CASE OF MATRAKAS AND OTHERS v. POLAND AND GREECE ECHR, 7.11.2013 [case Nr. 47268/06]

In a ruling published shortly before the end of 2013 [CASE OF MATRAKAS AND OTHERS v. POLAND AND GREECE (47268/06), available at: http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-127812], the European Court of Human Rights found that Greece has (once again…) violated Article 6.1 of the ECHR. Usually Greece is condemned in connection with the length of proceedings. This time the Court concluded that the measures undertaken by the Greek authorities in order to assist the applicants in the recovery of maintenance were not adequate and sufficient. This is a case which happened to unfold in my jurisdiction; to be more precise, a series of no less than 10 decisions have been issued by the Thessaloniki courts, where I practice the legal profession. This article is not about the ECHR decision, which can be easily downloaded (available in English, see link above) and studied by any of you. My objective is to provide an inside view of what actually took place before the courts of my home town on the basis of the decisions rendered (all unreported), and to reach conclusions as to the responsiveness of Greek courts to deal with the case at hand. 

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The facts: The parties involved in the Greek proceedings are a Polish woman [henceforth: M], a Greek man [henceforth: H], and their son [henceforth: S]. On the whole, a set of four proceedings has been unfolded.

I.  End of 2004 M filed an application before the Thessaloniki 1^st instance court for the recognition of a Polish divorce decree and the declaration of enforceability of a maintenance order, both included in the same judgment. The court issued not one, but 3 decisions in the following order: In 2005 the first decision ordered the stay of proceedings, in order to verify whether the matter had not already been the subject of another final judgment concerning the same parties. This is a standard requirement, stipulated in Art. 323.4 Greek Code of Civil Procedure [henceforth: CCivP]. A year later the court decided to adjourn the hearing for the same reason as previously, obviously because the documents submitted by M were not sufficient for fulfilling the requirement aforementioned. After a couple of adjournments, a third hearing took place early 2007, which lead to a judgment by virtue of which the Polish decision was recognized and declared enforceable in Greece.

II. On April 2009 an application was filed by the Hellenic State, represented by the Ministry of Finance, acting in his capacity as the Central Authority under the 1956 New York Convention on the recovery abroad of maintenance. The subject matter of the request was to declare a Polish child maintenance judgment (published on January 6, 2004) enforceable in Greece. The court considered that the Ministry had no standing to file such a claim because the New York Convention did not apply to the case. It held that the Brussels I Regulation was applicable to the case and that accordingly it was S who had standing to file a claim for enforcement.

 III. On April 2008, S (represented by M) filed an application for the recognition of the same Polish judgment, pursuant to which H was declared the father of S, and he was further ordered to pay a monthly maintenance to him. The court decided to adjourn the proceedings (henceforth: the 2008 decision), in order for the applicant to produce evidence regarding a number of points: First, that H had been served duly and timely, so as to arrange for his defense; second, that the Polish judgment was final and conclusive; third, that the foreign judgment contained a reasoning, which the applicant should furnish to the Greek court. Following the filing of fresh proceedings and submission of the documents requested, the court dismissed the application on public policy grounds (henceforth: the 2009 decision). In particular, the court found that fair hearing has not been granted to H in the Polish proceedings, given the fact that the summons was served to him (20.9.2003) almost two months after the hearing date (14.7.2003). S appealed. The Thessaloniki CoA was furnished with a significant piece of information, namely that the hearing set before the Polish court was adjourned for January 6, 2004. Still, this was not reason enough for the CoA to deviate from the 1^st instance ruling, because H was not informed neither by the court, nor the applicant, with regard to the new hearing date (henceforth: the 2011 decision).

IV. Almost simultaneously (November 2008), S (represented by M) filed an action for maintenance for the years not covered by the Polish judgment, i.e. 2007 onwards. The court ordered that the proceedings be suspended pending the outcome of the application for the recognition and enforcement of the Polish judgment. In light of the developments followed in the course of the above proceedings, the applicant did not reopen the case.

