By Evangelia Petsa,
With the provisions of articles 1047-1054 of the Code of Civil Procedure, personal detention is regulated as a means of speeding up enforcement for the satisfaction of monetary claims between individuals. In order to be implemented, it must be expressly provided for by law. As an institution, it is considered anachronistic and it goes against fundamental provisions of the Constitution, such as Article 2 Paragraph 1, 5 Paragraph 3, and 6 Paragraph 1.
According to current law, personal detention is invoked as a means of enforcement for the satisfaction of monetary claims exclusively and only for claims arising from tort. For reasons mainly of leniency, it is expressly provided that personal detention cannot be invoked for a claim of less than €30,000. Also, according to the theoretical understanding that has always held, the measure of personal detention is not unconstitutional, when it is ordered not to satisfy monetary claims, but as a threatened sanction to force the debtor to comply with the order of the court decision, as happens indicatively in the cases of articles 946, 947, 950 and 952 of the Code of Civil Procedure.
It is therefore now explicitly clarified that the measure of personal detention for claims arising from a tort is potentially (and not mandatory), and it is up to the non-appealable discretion of the trial court, which in order to rule on its enforcement will first weigh of the circumstances of each specific case. This weighting will be based on the principle of proportionality. As long as, the law does not make any distinction, the concept of tort includes not only harmful acts due to fault but also those for which substantive law establishes the objective responsibility of the injured party, as in the case of the owner of a damaged car. In fact, in case of confluence of tortious and contractual liability, it is accepted that only the tortious basis can establish the request for secret detention.
Personal detention is ordered either by an application, which is contained in a lawsuit for awarding the claim and is tried during the procedure to which the lawsuit is subject, or by an independent lawsuit for reciting personal detention. In this case, it is tried according to the special procedure of property disputes of articles 614 et seq. and falls under the single-member court of first instance. It is introduced, either in the court of general jurisdiction of the defendant or in the court that has local jurisdiction over the claim.
Conditions for the execution of personal detention are initially the finality of the decision ordering it. However, it should be noted that for the recitation of the personal detention, the final award of the enforced claim is not necessary. Furthermore, it is assumed that the decision is served in full copy on the debtor. A decision ordering personal detention, according to Article 1047 of the Code of Civil Procedure, is not executed if the person sentenced is unable to pay his financial debt at the time of execution. The arrest of the debtor is attempted by the bailiff. The bailiff must be provided with the relevant order under article 927 of the Code of Civil Procedure and refract the report of service of the check, as well as the report of service of the final decision ordering the personal detention.
If anyone who has been arrested raises objections to personal detention, he is immediately brought before the president of the first instance courts in the district in which the arrest took place. He, judging by the procedure of articles 686 et seq., decides on the objections that can also be submitted orally. The object of the objections is any irregularity or defect in the procedural act of the forced execution, from the notification of the check to the arrest of the debtor, covering any reason that may affect the validity of the arrest. Common objections are the presentation of claims of full repayment of the debt and the invocation of serious health problems of the applicant, as a result of which possible personal detention poses risks to his life. On the contrary, reasons covered by the res judicata of the final decision ordering personal detention are not admissibly proposed.
After his arrest, the debtor is taken to prison, where he must be held, as the law expressly requires, in a place different from that in which defendants and those convicted of criminal acts are held. With regard to the duration of personal detention, it is provided for up to one year. The period of one year also includes the time the prisoner has already served in prison, based on previous personal detention decisions in favor of the same or another creditor. Accordingly, if the debtor remained in prison for a period of less than a year, his imprisonment may be extended, so that the remaining time of detention is also extended based on previous personal detention decisions in favor of the same or another creditor.
The Code of Civil Procedure also provides for the reasons for the release of the prisoner, which can be judged in two categories, namely: a) the reasons that lead to a mandatory release by decision of the director of the prisons (such as, for example, the completion of the period of personal detention) and b) the reasons that lead to dismissal following a previous decision of the President of First Instance of the district where the prison is located, issued according to the provisions of 686 et seq. of the Code of Civil Procedure. on interim measures (such as, for example, completing the age limit of the accused).
Finally, for any dispute arising from the execution of personal detention, the law provides judicial protection with the legal aid of opposition. This specific remedy is provided to the debtor, even if he had previously submitted objections under Article 1050 of the Code of Civil Procedure before the President of First Instance (or his legal deputy) since the decision in question has a temporary effect so that it is not hindered its re-proposal before the Multi-member Court of First Instance. The decision issued on the objection resolves the relevant disputes with the force of a substantive res judicata. It is subject to all regular and extraordinary legal remedies, even to the legal remedy of a justified legal objection. The expediter is also entitled to exercise a third-party appeal against the final decision, which accepted the appeal of the person under arrest who was released from prison.
References
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Κώδικας Πολιτικής Δικονομίας, Όπως κωδικοποιήθηκε με το Προεδρικό Διάταγμα 503/1985. lawspot.gr. Available here
