The ECtHR on The Right to a Fair Hearing in Recognising a Foreign Judgment

A few weeks ago (20 October 2022), the European Court of Human Rights delivered the judgment on the case of Dolenc v. Slovenia, No 20256/20.

In this very interesting case, the Court was asked whether Slovenia had infringed the applicant’s right to a fair hearing under Art 6 (1) ECHR by recognising a foreign judgment (i.e. a judgment from an Israeli district court), which he alleged had been rendered in unfair proceedings.

The applicant raised many complaints to demonstrate his inability to participate effectively in the trial in Israel. Among them, a key role has been played by the Israeli court’s refusal to examine him and his witness by way of the procedure under the 1970 Hague Convention on the taking of evidence abroad in civil or commercial matters.

As the Court held unanimously (paras 74-76): “The Court observes that following the applicant’s cancellation of the power of attorney of his lawyer, the Israeli district court decided not to proceed with the Hague Evidence Convention procedure and to call on the applicant to present his evidence in court in Israel, as well as submit his concluding statement. The applicant did not appear at any of the hearings, nor did any of his witnesses, and did not submit any further statement. As a result of this, the case was decided on the basis of the allegations made by the plaintiff and the evidence put forward by him… The Court finds it important to note that, given the nature of the claim brought against the applicant, which by the Israeli district court’s own findings concerned the care which had been predominately provided by other members of the medical team at Ljubljana University Hospital, the examination of the medical staff was crucial for establishing the facts and thus to the outcome of the proceedings… Moreover, the Israeli district court never examined the Slovenian law expert even though his examination would be important for the assessment of the applicant’s argument that the Slovenian law should have applied to the case and that accordingly the claim had expired, and, in the alternative, that the hospital should be held responsible for any medical malpractice… The failure to examine him meant that the Israeli district court without any further consideration applied Israeli law, which was unfavourable to the applicant

“75. The Slovenian courts did not give due regard to the above aspects of the case. In their decisions, they did not attach sufficient weight to the consequences that the non-examination of the witnesses (including the expert on Slovenian law) via the Hague Evidence Convention procedure and the ensuing exclusion of their statements had for the applicant’s right to present evidence. This right is a fundamental component of the principle of a fair hearing and the Slovenian courts should have satisfied themselves that it had been respected in the proceedings in Israel before recognising the Israeli judgments.

“76. In view of the foregoing, the Court finds that the Slovenian courts, by failing to duly satisfy themselves, before recognising the Israeli judgments, that the trial in Israel had been fair, breached their duty under Art 6 (1) of the Convention. There has therefore been a violation of this provision”.

The European Court of Human Rights has already dealt with complaints relating to the recognition or enforcement of civil or commercial decisions rendered by foreign courts (see, Pellegrini v. Italy, No 30882/96, Saccoccia v. Austria, No 69917/01, Avotiņš v. Latvia, No 17502/07).

On the right to a fair trial, also in recognising a foreign judgment, the readers of RDIPP may refer to:

Salerno, 2011, No 4, 895 ff.;
Schilling, 2012, No 3, 545 ff.;
Leandro, 2016, No 1, 22 ff.

Moreover, on recognition of foreign judgment, see, in our Book Series:

Pocar, Viarengo, Villata (eds.), Book No 76;
Ferrari, Ragno (eds.), Book No 80.