Thursday, 5 April 2018

Greek Supreme Court Ruling on the maxim ne impediatur legatio


Άρειος Πάγος, i.e. the Hellenic Supreme Court, issued its first ruling on the immunity of foreign states against execution. The judgment follows the path introduced by the German Constitutional Court in the famous Phillipinische Botschaft case from 1977 

[SC 29.11.2017, decision nr. 1937/2017, unreported] 

 THE FACTS


Appellant: K.P., a lawyer and legal counsellor of the Libyan State in Greece.
The appellee: The State of Libya [SoL], formerly the Great Socialist People’s Libyan Arab Jamahiriya

 The dispute began with the opposition filed before the Athens First Instance Court (FIC) on 31/8/2009 by the SoL against the attachment of its bank account in the National Bank of Greece by K.P. for the sum of 2.000.001 €. The opponent requested the annulment of the attachment because, 
     a. it was imposed on an asset not subject to seizure, and
               b. it is not in line with the leave of the Minister of Justice, granted in accordance with Article 923 Greek Code of Civil Procedure (CCP)[1].

The Athens FIC upheld the opposition and ordered the annulment of attachment[2]. The appeal of K.P. was dismissed[3]. Finally, K.P. filed an appeal on points of law. He invoked one of the standard grounds for a second appeal (cassation) in Greece, i.e. the erroneous interpretation of substantive law by the instance courts (Art. 559 point 1 CCP). 

THE RULING

I. The relevant law in question was the 1961 Vienna Convention on Diplomatic Relations, ratified from Greece by law decree Nr. 503/1970. Article 22.3 of the Vienna Convention provides that: "The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution".

II. The Supreme Court interpreted the above rule as follows: The purpose of the privileges and immunities established with the above, as well as other provisions of this Convention, is not to benefit individuals, but to ensure the efficient performance of the functions of diplomatic missions, in their capacity as representatives of a foreign State, as expressly stated in the preamble of the Convention. Those provisions, in conjunction with Articles 951[4], 1022[5] Greek CCP and 966[6] Civil Code, lead to the conclusion that assets not subject to attachment are also the ones located in Greece, and belonging to a foreign government, even if they do not form part of the diplomatic mission’s equipment, as long as they have been intended to serve other public purposes. 

Further on, pursuant to the resolution adopted by the Institute of International Law in 1954, which is prevailing international practice since then, it is exceptionally admissible to grant injunctions and impose enforcement measures only to those assets related to trade and economic activities of a foreign State. The same path is followed by the 2004 United Nations Convention on Jurisdictional Immunities of States and Their Property, based on the International Law Commission's 1991 draft, adopted by the UN General Assembly, which however has not yet entered into force; still, it is considered that it already codifies pre-existing customary law, establishing the rule of limited enforcement immunity as a rule of customary international law. 

Thus, it is  inter alia examined ad hoc and in concreto, whether state banks, or bank accounts in banks of the forum state, constituting ownership of a foreign State, do serve sovereign purposes (operational needs of a diplomatic mission), so as to enjoy immunity from execution, or trading purposes, which would lead to the opposite inference.

III. The SC referred subsequently to the judgment of the Athens CoA, which ruled as follows: "On 10/07/2009, K.P. seized in the hands of the National Bank of Greece the amount of 2.000.001 € from an account number belonging to the Great Socialist People's Libyan Arab Jamahiriya [Libyan government]. The bailiff’s attachment report was served duly on the defendant under Article 134 CCP[7], as evidenced by the pertinent service certificate. The attachment was founded on an enforceable title issued by the Athens FIC[8], ordering the defendant to pay the amount of 2 million € as lawyer’s fees. A writ of execution was served to the defendant again according to Article 134 CCP. K.P. requested and received the necessary leave by the MoJ (pursuant to Art. 923 CCP)[9], on condition that execution will not be carried out on things [immovable or movable] serving the exercise of sovereign power [imperium], or those serving other, i.e. cultural and / or educational purposes. On 20.07.2009, the National Bank proceeded to the declaration stipulated under Article 985 CCP[10], by virtue of which it certified the existence of the requested amount in the respective bank account of the defendant. 

