Greek case

Anti-junta protest in Stuttgart, West Germany, 1 May 1967

On 21 April 1967, right-wing army officers staged a military coup shortly before the 1967 Greek legislative election was scheduled to occur. Alleging the coup was necessary to save Greece from Communist subversion, the new Greek junta governed the country as a military dictatorship. Its first edict was to issue Royal Decree no. 280, which cancelled several articles in the 1952 Constitution of Greece because of an indefinite official emergency. More than six thousand regime opponents were arrested immediately and imprisoned; purges, martial law, and censorship also targeted the junta's opponents.[19][20][21] The following months saw public demonstrations outside Greece opposing the junta.[22] The suggestion of referring Greece to the European Commission of Human Rights was first raised in Politiken, a Danish newspaper, a week after the coup.[23]

24 January 1967 meeting of the Parliamentary Assembly of the Council of Europe

The junta became a target of vociferous criticism in the Parliamentary Assembly of the Council of Europe for its human rights violations.[24] On 24 April, the Parliamentary Assembly debated the Greek issue. The Greek representatives were not present at this meeting because the junta dissolved the Greek parliament and canceled their credentials.[25][18][26] On 26 April, the Assembly passed Directive 256, inquiring into the fate of the missing Greek deputies, calling for the restoration of parliamentary, constitutional democracy, and objecting to "all measures contrary to the European Convention on Human Rights".[25][27][28] Although both the assembly and the Committee of Ministers showed a reluctance to alienate Greece, ignoring the coup entirely would have put the Council of Europe's legitimacy at stake.[22]

On 3 May 1967, the junta sent a letter to the Secretary General of the Council of Europe, announcing Greece was in a state of emergency, which justified human rights violations under Article 15 of the European Convention on Human Rights.[19][29][30] This implicit acknowledgement that the junta did not respect human rights was later seized upon by the Netherlands, Sweden, Norway and Denmark as the grounds for their complaint to the Commission.[29] Greece did not provide any reason for this derogation until 19 September, when it asserted that the political situation before the coup justified emergency measures. The Commission considered this to be an undue delay.[31][32]

On 22–24 May, the Legal Committee met and proposed another resolution against the junta.[33][30] The Standing Committee of the Assembly adopted this as Resolution 346 on 23 June. The resolution stated Greece had violated Article 3 of the Statute of the Council of Europe: "Every member ... must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms."[22][34][30] The resolution expressed "the wish that the Governments of the Contracting Parties to the European Convention on Human Rights refer the Greek case, either separately or jointly, to the European Commission of Human Rights in accordance with Article 24 of the Convention".[18][33][35][lower-alpha 1] On 10 September, the Parliamentary Assembly debated documents prepared by the Legal Committee which stated that, although only the Commission could make a legally binding determination, the Greek derogation of the Convention was not justified.[37]

Under Resolution 346,[38] on 20 September 1967, three member-states of the Council of Europe (Sweden, Norway, and Denmark) filed identical applications against Greece before the Commission.[27][39][40] They alleged violations of almost all the articles in the ECHR which protect individual rights:[34] 5 (right to liberty), 6 (right to a fair trial), 8 (right to privacy), 9 (freedom of conscience), 10 (freedom of expression), 11 (freedom of association), 13 (right to a legal remedy), and 14 (non-discrimination in securing the rights under the Convention, including on the basis of political belief). The applicants also stated Greece had not shown its invocation of Article 15 (derogations) to be valid.[41][42][34] The applications, based on public decrees which prima facie (at first glance) violated the ECHR,[43] referred to previous discussions in the Parliamentary Assembly in which the Greek junta was criticized. The next day, Belgian politician Fernand Dehousse proposed that the European Community bring a similar case against Greece, with which the EC had an association agreement. Although his proposal did not receive support, the EC cut off all economic aid to Greece.[39] On 27 September, the Netherlands joined the suit with an identical application;[44][40][15] the Commission joined all four applications on 2 October.[22][44]

