Agrégateur de flux

Is a national procedural provision determining who can act as a party to the proceedings capable of temporarily preventing the return of a child ordered within the framework of the HCCH 1980 Child Abduction Convention? This question has been recently answered in the affirmative, as illustrated by the recent developments in a case being currently under scrutiny of both the Polish Constitutional and Supreme Courts.

 

Context of the case…

A child is born in Poland. Soon after her birth, her mother takes her to Belgium where the child’s father lives. The couple separates when the girl is one year old. The woman and her daughter return to Poland.

A procedure conducted within the framework of the HCCH 1980 Child Abduction Convention is pending before a Polish District Court since December 2017. By its decision of January 2018, the District Court orders the return of the child. An appeal against the decision is dismissed by a Regional Court in June 2018.

After the expiration of a delay for the voluntary return of the child, the father lodges an application for a forced return. The application succeeds and the proceedings for the enforcement of the return are initialized. The return of the child, however, does not happen.

As we learn from media coverage of the case at hand, in November 2019, a Belgian court grants exclusive parental care to the father. In what can only be considered as a sudden and tragic event, the day before that ruling was delivered, the child’s mother had passed away. From then on, the girl’s grandmother takes care of her.

The child’s grandmother lodges an application to join the proceedings in which the decisions of January and June 2018 were adopted. In parallel, she lodges an application to join the proceedings on the enforcement of the return. It is being argued that the grandmother is the child’s closest known relative and her factual caretaker and as such she fulfills the requirements needed to be considered as an ‘interested person’ within the meaning of Article 510(1) of the Polish Code of Civil Procedure. According to that provision ‘[a]n interested person is anyone whose rights are affected by the outcome of proceedings; such person may join the case at any stage before it is closed at second instance. On joining the case an interested person becomes a party. An order refusing to allow an interested person to join the case may be appealed’.

The application to join the proceedings in which the decisions of January and June 2018 were handed down is dismissed in January 2020. It is decided that the grandmother lacks ‘legal interest’ to join the proceedings as the outcome of these proceedings does not concern her rights. The appeal brought against this decision is dismissed in June 2020.

 

… brought before the Constitutional Court …

The grandmother’s legal counsels lodge a constitutional complaint before the Polish Constitutional Court. Under Polish law, a constitutional compliant allows to challenge a provision that served as a basis for a final decision on the applicant’s freedoms, rights or obligations specified in the Constitution and to request a determination of that provision’s non-conformity with the Constitution.

In the constitution complaint in question, the grandmother’s counsels are challenging the aforementioned Article 510(1) of the Polish Code of Civil Procedure. They argue that by not allowing for the participation in the proceedings of the child’s grandmother, her relative and sole factual caretaker, this procedural provision violates, inter alia, the applicant’s dignity (Article 30 of the Polish Constitution), right to legal protection of her family life (Article 47 read in conjunction with Article 18 of the Constitution according to which ‘family’ – alongside ‘marriage’, ‘motherhood’ and ‘parenthood’ – shall be placed under the protection and care of the Republic of Poland) as well as the right to a fair trial not barring access to legal protection enshrined in Articles 45(1) and 77(2).

According to the statement of reasons for the complaint, the procedural provision in question is preventing the grandmother from initiating proceedings allowing to determine her rights and from being heard within the proceedings initiated at the request of other applicants. Against this background, while the decision of June 2018 is final, in its judgment of 22 November 2017, III CZP 78/17, the Polish Supreme Court considered that even a final decision ordering the return of a child may be amended, if the best interests of the child concerned so require. It is however unclear whether this is exactly the legal route that the child’s grandmother is intending to take.

The constitutional complaint is not directly arguing that the aforementioned procedural provision violates Article 72 of the Polish Constitution which serves as an equivalent of the ‘child’s best interest clause’ known from legal instruments (still, one should keep in mind that the grandmother is the applicant, not the child). Yet, alongside the Charter of Fundamental Rights of the EU [see its Article 24(2)] and Article 3(1) of the UN Convention on the Rights of Children, Article 72 is invoked in the statement of reasons for the complaint.

