Monday, 10 March 2014

Recognition of a divorce decree from the Autonomous Republic of Crimea



The Thessaloniki 1st Instance court issued in 2012 a decision on an application for recognition of a divorce decree from a court in the city of Bilohirsk/Belogorsk (in Ukrainian Білогірськ; in Russian Белогорск). This is an unreported case, which becomes interesting in light of the recent situation in the region.

The facts: The applicant requested the recognition of a divorce decree rendered by the Regional court of Bilohirsk/Belogorsk of the Autonomous Republic of Crimea. He submitted the following documents: A copy of the marriage certificate from the Municipality of Krimskaya Roza, issued both in Russian and Ukrainian; a copy of the 2011 divorce decree, rendered in Russian, which contained a note certifying that the decree was final; a copy of the divorce certificate from the registrar’s office of Krimskaya Roza, issued in Ukrainian, certifying the finality of the decree. All documents were true copies of the originals, translated into Greek. 

The ruling: The court applied domestic provisions, i.e. Articles 323 and 905 Greek Code of Civil Procedure, and examined the issues stipulated in the above provisions, i.e. the international jurisdiction of the foreign court, the rights of audience of the defendant, and the possible irreconcilability of the foreign decree with a domestic decision. Regarding the first requirement, the Thessaloniki court accepted the foreign court’s international jurisdiction on the basis of the parties’ last common residence. On the second issue, the court noticed that – although the respondent was in default of appearance - fair hearing was not violated, because from the text of the foreign decree it is evidenced that the latter had submitted a declaration to the foreign court, requesting that the hearing takes place in spite of her default of appearance. The Greek court concluded that the above is equivalent to a consent declaration from her side, which proves that she was not deprived of her right to a fair hearing. Finally, regarding the third issue, the applicant failed to demonstrate that the foreign decree is not irreconcilable to a domestic ruling. For this reason the court ordered the repetition of proceedings, in order for the applicant to produce a certificate proving the above.

Comments: By reading the Greek decision, it seems that the Greek court was somehow puzzled with regard to the nationality of the foreign decree. It received true copies of a number of documents from the Autonomous Republic of Crimea, translated either from Russian, or Ukrainian, or both languages. As it is evidenced by the text of the Greek decision, the decree was drafted and published in Russian. To sum up, there is not a single word in the Greek decision giving at least a hint that the foreign divorce decree was rendered by a court of law belonging to the state of Ukraine. However, as mentioned before, this is a 2012 decision. Nowadays everyone is aware of Crimea and the country to which it forms part today.
Hence, from the legal point of view, the court should have applied the bilateral Agreement between the Hellenic Republic and Ukraine on Judicial Assistance in Civil Matters, which was signed in Kiev on July 2, 2002, ratified in Greece by virtue of Law 3281/2004, and entered into force in Greece on January 27, 2007. In particular, the court should have applied Articles 20 et seq. of the Agreement. There are a couple of differences in the approach compared to domestic provisions. I will focus on those which are relevant to the case at hand, using the terminology of the Agreement’s version in English.
First, unlike Art. 323 b Greek CCivP, Art. 22 d of the bilateral agreement states that the court of destination has to examine whether its state would have had international jurisdiction to hear the case.
Second, unlike Art. 323 d Greek CCivP, Art. 22 b of the bilateral agreement states that even a definitive, i.e. non-final decision rendered in the court of destination, is sufficient for refusing recognition of the foreign decree.
Third, unlike Art. 323 c Greek CCivP, Art. 21 Para 4b of the bilateral agreement states that the applicant is obliged to produce a certificate to the effect that the litigant who lost the case and failed to appear in court had been duly summoned in accordance with the law of the Contracting Party in the territory of which the decision was issued.
In conclusion, in substance, the Greek court was not wrong in its decision: The Thessaloniki courts had no jurisdiction to hear the case; there was no evidence on the existence of a Greek definitive decision issued previously; a certificate proving that the defendant was duly summoned was not needed in the present case, in light of her explicit consent to accept the ruling of the foreign court in absentia.
 However, one is left with a bitter taste: The court followed a different point of departure, i.e. the domestic provisions, failing to make any reference to the bilateral agreement, which should have been applied in the case. This time things went well. Still, there’s no guarantee that this will be the case in the future.

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