YEARBOOK OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS …978-94-015-1224-4/1.pdf · YEARBOOK OF THE...

YEARBOOK OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS

YEARBOOK OF THE EUROPEAN CONVENTION

ON HUMAN RIGHTS THE EUROPEAN COMMISSION AND

EUROPEAN COURT OF HUMAN RIGHTS

THE GREEK CASE

MARTINUS NIJHOFF / THE HAGUE / 1972

© I972 by Martinus Nijhoff, The Hague, Netherlands Softcover reprint of the hardcover 1 st edition 1972

All rights reserved, including the rights to translate or to reproduce this book or parts thereof in atry form

ISBN 978-94-015-1226-8 ISBN 978-94-015-1224-4 (eBook)

DOT 10.1007/978-94-015-1224-4

Introduction

This Volume contains the Report of the European Commission of Human Rights on the "Greek Case" (Applications No. 3321/67, Denmark v. Greece; No. 3322/67, Norway v. Greece; No. 3323/67, Sweden v. Greece; No. 3344/67, Netherlands v. Greece) and the Resolution DH (70) 1 adopted by the Committee of Ministers of the Council of Europe on 15 April 1970 relating to this case.

These four applications, which were filed with the Commission of Human Rights in September 1967, alleged that the Greek Government which had come into power in April of that year had violated its obligations under the European Convention on Human Rights. They referred to the suspension of certain articles of the Greek Constitution and other legislative measures and administrative practices; they alleged that, regardless of any individual or specific injury, these acts affected the corresponding Articles of the Convention on Human Rights. The Applicant Governments also submitted that the derogation made by the Greek Government under Article 15 of the Convention (which permits a government to take measures derogating from its obligations under the Convention in time of war or public emergency) was not justified. The Commission on 2 October 1967, decided to give priority to these cases and, after hearing the submissions of the parties on 23 and 24 January 1968, it declared the applications admissible on 24 January 1968. The decision on admissibility was published in this Yearbook Vol. 11, pages 690 to 728.

In March 1968, the three Scandinavian Governments added new allegations, alleging numerous cases of torture or ill-treatment of political prisoners amounting to an administrative practice, contrary to Article 3 of the Convention; alleging that the Constitutional Act "Eta" of 11 July 1967 constituted retroactive penal legislation, contrary to Article 7, and introduced measures of confiscation, contrary to Article 1 of the First Protocol; and, finally, that the absence of free elections, which prevented the people from freely expressing their opinion in the choice of the legislature, was contrary to Article 3 of the First Protocol. On 31 May 1968, the Commission, again after hearing the submissions of the Parties, declared these new allegations admissible. The second decision of the Commission on admissibility was published in Volume 11 of this Yearbook at pages 730 to 780.

The Sub-Commission, which was set up to ascertain the facts of the case, held various sessions during 1968 and 1969 and heard a large number of witnesses. (Yearbook Vol. 11, page 58; Yearbook Vol. 12, page 104).

VI INTRODUCTION

On 18 November 1969 the Commission of Human Rights transmitted to the Committee of Ministers of the Council of Europe the report which it had drawn up in accordance with Article 31 of the Convention. After three months had elapsed without the case being referred to the European Court of Human Rights, the Committee of Ministers, in accordance with Article 32 of the Convention, adopted on 15 April 1970 its Resolution DH (70) 1.

At the same meeting, the Committee of Ministers decided to authorise the publication of the Report of the Commission on the above mentioned applications.

In the meantime, at the Forty-Fifth Session of the Committee of Ministers of the Council of Europe, on 12 December 1969, when the Committee was discussing certain recommendations of the Consultative Assembly relating to the situation in Greece, the Greek Government denounced the Statute of the Council of Europe and the European Convention on Human Rights (Yearbook Vol. 12, pages 78 to 84). In accordance with Article 65 (1) of the European Convention on Human Rights, the Greek denunciation had the effect that Greece ceased to be a party to the Convention on 13 June 1970.

