Session 1 : Ideological Background of the Constitution, Constitutional Rules and Civil Procedure

Session 1 : Ideological Background of the Constitution, Constitutional Rules and Civil Procedure 1.1 Keynote Speech on general aspects of the topic Prof. Frédérique Ferrand, Tenured Professor, University Jean Moulin Lyon 3, France International Association of Procedural Law Seoul Conference 2014 1

Session 1 : Ideological Background of the Constitution, Constitutional Rules and Civil Procedure Frédérique Ferrand Keynote Speech Constitution and Civil Proceedings Summary I. Introduction II. Constitution and Access to the Court A. Access to a Court of First Instance B. Is There a Constitutional Right to a Mean of Recourse? III. Constitution and Course of Civil Proceedings A. Institutional Constitutional Procedural Guarantees B. Functional Constitutional Procedural Guarantees IV. Constitution and Transnational Dialogue or Conversation Between Courts V. Conclusion I. Introduction «Une bonne Constitution ne peut suffire à faire le bonheur d une nation. Une mauvaise peut suffire à faire son malheur» 1 : A good constitution is not enough to make the happiness of a nation. A bad one can be enough to make its misfortune. This sensible statement made by a famous French professor of constitutional law (Guy Carcassonne) shows what important role the basic, fundamental law of a country often plays. Concept of Constitution - What is a constitution? What are its form, aims and contents? The concept of a constitution goes back to ancient Greece. Aristotle (384-322 B.C.), in his work of political philosophy Politics 2 defines the constitution in the following way: «one citizen differs from another, but the salvation of the community is the common buiness of them all. This community is the constitution 3 ; the virtue of the citizen must therefore be relative to the constitution of which he is a member». A constitution can be described as the supreme law of the land. It is mostly located at the top of the legal system and all laws, decrees and orders must be consistent with its principles. However, this highest ranking may be challenged with regard to international treaties 4, especially 1 Guy CARCASSONNE, La Constitution, Paris, Seuil, coll. Points, 1996, p. 33. 2 ARITOTLE, Politics, transl. by Benjamin JOWETT, Univ. of Adelaide, webedition published by ebooks@adelaide. 3 The first sentence of Aritotle s book Politics contains the following statement: «Each state is a community of some kind» (book 1, first sentence, p. 1). 4 With regard to the ranking of the European Convention on Human Rights (ECHR) in Italy and Spain, see Charlotte GIRARD, «Ce qu appliquer la Convention en droit interne veut dire Le rôle des doctrines nationales», in Stéphanie HENNETTE-VAUCHEZ/Jean-Marc SOREL, Les droits de l homme ont-ils constitutionnalisé le monde?, Bruxelles, Bruylant, 2011, pp. 125 et seq. On the ranking of EU law and of the ECHR in France, Germany and Austria, see Christophe de ARANJO, Justices constitutionnelles et 2 International Association of Procedural Law Seoul Conference 2014

those relating to a regional economic institutional integration such as the European Union 5, as the European Court of Justice (ECJ) has ruled several times on the ground of the precedence principle 6. On the other hand, since the entry into force of the Lisbon justices européennes des droits de l homme, Étude comparée France-Allemagne, Brussels, Bruylant ed., 2009, pp. 189 et seq and pp. 343 et seq. In France, according to the Constitution, in the domestic legal order, the prevailing norm is the constitution (see e.g. Cass. Ass. Plén., 2 June 2000, No 99-60274 : «la suprématie conférée aux engagements internationaux ne s appliquant pas dans l ordre interne aux dispositions de valeur constitutionnelle») ; international treaties rank before national statutes. In Germany, in the domestic legal order, the highest norm is the Basic Law (constitution), then 2 the general rules of international law and EU law; 3 federal statutes and international conventions such as the ECHR. The main difference between France and Germany is the ranking of the ECHR (2 in France as an international treaty, 3 in Germany). 5 See e.g. the decision given by the French Constitutional Council, 19 November 2004, 2004-505 DC, Traité établissant une Constitution pour l Europe; see also 27 July 2006, No 2006-540 DC, Loi relative au droit d'auteur et aux droits voisins dans la société de l'information («19. Considérant, en premier lieu, que la transposition d'une directive ne saurait aller à l'encontre d'une règle ou d'un principe inhérent à l'identité constitutionnelle de la France, sauf à ce que le constituant y ait consenti». The Italian Corte costituzionale (sentenza No 232/1989, 21 April 1989) has ruled that primacy of EU law does not apply to fundamental constitutional principles. Also the German Bundesverfassungsgericht hold that the Basic Law has priority over EU law where the Verfassungsidentität is at stake, see BVerfG, 22 November 1986, 2 BvR 197/83, Solange II, BVerfGE 73, pp. 339 et seq. Before the change of case law contained in the Solange II judgment, the Bundesverfassungsgericht had ruled (29 May 1974, 2 BvL 52/71, Solange I, BVerfGE 37, pp. 271 et seq.) that the European Community stills lacks, in particular, a codified catalogue of fundamental rights, the substance of which is reliably and unambiguously fixed for the future and a decision as to whether, at the time in question, the Community law standard with regard to fundamental rights generally binding in the Community is adequate in the long term measured by the standard of the Basic Law with regard to fundamental rights ; As long as this legal certainty is not achieved in the course of the further integration of the Community, the reservation derived from Article 24 of the Basic Law applies. 6 The European Court of Justice (ECJ) has ruled that according to the precedence principle, European law is superior to the national laws, even to those of constitutional origin. The precedence principle applies to all European acts with a binding force. Therefore, Member States may not apply a national rule which contradicts to European law. The ECJ enshrined the precedence principle in the Costa v. Enel case of 15 July 1964 (case 6/64). Since the ECJ has ruled that national constitutions should also be subject to the precedence principle (ECJ, 17 December 1980, Internationale Handelsgesellschaft mbh v. Einfuhrund Vorratsstelle für Getreide und Futtermittel, case 11/70, No 3 : «in fact, the law stemming from the treaty, an independent source of law, cannot because of its very nature be overridden by rules of national law, however framed, without being deprived of its character as community law and without the legal basis of the community itself being called in question. Therefore the validity of a community measure or its effect within a member state cannot be affected by allegations that it runs counter to either fundamental rights as formulated by the constitution of that state or the principles of a national constitutional structure»), it is a matter for national judges not to apply the provisions of a constitution which contradict European law. However, since the Maastricht treaty introduced a provision stating that the Union shall respect the national identities of the Member States (see now Art. 4.2. TEU and infra under IV), the ECJ has several times referred to the relevance of particular constitutional requirements in Member States in order to justify an exception, see e.g. ECJ, 6 September 2006, C-88/03, Portuguese Republic v. Commission of the European Communities; 13 October 2004, C-36/02, Omega Spielhallenund Automatenaufstellungs-GmbH v. Oberbürgermeisterin der Bundesstadt Bonn; 8 September 2010, C- 409/06, Winner Wetten GmbH v. Bürgermeisterin der Stadt Bergheim. See also Leonard F.M. BESSELINK, «National and constitutional identity before and after Lisbon», Utrecht Law Review, Vol. 6, Issue 3, Nov. 2010, p. 46 : once, as a result of what some metaphorically call a dialogue of courts, it has emerged that a certain rule of principle belongs to that identity, the ECJ proves to be sensitive to this identity. International Association of Procedural Law Seoul Conference 2014 3

