Information Note on the Court’s case-law 206
April 2017
Schmidt v. Latvia - 22493/05
Judgment 27.4.2017 [Section V]
Article 6
Civil proceedings
Article 6-1
Fair hearing
Failure by divorce court adequately to ensure proceedings had been served on respondent: violation
Facts – The applicant separated from her husband with whom she had been living in Riga (Latvia) and moved to the couple’s former residence in Hamburg (Germany). Unbeknown to the applicant, her husband subsequently brought divorce proceedings in Latvia. He informed the divorce court that he did not know her current address. After an initial failed attempt to serve the divorce papers on the applicant at the couple’s Riga address, the divorce court effected service through two notifications in the Latvian Official Gazette. Unaware of the proceedings, the applicant did not attend the hearing and the divorce was pronounced in her absence. In the Convention proceedings, she complained under Article 6 § 1 that she had been denied a fair hearing.
Law – Article 6 § 1: Comparative law research concerning service procedures in thirty-one Council of Europe member States indicated that plaintiffs were required to indicate the defendant’s address. Where the address was unknown, reasonable efforts had to be made to establish it, with the onus in certain States being on the domestic courts and in others on the plaintiff or another party such as a prosecutor, bailiff or special representative. The Court emphasised however that, regardless of which approach was chosen, the domestic authorities had to act with due diligence to ensure that defendants were informed of proceedings against them and given the opportunity to appear before the courts and defend themselves.
Latvian law did not require the domestic courts to take reasonable steps to establish the defendant’s place of residence of their own motion. Nor were they or any other person or official required to verify whether any, let alone sufficient, steps for identifying the defendant’s address had been taken by the plaintiff, or to provide safeguards in a situation where the plaintiff had no interest in establishing the defendant’s place of residence or was concealing such information from the court. The Court emphasised that the important task of informing defendants of proceedings brought against them could not be left to the plaintiff’s discretion. In addition, domestic courts must test the veracity of information submitted to them by a plaintiff. In the instant case, however, despite several indicators that the husband was aware of the applicant’s place of residence, the divorce court had not attempted to verify the truthfulness of the information he had provided. The divorce proceedings had thus been incompatible with the requirements of a fair trial.
Conclusion: violation (unanimously).
Article 41: EUR 5,000 in respect of non-pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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