Andrew and Hans, an Australian and an Austrian, were working hand in hand to prove this case despite the happenings of World War II.
How the world had changed, thought old Andreas.
Andrew inspected the school’s old records in Akrata. He could not find anything for Kostas, Yiannis, or for his father, Achilleas. There was nothing there for Maro or Vaso, as the girls saw the writing on the wall and did not apply to enter high school. He checked for Spiros and Viatriki. He also came up blank.
Andrew and Hans went to the senior high school in Patras. The clerk there advised them that there had been a fire in the depository where old records were kept and the documents the men were seeking had been destroyed.
Again, they had reached a dead end. Andrew and Hans sat down to take stock of the evidence and work out the next strategy.
Hans said, ‘Why don’t we turn to a politician who was aware of that fact and sympathetic to our cause? Whom shall we turn to?’
Andrew said, ‘They won’t help us for fear of their own position, but we will try.’
The men interviewed several politicians without success.
Ourania said to the men, ‘We have a nephew who was a teacher in Patras. Maybe he can help. He is your uncle from my side.’
They again went to Patras and met up with Dimitrios Prasinos. Prasinos could not help but suggested that there was a young teacher at the time by the surname of Mavroyiannis who had retired in his early sixties and might remember what had happened.
The retired teacher lived in Akrata. The men went to Akrata and found Mavroyiannis.
Mavtoyiannis said, ‘Of course, I remember the direction. All the teachers thought it was stupid. The headmaster told us to do what we were told, as he did not want trouble. I don’t remember all the names, but I do remember Achilleas because he was a local musician. We were told to reject him because his father was a communist. I was a very young teacher at the time. I had just finished university.’
Andrew said, ‘If I prepare the statement, would you be prepared to sign it and give evidence at the trial?’
Mavroyiannis said, ‘As long as I can say that the whole thing was a malakia [a wank].’
Both men laughed loudly.
Andrew said, ‘If that is your evidence, I will certainly put it in as you said it.’
Andrew and Hans were satisfied that they had gathered as much evidence as possible for Andrew to return to Australia and prepare his pleadings for the suit. He also had to consider the critical issue of which jurisdiction or which court he would commence the proceedings in.
Also, he had much work to do to put the matter together.
Time was of the essence, as his grandfather was ninety-six. If he died, he would not be awarded damages for pain and suffering if Andrew was successful in arguing his case.
Andrew had been away from his home for over nine months now. He said goodbye to his grandparents, uncle, aunt, and cousins.
Andrew and Hans drove back to Athens. They stayed in the Grande Bretagne Hotel for a few days before their respective flights home.
Andrew’s flight to Australia was at 3 p.m., and Hans had the 5 p.m. flight to Austria. On their last night together in the hotel, Andrew paid Hans 40,000 euros for his work, which was 10,000 more than they had agreed on.
Andrew said, ‘Will you join me at the trial?’
Hans said, ‘I would not miss that for the world.’
Andrew said, ‘If we win, both you and I will get a huge bonus from the communists.’
The men laughed, kissed and embraced.
_ _ _ _ _ _ _ _ _ _
SYDNEY, 1996
Andrew returned to Australia and spent time with his family, whom he had not seen for months. He then spent the next three months reviewing the evidence and preparing the application for the European Court of Human Rights in Strasbourg.
To ensure that the application was not rejected at the filing stage, he had to establish in the written evidence and pleadings that the rights that had been violated by the former king and the Greek State were:
•the right to life
•the right to a fair hearing in civil and criminal matters
•the right to respect for private and family life
•freedom of expression
•freedom of thought, conscience, and religion
•the right to an effective remedy
•the right to the peaceful enjoyment of possessions
•and the right to vote and to stand for election.
Andrew was satisfied that he could establish the facts and law to have the matter heard in the European Court of Human Rights. He then had to prepare pleadings for each of the elements from the Universal Declaration of Human Rights Convention.
When he carefully studied the document, he was confident that his grandfather had been the victim of breaches of articles 1–30 of the convention.
In addition, his pleadings included breaches of the law involving an abuse of power in public office and misconduct in public office, misfeasance in public office, assault, battery, false imprisonment and false arrest, and malicious prosecution.
All the pleading and evidence centred on intentional torts, which could entitle the court to award aggravated, exemplary, and punitive damages.
Andrew also included pleadings relevant to damages relating back to his time as a judicial officer and retained a financial expert to calculate his loss of income from 1947 until his likely retirement age of seventy-five years old, including interest and pension rights.
Andrew also retained an eminent psychiatrist from Germany to review his grandfather’s statement and come to the village to take a comprehensive clinical history from Andreas in order to prepare a report to support Andreas’s claim for pain and suffering.
