Chapter 4 - Application of Arts. 28 and 31 of the Convention in the circumstances of the present case
50. The Commission, noting the respondent Government's refusal to participate in the proceedings provided for by Art. 28 of the Convention, has considered the procedure to be followed in the circumstances of the present case.
51. Following its decision on the admissibility of the applications, the Commission had a double task under Art. 28:
- under para. (a), with a view to ascertaining the facts, it had to "undertake together with the representatives of the parties an examination of the petition(s) and, if need be, an investigation, for the effective conduct of which the States concerned shall furnish all necessary facilities, after an exchange of views with the Commission";
- under para. (b), it had to "place itself at the disposal of the parties concerned with a view to securing a friendly settlement of the matter on the basis of respect for Human Rights as defined in this Convention".
52. Where proceedings in an admitted application are not terminated by such a friendly settlement, or by a Commission decision under Art. 29 of the Convention or Rule 49 of its Rules of Procedure, the Commission further, under Art 31 of the Convention, has to "draw up a Report on the facts and state its opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention".
53. Neither the Convention nor the Commission's Rules of Procedure contain an express provision for the case where a respondent party, as in the present, applications, fails to co-operate in the Commission's proceedings under Art. 28. In dealing with this situation under Art. 28 the Commission has therefore had regard to its practice in previous cases and, in particular, to the procedure followed in the First Greek Case. Moreover, although their functions under the Convention differ in some respects, the Commission has also noted Rule 49 of the Rules of the European Court of Human Rights .
54. The Commission first observes that, in carrying out its task of establishing the facts of a case, it has to seek the parties' co-operation. This is clear from the terms of Art. 28 (a) which provides that the Commission shall undertake an examination of the petition "together with the representatives of the parties" and further states that the States concerned shall, after an exchange of views with the Commission, furnish all necessary facilities for any necessary investigation.
Art. 28 (b) further obliges the Commission to place itself at the parties' disposal with a view to securing a settlement.
55. It does not follow from either of these provisions, however, that a respondent party's failure to co-operate in proceedings under Art. 28 could prevent the Commission from completing, as far as possible, its examination of the application and from making a Report to the Committee of ministers under Art. 31 of the Convention .
56. The above considerations are in conformity with the procedure adopted by the Commission in the First Greek Case and the Commission has followed the same procedure in the present applications, noting that the following elements are common to both cases:
- the respondent Government fully co-operated at the admissibility stage;
- an investigation under Art. 28 (a) of the Convention, though incomplete, was carried out. The Commission recalls in this connection that, in the First Greek Case, the Sub-Commission decided to terminate its visit to Greece on the ground that it had been prevented from hearing certain further witnesses and from inspecting a detention camp and a prison ; during the subsequent proceedings the respondent Government refrained from submitting oral or written conclusions to the Sub-Commission .
57. The Commission has also had regard to the procedure which it adopted in the Second Greek Case, in its "Report on the Present State of the Proceedings" of 5 October 1970. Paras. 18 to 20 of that Report read as follows:
"18. It is a general principle of judicial procedure in national legal systems, as well as before international tribunals, that a respondent party cannot evade the jurisdiction of a competent tribunal simply by refusing to take part in the proceedings instituted against it. It is a general principle of judicial procedure that a competent tribunal may give judgment by default. The Commission is of the opinion that this principle should also apply to its own proceedings in appropriate circumstances. If this were not so, a respondent party might find it too easy, and might even feel encouraged, to evade its obligations under the Convention simply by not entering an appearance before the Commission. To that extent, it may therefore be necessary to depart from the strict adherence to the above-mentioned principle, according to which the findings of the Commission should be based on submissions and evidence presented by both parties. The Commission would, however, even in such circumstances have to satisfy itself that the information before it is sufficient to express a well-founded opinion. There could be no question of automatically finding in favour of the applicant, irrespective of the circumstances of the case.
19. In the present case the circumstances are of a very particular nature. The Commission Finds it necessary to recall that the denunciation of the Convention by the respondent Government and its withdrawal from the Council of Europe took place at a time when the Committee of Ministers had before it a proposal for the suspension of Greece from membership in the Council. After the Greek Government had announced its decision to withdraw, the Committee of Ministers on 12 December 1969 adopted Resolution (69) 51 in which it expressed its understanding that this Government would abstain from any further participation in the activities of the Council of Europe as from the same day, and concluded that on this understanding there was no need to pursue the procedure for suspension. Moreover, the Chairman of the Committee of Ministers reported to the Consultative Assembly of the Council of Europe on 29 January 1970 that it was the opinion of the majority of the Ministers' Deputies at their 186th Session that, from the date on which the above Resolution was adopted, 'Greece, while formally remaining a member of the Council of Europe until 31 December 1970, must be considered as being suspended de facto from its rights of representation, so that it can no longer take part in the work of the Council of Europe'.
20. Against this background, the refusal of the Greek Government to take part in the proceedings instituted before the Commission by the applicant Governments in the present case appears in a different light from the situation which might typically be expected to exist when a respondent Government fails to appear before the Commission. The general reasons which would normally prompt the Commission to 'give judgment by default', as indicated in paragraph 18 above, do not carry the same weight in the present circumstances, where the refusal of the respondent Government to appear before the Commission may in some way be connected with the general relationship between the Council of Europe and Greece."
58. The Commission considers that the circumstances described in the above Report are substantially different from the procedural situation in the present applications. It notes in this respect that Turkey, the respondent Party in these applications, is a member State of the Council of Europe and a High Contracting Party to the Convention on Human Rights, which continues to co-operate in the Committee of Ministers in matters relating to the application of this Convention.
59. The Commission therefore does not find it appropriate in the present applications to address an interim report to the Committee of Ministers. It concludes that it has the task to draw up a Report under Art. 31 of the Convention on the basis of the material now before it.