aperçu des réponses au questionnaire accompagnant la ... - HCCH

More documents

Recommendations

Info

Question Réponse / Reply État / State par les notifications internationales ne sont pas pris en charge au titre de l’aide juridictionnelle, en France. En outre, en droit, l’exigence par un État d’une traduction systématique ne paraît pas conforme à la Convention (art. 5(3)). We note that such a requirement is not inconsistent with Article 5(3) as that Article envisages that a Central Authority may impose language/translation requirement. This may be an onerous requirement if the document is lengthy and complex. We consider that the relevant provisions in the Hong Kong legislation (see the answer to 8.2) is an appropriate compromise between convenience and the interests of justice. Such a declaration could perhaps make judicial assistance more cumbersome in practice but not a substantial degree. Conformément aux dispositions de l’art. 5, l’Autorité centrale dispose d’un pouvoir d’appréciation (« l’Autorité centrale peut demander … »). Une telle déclaration générale priverait l’Autorité centrale de son pouvoir d’appréciation et ne serait partant pas conforme à l’art. 5(3). It delays the forwarding of the documents for service a little, but it facilitates the performance in the foreign country, as the persons whom the documents are served are aware of their content. It makes it more expensive (translation costs), but also easier for both the receiving Central Authority and the bailiff carrying out the servicing. The form is the most important factor. The fact that the form is not always duly and exhaustively completed sometimes constitutes a problem. It depends to a certain degree on the content of such a general declaration: were it sufficiently flexible, we would not have a problem with States making them (we suspect that, having regard at “who” has been appointed as Central authority, in most cases it would be the Central authority itself who would initiate such a declaration to be made by its government). Such a declaration has one clear advantage: transparency. Thus avoiding loss of precious time, should the request be returned by the CA upon receipt, for reason of translation being required. In the view of the Ministry of Justice, this provision of Art. 5(3) of the Convention does not make judicial assistance in practice more cumbersome. Spain has not so far made a general declaration regarding the necessity to draft or translate all documents into Spanish. This means that, in principle, the Central Authority has the discretion to require such a translation or not. Article 144 of the Spanish Procedural Law establishes that all documents drafted in a foreign language must be accompanied by a translation into Spanish. However, bearing in mind the superior legal hierarchy of international treaties, only if the Treaty in question states otherwise, might this obligation be avoided. In practice, the Central Authority requires a translation into Spanish of all requests for service. Some exceptions have been made, considering the mother tongue of the addressee, with uneven results from the part of the judicial organs (A number of requests was forwarded to the Spanish Central Authority for service on several Norwegian nationals residing in Spain, all of them drafted in Norwegian, and without a translation into Spanish. The C.A. accepted these requests, on the basis of the addressees’ mother tongue, and sent them to the competent authority for service. Some of them were effectively served on the addressees and others were rejected by the Court, on the grounds of lack of translation). The general requirement for a translation does not necessarily entail making judicial assistance more cumbersome; it just places the burden in the applicant’s side. Only if the forwarding authority justifies sufficiently that the translation is not needed in a particular case, might the Central Authority consider the possibility of accepting the request for service in the original language. However, a summary of the document should in any case be translated in the official language of the requested country. Would not make judicial assistance substantially more cumbersome in practice, because it would be known in advance that translation is needed. However, there are a number of cases where the translation requirement Chine (Hongkong) Portugal Luxembourg Bulgarie Pays-Bas Rép. Slovaque Lituanie Espagne Pologne Page 26 of 69
Question Réponse / Reply État / State imposed by such declaration seems to be unnecessary, because of the fact, that the addressee is expected to have a good command of the language of the requesting state or the other language in which the document is drawn up. Moreover above-mentioned declaration without necessity enforce translation of the document into language which sometimes is not known by addressee at all. The declaration by a State that a formal service pursuant to Art. 5(1) is only admissible if the document to be served is drafted in or translated into its official language, is not inconsistent with the spirit of Art. 5(3). The protection of the addressee requires that no document can be obligatorily served on him in a language he cannot understand. Otherwise for his legal defence, he would have to have translations rendered at his own expense. The foreign court would possibly carry on with proceedings, even if the addressee did not understand the document which was to be served on him. Another method would undermine the constitutional and human rights-related right to a fair trial in our view. Therefore, a German Central Authority would also then regularly require a translation, if Germany had not submitted such a declaration. The declaration therefore serves in the interest of legal protection for the foreign office and of acceleration, since translations are not requested unexpectedly. Otherwise, the rights of those carrying out the service are adequately safeguarded by the fact that they can first request a simple (informal) service in order to avoid translation costs. Simple services of this kind are performed frequently in Germany. This does not burden mutual legal assistance relations. En cas de notification formelle d’un acte, cette autorité estime que l’exigence de la traduction intégrale de l’acte dans l’une des langues officielles du pays requis est légitime, car ceci correspond aux critères généraux des règles du droit international. Allemagne It is necessary to translate documents into a language of the requested State. Ukraine The Civil Procedure Law of the PRC prescribes that ”the letter of request for judicial assistance and its annexes sent by a foreign court to a people’s court shall be appended with a Chinese translation or a text in any other language or languages specified in the relevant international treaties.” According to the above-mentioned regulation, service requested within the meaning of Article 5(1) of the Convention requires that all documents and evidences to be served must be written in Chinese or that a translation in Chinese be attached thereto, unless there are contrary prescriptions in the mutual treaties between China and other contracting states of the Hague Convention. We do not think that such a declaration makes judicial assistance substantially more cumbersome in practice. It is necessary that the Central Authority recognizes the content of a document to be served on the occasion of performing service under the Convention. We also consider that it is beneficial for the addressee to serve the translation of the document to the addressee as well as the original to give enough notice of the case (please refer to the answer of 9.4). It is not considered that such a declaration makes judicial assistance more cumbersome in practice. Moreover, it is considered that the issue of translation is an essential question of juridical security, as well as a fundamental principle of public order mainly for two reasons. The first reason relates to the principle of use of the official languages of the place where a procedural act must be performed. The second reason is related to the fundamental right of the person to be served with a document in a language that he / she understands. In fact, in practice, it is very difficult for the Central Authority of the State addressed to know if the document is drafted in a language understandable to the addressee as they do not have knowledge of the process that gave rise to the request for service. Besides, there is the need for translation in order for the requested State to know, according to Article 13 of the Convention, if there are any reasons for refusal. We do not believe that requiring a translation of documents to be formally served is contrary to the spirit or letter of Article 5(3). Rather than making judicial assistance more cumbersome, we believe that it makes service easier to accomplish, and avoids unnecessary delays to the requesting authority should service be rejected by the recipient thereby requiring it to be returned to the requesting state for a translation and a renewed service request. Italie Chine Japon Chine (Macao) Etats-Unis Page 27 of 69
Page 1 and 2: Légalisation / Preuves / Notificat
Page 3 and 4: Aperçu des réponses au Questionna
Page 5 and 6: Question Réponse / Reply État / S
Page 25: Question Réponse / Reply État / S
Page 69: Question Réponse / Reply État / S

aperçu des réponses au questionnaire accompagnant la ... - HCCH

Create successful ePaper yourself

Delete template?

Save as template?