He provided an extensive report proving the fact that from the history and symptoms Andreas had, he was suffering from undiagnosed depression, anxiety and post-traumatic stress disorder.
This diagnosis was from the effects of both world wars and what he had encountered in Greece from 1947 onwards, including the fact that five of his seven children migrated to Australia.
The psychiatrist made it clear in the conclusions to his report that the old man’s diagnosis of post-traumatic stress disorder (PTSD) was from a set of reactions that developed in people who had been through a traumatic event or events which threatened their life or safety or that of others around them.
This could be physical or sexual assault, war or torture, imprisonment or disasters such as famine. That person then experienced feelings of intense fear, helplessness, or horror.
In addition, Andrew used a cunning yet legitimate tactic. He researched a list of the most eminent psychiatrists in all of Europe who specialised in war and torture-related psychiatric illnesses, including PTSD. The list was twenty doctors.
Andrew sent each of them his grandfather’s statement and requested the doctors to provide a preliminary short report on the papers. Each doctor did so.
When the lawyers for the king and the state from London contacted each of the leading doctors, they were advised that the doctor had been previously briefed by the complainant’s lawyers and they had a conflict of interest to provide a report against Mr Kapelis.
The abuse and anger from the opposing lawyers relating to this play by Andrew could be heard from London. They had been outmanoeuvred.
The loss of income and his lost judicial pension with interest amounted to over 3 million euros.
The other compensation he sought was for aggravated, punitive, and exemplary damages for the conduct of the king and the state of Greece were really a matter to be assessed by the court and could not be quantified.
Andrew sat back and reviewed the statements many times for accuracy, spelling errors, and readability. He also considered carefully whether he would s
ue only the former king, only the state of Greece, or both.
Andrew believed he could sue both.
The rules of the court also made it clear that before an application was to be filed in its court, the complainant was to exhaust all legal avenue in his state, that being Greece, before he could have his matter heard in the European Courts of Justice.
Andrew had an argument to bypass this hurdle he wished to contend.
In simple terms, if he sued the former king of Greece, the remedies he sought could not be enforced against the former king if he was successful in obtaining damages, as he would be met with the defence of immunity for the monarch at the time of the breaches and there would be futility to commence the action.
That would trigger the European Courts’ jurisdiction.
Andrew had prepared several other arguments in anticipation of the hearing of the matter. He rang Hans and asked him to meet him in Athens in a few weeks to assist him in the matter.
Andrew packed his horsehair wig and gown, jacket, and jabot and prepared for Greece. He fell into a deep, troubled sleep, and his dreams were vivid and real.
He packed his bags at home and bid his family goodbye.
_ _ _ _ _ _ _ _ _ _
ATHENS AND STRASBOURG, 1996–1997
Andrew went straight to Athens and ensured that Diki had signed her statement. He then met up with Hans in Athens, and both men divided the work and obtained signed statements from all the other witnesses.
In the village, he sat down with his grandfather and thoroughly discussed the pleadings with him; his statement, which was amended several times before it was signed; and the procedures of the court in Strasbourg, where he was about to file the complaint.
His grandfather was impressed with the work Andrew had undertaken and the level of detail and complexity in the documents.
Although Andrew had taken Greek citizenship, he was not admitted to practise as a lawyer in Greece; however, Andrew had applied for and was granted a provision practising certificate in London, entitling him to appear as counsel in the European Courts.
Andrew said to his grandfather that, once he had filed the application, he should be prepared for a barrage of strikeout motions attacking the pleadings in order to defeat the action.
Also, various challenges on factual and legal grounds would occur in an attempt to say that the pleadings or evidence was bad and the whole matter should be struck out.
Within weeks of the complaint being made to the court and the service of evidence, the state and the former king advised the court that they had appointed senior lawyers from England known as Queen’s Counsel, who would be complimented with junior counsel and a team of attorneys supporting the advocates.
Andrew said, ‘On your side, Papou, you will have Hans, me, and justice.’
The old man nodded and said, ‘I know you will do your best. Justice is not a bad advocate to have on your side.’
Andrew and Hans had a few days’ rest before attending to the filing of documents with the court. They then travelled to Strasbourg and filed the documents.
Andrew returned to Athens with Hans and found a serviced office to operate from and rented a modest two-bedroom apartment in Athens.
Andrew had signed the application beneath his grandfather’s signature as ‘Andrew Kape, counsel for the complainant’ together with the address of the serviced office in Athens for service of court documents.
There was silence for three weeks. Andrew and Hans were preparing submission in anticipation of the legal storm brewing.
A month later, the court acknowledged the filing of the complaint and gave it a court file number under the court’s seal.
A few days after receiving the court’s notification of the matter, a top-tier legal firm from London was briefed to appear for the former king of Greece and entered their appearance on the record.