Interestingly, in the constitutional complaint, the applicant’s counsels are asking for a suspension of the execution of the decision of January 2018 by which the return of the child was ordered. According to the Act of 30 November 2016 on the Organisation of the Constitutional Court and the Mode of Proceedings Before the Constitutional Court and – more precisely – its article 79(1), ‘[the Constitutional Court] may issue a provisional decision about the suspension of the execution of a determination in the case with regard to which a constitutional complaint has been lodged with the [Court], if the execution of a judgment […] could cause irreversible consequences resulting in serious damage for the complainant, or when the said suspension is justified by an important public interest or a different important interest of the applicant’.

In the reported case, the counsels argue that the return of the child would lead to irreversible consequences for the applicant. Irrespectively of the outcome of the constitutional complaint, the return of the child would provoke a total destruction of her family life in its present form. Given the profound emotional relation with the child, the child’s return would be an intolerable damage to the applicant’s dignity and integrity as human being. Moreover, according to the counsels, an important public interest also pleads in favour of the suspension. The child is deeply integrated in her social and family environment and she does not speak the language her father uses, while the latter does not speak Polish.

By its order handed down in late August 2020, the Constitutional Court suspends the enforcement of the decision ordering the return of the child to Belgium, at least until the final ruling on the constitutional complaint is delivered in the case now enregistered under no. SK 76/20.

 

… as well as before the Supreme Court

While it is not the object of our main interest here, it is worth noticing that back in June 2020, an ‘extraordinary complaint’ was introduced by the General Public Prosecutor against the decision handed down by the Regional Court in June 2018.

An ‘extraordinary complaint’, introduced back in 2018, may be lodged by the selected public authorities before the Supreme Court to challenge a final judgment.

As we learn from the press release of the Prosecutor’s office, the ‘extraordinary complaint’ at hand seemingly challenges the decision of June 2018 on account of incorrect assessment of the Regional Court that the return of the child would not result in a psychological harm and not place her in an intolerable situation. That arguably incorrect assessment lead to a manifestly incorrect application of Article 13(b) of the HCCH 1980 Child Abduction Convention. Moreover, it seems that it is being argued that a child’s return can be ordered only after a thorough examination of the child’s situation and the exclusion of circumstances in which there would be a serious risk that the return of the child would expose him/her to physical or mental harm or otherwise place him/her in an intolerable situation. Failing such examination, an order violates the constitutional incarnation of ‘child’s best interest clause’ (Article 72 of the Polish Constitution).

This post has been written by Vincent Richard, Senior Research Fellow at the MPI Luxembourg, Department of European and Comparative Procedural Law.

On 14 August 2020, the Luxembourg government introduced a bill before the Parliament aiming to introduce a collective redress procedure (file 7650) into Luxembourg Law.

This objective was set out in the coalition agreement of 2018 where the Democratic Party, the Luxembourg Socialist Workers’ Party and The Greens defined the policy outline for the  following five years.

The government’s intention is firstly to set up a collective redress mechanism for violations of consumer law and secondly to extend it afterwards to other areas such as environmental law, unlawful discriminations, abuse of dominant position and unfair competition.

While inspired by the proposal for a European directive on representative actions for the protection of the collective interests of consumers, the bill had been finalised before an agreement was reached by the European Parliament and Council negotiators (reported here). The text of the bill may therefore evolve to reflect the latest progress of the EU negotiations.

The collective redress scheme proposed so far is heavily inspired by the corresponding mechanisms adopted in France and Belgium. The procedure is divided into three phases with a first judgment on admissibility, a second one assessing the professional’s liability and an enforcement phase to allocate compensation.