The Scandinavian countries did not have an ethnic affinity to the victims of human rights violations,[18][44][lower-alpha 2] nor did they have a commercial interest in the case; they intervened because they felt it was their moral duty and because public opinion in their countries was opposed to the actions of the Greek junta.[18][44] Max Sørensen, the president of the Commission, said that the case was "the first time that the machinery of the Convention ... had been set rolling by states with no national interest in lodging an application and apparently motivated by the desire to preserve our European heritage of freedom unharmed".[46] Although the case was unprecedented in that it was brought without national self-interest, international promotion of human rights was characteristic of Scandinavian foreign policy at the time.[22] Following attempts to boycott goods from the applicant countries in Greece,[47][44] exporter industries pressured their governments to drop the case.[47] For this reason, the Netherlands withdrew from active participation in the case.[48][47]

Belgium, Luxembourg and Iceland later announced that they supported the actions of the Scandinavian and Dutch governments, although this declaration had no legal effect.[47][49] Attempts to elicit a similar declaration from the United Kingdom were unsuccessful, despite the opposition of many British people to the junta.[47][50] The Wilson government stated that it "did not believe it would be helpful in present circumstances to arraign Greece under the Human Rights Convention".[50]

The Greeks claimed the case was inadmissible because the junta was a revolutionary government[51][52] and "the original objects of the revolution could not be subject to the control of the Commission".[43] It argued that governments had a margin of appreciation (latitude of governments to implement the Convention as they see fit) to enact exceptional measures in a public emergency.[43] The Commission found the emergency principle was not applicable because it was intended for governments which operated within a democratic and constitutional framework, and furthermore the junta created the "emergency" itself. Therefore, it declared the case admissible on 24 January 1968—allowing it to proceed to a full investigation.[51][22]

On 24 November 1967, The Guardian reporter and human rights lawyer Cedric Thornberry published an article investigating several cases of torture in Greece, finding that it "appears to be common practice".[53] On 27 January 1968, Amnesty International published a report by two lawyers, Anthony Marreco and James Becket, who had traveled to Greece and collected first-hand accounts of human rights violations, including a list of 32 people who said that they had been tortured.[53][54] As a result of these findings,[54] the three Scandinavian countries filed another application on 25 March 1968 for breach of Articles 3 (no torture or inhuman or degrading treatment) and 7 (no ex post facto/retroactive law), as well as Articles 1 (right to property) and 3 (right to free elections) of Protocol 1 of the ECHR.[55][51][56] The Greek government argued domestic remedies were available for these alleged violations, and therefore the application should be declared inadmissible under Article 26 of the ECHR. The applicants countered that such remedies were "in fact inadequate and ineffective".[57][58]

The Commission noted three circumstances that undermined the effectiveness of domestic remedies. First, people under administrative detention (i.e. without trial or conviction) had no recourse to a court. Second, Decree no. 280 suspended many of the constitutional guarantees related to the judicial system.[58] Third, on 30 May, the Greek junta regime fired 30 prominent judges and prosecutors, including the president of the Supreme Civil and Criminal Court of Greece, for involvement in a decision that displeased the junta. The Commission noted in its report that this action showed the Greek judicial system lacked judicial independence.[57][59][58] Therefore, according to the Commission, "in the particular situation prevailing in Greece, the domestic remedies indicated by the respondent government could [not] be considered effective and sufficient".[57] The application was declared admissible on 31 May.[51]

The allegation of torture raised the public profile of the case in Europe and changed the Greek junta's defense strategy, since Article 15 explicitly forbade derogation of Article 3.[60] From 1968, the Commission gave the case priority over all other business;[51][61] as it was a part-time organization, the Greek case absorbed almost all of its time.[62] On 3 April 1968, a Subcommission was formed to examine the Greek case, initially based on the first application. It held hearings at the end of September, deciding to hear witnesses at its subsequent meeting in November.[63][64] Fact-finding, especially on-location, is rare in ECHR cases compared to other international courts, such as the Inter-American Court of Human Rights.[65]

The cell of Spyros Moustaklis in the Greek Military Police building. As a result of torture, Moustaklis was left mute and partially paralyzed.[87]

