CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 20 octobre 2022

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display:inline-block } .s8773B649 { width:25.2pt; display:inline-block } .s7F90C833 { width:127.43pt; display:inline-block } .s5A65B3DC { width:46.56pt; display:inline-block } .sD9D14432 { width:158.77pt; display:inline-block }     FIRST SECTION CASE OF DOLENC v.   SLOVENIA (Application no.   20256/20)     JUDGMENT   Art 6 § 1 (civil) • Fair hearing • Recognition by Slovenian courts of judgments delivered in Israel, finding applicant liable for significant medical damages, without duly satisfying themselves of the trial’s fairness • Insufficient weight attached to consequences of non-examination of witnesses and exclusion of their statements on applicant’s right to present evidence   STRASBOURG 20 October 2022 FINAL   20/01/2023   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Dolenc v. Slovenia, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Krzysztof Wojtyczek , Acting President,   Marko Bošnjak ,   Alena Poláčková ,   Erik Wennerström ,   Raffaele Sabato ,   Lorraine Schembri Orland ,   Davor Derenčinović , judges, and Renata Degener, Section Registrar, Having regard to: the application (no.   20256/20) against the Republic of Slovenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovenian national, Mr Vincenc Vinko Dolenc (“the applicant”), on 30 April 2020; the decision to give notice of the complaints under Article 6   §   1 of the Convention concerning the Slovenian courts’ recognition of Israeli district court judgments rendered in proceedings in which the applicant’s witnesses had not been examined, his evidence and submissions had been excluded from the case file and the Israeli district court’s documents had been served on his former representative, to the Slovenian Government (“the Government”), represented by their Agent, Mrs A. Vran, Senior State Attorney, and to declare inadmissible the remainder of the application; the parties’ observations; Having deliberated in private on 20 September 2022, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The case concerns recognition by the Slovenian courts of judgments issued by an Israeli district court in civil proceedings against the applicant. THE FACTS 2.     In May 1992 the applicant, an internationally renowned   neurosurgeon, performed surgery on an Israeli citizen, E.M., at Ljubljana University Hospital. Following the surgery and/or postoperative care, E.M. was left severely disabled. PROCEEDINGS IN ISRAEL 3 .     In May 1995 E.M.’s lawsuit, in which he sought damages for medical negligence from the applicant, was served on the latter during his visit to the State of Israel (hereinafter “Israel”). The proceedings were subsequently conducted before the Tel Aviv District Court (hereinafter “the Israeli district court”). The applicant submitted his defence statement, a medical opinion by neurosurgeon R., statements of eleven witnesses who worked at Ljubljana University Hospital and an opinion by a Slovenian legal expert who was to testify about the applicability of Slovenian law to the dispute. It seems that the applicant never appeared before the Israeli district court himself but was represented in the proceedings by an Israeli lawyer (until he cancelled his representation – see paragraph 14 below). 4 .     Following an objection by the applicant, which had initially been upheld by the Israeli district court, the Israeli Supreme Court on 10 March 1998 decided that the suitable forum for deciding the case was the court in Israel. Subsequently, the applicant requested a summary dismissal of the action, arguing that the law applicable to the dispute originating in the surgery which had taken place in Slovenia was Slovenian law. He submitted that under Slovenian law an action could only be brought against the hospital and was in any event time-barred. This had been rejected by the Israeli district court. On appeal, the Israeli Supreme Court quashed that decision and ordered that the trial court examine both the evidence on the applicable law and that concerning liability. 5.     On 1 January 1999 a trial started. At the beginning of the trial, the plaintiff’s relatives and expert neurosurgeon N. testified before the Israeli district court. The applicant submitted an expert opinion by R., who was a neurosurgeon, statements by eleven witnesses, all of them employees at Ljubljana University Hospital, including doctors and nurses who had treated E., his own written statement and the opinion of an expert on Slovenian law. Expert R. testified in court on 6 July 1999, following which expert N. (for the plaintiff) submitted written comments. In the meantime, the applicant, via his representative, requested that a video examination, presumably by a Slovenian court, of his witnesses be accepted as evidence. He argued that the witnesses had declined to travel to Israel and that he likewise did not want to come and risk having another lawsuit served on him. He proposed that he too be examined in Slovenia. On 7 July 1999 the Israeli district court decided that the applicant and the witnesses would be examined by video link. 6.     