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Proceedings against Greece under The European Convention of Human Rights

Published online by Cambridge University Press:  28 March 2017

Thomas Buergenthal
Thomas Buergenthal*
Affiliation:
State University of New York at Buffalo School of Law
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Extract

On September 20, 1967, the Governments of Denmark, Norway and Sweden instituted an action against Greece before the European Commission of Human Rights. The Netherlands took the same step on September 27, 1967. These proceedings were brought in response to a resolution adopted on June 23, 1967, by the Standing Committee of the Consultative Assembly of the Council of Europe which, on behalf of the Assembly, 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.”

Type
Notes and Comments
Information
American Journal of International Law , Volume 62 , Issue 2 , April 1968 , pp. 441 - 450
Copyright
Copyright © American Society of International Law 1968

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References

1 Council of Europe, Directorate of Information, Doc. C(67) 33 (20.9.67).

2 Council of Europe, Directorate of Information, Doc. C(67) 36 (27.9.67). In letters addressed to the Secretary General of the Council of Europe, dated Sept. 27, 1967, and Oct. 3, 1967, respectively, the Governments of Belgium and Luxembourg associated themselves, without formally becoming a party, with the proceedings instituted against Greece by Denmark, Norway, Sweden and The Netherlands. Council of Europe, Directorate of Information, Doc. C(67) 38 (29.9.67); Doc. C(67) 39 (3.10.67).

3 For text of Convention, see 45 A.J.I.L. Supp. 24 (1951). Art. 24 provides: “Any High Contracting Party may refer to the Commission, through the Secretary- General of the Council of Europe, any alleged breach of the provisions of the Convention by another High Contracting Party.” Art. 24 was invoked in this case because Greece, unlike the majority of states adhering to the Convention, has not recognized the jurisdiction of the Commission to receive private petitions.

4 The text of this resolution is reproduced in Council of Europe, Directorate of Information, Doc. B(67) 37 (26.6.67).

5 Austria v. Italy, Application No. 788/60, Decision of the European Commission of Human Eights of Jan. 11, 1961, 4 Yearbook of the European Convention of Human Eights (hereinafter cited as Yearbook) 116, 140 (1961).

6 Ibid. at 150-152; Greece v. United Kingdom, Application No. 299/57, Decision of the European Commission of Human Eights of Oct. 12, 1967, 2 Yearbook 186, 190- 192 (1958-1959).

7 Greece v. United Kingdom, Application No. 176/56, Decision of the European Commission of Human Eights of June 2, 1956, ibid. 182, 184.

8 See European Convention for the Protection of Human Eights and Fundamental Freedoms (hereinafter cited as Convention), Art. 27.

9 Austria v. Italy, Application No. 788/60, note 5 above, at 180-182; Greece v. United Kingdom, Application No. 299/57, note 6 above, at 190.

10 See Lawless v. Ireland, Application No. 332/57, Decision of the European Commission of Human Eights of Aug. 30, 1958, 2 Yearbook 308, 334 (1958-1959); Greece v. United Kingdom, Application No. 176/56, note 7 above, at 184.

11 It is quite possible that Greece will also interpose Art. 17 of the Convention as a defense. Art. 17 provides: “Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.” It is unlikely, however, that this defense will be sustained. Under the circumstances of the instant case, it might well be easier for the adversaries of the Greek Government to charge that it violated Art. 17 than it would be for Greece to validly rely on this provision.

12 Lawless v. Ireland (Merits), Judgment of the European Court of Human Eights of July 1, 1961, 4 Yearbook 438 (1961); 56 A.J.I.L. 187 (1962).

13 Yearbook at 472.

14 Ibid, at 472-474.

15 See “Lawless” Case, Publications of the European Court of Human Rights, Series B: Pleadings, Oral Arguments, Documents 1960-1961, pp. 81-82.

16 Ibid. at 82.

17 “ see Lawless v. Ireland, note 12 above, at 474.

18 Ibid, at 476-480.

19 ‘ ‘ Lawless'’ Case, op. cit. note 15 above, at 388.

20 Ibid, at 389.

21 Convention, Art. 28. These functions are carried out by a Sub-Commission consisting of seven members of the Commission, Convention, Art. 29. The proceedings before the Sub-Commission, which has broad investigatory powers, are very similar to those of a court of law. It receives the written submissions of the parties, hears their arguments and examines witnesses. The hearings held by the Commission and Sub-Commissions are not, however, open to the public. See Rules of Procedure of the Commission, Title II, Chapters II and III (Council of Europe, European Convention on Human Eights: Collected Texts §2 (1966)).

22 Convention, Art. 31.

23 Convention, Art. 32.

24 See Convention, Arts. 45, 46 and 48. As far as concerns the right to refer a case to the European Court of Human Rights, Article 48 of the Convention provides: “The following may bring a case before the Court, provided that the High Contracting Party concerned, if there is only one, or the High Contracting Parties concerned, if there is more than one, are subject to the compulsory jurisdiction of the Court or, failing that, with the consent of the High Contracting Party concerned, if there is only one, or of the High Contracting Parties concerned if there is more than one: (a) the Commission; (b) a High Contracting Party whose national is alleged to be a victim; (c) a High Contracting Party which referred the case to the Commission; (d) a High Contracting Party against which the complaint has been lodged.“

25 The Committee of Ministers is the governing body of the Council of Europe. See Statute of Council of Europe, Art. 13. Each Member State of the Council of Europe has one vote in the Committee of Ministers where it is represented by its foreign minister or his deputy

26 The members of the Commission sit on the Commission in their individual capacity. Convention, Art. 23. As is true of the Court, most members of the Commission are distinguished law professors or judges.

