COUNCIL OF EUROP E
EUROPEAN COMMISSION OF HUMAN RIGHTS
DECISION OF THE COMMISSIO N
AS TO THE ADMISSIBILITY
of Application No . 4448/70
by the Governments of
Denmark, Norway and Sweden
against the Government of Greec e
0
The European Commission of Human Rights sitting in private
on 16th July, 1970, under the presidenc-t of i'lr
.
J .E .S .
FAWCETT
(Rules 7 and 9 of the Rules of Procedure of the Çommission) and
the following members being present
;
MM . M .
S~2Pr 1TS EN
F . ERM.,CORA
F . CASTBERG
G . SPERDUT I
Vi . F .
de GAAY FORTMAN
P . P . O'DONOGHUE
P . 0 . DELAHAYE
T . B . LINDAL -
E . BUSUTTI L
B . DAVER
NIr .
A .
B . McNULTY, Secretary
to the Commission, assisted
by MM. K . ROGGE, K . CHRYSOSTONIDES
and E, REUTER .
.
Having regard to
:
- the application lodged on 10th April, 1970, under Article 24
of the Convention, by the Governments of Denmark, Norway and
Sweden against the Government of Greece and registered on the
same day under file No . 4448/70 ;
- the respondent Government's written observations of 17th
April, 1970, on the admissibility of the application ;
-
..the applicant Governments' observations in reply of 19th
May, 1970 ;
. /
D3£3 .630
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4448/70 -
2
- the Commissio n's partial
decision
of 26th May, 1970, on the
admissibility of the application, by which the Commission
:
(1) decided that it was, and remained, competent ratione
temporis to deal with the application, an d
(2) invited the respondent Government to submit, within a
time-limit of four weeks, its written observations
in reply to the applicant Governments' submission of
19th May that the condition of exhaustion of domestic
remedies does not apply to their allegations
;
- the Secretary's letter of 29th May informing the respondent
Government of the above decision and inviting it accordingly
to submit its observations before 26th June, 1970 ,
Noting that no communication has been received from the
respondent Government,
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Having deliberated,
THE FACT S
I .
Whereas
the facts presented by the applicant Governments
may be summarised as follows :
On 27th March, 1970, a trial of 34 persons accused of
subversive activities opened before the Extraordinary Court
Martial in Athens . The Court was composed of an appeal court
judge, who had been appointed lieutenant-colonel for the trial,
as president, and four officers of the rank of majors as members .
An officer of the rank of colonel acted as prosecutor
.
The defendants, who were said to have been members of the
illegal organisation . "Democratic Defence", were D . Karageorgas,
G .A . Mangakis, I . Staraiçis, S . Loukas, I . Kambotiatis, D . Kotsakis, •
A . Wilias, A . Mihalakeas, Ch . Protopappas, Vassiliou ,
E . Deloukas, D . Konaris, N . Konstantopoulos, V . Zografou ,
Ch . Rokofyllos, V . Stavropoulou, C . Tsakareskos, I . Papadopoulos,
C . Maniatis,
G .
lordanidis, P . Kapageroff, Th . Papamangaris ,
Th . Pakos, P . Andritsakia, B . Papazissis, P, Papadopoulos ,
M. Mihopoulos, Ath . Miha.lakeas, F . ,i ssaelidou, P . Tsangarakis,
G . Kosmos, Th . Matsoulas, C . Droutsas and E . Titsopoulos .
The .investigation had been opened in July 1969 after an
explosion had taken place at the home of Karageorgas, who was
then a Professor of the Panteios School of Advanced Economic
and Political Studies . According to the indictment this
explosion, which severely injured Karageorgas, took place
while he was setting a time-bomb,
4448/70
On the opening day of the trial, counsel for the defence
read-out statements by Karageorgas, Mangakis and .Vassiliou
.
alleging that these defendants had been tortured during the -
investigation and, on 30th March, the Court heard the evidence,
of Dr . .Kapsaskis, Director of the Athens Forensic Medical
Service, on these allegations .
. .
Various motions by the defence, including a request for an
adjournment of the trial in order to be able further to study
the case-file, were dismissed by the Court .
During the subsequent proceedings a large number of witnesses,
both Greek and foreign, were heard by the Court .
