In case of death, the law stipulates through article 932, paragraph 3 of the Civil Code that the victim's family can receive financial compensation for emotional distress.

But what applies in the case of a foreigner from outside the European Union whose family claims compensation in Greece? The law of each state determines which member of the family is considered to be entitled to compensation.

The Supreme Court in two decisions: 3/2007 and 798/2009 ruled that the law of Albania applies in similar cases of death claims of Albanian nationals. Thus, decision 5158/2008 of the Athens Court of Appeal awarded monetary compensation for mental anguish only to the minor daughter of the victim, while it rejected a similar claim of his brothers and parents because they were not incapable of working or were being supported in whole or in part by the victim. Another decision of 2006 judged differently and included, in addition to his children, the children of his deceased brothers and sisters as well as his grandparents.

In the case of Indian and Pakistani nationals, their national law does not provide for the institution of mental anguish and therefore does not identify the persons entitled to claim compensation. The decision 397/2009 of the Athens Single Member Court of First Instance holds that the definition of the family will be determined by Greek law. The same ruling was made by the decision 928/2009 of the Single Judge Court of First Instance 9.

The great controversy that evolved among the members of the Supreme Court regarding which law should be applied brought the issue to the Plenary of the Supreme Court.In 2011, the Plenary of the Supreme Court extended the practice of applying Greek law to the above cases. The detailed decision of the Plenary is as follows.

Mental anguish of foreigners
Greek law is directly applicable (CC 26, 932)
without recourse to the provisions of private international law

According to the provision of Article 26 CC, "the law of the state where the offence was committed shall govern the obligations arising from the offence".It follows from this provision that the principal relationship created by the commission of an offence in Greece which resulted in the death of a foreigner and the corresponding tort liability are governed by Greek law within the meaning of the lex causee.
Therefore, in the case of a death in a road accident in Greece of a foreigner, Greek law will be applied, IMMEDIATELY, without the interference of any other investigation, in the context of the application of the principles of private international law, which is related to the concept of the preliminary issue and the preliminary question. In particular, the provision of Article 932 CC is applicable. which will determine whether the plaintiff in question belongs to the circle of persons entitled to mental anguish, regardless of whether, in this particular case, on the basis of the (but not applicable) substantive law of the deceased's nationality and those seeking the award of monetary compensation, different rules are provided for, with regard to the question of who belongs to the circle of those entitled to pursue the corresponding claim, or even if no rules are provided for.
Therefore, the determination by the court, of the specific claimants, as belonging to the circle of protected goods or subjective rights and specifically on the basis of the concept of "family" as defined exclusively by Greek substantive law.
Only in the event that the status of kinship is contested, with regard to the existence or validity of the relationship from which this status derives (e.g. e.g. the existence or non-existence of marriage or the existence of a relationship between parent and child), then it becomes necessary to apply the provisions of Articles 13, 14, 17-24 of the CC (as the case may be), in order to determine, accordingly, whether the plaintiff ultimately has the status of husband or child, father or grandfather of the deceased.

App. Olm. 10/2011
President : Elias Giannakakis - Vice President
(in the absence of the President of the Supreme Court, Georgios Kalamidas)
Rapporteur : Georgios Chrysikos
Members : Emmanuel Kaloudis, Theodora Goini, Elizabeth Mugakou-Brilli, Michael Theocharides, Vice-Chairmen, Athanasios Koutromanos, Andreas Tsolias, Ioannis Sideris, Nikolaos Leontis, Antonios Athenaeus, Spyridon Mitsialis, Andreas Doulgerakis, Konstantinos Fragos, Nikolaos Passos, Ioannis Papadopoulos, Demetrios Tiggas, Ioannis Giannakopoulos, Chrysostomos Evangellou, Konstantinos Tsolas, Andreas Xenos, Kyriakoula Gerostathi, Athanasios Georgopoulos, Demetrios Komis, Erotokritos Kaloudis and Ioanna Petropoulou, Judges Advocates General (the other Judges of the second formation being absent).
Prosecutor : Mr John Spyridon Tentes
Lawyers: Chrysostomos Velakis - Andreas Giannakopoulos

Comments & Observations

At last the positions of our magazine and the long struggle we have been conducting through its columns, with corresponding articles by representatives of our legal world, but also with comments - remarks on the contra positions of case law, so that things return to the original position of our case law, before it was suddenly leveled (after the AP 3/2007 SESYGD 2007/269) on the paths that affected the sense of justice.

