28 Nov The recognition of the judgment according to the Hague Evidence Convention led to a violation of the right to a fair trial

In the case of Dolenc v. Slovenia (application no. 20256/20, 22.10.2022) the European Court of Human Rights held, unanimously, that there had been a violation of Article 6 § 1 (right to a fair hearing) of the European Convention on Human Rights.

The case concerned an Israeli citizen who had been left paralysed after being operated on by the applicant, a well-known neurosurgeon, in a Ljubljana hospital and the ensuing proceedings in both  Israel and Slovenia. Relying on Article 6 (right to a fair trial), Mr Dolenc alleged that the Slovenian courts should have refused to recognise the Israeli judgments because they had been rendered in unfair proceedings.

Firstly, the Court noted that the Israeli judgments had been of paramount importance for Mr Dolenc, given the consequences for his reputation and the damages involved, amounting to over EUR 2 million. 

As concerned the applicant’s right to make his case before the Israeli District Court, the Court agreed with the Slovenian courts’ finding that Mr Dolenc had been notified of the trial in Israel but had not provided sufficient reasons for his refusal to attend in person.

As regards the examination of witnesses, the Court considered it reasonable in the particular circumstances of the case that the evidence should be gathered in Slovenia using the procedure provided for under the Hague Evidence Convention. Even though the patient’s right to a trial within a reasonable time had been an important consideration, there was no reason to believe that the Hague Convention procedure would have per se caused significant delays.

Lastly, the Court referred to the Slovenian courts’ observation that the rejection of the request to use the Hague Evidence Convention procedure could be considered “equal to rejecting the proposed evidence”, but that the decision to hear the witnesses in Israel had nevertheless been justified because the applicant had waived his right to continue to participate in the proceedings after he had cancelled his Israeli lawyer’s power of attorney.

The Court found, to the contrary, that the applicant had never explicitly waived his right to participation in the proceedings in Israel. Nor had there been anything in the case file to support the conclusion that the applicant had been apprised of any of the events in the proceedings in Israel following the cancellation of his Israeli lawyer’s power of attorney. The fact that the applicant had not appointed a new lawyer did not mean that there was no requirement to conduct the proceedings in accordance with the fundamental principles of a fair trial.

Overall therefore, the Slovenian courts had failed to 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. That right was 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. There had accordingly been a violation of Article 6 § 1 of the Convention.

Reference from the official website of the European Court of Human Rights