This Volume contains the Report of the European Commission of Human Rights on the "Greek Case" in a slightly abbreviated form, and the Resolution of the Committee of Ministers of 15 April 1970. For reasons of space, several of the Annexes to Chapter IV and several of the Appendices to the Report as a whole are omitted from this edition; their absence, however, will not deprive the reader of any essential information. In accordance with the constant practice of the Committee of Ministers, that part of the Report relating to the attempt to reach a friendly settlement remains confidential and is therefore not published.

Departing from the usual practice, and as a quite exceptional measure, this Volume contains only the English text, which is the original text, of the Report. The full text of the French translation, in a roneotyped edition, may be obtained on request from the Directorate of Human Rights, Council of Europe, Strasbourg.

Strasbourg, 30 July, 1971

A. H. ROBERTSON

Head of the Directorate of Human Rights

SUMMARY TABLE OF CONTENTS

Page

Introduction V

REPORT OF THE EUROPEAN COMMISSION OF HUMAN RIGHTS ON THE "GREEK CASE" 1

INTRODUCTION 5

PART A: History of Proceedings and Points at Issue 9

PART B: Establishment of the Facts and Opinions of the Commission:

CHAPTER I: Article 15 of the Convention 29

CHAPTER II: Articles 5, 6, 8, 9, 10, 11, 13 and 14 of the Convention and Article 3 of the First Protocol 120