Session 1 : Ideological Background of the Constitution, Constitutional Rules and Civil Procedure treaty, Article 4.2 of the Treaty on European Union (TEU) requires the Union to respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government» 7. Constitution has been defined as containing the most important rules for the state, which means those which determine the form of the state and of its government 8. The powers of the constitutional organs (Parliament, government etc.) are organised as well as the relationships between the state and the citizens. Besides establishing the institutions of government and the manner in which they function toward each other and toward the people, a constitution may also set forth the rights of the individual and a government's duty to respect those rights. Jürgen Habermas, a famous German philosopher, makes a distinction between a liberal and a republican conception of a constitution: in the republican conception, a constitution aims at founding and justifying the sovereignty of a State, whereas the liberal view gives the constitution the function of limiting power (Macht) 9. In a State under the rule of law (État de droit, Rechtsstaat), there should be no arbitrary power, and individual rights should be respected. A constitution is at the same time a political and a legal act since it does not only regulate the distribution of powers but also gives a political orientation towards specific values in a specific geographical and human space unit. Due to this specific nature, the national constitution should only be done for the nation to which one wants to adapt it and has been compared to a garment that, if well made, should only fit one person 10. If we adhere to this metaphor, we then must admit that a constitution is an evolving body 11 that may be adapted by judicial interpretation or by process of amendment. Can There Be a Transnational Constitution? The Examples of the Failed Project of a European Constitution of the European Union and of the European Convention on Human Rights 12 Attempts have been made to enact a Treaty establishing a 7 For more details, see Leonard F.M. BESSELINK, «National and constitutional identity before and after Lisbon», Utrecht Law Review, Vol. 6, Issue 3, Nov. 2010, pp. 36-49. 8 Georges VEDEL, Manuel de droit constitutionnel, Paris, 1949, p. 112, reed. Paris, Dalloz, 2002. 9 Jürgen HABERMAS, «Une constitution politique pour notre société mondiale pluraliste?», in Jürgen HABERMAS, Entre naturalisme et religion. Les défis de la démocratie, Paris, coll. Nrf Essais, Gallimard, 2008, p. 275. 10 Comparison made during the 19th century by the French emperor Napoleon III (1808-1873). : «Une constitution doit être faite uniquement pour la nation à laquelle on veut l adapter. Elle doit être comme un vêtement qui, pour être bien fait, ne doit aller qu à un seul homme». 11 This is probably what the former State President Charles DE GAULLE meant by stating that une Constitution, c est un esprit, des institutions, une pratique (Press conference of 31 January 1964: A constitution, it is a spirit, institutions, a practice ). Comp. Benjamin CONSTANT, Ecrits politiques, Paris, Gallimard, Folio Essais, 1997, p. 385 : «Tant qu on n a pas essayé une constitution par la pratique, les formes sont une lettre morte : la pratique seule en démontre l effet et en détermine le sens». For an analysis of Constant s political philosphy (constitutionalism as a limited government), see Jean-Philippe FELDMANN, «Le constitutionnalisme selon Benjamin Constant», Revue française de droit constitutionnel 2008/4, p. 675-702. 12 See the American analysis of the European «constitutionalism», e.g. Eric STEIN, «Lawyers, Judges and the Making of a Transnational Constitution», American Journal of International Law, vol. 75, No 1, p. 1981; Anne-Marie SLAUGHTER/Walter MATTLI, «Revisiting the European Court of Justice», 4 International Association of Procedural Law Seoul Conference 2014

Constitution for Europe, commonly referred to as the European Constitution. This Treaty created a consolidated constitution of the European Union, and was supposed to replace the European Union Treaties with a single document. Signed in October 2004 by representatives of 25 Member States, it was then ratified by 18 of them. The French and Dutch people rejected the Treaty respectively in May and June 2005 by referendum, which halted the ratification process. Later, the Treaty of Lisbon was signed in December 2007 and came into force on 1st December 2009; it did not make any reference to a European Constitution (this terminology had caused reservations and partly great unconcealed hostility), though it contained many of the changes originally placed in the Treaty establishing a Constitution for Europe 13. In a less ominous manner for the people hostile to a European Federation, these changes were formulated as amendments to the existing treaties so that les apparences étaient sauves (appearances were kept up). The failed Treaty incorporated the Charter of Fundamental Rights of the European Union (signed in Nice in December 2000) that gained therefore full legal effect. The Lisbon Treaty also gave force to the Charter albeit by referencing it as an independent document rather than by incorporating it into the treaty itself 14. As we will see later, the Charter contains important procedural guarantees which are addressed to the institutions and bodies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law 15. There could have been a European Constitution that would have formalised the federal nature of the European Union. The project failed, but those main profound changes that had been planned were subsequently incorporated in a formally different way in the major reform act named the Treaty of Lisbon. The ECJ itself often refers to the European Treaties as a basic constitutional charter 16 and to the review by the ECJ as a constitutional guarantee stemming from the EC Treaty as an autonomous legal system» 17. According International Organization, vol. 52, No 1, Winter 1998, p. 177-209; Alec STONE, The Judicial Construction of Europe, Oxford, Oxford Univ. Press, 2004. 13 See Nicolas MOUSSIS, «Le Traité de Lisbonne : une constitution sans en avoir le titre», Revue du Marché Commun 2008, pp. 161 et seq. See also Koen LENAERTS, Piet VAN NUFFEL and Robert BRAY; Constitutional Law of the European Union, 3 rd ed. 2011, Sweet & Maxwell. 14 See Article 6.1 of the Treaty on European Union (TEU): «The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasburg, on 12 December 2007, which shall have the same legal value as the Treaties». 15 Article 51.1 of the Charter of Fundamental Rights of the European Union. On this issue, see ECJ, 26 February 2013, C-399/11, Melloni v. Ministerio Fiscal; 26 February 2013, C-617/10, Åklagaren contre Hans Åkerberg Fransson ; 6 March 2014, C-206/13, Crucinao Siragusa v. Regione Sicilia, Europe May 2014, Comm. No 190. 16 See also Ninon COLNERIC, «European Constitution», in Jürgen BASEDOW/Klaus HOPT/Reinhard ZIMMERMANN/Andreas STIER, The Max Planck Encylopedia of European Private Law, VoL. 1, Oxford, Oxford Univ. Press 2012, p/ 572-577 : «The EEC Treaty albeit concluded in the form of an international agreement, nonetheless constituted the constitutional charter of a community based on the rule of law». 17 See e.g. ECJ, 2 September 2008, joint cases C-402/05 P and C-415/05 P, Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council and Commission: «In this connection it is to be borne in mind that the Community is based on the rule of law, inasmuch as neither its Member States nor its institutions can avoid review of the conformity of their acts with the basic constitutional charter, the EC Treaty, which established a complete system of legal remedies and procedures designed to enable the Court of Justice to review the legality of acts of the institutions» (No 281) ; «The review by the Court of the validity of any Community measure in the light of fundamental rights must be considered to be the International Association of Procedural Law Seoul Conference 2014 5

Session 1 : Ideological Background of the Constitution, Constitutional Rules and Civil Procedure to the ECJ, the general principles of Community law do therefore have constitutional status 18. In legal literature, some also see the European Convention on Human Rights as a certain European Constitution binding on those States which are members of the Council of Europe. The European Court of Human Rights itself has defined the European Convention on Human Rights (ECHR) as an instrument constitutionnel de l ordre juridique européen» (constitutional instrument of the European legal order) in its decision Loizidou v. Turkey of 23rd March 1995 (application No 15318/89). However, this formulation has not often been used again by the Court meaning it can be considered that «son usage relève plus du registre symbolique qu autre chose» 19 (its use is more of symbolic nature than anything else). This reference of the European Court of Human Rights to the Convention as a «constitutional instrument» probably follows from the conviction of the judges of this court that their role as supranational judges is to guarantee a European and universal identity 20. This issue of safeguarding an identity explains why some European justices such as former President Luzius Wildhaber 21 see in the European Court of Human Rights a constitutional court 22, one which applies the Convention on Human Rights as a kind of safety device designed to correct any errors which have slipped through the filter of national constitutional bodies. Therefore, it has been argued that the European Court of Human Rights should not concentrate on individual decisions bur rather on landmark cases aiming to keep common minimal standards and even increase the general level of protection of human expression, in a community based on the rule of law, of a constitutional guarantee stemming from the EC Treaty as an autonomous legal system which is not to be prejudiced by an international agreement» (No 316) ; ECJ, 23 April 1986, case 294/83 Les Verts, European Court Report (ECR)1986.1339. See also Antoine VAUCHEZ, «L Europe et son nom de code Paradigme constitutionnel et formation d un nouveau centre politique», in Stéphanie HENNETTE-VAUCHEZ/Jean-Marc SOREL, Les droits de l homme ont-ils constitutionnalisé le monde?, Bruxelles, Bruylant, 2011, pp. 239-256. 18 ECJ, 15 October 2009, case C-101/08, Audiolux and Others, European Court Report (ECR) 2009.I.09823. See also Armin VON BOGDANDY and Jürgen BAST (eds), Principles of European Constitutional Law, 2 nd ed. 2010, Oxford, Hart Publishing. 19 Marie-Elisabeth BAUDOIN, «Consonances et dissonances dans le discours européen des droits de l homme violationnistes et étatistes : la définition du rôle du juge européen», in Stéphanie HENNETTE- VAUCHEZ/Jean-Marc SOREL, Les droits de l homme ont-ils constitutionnalisé le monde?, Bruxelles, Bruylant, 2011, p. 80, footnote 54. 20 Marie-Elisabeth BAUDOIN, prec., p. 90. 21 Luzius WILDHABER, «A constitutional future for the European Court of Human Rights», Human Rights Law Journal, vol. 23, nos 5-7, 2002, pp. 161-165. 22 See Luzius WILDHABER, «Constitutionnalisation et juridiction constitutionnelle : le point de vue de Strasbourg», in Stéphanie HENNETTE-VAUCHEZ/Jean-Marc SOREL, Les droits de l homme ont-ils constitutionnalisé le monde?, Bruxelles, Bruylant, 2011, pp. 92 et seq. (p. 95 : «Plutôt que de sauver une démocratie dans une affaire exceptionnelle, la Cour EDH a contribué à fortifier les démocraties grâce à la normativité de son action continue. Elle a décidé le même genre d affaires que les Cours constitutionnelles nationales sur la base de principes similaires. A cause de cette similitude, certains auteurs y compris moi-même ont qualifié la Cour EDH de cour quasi-constitutionnelle, sui generis»). 6 International Association of Procedural Law Seoul Conference 2014