The applicable law: For the sake of clarity, and before entering to my remarks about the decisions rendered, I will briefly present the ties between Greece in Poland in the field of judicial assistance, focusing on recognition and enforcement of judgments.

a.      Both countries have signed in 1979 a bilateral agreement on legal assistance in civil and criminal cases, which entered into force on 23 December 1981. Articles 21 et seq. of the agreement deal with the matter of recognition and enforcement.

b.      The 1956 UN Convention on the Recovery Abroad of Maintenance was ratified by Poland and Greece on 13 October 1960 and 1 November 1965 respectively.

c.       Greece has ratified the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, which entered into force in Greece on April 1, 1989. It has also ratified the Lugano Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, which entered into force on September 1, 1997.  Starting from March 1, 2002, Greece applies the Brussels I Regulation.

d.      Poland has ratified the Lugano Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, which entered into force on February 1, 2000.  Starting from May 1, 2004, Poland applies the Brussels I Regulation.

Remarks on the findings: My general impression is that the courts have been unaware of the applicable conventional and EU law, and focused on the provisions of the Greek Code of Civil Procedure. In some points this approach lead to the same results; in some other points though, it seems that the findings are contrary to the results, which would have been reached, had the Lugano Convention been applied.  

I. Regarding the proceedings under I, the court referred exclusively to the Greek CCivP, without taking into account the bilateral agreement (applicable for the Polish divorce decree) and the Lugano Convention (applicable for the maintenance order). Regarding the former, both Art. 323.4 Greek CCivP and Art. 26 b of the bilateral convention have the same content, i.e. they both require the non-existence of res iudicata of a decision rendered for the same subject matter between the same parties. By way of comparison, Art. 27.3 Lugano Convention refers to an irreconcilable judgment rendered in the country of destination. In spite of the above, the court reached the correct result: Since there was no proof that the previous Greek divorce decree [filed by H] was final, there was no reason to refuse recognition to the Polish decree, either pursuant to domestic law (applied by the court) or pursuant to the bilateral convention (not applied  by the court).

II. Regarding the proceedings under II, the court was mistaken in the application of the Brussels I Regulation: The Polish judgment in question was rendered on January 6, 2004, whereas Poland joined the EU on May 1, 2004. Both the claim and the judgment preceded the entry into force of the Brussels I Regulation in Poland, so there’s no way that the transitional provisions of Art. 66 could apply. The court was not aware that Poland had ratified the Lugano Convention. In spite of the above, the court reached the correct result.

III. Regarding the proceedings under III, there are a couple of things to be pointed out. In the 2008 decision, the court prudently differentiated the affiliation from the maintenance matter, applying the bilateral convention for the former, and the Brussels I regulation for the latter. While the first choice was the proper one, putting forward the Brussels I Regulation was again mistaken, for the same reasons noted above. Hence, the Lugano Convention should have been applied in the matter. In the 2009 decision, the court gave the following answers to the questions raised in the first hearing: Regarding the issue of res iudicata, the Polish judgment contained a note from the presiding judge, that the judgment was final and conclusive. Regarding the lack of reasoning, the court was satisfied with the certificate of the Cracow 1^st instance court, according to which a judgment of this nature does not contain reasoning, unless the parties submit such a request. Finally, regarding the issue of the defendant’s fair hearing, the court did not apply the bilateral convention in regards to the affiliation (Art. 26 a), and Art. 27.2 Lugano convention on the maintenance issue. Instead, it opted for the public policy exception pursuant to Art. 323.5 CCivP, which in fact shouldn’t have been put forward, since the matter is dealt with by Art. 323.3 Greek CCivP. Finally, in the 2011 decision of the Thessaloniki CoA, a number of points are worthy of further elaboration. First, the court applied again domestic law, without any reference to the bilateral and the Lugano conventions. Secondly, it correctly pointed out, that the Brussels I Regulation is not applicable, but at the same time it mistakenly concluded that the issue of fair hearing should be examined solely on the grounds of the 1965 Hague Service Convention. This finding leads to contradictory conclusions: In the course of exequatur proceedings, a court cannot apply the Hague Convention, because there aren’t any grounds for refusal of recognition and enforcement to be found there. Courts usually apply Art.15 of the Convention during proceedings in the court of origin. This is actually what the Polish court did, when it realized the delayed notice of the proceedings to H, and decided to adjourn the hearing. Additionally, this is exactly what is stipulated under Art. 20 Para. 2 & 3 Lugano Convention, which should have been applied here on the maintenance issue. Moreover, the CoA left two very important points unanswered: First, the indifference showed by H, as evidenced by his complete reluctance to appoint a proxy or at least to ask for any information by the Polish authorities in the time between his actual notice (20.9.2003) and the hearing following the adjournment (6.1.2004); second, his omission to challenge the proceedings within 7 days pursuant to Polish law. The significance above points need to be examined on the basis of, a) the bilateral Convention (for the affiliation issue), b) the Lugano Convention (for the maintenance issue), and c) domestic provisions (which the CoA applied in the case at hand).

