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A1. Supreme Court (B1' Civil Chamber) decision No 731/2005

1. A recent Supreme Court decision (No 731/2005 of B1 Civil Chamber) created ambiguity regarding the beneficiaries entitled mental distress for a person's death (mental distress being the equivalent to victim's moral harm compensation in cases of personal injuries caused by tort). In particular and according to the decision a) the parents-in-law of the deceased as well as b) the husband and the children of his sister are not considered family of the victim, even if they were victim's sole relatives, thus they are not entitled to mental distress compensation.

This interpretation of law (article 932 item 3, Greek Civil Code) narrows the circle of beneficiaries entitled to mental distress compensation. The above provision reads "In a case of death of a person moral harm may be awarded to victim's family due to mental distress". By interpreting this provision and especially the meaning of family the court ruled that this consists of the closest and very much connected relatives of the victim suffered emotionally for victim's death whereas it is irrelevant whether those family persons were living with the victim or not. To support this position the court derived argument also from articles 57 item 2 and 59 of Greek Civil Code listing restrictively the persons entitled to protect the personality of a deceased and therefore claim moral harm, among which the persons named above are not included.

Moreover same decision reminds that, in any case, proof of close connection to the victim (love and affection elements) has to be always, namely additionally and separately, established so that a beneficiary - family member is entitled to the compensation at issue; therefore, the status an accepted family member alone is not enough for an award of mental distress compensation.

2. The decision discussed contradicts previous decisions of other Supreme Court's Chambers which, for instance, have included parents-in-law within victim's family members, thus awarding to them mental distress damages. The matter will now have to be resolved by the plenary session of the Supreme Court and hopefully a clear guidance will be given.

3. Also to be mentioned is that a narrow interpretation of family has been -for a long- a firm claim of the insurance industry, according to which only the parents, the husband/wife and the children of the deceased should be considered family members entitled to mental distress payment. Furthermore, insurers are also lobbying for the enactment of a 15.000 euros cap per person for same kind of payment (which has not been the case thus far).

A2. Supreme Court (A' Civil Chamber) decision No 132/2006

Another Supreme Court decision (No 132/2006 of A Civil Chamber) proceeded for the first time to a review of the amount of a moral harm compensation awarded by a lower court considering same amount an excessive one, based on the principle of analogy.

1. In particular, article 932 item 1 of the Greek Civil Code provides that "In case of a tort, irrespectively of the compensation for the material damage, the court may award, subject to its consideration, reasonable monetary satisfaction due to moral harm." This provision allows courts of substance (ie. of the first and second instance) the discretion to award or not moral harm compensation in a case of a tort, based on the evaluation of the overall facts of the case and depending on the determination of whether moral harm has been caused or not to the injured person (or to its beneficiaries in case of a death); by a positive determination, courts have also the discretion to calculate the specific amount being awarded and the result of the same, namely the sum eventually awarded, may not be reviewed by Supreme Court.

2. Whereas the above are generally accepted and have been confirmed by Supreme Court in this case, same continued further referring to the constitutional "principle of analogy" (article 25 para. 1 of the Greek Constitution) which applies to all State organs, including the judicial ones, an evaluation of correspondence between the means and the objectives sought, in all cases involving determination of the balance of rights and obligations. According to Supreme Court, this principle of analogy obliges the court of substance not to award a low moral harm compensation undermining the effects of the action judged but on same time not to award an excessive amount resulting to an unjust enrichment of a party against the other. The violation of that constitutional principle may be challenged and thus it is subjected to Supreme Court's review.

3. The significance of the above decision is great. One may analyse it extensively but in the frame of the present memo I may only relate same to and compare it at same time with a) the very high amounts awarded under class action proceedings in other jurisdictions (primarily USA), b) the current discussion in Europe on litigation funding and the distortions that it may cause for plaintiffs being funded and bearing no risk of the case at all and c) the abusive practices of plaintiff lawyers initiating unsubstantiated class actions the result of which being minimum compensation of the beneficiaries and huge earnings for the lawyers.

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