Abstract
This paper will consider Greek procedures for obtaining and rendering international co-operation in serving documents, taking testimony, obtaining non-official tangible evidence, proving official documents, and determining foreign law.
The Project wishes to express its profound gratitude to the Hellenic Institute of International and Foreign Law and to its Director, Professor Dr. Pan J. Zepos, for their review of the final draft of this report.
LL.B ., University of Athens, 1953 ; Dr, iur., University of Hamburg, 1959; Author , Die Übernahme der Haager Regeln in die Nationalen Gesetze Über die Verfrachterhaftung (thesis 1960) ; Member of th e Athens Bar.
B.A., Brooklyn College, 1957 ; LL.B., Columbia, 1961, Articles and Reviews Editor, Columbia Law Review, 1960-61; M.I.A., Columbia, 1964 ; Assistant District Attorney, New York County.
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The following abbreviations are used in the footnotes
Books
Greek Bilateral — Ehrenzweig A., Fragistas CH., Yiannopoulos A., American-Greek Private International Law (New York 1955)
Evrigenis — Evrigenis D.,’ H έφαρμοϒή του άλλοδαπου διϰαίου (THE Application OF Foreign Law) (Thessaloniki 1956)
Kafkas — Kafkas K.,’ Evoϰιϰòν δίϰαιον (Law OF Obligations) (3d ed., Athens 1961)
Kitsikopoulos — Kitsikopoulos A., IIoλιτιϰή διϰονομία. (Civil Procedure) (Athens 1934-53)
Maridakis Enforcement — Maridakis G.,’ H έϰτέλɛσις άλλοδαπων άποφάσɛων (THE Enforcement OF Foreign Judgments) (Athens 1946)
Oeconomides &Amp; Livadas — Oeconomides Bo’ Eϒϰɛιρίδιον πολιτιϰης διϰονομας (Handbook OF Civil Procedure) (7th ed. by Livadas M., Athens 1924-26)
Rammos — Rammos G., Στοιϰɛία πολιτιϰης διϰονομίας (Elements OF Civil Procedure) (2d ed. Athens 1953)
Rammos IN Glasson — Glasson, Tissier & Amp; Morel, Σύστημα πολιτιϰης διϰονομίϰς (System OF Civil Procedure), translated and annotated by Rammos G. (Athens 1931-35).
Rlezler — Rlezler E., Internationales Zivilprozessrecht (International Civil Procedure) (Tübingen 1949)
Streit &Amp; Vallindas — Streit G. & Vallindas P.,’ Iδιωτϰóν διɛϑνές διϰαιον (Private International Law) (Athens 1937)
Zepos — Zepos P.,’ Eνοϰιϰòν δίϰαιον, Eίδιϰóν μέρος (Law OF Obligations, Special part) (Athens 1953)
Courts
AP Areopagus (Greek Supreme Court) App. Court of Appeal CS Council of State (Highest Administrative Court) Distr. District Court
Periodicals
AR. N.’ Aρϰɛιον νομολοϒίας (Archives OF Judicature) (Legal review, since 1950)
E.D.’ Eλληνιϰή διϰαιοσύνη (Greek Justice) (since 1960)
Eean’ Eϕημɛρίς λληνιϰης ϰαί áλλοδαπης νομολοϒίας (Journal OF
Greek AND Foreign Judicature) (since 1881)
Eempd’ Eπιϑɛώρησις έμποριϰου διϰαίον (Commercial Law Review) (since 1950)
Een’ Eϕημɛρίς’ Eλλήνων Nομιϰϖν (Greek Lawyers’ Journal) (since 1950)
NoB Nομιϰϲν Bημα (Legal Tribune) (since 1953)
Rev. Revue Hellenique DE Droit International (since 1948)
TH. Θέμις (Themis) (Legal review, 1890-1956)
Decrees: L.D. Legislative Decree P.D. Presidential Decree R.D. Royal Decree
Statutes: BouR. Code of Civil Procedure (A. N. Bouropoulos 7th ed., Athens 1960)
Code Civ. Proc. Code of Civil Procedure Code Crim. Proc. Code of Criminal Procedure Cod. TH. Codex Themidos (Code of Themis) (Athens 1890-1955)
Gen. Cod. General Codification of the whole of Greek Legislation now in force (Zacharopoulos. ed., Athens 1931)
G.G. Gazette of the Government of the Kingdom of Greece Rapt. Permanent Code of Legislation (P. Raptarchis ed., Athens), currently published in fortnightly issues These collections of statutes, with the exception of G.G., are unofficial.
Code Civ. Proc. art. 145(6).
Code Crim. Proc. art. 457.
The most important part of administrative litigation concerns taxes. Article 64(1) of the Code of Taxation Procedure provides for service on persons domiciled abroad. If no representative for service has been appointed in Greece, the document is delivered to the Minister of Foreign Affairs to be transmitted to the addressee abroad.
Article 457 of the Code of Criminal Procedure speaks of service of summonses and subpoenas only. See note 15 infra and accompanying text.
The Greek state attorney is comparable to a district attorney in the United States. However, while his main function is to act as public prosecutor in criminal cases, he also acts as liaison officer between his court and other state authorities, gives legal opinions to other state authorities, and exercises supervision over clerks of his court, notaries public, registrars of births, marriages, and deaths, custodians of mortgage records and similar officials in his district.