27 When discharging its adjudicatory functions under Art. 32 of the Convention, the Committee of Ministers acts by a two-thirds majority of its entire membership of 18 states. Curiously enough, however, a member of the Committee of Ministers retains its right to vote in a dispute to which it is a party. See Eules of Procedure Adopted by the Committee of Ministers for the Application of Article 32 of the Convention, Bule 2 (Council of Europe, European Convention of Human Eights: Collected Texts $4 (1966)).

28 Convention, Art. 32(2).

29 See Convention, Art. 50.

30 see Convention, Art. 54.

31 Statute of the Council of Europe, Art. 8. For text of Statute see 43 A. J.I.L. Supp. 162 (1949).

32 The Agreement Setting up an Association between the European Economic Community and Greece was signed at Athens on July 9, 1961, and entered into force on Nov. 1, 1962. An English text of this treaty may be found in 9 European Yearbook 452 (1961).

33 This resolution is reprinted in the official journal of the European Communities. See Amtsblatt der Europaischen Gemeinschaften, Vol. 10, No. 103, p. 2058 (June 2, 1967). For the debate preceding the adoption of this resolution, see Parlement European, Dfibats: Compte Rendu in Extenso des Stances, “Vol. VI/67, No. 91, pp. 11-20 (1967). A summary of this debate can also be found in The Times (late London ed.), May 9, 1967, p. 4, col. 7.

34 The Mixed Parliamentary Commission, consisting of Greek and European Parliamentarians, was established by the E.E.C.-Greeee Association Council (Dec. No. 1/63 of April 5, 1963) pursuant to the provisions of Art. 71 of the Association Agreement. See European Economic Community, Seventh General Report on the Activities of the Community (April 1, 1963-March 31, 1964), p. 260 (1964).

35 See, e.g., Written Question No. 108 of July 14, 1967, Amstblatt der Europäischen Gemeinschaften, Vol. 10, No. 243, p. 3 (Oct. 7, 1967).

36 New York Times, Sept. 29, 1967, p. 14, col. 3.

37 See Reply by the Commission of the European Communities of Sept. 22, 1967, to Written Question No. 108, Amstblatt der Europäischen Gemeinschaften, loc. cit. note 35 above. See also Statement of May 8, 1967, by Mr. Levi Sandri, Vice President ofthe Commission of the European Economic Community, Parlement European, D6bats, loc. cit. note 33 above, at 14-15.

38 All six E.E.C. Member States are members of the Council of Europe and, with the exception of France, parties to the European Convention of Human Eights.

39 It may seriously be doubted that the military take-over in Greece provides an adequate legal basis for the complete suspension of the Association Agreement because, beyond the vague preambular resolve “ to strengthen the safeguards of peace and liberty by jointly pursuing the ideal embodied in the Treaty establishing the European Economic Community,” there is no clause in this treaty upon which such action could validly be predicated.

40 New York Times, May 4, 1967, p. 4, col. 3.

41 The Times (late London ed.), May 6, 1967, p. 1, col. 5.

42 Ibid. On May 30, 1967, after winning a narrow vote of confidence on a censure motion which demanded the government's resignation for delivering a motor torpedo boat to Greece, the Norwegian Government declared that it would henceforth not supply Greece with any additional war materiel. New Tork Times, May 31, 1967, p. 12, col. 1. In giving this undertaking, the government apparently reversed its decision of May 22, 1967, in which it had stated that Norway would deliver to Greece six naval vessels that had been previously ordered. See ibid., May 23, 1967, p. 31, col. 3.

43 The policies of the Greek military regime have also come under attack in the United Nations. The U. N. Sub-Commission on Prevention of Discrimination and Protection of Minorities has drawn the attention of the IT. N. Commission on Human Bights to the situation in Greece resulting from “the arbitrary arrest, detention and ill-treatment of political prisoners, and the denials of human rights involved, for example, in censorship and prohibitions on the rights of assembly and free speech, since the coup d'Stat of April 21, 1967.” U. N. Monthly Chronicle, Vol. 4, No. 10, pp. 45-46 (November, 1967). On Feb. 20, 1968, the U.S.S.K. accused the Greek Government at a meeting of the XJ. N. Commission on Human Eights of mass terror and acts of torture. Similar charges, extensively documented, were also made in a paper submitted to the Commission by Amnesty International. New York Times, Feb. 21, 1968, p. 47, col. 1. The report on Greece by Amnesty International may also be found in its news release of Jan. 27, 1968.

44 By now any optimism on this score would certainly be misplaced because King Constantino's abortive coup and the diplomatic recognition received by the military regime from some of its NATO allies have certainly strengthened the regime's intransigence.

45 The New York Times reported, for example, that on Sept. 2, 1967, “Premier Constantine V. Kollias threatened tonight to sever trade relations with the Scandinavian countries if they persisted in what he termed their hostility toward the fourmonth- old Greek regime.” New York Times, Sept. 3, 1967, p. 4, col. 2.