What kinds of decisions are issued in interim measures proceedings?
Provisional and conservatory measures, and interim measures more generally, constitute a temporary grant of judicial protection ancillary to the main declaratory proceedings, in respect of the right to be safeguarded, whether those proceedings are already pending or about to be commenced. This temporary grant of judicial protection aims at securing the future satisfaction of the claim that is to be adjudicated. Decisions on interim measures include the following: the provision of security, the registration of a prenotation of mortgage, conservatory attachment, judicial sequestration, provisional adjudication of claims, provisional regulation of a state of affairs, sealing, unsealing, inventory and public deposit, and interim measures in respect of possession.
Which court may issue an interim measures decision?
General subject-matter jurisdiction to order the above measures lies with the Single-Member Court of First Instance. Subject-matter jurisdiction is removed from the Single-Member Court of First Instance and vested in the Magistrate’s Court in cases of provisional regulation of possession or detention, and where, under the general provisions of the Code of Civil Procedure (KPolD), the Magistrate’s Court is competent for the main case; the Magistrate’s Court also has exclusive jurisdiction for the consensual registration and removal of a prenotation of mortgage. Furthermore, the Multi-Member Court of First Instance, before which the main case is pending, has concurrent jurisdiction with the Single-Member Court of First Instance for ordering the above measures. As to territorial jurisdiction, the competent court is, in principle, the court that has territorial jurisdiction over the main case, while the above measures may also be ordered by the court most appropriately located at the place where they are to be enforced. The decision ordering the above measures is served on the obligor and is enforced by the bailiff. If the bailiff is obstructed in carrying out enforcement, he requests the assistance of police officers. Costs are not easy to calculate, since the fees of lawyers and bailiffs vary.
Under what conditions are interim measures ordered?
The court orders interim measures if:
(a) there is an urgent case, or in order to avert imminent danger, with a view to securing or preserving a right or regulating a state of affairs; and
(b) the existence of the right whose protection is sought through the interim measure is shown to be probable.
The claim must be supported by prima facie evidence and shown to be probable; that is, full proof is not required, but rather an incomplete proof consisting in a lesser degree of conviction as to the facts to be proved, which need only be deemed merely probable by the judge in order for the requested judicial protection to be granted. For protection to be granted, an urgent case is required, or an imminent danger that the debtor will divest himself of his attachable property in such a way that, in the future, it will be impossible to proceed with enforcement against him at the time when, after the conclusion of the main proceedings, the creditor obtains an enforceable title.
Which assets may be the subject of interim measures?
The subject of these measures is, in general, all of the debtor’s assets, whether held by the debtor himself or by a third party, provided that they are transferable under the rules of private law and are not exempted by statute. More specifically, these measures may target the debtor’s real property, movables that are not, for example, classified as non-attachable, ships, aircraft, land transport vehicles, bank deposits and dematerialised shares.
What are the effects of interim measures?
Following the decision, the debtor cannot dispose of his property where an interim measure binding it has been ordered, e.g. conservatory attachment of his property or a prenotation of mortgage over his immovable property. If the debtor fails to comply with the court’s decision, he is punished under Article 232A of the Penal Code (PK) with imprisonment of at least six months.
Legislative Decree 1059/1971 establishes the confidentiality of bank deposits and provides for imprisonment of at least 6 months where members of the board of directors, managers or employees of banks breach it; however, this does not bar conservatory attachment of such deposits, since the court decision ordering this interim measure need not specify the bank deposit or the dematerialised shares to be temporarily frozen by the interim measures decision. Nor does the prohibition on disposal imposed by the decision infringe banking confidentiality, since the banks are not called upon to disclose information regarding the existence of such deposits. Where third parties are concerned, when conservatory attachment is levied in their hands, they are obliged to declare whether the claim or right attached exists, and whether there is any other attachment in their hands and for what amount.
What is the duration of interim measures?
The duration of these measures, according to law, is as follows:
(a) until a final judgment with res judicata is issued in the main proceedings against the party that requested the interim measure;
(b) until a final judgment in his favour is issued and that (judgment) has been enforced;
(c) in the event of a settlement in the main case;
(d) if 30 days elapse from the conclusion or termination of the proceedings in any other manner;
(e) if the decision is revoked or modified, either upon the occurrence of new facts, by the court that issued it or by the court hearing the main proceedings without it being necessary to invoke new facts; and
(f) where the decision itself sets a deadline for filing the main lawsuit and that lawsuit is not filed within that deadline.
The default of one of the parties, who has been duly and timely summoned, at the hearing of the application has the consequence that he is tried in absentia; however, the court will examine the case as if all parties were present, since default in interim measures proceedings does not give rise to a presumption of admission of the facts set out in the relevant application. The case may be re-examined by the court only if the defaulting party invokes new facts which, had the court been aware of them, would have led to a different decision, and requests the revocation or modification of the decision.