Act of October 19, 1838, arts. 1 & 2, Bour. 366, 2 Gen. Cod. 359; Act 4952/1931, art. 214, Cod. TH. 1931, 414.
The courts have repeatedly so construed Article 145 (6). See AP 50/1962, 3 E.D. 183, 10 NoB 571; AP 247/1951, 18 Een 680, 62 Th. 491; App. Nauplia 98/1952, 64 Th. 116. In none of these cases was it clear that the defendant did not have actual notice of the proceedings against him, but the language of these opinions indicates that the court may hold the service valid even if the defendant is completely unaware of the proceedings. Article 146 of the new draft of the Code of Civil Procedure, presently under study by the Greek Bench and Bar, provides that “in the case of persons residing abroad, service is deemed to have been effected at the moment of delivery of the document to the state attorney regardless of the time it was sent to and received [by the addressee].”
The Greek consul who mails or delivers the document is required to obtain a receipt and return it to the Ministry of Foreign Affairs for transmittal to the court, but the receipt is not necessary for proof of service.
Legislative Decree 96/1941, art. 1, Bour. 43, Cod. TH. 1941, 221.
Legislative Decree of September 4, 1925 (Act 3887/1928) art. l(i), Bour. 448. Under Greek law, an action is instituted by filing a complaint with the clerk of the court. The clerk sets a date for a hearing, and a summons and a copy of the complaint are served on the defendant. At the first hearing, the court hears legal arguments and decides whether, assuming the facts to be as plaintiff has stated them, he has a claim for relief. If the defendant fails to appear at this hearing and judgment is entered against him, he may obtain a reopening of the case as of right, regardless of whether he was properly served. The demand to reopen the case must be filed with the clerk of the court within 8 days (in proceedings in the court of the peace within 5 days) from the date on which the judgment was served on the party who defaulted. Code Civ. Proc. arts. 505, 596. If the litigant resides outside of Greece, this period is extended by 60 days from the date on which the summary of the judgment was published for the last time in the daily press. Code Civ. Proc. art. 596(3). However, in the Areopagus, after a default at the first hearing, no retrial is allowed. Code Civ. Proc. art. 827.
Articles 148-153 of the Code of Civil Procedure provide who may be appointed as a duly authorized representative and how an appointment is made.
Code Civ. Proc. art. 148(4).
AP 431/1940, 52 TH. 41; App. Athens 1254/1955, 23 Een 913, 3 NoB 546; App. Athens 2059/1947, 67 Eean 102 (note by A. Baltatzis). “ Code Civ. Proc. art. 145(7).
Thus, the procedure in civil cases differs from that in criminal cases in two respects: First, in civil cases the document is delivered to the state attorney for the trial court, while in criminal cases it is delivered to the state attorney for the court of appeals. Second, in civil cases the state attorney transmits the document directly to the Ministry of Foreign Affairs, while in criminal cases the state attorney transmits it to the Ministry of Justice.
Cod. TH. 1931, 414.
Cf. Opinion of Areopagus State Attorney 2/1938, 5 Een 153.
See notes 165-168 infra, and accompanying text.
Act 2069/1920, 11 Gen. Cod. 690.
Treaty on mutual judicial assistance in cases of civil and commercial law and in inheritance cases [hereinafter cited as Treaty with Czechoslovakia]., Act 3829/1929, Bour. 439.
Treaty on the regulation of mutual judicial assistance in civil and commercial cases [hereinafter cited as Treaty with Switzerland], Act 729/1937, Bour. 434.
Convention between His Majesty in respect of the United Kingdom and His Majesty The King of the Hellenes regarding Proceedings in Civil and Commercial Matters [hereinafter cited as Treaty with Great Britain], Act 730/1937, Bour. 480, Great Britain Treaty Series NO. 5, 1938.
Treaty on mutual judicial assistance in civil and commercial cases [hereinafter cited as Treaty with Germany], Act 1432/1938, Bour. 486.
Treaty between the Popular Federal Republic of Yugoslavia and the Kingdom of Greece on their mutual judicial relations. Ratified by L.D. 4009/1959, G.G. A 238 of 1959.
Art. 1.
Art. 3(a).
Art. 1.
Art. 8.
Art. 7.
Treaty with Switzerland art. 2; Treaty with Czechoslovakia arts. 9(b), 9(c); Treaty with Germany arts. 2, 3.
Treaty with Switzerland art. 9; Treaty with Czechoslovakia art. 10; Treaty with Germany art. 6. The treaties do not define compulsion, and it is not clear whether the term denotes merely physical coercion or whether it also covers threats of official sanctions.
Treaty with Great Britain art. 3(e); Treaty with Yugoslavia art. 16.
Treaty with Great Britain art. 4.
Treaty with Switzerland art. 3; Treaty with Czechoslovakia art. 9(e); Treaty with Germany art. 5; Treaty with Yugoslavia art. 16(2).
Treaty with Great Britain art. 3(h).
One of the treaties applies both to Austria and to Hungary.
Treaty on mutual extradition of criminals, Act 3100/1905, 2 Gen. Cod. 10.
Treaty on mutual extradition of criminals and procedure to be applied in extraditions, Act. 2999/1904, 2 Gen. Cod. 13.
Treaty on extradition and judicial assistance in the administration of criminal justice, Act 3611/1928, 4 Gen. Cod. 40.
Treaty on mutual extradition of criminals, Act 3155/1906, 2 Gen. Cod. 22.
Treaty on mutual extradition of criminals, Act 3223/1907, 2 Gen. Cod. 25.
