Τελικά, αποφάσισα να μην περιμένω και να αναρτήσω την εισήγησή μου από το διεθνές συνέδριο στη Σεούλ, στη Νότια Κορέα - στο οποίο τελικά δεν είχα πάει, μόνο στείλει την εισήγησή μου είχα (http://elinamoustaira.blogspot.com/2014/10/international-association-of-procedural.html)
Οι φωτογραφίες είναι από το συνέδριο που γίνεται από σήμερα μέχρι και την Κυριακή για τον Δομήνικο Θεοτοκόπουλο -
El Greco. Πήγα το απόγευμα και παρακολούθησα 2 1/2 εισηγήσεις..δυστυχώς δεν είχα χρόνο να μείνω περισσότερο. Επίσης δυστυχώς δεν μπορούσα να βγάλω καλές φωτογραφίες με το ipad μου, γιατί με σκοτεινή αίθουσα και φωτεινή οθόνη ..εξαϋλώνονται τα χρώματα και τα σχήματα στις φωτογραφίες. Το ίδιο εκνευρίζομαι και όταν προσπαθώ να φωτογραφίσω βιτρώ στις εκκλησίες: αδύνατον να απεικονίσω τα καταπληκτικά τους χρώματα.
Καταπληκτική εισήγηση: José Riello (Universidad Autónoma de Madrid), "El Greco y los extremos de un género: retratos "hechos de voz", retratos del natural, retratos infamantes"
The
Right to en Effective Enforcement and State Responsibilities (including
Transnational Aspects)
GREECE
Prof.Dr. Elina N. Moustaira
Universität Athen, Juristiche
Fakultät
General Comments
Enforcement of judgments is conceived as one of the 3
aspects of the legal protection that is guaranteed by the article 20 of the
Greek Constitution/1975.
Therefore,
the claim to enforcement is the claim that the creditor has against the state,
based on his enforcement title, for the realization of the necessary means of enforcement.
Accordingly, there is the obligation of the state to proceed by its organs/agents
to the acts of the enforcement.
This public law claim is not the same with the claim that is being enforced.
The latter is usually based on private law. Therefore, the enforcement officers
may never examine/control, neither at
the beginning nor during the enforcement procedure, whether the enforced claim does
exist and for that reason stay the enforcement procedure. This control is only
possible after a caveat is filed by the debtor (article 933 par. 1 Code of
Civil Procedure). If no caveat is filed, the individual acts of the enforcement
already realized, are considered as procedurally valid (article 159 Code of
Civil Procedure).
However,
the constitutionally guaranteed claim to enforcement presupposes the state
intervention in the private sphere of the debtor, especially in his
constitutionally guaranteed rights.
Some specific issues of the
enforcement procedure
The judgment does not become enforceable until the
time period for an appeal has expired without an appeal being lodged, or, if an
appeal is lodged, until judgment has been given on the appeal. The creditor may
obtain provisional enforcement of the judgment, bearing the risk to have to
repay amounts paid to him or to make compensation for losses suffered by the
debtor as a consequence of enforcement, if the judgment is later overturned on
appeal.
Provisional enforcement is obligatory for some
judgments (art. 910 Code of Civil Procedure), while others may never be
declared provisionally enforceable. It is in the discretion of the court to
permit provisional enforcement on the application of the judgment creditor
(art. 908 Code of Civil Procedure), if it considers that there are special
reasons to justify it,
or if delayed enforcement could cause harm to the creditor. The court will not
declare a judgment provisionally enforceable if that could cause irreparable
harm to the judgment debtor. According to the article 911 Code of Civil
Procedure, if the judgment debtor requests it, provisional enforcement may be
made dependent on the provision of security by the judgment creditor. The
judgment debtor can lodge adequate security himself and thus prevent
provisional enforcement, in case he applies to have a default judgment set aside
or in case he lodges an appeal within the time-limits prescribed by the law.