On 7 September 1999 the Slovenian Ministry of Justice explained in writing to the applicant that there was no bilateral agreement between Slovenia and Israel regarding legal assistance in civil matters, but that such assistance could be requested under the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (“the Hague Evidence Convention”). It also stated that neither the Hague Evidence Convention nor Slovenian legislation provided for the possibility of directly examining witnesses from a foreign country through a video link and explained that every State had its own laws regulating court proceedings, including those with a foreign element. 7.     On 22 September 1999 the applicant declined to participate via video link and again requested that he and his witnesses be examined before a Slovenian court, in accordance with the Hague Evidence Convention. He pointed out that Israel and Slovenia had both signed the Hague Evidence Convention and that pursuant to Slovenian law witnesses would receive a court summons to appear. He repeated this request on 6 December 2000. 8.     On 27 August 2001 the Israeli district court, after a hearing, rejected the applicant’s request, finding that the decision to examine him and the witnesses via video link struck an adequate balance between the interests of the parties. This was upheld on 18 July 2002 by the Israeli Supreme Court, which held that the position could be reconsidered by the district court if there were practical obstacles to organising an examination via video link. 9 .     In the meantime, the Israeli district court decided to hear the witness concerning foreign law, but the applicant made an application to postpone this until the Supreme Court reached its decision (see paragraph 8 above), arguing that his witness on this issue would not come to court because of the difficult security situation in Israel. 10.     The applicant made another (his fourth) request for his witnesses to be examined by a Slovenian court, claiming that it was practically impossible to hold the examination via video link. On 26 December 2002 the Israeli district court rejected this request, holding that it was technically possible to examine witnesses that way. The applicant then asked that his scheduled examination via video link be cancelled and for the court to decide how his witnesses would be examined. 11.     On 6 February 2003 the Israeli district court upheld its decision of 26   December 2002, finding that the applicant’s refusal to be examined via video link did not arise from the lack of practical possibility of conducting such an examination. The court then asked the applicant to reconsider his position and warned him that his main statement would otherwise have to be excluded from the case file. Since the applicant maintained his position, on 4   June 2003 the court excluded his main statement from the case file. Finding it impossible to examine witnesses via video link without the applicant’s cooperation, it ordered that his witnesses be examined before the Slovenian courts pursuant to the procedure regulated by the Hague Evidence Convention. In this connection, it instructed the parties to contact a specific official at the Israeli Directorate of Courts, B.Z. As regards the witness on Slovenian law, the court decided that he would be examined in Israel once the security situation improved. 12.     On 16 September 2003 the Israeli authorities submitted a request under the Hague Evidence Convention to the Slovenian authorities. On 23   January 2004 the Ljubljana District Court raised certain issues with respect to execution of the request for evidence-gathering, such as translation and interpretation of the witnesses’ examination and related costs, the lack of possibility of cross-examining witnesses under Slovenian law (which was apparently requested by the Israeli district court or the plaintiff), and the participation of a foreign lawyer, which was not provided for by domestic law either. On 10   February 2004 the Ministry of Justice forwarded these concerns to the Israeli authorities with a request for a reply to the issues raised. The Israeli authorities subsequently urged the Slovenian Ministry of Justice to organise the witnesses’ examination as soon as possible. On 12 July 2004 the latter replied that no answer had been received to its query of 10 February 2004. Several months later, the Ljubljana District Court considered that the matter was no longer pertinent and that the procedure under the Hague Evidence Convention had been terminated. 13.     It would appear that on 11 March 2004 E.M. (see the dispute on the facts considered in paragraphs 38 to 40 below) requested that the procedure under the Hague Evidence Convention be discontinued because of the difficulties encountered in the process, as demonstrated by the Slovenian Ministry of Justice’s letter of 10 February 2004 and the delays. 14.     On 19 April 2004 the applicant’s representative informed the Israeli district court of the applicant’s wish to not have a representative in the proceedings and his decision to cancel his power of attorney. The Israeli district court ordered that the former representative’s office continue to be used for serving documents on the applicant and notifying him of any matters at its request. The applicant disputed in the proceedings before the Court that he had been informed of this and any subsequent Israeli court decisions in this matter. 15.     