
Greek government. Before, the government had cooperated to
the point where they submitted briefs, offered facilities, and gen
erally respected "the rules of the game." Their main tactic was
delay. Every decision made by the Commission or Sub-Commission
which fixed a date was met by a request for a delay by the Greek
government. These requests were always granted. After the in
vestigation in Greece, the Sub-Commission clearly felt that they
had to bring the parties to the stage of submitting final conclusions
and they themselves, after more than a year and a half, had to com
plete their report. After Greece, the Sub-Commission denied all
Greek requests for delays and the Greek government reacted by
protesting these decisions and not filing their observations and
conclusions as requested by the Sub-Commission.
The Sub-Commission heard more witnesses in a June session
and one more in July. By then a number of tortured victims had
escaped from Greece and there was abundant evidence before the
Sub-Commission. The Sub-Commission continued its practice es
tablished in Greece of hearing witnesses without the presence of
the two parties. The Greek representative protested this decision.
At the same time that the Sub-Commission wras finishing its
investigation and asking the two parties to submit conclusions on
a number of issues, the Sub-Commission put itself at the disposal
of the two parties with a view to seeking a friendly settlement of
the case, as required by Article 28(b). Discussions with parties
to effect this end began in early March 1969.

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 The Greek Case 105

The negotiations for a friendly settlement went on over the

summer, but the details of these efforts remain secret.20 It appears,
however, that the negotiations focussed on two issues. The first
was the question of torture. The Scandinavians felt that no friendly
settlement was possible on this issue, it was not to be bargained
over, it was to be stopped. The Greek government presented a
plan which would in theory give the International Red Cross the
right to visit interrogation places without prior notice to the Greek
authorities. The major stumbling block to a friendly settlement
was the question of the restoration of democracy and the holding
of free elections. The Scandinavians asked for a time table which
would include a fixed date for elections. The Greek government
was never willing to give a fixed date for elections.
Members of the Sub-Commission began drafting sections of
their report in the late summer. The case had gone on for two
years, the Sub-Commission had heard eighty-eight witnesses, they
had received countless documents including some sent at great risk
from Greek prisons, and the proceedings ran to over 20,000 pages.
On October 4, 1969, the Sub-Commission adopted its report
and sent it immediately to the full Commission. The Commission
then adopted its Report on November 5, 1969. It was sent to the
Foreign Ministers of member states on November 18, 1969. The
Report, which was top secret, had taken on great political signifi
cance. Once this essentially judicial body, the Commission, makes
a Report it goes to the Committee of Ministers which is a political
body. In the framework of the Council of Europe the Consultative
Assembly had long recommended the expulsion of Greece, but the
Committee of Ministers, the one organ able to do it, resisted this
step. In their meeting of May, 1969, they avoided a decision by
stating that it would not be proper to decide until the Report of the
Commission had been completed. By postponing what was a dis
agreeable decision for diplomats, the entire weight of the expulsion
question rested on the findings of the Report.

20. The negotiations are recorded in the final volume of the Report, but this
has not been made public.

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 106 Human Rights

Under the rules of the Convention, the Report could not be

considered by the Committee until it had been in the Ministers'
hands for a period of three months. This meant that the Report
could not be discussed at the Ministers' meeting in Paris on
December 11, 1969, though it did not mean that the Ministers
could not have the results in mind when the Greek question was
raised. The Greek government had elected to fight against the
Scandinavian move for suspension, and the autumn of 1969 saw a
fierce diplomatic battle over votes.
From the beginning in every organ of the Council of Europe
there had been two opposing points of view on how to handle the
Greek question. One point of view held that a brutal military
regime such as this could not be appeased and the only action of
the organization was to expel it as it was in direct violation of the
rules of the Council and the Convention. Behind this was the feel
ing that democracy could be restored and human rights respected
only when the regime was overthrown and expulsion would help
this end. The other point of view was that to expel Greece would
be to lose all influence over her, only by keeping her in could pres
sure be brought to ameliorate the situation. Behind this concept
was the assumption that pressure within the organization could
bring progress toward liberalization in Greece. Time worked
against the second view as the regime showed no signs of changing,
martial law remained in force, and it became clear to everyone that
the regime did not intend to hold the elections they had promised.
Somehow the Report found its way to the press and at the
end of November the British Sunday papers had prominent articles
on the subject.21 The Commission's opinion, which found, inter
alia, that torture was government policy, aroused European public
opinion and no doubt played a role in the voting of the Ministers.
The issue of human rights in Greece which had been investigated