Enforcement is only possible when the enforceable
title has been served on the defendant – and/or third party (articles 926 I,
924 Code of Civil Procedure).
Judgment debtors should not be unnecessarily
threatened by enforcement at times set aside for sleep or specific reasons, as
religious worship. Nevertheless, special permission may be obtained from the
enforcement court for enforcement to take place outside normal hours (article
32 V Law 434/1976, article 34 Law 2010/1972, articles 929 III and 125 II Code
of Civil Procedure).
Search
and seizure: Greek law
protects the right to privacy and does not permit house search, except in
accordance with the law and in the presence of representatives of the judiciary
(article 9 Constitution).
If the bailiff has to force access, either because the
debtor refuses permission or because the debtor or a representative of his is
not present, the bailiff must engage the offices of one additional bailiff or
two adult witnesses (article 930 II Code of Civil Procedure). In case there is
a real threat of violence, the bailiff may call on the assistance of the force publique (article 292 II Code of
Civil Procedure and article 25 Decree law 1210/1972).
The Constitutional Bases of the
enforcement trials
The enforcement itself, for the satisfaction of
monetary claims, using the seizure and the public auction of all debtor’s
assets, is in conflict with the individual right of property (article 17 Constitution).
When
the seizure of movable assets (articles 953 ff Code of Civil Procedure) or the
enforcement of judgment ordering the rendering of movable objects (articles
941, 942 Code of Civil Procedure), requires search in the debtor’s (article 929
Code of Civil Procedure) or a third person’s domicile (article 982 Code of
Civil Procedure), protection of domicile’s refuge (article 9 Constitution) is
stepping back. In case body search of the debtor’s is permitted, in order to
discover money or other precious objects that could be seized (article 929 par.
1 Code of Civil Procedure), then there is an issue of human value’s offence
(article 2 par. 1 Constitution) as well as of violating the prohibition of
offending human dignity (article 7 par. 2 Constitution).
Furthermore,
while protection of the debtor by establishing a list of objects that cannot be
seized (articles 953 pars. 3-5, 982 par. 2 Code of Civil Procedure), until
fairly recently was connected to the idea of humanism, contemporary procedural
theory consecrates it as an institution constitutionally guaranteed. According
to the principle of respect to human value (article 2 par. 1 Constitution), the
institution of objects that cannot be seized must guarantee the minimum
necessary for the debtor’s life. This guarantee is also derived by the social
rights in a State, as for example the social right to health’s protection
(article 21 par. 3 Constitution). Furthermore, defining objects that cannot be
seized also protects the debtor’s family, according to the constitutionally
guaranteed social right to marriage and family’s protection (article 21 par. 1
Constitution).
In
all those cases, legal order has to weigh principles and rights already
constitutionally guaranteed. Since Greek Constitution does not follow an
hierarchical order, as far as individual rights are concerned, weighing of
priorities is often an issue of factual circumstances and has to be done with
objective criteria. The legislator has the competence to proceed to this
weighing of principles and interests, while legislating, but it is the judge
competent for the enforcement of a decision, he who has that duty, while
interpreting the law.
Abuse of right
Greek
case law as a rule denies the application of article 281 Civil Code in civil
procedural law. This article provides that the exercise of a right is forbidden
when it evidently supersedes the limits set by bona fide or bonos mores or the
social or economic aim of the right.
The situation changes when it is about abuse of right
at the enforcement procedure. In this case, the majority of courts do apply the
article 281 Civil Code in order to set limits to the enforcement, setting forth
as excuse, that the realization of the creditor’s claim against the debtor
constitutes exercise of a substantive right belonging to public law. Sometimes
they use in parallel the interpretative argument that article 281 Civil Code is
a general rule that is applied in all law branches, public and private.
Some courts, in parallel with article 281 Civil Code, also invoke article 25
par. 3 Constitution, on the ground that the constitutional order refers
generally and indiscriminately to the exercise of all rights, or article 116
Code of Civil Procedure.
In
theory, there are two opinions. According to the first, the article 25 par. 3
Constitution is applicable. It is a superior rule, prohibiting abuse of right
in all law fields, therefore in public as well as in private law. According to
the second opinion, the analogous application of article 281 Civil Code is also
possible.