Admissibility Phase

The whole procedure takes place before the district court of Luxembourg and it can be initiated by a single consumer or a qualified entity. The first interesting aspect of the proposal is that qualified entities are not only Luxembourg and European consumer organisations but also non-profit organisations or a sectorial regulatory authority such as the banking sector regulator or the Data Protection Commission. For the action to be declared admissible, individual consumers and qualified entities must show that they have legal expertise and sufficient financial and human resources to adequately represent several consumers. They will also need to prove that a collective redress is more efficient than a typical individual action. Time will tell how much of an obstacle these thresholds will constitute. If the action is financed by a third party, the court has to verify that this third party is not a competitor of the professional and that it may not influence decisions taken by the representative. If the claim is declared admissible, the court rules on the publicity of the judgment and the procedure enters its second phase.

Judgment on Liability and Mediation

The second phase starts with a mandatory meeting between the representative and the professional where parties must decide if they want to resort to mediation. The bill is quite detailed on this mediation process which may be conducted by specially approved mediators. Mediation last six months and parties may ask the court to extend this delay by another six months. If an agreement is reached, it has to be approved by the court. If there is no agreement, the procedure continues before the court for a ruling on the professional’s liability.

This judgment on liability is a two parties’ procedure between the professional and the representative where the latter may ask for injunctive and compensatory relief. The court rules on the liability of the professional and on the criteria for the constitution of the group of consumers. As is the case in Belgium, the group may be constituted via an opt-in or an opt-out procedure. The opt-out procedure may not be used to compensate bodily harm or moral damages. Opt-out is also excluded if the group involves consumers located outside of Luxembourg which may be a significant limitation in practice. In the judgment on liability, the court also rules on the publication of the judgment, on the time limit given to consumers to opt-in or out and on the time limit given to the professional to compensate the group. Finally, the court decides whether it is necessary to appoint an administrator to handle the enforcement of the judgment.

 Enforcement of the Judgment

If enforcement is not handled directly by the professional, it is conducted under the supervision of an administrator who is paid by the professional. A supervising judge is appointed to handle procedural issues related to enforcement. At the end of the enforcement process, the administrator submits a report to the supervising judge who must approve it to bring the proceedings to an end. If a consumer belonging to the group has not been compensated, the supervising judge refers their individual claims to the court.

Preliminary Assessment

As it stands now, the bill is rather well drafted and it could have a real impact on the Luxembourg legal landscape. Although it is hard to be very optimistic when considering the relative failure of collective redress in France, Belgium and more generally in Europe, Luxembourg may have some encouraging distinctive features. The country hosts the seats of some of the biggest companies in Europe and it features a dense network of highly creative lawyers. Besides, if full contingency fees are forbidden under the ethical rules of the Luxembourg Bar Association, success fees whereby a limited part of the lawyers’ fees depends upon the result of the litigation are possible. Third party litigation funding is also allowed in Luxembourg and expressly taken into account in the collective redress bill. The main areas of concern are, on one hand, the potential length of the procedure considering that each phase gives rise to a judgment that could be appealed and, on the other hand, the overall cost of such actions.

The bill still needs to receive opinions from the Conseil d’État, professional associations and the main consumer organisation before public debate takes place in Parliament. Readers of this blog will be informed in due course of the content of the law once it becomes final.

La CEDH rejette à l’unanimité pour irrecevabilité la requête adressée par un professeur belge de religion islamique qui invoquait sa liberté d’expression pour contester la sanction dont il avait fait l’objet. Celui-ci était l’auteur d’une lettre ouverte adressée à la presse portant notamment sur les attentats de Paris de janvier 2015, visant en particulier le journal Charlie Hebdo.

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Le juge des référés du Conseil d’État a suspendu, 11 septembre, la chasse à la tourterelle des bois au nom, entre autres, du principe de précaution. 

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Irrecevabilité - Non lieu à renvoi

The Law Amending the Civil Procedure Law and Certain Laws No. 7251 has entered into force on 28 July 2020 and has amended the Consumer Protection Law No. 6502. Accordingly, a mandatory mediation process has been implemented under Article 73/A of the Consumer Protection Law as a prerequisite to file a lawsuit relating to consumer disputes having a monetary claim of 10,390 Turkish Liras and above. Provisional Article 2 of the Consumer Protection Law excludes the application of this mandatory mediation rule to cases pending before the first instance and the regional courts of appeal as well as the Court of Cassation, as of the date of entry into force of this amendment.

