Communicated on 20 October 2020
Published on 9 November 2020
SECOND SECTION
Application no. 20256/20
Vincenc Vinko DOLENC
against Slovenia
lodged on 30 April 2020
SUBJECT MATTER OF THE CASE
The application concerns the question whether the Slovenian courts, before they recognised a foreign judgment issued against the applicant in the proceedings before an Israeli court, duly satisfied themselves, as required by Article 6 of the Convention, that the applicant had had a fair trial in those proceedings.
On 20 May 1992 the applicant operated on E, an Israeli citizen who travelled to Slovenia for the surgical removal of his tumour. Following the surgery and complications in the postoperative care, E was left severely disabled. Subsequently, he initiated civil proceedings against the applicant in Israel, seeking compensation for the damage he had incurred. The applicant, who was initially represented by a lawyer, made several submissions in the proceedings in Israel, including motions for evidence. He refused to go to Israel to be heard in person and refused to be heard via a videoconference, insisting on the questioning (of him and his witnesses) to be conducted via the international judicial assistance proceedings in accordance with the Hague Convention. After the applicant cancelled the mandate to his Israeli lawyer and nobody appeared on his behalf at the hearing scheduled for the presentation of the defence case, the Tel Aviv District Court refused to continue with the international judicial assistance proceedings that had been initiated with respect to the hearing (before the Slovenian courts) of witnesses on the applicant’s behalf. Subsequently, the court excluded from the case file the written statements of the applicant and the witnesses on his behalf. On 9 June 2005 it decided that the applicant was fully liable for the damages. On 19 January 2006 it ordered the applicant to pay compensation of several million euros. Both judgments were served on the applicant’s former lawyer who had been appointed by the Israeli court to serve as the applicant’s agent for serving court documents in Israel and informing the applicant of any matters at the court’s request. No appeal was lodged against either of the judgments.
In 2011, E applied for recognition of the above Israeli judgments in Slovenia. In the repeated proceedings (the Constitutional Court having reversed the lower courts’ decisions in March 2016), the Ljubljana District Court dismissed E’s application on the grounds of lack of reciprocity in recognising judgments and a violation of equality of arms in determining the amount of pecuniary damages. It rejected the applicant’s objections regarding an alleged violation of the right to adversarial proceedings and the right to a remedy in Israel. Following the claimant’s appeal, the Supreme Court reversed the District Court’s decision and recognised the Israeli judgments, finding the applicant’s arguments of lack of reciprocity belated and ill-founded. It reiterated that the applicant had had an opportunity to participate in the proceedings before the Israeli courts but had refused to do so of his own will. The Constitutional Court did not accept the applicant’s constitutional complaint for consideration, finding that the lower courts had reviewed the Israeli judgments and had satisfied themselves that the proceedings in Israel fulfilled the guarantees of Article 6 of the Convention. In its opinion, the applicant had been provided with reasonable opportunities to participate in the proceedings in Israel.
The applicant complains that in recognising the judgments of the Tel Aviv District Court, which had been rendered in unfair proceedings, where all the evidence and submissions put forward by him had been rejected or disregarded and the judgments had been served on his former lawyer, depriving him of the possibility to appeal, the Slovenian courts infringed his right to a fair hearing under Article 6 § 1 of the Convention.
QUESTIONS TO THE PARTIES
Have the Slovenian courts in the proceedings for recognition of judgments adopted by the Tel Aviv District Court on 9 June 2005 and 19 January 2006 violated the applicant’s right to a fair hearing under Article 6 § 1 of the Convention? In particular, have the Slovenian courts, before recognising those judgments, duly satisfied themselves that the proceedings before the Israeli courts fulfilled the guarantees of a fair trial and did not amount to a flagrant denial of justice (see Pellegrini v. Italy, no. 30882/96, §§ 40-48, ECHR 2001‑VIII, and Avotiņš v. Latvia [GC], no. 17502/07, § 98, 23 May 2016), having particular regard to the fact that in those proceedings
(i) the applicant’s motion to examine him and his witnesses before the Slovenian courts via the international judicial assistance proceedings had been rejected;
(ii) his written statements and the written statements of witnesses on his behalf had been excluded from the case file and had not been considered in the adjudication of the case; and
(iii) the judgments and other judicial documents had been served on the applicant’s former lawyer?
The Government are further requested to submit a copy of the notice of the Ministry of Justice (2 October 2004) sent to the Israeli authorities in respect of the international judicial assistance proceedings.
Full & Egal Universal Law Academy