There are voices, both in courts and in theory, which
deny both the application of the article 25 par. 3 Constitution in private law
relations, on the ground that the constitutional prohibition of abuse of right
only concerns the individual and social rights, as well as the extension of the
application of article 281 Civil Code in the field of procedural law. According
to that opinion, only article 116 Code of Civil Procedure could be applied.
Dominant is the opinion according to which, the
prohibition of the abusive enforcement may be derived directly from the article
25 par. 3 Constitution. Methodologically, it is thus explained: The creditor
has a public law claim (Vollstreckungsanspruch) against the state for the
realization of the necessary means of enforcement. The State has a
corresponding obligation to proceed by its organs to the acts of the enforcement.
This obligation appears as power of enforcement, towards the debtor, and
extends as far as at the limits of the obligation of the debtor towards his/her
creditor.
The individual procedural right to legal protection,
in the specific form of the claim to enforcement, is subject to the limitations
that all individual rights have. Therefore, the claim to enforcement may be
exercised only if it does not offend the prohibition of the abusive exercise of
the individual rights (article 25 par. 3 Constitution).
Garnishment of the debtor’s bank
account
The
validity of bank secret has never been questioned. In the past, and according
to a specific legislative provision (article 1 Decree Law 1059/1971, as formed
by the article 10 par. 1 Law 1858/1989), a specific bank secret had been
enacted, saying that “Every form of bank deposit is secret”, except in cases
foreseen in specific legislation and under strictly described requirements.
Following
the enactment of this provision, there was a discordance of case law. In 1975,
the majority of the plenary of Areios Pagos connected the bank secret to the
rule that certain assets cannot be attached and judged that the garnishment of
a debtor’s bank account is invalid. In 1993, again, the majority of the plenary
of Areios Pagos reiterated this judgment – in both cases there was a strong
minority.
The
authors were, almost unanimously, of the opposite opinion. They claimed that
since the power of execution of the judgment creditor is constitutionally
guaranteed (article 20 Constitution), the invalidity of the garnishment of the
debtor’s bank account could not be constitutionally tolerated.
The inferior courts totally aligned with the
interpretative stance of Areios Pagos, until 1996, when the first break happened,
which led to a new, opposite judgment by Areios Pagos.
The plenary of Areios Pagos, in its decision 19/2001,
judged that the legislative provisions which establish the secret of the
deposits in Greek Banks refer exclusively to the bank secret and not to the
admissibility of the bank account’s garnishment. An opposite interpretation, it
said, would be contrary to the article 20 par. 1 of the Constitution which
defines that everyone has the right to legal protection. The enforcement of
judgment a form of which is the garnishment of debts (articles 982 ff Code of
Civil Procedure) is included in that legal protection.
Greece having ratified the Treaty of Human Rights
(Decree Law 53/1974), the claim to enforcement of judgment is also derived by
the article 6 par.1 of this Treaty. According to the European Court for Human Rights’ case
law (arrêt Hornby/Grèce,
19.3.1997: « l’exécution d’un
jugement ou arrêt, de quelque juridiction que ce soit, doit être considérée
comme faisant partie intégrante du procès au sens de l’art 6 ».
Article 1 par. 1 of the Additional (First)
Protocol to the above mentioned Treaty of Human Rights (also ratified by Decree
Law 53/1974) guarantees that the right of every natural or legal person to the
enjoyment of its property, must be respected. According to the fundamental
decision of the plenary of Areios Pagos, 40/1998, this article safeguards
respect of every patrimonial right, whichever its nature might be. Consequently,
it protects the creditors’ claims, therefore also the right to their
enforcement. As a conclusion, prohibiting the garnishment of bank accounts
would also violate article 1 par. 1 of the First Protocol of the Treaty of
Human Rights.
Conservatory measures
Pending
a hearing on the merits, conservatory measures to preserve the position of the
plaintiff are available. An application for such measures may be filed even
before the commencement of proceedings on the merits.
It is
possible to proceed to a temporary seizure even when there is no court order, if
the creditor has an enforceable title (article 724 I Code of Civil Procedure).