Same as treaty with Austria. See note 37 supra.
Treaty on mutual extradition of criminals, Act 692/1878, 2 Gen. Cod. 31.
Treaty on extradition of criminals and judicial assistance in criminal matters, Act 1250/ 1938, Cod. TH. 1938, 328.
Treaty on mutual extradition of criminals, Act 3154/1906, 2 Gen. Cod. 37.
See note 41 supra.
Treaty on extradition, Act 4032/1912, 2 Gen. Cod. 28.
Treaty on extradition and judicial assistance in cases of criminal law, Act 1999/1939, Cod. TH. 1939, 820.
See note 24 supra.
Treaty provisions as to the manner of transmittal vary. 51 Act 4218/1961, G.G. A 171 or 1961.
Art. 26(1).
Art. 15(4).
Art. 7(1).
Art. 7(2).
Code Crim. Proc. art. 174(2). This is not expressly stated in the Code, but results from the general rule stated in Article 170 that a court may consider only the allegations of the parties.
For civil actions, see Code Civ. Proc. arts. 503, 592, in conjunction with Legislative Decree, September 4, 1925, art. 13, Act 4288/1929, Bour. 414, Cod. TH. 1929, 535. See also Code Civ. Proc. art. 827 (2); AP 431/1940, 52 TH. 41, AP 604/1955, 4 NoB 284, AP 403/1960, 27 Een 851, AP 390/1961, 10 NoB 77. There is no specific provision in the Code of Criminal Procedure requiring the court to discontinue hearings until service has been validly effected. The requirement is, however, implicit in articles 154(2) and 166(3) of the Code of Criminal Procedure, which provide that the proceedings are null and void if the service on one or more of the parties was improper. In taxation proceedings, the above rule is expressly stated in article 91(2) of the Code of Tax Procedure.
The Greek Supreme Court.
The highest administrative court, comparable to the French Conseil d’Etat.
See Code Civ. Proc. art. 807(5); Code of Crim. Proc. arts. 510(a), 510(b); The State Council Act (Act 3713/1928), art. 42(3), as codified by R.D. Feb. 6, 1961 G.G. A 22 of 1961.
Legislative Decree of September 4, 1925 (Act 3887/1928), art. 3, Bour 448. 62 See note 10 supra.
Act 4952/1931, art. 89(1) (Iii), Cod. TH. 1931, 414, amplified by Act 5518/1932, Cod. TH. 1932, 449.
AP 240/1960, 27 Een 499; AP 717/1958, 8 NoB 402; AP 218/1937, 219/1937, 220/1937, 4 Een 675-77. Certain types of cases, such as workmen’s claims arising out of their employment relations, are tried under a simplified procedure that permits the judge to disregard the rules of evidence contained in the Code of Civil Procedure and to accept information from whatever sources he may deem reliable. See Act 3974/1911, as amended and codified by Royal Decree dated August 1, 1920, Bour. 404.
Code. Civ. Proc. art. 249(4).
Code Civ. Proc. arts. 133(4), 339; Code Crim. Proc. art. 151.
Code Civ. Proc. art. 135; Code Crim. Proc. art. 153.
Code Civ. Proc. art. 133(2); Code Crim. Proc. art. 151(2).
App. Patras 38/1957, 5 NoB 686; App. Patras, 746/1951, 22 Een 458 (note by D. Evrigenis); Pres. Distr. Thessaloniki 86/1961, 14 Rev. 250, 28 Een 236 (note by E. Krispis).
App. Thessaloniki 859/1955, 78 Eean 526 (semble).
Article 457(1) speaks only of requests by Greek judicial authorities. But article 327(2) of the Code of Criminal Procedure provides that the accused, in addition to calling witnesses at his own expenses, may request that the state attorney call one or, in major crimes, two witnesses designated by the accused at the state’s expense, and that the state attorney is obliged to comply with the request. In such a case, Article 457(1) would also apply indirectly to requests by the defense.
Art. 60(5)(d), Act 4952/1931.
See note 20 supra.
See note 23 supra.
See note 22 supra.
See note 21 supra.
See note 24 supra.
See note 37 supra.
See note 38 supra.
See note 39 supra.
See note 40 supra.
See note 41 supra.
See note 42 supra.
See note 43 supra.
See note 44 supra.
See note 45 supra.
See note 46 supra.
See note 47 supra.
See notes 48 and 24 supra.
See note 51 supra.
Treaty with Germany art. 8; Treaty with Switzerland art. 4(1); Treaty with Great Britain art. 7(c). The Czech and Yugoslav treaties provide that the letters rogatory must be submitted by the Greek Ministry of Justice to the foreign Ministry of Justice. Treaty with Czechoslovakia art. 8; Treaty with Yugoslavia arts. 7, 12(1).
Art. 8(1).
Treaty with Yugoslavia art. 9.
Treaty with Czechoslovakia art. 11(a).
Treaty with Great Britain art. 7(b).
Treaty with Czechoslovakia art. 11(b); Treaty with Germany art. 13; Treaty with Switzerland art. 5(2); Treaty with Great Britain art. 7(d); Treaty with Yugoslavia art. 11.
Art. 14. This treaty implements article 89 of Act 4952/1931, which permits the consul to examine a witness abroad without any limitations based on nationality, provided he does not act contrary to international or local law.
