The defense of the debtor against the request for the imposition of personal detention in civil litigation

Legal Insight

September 2024

Krysta Apostolou, Trainee Lawyer

Summary: Following its abolition for commercial claims against traders and public debts, personal detention has become an exceptional enforcement measure, strictly limited to certain provisions of the Code of Civil Procedure. Primarily, it is sought for the satisfaction of monetary claims arising from torts. This article provides a brief overview of the legal and substantive requirements for imposing such a measure, as well as the possible defenses available to the debtor, with references to case law examples.

Initially, regarding the concept of the institution, personal detention of the debtor essentially means their imprisonment. It is therefore a coercive measure against the individual, resulting in the deprivation of their personal liberty. Despite longstanding challenges and criticisms of this measure, its imposition is now deemed constitutionally acceptable and compliant with the European Convention on Human Rights (ECHR), as long as the strict legal conditions and the principle of proportionality are observed.

A key feature of personal detention as a measure to enforce claims arising from torts is its purely discretionary nature. The court has the discretion to decide whether the circumstances of each case justify its imposition. This discretionary nature is highlighted in the explanatory report of the law, stating that "personal detention is explicitly discretionary and not mandatory for claims arising from torts."

According to Article 1049 of the Code of Civil Procedure (CCP), for the imposition of personal detention, a final court decision ordering it is required. The court also determines the duration of the detention, which, in any case, cannot exceed one year. The same criteria used to assess whether to impose personal detention are considered in determining its duration.

It is important for a debtor facing the threat of personal detention to know that, as explicitly provided by law, even if a decision orders their detention, it will not be enforced if they are unable to fulfill the monetary obligation at the time of execution. Additionally, case law has found that the imposition of personal detention is unconstitutional when the debtor is objectively unable to pay the debt, as then "the deprivation of personal liberty appears as a 'penalty' for non-payment rather than a necessary means of satisfying the creditor's claim" (Court of Appeals of Patras 5/1998).

Moreover, for personal detention to be imposed, the claim must arise from a tort. Article 1047 CCP specifies that only claims arising from torts are subject to personal detention, including all claims from harmful acts attributable to either fault (intent or negligence) of the debtor or those for which objective liability is established. Claims from other causes, such as contractual debts, are excluded from this measure.

It is also noteworthy that if liability for the tort falls on a legal entity, personal detention is imposed on the natural persons representing it. However, the law explicitly excludes representatives of public limited companies (SA), limited liability companies (LLC), and private capital companies (PCC) from personal detention unless they themselves commit a tort individually.

Additionally, the monetary threshold for personal detention is set at a claim exceeding €30,000.

Beyond these formal requirements, what are the substantive criteria that ultimately determine whether the court will impose personal detention? As the ultimate coercive measure against an individual, the court must assess the unique circumstances of each case, taking into account substantive criteria shaped by case law and common sense. Here are some recent judicial examples to illustrate these criteria.

• For instance, in decision no. 1019/2024 of the Athens Court of Appeals, personal detention for two months was imposed based on the following factors: "taking into account: a) the tort committed by the appellant, b) the total amount embezzled, and the specific circumstances of the tort, c) its severity and impact on the functioning of the respondent company, d) the appellant’s intent, and e) the debtor’s solvency and behavior towards the respondent, as they have yet to return any funds".
  
  
• Similarly, decision no. 1210/2024 of the Athens Court of Appeals considered the following criteria: "due to the tort committed and taking into account the amount of the claim, the severity of the act and its consequences, the fault and solvency of the defendant, who lives and works in Dubai and owns real estate in Rhodes, the special circumstances, and the overall behavior of the defendant, personal detention of six months is deemed appropriate and necessary."

Thus, it is clear that substantive criteria, such as the nature and severity of the harmful act, the extent of the damage, the debtor's good or bad faith, their solvency, the socio-economic status of the parties, and the debtor's behavior regarding debt satisfaction, are considered. The debtor can use these factors to demonstrate their good faith and avoid the imposition of personal detention.

In conclusion, personal detention remains an exceptional enforcement measure intended exclusively for claims arising from torts. The Code of Civil Procedure offers the debtor several safeguards to prevent or overturn its imposition. Moreover, the substantive criteria considered by the courts provide significant assistance to the debtor in resolving the dispute in a human manner.