rights in all Europe 23. Such a mission would be constitutional within the meaning of ruling on issues for reasons of public order in the general interest. The issue of «constitutionalization» 24 has also been raised in view of safeguarding the authority of the European Court which is threatened by the high number of individual complaints it cannot deal with within a reasonable time-frame 25. Should the Convention on Human Rights be subject to an individualistic approach or is a more constitutional (i.e. abstract) one preferable? The opinions are far from unanimous. The Convention has a strong normative role und should be placed at the top of the hierarchy of norms. Thus, as one scholar suggested 26, the term constitutional which has been increasingly used in the past few years could simply refer to a symbolic and rhetorical proposal performing the function of an identification and unification instrument of the European Court s members. Constitutional Values and Preamble of the Constitution - The values that are the basis for a constitution are sometimes stated in a preamble to the Constitution, as in the Spanish Constitución of 27 December 1978 : Garantizar la convivencia democrática dentro de la Constitución y de las leyes conforme a un orden económico y social justo. Consolidar un Estado de Derecho que asegure el imperio de la ley como expresión de la voluntad popular. Proteger a todos los españoles y pueblos de España en el ejercicio de los derechos humanos, sus culturas y tradiciones, lenguas e instituciones 27» or in the preamble to the French Constitution of 4th October 1958 : «Le peuple français proclame solennellement son attachement aux Droits de l'homme et aux principes de la souveraineté nationale tels qu'ils ont été définis par la Déclaration de 1789, confirmée et complétée par le préambule de la Constitution de 1946, ainsi qu'aux droits et devoirs 23 Luzius WILDHABER, «Place de la Cour européenne des droits de l Homme dans le paysage constitutionnel européen», XIIth Conference of the European constitutional courts, Brussels, 13-17 May 2002, p. 5. 24 See Stéphanie HENNETTE-VAUCHEZ/Jean-Marc SOREL, Les droits de l homme ont-ils constitutionnalisé le monde?, Bruxelles, Bruylant, 2011 ; Olivier DE FROUVILLE, «Le paradigme de la constitutionnalisation vu du droit international», in Stéphanie HENNETTE-VAUCHEZ/Jean-Marc SOREL, Les droits de l homme ont-ils constitutionnalisé le monde?, Bruxelles, Bruylant, 2011, pp. 193-215. For a different opinion, see Jean-Marc SOREL, «Le paradigme de la constitutionnalisatin vu du droit international (2) : le côté obscur de la force», in Stéphanie HENNETTE-VAUCHEZ/Jean-Marc SOREL, Les droits de l homme ont-ils constitutionnalisé le monde?, pp. 217-238. 25 Luzius WILDHABER, «Constitutionnalisation et «juridiction constitutionnelle : le point de vue de Strasbourg», prec., p. 96. 26 Marie-Elisabeth BAUDOIN, prec., p. 92. 27 «Guarantee democratic coexistence within the Constitution and the laws, in accordance with a fair economic and social order. Consolidate a State of Law which ensures the rule of law as the expression of the popular will. Protect all Spaniards and people of Spain in the exercise of human rights, of their culture and traditions, languages and institutions», translation provided by the website of the Spanish Congreso, http://www.congreso.es/portal/page/portal/congreso/congreso/hist_normas/norm/const_espa_texto_ingl es_0.pdf. International Association of Procedural Law Seoul Conference 2014 7

Session 1 : Ideological Background of the Constitution, Constitutional Rules and Civil Procedure définis dans la Charte de l'environnement de 2004 28». Many constitutions do not only mention human rights (derechos humanos, droits de l homme, Menschenrechte) in their preamble, but even dedicate to them a specific part such as the German Grundgesetz of 23rd May 1949 which starts with a Part 1 dealing with the Grundrechte. This was a strong political statement of the hierarchy of values in the newly founded Federal Republic of Germany. The same applies to the Spanish Constitution enacted about three years after Franco s death, of which the first Title reads De los Dereches y Deberes Fundamentales (Fundamental Rights and Duties) and deals more specifically in Chapter 2 with Derechos y Libertades (Rights and Liberties). The constitution is thus a tool which protects people. The Italian constitution (Costituzione della Repubblica italiana) of 27th December 1947 also contains a first part called Rights and duties of citizens (Rapporti civili, art. 13-28) 29. The same applies to the Brazilian constitution 30. By contrast, the American constitution of 1787 did not initially contain a part dedicated to the rights and duties of the people. It originally comprised only a few articles delineating the frame of government. After its coming into force in 1789, it was amended several times and the first ten amendments (Bill of Rights) address major people s rights, setting rules for indictment by grand jury, protecting the right to due process, and prohibiting self-incrimination and double jeopardy (5th Amendment), protecting the right to a fair, speedy and public trial by jury, including the rights to be informed of the nature and cause of the accusation, to be confronted by witnesses, to obtain witnesses and to retain counsel (6th Amendment) and stating the right to trial by jury in certain civil cases (7 th Amendment) 31. The 14 th Amendment, adopted in 1868, extended the due process clause to the individual states whereas the 5 th Amendment had made this clause applicable to the federal government 32. Form of the Constitution - The form of the Constitution may vary from one jurisdiction to another. It can be codified or not. In England for example, Magna Carta (Great Charter) was issued on 15 June 1215 in Latin of course and was the first document imposed upon a King of England by a group of his subjects in an attempt to limit his powers by law and protect their rights. During the second half of the 19th 28 «The French people solemnly proclaim their attachment to the Rights of Man and the principles of national sovereignty as defined by the Declaration of 1789, confirmed and complemented by the Preamble to the Constitution of 1946, and to the rights and duties as defined in the Charter for the Environment of 2004», translation provided by the website of the French Constitutional Council, http://www.conseil-constitutionnel.fr/conseilconstitutionnel/root/bank_mm/anglais/constiution_anglais_juillet2008.pdf. 29 See also the Swiss constitution of 18 March 1999, Title 2, Art. 7-36. 30 Constitution of the Federative Republic of Brazil of 5 October 1988, Title 2, Fundamental rights and guarantees. 31 «In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law». 32 The due process clause encompasses procedural due process and substantive due process. Procedural due process is the guarantee of a fair legal process when the government seeks to burden a person's protected interests in life, liberty, or property. Substantive due process is the guarantee that the fundamental rights of citizens will not be encroached on by government. 8 International Association of Procedural Law Seoul Conference 2014