The provisions of articles 7 and 8 of the Treaty with Great Britain are not limited to the taking of testimony. Both articles speak of “taking evidence,” which, according to Article 6(b) (1), “Shall be deemed to include the taking of the statements of a plaintiff, defendant, expert or any other person on oath or otherwise; … and the production, identification and examination of documents, samples or other objects.”
Treaty with Great Britain art. 8(a).
Id. art 8(b).
Id. art 8(d).
Treaty with Czechoslovakia art. 11(c); Treaty with Switzerland art. 5(3); Treaty with Germany art. 10(2); Treaty with Great Britain art. 7(e); Treaty with Yugoslavia art. 13(2).
Treaty with Czechoslovakia art. 8; Treaty with Switzerland art. 4 (3) (1); Treaty with Germany art. 8(2); Treaty with Great Britain art. 7(h); Treaty with Yugoslavia art. 14(1).
See, e.g., Treaty with Belgium art. 15; Treaty with France art. 15.
See, e.g., Treaty with Belgium art. 15; Treaty with France art. 15.
European Convention art. 15(1).
Id. art. 15(2).
Id. art. 14.
Id. art. 3(1).
Id. art. 3(2). The request must be honored unless compliance would be contrary to the law of the requested authority.
App. Patras 567/1951, 3 AR.N. 487. See 2 Kafkas, Law OF Obligations 584; 1 Ram-Mos, Elements OF Civil Procedure 535 n. 46; Zepos, Law OF Obligations 710-11. See also AP 377/1950, 61 TH. 697.
See Kitsikopoulos 3712 art. 431 nn. 36-37 and authorities cited, “a Code Civ. Proc. art. 429.
Civil Code art. 902.
Commercial Code art. 14.
Act 3329/1955 art. 2(1) (c), G.G. Part A Issue 230 of 1955.
See Kitsikopoulos 3726 art. 434 n. 4.
Code Civ. Proc. arts. 432(2), 1020(7). This detention is not penal punishment. It is what is called in French “contrainte par corps.”
Id. art. 432(2).
id. arts. 280(2), 281.
See, e.g., Act 202/1936 art. 4. Cod. TH. 1936, 660 and Code Crim. Proc. art. 262(2), both of which prohibit disclosure of documents deposited with the Ministry of Foreign Affairs without special authorization by the Minister of Foreign Affairs and the Minister of Justice. Also, under article 262(3) of the Code of Criminal Procedure, if one of the persons enumerated in article 212 of the Code (such as an attorney-at-law)declares that a document in his possession contains a professional secret, he may not produce it; but if the investigating magistrate does not believe the declaration, he may ask the Board of the Bar, Medical, or other association, as the case may be, to investigate and determine whether the document contains a professional secret. The Board’s decision is binding. Investigations in the office of the accused’s attorney are prohibited. Article 49(3) of the Lawyers’ Code, Act 3026/1954, G.G. A 235 of 1954.
Treaty with Czechoslovakia art. 11.
Treaty with Germany arts. 7-14.
Treaty with Great Britain art. 7(a). See note 98 supra.
Treaty with Switzerland arts. 4-7.
Treaty with Yugoslavia arts. 7-14.
Art. 457 (1).
See notes 36-49 supra.
Article 3(3) of the European Convention provides that the requested authority may send photocopies of documents unless specifically requested to send the originals.
Cf. Code Civ. Proc. art. 386.
1d. arts. 424-425.
Although there is no specific provision in the code authorizing their use, such statements are commonly used to prove that no will was made, that a judgment was not appealed, that a person was never convicted of a crime, or that land is free of mortgages.
See AP 121/1951, 4 Rev. 410. Article 29 of the Treaty on Judicial Assistance with Yugoslavia regulates in detail the manner of authentication of official documents from one country for use in the other.
For a detailed discussion, see Evrigenis and Greek Bilateral 66-67 cited in the preamble to these footnotes.
1 Maridakis 257-66; 1 Rammos 263; Evrigenis, supra note 134; Oeconomides &Amp; Livadas § 167 n. 8.a.
See Distr. Rhodes 231/1954, 22 Een 618, and cases cited; Distr. Rhodes 401/1950, 4 Rev. 221 (note by A. Bournias); Distr. Rhodes 492/1949, 18 Een 70 (note by I. L. Z[aoussis]).
AP 442/1958, 6 NoB 1143, 25 Een 864; AP 590/1955, 4 NoB 280, 23 Een 31, 107; AP 439/1954, 2 NoB 975, 21 Een 800 (note by A.P. Zolotas); AP 246/1953, 1 NoB 361; AP 192/1942, 54 TH. 99; AP 303/1931, 42 TH. 755; AP 178/1929, 40 Th. 573, and references cited in Greek Bilateral 66 n. 334.
In criminal proceedings and in civil cases tried under acts providing for a simplified procedure, in which the court may investigate all the facts on its own motion and is not limited to the evidence produced by the parties, the court may also investigate and determine foreign law on its own motion.
AP 189/1956, 23 Een 731; AP 192/1942, 54 TH. 99; AP 339/1930, 42 TH. 113; AP 178/1929, 40 TH. 573.
AP 360/1938, 5 Een 780, and cases cited note 137 supra.
See cases cited note 137 supra.
AP 439/1954, 2 NoB 975, 21 Een 800 (note by A.P. Zolotas); AP 207/1936 47 TH. 790; AP 400/1931, 43 TH. 38.
