TFL Vsebine / Odločitve Ustavnega sodišča

»Publisher's Note: The full text of this Decision/Order is available only in Slovene. This is a summary that has been prepared for informational purposes only.«   Decision of the Constitutional Court No. U-I-473/19, U-I-400/20, dated 4 February 2021   The Constitutional Court decided on the requests of the Maribor District Court for a review of the constitutionality of the sixth paragraph of Article 109 of the Private International Law and Procedure Act, which determines that an order recognising a foreign judicial decision relating to divorce shall not be served on the opposing party if the person applying for recognition is a citizen of the Republic of Slovenia and the opposing party has neither permanent nor temporary residence in the Republic of Slovenia.   The Constitutional Court reviewed the challenged provision from the perspective of conformity with the human rights determined by Articles 22 and 25 of the Constitution. On the basis of the challenged provision, in a situation such as allegedly exists in the original cases, the opposing party is deprived of the possibility to be heard and even to participate in the procedure for the recognition of a foreign judgment if the conditions for its recognition are fulfilled in the assessment of a court. Namely, in a procedure for the recognition and enforcement of a foreign judgment, the opposing party is as a general rule only informed that a procedure has been initiated against him or her when the order recognising the foreign judgment is served on him or her, and it is only by submitting an objection against that order that he or she obtains for the first time the opportunity to be heard in the procedure. The Constitutional Court established that the effect of the challenged regulation is such that the opposing party is no longer the bearer of that human right, as the right to be heard and to participate in the procedure is not ensured in either the procedure before the court of first instance or in the procedure before the court of second instance. According to the Constitutional Court, the challenged provision addresses the very core of the human right to be heard, i.e. to participate in a procedure for the recognition and enforcement of a foreign judgment, and thus interferes not only with the right of the opposing party determined by Article 22 of the Constitution, but also with his or her right to a legal remedy determined by Article 25 of the Constitution.   In the assessment of the Constitutional Court, such an interference with the rights determined by Articles 22 and 25 of the Constitution does in fact pursue the constitutionally admissible goal of accelerating the judicial procedure for the recognition and enforcement of a foreign judgment and is also appropriate for and necessary to attain the pursued goal, but it fails to pass the test of proportionality in the narrower sense. Namely, the benefits of the challenged regulation do not outweigh the consequences that that regulation has for the affected individuals from the viewpoint of the right to participate in a procedure for the recognition and enforcement of a foreign judgment. Not only is the opposing party inadmissibly deprived of the right to be heard before the court of first instance, but he or she also cannot challenge the decision of the court of first instance before an appellate court. Thereby, the possibility of the opposing party making a statement on all relevant aspects of the case that interferes with his or her rights or interests and influencing the decision of the court is entirely precluded. The court conducting the procedure for the recognition and enforcement of the foreign judgment would hence be unable to establish, by merely consulting the foreign judicial decision, whether the opposing party perhaps did not have an opportunity to participate in judicial proceedings or he or she declined to participate. It is not certain that the court conducting the procedure for the recognition and enforcement of a foreign judgment will, merely on the basis of consulting the submitted certified translation of the foreign judicial decision, learn of the circumstances that could affect the ascertainment of those procedural requirements for recognising the foreign judicial decision that that court must observe on its own motion. Furthermore, the inability of the opposing party to participate in the procedure for the recognition and enforcement of a foreign judgment also deprives him or her of the possibility to submit objections that the court would not otherwise take into consideration on its own motion.   Since the Constitutional Court decided that the challenged statutory provision is inconsistent with the right to be heard, which follows from the equal protection of rights guaranteed by Article 22 of the Constitution and the right to a legal remedy determined by Article 25 of the Constitution, it abrogated it.