Written response of Greece to the question put by Judge Cançado Trindade at the end of the public sitting held on 16 September 2011 (translation)

R ESPONSE TO THE QUESTION PUT TO G REECE
BY J UDGE C ANÇADO T RINDADE

1. It should first be recalled that the Special Supreme Court (SSC) does not rank as a
supreme court within Greece’s legal order. The SSC has a sui generis legal status in the Greek
system of courts. With its dual jurisdic tional role under Article100 of the 1975 Greek

Constitution, the SSC is regarded as an independent, non-permanent organ which is “a special court
rather than hierarchically supreme” or, to put it differently, does not form part of the hierarchy of
the Greek court system as a whole. Moreover, it is not a constitutional court .

2. As part of its function of removing uncertainty as to the existence of a generally accepted

international norm at a particular time, the SSC identifies or defines a 3ustomary rule of
international law “in the present state of development of international law” . In this area of the
SSC’s action, its judgments have only limited effect s. In practice, an SSC judgment is binding on

the other courts which have raised the specifi c question posed concerning the identification of
norms of international law, either by referral from th ose courts or at the request of the parties to a
case before them.

3. A judgment of the SSC does not have the force of res judicata erga omnes in terms of the

existence and content of the emerging internatio nal rule in question, perceived as such at a
particular point in time and in the context of the continuing development of international law. It is
thus for the ordinary courts or the SSC to de termine subsequently whether there has been any

change in the assertion that a customary norm exists.

4. There is an erga omnes obligation in so far as the judgment of the SSC is binding on any

court or administrative organ before which the same legal question is raised as that brought before
the SSC, namely that of identifying, “ at the same point in the development of international law, a
rule of a customary character”. In other words, an SSC judgment always reflects the considerations

of an opinio juris expressed “at the same temporal stage of development of international law and of
its generally accepted rules”.

5. The judgment of the SSC in Margellos and Others, No. 6/2002, concerned the massacre at
Lidoriki. It can hardly have any effect, and i ndeed has no effect whatever, on the judgment of the

Areios Pagos in the Distomo Massacre case, No. 11/2000, which was rendered prior to the SSC’s
judgment and concerned a different case. The Margellos judgment can thus have no legal
implications for the judgment of the Areios Pagos, delivered two years previously.

6. Judgment No.11/2000 of the Greek Court of Cassation, which upheld judgment

No.137/1997 of the Livadia Court of First Instance, is final and irrevocable. It is in force and
produces legal effects within the Greek legal order, remaining pending of execution.

1See J.Iliopoulos-Strangas, “Les décisions de lsuprême spéciale grecque et le ur mise en oeuvre”, at:

http://www.tribunalconstitucional.ad/docs/coloqui_justicia/10-JULIA%20I….
2See M.Kypraios, “The Special Supreme CourtThe Constitution (journal), 1997, pp.252, 278 and 279 (in
Greek); V. Skouris, “The settlement of constitutional conflicts in Greece”, 2, The Constitution, 1986, p. 187 (in Greek);
D. Tsatsos, Constitutional Law, Sakkoulas, 1993, 527 (in Greek); Houvard as, “The Special Supreme Court”, Nomiko

Vima (journal), 1976, p. 1045 (in Greek).
3See this wording in judgments Nos. 46/199 and 6/2002. - 2 -

7. While the Minister of Justice has not yet authorized the enforcement of the judgment of
the Livadia court ⎯ which remains an action for the Government ⎯ that does not signify that the

judgment is emptied of meaning and unenforceable. The fact is that the Distomo judgment remains
open.

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