century most but not all of its clauses were repealed 33. Magna Carta was described by Lord Denning as "the greatest constitutional document of all times. In 2005, Lord Woolf called it the "first of a series of instruments that now are recognised as having a special constitutional status" 34. Magna Carta was the first constitutional Act, and it has been asserted that it influenced parts of the American constitution 35. Unlike many other countries, the United Kingdom has no single constitutional document; sometimes it is for this reason said to have an "unwritten" constitution (unwritten because not originating in a single document, although many written laws have been instrumental in its creation). At the end of the 18 th century, the American and the French Revolutions led to the first written constitutions. The constitution can be a sole document as in Germany (Grundgesetz) or a set of several constitutional Acts. It can refer - this is e.g. the case in France to other written documents, thus giving them constitutional value. In the French preamble, the reference to the Declaration of 1789 36, confirmed and complemented by the Preamble to the Constitution of 1946 leads to the inclusion of the human rights guaranteed in these instruments in the so-called bloc de constitutionnalité 37. Some of these rights and liberties will prove very important for criminal and civil proceedings. Values are at Stake in Proceedings - Criminal or civil procedure is no longer seen as a mere technical matter. Procedural law is often built upon values that a State wishes to promote. One is for example the equal treatment between all citizens or individuals, and therefore also between litigants. With regard to civil procedure, several issues may have a close relationship with individual rights guaranteed by a national constitution. The first one is access to court (II) which can then be divided between access to a court of first instance and possible right to a mean if recourse. Constitutional values may also play an important rule during the course of civil proceedings; in this respect, the key words are fair trial (procès 33 Three clauses currently remain part of the law of England and Wales, in particular Clause 29 ( No Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right»). The last sentence of this clause was invoked in 2009 by an English Member of Parliament to oppose a planned change in the statutory regulation of court fees. 34 Other important English instruments having constitutional status are for example the Habeas Corpus Act (1679), the Petition of Right (1628), the Bill of Rights (1689), and the Act of Settlement (1701). 35 The United States Supreme Court has e.g. in its decision Klopfer v. North Carolina, 386 U.S. 213 (1967) mentioned Magna Carta as an antecedent of the Sixth Amendement s right to a speeding trial («We hold here that the right to a speedy trial is as fundamental as any of the rights secured by the Sixth Amendment. That right has its roots at the very foundation of our English law heritage. Its first articulation in modern jurisprudence appears to have been made in Magna Carta (1215), wherein it was written, We will sell to no man, we will not deny or defer to any man either justice or right»), see http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=386&invol=213 36 Déclaration des droits de l homme et du citoyen (Declaration of Human and Civic Rights) which has become the written basis of many decisions rendered by the French Constitutional Council relating to criminal, civil and administrative proceedings, see Régis FRAISSE, L article 16 de la Déclaration, clé de voûte des droits et libertés, Les nouveaux cahiers du Conseil constitutionnel n 44, July 2014, pp. 9 et seq. 37 See Bernard CHANTEBOUT, Droit constitutionnel, 29th ed. 2012, Paris, Sirey, p. 599. International Association of Procedural Law Seoul Conference 2014 9

Session 1 : Ideological Background of the Constitution, Constitutional Rules and Civil Procedure équitable, faires Verfahren, due process of law, derecho a un proceso equitativo) which encompasses many features of the proceedings such as the right to be heard, the independence and impartiality of the court and also the issue of publicity of the proceedings (III). These two main aspects of constitutional procedural rights (access to court and fair trial) are to be examined not only in the light of constitutional provisions since in many States, the Constitutional court and/or the civil courts have taken action in order to promote those rights through judicial interpretation. At a final stage (IV), this presentation will deal with a topic which has become of central importance in the last decades, due to the increase of international instruments aiming to protect human rights (such as the European Convention on Human Rights of 1950 ratified by 47 European States 38 or the American Convention on Human Rights of 1969 applying in 23 States of Central and South America 39 ) and to create regional economic, political and legal organisations such as the European Union. What is nowadays the interplay between national constitutions and regional or even international instruments? What are the respective roles of domestic, regional and international courts in the protection of procedural rights? Is there a transnational dialogue between the actors of that protection? What about possible conflicting provisions and/or case law? These difficult issues have become essential in judicial practice. II. Constitution and Access to the Court Rights would remain purely theoretical if the individual (or legal entities) were not in a position to defend them before an institution (normally a court). The concept of access to justice has been developed by scholars (especially by the great Italian professor Mauro Cappelletti 40 whose name has been chosen for the IAPL-prize rewarding the best work published on a procedural law subject) but also in the extensive case law of the European Court of Human Rights as a prerequisite to a fair trial followed from Article 6 ECHR. Access to justice refers to the ability of people to seek and obtain a remedy through formal or informal institutions of justice, and in conformity with the standards of human rights. When this access is provided before courts or tribunals, it is more precisely called access to court. It is a fundamental human right as set out in Article 8 of the Universal Declaration of Human Rights ( Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law ); it is also a means of protection of other rights. Therefore, it is not surprising to find in many national constitutions a provision guaranteeing in a more or less general way access to a court. In the United Kingdom, fundamental norms have been injected which «regulate the entire practice of civil 38 See http://www.strasbourg-europe.eu/pays-membres,44987,fr.html. 39 See the state of ratifications under http://www.oas.org/dil/treaties_b- 32_American_Convention_on_Human_Rights_sign.htm. 40 See e.g. Mauro CAPPELLETTI (ed.), Access to Justice and Welfare State, Florence, European Univ. Institute, 1981. 10 International Association of Procedural Law Seoul Conference 2014

justice» 41. Thus, the Human Rights Act 1998 incorporates the European Convention of Human Rights (especially art. 6 para 1 which concerns the basic aspects of access to court and fair procedure). Access to court requires a fair and efficient system for providing justice; equal access is also crucial to the proper functioning of society and raises the issue of the availability of legal aid in favour of the most disadvantaged (A). By contrast, few constitutions provide for a right to a mean of recourse and this issue is then left to the legislator (B). In Europe, as we will see, this is in line with the case law of the European Court of Human Rights with regard to the guarantees enshrined in Article 6 ECHR. A. Access to a Court of First Instance Lady Brenda Hale, Supreme Court Justice, emphasised in her 2011 Sir Henry Hodge Memorial Lecture, the need to maintain effective access to court: «Courts are and should be a last resort but they should be a last resort which is accessible to all, rich and poor alike» 42. This quotation underlines two major aspects of the right to access to court: the legal possibility to seize a civil court and the effective accessibility without regard to the financial resources of the litigants. Some Examples in National Constitutions Many national constitutions do indeed guarantee a right to access to court. Article 29a of the Swiss constitution of 18 March 1999 (Guarantee of access to the courts) states, for instance, that In a legal dispute, every person has the right to have their case determined by a judicial authority. However, The Confederation and the Cantons may by law preclude the determination by the courts of certain exceptional categories of case. Article 24 of the Spanish constitution of 1978 provides that 1. Every person has the right to obtain the effective protection of the Judges and the Courts in the exercise of his or her legitimate rights and interests, and in no case may he go undefended. 2. Likewise, all persons have the right of access to the ordinary judge predetermined by law [ ]. According to the Italian constitution (Article 24), Everyone can take judicial action to protect individual rights and legitimate interests 43. In Germany, the Grundgesetz does not expressly guarantee the right to access to court. However, the German constitutional court (Bundesverfassungsgericht) 44 has constantly ruled that a constitutional right to effective legal protection (Recht auf Gewährung effektiven Rechtsschutzes, Justizgewährungsanspruch 45 ) follows from Article 2 para 1 in connection with Article 41 N. Andrews, «Nurturing Civil Justice», in Festschrift Rolf Stürner, Band 2, Tübungen, Mohr Siebeck, 2013, p. 1402. 42 Equal Access to Justice in the Big Society, 27 June 2011, quoted by N. ANDREWS, «Nurturing Civil Justice», p. 1396. 43 Comp. Art. 5, XXXV Brazilian constitution. 44 The Bundesverfassungsgericht ist the highest institution in the judicial branch, co-equal with the legislative and executive branches of the German government, see Peter L. MURRAY/Rolf STÜRNER, German Civil Justice, Carolina Academic Press, Durham, 2004, p. 62. 45 On the dimension of Justizgewährleistung in German civil proceedings, see Alexander BRUNS, Die zivilprozessuale Dimension des Justizgewährleistung, in Festschrift Rolf Stürner, Vol. I, Tübingen, Mohr Siebeck ed., 2013, pp. 257-271. International Association of Procedural Law Seoul Conference 2014 11