CHAPTER III: Article 7 of the Convention and Article 1 of the First Protocol 181

CHAPTER IV: Article 3 of the Convention 186

RESOLUTION DH (70) 1 OF THE COMMITTEE OF MINISTERS OF THE COUNCIL OF EUROPE 511

ANNEXES TO CHAPTER IV 519

APPENDICES TO THE REPOR T 673

TABLE OF CONTENTS

Pages

Introduction V

REPORT OF THE EUROPEAN COMMISSION OF HUMAN RIGHTS ON THE "GREEK CASE" 1

LIST OF PRINCIPAL DOCUMENTS 3

INTRODUCTION 5

PART A

HISTORY OF PROCEEDINGS AND POINTS AT ISSUE

CHAPTER I - HISTORY OF PROCEEDINGS

1. ADMISSIBILITY STAGE

2. PROCEEDINGS BEFORE THE SUB-COMMISSION

3. FURTHER PROCEEDINGS BEFORE THE COMMISSION

4. OPINION OF MR. DELAHAYE

CHAPTER II - POINTS AT ISSUE

1. FIRST DECISION ON ADMISSIBILITY

2. SECOND DECISION ON ADMISSIBILITY

3. POINTS AT ISSUE UNDER THE TWO DECISIONS

4. SUBMISSIONS BEFORE THE SUB-COMMISSION

5. ORDER OF PRESENTATION

PART B

ESTABLISHMENT OF THE FACTS AND OPINION OF THE COMMISSION

11

11

12

17

18

19

19

21

24

25

26

CHAPTER I - ARTICLE 15 OF THE CONVENTION 29

A. ISSUES ARISING UNDER ARTICLE 15 29

B. WHETHER A REVOLUTIONARY GOVERNMENT CAN DEROGATE FROM PROVISIONS

OF THE CONVENTION UNDER ARTICLE 15 31

I. Submis&ions of the parties 31

1. Respondent Government 31

2. Applicant Governments 31

II. Opinion of the Commission 32

C. WHETHER THE REQUIREMENTS OF ARTICLE 15, PARAGRAPH (3), HAVE BEEN

FULLY MET BY THE RESPONDENT GOVERNMENT 33

I. Requirements of Article 15 (3) 33

II. Communications made by the Government of Greece to the Secre-tary-General under Article 15 33

III. Submissions of the parties 39

IV. Opinion of the Commission 41

TABLE OF CONTENTS

V. Dissenting opinion of Mr. Delahaye

VI. Dissenting opinion of Mr. Fawcett

VII. Dissenting opinion of Mr. Eustathiades

D. WHETHER THERE WAS, ON 21sT APRIL, 1967 A PUBLIC EMERGENCY IN GREECE THREATENING THE LIFE OF THE NATION

I. Introduction

II. The Communist danger

1. General statements of the parties

2. Evidence before the Commission

3. Examination of the evidence by the Commission

III. The crisis of constitutional government

1. General statements of the parties

2. Evidence before the Commission

3. Examination of the evidence by the Commission

IV. The crisis of public order

IX

Pages

43

44

44

44

44

45

45

49

52

58

58

60

61

65

1. General statements of the parties 65

2. Evidence before the Commission 66

3. Examination of the evidence by the Commission 67

V. Opinion of the Commission 71

1. The meaning of the term "public emergency threatening the life of the nation" 71

2. The criteria governing the control of a declaration of public emergency 72

3. As to the situation on 21st April, 1967 73

VI. Dissenting opinion of Mr. Busuttil 76

VII. Dissenting opinion of Mr. Delahaye 76

VIII. Dissenting opinion of Mr. Triantafyllides 80

IX. Dissenting opinion of Mr. Eustathiades 81

X. Dissenting opinion of Mr. Siisterhenn 86

E. THE EVOLUTION OF THE SITUATION FROM 21ST APRIL 1967, TO THE PRESENT TIME 92

I. General statements of the parties 92

II. Evidence before the Commission 93

III. Examination of the evidence by the Commission 94


V. Concurring opinion of Mr. Busuttil 100

VI. Opinion of Mr. Delahaye 101

VII. Opinion of Mr. Eustathiades 102

x TABLE OF CONTENTS

VIII. Dissenting opinion of Mr. Ermacora

IX. Dissenting opinion of Mr. Siisterhenn

Pages

102

103

F. WHETHER THE MEASURES TAKEN BY THE RESPONDENT GOVERNMENT WERE

STRICTLY REQUIRED BY THE EXIGENCIES OF THE SITUATION 103

I. Opinion of the Commission 103

II. Opinion of Mr. Busuttil 104

III. Opinion of Mr. Delahaye 104

IV. Opinion of Mr. Eustathiades 104

V. Opinion of Mr. Siisterhenn 110

G. WHETHER ARTICLES 17 AND 18 OF THE CONVENTION EXCLUDE THE PRESENT

DEROGATIONS UNDER ARTICLE 15 OF THE CONVENTION 111

I. Submissions of the parties 111


H. WHETHER THE MEASURES TAKEN BY THE RESPONDENT GOVERNMENT ARE

CONSISTENT WITH OTHER OBLIGATIONS OF GREECE UNDER INTERNATIONAL

LAW 112

I. Introduction 112


I. OPINION OF MR. BUSUTTIL 113

CHAPTER II - ARTICLES 5, 6, 8, 9,10, 11, 13 AND 14 OF THE CON-VENTION AND ARTICLE 3 OF THE FIRST PROTOCOL 120

A. INTRODUCTION 120

B. DEPRIVATION OF LIBERTY IN RELATION TO ARTICLE 5 OF TIlE CONVENTION 121




1. Suspension of constitutional provisions 125

(a) Constitution of 1952 125

(b) Constitution of 1968 125

2. Legislation concerning deprivation of liberty 127

(a) Law on the State of Siege 127

(b) Detention under administrative order 128

