[translation of the
Permanent Bureau]
(In the relations between
the Contracting States, this Convention replaces the Convention of 17 July 1905
on civil procedure)
CONVENTION
ON CIVIL PROCEDURE
(Concluded
1 March 1954)
The States signatory to
the present Convention;
Desiring to make in the
Convention of 17th July 1905, on civil procedure, the improvements suggested by
experience;
Have resolved to conclude
a new Convention to this effect, and have agreed upon the following provisions
-
I. COMMUNICATION OF
JUDICIAL AND EXTRAJUDICIAL DOCUMENTS
Article 1
In civil or commercial
matters, the service of documents addressed to persons abroad shall be effected
in the Contracting States on request of a consul of the requesting State, made
to the authority which shall be designated by the State addressed. The request,
specifying the authority originating the document forwarded, the names and
capacities of the parties, the address of the addressee, and the nature of the
document in question, shall be in the language of the requested authority. This
authority shall send to the consul the certificate showing service or
indicating the fact which prevented it.
All difficulties which
may arise in connection with the consul's request shall be settled through
diplomatic channels.
Any Contracting State may
declare, in a communication addressed to the other Contracting States, that it
intends that requests for service to be effected on its territory, giving the
specifications mentioned in the first paragraph, be addressed to it through
diplomatic channels.
The foregoing provisions
shall not prevent two Contracting States from agreeing to allow direct
communication between their respective authorities.
Article 2
Service shall be effected
by the authority which is competent according to the laws of the State
addressed. That authority, except in the cases mentioned in Article 3, may
confine itself to serving the document by delivery to an addressee who accepts
it voluntarily.
Article 3
The request shall be
accompanied by the document to be served in duplicate.
If the document to be
served is written, either in the language of the requested authority, or in the
language agreed on between the two States concerned, or if it is accompanied by
a translation into one of those languages, the requested authority, should the
desire be expressed in the request, shall have the document served by a method
prescribed by its internal legislation for effecting similar service, or by a
special method, unless it is contrary to that law. If such a desire is not
expressed, the requested authority shall first seek to effect delivery in
accordance with Article 2.
Unless there is agreement
to the contrary, the translation provided for in the preceding paragraph shall
be certified as correct by the diplomatic officer or consular agent of the
requesting State or by a sworn translator of the State addressed.
Article 4
Where a request for
service complies with Articles 1, 2 and 3, the State on the territory of which
it has to be effected may refuse to comply therewith only if it deems that
compliance would infringe its sovereignty or security.
Article 5
Service shall be proved
by either a dated and legalised receipt from the addressee or a certificate
from the authority of the State addressed, establishing the fact, method and
date of the service.
The receipt or the
certificate should appear on one of the two copies of the document served, or
be annexed thereto.
Article 6
The provisions of the
foregoing Articles shall not interfere with -
(1) the freedom to send
documents, through postal channels, directly to the persons concerned abroad;
(2) the freedom of the
persons concerned to have service effected directly through the judicial
officers or competent officials of the country of destination;
(3) the freedom of each
State to have service effected directly by its diplomatic or consular agents of
documents intended for persons abroad.
In each of these cases,
the freedom mentioned shall only exist if allowed by conventions concluded
between the States concerned or if, should there be no convention, the State on
the territory of which service must be effected does not object. That State may
not object when, in the cases mentioned in sub-paragraph 3 of the above
paragraph, the document is to be served without any compulsion on a national of
the requesting State.
Article 7
The service of judicial
documents shall not give rise to reimbursement of taxes or costs of any nature.
However, should there be
no agreement to the contrary, the State addressed will have the right to
require from the requesting State the reimbursement of the costs occasioned by
the employment of a judicial officer or by the use of a particular method of service
in the cases mentioned in Article 3.
II. LETTERS OF REQUEST
Article 8
In civil or commercial
matters a judicial authority of a Contracting State may, in accordance with the
provisions of the law of that State, apply, by means of a Letter of Request, to
the competent authority of another Contracting State to request it, within its
jurisdiction, to obtain evidence, or to perform some other judicial act.