The Athens CoA referred then to the evidence produced by the State of Libya in the first instance, i.e. a certificate of the accredited Ambassador of the Great Socialist People's Arab Jamahiriya in Greece, and the testimony of the witness, who was the superior Libyan diplomatic agent in the country: both certified that the seized account serves the operating expenses of the diplomatic mission / Embassy of Libya in Greece [payroll, rent, utility costs, etc]. In addition, it was evidenced that part of this sum is intended to be invested in the construction of a privately owned building for the Libyan embassy in Greece. Consequently, the enforcement was invalid, because the seized bank account was intended to finance the diplomatic mission, hence it serves sovereign duties of the Libyan government and enjoys immunity from enforcement under Article 22 of the Vienna Convention, which has been ratified both by the Hellenic Republic [1970] and the State of Libya [1977].

IV. Considering all the above, the Supreme Court held that the instant rulings did not err in the application and interpretation of the law [Articles 22.3 Legislative Decree 503/1970, in conjunction with Articles 951, 1022  CCP and 966 CC], and in the evaluation of existing evidence. In particular, and contrary to the assertions of K.P., the disputed seized bank account was intended to serve as a means of financing the diplomatic mission of the Libyan State; thus, it served the exercise of sovereign powers of the Libyan government.

COMMENTS

This is the first ruling of the Supreme Court dealing with the maxim ne impediatur legatio. Usually the efforts of judgment creditors against foreign states were hindered by the strict refusal of the MoJ to grant a leave for execution. Article 923 CCP has been considered as compatible both with the Greek Constitution and the European Convention of Human Rights. The ECHR issued two judgments in this respect: KALOGEROPOULOU and OTHERS v. GREECE and GERMANY [Case Nr. 59021/00, issued on 12/12/2002], and VLASTOS v. GREECE [Case Nr. 28803/07, issued on 16/04/2009]. The former forms part of the war reparations legal saga between relatives of Nazi atrocities victims in Greece and the Federal Republic of Germany; the latter is in much closer proximity with the Supreme Court ruling, since it is based upon similar facts, i.e. litigation of a Greek attorney at law against a foreign state for lawyer’s fees. The ECHR made no distinction between the two cases. In particular, in the Vlastos ruling, it simply made reference to its findings in the Kalogeropoulou case [see recitals 34-37 in the Vlastos judgment]. I expressed my hesitation to accept a verbatim interpretation in both cases, since I cannot understand how a solicitor’s fees case might destabilize the diplomatic relations of two countries, or at least as much as  the war reparations case, with its potential spill over effect [see note on the case VLASTOS v. GREECE,  Armenopoulos 2010, p. 282 et seq.].

However, as already noted, a leave was partially granted by the MoJ in the case at hand. Hence, the Supreme Court was confronted with a different set of issues. Admittedly, the ruling is devoid of a profound analysis in the subject matter. We found however a more in-depth elaboration in the CoA judgment: There, the court referred to a number of rulings issued in various jurisdictions [Germany, Austria, the Netherlands, USA, Italy, and Switzerland], in order to support its decision on a solid fundament.

The result is proving the major difficulties of judgment creditors against foreign states. The issue is of course not free from doubt, and a very good and up-to-date reading would be the thesis of Anja Höfelmeier, Die Vollstreckungsimmunität der Staaten im Wandel des Völkerrechts, Beiträge zum ausländischen öffentlichen Recht und Völkerrecht, Bd. 271, Berlin : Springer, [2018], especially pp. 185 et seq.


[1] Execution against foreign states may not take place without prior leave of the Minister of Justice’.
[2] Athens FIC 2386/2011, unreported.
[3] Athens CoA 1536/2013, Theory & Practice of Civil & Civil Procedure Law 2013, pp. 909 et seq., with note by MichaiIdis.
[4] On the enforcement of money claims.
[5] On the attachment of special assets.
[6] On non-fungible property.
[7] On the service of process abroad. Libya has not ratified the 1965 Hague Service Convention; there’s no bilateral convention in matters of judicial assistance between the two states.
[8] Decision 122/2008, unreported.
[9] Ministerial Decision Nr. 84485/ 25-6-2009, unreported.
[10] On the third-party declaration in garnishment proceedings.