The amendment in the Consumer Protection Law further envisages exceptions to the said mandatory mediation process. Pursuant Article 73/A/2 of the Consumer Protection Law, disputes within the competence of consumer arbitration tribunals and the objections made against the decisions of the tribunal, interim injunctions, disputes regarding the suspension of production or sales of goods or recalling of the goods from the market and disputes having a nature of a consumer transaction and arising from rights in rem in relation to a immovable property are not subjected to this mandatory mediation process. It is important to add that pursuant Consumer Protection Law certain consumer disputes are envisaged to be resolved through a mandatory consumer arbitration process.

Under Turkish law, a mandatory mediation condition has also been envisaged relating to commercial disputes and certain employment disputes. In relation to commercial disputes, Turkish Commercial Code Article 5/A is the relevant piece of legislation. It is clearly regulated under this article that as of 01.01.2019, completing the mandatory mediation process prior to court proceedings is a prerequisite for the commercial disputes relating to receivables and compensation of a sum. Relating to employment disputes, the relevant piece of legislation regarding the prerequisite of mediation is the Law on Labour Courts numbered 7036. Pursuant Article 3/1 of the said law, in relation to legal disputes relating to employee or employer receivables, compensation and reemployment based on law or individual or collective bargaining agreements, having applied to the mediation process prior to court proceedings is regulated as a prerequisite. This procedural requirement does not apply to pecuniary and non-pecuniary compensation claims arising from work accident or occupational disease and declaratory and recourse actions as well as objections related to such claims pursuant Article 3/3 of the Law on Labour Courts.

It is also important to note that pursuant Article 18/A/11 of the Law on Mediation in Civil Disputes, in the event that the mediation process is ended due to the absence of one of the parties in the first meeting without a valid excuse, that party shall be liable from the costs of litigation; whilst the attorney fees cannot be claimed from the other party even where this party eventually partially or completely succeeds in the relevant case. Nevertheless, in relation to consumer disputes, the recent amendment under the Consumer Protection Law envisages an exception under Article 73/A and provides that where the consumer does not attend the first meeting of the mediation process without a valid excuse he/she shall not be liable of the legal costs and the fees of his/her attorney can be collected from the other party where he/she receives a judgement in his/her favour.

Pursuant the lex fori principle, where a dispute involving a foreign element is brought before a Turkish court, the prerequisite of having completed the mandatory mediation process shall be fulfilled pursuant the aforementioned laws in relation to consumer, commercial and employment disputes. Where the parties fail to fulfill this prerequisite and initiate court proceedings in the absence of a pre-trial mediation process, the case will be dismissed with no further action pursuant Article 18/A/2 of the Law on Mediation in Civil Disputes.

Written by Danilo Ruggero Di Bella,
attorney-at-law (Bottega DI BELLA), member of the Madrid Bar and the Canadian Institute for International Law Expertise (CIFILE)