3. Practice concerning deprivation of liberty 129

(a) Arrest

(b) Detention under administrative order

(c) Transfer and confinement to certain localities

(d) House arrest

129

131

133

134

TABLE OF CONTENTS

IV. Opinion of the Commission

V. Opinion of Mr. Delahaye

C. ARTICLE 6 OF THE CONVENTION

I. Submission of the parties

II. Evidence before the Commission

III. Examination of the evidence by the Commission

1. Suspension of constitutional provisions

(a) Constitution of 1952

(b) Constitution of 1968

2. Courts martial

3. Action by the Government with regard to the judiciary

(a) Dismissal of 30 judicial officers

(b) Council of State

4. Evidence concerning particular trials


D. ARTICLE 8 OF THE CONVENTION

I. Submissions of the parties






2. Further legislation and administrative practice

(a) Right to respect for one's home

(b) Family life


V. Opinion of Mr. Delahaye

E. ARTICLES 9, AND 10 IN CONJUNCTION WITH ARTICLE 14 OF THE CONVENTION

I. Submission of the parties






2. Press censorship

3. Other aspects of articles 9 and 10

XI

Pages

134 136

136 136 138 139

139

139 140

140

143

143

144

145

147

149

149

149

150

150

150

150

152

152

152

152

153

153

153

154

159 156

156

157

158

163

XII TABLE OF CONTENTS

Pages


1. Press censorship 164

2. Other aspects of Articles 9 and 10 164

V. Opinion of Mr. Delahaye 165

F. ARTICLE 11 OF THE CONVENTION 165




1. The suspension of constitutional provisions protecting the free-doms of assembly and association 167

(a) Constitution of 1952 167

(b) Constitution of 1968 167

2. Further measures affecting the freedom of assembly 169



G. ARTICLE 13 OF THE CONVENTION 172



III. Opinion of the Commission 174

H. ARTICLE 3 OF THE FIRST PROTOCOL 175




1. Provisions of the Constitution of 1968 176

2. The present situation 179



CHAPTER III - ARTICLE 7 OF THE CONVENTION AND ARTICLE 1 OF THE FIRST PROTOCOL 181

A. SUB~lISSIONS OF THE PARTIES 181

I. Applicant Governments 181

1. As to Article 7 of the Convention 181

2. As to Article 1 of the First Protocol 182

II. Respondent Government 183

1. As to Article 7 of the Convention 183

2. As to Article 1 of the First Protocol 184

B. OPINION OF THE COMMISSION 184

TABLE OF CONTENTS XIII

Pages

CHAPTER IV - ARTICLE 3 OF THE CONVENTION

A. INTRODUCTION 186

I. Character and scope of allegations under Article 3 186

II. Sub-Commission's investigation 189

III. Parties' final submissions 192

IV. Preliminary issues 194

A. The notion of an administrative practice of torture or ill-treatment 194

B. Standard and means of proof 196

V. Order of presentation 198

B. ESTABLISHMENT OF THE FACTS BY THE SUB-COMMISSION 200

I. Cases of physical torture or ill-treatment where the alleged victims were heard by the Sub-Commission 200

A. Cases relating to the Athens Asphalia 200

Introduction: Athens Asphalia Headquarters 200

1. N. Vardikos 203

2.

3. 4.

5.

6. 7.

P. VIas sis

Y. Leloudas

Miss C. Arseni

Mrs. A. Tsirka

A. Lendakis

P. Korovessis

208

215

225

244

259

274

B. Cases concerning military authorities in and near Athens 292 Introduction: Dionysos Camp 292

1. E. Veryvakis 293

2. D. Livanos 300

C. Cases relating to the Piraeus Asphalia 308 Introduction: Piraeus Asphalia Headquarters 308

C. Papagiannakis, G. Yotopoulos and N. Ambatielos 312

D. Cases relating to the Salonica Security Forces 351

1. C. Meletis 351

2. Miss G. Pangopoulou 363

E. Cases relating to other localities 366

1. P. Marhetakis 366

2. B. Karaosman 371

II. Evidence on cases of alleged physical torture or ill-treatment of persons prevented from appearing before the Sub-Commission 385 Introduction 385

A. Cases relating to the Athens Asphalia 386

1. G. Notaras 386

XIV TABLE OF CONTENTS

2. Miss M. Kallerghi

3. Y. Petropoulos

4. N. Kiaos

5. E. Tsiloglou

B. Cases relating to military authorities in or near Athens A. Panagoulis

C. Cases relating to the Salonica Security Forces S. Nestor, G. Sipitanos and C. Pyrzas

D. Cases relating to other localities P. Gavalas

III. Evidence on certain other cases of alleged physical torture or ill-

Pages

403

408

410

414

417 417

427 427

435 435

treatment 439

1. Xintavelonis 439

2. Mrs. A. Papanicola 445

3. A. Dakos 450

IV. Further allegations of physical torture or ill-treatment 454

A. Allegations concerning other victims called as witnesses but whom the respondent Government refused to make available 454