Our subscribing readers have been able to follow and keep abreast of developments and the outlets provided by the procedural remedies suggested from time to time in our commentaries.

He gave up in advance: F.A.F. 732/2008 ESIGD 2008/28, Mon.Pr.Kast. 47/2007 n.d. 2008/33, Mon.Pr.Vol. 116/2007 op. cit. 2008/44, Mon. 2867/2009 o.p. 2009/469, Mon.Pr.Ath. 397/2009 op. cit. 2009/515, Mon.Pr.Ath. 928/2009 o.p.2009/531, Eph. 1159/2009 op. cit. 2009/75, App. 206/2009 o.p. 2009/86, Ef.Aθ. 6680/2008 o.p. 2008/461, Ef.Aθ. 4734/2009 o.p. 2009/505, App. 2461/2010 o.p. 2010/98
AP 798/2009 op. cit. 2009/497, AP 597/2010/ op. cit. 2010/221, AP 937/2010 op. cit. 2010/291,
AP 1847/2009 (referring the matter to the OLC) op. cit. 2009/448, AP 525/2010 op. cit. 2010/88, AP 581/2010 op. cit. 2010/92, as well as
& Article Con. Koutretsis Alienation and Beneficiaries of Mental Distress & Applicable Law o.p. 2008/130, Eph.Ath. 2896/2008 op. cit. 2008/141, Eph. 4998/2006 o.p. 2008/454,
& Article by George Abatzis, "The Applicable Law in Traffic Accidents with Foreign Elements, and the International Jurisdiction of the Greek Courts & The Consequences of the Application of the Provisions of Regulation 864/2007 (ROME II) o.p. 2008/482
& Article by George Abatzi "The Beneficiaries of Financial Compensation for Mental Distress in Traffic Accidents with Foreign Nationality" n.d. 2009/66, and 2009/482

Order is therefore restored by the monumental decision of the Supreme Court, first published below by our magazine, Olm. AP 10/2011, since positions that could have been exposed to us internationally are no longer valid, since two weights and measures were applied, as in practice it was accepted that the relatives of a national who died in a traffic accident were entitled to mental suffering, unlike the relatives of a foreigner, on the grounds (pretext) that it was not provided for in the law of his place of nationality. Such a methodological reasoning could not withstand the crisis of our free society, which is called upon to accept in the context of culturality the presence and participation in social life of foreigners and economic immigrants, since it has become obvious and has been recognized by the Greek State that they are a valuable workforce in the development of our country, they pay the mandatory employer's contributions to the crumbling Greek Insurance Funds, their children attend Greek Schools, and they are a valuable source of income for the Greek State.
(Hooray and Bravo to the members of our Supreme Court of Appeal who prove that they know how to guard Thermopylae).

Text of Dec. 10/2011

The legal dispute began with the action of 9 September 2002 by the appellants, already defendants - appellees, filed at the Kavala Single-Member Court of First Instance. Judgments were issued: 24/2004 final of the same Court and 411/2005 of the Thrace Court of Appeal. The caller-appellant requested the annulment of the latter decision by his application of 1 March 2007, notified to a) the Insurance Company under the name "EUROPEAN PISTI S.A.", established in Athens and legally represented and b) the Company under the name "MOCHLOS S.A.", established in Alimos, Attica and legally represented.
Subsequently, Decision 1847/2009 of the Fourth Civil Chamber was adopted, which referred the fifth ground of appeal, mentioned in its grounds, to the Ordinary Plenary Session of the Supreme Court. Following the abovementioned judgment and the summons of 30 July 2010, the case in question was brought before the full Court of that Court.
At the hearing of this case, which was pronounced from the bench, the parties appeared as noted above. Their lawyers also presented their pleas in law, which are set out in their written pleadings, and asked the appellant to admit the appeal and the appellants to dismiss it, and each party to order the other party to pay the costs. The Advocate General proposed that the ground of appeal referred to the full court be dismissed as unfounded. The President then gave the floor again to the abovementioned agents of the parties, who referred to what they had previously said.
On 9 June 2011, the day on which this Court was constituted to hear the above case, Emmanuel Kaloudis, Elizabeth Mugakou-Brilli, Vice-Presidents, Ioannis Sideris, Spyridon Mitsialis and Nikolaos Passos, Justices of the Court of Appeal, who duly declared themselves unable to attend, were absent, as more than fifteen (15) members of the Court of Appeal were present from among those participating in the hearing of the case, pursuant to Article 23(2)(a) of the Rules of Procedure of the Court of First Instance. 2 of Law 1756/1988, as amended by Article 44 of Law 3659/2008.