The report devotes over 300 pages to Article 3, examining 30 cases of alleged torture to the standard of proof required in individual applications, based on the testimony of 58 witnesses.[82][lower-alpha 3] An annex to the report lists the names of 213 people alleged to have been tortured or otherwise ill-treated, and five who were said to have died from their injuries; more than 70 of these cases involved abuse by the Security Police in their headquarters on Bouboulinas Street in Athens.[53][82] Rigorous local fact-finding was key to the report's findings and authority regarding Article 3. Legal scholar Isabella Risini writes that, while the report has a dispassionate tone, "The horrific methods of torture and ill-treatment as well as the suffering of individuals at the hands of their tormentors emerge clearly."[82] Commissioner Philip O'Donoghue later stated that, "The value of hearing evidence in a local venue cannot be overestimated ... No written description, however colorful, could have been as informative as the visit to Bouboulinas Street in Athens."[82]

Of the 30 cases, sixteen were fully investigated, and eleven of these could be proved beyond a reasonable doubt. The remaining seventeen cases were blocked by Greek obstruction; of these cases, two had "indications" of torture, seven were "prima facie cases", and eight had "strong indications" of torture. The most common form of torture was falanga[85]—the beating of the soles of the feet, which Greek police practiced on chairs or benches, with or without shoes.[88] Other forms of torture included generalized beatings,[85] electric shocks, blows to the male genitalia, dripping water onto the head, mock executions, and threats to kill the victims.[89][88] The Commission also considered psychological and mental torture, and poor conditions of imprisonment. According to the Commission, overcrowding, uncleanliness, lack of adequate sleeping arrangements, and the severance of contact with the outside world were also inhuman treatment.[90]

The purpose of torture, according to the report, was "the extraction of information including confessions concerning the political activities and association of the victims and other persons considered to be subversive".[85] Despite numerous substantiated cases of torture reported to the authorities, the authorities had made no effort to investigate, stop the practice, or punish those responsible.[85][91] Because the torture met both "repetition" and "official tolerance" criteria, the Commission determined that the Greek government systematically practiced torture.[88][92] The Commission was the first international human rights body to find that a state practiced torture as government policy.[85]

The Subcommission documented instances in which citizens had been deprived of their liberty, for example, by being deported from Greece, subjected to internal exile to islands or remote villages where they were forbidden to speak with locals and required to report to police twice daily, or subjected to police supervision.[31][93] Considering Article 5 in conjunction with Article 15, the Commission found that the Greek government had unjustly restrained liberty with some of these measures, which violated the ECHR because they were excessive and disproportionate to the alleged emergency, and because they were not imposed by a court.[31][94] The Commission did not consider the permissibility of internal exile, travel restrictions, or confiscation of passports under Article 5, nor did it offer a clear definition of "deprivation of liberty".[95][96] According to Jeffrey Agrest, writing in Social Research, the previous Greek Constitution may not have been in compliance with Article 5 as interpreted by the Commission, because it allowed detention without trial, charges, or appeal for a certain duration, after which the authorities had to bring charges or release the suspect. (The time limit on such extrajudicial detention was abolished by Royal Decree 280.)[97] This question was not examined by the Commission.[98]

Exiled Greek opposition leader Andreas Papandreou (center) at a press conference in Amsterdam, 24 April 1968

The Subcommission heard 30 witnesses and also examined relevant documents, such as the manifestos of far-left parties, related to the dispute over whether Article 15 was applicable. The Greek government claimed that the United Democratic Left (EDA), alleged to have Communist tendencies, was forming a popular front and infiltrating youth organizations to seize power. The respondent governments argued that if the EDA was in fact a danger to democracy, its power could be circumscribed by constitutional means, and it had been losing support in previous elections and becoming increasingly politically isolated. After examining the evidence, the Subcommission concluded the Greek communists had given up in their attempt to seize power by force and lacked the means to do so, while the popular front scenario was implausible.[100] Further, the rapid and effective suppression of junta opponents after the coup was evidence the Communists were "incapable of any organised action in a crisis".[101]