On 8th April, the Public Prosecutor requested the death
.penalty for Karageorgas and life imprisonment for Mangakis,
Starakis, Loukas and Kambotiatis .
By judgment
of 12th April, 1970, the Court sentenced
Karageorgas'to life imprisonment and Mangakis, Starakis and
Loukas to 18 years' imprisonment . Kambotiatis, Kotsakis, Wilias,
A . Mihalakeas, Protopappas, Vassiliou, Deloukas, Konaris,
Konstantopoulos, Zografou, Rokofyllos, Sta;vropoulou, Tsakareskos,
I . Papadopoulos, Maniatis, Iordanidis, Kapageroff ; Papamangaris,
Pakos, Papazissis, P . Papadopoulos, Mihopoulos and Missaelidou
received prison sentences ranging from 1 year to 15 years . . The
execution of these sentences was suspended in the cases of
Zografou, Rokofyllos, Stavropoulou, Maniatis, P . Papadopoulos,
Mihopoulos and Missaelidou . Andritsakis ; Atb,
M-ihalakeas,
Tsangarikis, Kosmos, Matsoulas, Droutsas and Nitsopoulos were
acquitted .
4P
II . With regard to the above proceedings, the applicant Govern-
ments allege violations of Articles 3 and 6 of the Convention .
They submit in .particular
1 . As regards Article 3, that the defendants were kept in strict
isolation in dark cells and that at least twelve of them were
subjected to torture during the investigation . The applicant
Governments refer to the above-mentioned statements by Karageorgas,
Mangakis and Vassiliou and to further declarations made befor e
the trial court by Kotsakis, Konstantopoulos and Rokofyllos
.
They also submit copies of statements by Loukas, Kambotiatis
and Papazissis, pointing out that these defendants were not
permitted to put their complaints before the court, and they
invite the Commission to hear the evidence of Starakis who -
was sentenced to 18 years' imprisonment but subsequently
pardoned and-expelled from Greece .
The applicant Governments indicate that some of the said
statements concerning torture were published in Athens
newspapers, such as "To Viraa", "Fthnos" and "Athens News",
and quoted in reports of foreign observers who attended the .,
trial . Cuttings from the "Athens News" and reports by foreign
observers have .been submitted to the Commission .
4.448/7 0
According to the above documents, in particular the
detailed statements of nine defendants is the -trial of the 34,
copies of which have been filed by the applicant Governments,
various methods of torture - often combined in one and th e
same case - were used by Greek officials during the investigation
.
The commonest form were severe beatings and kicking on all .
parts of the body, including the head and the genital organs
.
"Falanga" (beating of the feet with a stick or bar) was also
used . Some defendants were for several days deprived of food
and water and prevented from sitting or lying down . There
were threats of execution and one defendant, who had been
tortured, was forced, by threats concerning his wife, to
.declare
in public that he was well treated .
The purpose of this torture was, according to the above
statements, the extraction of information, including confessions,
concerning the political activities and associations of the
victims and other persons considered to be subversive . The
officials concerned belonged to the Greek Military Police
,
the Athens Suburban Gendarmerie and the Athens and Piraeus
Security Police (Asphalia) .
2 . With regard to Article 6 of the Convention, the applicant
Governments allege violations of the right to a fair trial by
an independent and impartial tribunal established by law .
Referring to the documents submitted, they complain that '
the defendants were not tried by an ordinary court
but by an extraordinary court martial under extra-
ordinary legislation,;
- they were denied the opportunity to prepare their
defence properly ;
- one of the defence lawyers, Mr . G .B . rIangakis,was
threatened with criminal proceedings by the president
of the trial court after he had raised the question
of torture on behalf of his clients ;
- the court refused to hear further statements and
evidence concerning the defendants' allegations of
torture .
III . The applicant Governments maintain that the condition of
exhaustion of domestic remedies laid down in Article 26 of the
Convention does not apply to the present application, the object
of which is to have determined the compatibility with the
Convention of certain administrative practices and legislative
measures . They submit that their allegations under Article 3
concern a practice of torture and ill-treatment of political
prisoners in Greece and that their allegations rudder Article
6
of the Convention relate to a trial .:which was bas.ed on extra-
ordinary legislation . They also state that, moreover ;, there
are no domestic remedies available to the defendants or the
applicant Governments with regard to the above complaints
.