CONSIDERED IN ACCORDANCE WITH THE LAW
Ι. By the summons of the appellant dated 30-7-2010, the appellant was duly summoned to appear before the Second Ordinary Plenary Session of the Supreme Court, the case referred to the Plenary Session (after the rejection of the other pleas) by decision No. 1847/2009 of the Fourth Civil Division of the Supreme Court, pursuant to Article 563(3) (b) of the CCP, fifth ground of the contested application, under Article 559(1) of the same Code, because the above decision on this ground of appeal was adopted by a majority of one vote.

II. According to the provision of article 559 no.1 of the CCP, an appeal is allowed if a rule of substantive law (domestic or foreign) has been violated, including the rules of interpretation of legal transactions. A rule of law is violated if it is not applied when the factual conditions for its application existed, or if it is applied when these conditions did not exist, as well as if it is applied incorrectly, and the violation is manifested either by a false interpretation or by misapplication, i.e. by incorrect subordination (Ol. The ground of appeal under Article 559(1) of the Civil Code (breach of a rule of substantive law) is used to review the errors of the court in assessing the legal basis of the action or the parties' claims, as well as errors of law in the investigation of the substance of the dispute. That is to say, it examines whether the action, objection, etc., was correctly dismissed as unlawful or whether, in breach of a substantive rule of law, it was upheld as lawful or dismissed or upheld on the merits (GC 27 and 28/1998).
Furthermore, according to the provision of Article 26 CC, "the law of the State where the offence was committed shall govern the obligations arising from the offence".From this provision it is concluded that the main relationship created by the commission of an offence in Greece, which resulted in the death of a foreigner, and the corresponding tortious liability, are governed by Greek law within the meaning of the Lex causee. Accordingly, under that law, it is necessary to determine, inter alia, the unlawful nature of the act, culpability, any relevant fault on the part of the victim, the question of a sufficient causal link, whether liability is objective or subjective and the conditions for establishing it, the capacity to impute, the scope of the legal goods or subjective rights protected, the person liable to pay compensation, the person entitled to compensation, and the legal consequences of the tort, namely the form and extent of the compensation, whether the compensation is provided in a lump sum or in periodic payments, whether it is provided in the form of a lump sum or in periodic payments, whether it is provided in the form of compensation for non-material damage or mental anguish (Art. 932 CC) or compensation under Art. 931 CC) or compensation under Art. CC, the issues of the recourse of multiple co-defendants, as well as the interest due from the service of the action for damages.The aforementioned concept of the "circle of protected goods or subjective rights" includes and directly identifies, according to the aforementioned provision of Article 26 CC, all those persons who are entitled and legitimated to actively assert, where appropriate, corresponding claims connected with the tortuous conduct at issue, either in a certain capacity or in their own right. Therefore, in the case of the death of a foreigner in a traffic accident in Greece, in order to determine the legitimacy of those who seek in a lawsuit the award of monetary compensation for mental suffering, in the sense of "persons belonging to the circle of persons who are bearers of legal rights or subjective rights", who were affected by the harmful consequences of the wrongful death, the provision of Article 26 of the Code of Civil Procedure will be applied. Greek law, without the interference of any other inquiry, in the context of the application of the principles of private international law, which is relevant to the concept of a preliminary issue and the preliminary question, and in particular the provision of Article 932 CC. which will determine, in the specific case, whether the claimant in question belongs to the group of persons entitled to the benefit of the claim in the aforementioned sense, irrespective of whether, in the specific case, on the basis of the (but not applicable) substantive law of the nationality of the deceased and of those seeking the award of monetary compensation, different rules are laid down as regards the persons belonging to the group of persons entitled to pursue the corresponding claim, or whether no rules are laid down at all.

