In a previous post we dealt with the service of Spanish judicial decisions in civil and commercial matters in other European Union countries. In this post and the next one we are going to talk about such service in non-EU countries.
The main international instrument that regulates this process is the Hague Convention of 1965 on the service abroad of judicial and extrajudicial documents in civil or commercial matters (hereinafter, HC 1965), of which there are 73 contracting States, including Spain.
The initial requirement to practice the service is that the applicant provides the address of the recipient (person or company); if the address is unknown, HC 1965 cannot be applied.
HC 1965 establishes a main service system – the Central Authorities (CA) system – and several alternative systems. In the main system, the applicant shall provide the Court Attorney (Letrado de la Administación de Justicia or LAJ) of the Court where the judicial procedure is being followed with two copies of the following documents: 1) the request of service according to the form annexed to HC 1965, which does not need to be legalised, 2) the judicial decision to be served or a copy thereof and 3) a summary of the decision to be served (again, according to the form annexed to HC 1965). The LAJ shall forward these documents to the CA of the State addressed (the State where the address of the recipient is located), who shall serve the document. Once the procedure has been completed, the CA of the State addressed shall complete a certificate of service in the form of the model annexed to HC 1965 and forward it to the LAJ.
The alternative systems – which can be opposed to by the State of destination – are the following: service by Spanish consular or diplomatic bodies (provided that they do not use compulsion on the recipient); postal channels; direct service between judicial officials of the two States; and direct request by the interested person to the judicial authorities of the State of destination. Between these possibilities, we would recommend the use of postal channels, as it tends to be the simplest and quickest, provided the State of destination has not opposed to this system (the objections of each State can be found on the web page of the Conference of The Hague, www.hcch.net). The document can also be sent to the CA of the State of destination through Spanish consular or diplomatic bodies, a system which cannot be opposed to by the State addressed.
HC 1965 establishes language requirements that affect the decision to be served, the request of service and how to fill it in. In spite of the different possibilities allowed by HC 1965, it is highly advisable to translate all the documents into an official language of the State addressed, in order to avoid that its CA requests such translation at a later stage, thus delaying the service.
Finally, when the document to be notified is a writ of summons or an equivalent document, HC 1965 establishes a regulation to ensure the defendant’s right to due process. Firstly, the proceeding shall not continue until it is established that the document was served. However, the proceedings may continue if three conditions are met: 1) the document has been delivered through one of the systems we have explained; 2) a period of time of not less than six months has elapsed since the date of transmission of the document; and 3) it has not been possible to obtain the certificate of service from the CA of the State addressed. Secondly, when a writ of summons or an equivalent document had to be transmitted abroad for the purpose of service, under the provisions of the present Convention, and a judgment has been entered against a defendant who has not appeared, the judge shall have the power to relieve the defendant from the effects of the expiration of the time for appeal from the judgment if the following conditions are fulfilled: 1) the defendant, without any fault on his part, did not have knowledge of the document in sufficient time to defend, or knowledge of the judgment in sufficient time to appeal; 2) the defendant has disclosed a prima facie defence to the action on the merits; and 3) the application for relief is filed within a reasonable time after the date of the judgment, which in Spain has been set at sixteen months.
Finally, it is worth mentioning that if the State where the service is to be effected is neither a contracting State to HC 1965, nor to any bilateral or multilateral agreement with Spain, nor a member of the European Union, the service must be made as provided for in Law 29/2015, of 30 July, on international legal cooperation in civil matters. In a future post we will deal with this regulation, which basically copies the content of CH 1965.