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IV, The respondent Government, which was invited by the
Commission to reply to the above observations of the applicant
Governments concerning the condition of exhaustion of domestic
remedies, has .failed,to make any submissions ,
T H1,] LAW.
Whereas
the Commission , by its partial
decision of
26th
May, 1970,
on the admissibility of the
application,
decided that it was , and. remained -,
competent ratione tempori s
to deal with the application ;
whereas ; , . in the same decision,
the Commission
i nvited the respondent Government to submit
its observations on a further issue,of-admissibility ,
namely
the question whether the condition of exhaustion of domestic
remedies applies in. the present
case ;
.whereas
the latter
decision was taken in view of Article 26 of the Convention
• which , provides that the Commission may deal with a case . only„' .
"after all domestic remedies have been exhausted
,
according,
to the generally recognised
. rules of in-ternational law" ;
whereas the Commission , noting that no observations have
been•made
. by the respondent Government on the issue of domestic
remedies ,
has-considered whether this question should neverthe-
less be examined ex officio ;
whereas, in this connection, .
it has had regard to its previous jurisprudence and to the
.
established purpose of the domestic remedies
'
rule ;
whereas_
'
this . rule is founded. on the principle that the respondent
State must first . have an opportunity : tp ;redress the situation
complained of by its own means and within the framework of
its own domestic legal system ; ' whereas it follows that the
main purpose of the rule is to protect the domestic lega l
system and the respondent State is best qualified to judge
the expediency of availing itself of, this opportunity
;
whereas it is true that the Commission, 'when considering
applications-lodged by individuals under Article 25 .of the
Convention which have not been communicated for observations
to the Government concerned, examines ex officio any questions
arising with regard to the domestic remedies' rule ; whereas,
however, the 'situation is different where a Government, invited
to submit observations on this issue, clearly waives its right
to make use of this defence ; whereas, in "such â case, the
"generally recognised. rules of internatiônal law" in the
matter absolve the Commission from pronouncing on the question
of domestic remedies ; whereas, in this respect, reference-is
made to the Commission's decision on the admissibility of
Application No . 1994/63 -(Yearbook of. the- European Conventio n
,on
Human Rights , Vol . 7,
pages 252, 260)
;
4448/70 -
6
whereas, in the '.resent case, the respondent Government
was similarly invited to submit observations on the issue of
domestic remedies but has failed to make any submissions
;
whereas, in the circumstances, the Commission has found it
proper to consider ex officio whether . the condition of
exhaustion of domestic remedies applies to the applicant
Governments' allegations under Articles 3 and 6 of the Convention
;
whereas , with regard to their allegations under Article 3,
the . applicant Governments submit that these concern an administra-
tive practice of torture and ill-treatment of political prisoners
in-Greece and that ; consequentljr, they fall outside the scop e
of the domestic remedies' rule ; whereas it is true that,
according to'the Commission's constant jurisprudence, the
condition of exhaustion of domestic remedies does not appl y
where an application raises, as a general issue, the compatibility
with the Convention of `legislative measures
and administrative
practices" ; whereas, in this respect, the Commission refer s
to its decision on admissibility in the First Cyprus Case
(Yearbook of the European Convention on Human Rights, Vol . 2,
pages 182, 184) and its two decisions on admissibility in the
First Greek Case (Collection of Decisions of the Commission
,
Vol . 25, pages 92, 114-115, and Vol . 26, pages 80, 106, 110-111) ;
Whereas, with regard to the present complaints under
Article 3 of the Convention concerning an alleged practice of
torture and ill-treatment of political prisoners in Greece ,
the Commission observes that, in the First Greek Case, the
present applicant Governments similarly alleged the existence
of such a practice and cited as examples the cases of a number
of in .'..ividuals ; whereas, in that case, the Ccw7 ission
after an investigation by a Sub-Commmission (Articles 24, para-
graph (a), and 29, paragraph (1), of the Convention), found
it "established that
. , there has since April 1967 been a
practice of torture and. ill-treatment by the Athens Security
Police, Bouhoulinas Street, of persons arrested for political
reasons" (Rep)ort of 5th November, 1969, Vol, II , Part 1 ,
page 421) ; whereas, in respect of . the case :; of 17 other,
individuals, in which the Sub -Co=nission had been prevente d
'by the respondent Government from completing-. its investigation,
the Commission stated that the evidence before it of torture
or ill-treatment having been inflicted ranged from indications
and the establishment of prima facie cases to strong indications
(ibidem page 422) ; whereas, in these 17 cases, the Greek
authorities concerned were not only the Athens Security Police
but also the Piraeus Security Police, the Sîilitary Police and
the Central Intelligence Service ; and ~iwThereas the Committe e
of Ministers, when. dealing with the First Greek Case in its
Resolution DH (70) 1 of 15th April, 1970, on the basis of the
Commission's above Report, agreed with the Commission's opinio n
as to Article 3 of the . Convention and urged the respondent Govern-
ment "to abolish immediately torture and other ill-treatment of
prisoners" ;
./ .