In particular, according to Article 932(3) CC, in the case of the death of a person, financial compensation may be awarded to the victim's family, due to mental anguish. This provision does not define the concept of 'the victim's family', presumably because the legislature did not wish to define the boundaries of an institution which, by its very nature, necessarily suffers the effects of social variations over time. However, in the true meaning of that provision, which follows from the purpose for which it was adopted, the family of the victim, as a vague legal concept, includes the closest and most closely connected relatives of the deceased, who have suffered psychologically from his loss and whose moral pain the provision is intended to alleviate, irrespective of whether they were living with him or separately. In this sense, these persons include the spouse, children, brothers and sisters of the deceased, parents and grandparents, while, it should be noted, the award of the right to a pension under Article 932 para. 3 CC, is subject to the self-evident condition, which constitutes a question of fact, that, in the opinion of the judge of the merits, feelings of love and affection existed between them and the deceased when the latter was alive, the establishment of the absence of which may lead to the exclusion of all, or some or some of them, from the award of such monetary compensation (GC 21/2000). Therefore, the determination, ultimately, by the court, of the specific plaintiffs as belonging to the circle of protected goods or subjective rights and their respective legitimacy, will be decided on the basis of the aforementioned provision of Article 932 CC and specifically on the basis of the aforementioned concept of "family" as determined exclusively by Greek substantive law, according to the respective interpretation of the same provision mentioned above. And only in the case where one of the above related properties is subsequently challenged, as far as it relates to the existence or validity of the relationship from which the property derives (e.g. e.g. the existence or otherwise of a marriage or a relationship between parent and child), then it becomes necessary to apply the provisions of Articles 13, 14, 17-24 of the CC (as the case may be), in order to determine, accordingly, whether the plaintiff ultimately has the status of husband or child, father or grandfather of the deceased.
In the present case, in the contested judgment, as is apparent from it, the Court of Appeal accepted that, in the case of the death of a foreign national as a result of an offence committed in Greece, the provision of Article 26 of the Code of Civil Procedure applies to the question of whether a person belongs to the family of the victim and thereafter has a claim to monetary compensation for mental anguish and is entitled to pursue it in court, and therefore the question is decided in accordance with Greek substantive law. Subsequently, on the basis of this assumption, applying Greek substantive law, it declared the action of the already appellants, Albanian nationals, in which they sought a declaration that the defendants are liable to pay them, to be lawful, jointly and severally to each of them, the sums due to her as compensation for the mental anguish suffered as a result of the death of the husband of the former and father of the latter, ___, also an Albanian national, caused by the road accident referred to in the judgment, which took place on 10-11-2001, in & Having decided on the merits of the action, the Court of First Instance, after having disregarded the appeal brought by the appellants against the judgment of the Court of First Instance, which had ruled to the contrary as regards the amount of damages awarded, upheld the action in part. In so holding, the Court of Appeal did not directly violate, by misapplying, the provision of Article 26 of the CC, because, as regards the aforementioned issue of the determination of the members of the family of the deceased, ___ who are entitled to financial compensation on account of mental suffering, Greek law was applicable, and in particular the substantive provision of Article 932 of the CC and the definition of the concept of "family" contained therein. In addition, by not applying them, the Court of Appeal did not violate the provisions of Articles 17-18 of the CC, which indicate the application of Albanian law, inasmuch as the appellant-appellants' status and the aforementioned family relationship between the plaintiff-appellants and the deceased were not challenged in the Court of Appeal.Consequently, the fifth ground of appeal referred to the Ordinary Plenary of the Supreme Court under Article 559(1) of the Rules of Procedure, which attributes to the contested decision a defect in the infringement of the above provisions, is unfounded and must be rejected.
In consequence of the foregoing, and since the other grounds of appeal have already been rejected by reference 1847/2009 of the Fourth Chamber, the present appeal must be dismissed in its entirety and the appellant must be ordered to pay the appellants' costs for the whole of the appeal proceedings, in accordance with their lawful request (Articles 176 and 183 of the Rules of Procedure).

FOR THESE REASONS
Dismisses the fifth ground of the application for revision of the application of 1.3.2007, referred to the Court of Justice in plenary session, for annulment of the judgment of the Court of Appeal of Thrace No 411/2005.
Orders the appellant to pay the costs of the appellants in the appeal proceedings in their entirety, fixed at EUR 4 000.
Judgment and decision delivered in Athens on 9 June 2011.

SOURCE: WWW.ESD.GR - INSPECTORATE OF TRANSPORT LAW