29: Convenção sobre o Acesso Internacional à Justiça
Entrada em vigor: 1-V-1988
(In the relations between the Contracting States, this Convention replaces Articles 17 to 26 of the Convention on civil procedure of 1954)
CONVENTION ON INTERNATIONAL ACCESS TO JUSTICE
(Concluded 25 October 1980)
The States signatory to this Convention,
Desiring to facilitate international access to justice,
Have resolved to conclude a Convention for this purpose and have agreed upon the following provisions -
chapter i - legal aid
Article 1
Nationals of any Contracting State and persons habitually resident in any Contracting State shall be entitled to legal aid for court proceedings in civil and commercial matters in each Contracting State on the same conditions as if they themselves were nationals of and habitually resident in that State.
Persons to whom paragraph 1 does not apply, but who formerly had their habitual residence in a Contracting State in which court proceedings are to be or have been commenced, shall nevertheless be entitled to legal aid as provided by paragraph 1 if the cause of action arose out of their former habitual residence in that State.
In States where legal aid is provided in administrative, social or fiscal matters, the provisions of this Article shall apply to cases brought before the courts or tribunals competent in such matters.
Article 2
Article 1 shall apply to legal advice provided the person seeking advice is present in the State where advice is sought.
Article 3
Each Contracting State shall designate a Central Authority to receive, and take action on, applications for legal aid submitted under this Convention.
Federal States and States which have more than one legal system may designate more than one Central Authority. If the Central Authority to which an application is submitted is not competent to deal with it, it shall forward the application to whichever other Central Authority in the same Contracting State is competent to do so.
Article 4
Each Contracting State shall designate one or more transmitting authorities for the purpose of forwarding applications for legal aid to the appropriate Central Authority in the requested State.
Applications for legal aid shall be transmitted, without the intervention of any other authority, in the form of the model annexed to this Convention.
Nothing in this Article shall prevent an application from being submitted through diplomatic channels.
Article 5
Where the applicant for legal aid is not present in the requested State, he may submit his application to a transmitting authority in the Contracting State where he has his habitual residence, without prejudice to any other means open to him of submitting his application to the competent authority in the requested State.
The application shall be in the form of the model annexed to this Convention and shall be accompanied by any necessary documents, without prejudice to the right of the requested State to require further information or documents in appropriate cases.
Any Contracting State may declare that its receiving Central Authority will accept applications submitted by other channels or methods.
Article 6
The transmitting authority shall assist the applicant in ensuring that the application is accompanied by all the information and documents known by it to be necessary for consideration of the application. It shall ensure that formal requirements are met.
If it appears to the transmitting authority that the application is manifestly unfounded, it may refuse to transmit the application.
It shall assist the applicant in obtaining without charge a translation of the documents where such assistance is appropriate.
It shall reply to requests for further information from the receiving Central Authority in the requested State.
Article 7
The application, the supporting documents and any communications in response to requests for further information shall be in the official language or in one of the official languages of the requested State or be accompanied by a translation into one of those languages.
However, where in the requesting State it is not feasible to obtain a translation into the language of the requested State, the latter shall accept the documents in either English or French, or the documents accompanied by a translation into one of those languages.
Communications emanating from the receiving Central Authority may be drawn up in the official language or one of the official languages of the requested State or in English or French. However, where the application forwarded by the transmitting authority is in either English or French, or is accompanied by a translation into one of those languages, communications emanating from the receiving Central Authority shall also be in one of those languages.
The costs of translation arising from the application of the preceding paragraphs shall be borne by the requesting State, except that any translations made in the requested State shall not give rise to any claim for reimbursement on the part of that State.
Article 8
The receiving Central Authority shall determine the application or shall take such steps as are necessary to obtain its determination by a competent authority in the requested State.
The receiving Central Authority shall transmit requests for further information to the transmitting authority and shall inform it of any difficulty relating to the examination of the application and of the decision taken.
Article 9
Where the applicant for legal aid does not reside in a Contracting State, he may submit his application through consular channels, without prejudice to any other means open to him of submitting his application to the competent authority in the requested State.
Any Contracting State may declare that its receiving Central Authority will accept applications submitted by other channels or methods.
Article 10
All documents forwarded under this Chapter shall be exempt from legalisation or any analogous formality.
Article 11
No charges shall be made for the transmission, reception or determination of applications for legal aid under this Chapter.
Article 12
Applications for legal aid shall be handled expeditiously.
Article 13
Where legal aid has been granted in accordance with Article 1, service of documents in any other Contracting State in pursuance of the legally aided person's proceedings shall not give rise to any charges regardless of the manner in which service is effected. The same applies to Letters of Request and social enquiry reports, except for fees paid to experts and interpreters.