Pending proceedings in another country, Greek courts may grant conservatory
measures to the applicant plaintiff. Competent court is the court of the place
where enforcement of the conservatory measures will take place.
The procedure is generally quick. If it is considered
necessary, conservatory measures may be granted on an ex parte application (article 687 I Code of Civil Procedure).
The applicant has to comply with a reduced burden of
proof of fact, the only requirement is to show a “probable” case.
The court must be satisfied that there is an urgent need to avoid imminent
danger (article 682 I Code of Civil Procedure). In case the conservatory
measures are granted before proceedings on the merits have been lodged, the
court can specify time within which proceedings should be commenced (article
693 Code of Civil Procedure).
In case of an abusive application by a creditor, which
may have led to a conservatory seizure of more debtor’s assets than needed to
satisfy the claim, the debtor can ask the court to limit the conservatory
seizure to specified assets (articles 702 III, 692 III, 951 II Code of Civil
Procedure).
Privileges of the State
A hot issue is that which concerns the procedural
privileges of the State. According to the law, the State and other legal
persons of public law receive a special procedural treatment in various issues.
Although this fact has been criticized by the theory of Greek Procedural Law
and Greece has been condemned more than once by the European Court for Human
Rights, the law has not been changed.
The Plenary of Areios Pagos decided in two cases
that the specific procedural privileges that the Agricultural Bank of Greece
had,
were violating the constitutional principle of equality (article 4
Constitution), since they were putting the Agricultural Bank’s creditors in
disadvantageous position, compared with that of other banks’ creditors.
Law Reforms of the last 20 years
During the last 20 years there have been reforms of
the law of enforcement, not all of which could be considered as needed or
really efficient. However, some of them really were beneficent to the
institution of enforcement of judgments.
Law 2298/1995, “sealed” by the eminent jurist, late
Emer. President of Areios Pagos, Stefanos Matthias, had as principal aims, on
the one hand to obstruct the abusive handling by the enforcement agents and on
the other hand to accelerate the enforcement procedure and make it more
efficient.
An important step to the acceleration of the enforcement
procedure was the establishment of the corrective caveat (article 954 IV Code
of Civil Procedure) and its separation from the general caveat against the
execution (article 933 Code of Civil Procedure).
Law 3714/2008 brought radical changes to the public
auction procedure.
The recent procedural reform by the Law 3994/2011 had
as result lenient interventions to the enforcement of judgments. Among the most
important are the abolishment of imprisonment for commercial debts and the
considerable increase of the amount of the monetary penalty.
The protection of the weak parties constitutes a
steady aim of the contemporary legislator.
Enforcement of foreign judgments
In
order that a foreign judgment be declared enforceable, the defeated party must
not have been deprived of the right to defense and generally of the right to
participation in the trial, except if this deprivation is based on a law
provision that is also valid for the citizens of the State a court of which has
issued the judgment (article 323 no 3, 905 par. 3 Code of Civil Procedure).
This
requirement refers to those cases, where a party files an application asking
for a foreign judgment issued abroad ex parte to be enforced. The
declaration of enforceability of the ex parte judgments cannot be excluded,
although it does create problems.
Ordre Public
In
Greek law, the control of whether a party was not deprived of the right to
defense, before the foreign court, is complemented with the ordre public
control. It is pointed out that the recognition of foreign ex parte judgments
is possible, provided that “the foreign judge does not appear as having tried
inconsiderately all those that had a legal interest to be heard, either
nationals of the State or not”,
since in that case the judgment would be contrary to the ordre public.
A
basic requirement for a foreign judgment to be declared enforceable, is that it
must not be contrary to the bonos mores or the ordre public of the State of
enforcement (articles 323 no 5, 905 pars. 2-3 Code of Civil Procedure). It is
not possible to deny the recognition or the declaration of enforcement of a
foreign judgment, on the ground that it would be contrary to the ordre public
of a third State.