A week later, another top-tier legal firm from London advised Andrew and the court that they were appearing for the state of Greece.
Correspondence from both legal firms now commenced being sent in mounting volume to Andrew in Athens. The first few letters were benign and were simply of a procedural nature.
Both Andrew and Hans looked at each other in the office and said that the letters were ‘love and kisses’ letters before poisonous barbs would start.
Andrew did not advise his grandfather of the first level of correspondence that was received.
He had also put on an application that, given the age of his grandfather and the age of some of the witnesses, the matter should be expedited and heard over the backlog of other cases before the court.
Although the lawyers acting for the former king objected to the expedition order, the court ordered expedition if the complaint was determined as valid by the court. The Greek Republic simply said it was a matter for the court and did not put forward a contrary argument.
The complaints of violations by a member state and the former king of Greece were first heard by a committee of three judges, which could unanimously vote to strike out any complaint without further examination.
At this point, the former king of Greece resisted the complaint. The lawyers, coming from a common law country, asked to be heard in an oral hearing together with written submissions.
Andrew prepared for battle. Hans went with him to Strasbourg.
The three judges formed the court. The counsel for the former king argued that the former king of Greece was entitled to royal exception from suit. His lawyers argued that he had immunity from prosecution.
Andrew had his arguments ready. As Andrew rose to his feet, the counsel for the former king challenged Andrew’s right of appearance in the European court.
Andrew was prepared for this reckless argument. He produced copies of his practising certificate in Australia, his Greek passport, and a copy of his provisional practising certificate in Britain and the United Kingdom.
All three judges were not impressed with this unnecessary attack as to competence of counsel and asked the counsel for the former king to move on quickly.
Andrew was then asked for his arguments in reply. First, he argued that the former king of Greece was not a sitting monarch, so the immunity did not apply.
Second, he argued that no one was above the rule of law. At the time of some of the breaches alleged by Andreas Kapelis, the human rights declarations were valid and adopted by Greece.
Third, he argued that there was no principle in law in any country in the European Union that permitted the sovereign or former sovereign to exercise an unfettered power or discretion to abuse his power as sovereign.
The proposition espoused would make a mockery of the rule of law.
Fourth, the Constitution of Greece did not exclude him from suing or being sued.
Fifth, King Othon had taken the crown jewels back to Bavaria in the mid 1800s when he was exiled from Greece. All kings of Greece after that had never been crowned. It was necessary that a coronation ceremony take place, marking the formal investiture of a monarch and their consort with regal power, usually involving the ritual placement of a crown upon the monarch’s head.
The ceremony without the placement of a crown on the king’s head is known as an enthronement. There was no provision in the Constitution of Greece that enabled the king to rule without being crowned, and therefore, anything done by the king was unlawful, beyond power, and having no legal force or effect.
In fact, historically, other than the first king of Greece, King Othon, no other king of Greece had been crowned.
Sixth, the former king of Greece had previously brought an action in his own name in this court for compensation for property taken by the state of Greece after his exile.
Constantine had sued Greece at the European Court of Human Rights for 500 million euros in compensation for the seized property. He won a much smaller amount, receiving a m
onetary compensation of 12 million euros for the lost property.
Greece was not obliged by the court’s decision to return any lands. The court decision also ruled that Constantine’s human rights were not violated by the Greek State’s decision not to grant him Greek citizenship and passport.
Andrew argued that this case applied as the precedent to enable Kapelis to sue the king in his own right, and if he was entitled to sue, he was now estopped from arguing he could not be sued.
In any event, it was an abuse of the court’s process to now say he was beyond the court’s jurisdiction when he used the court to be compensated.
Also, the argument was put that the lands and properties he sued for were owned by previous monarchs of Greece in title. So if he could sue for land owned by his royal forefathers, then he would be liable for damage caused to any citizen by his forefathers.
The above were compelling arguments before the court and destroyed any anticipated argument from the lawyers of the former king that he could not be sued.
The judges were attentive to the arguments.
Andrew also argued that the matter be heard urgently.
The lawyers acting for the king in this suit were also the lawyers acting for the king in the previous suit and were embarrassed as they did not foresee that the previous action now exposed the former king to being sued in these proceedings.
The lawyers for the state of Greece were also pleased with the argument, as it meant that there was another party to the proceedings that might be found liable and could pay a proportion of the compensation sought by Andreas.
Neither the state of Greece nor the former king argued the statute of limitation; although the lawyers for the former king had prepared for that argument, because of the previous suit by the former king. The argument would have failed.
During the course of the arguments, the counsel for the former king advised him to abandon the limitation arguments as it would inflame the court and would not be seen as a legitimate argument given the precedent set by the other case.
Kapelis- The Hatmaker Page 18