Where a person has received legal aid in accordance with Article 1 for proceedings in a Contracting State and a decision has been given in those proceedings, he shall, without any further examination of his circumstances, be entitled to legal aid in any other Contracting State in which he seeks to secure the recognition or enforcement of that decision.
chapter ii - security for costs and enforceability of orders for costs
Article 14
No security, bond or deposit of any kind may be required, by reason only of their foreign nationality or of their not being domiciled or resident in the State in which proceedings are commenced, from persons (including legal persons) habitually resident in a Contracting State who are plaintiffs or parties intervening in proceedings before the courts or tribunals of another Contracting State.
The same rule shall apply to any payment required of plaintiffs or intervening parties as security for court fees.
Article 15
An order for payment of costs and expenses of proceedings, made in one of the Contracting States against any person exempt from requirements as to security, bond, deposit or payment by virtue of Article 14 or of the law of the State where the proceedings have been commenced shall, on the application of the person entitled to the benefit of the order, be rendered enforceable without charge in any other Contracting State.
Article 16
Each Contracting State shall designate one or more transmitting authorities for the purpose of forwarding to the appropriate Central Authority in the requested State applications for rendering enforceable orders to which Article 15 applies.
Each Contracting State shall designate a Central Authority to receive such applications and to take the appropriate steps to ensure that a final decision on them is reached.
Federal States and States which have more than one legal system may designate more than one Central Authority. If the Central Authority to which an application is submitted is not competent to deal with it, it shall forward the application to whichever other Central Authority in the requested State is competent to do so.
Applications under this Article shall be transmitted without the intervention of any other authority, without prejudice to an application being transmitted through diplomatic channels.
Nothing in this Article shall prevent applications from being made directly by the person entitled to the benefit of the order unless the requested State has declared that it will not accept applications made in this manner.
Article 17
Every application under Article 15 shall be accompanied by -
a) a true copy of the relevant part of the decision showing the names and capacities of the parties and of the order for payment of costs or expenses;
b) any document necessary to prove that the decision is no longer subject to the ordinary forms of review in the State of origin and that it is enforceable there;
c) a translation, certified as true, of the above-mentioned documents into the language of the requested State, if they are not in that language.
The application shall be determined without a hearing and the competent authority in the requested State shall be limited to examining whether the required documents have been produced. If so requested by the applicant, that authority shall determine the amount of the costs of attestation, translation and certification, which shall be treated as costs and expenses of the proceedings. No legalisation or analogous formality may be required.
There shall be no right of appeal against the decision of the competent authority except in accordance with the law of the requested State.
chapter iii - copies of entries and decisions
Article 18
Nationals of any Contracting State and persons habitually resident in any Contracting State may obtain in any other Contracting State, on the same terms and conditions as its nationals, copies of or extracts from entries in public registers and decisions relating to civil or commercial matters and may have such documents legalised, where necessary.
chapter iv - physical detention and safe-conduct
Article 19
Arrest and detention, whether as a means of enforcement or simply as a precautionary measure, shall not, in civil or commercial matters, be employed against nationals of a Contracting State or persons habitually resident in a Contracting State in circumstances where they cannot be employed against nationals of the arresting and detaining State. Any fact which may be invoked by a national habitually resident in such State to obtain release from arrest or detention may be invoked with the same effect by a national of a Contracting State or a person habitually resident in a Contracting State even if the fact occurred abroad.
Article 20
A person who is a national of or habitually resident in a Contracting State and who is summoned by name by a court or tribunal in another Contracting State, or by a party with the leave of the court or tribunal, in order to appear as a witness or expert in proceedings in that State shall not be liable to prosecution or detention, or subjected to any other restriction on his personal liberty, in the territory of that State in respect of any act or conviction occurring before his arrival in that State.
The immunity provided for in the preceding paragraph shall commence seven days before the date fixed for the hearing of the witness or expert and shall cease when the witness or expert having had, for a period of seven consecutive days from the date when he was informed by the judicial authorities that his presence is no longer required, an opportunity of leaving has nevertheless remained in the territory, or having left it, has returned voluntarily.
chapter v - general provisions
Article 21
Without prejudice to the provisions of Article 22, nothing in this Convention shall be construed as limiting any rights in respect of matters governed by this Convention which may be conferred upon a person under the law of any Contracting State or under any other convention to which it is, or becomes, a party.
Article 22
Between Parties to this Convention who are also Parties to one or both of the Conventions on civil procedure signed at The Hague on the 17th of July 1905 and the 1st of March 1954, this Convention shall replace Articles 17 to 24 of the Convention of 1905 or Articles 17 to 26 of the Convention of 1954 even if the reservation provided for under paragraph 2 c) of Article 28 of this Convention has been made.
Article 23
Supplementary agreements between Parties to the Conventions of 1905 and 1954 shall be considered as equally applicable to the present Convention, to the extent that they are compatible therewith, unless the Parties otherwise agree.
Article 24
A Contracting State may by declaration specify a language or languages other than those referred to in Articles 7 and 17 in which documents sent to its Central Authority may be drawn up or translated.
Article 25
A Contracting State which has more than one official language and cannot, for reasons of internal law, accept for the whole of its territory documents referred to in Articles 7 and 17 drawn up in one of those languages shall by declaration specify the language in which such documents or translations thereof shall be drawn up for submission in the specified parts of its territory.