B. Allegations contained in written statements 457

V. Allegations of non-physical torture or ill-treatment 461

A. Attacks on prisoner's own feelings 461

B. Attacks on feelings for others 464

VI. Detention conditions 467

A. The detention conditions in Bouboulinas Street 468

B. The detention conditions in the Piraeus Asphalia 480

C. The detention conditions in A veroff Prison 482

D. The detention conditions in the camps on the Island of Leros 489

C. OPINION OF THE COMMISSION 498

A. General 498

B. Evidence of a practice of torture and ill-treatment 501

C. Summary 503 Individual opinions of members 506

RESOLUTION DH (70) 1 of the Committee of Ministers 511 Appendix to the Resolution containing the proposlas of the European Commission of Human rights 514

ANNEXES TO CHAPTER IV

Complete list of titles to the Annexes to Chapter IV. For reasons of space, only Annex V and in part Annex VI are preproduced in this publication.

ANNEX I

List of submissions and documents not reproduced

TABLE OF CONTENTS xv

Pages

ANNEX II

Torture allegations said to have been raised before the Extraordinary Courts Martial and enquiries conducted not reproduced

ANNEX III

List of witnesses heard by the Sub-Commission with regard to Article 3 of the Convention not reproduced

ANNEX IV

A. List of witnesses summoned by the Sub-Commission but not heard for various reasons

B. Witnesses proposed by the Parties but not summoned by the Sub-Com-mission not reproduced

ANNEX v Alleged cases of torture and/or other treatment contrary to Article 3 of the Convention 519 Introduction 519

I. Athens and suburban police localities 1. Bouboulinas Street 2. Gendarmerie Stations in the suburbs and near Athens 3. Other localities under the control of Athens Asphalia

II. Piraeus Asphalia

521 521 567 571

575

III. Localities under control of military authorities in and near Athens 587

IV. Salonica Gendarmerie 597

V. Localities under military control, in and near Salonica 611

VI. Crete 615

VII. Police stations in other parts of Greece 623

VIII. Assembly places for arrested persons in April 1967 629

IX. Various localities 635

X. Unidentified places 641

ANNEX VI

Plans and photographs of the Athens and Piraeus security police buildings (extracts) 655 Photographs of the Athens security police buildings 657 Photographs of the Piraeus security police buildings 667

ANNEX VII

History of facts relating to the respondent Government's obligation under Article 28 (a) of the Convention not reproduced

APPENDICES TO THE REPORT

Complete list of titles to the Appendices for reasons of space only Appendices IV, VIII and XVIII are reproduced in this publication

APPENDIX I

Decision of the Commission as to the admissibility of the applications (24th January, 1968) (cf. Yearbook, XI, pp. 690 If.)

APPENDIX II

Decision of the Commission as to the admissibility of the new allegations made by the first three applicant Governments (31st May, 1968) (cf. Yearbook, XI, pp. 730 If.)

673

XVI TABLE OF CONTENTS

Pages

APPENDIX III

Schedule of proceedings not reproduced

APPENDIX IV

Communications addressed by the Government of Greece to the Secretary General under Article 15 673

APPENDIX v Witnesses summoned in connection with Article 15 of the Convention who failed to appear before the Sub-Commission not reproduced

APPENDIX VI

Witnesses proposed by the parties but not summoned by the Sub-Commission in connection with Article 15 of the Convention not reproduced

APPENDIX VII

Documents considered by the Commission in connection with the respondent Government's assertion about Communist activities on and before 21st April, 1967 not reproduced