21. It is not clear exactly how this happened. The Greek government
blamed the British ; and, British-Greek relations, according to the press, were at
their lowest since the Cyprus affair. Almost every other member state has been
mentioned, though well-informed sources indicate that it leaked from Greece
itself and constituted an act of resistance by Greeks against the regime. See
Sunday Times, Nov. 30, p. 1.

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 The Greek Case 107

in legal terms had become an international political problem that

was being fought out on the diplomatic and political level.
On December 11 in Paris at the Committee of Ministers'
meeting, the Greek delegation walked out when it was clear that
the votes were going against them and they would be suspended.
Before walking out, the Greek Foreign Minister expressly de
nounced the European Convention on Human Rights. From this
point on, the Greek government was to attack the Convention and
attack the Commission, charging it with bias and irregular pro
cedure.
At the next ministerial meeting in April, the Committee was
able to act on the Report as the three month period had expired.
Under Resolution DH (70) 1 adopted by the Committee of Min
isters on April 15, 1970, they agreed with the Opinion of the
Commission, noted that the "Greek government is not prepared to
comply with its continuing obligations under the Convention . . .",
decided "to make public forthwith the Report . . .", and urged
the "Government of Greece to restore without delay, human rights
and fundamental freedoms in Greece . . . " and also urged the
government "to abolish immediately torture. . . ."

The Report
The Report itself is an impressive document by any standard.
Its more than 1200 pages are divided into three parts, a "History
of the Proceedings and Points at Issue", "Establishments of the
Facts and Opinion of the Commission" which comprises the body
of the Report, and a brief third part dealing with the unsuccessful
efforts for a "Friendly Settlement". The bulk of the Report con
centrates on Articles 15 and 3. The Commission also drew up a
list of ten proposals, an option open to it under Article 31 when it
transmits the Report to the Committee. Eight of these proposals
concern the problems of detained persons either in proposing
stricter control of police, independence of the judiciary, or better
prison conditions. The final two proposals call for a free press
and free elections.
The first issue treated by the Commission is logically Article
15. The Opinion first seeks to define "public emergency threaten

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 108 Human Rights

ing the life of the nation." The Commission, while acknowledging

that any government has the right to a "margin of appreciation",
held that in the present case the burden of proof is on the respondent
government to show that such conditions justifying derogation
exist and continue to exist. The Commission then dealt with the
three major arguments presented by the respondent government to
show derogation was justified : "the Communist danger", "the
crisis of constitutional government," and "the crisis of public
order." After examining these points, the Commission concluded
that "the respondent government has not satisfied the Commission
by the evidence it has adduced that there was on April 21, 1967, a
public emergency threatening the life of the nation ..." There
were ten votes for this opinion and five dissents.
The Commission then had to deal with other issues under
Article 15, one of which was whether or not since April 21, 1967
the conditions for invoking Article 15 were fulfilled. The Greek
government claimed that the formation of "illegal organizations"
and bombings now made Article 15 apply. This rather disin
genuous argument was also rejected.
Having concluded that Article 15 did not apply, the Com
mission turned its attention to the articles in the original Scandi
navian complaint as well as Article 3 of the Protocol. The Appli
cant governments were able to rely on "legislative measures and
administrative practices" in presenting their arguments on these
articles, that is, legislation that on its face was contrary to the
Convention. The Commission follows the same form of presenta
tion as it does throughout the Report; presentation of the argu
ments of both sides, then a presentation of evidence from sources
such as witnesses, relevant legislation, and other sources, then its
opinion. The Commission found that the Greek government had
violated Articles 5, 6, 8, 9, 10, 11, 13, 14 and Article 3 of the
Protocol.22
22. These decisions appear to have been unanimous, though it is complicated
by the fact that for every opinion, the Belgian member of the Commission, who
was not a member of the Sub-Commission, Mr. Delahaye, writes a separate
opinion. These opinions really constitute the reactions of a man unfamiliar with
the case thinking out loud, and it is often impossible to tell if he is in agree
ment or in dissent with the conclusions of the majority.