Monday, 12 February 2018

Showdown for same-sex marriages in Greece



In a more or less anticipated outcome, the Supreme Court of Greece denied a certiorari sought by two Greek men, who concluded a civil wedding on the island of Tilos nearly 10 years ago. The court made a clear distinction between registered partnerships and marriage: Whereas the former is now open both to hetero- and homosexuals, the latter – so the Supreme Court – is not covered by Greek legislation. The final act is expected to take place before the ECHR. 



THE FACTS

On June 3, 2008, the mayor of the island of Tilos allowed the celebration of wedding of the appellants, two Greek men, in spite of intensive reaction coming both from the representatives of the Greek Orthodox Church and the Prosecution office. More info here


Following an action of the Prosecutor, the wedding was declared as non-existing by the Rhodes 1st Instance Court. An appeal of the couple before the Dodecanese Appeal Court remained fruitless. More info here


Litigation continued, reaching the Supreme Court. The hearing took place mid December 2016; the ruling was published late August 2017, putting an end to the gay wedding saga in Greece, at least for the time-being.More info here

THE RULING

Initially, the SC made reference to Articles 12 ECHR, 23 of the 1966 International Covenant on Civil and Political Rights, concluding that the above instruments do not give any guidance in regards to the question. It then passed to the famous definition given by Modestinus [Marriage is the union of male and female and the sharing of life together, involving both divine and human law]. The SC focused then on the Greek Constitution, referring to three provisions: Article 4.1 on equal rights; Article 5.1 on the right to develop freely one’s personality; and Article 21.1 on the protection of marriage by the state.

The SC concluded that none of the above provisions are infringed by the prohibition of same-sex marriage in Greece. In particular, the SC stated that sexual freedom, as part of the right protected under Article 5.1, is by no means violated; this becomes evident by the recent reforms on the issue of registered partnership, which is allowed for same-sex couples since 2015. This step however does not mean that same-sex couples are allowed to formalize their relationship by entering into a marriage. If the legislator wished to do so, he would have taken the necessary steps, by amending the pertinent provisions.

In addition, the wording under Article 1367 Greek Civil Code [the intending spouses] should not be construed as covering both heterosexual and same-sex couples. It is a construct which dates back to 1940, and it is self-evident that it refers solely to spouses of a different sex. Beyond that, it has been chosen for purely drafting purposes.

The SC is also aware of the recent case law of the ECHR with respect to the notion of family, which includes same-sex couples; still, the Court continues, the ECHR has not decided on the form which enables same-sex couples to be considered as a family, i.e. by registered partnership or any other fashion.

Finally, the SC acknowledges that many European countries have recognized same-sex marriages. However this could not be a reason for the court to grant the certiorari; this is rather an issue for the Greek legislator, who will weigh whether reforms should take place at a time he sees fit.

COMMENT

It wouldn’t be an exaggeration to say that nobody is taken by surprise with respect to the SC’s ruling. Given the socio-political landscape of the country, the prevailing role of the Greek Orthodox Church and the ambiguities in the law, it was a rather expectable outcome.

In light of this judgment, it is beyond any doubt that same-sex marriages stand no chance of being recognized in Greece; hence, they are excluded from the ambit of the Brussels II bis Regulation. Similarly, Greek courts are not expected to apply foreign law which refers to same-sex married couples (see in this respect Article 13 Rome III Regulation). Same-sex marriages are considered non-existing ipso facto, i.e. no court ruling is needed for declaring the marriage as null and void.  

It seems though that the ball will go to the court of the ECHR; this is at least what the appellants announced. The Hellenic Republic has proven its respect to the rulings of the European Court, most notably in regards to the case of Vallianatos and others v. Greece: Following the ruling of the court, which found a violation of Article 14 in conjunction with Article 8 ECHR, Greece amended its legislation on registered partnerships, by including same-sex couples in its field of application. Some might consider the latter being the final frontier for the country and the Greek society at large. Others might be more optimistic, given that many fortresses of the past have fallen within the last couple of years: Greece passed recently legislation on gender reassignment. In addition, the SC departed from previous rulings which found a public policy violation in the adoption of an adult [see here]. It remains to be seen for how long the ruling of the SC will stand the test of time.