AP 189/1893, 4 TH. 323; App. Athens, 1074/1932, 44 TH. 429; Distr. Athens 22665/ 1960, 12 Eempd 202; Kitsikopoulos at 1957, art. 245 n. 34.
App. Athens 1271/1956, 76 Eean 222 (note by Evrigenis); App. Athens 603/1941, 53 TH. 161; App. Thessaloniki 859/1955, 78 Eean 526; P?. Distr. Athens 2310/1956, 4 NoB 1054; Distr. Rhodes 401/1950, 4 Rev. 221 (note by A. Bournias).
Code Civ. Proc. art. 746.
Id. art. 250.
Id. art. 747.
Judicial marshals are unsalaried officials appointed by the Ministry of Justice. Their duties include service of documents and enforcement of judgments within the district of the district court for which they have been appointed. Act 2238/1940 art. 1, G.G. A 89 of 1940.
Code Civ. Proc. art. 141(2).
Id. art. 141.
See Code Crim. Proc. arts. 437-438 and note 188 infra.
These provisions do not apply to: (1) to service on an infant or incompetent which is effected by delivery of the document to the father or guardian, Code Civ. Proc. art. 145(1); (2) service on a company, which is effected by delivery of the document to the manager, secretary, bookkeeper, or other authorized agent, Code Civ. Proc. art. 145(4); or (3) service on the state or certain other real and artificial persons, which is regulated by special provisions. See, e.g. Code Civ. Proc. art. 145(5) (service on a bankrupt), art. 144 (service on a person staying aboard a ship), art. 145 (8)–(11) (service upon members of the armed forces).
Code Civ. Proc. art. 143(1).
See App. Athens 1706/1959, 8 NoB 149; 1 Oeconomides-Livadas § 90, at 475.
See note 153 supra.
Code Civ. Proc. art. 143(2).
Id. art. 146(2).
id. art. 145(3); Act 2832/1922 art. 8(2), Bour. 41. The Athens Court of Appeals has held that service may validly be made by affixing the document to the door of an office or place of business even if it is closed. App. Athens 758/1960, 27 Een 755. The Council of State has held, however, that service by affixing the document to the door of an office is valid only if the addressee or someone who may legally accept the document is present, but refuses to accept the document or to sign the certificate of service; if no one is found at the office, the marshal must seek the addressee at his home. C.S. 2034/1958, 7 NoB 217.
Code Civ. Proc. art. 148(2).
Under Greek law, since the power of attorney expires with the termination of the lawsuit — i.e., the final judgment of the court in each instance-, a notice of appeal can not validly be served on the attorney who represented the adverse party below. Article 95 of the Code of Civil Procedure, which provides that an attorney, by virtue of his power of attorney, is empowered to perform all procedural acts in the court of first instance, to enforce the judgment, and to file an appeal, omits mention of the attorney’s power to defend against an appeal.
An agent for service is appointed by filing a declaration with the clerk of the district court for the district in which the appointment is made. The agent may be empowered to receive all or only specific documents. Code Civ. Proc. art. 148(3). All such appointments are registered in an alphabetical register kept by the clerk of the court.
Code Crim. Proc. art. 155(1).
Legislative Decree, Nov. 19, 1925, arts. 1, 2, as amended by Legislative Decree April 20, 1926, ratified by Acts 4858/1930, 4859/1930, Cod. TH. 1930, 685, 687. Penal marshals may not serve other documents. Ibid.
Code Crim. Proc. art. 155(1) (1).
Id. art. 155(1) (2).
Id. art. 155(2).
Id. art. 156(1).
Id. art. 156(1) (2).
Id. art. 156(2).
See id. art. 157.
See id. art. 158.
See id. art. 155(3).
Code Tax. Proa, ratified by Act 4125/1960, G.G. A 202 of 1960, arts. 56-67.
Code Civ. Proc. art. 140; Cod. Crim. Proc. art. 161. If the document is served on a legal entity, the certificate must also name the natural person who accepted service, in order that the court may determine whether he was legally authorized to accept service on behalf of the legal entity. AP 513/1956, 23 Een 1031, 5 NoB 173.
The Areopagus has held invalid service upon the wife of the addressee pursuant to Code Crim. Proc. art. 155(1), when the certificate of service stated that the addressee was not at home and that the document was delivered to his wife, but did not state that his wife lived in his home. AP 287/1957, 25 Een 487.
Article 159 of the Code of Criminal Procedure, implemented by a decree of December 31, 1923, 2 Gen. Cod. 88, 103, provides for service by mail of subpoenas issued by state attorneys, investigating magistrates, and investigating officers during preliminary proceedings. The secretary of the authority issuing the subpoena places it in an open envelope together with a form certificate of service and delivers the envelope to the post office against a receipt. The mailman must deliver the subpoena to the addressee personally or, if he is not at home, to an appropriate person at his home. If no such person can be found or if he refuses to accept the subpoena, the mailman must deliver it to the parson or schoolmaster for delivery to the addressee. The person who accepts the document must sign the certificate of service, which the mailman must return by registered mail, in the envelope in which the document was sent, to the authority that issued the subpoena. Article 13 of a Legislative Decree of November 9, 1925, ratified by Act 4204/1929, Bour. 415, provides that service may be made by mail in the manner provided for by the December 31, 1923, Decree, supra, in petty civil actions which are not in rem and which involve less than 3000 drachmas (about $ 100). Another legislative decree, also dated December 31, 1923, Bour. 411, provides for service by mail in civil cases in general, but has never been implemented.
