Refusing verdict ‘at the border’ sometimes safeguards right to a fair trial

11 October 2016

In certain cases, it is necessary to refuse a verdict rendered in one Member State of the European Union ‘crossing the border’ to another Member State in order to safeguard the universal right to a fair trial. If a verdict is the result of an unfair procedure in the due process of law in one country, then it must remain possible for another country not to accept it. That is the judgement passed by lawyer Monique Hazelhorst in her PhD thesis entitled ‘Free Movement of Civil Judgments in the European Union and the Right to a Fair Trial’. She defended her doctoral thesis on Thursday 13 October 2016. Her research was funded from the NWO Talent Scheme.

Symbolic European borderPhoto: Shutterstock

Within the European Union, it has become increasingly easy for people and companies to do business in other EU Member States. The borders between the Member States have now effectively disappeared with respect to the trading of goods, for example. To keep up free trade, it is vital for people to be able to resolve conflicts effectively. A horticulturalist in the Netherlands who supplies vegetables to a German supermarket and whose invoices are not paid can go to court to enforce payment. With the verdict from a Dutch court, the horticulturalist can also obtain his right in Germany. For a long time, the European Union has made it possible for verdicts from one EU Member State to be implemented in this manner in another Member State.

Hazelhorst: ‘During the last fifteen years, measures have been taken as a result of which borders have completely disappeared. One such far-reaching measure is that it is sometimes no longer possible for Member States to refuse a verdict where something has gone very wrong, to ensure that it cannot be implemented. In this research, the key question was whether such measures have not gone too far.’

For alimony payments within the European Union, both the ‘exequatur’ – the judicial order to actually implement the verdict – and the grounds for refusing to recognise the verdict or to implement it have been repealed. Verdicts concerning non-contested monetary claims can also be automatically implemented, whereby refusal is not possible. Brussels has also repealed the grounds for refusing verdicts that demand the return of a child and verdicts concerning parental contact rights.

Refusal not possible

Hazelhorst: ‘Two uniform European procedures were implemented several years ago that can be used as an alternative for national civil procedures: the European Order for Payment Procedure and the European Small Claims Procedure. Both procedures result in a decision that can be automatically realised in all EU Member States without the option of refusal. With these, the implementation of the policy to considerably simplify recognition and implementation is already at an advanced stage.’

Hazelhorst investigated cases in which implementation or recognition has been refused by European judges. To this end, she made use of existing research, including reports of the European Commission, but she also performed her own research into Dutch practice. In addition, she analysed several hundred cases from the European Court of Human Rights. She used those cases to establish what the right to a fair process – as decreed in the European Convention on Human Rights (ECHR) and the Charter of Fundamental Rights of the European Union – means and how it should be safeguarded.

According to the research, it might be necessary to refuse a verdict if that verdict is the result of an unfair procedure, for example if the judge in question accepted bribes and was therefore no longer impartial. Hazelhorst states that refusal of a verdict is sometimes the only way to oppose such an unfair procedure.

Hazelhorst: ‘However, it should also be carefully considered whether refusing the verdict is the only possible remedy, because the people and companies who go to court should, in principle, have the confidence that they will actually receive what the judge has awarded to them. That is also an essential component of the right to a fair process.’


Source: NWO