The Israeli district court then requested B.Z. to inform it of the possibilities and expected time frame for the examination of witnesses that was to take place in Slovenia pursuant to the Hague Evidence Convention. No response was received. 16.     At the hearing scheduled for 5 September 2004, nobody appeared for the applicant. On 21 September 2004 the Israeli district court cancelled its decision regarding the examination of witnesses in Slovenia. It noted that fifteen months had passed without any progress being made and nine years since the lawsuit had been filed. The court found that it was left with no other option but to conduct the evidence-taking procedure in Israel, where the applicant would be given an opportunity to present his evidence. 17.     At the hearing on 7 November 2004, no one appeared on behalf of the applicant. He was then given several additional deadlines to submit his concluding statement. He disputed that he had ever been informed of these additional opportunities. 18 .     In the absence of any response from the applicant, the Israeli district court reached its decision on the basis of the evidence submitted, but excluded his witnesses’ statements and the opinion of the Slovenian legal expert in line with Israeli law, finding that these witnesses had not been directly examined owing to the applicant’s conduct. 19 .     On 9 June 2005 the applicant was found fully liable for the damage caused to E.M. The Israeli district court in its judgment set out the applicant’s arguments, namely that Slovenian law should have applied to the dispute, that the opinion of expert E. was not valid, that he had performed the surgery in his capacity as an employee of the hospital, that he had acted with the requisite diligence and that the damage to E.M. had been unforeseeable and unavoidable, and that, in any event, it was the hospital which should bear liability for the actions of the medical team. The court further held that the applicant’s written statement in lieu of his direct examination had been excluded from the case file. His witnesses’ statements in lieu of direct examination had likewise been excluded pursuant to the Israeli rules of civil procedure and in view of the fact that E.M. had not waived his right to examine the witnesses. The Israeli district court held that the applicant had done everything he could to prevent the examination and had thereby prevented it from discerning the truth and E.M. from proving his own allegations. 20.     As regards the applicant’s liability for damages, the Israeli district court made the following findings (official English translation from the domestic case file): “... 20.     ... The Defendant has an interest in relying on the rules of Slovenian law, in accordance to which he claims, liability for medical negligence towards patients does not rest on the doctor but on the hospital, and in any case, the claim is time-barred. The difficulty is that the foreign law is a factual question and the applicant seeking to apply foreign law must prove that law before the court by submitting evidence ... Because the opinion of the expert witness for Slovenian law for the Defendant was removed from the court file, neither the general rules of Slovenian law were proven nor was the specific rule for liability for medical negligence. In such circumstances, the court must apply the ‘equality of laws’ rule, on the basis of which it is necessary to refer to the Israeli law and apply it in these proceedings. ... 21.     ... I will say at the outset that from the totality of the evidence before me, which was presented by the Claimant, and which the Defendant did not contest by evidence, it is clear that the Claimant expressly selected the Defendant to perform the surgery and after an offer was made and acceptance, a contract was concluded between the parties for the performance of the surgery. ... 22.     ... I have not neglected the fact that the confirmation of the payment for the surgery was issued to the Claimant by the hospital and not by the Defendant personally. However, the confirmation of the hospital is in the amount of USD 20,000, while the Claimant paid USD 24,000, as a result of which there is a likelihood that the difference represented a profit for the Defendant for performing the surgery. On the basis of all stated, I conclude that the Defendant is responsible for the operation, as well as for the care the claimant received before and after the surgery, even though, that care was actually predominantly provided by medical team members at the hospital. ... 23.     In accordance with the Expert Medical Opinion of Dr. [E.] as well as of Prof.   [R.], difficulties in Claimant’s breathing and paralysis of all four limbs arose in the early stages after the surgery, which points to serious post-surgery complications. There is a disagreement about when these indicators were discovered - the opinion of Prof. [R.] is based on the report prepared by the doctor anaesthetist at the hospital after the patient was awakened after the surgery, while the opinion of Dr. [E.] rests on the information received by the Claimant’s two brothers, which is also consistent with their testimony. The difficulty is that the anaesthetist’s report was removed from the court file together with the statements of the medical team members and for this reason my decision cannot rest on that opinion. Despite this, the testimony of [the defendant’s brothers] is reliable on its face, without internal contradictions, as a result of which I accept the allegations of Dr. [E.]