The USA is a Contracting Party to the 1965 Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters (the “Hague Service Convention”, which it ratified in 1967. The Hague Service Convention is a multilateral treaty whose purpose is to simplify, standardize, and generally expedite the process of serving documents abroad, thus it plays a central role in international litigation. The Hague Service Convention specifies several allowed methods of service to provide due notice of a proceeding in one Contracting State to a party in another.
The primary method (and main alternative to service through diplomatic channels) — laid out in Articles 2 to 7 of the Convention — is via a designated Central Authority in each Contracting State. When a Central Authority receives a request for service, it must serve the documents or arrange for their service. This method is usually faster than service through diplomatic and consular agents (which remain available under Article 8 of the Convention), along with the possibility that two or more Contracting States may agree to permit channels of transmission of judicial documents other than those provided for in the Convention.
Further, at Article 19 the Convention clarifies that it does not preempt any internal laws of its Contracting States that permit service from abroad via methods not otherwise allowed by the Convention. Thus, it could be argued that a sort of favor summonitio (borrowed by the principle of favor contractus) permeates the entire instrument, in that the Convention strikes a fair balance between the formal notice of a proceeding and the validity of an effective summon in favor of the latter, to allow for swift international litigations. Indeed, another fast method of service expressly approved by the Convention is through postal channels, unless the receiving State objects by making a reservation to Article 10(a) of the Convention. This is considered the majority view shared by multiple jurisdictions. However, in the United States different interpretations existed on this point, because Article 10(a) of the Convention does not expressly refer to “service” of judicial documents (it instead uses the term “send”). Consequently, it was an unsettled question whether Article 10(a) encompassed sending documents by postal channels abroad for the purpose of service, until the US Supreme Court has been called to interpret this instrument.
US Supreme Court’s interpretation of Article 10(a) of the Hague Service Convention
The USA did not make any reservation objecting to service by mail under Article 10 of the Convention. In Water Splash, Inc. v. Menon, 581 U.S. ___ (2017), the US Supreme Court pronounced itself on Article 10(a) of the Hague Service Convention to resolve these conflicting views, according to some of which the Convention was to be read as prohibiting service by mail.
After a detailed contextual treaty interpretation and also a comparison of the text with the French version (equally authentic), the US Supreme Court found that that Article 10(a) unmistakably allows for service by mail. The Supreme Court further clarified that “this does not mean that the Convention affirmatively authorizes service by mail.” It held that “in cases governed by the Hague Service Convention, service by mail is permissible if two conditions are met: first, the receiving state has not objected to service by mail; and second, service by mail is authorized under otherwise-applicable law.” This means that it is not The Hague Service Convention to authorize service by mail, but it must be the lex fori to do so (the Convention simply permits service by mail). So, where the Convention applies, it is not enough to make sure that a summon effectuated abroad is valid under the Convention just because that foreign jurisdiction allows for service by international registered mail. It further must be ascertained that the jurisdiction in which the case is pending authorizes service by mail requiring a signed receipt. However, by a simple reading of the US Federal Rules of Civil Procedure, it is possible to note how this set of rules misunderstood the scope of The Hague Service Convention.

The US Federal Rules of Civil Procedure and the Hague Service Convention
In cases pending before a US federal court where the Hague Convention applies and where the foreign jurisdiction (in which the defendant resides or is registered) allows for service by mail, the plaintiff – who serves the defendant abroad – should further wonder whether US Federal law authorizes serving the defendant in a foreign country by mail.
Rule 4 of the Federal Rules of Civil Procedure (FRCP), dealing with summons, answers this question. In particular, Rule 4(h)(2) FRCP deals with serving a corporation abroad by remanding to Rule 4(f) FRCP, which in turn deals with serving an individual. So, the same rule applies to serving either an individual or a corporation abroad. Rule 4(f)(1) FRCP makes express reference to the Hague Service Convention:
“(f) Serving an Individual in a Foreign Country. Unless federal law provides otherwise, an individual—other than a minor, an incompetent person, or a person whose waiver has been filed—may be served at a place not within any judicial district of the United States:
(1) by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents;”
However, as stated by the US Supreme Court in Water Splash, Inc. v. Menon, the fact that Article 10(a) of the Hague Service Convention encompasses service by mail does not mean that it affirmatively authorizes such service. Rather, service by mail is permissible if the receiving State has not objected to service by mail and if such service is authorized under otherwise-applicable law.
Probably, the words “[…]as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents;” in Rule 4(f)(1) FRCP should be more correctly rephrased with “[…]as those allowed by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents;” in order to be in line with the jurisprudence of the US Supreme Court.
So, as Rule 4(f)(1) FRCP does not provide the final answer, the plaintiff needs to look at Rule 4(f)(2)(C)(ii) FRCP, which expressly authorizes the use of any form of mail that requires a signed receipt.
Hence, in cases pending before a federal US court where the Hague Service Convention applies and the receiving states permits service by mail, a plaintiff may serve a company or an individual abroad by means of international registered mail by virtue of Rule 4(f)(2)(C)(ii) FRCP (rather than Rule 4(f)(1) FRCP remanding to The Hague Service Convention). Consequently, the FRCP should be amended to avoid further misunderstandings as to the scope of application of the Hague Service Convention by replacing the word authorized with the term allowed at Rule 4(f)(1).

