Precautionary measures:What are they?When do I need them?

1.What are the precautionary measures?

In Greek law, precautionary measures are found in the fifth book of the Code of Civil Procedure (articles 682-738A). There are 8 precautionary measures, namely:

Bail
Registration of mortgage annotation
Conservatory attachment
Judicial surety
Provisional adjudication of claims
Provisional regulation of status
Sealing, unsealing, inventory, and public deposit
European account preservation order

These precautionary measures are divided into 2 categories: conservative and regulatory measures. The first category includes bail, mortgage annotation, conservatory attachment, and judicial surety. In contrast, all other precautionary measures from the above list belong to the second category. This distinction is important because when the court examines the application, it will only check the legality of the association and not its purpose. Therefore, the judge will only see if the conditions mentioned above are met and will not examine whether the purpose of the association is illegal/unethical unless it is clearly apparent.

2.And in practice?What happens?

A fundamental condition for the litigant to request from the court the adoption of a security measure is to already have an existing right (or a right that is going to arise in the future, but at least its existence is already known) as well as an imminent risk/an urgent situation which is sought to be prevented with the respective security measure. These 2 conditions must cumulatively be met.

It is also important to note that security measures can be requested by application to the court EVEN BEFORE filing a lawsuit for the main case. Simply in this case, the lawsuit must be filed within a certain deadline set by the court (as a rule), which starts from the date of issuance of the decision on the application filed.

3.Is it necessary to have a lawyer’s assistance in security measures?

While Article 94 par. 2 subpar. b of the Code of Civil Procedure provides that the litigant can appear without a lawyer to submit the application, practically since 1/1/2016, representation of the litigants by a lawyer is mandatory even in security measures.

4.Do precautionary measures have peculiarities as a process?

It is true that precautionary measures present several ‘oddities’ that we should be aware of:

On one hand, the court is not bound by the requested precautionary measure from the litigant, so it can order something completely different, as long as it belongs to the relevant group of precautionary measures, as mentioned above.
On the other hand, the precautionary measure ordered SHOULD NOT lead to the complete satisfaction of the litigant’s right (=the litigant’s claim should not be fully covered to allow it to be contested in the subsequent trial).
Furthermore, it is prohibited for the precautionary measure to infringe upon the rights of a third party who is not involved in the lawsuit between the litigants (this is particularly significant in zoning disputes and generally in disputes concerning the demolition of unauthorized buildings).
If multiple precautionary measures seem suitable in the particular case to the judge, they will ultimately choose the one that is the most ‘lenient’ for the opposing party, provided, of course, that the application is accepted (this is done to prevent the temporary judicial protection from acquiring a punitive character in general).
Additionally, no judicial remedy is exercised against the decision on the application for precautionary measures. The only exception is for the possibility of appealing precautionary measures of jurisdiction.
Finally, precautionary measures CANNOT be ordered by an arbitration court. Instead, only a civil court (Justice of the Peace, Single-Member or Multi-Member Court of First Instance) is competent to issue such a decision.

5.How do I file an application for precautionary measures?What do I need to pay attention to?

Precautionary measures can be requested in 2 ways:

Either by depositing a separate deed in the court registry if no lawsuit has been filed for the main case.
Or together with the deed of the lawsuit, as well as in the submissions that the litigant will submit later (if precautionary measures are requested simultaneously with the filing of the lawsuit for the main trial).

The application to be submitted (by either of the 2 ways) must contain certain basic elements:

All the elements that each deed must contain = personal data of the litigant, addresses, tax identification numbers, etc.
The proof of payment of the fee required should be attached to the application.
It should clearly explain the historical basis (i.e., describe the insurable right as well as the urgent situation from which it is threatened).
It should mention elements justifying the legitimization, the lawful interest, and the capacity of judicial representation of the litigant submitting the application.

6.What options do I have if a decision on precautionary measures is issued against me?

Firstly, the temporary validity of the decision on precautionary measures does not determine the final outcome of the main case = things may change in the main trial with a completely different decision. The litigant against whom such a decision has been issued may:

Request, through a petition, the revocation or modification of the decision on precautionary measures if they did not participate in the trial or were not formally summoned, and if there has been a change in the factual circumstances sufficient to justify the litigant’s request.
File a new request for the revocation of the decision on precautionary measures if the trial has concluded with a final decision, or if a decision beneficial to the litigant who filed the request for precautionary measures has been issued, final and enforceable, or if both parties reach a judicial settlement, or finally, if 30 days have elapsed since the conclusion of the trial in any other way.