. ... In accordance with the described situation in which the Claimant was found, the immediate medical assistance of the Defendant, as provided to the Claimant, was deficient in two elements as follows ... 24.     ... First, [the] two medical experts actually confirmed that omitting a CT scan immediately when breathing difficulties and paralysis occurred, especially considering the fact that these two complications occurred concurrently, amounts to a serious mistake. ... Prof. [R.], the medical expert for the Defendant, himself testified about the well ‑ known exceptional importance of a CT scan after a surgery like that undergone by the Claimant; ... 25.     Second, Dr. [E.] is of the opinion that the actual surgical interventions in the skull area which, from a neurological perspective, is extremely sensitive, itself required careful, constant observation at the department for intensive care, especially when the person that was operated has difficulties in breathing already after the surgery. Prof.   [R.] is of the opinion that the Claimant was not taken to the general intensive care department but was hospitalised at the intensive care unit at the neurosurgical department where he received the care he required. As already explained above, it is clear that medical care received by the Claimant at the intensive care unit at the neurosurgical department was completely inadequate: the team of medical male nurses at the department considered breathing difficulties of the Claimant as a normal phase of recovery after the surgery and therefore did not pay sufficiently reasonable attention to its occurrence and did not call the duty doctor. Only the next day, after [one of the defendant’s brothers’] intervention and on his demand, did they call a doctor immediately and the Claimant was moved to the general department for intensive care. Causal Connection between errors of the Defendant and the injury of the Claimant 27.     ... From all this, the most important point to make is that it is clear that vasospasm is a rare occurrence which can be diagnosed only after excluding more frequent complication of bleeding and edema, which is done by a CT scan. On this basis, Prof.   [R.] is wrong in his diagnosis on the basis of which the injury of the Claimant is alleged to have occurred because of vasospasm, a conclusion reached on the basis of CT and MRI scans which were performed long time after the Claimant left the hospital. 28.     In light of all said, I am sure there is a causal link between failure to perform the CT scan and the injury suffered by the Claimant because the CT scan was not performed. To clarify: A CT scan is necessary, first of all, to diagnose a cause of neurological degradation of a patient’s condition after cranial surgery when signs, such as difficulties in breathing and paralysis of limbs, occur. The Defendant did not perform a scan of the Claimant which without a doubt was clearly shown to have been necessary, and consequently, the Defendant caused the Claimant evident injury, concerning which it cannot be known with certainty if bleeding, edema or vasospasm occurred or if there was an injury of some nerve during the surgery that caused the paralysis of all four limbs of the Claimant. More than anything the evident injury is proven because it cannot be known if the Defendant could have prevented it and how. Relativity of the doctrine of proven damage means that there was a transfer of the burden of proof from the Claimant onto the Defendant that the Defendant is not responsible for this damage ... ... Note: I have not overlooked the possibility that even if bleeding or edema were discovered this would not necessarily mean that it would have been possible to prevent the occurrence of the Claimant’s damage, or the possibility that bleeding or edema would not be discovered, or that a treatment for vasospasm would have succeeded, should the Claimant have had it. All this is not sufficient to break the chain of causation between non-diagnoses and lack of care for the Claimant, to whom the damage was caused ... 29.     Also in a situation where the ‘res ipsa loquitur’ rule applies, as set out in Article   41 of the Act on Damages, the burden passes from the Claimant onto the Defendant to prove that the damage suffered by a patient because of a doctor could not have be [ sic ] prevented ... ... Article 41 lays down three cumulative conditions: the claimant did not know and could not have known what conditions caused the damage; the damage was caused by means which were under complete control of the defendant; and the facts are more consistent with the conclusion, that the defendant was negligent than with the conclusion that he operated with suitable diligence. Sometime ago, a judgment was issued holding that in a surgical operation, it is very easy to confirm that the first two conditions are satisfied: ... As already explained, the Defendant was negligent for not performing imaging scans which are usual after such a surgery, the third and the last condition of the applicable rule is also satisfied in this matter ... From this, it can be concluded that the burden of proof that it was not possible to prevent damage to the Claimant is on the shoulders of the Defendant who failed to discharge his burden. In light of all mentioned I conclude there is a causal connection between the mistakes of the Defendant and the damage suffered by the Claimant as a result of which the Defendant is liable for this damage. 