Παράλληλη δικαιοδοσία δικαστικών οργάνων επί γαμικών διαφορών στην Κοζάνη στα τέλη του 19ου αι.Part of : Επετηρίς του Κέντρου Ερεύνης της Ιστορίας του Ελληνικού Δικαίου ; No.42, 2010, pages 237-268
Parallel jurisdiction of courts over marital disputes in Kozani towards the close of the 19th century
In the 19th century, alongside the so-called Tanzimat reforms, Ottoman state officials advanced the reorganization of the administrative system of the non-Muslim communities. The reforms in the structure of the Greek Orthodox Community and Church were introduced in 1860 through a set of regulations known as the «General Regulations». Among other things, there was an expansion of the attendance of the laity in the administration of the religious communities. Particularly, with the «Vilayet Law» (1864) the village (and its community) was recognized as the nucleus of the administrative system of Ottoman Empire. The council of elders («Dimogerontia») of the village that was forecasted in the law had tax, administrative and juridical authorities. On the occasion of the «privileges» that had been granted by the Ottomans to the Patriarchate the above mentioned juridical authority was extended, so that, at certain times, the community courts gained territory concerning ecclesiastical in the resolution of private disputes.The community of Kozani (in Western Macedonia), that is said that had been settled the 14th century, knew a growth during the 18th century and acquired a «Regulation» at 1895. It was not acquaintance up to today if apart from the ecclesiastical courts existed also community bodies with power of handing-over of justice. Information on this question offers an unpublished community code with records of the «Dimogerontia» of Kozani which covers the period 1889-1916. With the present work are searched, among others, two records that are registered in this code. They deal with a conflict between two spouses for return of «trachoma» at the duration of marriage, from where it is shown the exercise of juridical power from this community council. The «trachoma» was a donation of money or even real estates from the parents of the bride to the in future groom in order to ensure their daughter’s marriage. It was evolved by simple habit in institution. It created a lot of problems and it compelled the Patriarchate to publish 14 circulars on its restriction during 1700-1844. The background of the conflict is in a few words as follows: Afterwards her dismissal from the marital residence because of epilepsy the (spouse) Ekaterina Koutsousimou sued her husband to the «Dimogerontia» and she asked for her dowry that he possessed to be ensured. Specifically, she demanded an attachment of his own residence so that he does not transfer it to his mother. «Dimogerontia» accepted her claim as legal and provided her with a «tahrir» (confirmation) in order to impose attachment through the (ottoman) political authority (1st record, 10.1.1892). The same plaintiff came back little later with a new (law) suit to «Dimogerontia» and asked the return of «trachoma» of 38 Ottoman pounds as a better hedge against losing her dowry. The defendant spouse invoked that her parents had hidden that she suffered from epilepsy before the marriage. In any case, even if he denied initially, afterwards he accepted to return the «trachoma» (2nd record, 19.1.1892). The above records give us a sign that in 1892 the «Dimogerontia» of community of Kozani was invested with judicial powers over «material disputes» of marital law, even if the «Regulation» of the community that perhaps regulated such subjects was drawn up later (1895). So, we could suppose that this judicial power was grounded to the above-mentioned «Vilayet law» (article 59).As it appears, this jurisdiction was also juridical and accommodating. However, was she exclusive or parallel with that of ecclesiastical courts? In another record (the 3rd one) from the Code of Mixed Ecclesiastical Court of years 1890-1899 we read that the same plaintiff had sued her husband also in the ecclesiastical court with the exactly the same demand. The particular court, at the session of 19.1.1892, applied the provisions of Armenopoulos and Theofilos Bishop of Campania with regard to the dowry, and so it recognized that the wife has a right to take back her dowry. Also, it forced her husband to return the «trachoma» and it assigned the implementation of decision in the executive department of the ottoman authority.The three records above give us a lot of interesting information. We will only mark a few certain ascertainments: l) institution of «trachoma» which was a subject of a lot of disputes had still application in Kozani towards the close of the 19th century. Both courts (Community and Mixed Ecclesiastical) judged the same affair and they led to the same decision, the return of «trachoma» to the spouse while the marriage was in force. 2) we do not know which provisions of the law «Dimogerontia» applied because nothing is mentioned in the proceedings. Contrary, the ecclesiastical court founded its decision in the provisions of Armenopoulos and Theofilos of Campania, 3) it is shown a parallel jurisdiction of both courts in the same marital disputes. Because of minimal information we cannot conclude with safety if there was some kind of distinguishable limit in their jurisdiction. However, as the Metropolite of Kozani Constantios was in the chair of both courts and the laity that constituted them were almost the same, we could say that no explicit bisector lines existed in their competences.This ascertainment is also strengthened by another (fourth) record we find in the code of «Dimogerontia» which dates back to 12.1.1890. According to this, Paraskevas Ladous asked from «Dimogerontia» to give him a second marriage license because the Metropolis had denied as he had defalcated his wife’s dowry. The court of «Dimogerontia» granted the license facing his case with «lenience». But «Dimogerontia» did not have such competence. Only the Church was qualified to issue the authorization of marriage. This element leads us to the estimate that the presence of Metropolite Constantios in the composition of community court cured its incompetence to grant an authorization of marriage. Also, that the two bodies supplemented or even covered their competences of one and other.From all more it results that towards the end of 19th century in the community of Kozani functioned at least two bodies, «Dimogerontia» and Mixed Ecclesiastical Court, which were practicing a «de facto» parallel jurisdiction in disputes of marital law. We are not in position, at the present moment, to conclude the extent of this parallel jurisdiction neither if it extended also in other branch of private law. Besides, these questions have more general interest and they require the investigation of also other testimonies, that exceeds the limits of this work.
Περιέχει πανομοιότυπα του κώδικα 42, Σε μια συνοπτικότερη μορφή, η παρούσα εργασία ανακοινώθηκε στην ΙΒ' Συνάντηση Ιστορικών του Δικαίου που οργάνωσε η Ελληνική Εταιρεία Ιστορίας του Δικαίου στη Νομική Σχολή του Δημοκρίτειου Πανεπιστήμιου Θράκης (Κομοτηνή 22- 24.10.2009).