App. Athens 1841/1959, 27 Een 514; App. Athens 318/1934, 1 Een 342; App. Athens 949/1933, 45 TH. 158; App. Athens 1074/1932, 44 TH. 429; App. Athens 59/1931, 42 TH. 423. See AP 32/1940, 51 TH. 304 (semble); App. Athens 2179/1937, 49 TH. 520 (semble); Kitsikopoulos arts. 858-861 n. 42, at 7417; 1 Oeconomides-Livadas § 7, at 23; Riezler § 11; P. G. Vallindas, 53 TH. 163 (1941). Contra, Maridakis, THE Enforcement OF Foreign Judgments 80 (Athens 1946).
Code Civ. Proc. arts. 858-860. An action seeking enforcement of a foreign judgment must be brought before the district court of the district in which the judgment is sought to be executed or in which the debtor is domiciled or resides. If the judgment debtor is an alien, the action must be brought before the president of the district court.
Id. art. 859.
AP 50/1962, 10 NoB 571; App. Nauplia 98/1952, 64 TH. 114, 7 Rev. 281; Distr. Athens 2283/1957, 5 NoB 891, 11 Rev. 157; see 1 Oeconomides-Lividas, §77, at 415; Vallindas, in 3 Een 85.
AP 50/1962, 10 NoB 571; App. Athens 59/1931, 42 TH. 423; App. Nauplia 156/1935, 3 Een 83, with a note by Vallindas; Distr. Athens 2283/1957, 5 NoB 891, 11 Rev. 157.
In App. Athens 603/1941, 53 TH. 161, the Athens Court of Appeals refused to declare a New York judgment enforceable in Greece on the ground that the defendant had not been given an opportunity to be heard. A writ of action and a summons had been served on the defendant and the defendant had answered. The defendant had not been served to appear thereafter and had not appeared. Four years later a default judgment was issued. The Athens Court of Appeals held that a judgment by default issued without requiring that the litigant be summoned to each hearing was contrary to public policy. It does not appear from the statement of the case whether the defendant was notified by mail or otherwise of the motion for a judgment by default. The court further held that selvice of the judgment on the defendant by mail, without any guarantee that the document actually reached the addressee, was also contrary to GIeek public policy. There was no evidence that registered mail had been used or that the document had in fact reached the addressee. It may be noted that a deIault judgment could not have been rendered validly on those tacts under New York law. The New York Civil Practice Act provided tor judgment by default only upon (1) proof of service of summons if the default was in appearing or (2) proof of appearance if the default was in pleading. N.Y.C.P.A. §§ 489, 490. Moreover, if more than a year had elapsed since the defendant had defaulted, he was entitled to at least five days notice of the time and place of the application for judgment. Rule 190, N.Y. Rules OF Civil Practice. Finally, according to the facts stated, defendant appeared and pleaded, and was thus not in default at all. In App. Athens 156/1927, 38 TH. 583, the defendant was served with a final judgment, pursuant to Belgian law, by registered mail and by affixation of the document to the door of the court. In holding that the judgment had become final when the time for appeal expired, the court inplicitly held that service in this manner was not contrary to Greek public policy. In AP 50/1962, 10 NoB 571, the court held that service of a summons pursuant to article 142 of the Italian Code of Civil Procedure — that is, by delivering a copy to the state attorney of the trial court, by posting another copy on the court building, and by mailing a third copy to the defendant — did not violate Greek public policy. In App. Athens 1841/1959, 27 Een 514, the court held that service of a summons by the British consul in Athens 32 days before the trial date constituted sufficient notice to render the British judgment enforceable in Greece, even though Greek law would have required that 80 days’ notice be given. In Distr. Athens 2283/1957, 5 NoB 891, 11 Rev. 157, the court declared enforceable a Swiss arbitrator’s award, when defendant was served by registerede letter and it was proved that the letter was delivered to the defendant in Athens at least 12 days prior to the date of hearing. The arbitration was conducted pursuant to the Rules of the International Chamber of Commerce which require that the arbitrator summon the parties to appear before him.
See text at notes 19-55 supra.
see App. Athens 310/1894, 5 TH. 171; P?. Distr. Thessaloniki 86/1961, 28 Een 236, 14 Rev. 502; 1 Oeconomides-Lividas § 7, at 26-27; Note by Krispis in 28 Een 240; Bender-macher-Geroussis, International co-operation of Greece in the field of civil procedural law, 10 NoB 401, 403-04.
E.g., an examination of an attorney on matters entrusted to him by a client or an examination of a civil servant on state secrets.
See Letter of the President of the District Court of Patras, dated April 27, 1931, Serial No. 320, 42 TH. 399.
1 Gen. Cod. 495, edited by P. Sifnaios (Athens 1958).
Article 438 prohibits extradition if (1) the accused is a Greek national or was a Greek national at the time the crime was committed, (2) under Greek law, only Greek courts are competent to try the particular case, (3) the crime is considered to be a political, military, tax, or press offense under Greek law, (4) under Greek law, the offense is prosecuted only at the request of the victim, (5) it appears that the extradition was requested for political reasons, (6) the act constituting the crime was not at the time it was committed or is no longer a crime under Greek law, under the law of the country where it was committed, or under the law of the country where it is being prosecuted, or if it cannot be prosecuted in one of those countries for some other reason, or (7) it is probable that the person whose extradition is sought will be prosecuted for a different crime once jurisdiction over him is obtained. Article 437 enumerates cases in which extradition of an alien is permitted.