30.     By proving the burden of liability resting on the Defendant for the damage suffered by the Claimant for medical negligence, it is not necessary to discuss alternative allegations of the Claimant for the tort of assault. It is worthwhile to mention that these allegations of the Claimant must be rejected since the Claimant presented these allegations in a merely cursory manner in his summation. Conclusion 31.     The Defendant is fully responsible for the liability for compensation for the Claimant’s damages.” 21 .     Referring to the applicant’s “attempts to prevent the court from enforcing the law and justice”, the Israeli district court ordered him to cover the costs of the proceedings and legal fees. 22 .     On 19 January 2006 E.M. was awarded compensation for pecuniary and non-pecuniary damage in an amount equivalent to approximately 2.3   million euros (EUR). 23 .     The Slovenian Government submitted a number of documents relating to attempts, sometimes successful, sometimes not, to serve certain court documents from Israel on the applicant in Slovenia, but there is nothing to suggest that they relate to the above-mentioned proceedings. PROCEEDINGS IN SLOVENIA 24 .     On 29 June 2011 E.M. requested the Ljubljana District Court to recognise the above-mentioned judgments. The court allowed the request on 13 August 2012. The applicant lodged an objection and appeal, followed by a supplement to appeal lodged out of time, in which he complained that the proceedings in Israel had not been fair. He was not successful with these remedies. However, further to a constitutional complaint by him, the Constitutional Court on 3 March 2016 remitted the case to the Ljubljana District Court for reconsideration, essentially because it found the lower courts’ reasoning concerning the Israeli district court’s jurisdiction and the admissibility of uncertified translations to be inadequate. The Constitutional Court dismissed the complaints concerning the alleged unfairness of the proceedings in Israel because the applicant had failed to raise them in the remedies before the lower courts in a timely manner. 25 .     On 12 September 2017 the Ljubljana District Court reconsidered the case, also taking account of the applicant’s arguments concerning the alleged non-compliance of the Israeli judgments with Slovenian public policy in a substantive and procedural sense – a review which it was required to conduct by law (see paragraph 37 below). It dismissed E.M.’s recognition request, finding that there was a lack of reciprocity and a breach of the right to equality of arms related to the exceptionally high award for pecuniary damage. It dismissed the applicant’s remaining arguments, including those concerning his alleged inability to have his evidence examined, the exclusion of evidence and statements, and the lack of a remedy in the proceedings in Israel. In this connection, the court held that the Convention formed part of public policy and had to be taken into account when recognising a foreign decision. It referred to the case of Pellegrini v.   Italy (no. 30882/96, ECHR 2001-VIII) and observed that before recognising a decision issued in a jurisdiction not concerned by the Convention, the member States of the Convention were under an obligation to verify that the proceedings in which such a decision had been adopted had complied with the Convention. The court further held that the principle of adversarial proceedings was inherent in the right to a fair trial under Article 6 of the Convention. 26.     In assessing whether the applicant’s procedural rights had been respected in Israel, the court held that proceedings conducted under the common-law tradition (such as those in Israel) were different from proceedings in Slovenia but that that did not mean that they were a priori incompatible with the guarantees of a fair trial. It considered it crucial to determine whether, before excluding the evidence from the case file, the Israeli district court had reasonably done enough to secure the applicant’s right to a fair trial. It further held that bad faith conduct aimed at avoiding the proceedings should not enjoy protection and that it was therefore necessary to also consider the applicant’s actions in the Israeli proceedings. 27.     