APPENDIX VIII

General plan of action

APPENDIX IX

Documents considered by the Commission in connection with the respondent Government's assertion about the crisis of constitutional Government on and

686

before 21st April, 1967 not reproduced

APPENDIX X

Documents considered by the Commission in connection with the respondent Government's assertion about the crisis of public order on and before 21st April, 1967 not reproduced

APPENDIX XI

Documents submitted on the period after 21st April, 1967 not reproduced

APPENDIX XII

Documents considered by the Commission in relation to Article 5 of the Convention not reproduced

APPENDIX XIII

Documents considered by the Commission in relation to Articles 6 and 13 of the Convention not reproduced

APPENDIX XIV


APPENDIX xv Documents considered by the Commission in relation to Articles 9, 10 and 14 of the Convention not reproduced

APPENDIX XVI


APPENDIX XVII

Documents considered by the Commission in relation to Article 3 of the First Protocol not reproduced

APPENDIX XVIII

Constitutional Acts enacted since 21st April, 1967 691

Report of the European Commission of Human Rights on the "Greek Case"

LIST OF PRINCIPAL DOCUMENTS

Full title

Letter of 19th September, 1967, from the respondent Government to the Secretary General of the Council of Europe (reproduced at Appendix V to this Report).

Applications filed on 20th September, 1967, by the Governments of Denmark, Norway and Sweden.

Application filed on 27th September, 1967, by the Government of the Netherlands.

Observations of the respondent Government of 16th December, 1967, on the admissibility of the applications - Appendix to Doc. D 22.004 (English translation by the Council of Europe)

Verbatim record of the hearing held before the Commission on 23rd and 24th January, 1968 - Doc. 9205

Joint memorial filed by the applicant Governments of Denmark, Norway and Sweden on 25th March, 1968 (VoL I, unless otherwise quoted).

Memorial filed by the applicant Government of the Netherlands on 25th March, 1968 - Doc. D 23.643 of the Council of Europe.

Observations of the respondent Government of 27th May, 1968, on the admissibility of the new allegations - Doc. 10.163 (English translation by the Council of Europe).

Verbatim record of the hearing held before the Commission on 28th, 29th and 31 st May, 1968 - Doc. 10.486.

Memorial of the respondent Government of 6th July, 1968, on the merits of the case -Doc. 10.683 (English translation by the Council of Europe).

Cited as

Letter of 19th September, 1967.

Applications of 20th September, 1967.

Application of 27th September, 1967.

Observations of 16th December, 1967.

Hearing of January 1968.

Memorial of 25th March, 1968.

Netherlands memorial of 25th March, 1968.

Observations of 27th May, 1968.

Hearing of May 1968.

Memorial of 6th July, 1968.

4 LIST OF MAIN DOCUMENTS

Full title

Memorial of the respondent Government of 19th August, 1968, on the merits of the new allegations - Doc. 10.954 (English translation by the Council of Europe).

Verbatim record of the hearing held before the Sub-Commission from 23rd to 27th September, 1968 - Doc. 11.419.

Memorial of the respondent Government of 15th November, 1968 - Doc. D 27.974 (English translation by the Council of Europe)

Verbatim record of the hearing of witnesses before the Sub-Commission from 25th to 30th November, 1968 - Vol. I (Doc. 12.297) and Vol. II (Doc. 12.370).

The Undermining of the Greek Nation by Communism (publication filed by the respondent Government on 19th December, 1968).

Verbatim record and minutes of the hearing of witnesses and visits of localities in Athens (10th-20th March, 1969).

The Political Situation in Greece from 1944 to the Present - the Communist Danger (reproduced at Appendix V to this Report).

Verbatim record of the hearing held before the Sub-Commission on 9th and 10th June, 1969 - Doc. D 31.344.

Cited as

Memorial of 19th August, 1968.

Hearing of September 1968.

Memorial of November, 1968.

Hearing of November 1968.

The Undermining of the Greek Nation.

Hearing of March 1969.

The Political Situation in Greece.

Hearing of June 1969.

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