Article 9
Letters of Request shall
be transmitted by the consul of the requesting State to the authority which
shall be designated by the State of execution. That authority shall send to the
consul the document establishing the execution of the Letter of Request or
indicating the fact which prevented its execution.
Any difficulties which
may arise in connection with the transmission shall be settled through
diplomatic channels.
Any Contracting State may
declare, by a communication addressed to the other Contracting States, that it
intends that Letters of Request to be executed on its territory be transmitted
through diplomatic channels.
The foregoing provisions
shall not prevent two Contracting States agreeing to allow the direct
transmission of Letters of Request between their respective authorities.
Article 10
Unless there is agreement
to the contrary, the Letter of Request must be written either in the language
of the requested authority, or in the language agreed between the two States
concerned, or else it must be accompanied by a translation, done in one of
those languages and certified as correct by a diplomatic officer or consular
agent of the requesting State of origin or by a sworn translator of the State
of execution.
Article 11
The judicial authority,
to which the Letter of Request is addressed, shall be obliged to comply with it
using the same measures of compulsion as for the execution of orders issued by
the authorities of the State of execution or of requests made by parties in
internal proceedings. These measures of compulsion shall not necessarily be
employed where the appearance of the parties to the case is involved.
The requesting authority
shall, if it so requests, be informed of the date and place of execution of the
measure sought, so that the party concerned may be able to be present.
The execution of the
Letter of Request may be refused only -
(1) if the authenticity
of the document is not established;
(2) if, in the State of
execution, the execution of the Letter does not fall within the functions of
the judiciary;
(3) if the State, on the
territory of which the execution is to be effected, considers that its
sovereignty or its security would be prejudiced thereby.
Article 12
If the authority to whom
a Letter of Request has been transmitted is not competent to execute it, the
Letter shall be automatically sent to the authority in the same State which is
competent to execute it in accordance with the provisions of its own law.
Article 13
In all cases where the
Letter of Request is not executed by the requested authority, the latter shall
immediately so inform the requesting authority, indicating, in the case of
Article 11, the reasons why execution of the Letter was refused and, in the case
of Article 12, the authority to which the Letter has been transmitted.
Article 14
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, provided that this is not contrary to the law of the State of
execution.
Article 15
The provisions of the
foregoing Articles shall not exclude the right of each State to have Letters of
Request executed directly by its diplomatic officers or consular agents, if
that is allowed by conventions concluded between the States concerned or if the
State on the territory of which the Letter is to be executed does not object.
Article 16
The execution of Letters
of Request shall not give rise to reimbursement of taxes or costs of any
nature.
However, unless there is
agreement to the contrary, the State of execution shall have the right to
require the State of origin to reimburse the fees paid to witnesses or experts,
and the costs occasioned by the employment of a judicial officer, rendered necessary
because the witnesses did not appear voluntarily, or the costs resulting from
any application of the second paragraph of Article 14.
III. SECURITY FOR COSTS
Article 17
No security, bond or
deposit of any kind, may be imposed by reason of their foreign nationality, or
of lack of domicile or residence in the country, upon nationals of one of the
Contracting States, having their domicile in one of these States, who are plaintiffs
or parties intervening before the courts of another of those States.
The same rule shall apply
to any payment required of plaintiffs or intervening parties as security for
court fees.
All conventions under
which Contracting States have agreed that their nationals will be exempt from
providing security for costs or for payment of court fees regardless of
domicile shall continue to apply.
Article 18
Orders for costs and
expenses of the proceedings, made in one of the Contracting States against the
plaintiff or party intervening exempted from the provision of security, deposit
or payment under the first and second paragraphs of Article 17, or under the
law of the State where the proceedings have been instituted, shall, upon
request made through diplomatic channels, be rendered enforceable without
charge by the competent authority, in each of the other Contracting States.
The same rule shall apply
to the judicial decisions whereby the amount of the costs of the proceedings is
subsequently fixed.