Session 1 : Ideological Background of the Constitution, Constitutional Rules and Civil Procedure 20 para 3 of the Basic Law (Grundgesetz) 46. According to Article 2 para 1, Every person has the right to free development of his personality insofar as he does not violate the rights of others or offend against the constitutional order of the moral law ; Article 20 para 3 guarantees the rule-of-law principle 47 (Rechtsstaatsprinzip). According to the German constitutional court, the fundamental rights secured by the Basic Law can only perform their function in the constitutional order if they can be effectively realised through judicial proceedings that will be guaranteed (Rechtsverwirklichung durch Verfahren). The influence of the German Federal constitutional court on criminal and civil procedure is huge. By means of the Verfassungsbeschwerde ("constitutional complaint") any person may allege that their constitutional rights have been violated 48. Although only a small fraction of these complaints are actually successful (about 2%) 49, they allow the German constitutional court to develop the protection of fundamental procedural rights. It has even been asserted by a German scholar 50 that constitutional case law is probably the most current procedural legislation. The French constitution of 1958 does not expressly guarantee the right to access to court. The Constitutional council, however, has made use of Article 16 of the Declaration of Human and Civic Rights of 1789 (which reads: Any society in which no provision is made for guaranteeing rights or for the separation of powers, has no Constitution ) to give constitutional value to the right to an effective legal remedy before court (droit à un recours juridictionnel effectif ) 51 and to several other procedural rights 52 so that Article 46 See e.g. German Fed. Const. court(bverfg), 2 March 1993, 1 BvR 249/92, Neue Juristische Wochenschrift (NJW) 1993, p. 1635. For more recent decisions, see German Fed. Const. court (BVerfG), 18 July 2013, 1 BvR 1623/11, NJW 4/2014, p. 205 ; 3 March 2014, 1 BvR 2534/10, NJW 25/2014, p. 1796. 47 Art. 20 para 3: «The legislature shall be bound by the constitutional order, the executive and the judiciary by law and justice». 48 When all other remedies are exhausted, the plaintiff can file a constitutional complaint with the Bundesverfassungsgericht and allege, for instance, that a court judgment is in violation of the Constitution 1 by virtue of the procedure with which the court decision was reached, 2 by reason of the law on which the judgment is based or 3 by reason of some finding or reasoning of the judges, see Peter L. MURRAY/Rolf STÜ RNER, German Civil Justice, Carolina Academic Press, Durham, 2004, p. 64. 49 The workload of the Federal Constitutional court had increased considerably so that in 1993 panels of three judges (Dreierkammern) were established within both senates of eight judges. The panels of three judges, acting unanimously, may summarily dismiss a constitutional complaint as unfounded or may grant the relief requested, see 83b and 93c of the law relating to the Federal Constitutional court (Bundesverfassungsgerichtsgesetz, BVerfGG) and Peter L. MURRAY/Rolf STÜ RNER, German Civil Justice, p. 65. 50 Peter GILLES, «Zum Bedeutungszuwachs und Funktionswandel des Prozessrechts», Juristische Schulung (JUS) 1981, p.405. 51 See e.g. Const. Council (CC), 23 July 1999, no 99-416 DC, Loi portant création d'une couverture maladie universelle; 27 July 2006, No 2006-540 DC, Loi relative au droit d auteur et aux droits voisins dans la société de l information, 11 ; 29 September 2010, No 2010-38 QPC, M. Jean-Yves G. (Amende forfaitaire et droit au recours), 3 ; 30 July 2010, No 2010-19/27 QPC, Époux P. et autres (Perquisitions fiscales) ; 26 November 2010, No 2010-71 QPC, Mlle Danielle S. (Hospitalisation sans consentement) ; 13 May 2011, No 2011-129 QPC, 4 ; 17 June 2011, No 2011-138 QPC, 4. 52 Const. Council (CC), 27 July 2006, No 2006-540 DC, Loi relative au droit d auteur et aux droits voisins dans la société de l information, 11. This required first the Constitutional Council to incorporate the Preamble of the Constitution of 1958 and therefore the Preamble of 1946 as well as the Declaration of Human and Civic Rights of 1789 to which the Preamble of 1958 refers, into the so called «bloc de constitutionnalité», which was done by decision 71-44 DC, 16 July 1971, Liberté d association. 12 International Association of Procedural Law Seoul Conference 2014

16 has been described as the cornerstone of rights and liberties in France 53. More precisely, between March 1959 and March 2010, Article 16 was relied upon 70 times, and led to 2 réserves d interprétation (reservations with regard to the constitutional interpretation of a statutory provision) 54 and to the repealing of 17 statutory provisions. On the 1st of March 2010, the reform act creating the "application for a priority preliminary ruling on the issue of constitutionality" (so-called Question prioritaire de constitutionnalité, QPC, priority question of constitutionality) came into force. The QPC is the right for any person who is involved in legal proceedings before a court to argue that a statutory provision infringes rights and freedoms as guaranteed by the Constitution. From the 1st of March 2010 until the 1st of March 2014, Article 16 was invoked more than 150 times, and led to 18 réserves d interprétation, to the seizing of the European Court of Justice for a preliminary ruling (question préjudicielle) 55 and to the repealing of 38 statutory provisions 56. Therefore, the absence of an express constitutional provision concerning access to court does not prevent national judges from recognizing this fundamental procedural right, since it is a condition for the exercise of all other procedural rights. This has been clearly and repeatedly ruled by the European Court of Human Rights. Article 6 (1) of the European Convention on Human Rights and Article 8 (1) of the American Convention on Human Rights The American Convention on Human Rights signed in San Josi, Costa Rica, 22nd November 1969 contains an Article 8 securing the right to a fair trial 57, and more precisely to a hearing with due guarantees 58. 53 Régis FRAISSE, «L article 16 de la Déclaration, clef de voûte des droits et libertés», Les nouveaux cahiers du Conseil constitutionnel, No 44, 2014, pp. 9-21. Article 16 of the Declaration appears as a «guarantee of rights» in the decision given by the Constitutional Council (CC), 21 January 1994, No 93-335 DC, Loi portant diverses dispositions en matière d urbanisme et de construction. 54 Réserves d'interprétation aim to give an orientation compatible with the Constitution with regard to an application of the statutory provision without repealing the challenged norm. 55 Const. Council (CC), 4 April 2013, No 2013-314 QPC, M. Jeremy F. 56 R. FRAISSE, prec., p. 14. The «success story» of the QPC is described in Olivier DUTHEILLET DE LAMOTTE, A french legal success story : the Question prioritaire de constitutionnalité, available on the website of the Constitutional Council, http://www.conseil-constitutionnel.fr/conseilconstitutionnel/francais/documentation/contributions-et-discours/2012/a-french-legal-success-story-thequestion-prioritaire-de-constitutionnalite.115542.html. According to the author, «Concrete review is based on real life. It is based on real cases, on the actual implementation of the law. It rules on the constitutionality of a statute as it is applied, and not as it could or should be applied». 57 Art. 8.1. : «Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature. 58 The American Convention on Human Rights, which has never been ratified by the United States and Canada, also contains an Article 25 (Right to judicial protection) stating that 1. Everyone has the right to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the constitution or laws of the state concerned or by this Convention, even though such violation may have been committed by persons acting in the course of their official duties. 2. The States Parties undertake: a. to ensure that any person claiming such remedy shall have his rights determined by the competent authority provided for by the legal system of the state; b. to develop the possibilities of judicial remedy; and c. to ensure that the competent authorities shall enforce such remedies when granted». This provision has almost the same content as Art. 13 ECHR (Right to an effective remedy) : Everyone whose rights and freedoms as set International Association of Procedural Law Seoul Conference 2014 13