Code Crim. Proc. art. 458(1).
Lawyers Code art. 53, Act 3026/1954, G.G. A 235 of 1954.
Code Civ. Proc. art. 337; Code Crim. Proc. art. 357.
Code Crim. Proc. art. 97(1).
It may be noted, however, that in becoming a party to the European Convention on Mutual Judicial Assistance in Criminal Matters, Greece made a reservation whereby article 97 of the Greek Code of Criminal Procedure applies rather than article 4 of the Convention. The latter article provides that the requested authority must notify the requesting authority of the time and place of the examination so that the parties may be present.
App. Patras 38/1957, 5 NoB 686; Bendermacher-Gerousiss, supra note 184, at 403; Evrigenis, in 22 Een 460; Krispis, Note 28 Een 239, 1 Oeconomides-Lividas §7, at p. 26; Code Crim. Proc. art. 458(1).
Code Civ. Proc. art. 307; Code Crim. Proc. art. 354. A district court, the Greek court of general competence, usually consists of three judges.
Code Civ. Proc. art. 321.
Code Civ. Proc. art. 324.
Code Crim. Proc. art. 212.
Code Crim. Proc. art. 211.
Code Crim. Proc. art. 210.
Code Crim. Proc. art. 222.
Lawyers’ Code, Act 3026/1954, art 49, G.G. A 235 of 1954. An attorney may not testify in connection with any case in which he participated professionally unless he is authorized to do so by the Bar Association.
Code Crim. Proc. art. 223(4).
See, e.g., 1 Oeconomides-Lividas at 27; Riezler § 47, at 470-71. See also App. Patras 38/1957, 5 NoB 686 (semble); Pres. Distr. Thessaloniki 86/1961, 14 Rev. 560, 28 Een 236 (semble).
Legislative Decree, November 9, 1925, arts. 36-45, Bour. 415.
See arts. 451-456. These articles provide that parties may be examined as witnesses, if the facts in question have not been proved by other means of evidence. Art. 451(1). Examination of litigants as witnesses may be ordered by the court ex officio or at the request of any of the parties (art. 452). As a rule, parties are not examined under oath (art. 453(1)), but the court may order that an oath be taken (art. 454(1)). The court is free to evaluate the testimony at its discretion, whether given under oath or not (art. 456). For the present status of the draft, see note 7 supra. In criminal proceedings, the accused may be examined during the preliminary investigation, but he is not examined as a “witness”, and the accused is never examined as a witness in the court hearings. He is not examined under oath and may refuse to reply to all or any particular questions. Code Crim. Proc. arts. 357(2) and 366.
Code Civ. Proc. art. 314(1).
Id. art. 314(2).
Id. art. 315. In practice, such actions are never brought.
Code Crim. Proc. art. 229. The maximum fine is 960 drachmas, or about 32 U. S. dollars. A fine for failure to appear or testify at a preliminary investigation may be imposed only if the witness was to appear before a state attorney, an examining judge, or a justice of the peace.
Id. art. 231. See also arts. 353(2)&3x2013;(4), 375.
The fine is a minimum of 480 drachmas, or about $ 16 and a maximum of 4,800 drachmas, or about $ 160.
Code Civ. Proc. 335; Code Crim. Proc. art. 218(1).
Code Crim. Proc. 220(2). Witnesses swear in the manner prescribed by their religion. Id. art. 220(1). If the witness has no religion, he affirms upon his honor. Id. art. 220(2). Clergymen whose religion forbids them to take an oath affirm to tell the truth in their capacity as clergymen. Id. art. 218(3); Act 5438/1932, art. 22, Cod. TH. 1932, 328; Act 595/1860, 5 Gen. Cod. 228.
Code Civ. Proc. art. 331.
Code Crim. Proc. art. 221.
An affirmation to tell the truth in lieu of an oath is considered an oath for purposes of perjury. Penal Code art. 224(3).
Penal Code art. 224(2).
See note 217 supra.
Penal Code art. 225(1).
Code Crim. Proc. art. 226(2)
Code Civ. Proc. arts. 133, 339; Code Crim. Proc. art. 151.
AP 358/1961, 10 NoB 230. Prior to this decision, it was not entirely clear whether Greek notaries had authority to administer an oath and to record the examination of witnesses by the parties’ attorneys in cases not covered by special provisions. Up to 1959, it was generally thought that they could do so because Act 1540/1944, G.G. A 141 of 1944, authorizes notaries to administer oaths and to accept declarations in all cases in which justices of the peace are authorized to do so, and justices of the peace may, by custom, administer an oath and take a declaration of anyone who wishes to appear before them. In 1959, the State Attorney for the District Court of Athens took the position that notaries could administer oaths and accept declarations only in those cases in which they were specifically authorized to do so and his position was accepted by the Penal Section of the Areopagus, 49/1960, 27 Een 226. Indeed, a notary was prosecuted for administering an oath and taking the testimony of a witness in Athens to be used in a criminal case in Chios Island, on the ground that there was no special provision authorizing-notaries to administer oath and take testimony in criminal actions. The District Court of Athens held that no penalties should be inflicted because the notary had acted in good faith, without passing on whether the notary exceeded his authority. Distr. Athens 18/1961, 28 Een 877. In order to end the controversy, the State Attorney for the Areopagus asked for a judgment to be given by the plenum. The Areopagus held that notaries are authorized to administer oaths and take testimony by Act 1540/1944, G.G. A 141 of 1944, and are not restricted to cases covered by special provisions. The State Attorney for the District Court of Athens also accepted the position that notaries are authorized to act as persons before whom testimony is given under oath in all cases in which such testimony may be used as evidence. Paper No. 9860, Feb. 10 1962, 10 NoB 244.