Nothing in the foregoing
provisions shall prevent two Contracting States from agreeing that applications
for enforcement may also be made directly by the interested party.
Article 19
The order for costs and
expenses shall be rendered enforceable without a hearing, but subject to
subsequent appeal by the losing party in accordance with the legislation of the
country where enforcement is sought.
The authority competent
to decide on the request for enforcement shall itself examine -
(1) whether, under the
law of the country where the judgment was rendered, the copy of the judgment
fulfils the conditions required for its authenticity;
(2) whether, under the
same law, the decision has the force of res judicata;
(3) whether that part of
the judgment which constitutes the decision is worded in the language of the
authority addressed, or in the language agreed between the two States
concerned, or whether it is accompanied by a translation, in one of those
languages and, unless there is agreement to the contrary, certified as correct
by a diplomatic officer or consular agent of the requesting State or by a sworn
translator of the State addressed.
To satisfy the conditions
laid down in the second paragraph, sub-paragraphs 1 and 2, it shall be
sufficient either for there to be a statement by the competent authority of the
State of origin establishing that the judgment has the force of res judicata,
or for duly legalised documents to be presented showing that the judgment has
the force of res judicata. The competence of the authority mentioned above
shall, unless there is agreement to the contrary, be certified by the highest
official in charge of the administration of justice in the requesting State of
origin. The statement and the certificate just mentioned must be worded or
translated in accordance with the rule laid down in the second paragraph,
sub-paragraph 3.
The authority competent
to decide on the request for enforcement shall assess, provided the party
concerned so requests at the same time, the amount of the cost of attestation,
translation and legalisation referred to in sub-paragraph 3 of the second paragraph.
Those costs shall be considered to be costs and expenses of the proceedings.
IV. FREE LEGAL AID
Article 20
In civil and commercial
matters, nationals of the Contracting States shall be granted free legal aid in
all the other Contracting States, on the same basis as nationals of these
States, upon compliance with the legislation of the State where the free legal
aid is sought.
In the States where legal
aid is provided in administrative matters, the provisions of the preceding
paragraph shall also apply to cases brought before the courts or tribunals
competent in such matters.
Article 21
In all cases, the
certificate or declaration of need must be issued or received by the
authorities of the habitual residence of the foreigner, or, if not by them, by
the authorities of his current residence. Should the latter authorities not
belong to a Contracting State and not receive or issue certificates or
declarations of that kind, it will be enough to have a certificate or a
declaration issued or received by a diplomatic officer or consular agent of the
country to which the foreigner belongs.
If the petitioner does
not reside in the country were the request is made, the certificate or
declaration of need shall be legalised free of charge by a diplomatic officer
or consular agent of the country where the document is to be produced.
Article 22
The authority competent
to issue the certificate or receive the declaration of need may obtain
information about the financial position of the petitioner from the authorities
of the other Contracting States.
The authority responsible
for deciding on the application for free legal aid shall retain, within the
limits of its powers , the right to verify the certificates, declarations and
information given to it and to secure for purposes of further clarification,
additional information.
Article 23
When the indigent person
concerned is in a country other than that in which the free legal aid is to be
sought, his application for legal aid, accompanied by certificates,
declarations of need and, where necessary, other supporting documents which
would facilitate examination of the application, may be transmitted by the
consul of his country to the authority competent to decide on that application,
or to the authority designated by the State where the application is to be
examined.
The provisions in Article
9, paragraphs 2, 3 and 4, and in Articles 10 and 12 above, concerning Letters
of Request, shall apply to the transmission of applications for free legal aid,
and their annexes.
Article 24
If the benefit of legal
aid has been granted to a national of one of the Contracting States, service of
documents relating to his case in another Contracting State, regardless of the
method to which it is to be effected, shall not give rise to any reimbursement
of costs by the State of origin to the State addressed.
The same shall apply to
Letters of Request, with the exception of the fees paid to experts.