The Greek government also alleged that a "crisis of institutions" due to political mismanagement made the coup necessary; the applicant countries stated that "disapproval of the programme of certain political parties, namely the Centre Union and the EDA, did not of itself entitle the respondent Government to derogate from the Convention under Article 15".[102][103] The Subcommission found that, contrary to the claims of their opponents, the Center Union politicians Georgios and Andreas Papandreou were committed to democratic and constitutional government.[102] The Subcommission also rejected the junta's argument that demonstrations and strikes justified the coup, as these disruptions to public order were not more severe in Greece than other European countries and did not rise to a level of danger such as to justify derogation.[104] Although the Subcommission found that before the coup there had been an increase of "political instability and tension, of an expansion of the activities of the Communists and their allies, and of some public disorder",[101] it believed that the elections scheduled for May 1967 would have stabilized the political situation.[102]

The Subcommission also investigated whether, even if an imminent danger justified the coup, the derogation could continue afterwards. The Greek government reported disorder that took place after the coup, including the formation of what it deemed to be illegal organizations and a series of bombings between September 1967 and March 1969. Some witnesses stated the repressive measures of the junta had exacerbated the disorder. Although it paid close attention to the bombings, the Subcommission found the authorities could control the situation using "normal measures".[105][106]

The Greek government's justification for the existence of an "emergency" relied heavily on the Commission's judgement in Greece v. United Kingdom, in which the declaration of the British government that there was an emergency in British Cyprus was given significant weight.[107] The Commission took a narrower view of the government's margin of appreciation to declare an emergency in the Greek case,[108] by ruling that the burden of proof was on the government to prove the existence of an emergency that necessitated extraordinary measures.[108][106] The Commission ruled 10–5 that Article 15 did not apply, either at the time of the coup or at a later date.[106][109][110] Furthermore, the majority judged that Greece's derogation did not meet procedural requirements and that being a "revolutionary government" did not affect Greece's obligations under the Convention.[111][112] The five dissenting opinions[lower-alpha 4] were lengthy, indicating that for their authors this matter represented the crux of the case. Some of these opinions indicated agreement with the Greek government's reasoning that the coup countered an actual "serious danger threatening the life of the nation", and even agreed with the coup itself. Others argued that a "revolutionary government" had greater freedom to derogate from the Convention.[115] Legal scholars Alexandre Charles Kiss and Phédon Végléris argue some of the dissenting opinions are effectively abstentions, which are not allowed under the Commission's rules.[116] As of 2019, the Greek case is the only time in the history of the Commission or the Court that an invocation of Article 15 was deemed unjustified.[117][118][119]

The applicant countries also argued that the derogation violated Articles 17 and 18, relating to abuse of rights, on the grounds that those articles "were designed to protect democratic regimes against totalitarian conspiracies", while the Greek regime did not act to protect rights and freedoms. The Commission did not rule on this question because the derogation was deemed invalid on other grounds, but a separate opinion by Felix Ermacora explicitly recognized that the Greek regime abused its rights.[120][121][122]

Imposing martial law, arbitrary suspension of judges and convictions of people for "acts directed against the national security and public order", were judged to constitute a violation of Article 6 (right to a fair trial).[31] The Commission found no violation of Article 7 over the constitutional amendment of 11 July 1967, alleged to be ex post facto (retroactive) law, because it was not enforced.[123] A violation was found for Article 8, as arrests were unnecessarily conducted at night in the absence of an actual emergency, disrupting family life.[124] Articles 9 and 10, guaranteeing freedom of conscience and freedom of expression respectively, were deemed to have been violated by censorship of the press.[125] For Article 11, which guarantees freedom of association, the Commission found that it had been violated as the restrictions were not "necessary in a democratic society". Instead, the restrictions indicated an attempt to create a "police state, which is the antithesis of a 'democratic society'".[117][126] Article 13, the requirement to have a legal remedy for violations, was violated due to flaws in judicial independence and lack of investigations into credible allegations of torture.[127] The authorities were judged to have violated Article 14 due to discrimination in the application of other rights such as freedom of expression.[125]

The Commission found "a flagrant and persistent violation" of Article 3 of Protocol 1, which guaranteed the right to vote in elections, as "Article 3 of Protocol 1 implies the existence of a representative legislative body elected at reasonable intervals and constituting the basis of a democratic society". Because of the indefinite suspension of elections, "the Greek people are thus prevented from freely expressing their political opinion by choosing the legislative body in accordance with Article 3 of the said Protocol".[31][128][117]

