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The civil law sanctioning of violations of the principles of civil procedure

asser_procesrecht_1Ivo Giesen

In December 2015 my book ‘Principles of civil procedure’ was published as part of the Asser Procesrecht-series (‘Beginselen van burgerlijk procesrecht’ Wolters Kluwer: Deventer 2015). In this book, I discuss, after some general considerations, the guiding principles of civil procedure from a Dutch and European perspective. Based on the research into and the analysis of the seven discussed principles of civil procedure, I included in the General Considerations a chapter on ‘Sanctions after violations of a principle of civil procedure’. From my research into the seven specific principles dealt with, I had quickly discovered that the sanctioning of violations of those principles (which are almost always protected as a human right under Article 6 ECHR and Article 47 EU Charter) is rather shabbily endowed in the Netherlands. The theme is hardly discussed in the doctrine and rarely any specific rules (through legislation or case law) exist. Therefore, we seem to be unable, as yet, to cope adequately with the sanctioning of such violations. I am convinced that this is a bad state of affairs, that we need an urgent improvement and that – fortunately – there is a solution available.

The lack of concern for the sanctioning of human rights violations in civil law forms a substantial problem. Suppose that a rule in the Dutch law of evidence has been to the detriment of a party, which in their view has compromised the ‘equality of arms’. Then that party can – and should – complain in appeal and/or in cassation, with or without recourse to art. 6 ECHR. Perhaps the Court of Appeal will recognize that the procedure in first instance did not proceed entirely correct; that omission can then be restored in that same procedure in appeal: ‘equality of arms’ is then still ‘offered’ (in this example by not letting the rule of evidence have an adverse effect). The same applies if the proceedings in first instance were conducted in breach of the right to a public hearing, or if the judge perhaps did not appear completely impartial. A restoration in appeal and/or cassation would not change the fact that for a certain period of time – given the processing times at the Courts of Appeal: roughly speaking about a year – in the Dutch legal system a violation of human rights has existed or continued to exist. Is that allowed? Should such violations not be more strictly addressed? Shouldn’t there something be done with regard to the intervening period? There is nobody who even seems to pose these questions.
It is also possible that a complaint about a violation of a principle and/or art. 6 ECHR is pushed aside by the Court of Appeal and/or Supreme Court, but that afterwards the ECtHR finds that something went wrong. Then the national possibilities using the ordinary remedies have been exhausted; the national system will have ‘failed’. Obviously then a form of sanctioning by European or – preferably – national action is desired, if need be, in retrospect. Although there is relatively quickly a lot of clarity from a ‘European’ perspective (either the determination of a violation is sufficient, or a compensation – also – follows), that is definitely not the case from a national perspective. The legislature has been struggling for years with the question how to deal with violations of the ECHR as found by the ECtHR, especially in civil cases, because in those cases the complication arises that the original opposing party of the complainant should not suffer from the correction of the violation. A legislative proposal on this issues that was announced a few year ago, has never come, and will never come (Stb. 2013, 162, p. 4), although from a Strasbourg point of view the current situation is seen as undesirable, according to, for example, T. Barkhuysen & M. van Emmerik, Rechtsherstel bij schending van het EVRM in Nederland en Straatsburg, NJCM-Bull. 2006, p. 58.

One last example. A possible violation of the reasonable time requirement must of course be sanctioned, but – again – provided that the legal relationship between the two original civil parties to the proceedings may not be changed as a result. Thus, that means that the aggrieved party must start a new civil procedure, now against the State of the Netherlands, in order to claim damages (HR 28 March 2014, NJ 2014/525 (De Bilt)). This is obviously a tough new burden for someone who already has dealt with a – too lengthy – procedure. Therefore, whether we can speak of an ‘effective remedy’ at the national level in the sense of Article 13 ECHR in this case can seriously be questioned, and rightfully so, for example by L.C.W.M. van Kessel, NTBR 2014/32, p. 273; Asser in his NJ-note under HR 28 March 2014, NJ 2014/525 (De Bilt), and Asser Procesrecht/Giesen 1 2015/421.
The necessity, as shown by the examples outlined above, to reach a solution for this sanctioning or enforcement problem is obvious, but it becomes even more apparent in light of the case Rumpf v. Germany (ECHR 2 September 2010, Appl.No. 46344/06). In this case, Germany was told by the ECHR that it had failed to introduce an effective domestic remedy to deal with treaty violations (in the area of the reasonable time requirement), after which the German government was imposed a duty to create such an instrument within a year, see Asser Procesrecht/Giesen 1 2015/99, 105 and 412. As the State of the Netherlands you don’t want to risk such a judgment against you.

So, what to do? A violation of a principle of civil procedure should mainly be avoided – and therefore a strong focus on prevention is surely needed – but, if that doesn’t work, it should at least be addressed and sanctioned. The ECHR offers, in retrospect, some opportunities through Articles 41 and 46 ECHR. However, in accordance with Article 13 – the right to an effective remedy in the domestic system – and also in light of Article 1 ECHR and Article 35 paragraph 1 ECHR, in which the subsidiarity of the ECHR protection mechanism is expressed, it is initially for the national government to introduce a (system of) effective remedies. An adequate domestic mechanism to sanction human rights violation in a civil proceeding to their full extent in the same civil proceeding, is not yet standard however. We must – in addition to the correction on appeal that does not completely eliminate the violation – for the time being make do with a few specific solutions (proceedings for interim relief or perhaps a declaratory decision, or State liability?) which are not evident or not sufficiently ‘developed’.
The solution? There are undoubtedly other possibilities, but I think the notion of ‘integrity damage’ as developed in medical liability law could provide relief, see Asser Procesrecht/Giesen 1 2015/144-148. In general, it can be said – as has occurred with violations of the reasonable time requirement – that the mere failure to observe, for example, the requirement to hear and be heard has led to stress and frustration (precisely because someone did not get to tell his or her own story); such a fundamental right therefore ‘requires’ that it can actually be enforced. That such a violation can be polished away in appeal, so that no (material) damage remains – regardless of the perhaps wrongly incurred additional legal costs and any other related damages – is not sufficient, because the infringement of the fundamental right as such remains. That (infringed) right remains without a sanction, while the complainant is also deprived of at least one ECHR-worthy court. The immaterial damages fitting that ‘stress and frustration’ then follows from the infringement ‘as such’, so for the violation of one’s human right as such. Because the human rights’ integrity of a citizen is violated by the courts, this citizen has the right to compensation (by the State) for his ‘integrity damage’, a (new type of) loss item which is caused by the ‘integrity infringement’. And there you have it: this might actually be the required generally applicable sanction!
[This Blog is an adaptation of an editorial of mine (NTBR 2016/1, p. 1-3) which also was published as a Ucall Blog, both in Dutch]