Session 1 : Ideological Background of the Constitution, Constitutional Rules and Civil Procedure One of its strongest advocates, the former President of the Inter-American Court of Human rights Cançado Trindade, has several times insisted upon the need to enlarge further the material content of jus cogens, so as to encompass likewise the right of access to justice and thus fulfil the pressing needs of protection of the human person 59. One of the most important provisions in the European Convention is its Article 6 para 1 that guarantees a right to a fair trial. This provision has been interpreted by the European Court of Human Rights in an extensive and pragmatic manner: the right to a fair trial cannot be granted if the access to court is not secured. Therefore, in the landmark case Golder v. The United Kingdom of 1975 60 (and repeatedly in many other decisions), the Strasburg Court held that The principle whereby a civil claim must be capable of being submitted to a judge ranks as one of the universally "recognised" fundamental principles of law; the same is true of the principle of international law which forbids the denial of justice. Article 6 para. 1 (art. 6-1) must be read in the light of these principles» ( 35 of the judgment) 61. «It would be inconceivable, in the opinion of the Court, that Article 6 para. 1 should describe in detail the procedural guarantees afforded to parties in a pending lawsuit and should not first protect that which alone makes it in fact possible to benefit from such guarantees, that is, access to a court. The fair, public and expeditious characteristics of judicial proceedings are of no value at all if there are no judicial proceedings». It follows that the right of access constitutes an element which is inherent in the right stated by Article 6 para. 1» ( 36). Many other judgments followed 62, insisting again and again on the necessary guarantee of effective access to court. However, the right to access to a court is not absolute. According to the Strasburg Court, it may be subject to limitations since the right of access by its very nature calls for regulation by the State. In this respect, the Contracting States enjoy a certain margin of appreciation, although the final decision as to the observance of the Convention s requirements rests with the Court. It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 1 if it does forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity». 59 Antonio Augusto CANCADO TRINDADE, «The Expansion of the Material Content of Jus Cogens: The Contribution of the Inter-American Court of Human Rights, in Dean SPIELMANN, Marialena TSIRLI and Panayotis VOYATZIS, La Convention européenne des droits de l homme, un instrument vivant, Mélanges en l honneur de Christos L. Rozakis, Bruxelles, Bruylant, 2011, pp. 37 et seq. 60 ECtHR, 21 February 1975, applic. No 4451/70. 61 According to the ECtHR, «Were Article 6 para. 1 (art. 6-1) to be understood as concerning exclusively the conduct of an action which had already been initiated before a court, a Contracting State could, without acting in breach of that text, do away with its courts, or take away their jurisdiction to determine certain classes of civil actions and entrust it to organs dependent on the Government. Such assumptions, indissociable from a danger of arbitrary power, would have serious consequences which are repugnant to the aforementioned principles and which the Court cannot overlook». 62 For a very recent decision, see ECtHR, 14 January 2014, Jones and Others v. the United Kingdom, applic. Nos 34356/06 and 40528/06: 186. Article 6 1 secures to everyone the right to have any legal dispute ( contestation in the French text of Article 6 1) relating to his civil rights and obligations brought before a court. 14 International Association of Procedural Law Seoul Conference 2014

not pursue a legitimate aim and if there is no reasonable relationship of proportionality between the means employed and the aim sought to be achieved 63. What is the effect of such a judgment on the Contracting States? Article 46 of the Convention provides that Contracting States undertake to abide by the Court's final decision 64. To date, the Court has decided consistently that under the Convention it has no jurisdiction to annul domestic laws or administrative practices which violate the Convention. The Committee of Ministers of the Council of Europe is charged with supervising the execution of the Court's judgments and oversees the Contracting States' changes to their national law in order that it is compatible with the Convention, or individual measures taken by the contracting state to redress violations. Judgments by the Court are binding on the respondent state concerned 65. The Charter of Fundamental Rights of the European Union In the context of Europe, there is a profusion of provisions guaranteeing the litigants procedural rights. Even before the Charter of Fundamental Rights of the European Union became legally binding when the Treaty of Lisbon came into force in December 2009, the European Court of Justice regularly referred to this Charter. Since 1974, it also regularly refers 66 to the European Convention on Human Rights, as well as to the constitutional traditions common to the Member States. To date, Article 6.3 of the Treaty on European Union 63 Ibid. See also e.g. ECtHR, 29 June 2011, Sabeh El Leil v. France [GC], applic. No. 34869/05, 46-47; 3 March 2005 (dec.), Manoilescu and Dobrescu v. Romania and Russia, applic. No. 60861/00, 66 and 68. 64 On the other hand, advisory opinions of the European Court of Human Rights are non-binding. 65 See Art. 46 ECHR on the binding force and execution of judgments given by the Strasburg Court, especially paras 1 and 2: «1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties. 2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution». If the Committee of Ministers considers that a High Contracting Party refuses to abide by a final judgment in a case to which it is a party, it may, after serving formal notice on that Party and by decision adopted by a majority vote of two thirds of the representatives entitled to sit on the committee, refer to the Court the question whether that Party has failed to fulfil its obligation under paragraph 1 (para 4) and if the Court finds a violation, «it shall refer the case to the Committee of Ministers for consideration of the measures to be taken» (para 5). 66 ECJ, 14 May 1974, Nold KG v. Commission, case 4/73, ECR, p. 491, was a first step : «13. As the court has already stated, fundamental rights form an integral part of the general principles of law, the observance of which it ensures. In safeguarding these rights, the court is bound to draw inspiration from constitutional traditions common to the Member States, and it cannot therefore uphold measures which are incompatible with fundamental rights recognized and protected by the constitutions of those states. Similarly, international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories, can supply guidelines which should be followed within the framework of community law». Then the ECJ made direct reference to the ECHR (ECJ, 28 October 1975, Rutili v. Ministre de l Intérieur, case 36/75; 21 September 1989, Hoechst AG v. Commission, cases 46/87 and 227/88. Only later, in the 1990s, the ECJ has directly quoted the ECtHR case law (see e.g. ECJ, 17 December 1998, Baustahlgewebe GmbH v. Commission, case C-185/95: in this decision, following the case law of the Strasburg Court, the ECJ rules that the reasonableness of the duration of the procedure before the court of first instance must be appraised in the light of the circumstances specific to each case and, in particular, the importance of the case for the person concerned, its complexity and the conduct of the applicant and the competent authorities. A procedural irregularity of that kind justifies, as an immediate and effective remedy, first, annulment of the judgment of the court of first instance in so far as it set the amount of the fine imposed for the infringement found and, second, determination of that amount by the Court of Justice at a level which takes account of the need to give the applicant reasonable satisfaction. International Association of Procedural Law Seoul Conference 2014 15

Session 1 : Ideological Background of the Constitution, Constitutional Rules and Civil Procedure (TEU) stresses that 3. Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union's law». Article 6.1 TEU also provides that the Charter of Fundamental Rights of the European Union has the «same legal value as the Treaties». The European Union must also accede to the European Convention of Human Rights (Article 6.2). The Charter contains an Article 47 on the «Right to an effective remedy and to a fair trial» 67 stating guarantees very similar to those provided in Article 6 para 1 ECHR. The Charter, thus, goes even further by requiring that Legal aid be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice» (Article 47.3). Is There a Constitutional Right to Legal Aid? Some national constitutions 68 do indeed guarantee legal aid. For example, Article 24, para 3 of the Italian constitution is generous and provides that the indigent are assured, through appropriate institutions, the means for action and defence before all levels of jurisdiction. The Federal Constitution of the Swiss Confederation contains a similar provision (Article 29 para 3 69 ). Nothing of this kind is mentioned in many other constitutions such as in France 70 or Germany. However, the German Federal Constitutional court has constantly 71 held that Article 20 para 1 of the Basic Law (defining the Federal Republic of Germany as a democratic and social federal state, demokratischer und sozialer Bundesstaat) requires that the financially disadvantaged enjoy a judicial protection more or less identical to the better-off 72 ; sometimes, the Court s decisions also use other provisions 67 Art. 47 of the Charter of Fundamental Rights of the European Union : «1. Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. 2. Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented». 68 Comp. Art. 24 para 2 of the Spanish Constitution: all persons have the right «to the defence and assistance of a lawyer». 69 Art. 29 para 3: «Any person who does not have sufficient means has the right to free legal advice and assistance unless their case appears to have no prospect of success. If it is necessary in order to safeguard their rights, they also have the right to free legal representation in court». 70 In France, the principle according to which justice if free of charge (principe de gratuité de la justice) is enshrined in Law Act No 77-1468 of 30 December 1977. However, this does not apply to lawyers fees (except where the law provides for legal aid). The Constitutional council has nevertheless admitted that statutes could impose on the litigants even on those benefiting from legal aid some very low fees (droits de plaidoirie, less than 10 euros), see CC, 25 November 2011, No 2011-198 QPC, M. Albin R.). Also the so-called contribution pour l aide juridique (35 euros) and the contribution of 150 euros to pay in appellate proceedings do not infringe the right to effective access to court (CC, 13 April 2012, No 2012-231/234 QPC, M. Stéphane C. et autres). Those two contributions which were time-limited have been abolished. 71 See already German Fed. Const. court (BVerfG), 22 January 1959, 1 BvR 154/55, BVerfGE 9, pp. 124 et seq. [130 et seq.]; 12 January 1960, 1 BvL 17/59, BVerfGE 10, p. 264 [p. 270]; 6 June 1967, 1 BvR 282/65, BVerfGE 22, pp. 83 et seq. [p. 86]. 72 German Fed. Const. court (BVerfG), 7 April 2000, Neue Juristische Wochenschrift (NJW) 2000, p. 1937 ; 10 March 1990, 2 BvR 94, 802, 887, 997, 1094, 1158, 1247, 1274, 1439, 1513/8,NJW 1991, p. 413. See also German Federal Court of Justice, 3rd civil chamber, 26 October 1989, Entscheidungen des Bundesgerichtshofes in Zivilsachen (BGHZ) 109, p. 168. This does not only apply to legal aid in 16 International Association of Procedural Law Seoul Conference 2014