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 The Greek Case 109

The Commission then turned to Article 7 of the Convention

and Article 1 of the First Protocol. The applicant governments
had submitted that Constitutional Act "Eta" of July 11, 1967
which withdrew Greek citizenship and punished those acting "un
patriotically" abroad, as well as permitted confiscation of propery
of the person and the spouse, constituted an ex post jacto law as it
punished past acts, thus violating Article 7 and violating Article 1
of the Protocol which gives rights to peaceful enjoyment of prop
erty. The Commission held for the respondent government basing
themselves on the fact the protecting article in the Greek Constitu
tion hadn't been suspended and both parties agreed the penalties
have not been imposed in any actual case.
Over half the pages of the Report are devoted to Article Three.
The Commission first treats the preliminary issues of what consti
tutes an "administrative practice" of ill-treatment or torture, and
the standard and means of proof to be applied. On the question of
administrative practice the Commission states that it would be ex
cessive to demand written instructions to torture as proof of a
government policy as such orders would obviously be secret. On
the other hand an administrative practice would clearly not be
shown when acts of torture or ill-treatment "were isolated in time
and place and, after proof, duly punished." The Commission con
cluded that two elements are necessary to show the existence of an
administrative practice?repetition of acts, that is, "a substantial
number of acts of torture or ill-treatment which are the expression
of a general situation" ; and?"official tolerance" which exists
when the superiors of those responsible take no action to punish
them or prevent such acts, and when higher authority, in the face
of numerous allegations, shows itself to be indifferent by refusing
adequate investigation.23
The Commission then discusses standard of proof.24 Allega
tions must, the Commission decided, be proved "beyond reasonable
doubt". The Sub-Commission in the hearing of witnesses con
fined itself as far as possible to direct evidence, that is from those

23. p. 13, Report, Vol. II, Part 1.

24. p. 14, Report, Vol. II, Part 1.

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110 Human Rights

who claimed to have been subjected to torture, to those who had

witnessed its infliction, and those who had seen marks or traces
on another person that could be attributed to torture. The Sub
Commission, therefore, did not accept hearsay evidence, except as
a check on the credibility of a witness.
The Report concentrates on a detailed examination of sixteen
witnesses who appeared before the Commission, then ten cases of
persons whom the Greek government prevented from appearing,
as well as three other cases. An Appendix lists 213 names with
the available details as well as the names of five persons who died.
In their opinion, "The Commission has found it established beyond
doubt that torture or ill-treatment contrary to Article 3 has been
inflicted in a number of cases", and examining the criteria for an
"administrative practice", they concluded that because of the repe
tition of acts and official tolerance, the use of torture was an "ad
ministrative practice." It was unanimously held that there had
been a violation of Article Three, though the member from Greece
did not take part in the deliberations, and the member from Cyprus
abstained.
The section on Article Three shows the Commission at its
best. It is in this area that it was most able to act like a court.
It was being asked to determine a fact?was this particular person
tortured or not. find the truth, the Commission was able to
question the person, question those with him in his cell, examine
that cell and the place he said he was tortured, question those ac
cused of torturing him. Consequently, they were in the position
of any domestic court of law, which while not having viewed che
act itself is able to make a decision based on extensive evidence.
The Commission chose to concentrate closely on a few cases.
One case would have been sufficient to violate the Convention,
though a number were needed to constitute an "administrative
practice". It is difficult to imagine how the Commission could
have been more thorough in their examination of the cases they
chose. Not only were all those concerned allowed to testify, but
doctors examined the alleged victims both mentally and physically.
Both sides were given the opportunity in this adversary proceeding