Article 27/A of Law on Civil Registry Services provides an exception to the recognition and enforcement regime under Turkish law. Foreign decisions that shall be subjected to the recognition process envisaged under Article 27/A of the Law on Civil Registry Services are specified as those relating to divorce, annulment or nullity of a marriage or a declaratory action to show the existence or non-existence of a marriage. In this regard, the decisions relating to custody, child maintenance, marital property or compensation shall not be given any effect pursuant this new process under Article 27/A of Law on Civil Registry Services. “Regulation on Registration of Decisions Rendered by Administrative or Judicial Authorities to Civil Registry” (Regulation) further stipulates conditions required for a divorce decision to be recognised pursuant this new process.

For the realisation of the recognition under this process, the foreign decision on the aforementioned subject matters, shall be final and rendered by a duly authorised administrative or judicial authority. Where the foreign divorce decision is manifestly contrary to Turkish public policy, it shall not be recognised. Finally, there shall not be any ongoing legal proceedings or dismissed claims relating to the decision which is subjected to recognition pursuant Article 27/A of the Law on Civil Registry. Where the conditions under Article 27/A are not fulfilled and hence the registration request at the civil registry is denied, recognition proceedings may be initiated before Turkish courts pursuant the Turkish Private International Law and International Civil Procedure Code (PIL Code).

When compared with the recognition and enforcement regime under the PIL Code, two significant differences are particularly noticed. Firstly, through this new process the foreign decision is given an affect outside of the court proceedings, though a direct amendment made at the civil registry provided that the aforementioned conditions are fulfilled. In order to be able to make the amendment regarding their civil status, the parties, their legal representors or attorneys shall apply to the civil registrar either together or separately provided that there shall not be more than 90 days between the separate applications of each party or their representatives.

Secondly, the administrative decisions may also be recognized in Turkey pursuant this process. In principle, pursuant Article 50 of the PIL Code, there needs to be a court decree as a pre-requisite for recognition of a foreign decision and thus, the administrative decisions will not be recognised in Turkey. Indeed, prior to Article 27/A being implemented, foreign divorce decisions rendered by foreign municipalities were refused to be enforced in Turkey. Non-recognition of foreign municipality decisions caused criticism amongst Turkish legal scholars. Whilst this exception regarding recognition of administrative decisions under Article 27/A of the Law on Civil Registry is considered as a positive development certain issues are open for discussion. Amongst the issues that raised doctrinal discussions are the appeal procedure regarding the registration made at the civil registry made pursuant this process and the interpretation of public policy exception by the civil registrar bearing in mind that Turkish statutory sources do not provide a definition for Turkish public policy and that interference of public policy requires a complex legal reasoning. Finally, the legal nature of the process under Article 27/A is also argued as to whether it may be considered as a recognition decision in its technical sense.

A series of webinars devoted to the Conventions of the Hague Conference on Private International Law will be offered from 16 to 18 September by the the Supreme Court of the Philippines, the Philippine Judicial Academy and the Department of Foreign Affairs of the Philippines.

Speakers include Christophe Bernasconi, Secretary General of the Hague Conference, Philippe Lortie, First Secretary of the Conference, and Ning Zhao, Senior Legal Officer at the Conference’s Permanent Bureau.

See here for more information available.

Telenor Magyarország
Liberté d'établissement
La Cour interprète, pour la première fois, le règlement de l’Union consacrant la « neutralité d’Internet »