Ordre
public is an indeterminate concept, which becomes determinate in concrete cases
and not beforehand. According to the Greek authors, followed by the case-law, a
foreign judgment is contrary to ordre public when its enforcement would cause
circumstances incompatible to the moral, state or economic order of Greece.
The reasons, for which a foreign judgment would be contrary to ordre public,
could be either of procedural or of material law -
verfahrensrechtlicher ordre public
and materiellrechtlicher ordre public.
1.For a foreign judgment to be considered as contrary to
the Greek procedural ordre public, it is not enough that procedural principles
of the Greek procedural law have been violated; the violated principles must be
the fundamental ones of a State of law, concerning the civil procedure and the
infrastructure of the Greek procedural ordre public.
Such fundamental principles are the principle of the judge’s independence and impartiality,
the principle of hearing of both sides,
the principle of the parties’ equal treatment, the principle of due process,
etc.
According
to the majority opinion in theory, rather followed by case-law too, the
respondent abroad may claim before the Greek court which has to decide on the
enforcement of a foreign judgment that has violated fundamental rules of the
Greek procedural law, that it is contrary to the Greek ordre public, only when
this default could not have been invoked by appeal before the foreign courts.
The
fact that issues of the law of evidence are treated differently abroad, does
not constitute by itself a reason for non-recognition of a foreign judgment,
considering it as contrary to the Greek procedural ordre public.
For
example, the fact that the foreign court took into account testimonies of
witnesses who, according to the Greek procedural law would be exempted, or the
fact that it did not take into account testimonies by witnesses who, according
to the Greek procedural law would not be exempted, cannot be an obstacle to the
declaration of enforcement of a foreign judgment, claiming that it would be
contrary to the Greek ordre public. Neither the different distribution of the
burden of proof, nor the valuation of evidence according to procedural rules
that are different to the respective Greek procedural rules, could lead to that
result.
Likewise,
when a foreign judgment was issued, based on evidence brought during the
pretrial discovery, according to the Greek theory it should not be denied
enforcement in Greece.
Concerning
the specific issue of whether a foreign judgment which does not state the
grounds that led to it, can be declared enforceable in Greece or should be
considered as contrary to public order, Greek authors support both answers,
while Greek case law is rather positive, except in cases where non stating the
grounds could cover a deprivation of the right to defense or a settlement of
the dispute that would be contrary to the Greek ordre public. The basic
argument in favor of this opinion is that, although the grounds of the courts’
judgments are constitutionally guaranteed (article 93 par. 3 Constitution
1975/1986/2001), the judgments that do not state the grounds are not
nonexistent (article 313 Code of Civil Procedure), on the contrary they are
enforceable except if legal remedies have been lodged.
2. The recognition or the enforcement
of a foreign judgment is not excluded in case the foreign judge applied a
different substantive law from the one that would be applicable according to
the Greek private international law rules. The declaration of the
enforceability of a foreign judgment is only obstructed when the concrete rule
applied by the foreign judge is incompatible to the fundamental principles of
the Greek legal order. According to the Areios Pagos case-law,
a foreign judgment is contrary to the Greek ordre public when its consequences
are directly contrary to the valid in Greece fundamental principles, concerning
the social, moral, economic, political and other common concepts that regulate
the lives of people in the Greek territory.
A foreign judgment could be considered as contrary to
the Greek material public order and thus non-enforceable, if for example its
consequences violate individual rights protected by provisions of the Greek
Constitution or if it condemns the defeated party to do something that
according to the Greek law would be criminal.
Closing
my text let me add that as far as the enforcement of judgments in the frame of
EU Regulations is concerned, the situation in Greece is identical with that in
every Member State of the European Union.
(Note: Areios
Pagos is the Supreme Court of Greece in Civil and Penal Cases).
Πηγαίνοντας προς το Μουσείο για το συνέδριο, γύρω στις 5, ο ουρανός, κατεβαίνοντας την Πειραιώς, ήταν υπέροχα κιτρινοκόκκινος! Η φωτογραφία - το Γκάζι - (πάλι το πολύ φως απέναντί μου έφταιγε μάλλον) βγήκε μίζερη...