V. FREE ISSUE OF EXTRACTS
FROM CIVIL STATUS RECORDS
Article 25
Indigent persons who are
nationals of one of the Contracting States may obtain on the same terms as
nationals of the State concerned extracts from civil status records, without
charge. The documents necessary for their marriage shall be legalised without
cost by the diplomatic officers or consular agents of the Contracting States.
VI. PHYSICAL DETENTION
Article 26
Physical detention,
either as a means of enforcement, or as a merely precautionary measure, shall
not, in civil or commercial matters, be employed against foreigners, belonging
to one of the Contracting States, in circumstances where it cannot be employed
against nationals of the country concerned. A fact, which may be invoked by a
national domiciled in such a country, to obtain release from physical
detention, may be invoked with the same effect by a national of a Contracting
State, even if the fact occurred abroad.
VII. FINAL CLAUSES
Article 27
This Convention shall be
open for signature by the States represented at the Seventh Session of the
Conference on Private International Law.
It shall be ratified and
the instruments of ratification shall be deposited with the Ministry of Foreign
Affairs of the Netherlands.
A record shall be made of
every deposit of instruments of ratification, and a certified copy of that
record shall be sent through diplomatic channels to each of the signatory
States.
Article 28
This Convention shall
enter into force on the sixtieth day after the deposit of the fourth instrument
of ratification as provided in the second paragraph of Article 27.
For each signatory State
subsequently ratifying the Convention, it shall enter into force on the
sixtieth day after the day of deposit of its instrument of ratification.
Article 29
The present Convention
shall replace, in relations between the States which have ratified it, the
Convention on Civil Procedure signed at The Hague on 17th July 1905.
Article 30
The present Convention
shall apply by law in the metropolitan territories of the Contracting States.
If a Contracting State
desires it to be put into force in all or certain of the other territories, for
the international relations of which it is responsible, it shall give notice of
its intention to that effect in a document which shall be deposited with the
Netherlands Ministry of Foreign Affairs. The latter shall send, through
diplomatic channels, a certified copy to each of the Contracting States.
The Convention shall
enter into force in relations between the States which have not raised an
objection in the six months following that communication and the territory or
territories for the international relations of which the State in question is
responsible, and in respect of which the said notice has been given.
Article 31
Any State not represented
at the Seventh Session of the Conference may accede to the present Convention,
unless a State or several States which have ratified the Convention object,
within a period of six months from the date of the notification by the Netherlands
Government of that accession. Accession shall be by the method indicated in the
second paragraph of Article 27.
It is understood that the
accessions shall not be able to take place until after the entry into force of
the present Convention, by virtue of the first paragraph of Article 28.
Article 32
Each Contracting State,
on signing or ratifying this Convention or on acceding to it, may reserve the
right to limit the application of Article 17 to the nationals of Contracting
States having their habitual residence in its territory.
A State availing itself
of the right mentioned in the preceding paragraph shall be able to claim
application of Article 17 by the other Contracting States only on behalf of its
nationals who have their habitual residence within the territory of the Contracting
State before the court of which they are plaintiffs or intervening parties.
Article 33
The present Convention
shall remain in force for five years from the date indicated in the first
paragraph of Article 28 of the Convention.
This period shall start
to run as from that date, even for States which shall have ratified it or
acceded to it subsequently.
The Convention shall be
renewed tacitly every five years, unless denounced. Denunciation must, at least
six months before expiry of the period, be notified to the Ministry of Foreign
Affairs of the Netherlands, which shall inform all the other Contracting States
of it.
The denunciation may be
limited to the territories or to certain of the territories indicated in a
notification, given in accordance with the second paragraph of Article 30.
The denunciation shall
only take effect in respect of the State which has notified it. The Convention
shall remain in force for the other Contracting States.
In witness whereof, the
undersigned, being duly authorised by their respective Governments, have signed
this Convention.
Done at The Hague, on the
first day of March, 1954, in a single copy, which shall be deposited in the
archives of the Government of the Netherlands and of which a certified copy
shall be sent through diplomatic channels to each of the States represented at
the Seventh Session of the Hague Conference on Private International Law.
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