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whereas the Commission finds that the present
allegations unCer .Article 3 of tL••e Convention, if
subst^nti-toc, muot be c :-n,3idered further proof of
practice of torture and ill-treatment of political prisoners
which, in the First Greek Case, has been found by the Commission
and the committee of ministers to exist in Greece ; whereas~it
follows that, in accordance with the Commission's jurisprudence,
the condition of exhaustion of domestic remedies does not apply
to these allegations which concern an administrative practic e
of the respondent Government ; whereas, . therefore, the allegations
cannot be rejected for non-exhaustion of domestic remedies in
accordance with Articles 26 and 27, paragraph (3), of the
Convention ;
whereas , with regard to their allegations under Article 6,
the applicant Governments submit, that these relate-to a trial
before an extraordinary court martial in -Greece and to the
special legislation creating such courts ; further, that th e
• Governments' object is to have determined the compatibilit y
of this legislation with the Convention and that, consequently,
the condition of exhaustion of domestic remedies again does
not apply ;
whereas, in this connection, the Commission has had regard
to its findings under Article 6 in the First Greek Case ;
whereas, in that case, the Commission, referring to the function-
ing of the extraordinary courts martial in Greece and to the
special legislation creating them, observed that these courts
were not independent and that political offenders were treate d
on an arbitrary basis (Report of 5th November, 1969, Vol . I,
Part 1, page 177) ; whereas, in the same case, the Commission
also considered the position of the defence in trials before
these courts and found that it had been prevented by the
respondent Government from fully establishing the facts (ibidem
page 178, paragraph 327)
;
whereas the Committee of Ministers of the Council of Europe,
when dealing with the First Greek Case in its Resoluti m
DH (70) 1 of 15th April, 1970, on the basis of the Commission's
Report, agreed,with the Commission's opinion as to Article 6
of the Convention and referred to certain proposals which had
been made by the Commission, in accordance with Article 31,
paragraph (3), of the Convention, when it transmitted its
Report to the Committee ; whereas, in that part of the proposals
which was published by the Committee of Ministers as an appendix
to the above Resolution, the Commission stated inter alia :
"The jurisdiction of courts martial should be limited
to charges against members of the Armed Forces and charges
against civilians of offences against the security of the
Armed Forces, whereas the ordinary criminal tribunals should
alone be competent to try other criminal charges against
civilians, including all charges of offences against public
order or national security . Proceedings before courts martial,
as well as before ordinary criminal tribunals, should be in
accordance with Article 6 of the Convention which implies that
the rights of defence shall be strictly observed ."
4448/7 0
whereas the Commission finds that the present allegations
under Article 6 of the Convention, together with the documentary
evidence submitted, again raise the question of-the special
legislation in force in Greece in the field of the administration
of justice ; whereas it follows that, in accordance with the
Commission's jurisprudence, the condition of exhaustion of
domestic remedies does not apply to these allegations which
concern legislative measures of the respondent Government
;
whereas, therefore, the allegations cannot be rejected for
non-exhaustion of domestic remedies in accordance wit h
Articles 26 and 27, paragraph (3), of the Convention ;
whereas there
are no other grounds for declaring the
application inadmissible ;
Now therefore the Commission
DECLARES THE APPLICATION ADMISSIBL E
Secretary to the Commission Acting President of the Commission
(A . B . leTo\TULTY) (J, E . S . FAWCETT)
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