The court went on to find as follows: “Because the Hague Evidence Convention does not have an exclusive nature, the Israeli district court cannot be criticised for not hearing the defendant pursuant to its provisions ... It does not appear from the Israeli district court’s judgment that the defendant had put forward convincing arguments as to why he had not been able to come to Israel or submit himself to examination via video link [footnote: The fear of being served with yet another lawsuit could not be a convincing argument. The defendant, who had come to Israel on many occasions prior to the service of the lawsuit in question, did not cite a security risk in relation to his hearing in the Israeli proceedings (it is a well-known fact that there are certain security concerns regarding Israel)]. The Israeli district court therefore arrived at an entirely acceptable conclusion that the defendant, who had all along rejected the jurisdiction of the Israeli district court, simply did not want to be heard before the Israeli district court, which then led to the use of the procedural rule in question and the exclusion of his written statement from the [case] file. As regards the witnesses, the Israeli district court had followed the defendant’s proposal and decided to examine them based on the rules set out in the Hague Evidence Convention (that is, via the requested court), but afterwards, when the defendant (following the cancellation of the power of attorney of his Israeli lawyer) had completely waived his participation in the proceedings, this intention was abandoned and a decision was made to hear the witnesses in Israel. If this ... decision was to be considered on its own – in isolation from other acts of the court and the parties in the proceedings, one could even conclude that it was not compatible with the guarantees of a fair trial. To demand a witness to attend a hearing in a very remote country (security risk) would be unrealistic and would impose an excessive burden on the party also from a costs perspective. In such circumstances, the rejection of the request to conduct an examination via the requested court (pursuant to the Hague Evidence Convention) and insisting that a foreign witness come to court could be considered equal to rejecting the proposed evidence. However, since the decision to abandon the witnesses’ examination via the requested court was a consequence of the defendant’s conduct or omission (by not appointing a new lawyer and by ... being subsequently totally inactive in the proceedings in which he had previously actively been involved, the defendant implicitly waived his participation), and taking into account the less active role assumed by the court in the common-law system (questions are put to the witnesses by the parties or their lawyers during cross-examination, not by the court), this decision of the Israeli district court cannot be considered to be incompatible with the Convention right to a fair trial. The foregoing applies also to the Slovenian law expert, because ... in the common-law system, the question of the applicable foreign law is of a factual nature. In the situation described (the defendant, without giving convincing reasons, declined the suggested means of oral examination and of his own will decided not to participate in the proceedings following the cancellation of the power of attorney), and taking into account the non-mandatory nature of the Hague Evidence Convention (the latter was meant to ease the examination of evidence from abroad, but did not require an obligatory evidentiary procedure via the requested court), this court is convinced that the Israeli district court was not required to conduct a hearing (of the defendant, the Slovenian law expert and witnesses) pursuant to the provisions of the Hague Evidence Convention. By excluding written evidence, which was a consequence of the Israeli procedural rules ... and not a form of penalising the defendant, his right to participate in the proceedings was not violated (an inherent part of this right is the right to defend oneself) since the defendant had previously implicitly waived that right. A violation of the Israeli procedural rules could and should have been raised in appeal proceedings.” 28.     E.M. lodged an appeal, to which the applicant responded. On 5 March 2018 the Supreme Court found in favour of E.M. It observed that an appeal against the recognition of a foreign decision based on public policy was only justified when the effects of such recognition would be contrary to the fundamental principles of Slovenian legal and social order. It endorsed the first-instance court’s finding that the applicant had been provided with a reasonable opportunity to participate and adduce evidence in the proceedings in Israel. It held that the applicant could have appealed against the impugned decisions of the Israeli district court, which had been served on him via the designated Israeli lawyer. It reviewed the findings of the Israeli district court concerning the applicant’s liability and held that under Slovenian law the relationship between patient and doctor was also of a contractual nature. Referring to the findings of the Israeli district court that the plaintiff had signed a contract directly with the applicant, the Supreme Court found that the latter’s objection to his direct liability was unfounded. Moreover, the Supreme Court disagreed with the Ljubljana District Court on the issue of reciprocity and considered that the principle of equality of arms could not have been breached since the applicant had been provided with an opportunity to participate in the proceedings. In this connection, it found as follows: “... A party to the proceedings can by means of different actions ... affect the result of the proceedings. One of these options is also to decide not to participate in the proceedings and thereby accept that the court would base its decision on the evidence submitted by the opposing party or that the court would rely on its rules regarding evidence-taking. The mere fact that the Israeli district court, referring to Israeli case ‑ law ... based its assessment of pecuniary damage on the actuarial calculation, even though the plaintiff had not provided proof of loss of income and maintenance costs, does not amount to a breach of the equal protection of rights in the proceedings. The defendant had an opportunity to oppose that approach but waived his right to do so, ultimately by not lodging an appeal against the judgment on damages. [Footnote: The defendant did not object to [E.M.’s] argument that he did not appeal against the judgment on damages, nor did he allege that there were justified reasons for him not to use the available remedies ... ” 29.     