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 The Greek Case 111

to bring in new evidence or disprove evidence that had been pre

sented. The Commission on this difficult and tragic issue produced
a thorough dispassionate Opinion.
The solidity of Article Three is to be contrasted with the
Commission's opinion on Article 15. The difference is not in the
Commission, but in the nature of the questions they were being
asked to answer. They were not being asked as in Article Three
if certain acts had taken place or not, they were really being asked
if certain acts would have taken place. The Greek regime claimed
that it acted to prevent certain acts, namely a Communist take
over. The Commission was being asked, in part, to judge if this
would have happened. Rather than find facts, they were being
asked to give an opinion as to whether or not a certain political
situation constituted a "threat" to a nation. Judges in municipal
law are called upon to make this kind of judgment, but it places
the judicial process on weaker ground.
Fortunately, in a sense, the Greek case was an extreme one
as it was a question of a group of junior officers interested in seiz
ing political power overturning the constitutional government.
The Communists clearly did not have the capability nor the inten
tion of seizing power by force. However this broad issue of
Article 15 created more divergencies among the Commission, as
the 10-5 judgment shows. Because the issue called for political
judgments, individual judges were subject to their particular politi
cal beliefs. This is particularly evident on the issue of Commu
nism, the issue which has posed such a problem for Western juris
prudence over the last fifty years. The dilemma posed by a group
of citizens wishing to destroy the system and enjoy its protection
poses great problems, and the views of the judges on this dilemma
often emerge.20 The Convention, however, gives rights to all citi
zens regardless of political belief.
The Report stands as a signal achievement. It is judicial in
tone, objective in its conclusions, and deals systematically and com
pletely with the issues before the Commission.

25. See particularly the opinions of Members Susterhenn and Delahaye.

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 112 Human Rights

Reflections and Conclusions

The Greek case was the principal concern of the Council of
Europe for three years, and the Commission spent more than twc
years on the Greek Case. The efforts of many individuals and
governments were devoted to protecting the human rights of some
Europeans. What are the lessons to be drawn from the Greek
Case? What is its contribution, if any, to the international pro
tection of human rights? In sum, what did this whole exercise
prove ?
In terms of the Convention System, the Greek Case can be
considered a success. The mechanism set out in the Convention
was used from the first stage of application, through investigation,
through submission of a Report, and to the final step the sanction
of publication of the Report. The Commission gave an objective
finding of fact on issues over which there was great controversy.
The Convention System showed that it had a life of its own, and
the Commission carved an area of judicial reason out of a situation
dominated by polemic and power politics. The Convention was
well used, well carried out, and the prestige of the Convention and
the Commission enhanced.
But what about those who had their human rights violated,
in their terms was the Greek Case a success in carrying out the
purpose of the Convention?the protection of human rights?
Greeks were being tortured and martial law was in effect before
the applications were filed, and after the whole process Greeks were
still being tortured and martial law was still in effect. Though
this statement is true, it does not give the whole picture. There is
no doubt that the Convention System process was a significant
restraint on the behaviour of the Greek authorities. Though it is
difficult to demonstrate, it is most probable that fewer Greeks were
tortured than otherwise might have been. The negotiations over
a friendly settlement pushed the government to sign an agreement
with the International Red Cross that imposed further restraints.
Because of the Commission and international pressure the Greek
government did not carry out serious reprisals against witnesses
who testified before the Commission in Greece, and because these