Shortly after the Commission received the report, it was leaked.[46][138] Summaries and excerpts were published in The Sunday Times on 18 November[141] and Le Monde on 30 November.[143][144] Extensive newspaper coverage publicized the finding that Greece had violated the ECHR and torture was an official policy of the Greek government.[46][138] The report echoed the findings of other investigations by Amnesty International and the US Committee for Democracy in Greece.[20] The reports made a strong impact on public opinion;[144][46][138] demonstrations against the junta were held across Europe.[145] On 7 December, Greece issued a note verbale to the Secretary-General of the Council of Europe denouncing the leak and accusing the Commission of irregularities and bias, which made the report "null and void" in Greece's opinion. Greece also claimed that the Commission leaked the report to influence the 12 December meeting.[146][77][86] The Commission's Secretariat denied responsibility for the leak; Becket stated that it "came from Greece itself and constituted an act of resistance by Greeks against the regime", according to "well-informed sources".[147] After the leak, British ambassador to Greece Michael Stewart advised Pipinelis that if the junta would not agree to a concrete timeline for democratization, it would be best to withdraw voluntarily from the Council of Europe.[141]

On 12 December, the Committee of Ministers met in Paris.[148] Because its rules forbade a vote on the report until it had been in the Committee's hands for three months,[138] the report, transmitted on 18 November 1969, was not discussed at their meeting.[46][138][141] Pipinelis, the Greek Foreign Minister, gave a lengthy speech in which he discussed the causes of the 1967 coup, possible reforms in Greece, and the recommendations in the Commission's report. However, since his audience had copies of the Commission's report, and Pipinelis did not give a timeline for elections, his speech was not convincing. Eleven of the eighteen Council of Europe member states sponsored the resolution calling for Greece's expulsion;[lower-alpha 5] a resolution by Turkey, Cyprus, and France to delay the vote was unsuccessful.[148] By this time, these states were the only ones opposing Greece's expulsion,[149][141] and it became obvious that Greece would lose the vote.[146][150]

Historian Effie Pedaliu suggests the United Kingdom's dropping its support for the junta in the Council process rattled Pipinelis, leading to his sudden reversal.[141] After the president of the Committee, Italian foreign minister Aldo Moro suggested a break for lunch, Pipinelis demanded the floor.[150][144] In a face-saving move,[140] he announced that Greece was leaving the Council of Europe under Article 7 of the Statute, pursuant to the junta's instructions, and walked out.[146][150][144] This had the effect of denouncing three treaties of which Greece was a party: the Statute, the ECHR, and Protocol 1 of the ECHR.[129][150][151]

The Committee of Ministers passed a resolution stating that Greece had "seriously violated Article 3 of the Statute" and had withdrawn from the Council of Europe, rendering suspension unnecessary. On 17 December 1969, the Secretary-General released a note verbale rejecting Greece's allegations against the Commission.[146] The Committee of Ministers adopted the report at its next meeting on 15 April. It stated the "Greek government is not prepared to comply with its continuing obligations under the Convention", noting ongoing violations. Therefore, the report would be made public and the "Government of Greece [was urged] to restore without delay, human rights and fundamental freedoms in Greece" and abolish torture immediately.[80][152][153] As Moro stated at the 12 December meeting, in practice Greece immediately ceased to be a member of the Council of Europe.[154] The country announced on 19 February 1970 that it would not participate in the Committee of Ministers as it no longer considered itself a member.[155] Pursuant to Article 65 of the ECHR, Greece ceased to be a party of the ECHR after six months, on 13 June 1970, and de jure left the Council of Europe on 31 December 1970.[156][151]

Pipinelis later told U.S. Secretary of State William Rogers that he regretted the withdrawal, as it furthered Greece's international isolation and led to more pressure against the junta at NATO.[141][lower-alpha 6] Greek dictator Georgios Papadopoulos issued a statement calling the Commission "a conspiracy of homosexuals and communists against Hellenic values",[129][158] and declaring, "We warn our friends in the West: 'Hands off Greece'".[158]