This custom was implicitly recognized by the Areopagus in the decision holding that notaries may administer an oath and take testimony by virtue of Act 1540/1944, because that act authorizes notaries to accept declarations under oath in all cases in which justices of the peace may do so.
Code Crim. Proc. art. 458(1).
See notes 118 and 119 supra and accompanying text.
Code Crim. Proc. arts. 253-256.
Id. art. 261. But see note 121 supra.
See Act 5097/1931, 7 Rapt. 215, as codified by Presidential Decree of August 24, 1931.
civil Code arts. 1192, 1193.
Under Greek law, the record of a right in real property is not a guarantee that the transaction is valid or that the person who is recorded as having the right actually has it.
stock Companies Act art. 4, Act 2190/1920, codified by R.D. March 12, 1963, G.G. A 37 of 1963.
See Civil code art. 78, Commercial Code arts. 42-44; Limited Companies Act art. 8, Act. 3190/1955, G.G.A 91 of 1955.
Trademarks Act art. 5, Act 1998/1939, G.G. A 420 of 1939, as amended by Act 3205/ 1955, G.G. A 109 of 1955.
Patents Act arts. 21, 24, 28, 32, Act 2527/1920, 11 Gen. Cod. 1062; Royal Decree, Nov. 22, 1920, 11 Rapt. 198.
See note 254 infra.
Code of Private Maritime Law arts. 6, 197, Act 3816/1958 G.G. A 32 of 1958.
Decree of July 23, 1941, art. 19, 6a Rapt. 407.
id. art. 2.
Act 3680/1957, art. 1, G.G. A 56 of 1957. See also Legislative Decree 3082/1954, art. 13(3), G.G. A 257 of 1954, amended by Act 3680/1957, art. 2, G.G. A 56 of 1957, providing for appointment of persons with lesser qualifications in municipalities with a population of less than 5000; Decree, July 23, 1941, art. 3, 6a Rapt. 407, as amended by Legislative Decree 3082/1954, G.G. A 257 of 1954, for an enumeration of persons that may not serve as notaries.
Judicial Organization Act. art. 166, 1 Gen. Cod. 495. These include such matters as recording and conducting public auctions of chattels or real estate. For a discussion of notarial authority to administer oaths and record testimony of witnesses, see note 223 supra and accompanying text.
Civil Code arts. 369, 1033, 1121, 1134, 1143, 1169, 1187, and 1191.
Id. art. 1266.
Code of Private Maritime Law art. 196, G.G. A 32 of 1958.
Civil Code arts. 1319, 1330.
Act 1642/1942, art. 31, G.G. A 207 of 1942; Act 411/1945, art. 1, G.G. A 153 of 1945.
Civil Code arts. 1406(2), 1402(2).
Civil Code art. 1533.
Civil Code arts. 166, 217(2), 220.
Commercial Code art. 40.
Limited Companies Act 3190/1955, art. 6(1), G.G. A 91 of 1955.
Civil Code art. 1724.
id. art. 498(1).
Act 2166/1893, 6 Gen. Cod. 168, 5 Gen. Cod. 718; Act 3104/1905, 5 Gen. Cod. 721.
Royal Decree, Feb. 1, 1833, G.G. A 1 of 1833.
Act 3761/1929, 14 Gen. Cod. 528; Presidential Decree, January 16, 1930, Cod. TH. 1930, 18.
Limited Companies Act 3196/1955, arts. 8(2), 23(3), G.G. A 91 of 1955.
Trademark Act 1998/1939, art. 7(6), G.G. A 420 of 1939.
See Act 1254/ 1885, 6 Gen. Cod. 160; Act 3397/1909, 7 Gen. Cod. 696; Royal Decree, Dec. 31, 1909 Cod. TH. 1907-1909, 286; Act 523/1914, 6 Gen. Cod. 163; Royal Decree, Jan. 20, 1918, 1 Rapt. 246; Presidential Decree, Oct. 22, 1929, 1 Rapt. 247.
Cf. Code. Civ. Proc. arts. 391, 392, 424.
In the absence of special provisions, article 430 of the Code of Civil Procedure and article 902 of the Civil Code, discussed supra, govern.
See opinion of the Legal Council of the State, No. 969/1954, 6 NoB 1028; Judgment of the President of the District Court of Athens 13678/1958, 6 NoB 1001.
The Institute’s address is: 73 Solonos Street, Athens, Greece.
Act 1712/1939, G.G. A 163 of 1939.
Legislative Decree, May 11, 1946, G.G. A 157 of 1946, ratified by Act 188/1946, G.G. A 354 of 1946.
Act 1712/1939, art. 2(d), G.G. A 163 of 1939.
Article 31 of the Treaty with Yugoslavia, supra note 24, provides that the Ministries of Foreign Affairs of each country shall upon request furnish to each other legal information on specific questions.
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Markianos, D.J., Guggenheim, M.H. (1965). International Co-Operation in Litigation: Greece. In: Smit, H. (eds) International Co-Operation in Litigation: Europe. Springer, Dordrecht. https://doi.org/10.1007/978-94-011-9208-8_9
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