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 The Greek Case 113

people testified, the truth was known abroad. The Greek Case
cannot be considered a success in terms of protecting the human
rights of Greeks, but it did have a positive effect, it made the situ
ation less bad.
By looking at the Greek Case from these two different points
of view, the conclusion is apparent that the Convention System
could not accommodate a situation such as the Greek one. A
member state had a political system?military dictatorship?that
stood in complete contradiction with the Convention and its bias
of parliamentary democracy. The System is very frail, ultimately
its power is only moral, resting on the sanction of publication which
assumes that a state values its reputation as a state that keeps its
promises. The Greek regime had already lost its reputation before
the bar of public opinion so the sanction held no fears for them.
The Convention system can protect human rights in member states
only when the states have the will to respect them on the level of
municipal law, and when the ride of law is an operational reality.
The Convention System is really able only to handle the aberra
tion, the exceptional denial of justice that will occur in any demo
cratic system.
In a situation where torture is government policy and dictator
ship the system of government, it is obvious that only by changing
that regime is there a hope of respecting human rights. To change
governments of member states is totally beyond the scope and in
tention of the Convention System. The Convention System acted
within its mandate, and remained true to that mandate by publish
ing the Report and forcing the withdrawal of a regime that was
unwilling to respect the Convention.
The Greek problem is essentially a political problem, and the
Greek Case can not be understood solely in terms of the Conven
tion and the Report. The Consultative Assembly and the Com
mittee of Ministers are political organs, but their power under the
Council of Europe is very limited. Human rights and democracy
are one thing, economics and military matters are another. To be
thrown out because you do not qualify as a democracy is only a
loss of face, to be deprived of petroleum and arms might be a loss
of power.

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 114 Human Rights

Greece is a small strategically located country belonging to

the Western political bloc. Its location between historic East and
West has meant it has experienced most of the great empires.
Freed from the Ottoman Empire in 1821, Greece remained a
virtual British protectorate, and in 1947 when the British were
worn out, the Americans took their place.
The Greek Case cannot be understood without taking into
account that the superpower of the Western political system, the
United States, supports the military regime in Athens. It is only
natural that the U. S., like any other superpower, would put its
strategic interests in the Middle East and NATO before human
rights and Greek democracy. This basic factor in the situation
meant that any measure by the Council of Europe or the Com
mission would have no practical effect, but could only hope to have
a moral influence on the U. S. and the Greek regime. This
reality was always present in the minds of those involved in the
Greek Case, though it was really only openly expressed on the
floor of the Consultative Assembly. The Council of Europe and
the eighteen member states did not control all the factors in the
Greek situation, which developed as part of a world reality, not a
regional one. It is interesting to speculate what would have hap
pened if suddenly the planet earth had only the Council of Europe
states, would the Greek Colonels have remained in power ?26
There were factors however in the Greek situation that limited
the freedom of the U. S. to act to protect the Greek regime from
attack by Western organizations. First of all, the U. S. is not a
member of the Council of Europe. This is a European, rather
than an Atlantic organization, and the U. S. could not publicly
intervene as it rightfully could in NATO. Second, the subjects
dealt with by the Council and the Commission, democracy and
human rights, were unassailable to public attack. American policy
was directed at keeping Greece in the Council of Europe, but it
could not take a public stand on this, it could only privately urge
its allies not to "alienate" the Greek regime which the Americans
26. This is a difficult speculation as probably Europe would break up into
power blocs, and there would not be the whole weight of Europe against a
regime that was renegade in terms of European values.

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 The Greek Case 115

were assured was moving in the direction of these worthy goals.