of the Basic Law such as Article 3 (equality before the law) 73 or Article 19 para 4 (right to recourse to the courts) to support its reasoning and to refuse any «Rechtswegsperre» (court access barriers) 74. This case law has a great impact on civil proceedings. In most states, however, the existence of legal aid and the requirements to be met are subject to statute and not secured by the constitution. In France for example, the Constitutional Council does not give constitutional value to the right to legal aid as such 75. However, it held that legal aid and right to effective access to court are connected, and that the costs of judicial proceedings may prevent citizens from bringing a law suit 76, and therefore concluded that legal aid is an important feature of the right to effective access to court 77. Moreover, for the states that are members of the Council of Europe 78, a duty to provide legal aid in civil proceedings is imposed in some circumstances by the case law of the Strasburg Court according to which (as stated in the famous case Airey v. Ireland dealing with a judicial separation proceeding 79 ), in complex litigation, it is most improbable that a person in Mrs. Airey s position [ ] can effectively present his or her proceedings (Prozesskostenhilfe) but also to legal aid before any proceeding (Beratungshilfe), see German Fed. Const. court(bverfg), 30 June 2009, 1 BvR 470/09, Zeitschrift für das Gesamte Familienrecht (FamRZ) 2009, p. 1655. 73 E.g. German Fed. Const. court (BVerfG), 14 April 2003, 1 BvR 1998/02, NJW 2003, p. 2976. 74 German Fed. Const. court (BVerfG), 4 February 1997, NJW 1997, p. 2103. Ordinary courts shall not overextend the legal conditions required to enjoy legal aid, see e.g. German Fed. Const. court (BVerfG), 14 April 2003, NJW 2003, p. 2976. The German constitution allows legal aid to depend on the sufficient prospect of success of the case (hinreichende Aussicht auf Erfolg) and on the absence of abuse of process; however, the requirement of prospect of success should not be overextended, see German Fed. Const. court (BVerfG), 14 April 2003, 1 BvR 1998/02, NJW 2003, p. 2976. For other examples, see German Fed. Const. court(bverfg), 11 March 2010, 1 BvR 365/09, NJW 2010, p. 1657 ( 17 : «Die Prüfung der Erfolgsaussicht soll allerdings nicht dazu dienen, die Rechtsverfolgung beziehungsweise Rechtsverteidigung selbst in das summarische Prozesskostenhilfeverfahren zu verlagern und dieses an die Stelle des Hauptsacheverfahrens treten zu lassen (vgl. BVerfGE 81, 347 <357>). Prozesskostenhilfe darf insbesondere dann nicht versagt werden, wenn die Entscheidung in der Hauptsache von der Beantwortung einer schwierigen, bislang ungeklärten Rechtsfrage abhängt (vgl. BVerfGE 81, 347 <359>; BVerfGE 2, 279 <281>)»; German Fed. Const. court (BVerfG), 11 March 2010, 1 BvR 3031/08, NJW 2010, p. 1658 ; 29 December 2009, 1 BvR 1781/09, NJW 2010, p. 987. 75 Const. Council (CC), 9 June 2011, No 2011-631 DC, Loi relative à l immigration, 88 ; 25 November 2011, No 2011-198 QPC, M. Albin R. (Droits de plaidoirie) : «Le Conseil n a pas reconnu de valeur constitutionnelle au droit à l aide juridictionnelle en tant que tel. Mais, en s assurant que ce droit n a pas été méconnu pour juger qu il n est pas porté d atteinte substantielle aux droits de personnes à un recours effectif, il établit implicitement mais nécessairement un lien entre les deux». 76 Const. Council (CC), 25 November 2011, No 2011-198 QPC, M. Albin R. (Droits de plaidoirie). 77 Ibid. The new statutes of 29 December 2010 had stated that litigants enjoying legal aid should pay the droits de plaidoiries (about 9 euros). The Constitutional Council held that this amount is relatively modest and that therefore the new provision is not unconstitutional. 78 In the European Union, see the rights provided by Art. 47.3 of the Charter of Fundamental Rights («Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice») and, with regard to legal aid to be granted to legal entities, ECJ, 22 December 2010, DEB Deutsche Energiehandels- und Beratungsgesellschaft mbh, case C-279/09: the principle of effective judicial protection, as enshrined in Article 47 of the Charter, must be interpreted as meaning that it is not impossible for legal persons to rely on that principle and that aid granted pursuant to that principle may cover, inter alia, dispensation from advance payment of the costs of proceedings and/or the assistance of a lawyer. 79 ECtHR, 9 October 1979, Airey v. Ireland, applic. No 6289/73. International Association of Procedural Law Seoul Conference 2014 17

Session 1 : Ideological Background of the Constitution, Constitutional Rules and Civil Procedure own case so that the possibility to appear in person before the High Court does not provide the applicant with an effective right of access and, hence, that it also does not constitute a domestic remedy whose use is demanded by Article 26, 24). Since the Convention is designed to safeguard the individual in a real and practical way as regards those areas with which it deals and despite the absence of any provision on legal aid in civil proceedings 80 in the Convention, the Strasburg Court held that Article 6 para 1 «may sometimes compel the State to provide for the assistance of a lawyer when such assistance proves indispensable for an effective access to court either because legal representation is rendered compulsory, as is done by the domestic law of certain Contracting States for various types of litigation, or by reason of the complexity of the procedure or of the case» ( 26) 81. The Convention or more precisely the Strasburg Court supplements through its creative and far reaching interpretation the national constitutions and/or statutes. Access to Justice versus Access to Court? - Nowadays, many governments tend to promote access to justice rather than direct access to court. The ADR-groundswell that started in the United States of America in the 1970s and has now reached Europe is based on the assumption that justice can be rendered by other means than state civil proceedings and that ADR can enhance the access to justice for citizens. ADRmechanisms belong to a contractual justice 82, to a horizontal justice. This tendency has been analysed in France by a sociologist (Michel Maffésoli 83 ) who underlines the changing relationships between people and the institutions. People tend to refuse the hierarchical link to an institution located above (such as a court) and to prefer a horizontal relationship to solve their conflicts. A kind of private, contractual management of conflict tends to be preferred. Although the ADR-mechanisms should not generally be criticised, it is nevertheless necessary to be conscious of some possible dangerous excesses that could lead to a vanishing trial 84 already asserted in the 80 For criminal proceedings, see Art. 6 para 3 (c) ECHR. 81 In a cautious manner, the Strasburg Court adds, however, that «It would be erroneous to generalize the conclusion that the possibility to appear in person before the High Court does not provide Mrs. Airey with an effective right of access; that conclusion does not hold good for all cases concerning civil rights and obligations or for everyone involved therein. In certain eventualities, the possibility of appearing before a court in person, even without a lawyer s assistance, will meet the requirements of Article 6 para. 1 (art. 6-1); there may be occasions when such a possibility secures adequate access even to the High Court. Indeed, much must depend on the particular circumstances» ( 26). 82 See e.g. Loïc CADIET, ««Les conventions relatives au procès en droit français - Sur la contractualisation du règlement des litiges», in Accordi di parte e processo, Quaderni della Rivista trimestrale di diritto e procedura civile, Milan, Giuffrè ed., 2008, p. 7-35. 83 Michel MAFFESOLI, Le temps revient, Formes élémentaires de la postmodernité, Paris, Desclée de Brouwer ed., 2010, p. 39 et seq. («Le remplacement de la verticalité par l horizontalité est le dénominateur commun de tous les phénomènes sociétaux contemporains», p. 39). 84 See Marc GALANTER, «The Vanishing Trial : An examination of Trials and Related Matters in Federal and State Courts», Journal of Empirical Studies, Vol. 1, No. 3, November 2004, p. 459-570 (p. 460 : «Plausible causes for this decline include a shift in ideology and practice among litigants, lawyers, and judges. Another manifestation of this shift is the diversion of cases to alternative dispute resolution forums») ; Thomas STIPANOWITCH, «ADR and the Vanishing Trial : The Growth and Impact of Alternative Dispute Resolution», Journal of Empirical Legal Studies, Vol. 1, No. 3, 2004, p. 843-912. 18 International Association of Procedural Law Seoul Conference 2014

