Friday, 18 November 2016

Winds of change in the recognition of foreign adult adoption decrees in Greece

On September 22, the Plenum of the Greek Supreme Court published a groundbreaking ruling on the issue of the recognition of foreign adult adoption decrees. The decision demonstrates the respect shown to the judgments of the European Court of Human Rights, especially in the aftermath of the notorious Negrepontis case.

Supreme Court (Full bench) 9/2016, unreported


A is an Albanian citizen born in 1980. At the age of 14 he immigrated to Italy. He stayed for many years in a child care institution, whose director was B, a Greek citizen born in 1938, acquiring additionally the Italian nationality at a later point. In 2002, i.e. one year after his retirement, B decided to adopt A. By virtue of a court decision in Rome, A was declared B’s adoptive son on the basis of Italian law [Article 281 Codice Civile]. The decision is final and conclusive. B passed away in 2008. He was the owner of immovable property and a bank account in Greece.

A was hindered to gain access to B’s assets  by C, a Greek national claiming inheritance rights to B’s property, on the grounds of a holographic will, for which she completed all necessary legal requirements, in order to acquire the status of a heir. Confronted with the situation above, A filed a claim before the Athens First Instance Court, contesting the will. C challenged A’s standing to sue on two grounds:

First, because the Italian decree was not recognized in Greece, i.e. no special proceedings took place for the recognition under Art. 780 Greek Code of Civil Procedure [CCivP]; Art. 780 reads as follows: Subject to the provisions of international conventions, a judgment of a foreign court is granted without any proceedings the same authority in Greece to that recognized by the law of the state of the court which issued the judgment, if 1) the decision applied the same substantive rules which would have been applicable under Greek conflict of laws rules, and must have been rendered by a court having jurisdiction under the law of the State whose substantive rules were applied; 2) it is not contrary to morality and public policy.

Second, because the adoption contravenes with Article 1579 Greek Civil Code [CC] on the adoption of adults, which should have been applied pursuant to Article 23 CC, i.e. the conflict of laws rule for adoption cases with foreign elements. Article 1579 CC states that an adult adoption is permitted only when there is a line of kinship between the adoptee and the adopter up to the fourth degree, or if the persons aforementioned are related by affinity. Article 23 CC states that the adoption prerequisites are governed by the law of each party’s nationality. In case of multiple nationality, Article 31 CC provides that the Greek nationality prevails over the foreign one.

The Athens court dismissed A’s action on the grounds invoked by B [Nr. 5904/2010, unreported].

A appealed. The Athens CoA dismissed the appeal on the same grounds: Notwithstanding the fact that Greek law should have been applied pursuant to Art. 23 & 31 CC, which was reason enough to refuse recognition according to Art. 780.1 CCivP, a sheer comparison of the facts with the conditions set under Art. 291 et seq. Codice Civile and Art. 1579 CC demonstrates significant differences, which cannot be tolerated by the Greek legal order [Athens CoA 1511/2012, unreported].

A filed a writ of cassation. He referred to Articles 8 & 14 ECHR, and Article 1 of the First Additional protocol to the Convention. The Supreme Court took distance from the decisions of the instance courts, but it did not quash the appellate ruling. Instead it invoked Article 563.2 CCivP, which regulates the reference of matters of general interest to the Supreme Court’s plenary session. It held that the question at stake is whether the refusal to recognize a foreign adult adoption, which in fact is not allowed pursuant to Greek law [Article 1579 CC] (applicable because of B’s Greek nationality [Article 23 & 31 CC]), and despite that this adoption is allowed in accordance with the law of the adoptee’s nationality, violates the rights of private and family life, as well as A’s property rights, pursuant to Articles 8 & 14 ECHR, and Article 1 of the First Additional protocol to the Convention [Supreme Court 818/2014, Private Law Chronicles 2015, pp. 117 et seq.].


The Plenum of the Supreme Court began with the presentation and elaboration of the pertinent domestic and international provisions. It then stated that even when Greek law poses concrete requirements, the recognition of a foreign adult adoption decree may not be excluded in any case. In accordance with the case law of the ECHR, the possibility of recognition needs to be examined on a case by case basis [referring specifically to the Wagner v. Luxembourg & Negrepontis v. Greece rulings of the Court], otherwise a violation of Articles 8 & 14 ECHR, and probably Art. 1 of the First Additional protocol to the Convention may not be excluded. In particular, national courts may not refuse the recognition of a valid adoption, if the latter has created “a social reality” in the state of origin. Sheer reference to domestic legal provisions does not suffice. The surrounding circumstances of the case at hand need to be scrutinized, namely, a) the time between the adoption decree and the time the latter is examined by the foreign court; b) the intensiveness of relations leading to the adoption; and c) the denial of prospects caused by the sudden change on the legal status, as a result of the refusal to recognize the foreign decree.

Hence, the Full Bench continues, in cases of adoption with foreign elements, Article 8 ECHR imposes to national courts the duty to seek a “cross-border continuation” of the personal status and links of the parties to adoption, as long as they really exist in the foreign state. Having said that, Article 8 ECHR does not function as an autonomous tool for the recognition of foreign adoption decrees, resulting in the substitution of domestic rules. National courts should however adapt and construe their provisions on the basis of its standards.

On the grounds of the above findings, the Plenum quashed the judgment of the Athens CoA, stating that the instance court failed to take into consideration the surrounding circumstances of the case, such as the personal status of the adopter, who was a resident of Italy for a long period of time and with no links to Greece until the day he passed away; instead it opted for the strict application of domestic rules, regardless of the fact that this adoption was valid both under Italian and Albanian law.


The case is not yet over for A. Litigation will resume before the Athens CoA, pursuant to Article 580 CCivP [reference to the court whose decision was quashed for re-examination on the merits]. The instance court has to abide by the Full Bench ruling. Still, the latter did not exclude the application of Article 780 CCivP; it rather emphasized on the facts and circumstances in need to be considered when examining a request for recognition under this provision. The Athens CoA has still discretionary powers to refuse recognition, however this time entering into factual details regarding the case at hand. Mere reference to the domestic provisions is not anymore acceptable as a ground for refusal. Hence, the different approach of Greek as opposed to Italian law is not anymore relevant. The final frontier is therefore (once again) public order. Nevertheless, there’s too little space left for this clause: After the condemnation of the Hellenic Republic for violation of the ECHR in the Negrepontis case, and the unambiguous way in which the Plenum became aligned with this ruling, it would take tremendous efforts by the Athens CoA, in order to trace a violation of domestic public policy.

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