Diplomatic pressure was put on the Scandinavian states to with
draw their case at the Commission and lawyers in the State De
partment's Near East division worked on how Greece could legally
be kept in the Council of Europe.
There was a contradiction in the Western Alliance system
over Greece, and though it never seriously threatened the U. S.'s
position in Greece, it did mean U. S. diplomacy had less room for
maneuver. There is some irony in this situation as the U. S. had
Cuba expelled from the Organization of American States on the
grounds that it violated human rights. The U. S. government's
devotion to the cause of human rights was not the same with Greece
nor is it the same with the majority of the American states.27
One conclusion that can be drawn from the Greek Case is that
despite superpower intervention on behalf of the Greek Colonels,
the international system as expressed through international organi
zations made inroads into national sovereignty and superpower
absolutism. This international system showed it has a vital exist
ence of its own with which national leaders and major power
leaders must contend. Past Greek governments had signed a host
of international agreements, and when the Colonels came to power
they were constantly confronted with investigations by such di
verse organizations as the World Council of Churches, the Inter
national Labor Organization, the Human Rights Commission,
organizations they had probably never heard of.
The Colonels came to power in a state belonging to the West
ern system and they justified their power on the grounds of anti
Communism. When they were under attack from the West, they
found themselves in an ideological box, and, as they were weak,
they had to acknowledge some of this pressure. Only with time
did they have the chance to shift ground and blame "Western
anarchism" while at the same time improving diplomatic and com
27. See Espersen, p. 20. It is interesting to note that letters from the
State Department in answer to inquiries about torture, always minimized the
question and repeated the arguments of the Greek regime. Even after the
Commission's Report was known, in March 1970, a Pentagon General in testi
mony before a Congressional Committee assured the members that torture was
limited to only "a very few cases" and these had been "highly exaggerated."

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 116 Human Rights

mereiai relations with the Communist countries. The very fact

that Greece submitted to the procedure of the Commission of Human
Rights shows that the international system does have some
strength.28 And yet the inescapable conclusion is that the big
powers determine important matters, and though the international
system had an impact on the Greek Case and was an important
factor, it was not enough to change the situation in Greece, nor
was it enough to make the superpower responsible in Greece change
its policy.
The conditions in Greece were really the best possible for
international action in the field of human rights and are not likely
to be repeated: a weak state dependent on the West, the super
power protector not a member of the Convention System, flagrant
violation of human rights, willingness on the part of member states
to implement the mechanism for the benefit of others, and the
courage of the victims to testify. And this took place in Europe,
the only region that has a workable system. While the ultimate
goal of the protection of human rights was not achieved, the sys
tem did have a positive effect on restraining the Greek authorities,
and the system showed its integrity by rejecting a member that
would not respect human rights.

28. The obvious question is why did Greece go through with it at all. If she
had quietly dropped out of the Council and the Convention, little would have
been heard about it. By fighting the case and being so clearly in the wrong,
Greece gave enormous importance to the organization and made it well known
to the public. Incompetence played a large role in what turned out to be the
regime's blunder to stick it out. Those responsible in the regime were only
looking a day ahead and didn't see the implications of such an investigation.
Perhaps some of them thought in the beginning that they could delay up until
the situation would have changed. In any case they were totally unprepared
for the rigors of a thorough investigation, especially in Greece, where police
officers were accustomed to a system where, "It is a Communist lie" was good
and sufficient evidence for a court martial.
This capacity to blunder throughout the case produced many amusing inci
dents. The State Coroner, Dr. Kapsaskis, who is notorious in Greece for always
being on hand at every murder and suspicious death, was brought by the regime
to testify in Strasbourg on certain deaths of prisoners. Guessing that the
Commission knew of his reputation as a servant of right-wing regimes, he tried
to establish his objectivity by pointing out that three years before in a trial
against the Papandreous, the Center party politicians, he had as a handwriting
expert testified that a Papandreou signature used by the government in their
case was a forgery. The trouble was the Greek government had submitted this
same document to the Commission as genuine evidence on Article 15 !

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 The Greek Case 117

Though it might seem a bitter statement to Greeks who live

in a country without basic civil and poltical rights, the Greek Case
before the Human Rights Commission represents a step forward
on that long road toward an effective collective system for the pro
tection of human rights. All the effort expended in the Greek
Case was perhaps justified by those few moments when Greek
nationals, victims of medieval tortures, were led from their cells
and brought before seven European jurists, and there, in their own
country, were able to confront and accuse the government officials
who had tortured them. That moment is historic.

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