The applicant lodged a constitutional complaint in which he disputed, inter alia , that he had waived his right to participate in the Israeli proceedings. He had not been afforded a fair trial in Israel because the Israeli district court had not ensured that he and his witnesses be heard by the requested court in Slovenia pursuant to the Hague Evidence Convention and because his evidence had not subsequently been considered by the Israeli district court. Referring to the letter of the Ministry of Justice, he alleged that the examination of him and the witnesses via video link had not been possible and that, in any event, such an examination could have not been done without the involvement of the authorities. In his view, the domestic courts had been bound by the Convention to refuse the recognition of the Israeli judgments. Furthermore, the applicant complained that the proceedings in Israel had been unfair because the lawyer authorised to receive his mail had been his former lawyer, who had not tried to serve the Israeli judgment on him, resulting in him being unable to appeal against it. He also complained about the Supreme Court’s reversal of the first-instance court’s decision, alleging that he had been unable to respond to the relevant issues. The applicant also pointed to the serious consequences of the impugned judgments, resulting in his obligation to pay about EUR 2.6 million to E.M. 30.     On 28 October 2019 the Constitutional Court, by five votes to two, decided not to accept the applicant’s constitutional complaint for consideration in a reasoned decision. As regards his complaint relating to his failure to be examined by the Israeli district court, the court found as follows: “Not only in common-law systems, but also in continental legal systems, the parties are responsible for gathering procedural material ... This applies in particular when the party proposes his own examination as evidence. In such cases, it is clearly not excessive to require the party to respond to the summons and provide his witness statement, when he has no justified reason for his absence. In view of the foregoing, the assessment of the alleged violation of Article 22 of the Constitution [Equal Protection of Rights] in this part cannot be affected by the applicant’s allegations concerning the failure to be heard via videoconference or by the requested court.” 31.     As regards the witnesses’ failure to be examined by the Israeli district court, the Constitutional Court likewise considered that the applicant’s opportunity to give evidence had not been disproportionately restricted, based on the following circumstances considered by the lower courts: “... (1)     The Israeli district court first ordered that the witnesses be examined pursuant to the Hague Evidence Convention, that is, by the requested (Slovenian) court. (2)     This decision was cancelled fifteen months after it had been adopted and nine years after the start of the court proceedings, at the hearing at which [the court] considered the plaintiff’s request to discontinue the procedure under the Hague Evidence Convention, which was not attended by the complainant (neither by him alone nor by his lawyer, because he had cancelled his power of attorney and, despite the court’s request, did not appoint a new one). (3) The Israeli district court substantiated this decision (besides referring to the complainant’s inactivity) with the following constitutionally acceptable reasons: that, pursuant to the letter of the Ministry of Justice, [and] thus because of the practical obstacles and due to the passage of time, the production of evidence by the requested [court] would no longer be reasonable ... [I]t is clear that [the Israeli district court] gave the complainant sufficient realistic opportunities to ensure the presentation of evidence in his favour. As pointed out by the first-instance court, the Israeli district court was not required to do everything to ensure that the applicant had an opportunity to present his case before the court. The complainant’s right to present his view in the proceedings is not without limits, but is limited by the right of the opposing party to effective judicial protection, of which the right to trial within a reasonable time forms an essential part ... It does not appear [from the letter of the Ministry of Justice of 10   February 2004] that the plaintiff in the request for international legal assistance set out unreasonable, from the perspective of Slovenian public policy, unacceptable conditions (by requesting to cross-examine the witnesses in English via his representative).” 32.     