Is there any avenue of appeal against an interim measure?
Legal remedies are not permitted against a decision ordering interim measures, with the sole exception of decisions on the provisional regulation of possession or detention, against which the law expressly provides for an appeal before the competent Multi-Member Court of First Instance, within a deadline of 10 days from the service of the decision. In addition, the Public Prosecutor of Areios Pagos may file cassation against any decision where an issue of broader public interest arises. That court, after examining the case, either upholds or quashes the contested decision, and the effect of its judgment is provisional. A party may also file an application for revocation or modification of the decision, as mentioned above, and a third party who was not summoned to the proceedings, did not take part in them and has a legal interest may file third-party opposition for revocation or modification of the decision.
- See also article Interim Measures
- See also article Revocation of an Interim Measures Decision
- See also article Interim Measures for Possession
- See also article Interim Measures in Family Disputes
- See also article Interim Measures – Online Harassment – Fake Instagram/Facebook Accounts
- See also article Interim Measures against Facebook/Twitter/Instagram
- See also Interim Measures article Relocation from the Family Home
- See also Interim Measures article Joint Custody of a Child
- See also Interim Measures article Custody and Child Abduction
- See also Interim Measures article Change of City of Minor Children
FREQUENTLY ASKED QUESTIONS ON INTERIM MEASURES FOR REAL ESTATE
1. What interim measures can I seek in respect of real estate?
Where there is a monetary claim against a debtor who owns real property, the most common measures are the registration of a prenotation of mortgage and conservatory attachment of the property. If the property itself is being claimed, or its possession and detention are being interfered with, interim measures for possession or provisional regulation of the state of affairs are sought. In specific cases, judicial sequestration is also available. The choice of the appropriate measure depends on the nature of the claim, whether or not an enforceable title exists, and the danger to be averted. As a rule, the aim is to bind the property so that the debtor cannot transfer or encumber it before the main proceedings are concluded.
2. What must I prove for the measures to be ordered?
Two basic conditions are required. First, the existence of the right must be shown to be probable, that is, the claim against the debtor or the right over the real property. Full proof, as in the main proceedings, is not required; it is sufficient that the judge regards the claim as probable. Second, there must be imminent danger or an urgent case, for example indications that the debtor is preparing to transfer or encumber the property, so that enforcement would later become impossible. Documents substantiating the debt are needed (contracts, invoices, cheques, payment orders), as are title deeds, certificates from the land registrar’s office or the national land registry (Ktιmatologio), and any evidence demonstrating the debtor’s mobility.
3. How quickly is an interim measures decision issued?
The procedure is clearly faster than the main proceedings. Between the filing of the application and the hearing, a few weeks to several months usually elapse, depending on the workload of the Court of First Instance. Where there is immediate danger, a temporary restraining order is also requested, which is issued the same day or the following day and binds the property until the hearing. The final interim measures decision is issued, as a rule, within one to three months after the hearing. The main lawsuit must also be filed; otherwise the measures cease to have effect if the deadline (if any) set by the decision elapses.
4. Can the opposing party overturn the decision?
Legal remedies against an interim measures decision are, as a rule, not permitted, with the exception of decisions on the provisional regulation of possession or detention, where an appeal lies within 10 days. The opposing party has the right to file an application for revocation or modification of the decision before the same court, provided that he invokes new facts which, had they been known, would have led to a different ruling. A third party who has a legal interest and did not participate in the proceedings may file third-party opposition. This means that, despite the provisional nature of the measures, the stability of the decision is significant when it is based on strong evidence.
5. What are the effects of binding the property?
By the registration of a prenotation of mortgage or conservatory attachment, the property is bound and the debtor cannot, in substance, freely transfer it or encumber it without the encumbrance becoming visible. Any prospective buyer who checks the national land registry or the land registrar’s office will see the encumbrance and be deterred. If the debtor breaches the prohibition on disposal, he commits the offence under Article 232A of the Penal Code (PK), punishable by imprisonment of at least six months. This ensures that, when the final judgment is issued in the main proceedings, the creditor will find the property in place and will be able to proceed with enforcement.
6. How does our firm’s lawyer help?
The firm handles the entire procedure. It checks the title deeds and the encumbrances on the debtor’s property at the national land registry or the land registrar’s office, assesses which measure best serves the client, drafts the interim measures application and a request for a temporary restraining order where there is urgency, represents the client before the Single-Member Court of First Instance, monitors service and enforcement of the decision through a bailiff, and ensures the timely filing of the main lawsuit so that the measures do not lose their effect. At the same time, where necessary, it defends the client against any applications for revocation or third-party opposition that may be filed.