a. Starting from the bilateral treaty, Art. 26 a states that the non appearance of the defendant should have been the result of untimely and unduly service of process. There is no reported case law on the matter, at least from the Greek end of the line. One could however construe the above rule in a fashion which places the burden with the defendant to proceed to necessary steps, so as to secure his appearance before the court of origin. Admittedly, in the present case, service was not timely; nevertheless, upon the adjournment ordered by the Cracow court, the defendant had time sufficient to get in touch with the competent authorities, or appoint an attorney to do so.

b. It is common ground that, by applying the Lugano Convention, courts are bound by the interpretation given by the ECJ on any point which is similarly regulated to the Brussels Convention. Article 27.2 of the Lugano Convention is a spitting image of Art. 27.2 of the Brussels Convention. Hence, courts are bound by the ruling of the ECJ in the case Minalmet v Brandeis [C-123/91, ECR 1992, 5661], which reads as follows: Article 27(2) of the Brussels Convention must be interpreted as precluding a judgment given in default of appearance in one Contracting State from being recognized in another Contracting State where the defendant was not duly served with the document which instituted the proceedings, even if he subsequently became aware of the judgment which was given and did not avail himself of the legal remedies provided for under the procedure of the State where the judgment was delivered. Still, following the amendments made by the Brussels I Regulation, the wording of Art. 34.2 (27.2 of the Brussels Convention) goes towards a totally different direction: A judgment shall not be recognised: 2. where it was given in default of appearance, if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so. In light of the above, and bearing in mind that the case was tried by the Thessaloniki CoA in 2011, i.e. almost 10 years after the Brussels I Regulation entered into force, the question we legitimately should ask ourselves is this: Should the interpretation regarding Art. 27.2 Lugano Convention stick to the case law published under the Brussels Convention regime? Or should it better be adapted to the new trends established by the Brussels I Regulation? Clearly, the point is not free from doubt, and both sides could deliver arguments in support of their position.

c. However, the Thessaloniki CoA did not apply the bilateral or the Lugano Conventions. Thus, the above questions have a rather theoretical touch, and need not be answered ad hoc. That leads us to the quintessential question: Was the judgment of the CoA the correct one from the domestic point of view? The answer is a clear NO! There are two Supreme Court rulings which support my view: In particular, in a 1980 ruling the Supreme Court found that a German order for lawyers’ fees, which was issued ex parte, may be declared enforceable in Greece according to Art. 323.2 & 905 Greek CCivP and the 1961 Greek-German bilateral agreement on recognition and enforcement of judgments. According to German law, the defendant is entitled to opposition within two weeks after service of the order. In the case at hand, the defendant was served with the order, but failed to file an opposition. A second ruling of the Supreme Court’s Plenum from 1987 reiterated the same position in the following circumstances: A claim was served by publication to the defendant, who did not appear in the US proceedings. Following service of the judgment (again by publication), the defendant filed an application to set aside the judgment in accordance with Californian rules of Civil Procedure. The Plenum stated that both the right of the defendant to lodge a remedy against a default decision, and the actual filing of the above, are sufficient reasons for dismissing the ground of refusal based on Art. 323.3 CCivP, i.e. deprivation of the party’s right to be heard. Finally, the same view was adopted by the Thessaloniki CoA in a 2001 judgment, which decided in exactly the same terms under application of the Brussels Convention…

IV. Regarding the proceedings under IV, the court applied correctly domestic procedural provisions (Art. 621 CCivP), which order the stay of proceedings if the issue of affiliation has not been solved irrevocably according to Greek law, i.e. res iudicata. Given the fact that the recognition of the Polish judgment was still pending at the time of the hearing, the court could have had the chance to recognize incidentally the foreign judgment (this is not excluded according to Art. 323 Greek CCIvP). However, in light of the actual issues raised in the proceedings under III, the court decided to stay the proceedings, most probably in order to avoid contradictory rulings.