In the Constitutional Court’s opinion, the Israeli district court could not be criticised for ultimately deciding that the examination of witnesses should take place in Israel. It observed that the Slovenian court had had difficulties complying with the request for international legal assistance regarding the cross-examination of witnesses. However, under Slovenian law the Slovenian court could only refuse a request for international assistance if it was contrary to public policy. In the Constitutional Court’s view, the rule that the witnesses had to be examined separately was not a fundamental principle of Slovenian procedural law and the request for a cross-examination of witnesses could thus not be considered to be incompatible with Slovenian public policy. As regards the exclusion of written statements, the Constitutional Court observed that this was a logical consequence of the fact that the plaintiff had had no opportunity to cross-examine them and that the exclusion had been meant to secure the plaintiff’s right to adversarial proceedings. 33.     As regards the service of the decisions, the Constitutional Court found it important that the applicant had known about the proceedings before the Israeli district court and had had an opportunity to appoint a representative, including one for serving court documents on him if he had so wished. In the Constitutional Court’s view, the Israeli district court had had justified reasons for not serving the court documents at a foreign address and had rightly assumed that by serving them via his former lawyer the applicant would have had reasonable opportunities to continue participating in the proceedings. The Constitutional Court went on to find as follows: “Since the service [of the documents] on the representative (for accepting documents) is valid and since it is considered that once it is carried out [the document] is served on the party ... and because the plaintiff submitted a decision confirming the finality and enforceability of the Israeli judgments, the [lower] court did not breach its duty to give reasons by not explicitly addressing the applicant’s allegations that the representative had not served the [Israeli] judgments on him ... The applicant also does not allege (and has not alleged in the proceedings before the [lower] court) that after learning of the impugned judgments he lodged an appeal in Israel unsuccessfully.” 34.     The Constitutional Court, referring to Pellegrini (cited above), concluded that the domestic courts’ review of the Israeli judgments had complied with the requirements under the Convention. Lastly, it found that the applicant had been able to give his view relating to the Supreme Court’s decision on appeal during the earlier proceedings, as well as in his response to E.M.’s appeal. RELEVANT LEGAL FRAMEWORK Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (“Hague Service Convention”) 35.     The Hague Service Convention entered in force with respect to Israel on 13 October 1972 and with respect to Slovenia on 1 June 2001. It provides a framework and procedure for transmitting judicial or extrajudicial documents relating to civil or commercial matters for service from one Contracting Party to another. CONVENTION OF 18 MARCH 1970 ON THE TAKING OF EVIDENCE ABROAD IN CIVIL OR COMMERCIAL MATTERS (“HAGUE EVIDENCE CONVENTION”) 36.     The Hague Evidence Convention entered into force with respect to Israel on 17 September 1979 and with respect to Slovenia on 17 November 2000. The relevant parts provide as follows: Article 1 “In civil or commercial matters a judicial authority of a Contracting State may, in accordance with the provisions of the law of that State, request the competent authority of another Contracting State, by means of a Letter of Request, to obtain evidence, or to perform some other judicial act. ... The expression ‘other judicial act’ does not cover the service of judicial documents or the issuance of any process by which judgments or orders are executed or enforced, or orders for provisional or protective measures. Article 2 A Contracting State shall designate a Central Authority which will undertake to receive Letters of Request coming from a judicial authority of another Contracting State and to transmit them to the authority competent to execute them. Each State shall organise the Central Authority in accordance with its own law. Letters shall be sent to the Central Authority of the State of execution without being transmitted through any other authority of that State. Article 5 If the Central Authority considers that the request does not comply with the provisions of the present Convention, it shall promptly inform the authority of the State of origin which transmitted the Letter of Request, specifying the objections to the Letter. Article 9 The judicial authority which executes a Letter of Request shall apply its own law as to the methods and procedures to be followed. However, it will follow a request of the requesting authority that a special method or procedure be followed, unless this is incompatible with the internal law of the State of execution or is impossible of performance by reason of its internal practice and procedure or by reason of practical difficulties. A Letter of Request shall be executed expeditiously. Article 10 In executing a Letter of Request the requested authority shall apply the appropriate measures of compul