United States (the trial as an «endangered species in our courts» 85 ). This phenomenon often occurs to the detriment of the weakest parties such as consumers, which has, however, not prevented the European Union from enacting a directive and a regulation on consumer ADR 86 because «Ensuring access to simple, efficient, fast and low-cost ways of resolving domestic and cross-border disputes which arise from sales or service contracts should benefit consumers and therefore boost their confidence in the market» (Recital 4 of the Directive), Alternative dispute resolution (ADR) offers a simple, fast and low-cost out-of-court solution to disputes between consumers and traders» (Recital 5). However, the European legislator is well aware of the danger of the vanishing trial since Recital 45 of the Directive on Consumer ADR adds that The right to an effective remedy and the right to a fair trial are fundamental rights laid down in Article 47 of the Charter of Fundamental Rights of the European Union. Therefore, ADR procedures should not be designed to replace court procedures and should not deprive consumers or traders of their rights to seek redress before the courts. This Directive should not prevent parties from exercising their right of access to the judicial system. In cases where a dispute could not be resolved through a given ADR procedure whose outcome is not binding, the parties should subsequently not be prevented from initiating judicial proceedings in relation to that dispute». One should also, as the European Directive requires, make sure that the fundamental (in some countries constitutional) procedural principles (fair trial) are not ignored in ADRprocesses 87. B. Is There a Constitutional Right to a Means of Recourse? Most of the national constitutions as interpreted by the national constitutional or ordinary courts do not guarantee a right to a means of recourse, but only the right to access to court for one hearing. The issue of means of recourse is then left to the 85 Patricia LEE REFO, «The Vanishing Trial», Journal of the Section of Litigation, American Bar Association, Vol. 3, No. 2, Winter 2004, p. 2-4: Alternative dispute resolution, in all of its permutations, also contributes to the declining trial rates. The trend toward privatization of dispute resolution is well documented, though anything approaching meaningful statistics is hard to come by. Virtually every consumer contract now requires that the consumer waive her rights to adjudicate any dispute in court, and courts have enforced such arbitration clauses». She concludes in the following manner: «The vanishing trial may be the most important issue facing our civil justice system today? It deserves our continued attention». 86 Directive 2013/11/EU of 21 May 2013 on alternative dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Directive on Consumer ADR), Official Journal of the European Union (OJEU), L 165/63, 18 June 2013 ; Regulation (EU) No. 524/2013 of 21 May 2013 on online dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Regulation on Consumer ADR), Official Journal of the European Union (OJEU), L 165/1, 18 June 2013. 87 On this topic, see Loïc CADIET, «Procès équitable et modes alternatifs de règlement des conflits», in Mireille DELMAS-MARTY/Horatia MUIR-WATT/Hélène RUIZ-FABRI (eds), Variations autour d un droit commun Premières rencontres de l UMR de droit comparé de Paris, Société de législation comparée, 2002, pp. 89-109. International Association of Procedural Law Seoul Conference 2014 19

Session 1 : Ideological Background of the Constitution, Constitutional Rules and Civil Procedure legislator. This is, for example, the position taken in France and in Germany. In France, the Constitutional council denies any constitutional value to the right to (a first) appeal which is not a principe général du droit 88. However, the constitutional principle of equality before justice would be infringed if the right to appeal would depend on one of the parties to the proceedings 89 or on the delay of the court in rendering their judgment 90. The German Bundesverfassungsgericht has also ruled that where the legislator provides for a means of recourse, the access to the review proceedings must abide by the general principle of equality 91. In Germany, in fact, the Federal Constitutional court held that the constitutional right to access to justice in Germany does not entail a general right to appeal 92. A right to appeal does not follow either from Article 103 para 1 (right to be heard) or from Article 19 para 4 (right to recourse to court in case of violation of a person s right by public authority) of the Basic Law. Nevertheless, in an important ruling of 2003 93, the Karlsruhe Constitutional court held that a procedural legislation which does not provide for a means of recourse where a court seriously infringes the right to be heard (rechtliches Gehör) enshrined in Article 103 para 1 of the Basic Law, violates the rule-of-law principle as well as Article 103. This ruling means a considerable change in the constitutional case law and admits that the German constitution grants protection against the judge 94. The German legislator had to create a specific legal redress, which is contained in 321a 95 of the Code of civil procedure (Zivilprozessordnung, ZPO) for civil proceedings (Anhörungsrüge) and was then extended to all other kinds of proceedings by Law Act of 9 December 2004 96. It is still disputed whether this legal 88 Const. Council (CC), 19-20 January 1981, No 80-127 DC, Loi renforçant la sécurité et protégeant la liberté des personnes. 89 Const. Council (CC), 19-20 January 1981, No 80-127 DC, Loi renforçant la sécurité et protégeant la liberté des personnes. 90 Const. Council (CC), 18 January 1985, No 84-183 DC, Loi relative au redressement et à la liquidation judiciaires, Recueil Dalloz (D.) 1986, pp. 427 et seq., with obs. Renoux. 91 German Fed. Const. court (BVerfG), 11 June 1980; 1 PBvU 1/79, BVerfGE 54, p. 277 (293). 92 See e.g. German Fed. Const. court(bverfg), 18 September 1952, BVerfGE 1, p. 433 (p. 437); 30 October 1990, 2 BvR 562/88, BVerfGE 83, p. 24; 30 April 2003, 1 PBvU 1/02, BVerfGE 107, pp. 395 et seq. (especially pp. 401 et seq.). Looking forward to the future of means of recourse in Germany, see Christoph Althammer, «Die Zukunft des Rechtsmittelsystems», in Alexander BRUNS/Joachim MÜ NCH/Astrid STADLER, Die Zukunft des Zivilprozesses, Tübingen, Mohr Siebeck, 2014, pp. 87-10. 93 German Fed. Const. court (BVerfG), Plen. Ass., 30 April 2003, NJW 2003, p. 1924 ; Monatsschrift für Deutsches Recht (MDR) 2003, p. 886. See Konrad REDEKER, «Verfahrensgrundrechte und Justizgewährungsanspruch», NJW 2003, p. 2956 ; Hans-Friedrich MÜ LLER, Abhilfemöglichkeiten bei der Verletzung des Anspruchs auf rechtliches Gehör nach der ZPO-Reform, NJW 2002, p. 2743 ; Tanja POLEP et Hartmut RENSEN, Die Gehörsrüge ( 321a ZPO), Berlin, de Gruyter ed., 2004. Egon SCHNEIDER, «Gehörsrüge des 321a ZPO Anhörungsrüge, Ausnahmeberufung, Ausnahmebeschwerde, Willkürverbot», MDR 2006, p. 969. 94 See Andreas VOßKUHLE, «Bruch mit einem Dogma: Die Verfassung garantiert Rechtsschutz gegen den Richter», NJW 2003, p. 2193. The caseload of the Constitutional court is very high; with the ruling of 2003, the Court requires the ordinary courts to first correct their own mistakes, see Micha BLOCHING/Alexander KETTINGER, «Verfahrensgrundrechte im Zivilprozess Nun endlich das Comeback der auβerordentlichen Beschwerde?», NJW 2005, p. 860. 95 This provision was introduced in the ZPO by the important Reform Act of 27 July 2001. 96 Anhörungsrügengesetz, BGBl. 2004, I, p. 3320. See Jürgen TREBER, Neuerungen durch das Anhörungsrügengesetz, NJW 2005, p. 97 ; Hartmut RENSEN, Die Gehörsrüge nach In-Kraft-Treten des Anhörungsrügengesetzes, MDR 2005, p. 181. 20 International Association of Procedural Law Seoul Conference 2014