7. And until a decision is issued on the application?What happens then?

In practice, a decision on precautionary measures by a civil court is issued within approximately one month from the submission and discussion of the application (it may even be earlier). However, if the situation between the litigants is particularly serious, legal provision must be made for this time gap that is created for the litigant affected by the delay. This role is played by the Temporary Order provided for in Article 691A. This is an order issued by the judge that shapes a new legal situation between the litigants (with corresponding rights and obligations for each) UNTIL a decision is issued on the application for precautionary measures. Therefore, this temporary order automatically loses its validity once the above judicial decision is issued.

8. What kind of evidence is required for precautionary measures?

In cases of precautionary measures, a likelihood of proof is required to prove the litigant’s procedural right (which differs from the substantive right to be judged in the main trial and is raised as a preliminary issue in the trial of precautionary measures).

This means that the judge is not required to be fully certain that the actual circumstances invoked by the plaintiff have been proven, but that they are likely to have occurred. It is noteworthy that in this procedure, no court clerk is involved, and for its simplification, any evidentiary means that the litigants consider appropriate may be used (without being bound by the evidentiary prohibitions of the law), as here it is more important for the judge to understand what actually happened between the litigants, rather than to apply the formal rules of the law, which would cause more delay than help the situation.

9. An application for precautionary measures has been filed against me.What options do I have?

In this case, the defendant (now) practically has 2 options:

To defend against the application for precautionary measures (= to appear at the hearing of the application and refute the claims of the opposing party), seeking its dismissal. At this stage, all evidentiary means can be used, while the likelihood requirements for the claims raised apply.
To file a counterclaim against the opposing party (along with defense against the initial application), seeking the issuance of a precautionary measure (the same or different) against the opposing party. It is characteristic that if a counterclaim is filed, the 2 applications will be adjudicated in the same hearing, and thus the judge will issue a unified decision addressing the fate of each application (whether it will be dismissed or accepted). The counterclaim we refer to has a similar treatment to the counterclaim filed by the defendant in regular proceedings, which we will discuss in a separate analysis.

10. What is the consensual registration of mortgage annotation that we often hear about?

This famous precautionary measure is mainly used by banks, which, in order to grant loans to their debtors, require the provision of some tangible security on the debtors’ property. Due to the amount of loans, the registration of a mortgage on real estate is often the only option.

However, there is an important parameter: Direct registration (immediately) is a rather expensive process, due to the cost of court expenses, which the two parties do not wish to incur. For this reason, in practice, the consensual registration of mortgage annotation is preferred, which follows the following procedure: The two parties (lender and debtor) appear before the court upon the request filed by one of the two parties, in order to discuss the filed request. Usually, banking institutions file the request, so they have the status of the lender, and thus the debtor is the one who acknowledges the historical basis of the lawsuit (declaring before the judge that he accepts the claims of his opponent and thus ‘consents’ to the registration of the mortgage annotation). The mortgage annotation has 4 main characteristics:

It is a revocable mortgage, as for the annotation to be turned into a mortgage, the lender must obtain an enforceable title (final court decision, or enforceable payment order) and within 90 days from the acquisition of this title to transfer to the relevant mortgage registry/land registry (where applicable) the relevant title.
The annotation (like the mortgage) is transferred from the outset to the mortgage registry/land registry with a note simply that it is an annotation and not a regular mortgage.
If the property on which the annotation of mortgage was registered is transferred BEFORE the annotation is turned into a mortgage, the annotation (as an encumbrance) follows the property to the hands of the new owner (= when the lender turns the annotation into a mortgage through the procedure mentioned above, they will be able to expedite execution against the property, regardless of the fact that it was transferred).
Due to the principle of temporal priority that applies (also) to mortgages, according to which whoever the lender ‘managed’ to transfer first the title that provides tangible security to the relevant mortgage registry/land registry, it is expedient to mention the following: The mortgage annotation, if turned into a mortgage, will retroactively apply from the day it was written as an annotation (so if it was written as an annotation on 1/23/2019 and the turn was made on 5/19/2022, the annotation will apply as a mortgage written from 1/23/2019, regardless of whether other mortgages were written in the meantime).

Next to the client and his needs.

Athina Kondogianni-Lawyer

The above do not constitute legal advice and no responsibility is taken for them. For more information, please contact us.