Article 26
If a Contracting State has two or more territorial units in which different systems of law are applicable in relation to matters dealt with in this Convention, it may at the time of signature, ratification, acceptance, approval or accession declare that this Convention shall extend to all its territorial units or only to one or more of them and may modify that declaration by submitting another declaration at any time.
Any such declaration shall be notified to the Ministry of Foreign Affairs of the Kingdom of the Netherlands and shall state expressly the territorial units to which the Convention applies.
Article 27
Where a Contracting State has a system of government under which executive, judicial and legislative powers are distributed between central and other authorities within that State, its signature or ratification, acceptance, or approval of, or accession to this Convention, or its making of any declaration under Article 26 shall carry no implication as to the internal distribution of powers within that State.
Article 28
Any Contracting State may, at the time of signature, ratification, acceptance, approval or accession, reserve the right to exclude the application of Article 1 in the case of persons who are not nationals of a Contracting State but who have their habitual residence in a Contracting State other than the reserving State or formerly had their habitual residence in the reserving State, if there is no reciprocity of treatment between the reserving State and the State of which the applicants for legal aid are nationals.
Any Contracting State may, at the time of signature, ratification, acceptance, approval or accession, reserve the right to exclude -
a) the use of English or French, or both, under paragraph 2 of Article 7;
b) the application of paragraph 2 of Article 13;
c) the application of Chapter II;
d) the application of Article 20.
Where a State has made a reservation -
e) under paragraph 2 a) of this Article, excluding the use of both English and French, any other State affected thereby may apply the same rule against the reserving State;
f) under paragraph 2 b) of this Article, any other State may refuse to apply paragraph 2 of Article 13 to persons who are nationals of or habitually resident in the reserving State;
g) under paragraph 2 c) of this Article, any other State may refuse to apply Chapter II to persons who are nationals of or habitually resident in the reserving State.
No other reservation shall be permitted.
Any Contracting State may at any time withdraw a reservation it has made. The withdrawal shall be notified to the Ministry of Foreign Affairs of the Kingdom of the Netherlands. The reservation shall cease to have effect on the first day of the third calendar month after the notification.
Article 29
Every Contracting State shall, at the time of the deposit of its instrument of ratification or accession, or at a later date, inform the Ministry of Foreign Affairs of the Kingdom of the Netherlands of the designation of authorities pursuant to Articles 3, 4 and 16.
It shall likewise inform the Ministry, where appropriate, of the following -
a) declarations pursuant to Articles 5, 9, 16, 24, 25, 26 and 33;
b) any withdrawal or modification of the above designations and declarations;
c) the withdrawal of any reservation.
Article 30
The model forms annexed to this Convention may be amended by a decision of a Special Commission convoked by the Secretary General of the Hague Conference to which all Contracting States and all Member States shall be invited. Notice of the proposal to amend the forms shall be included in the agenda for the meeting.
Amendments adopted by a majority of the Contracting States present and voting at the Special Commission shall come into force for all Contracting States on the first day of the seventh calendar month after the date of their communication by the Secretary General to all Contracting States.
During the period provided for by paragraph 2 any Contracting State may by notification in writing to the Ministry of Foreign Affairs of the Kingdom of the Netherlands make a reservation with respect to the amendment. A Party making such reservation shall until the reservation is withdrawn be treated as a State not a Party to the present Convention with respect to that amendment.
chapter vi - final clauses
Article 31
The Convention shall be open for signature by the States which were Members of the Hague Conference on Private International Law at the time of its Fourteenth Session and by non-Member States which were invited to participate in its preparation.
It shall be ratified, accepted or approved and the instruments of ratification, acceptance or approval shall be deposited with the Ministry of Foreign Affairs of the Kingdom of the Netherlands.
Article 32
Any other State may accede to the Convention.
The instrument of accession shall be deposited with the Ministry of Foreign Affairs of the Kingdom of the Netherlands.
Such accession shall have effect only as regards the relations between the acceding State and those Contracting States which have not raised an objection to its accession in the twelve months after the receipt of the notification referred to in sub-paragraph 2 of Article 36. Such an objection may also be raised by Member States at the time when they ratify, accept or approve the Convention after an accession. Any such objection shall be notified to the Ministry of Foreign Affairs of the Kingdom of the Netherlands.
Article 33
Any State may, at the time of signature, ratification, acceptance, approval or accession, declare that the Convention shall extend to all the territories for the international relations of which it is responsible, or to one or more of them. Such a declaration shall take effect at the time the Convention enters into force for that State.
Such declaration, as well as any subsequent extension, shall be notified to the Ministry of Foreign Affairs of the Kingdom of the Netherlands.
Article 34
The Convention shall enter into force on the first day of the third calendar month after the deposit of the third instrument of ratification, acceptance, approval or accession referred to in Articles 31 and 32.
Thereafter the Convention shall enter into force -
(1) for each State ratifying, accepting, approving or acceding to it subsequently, on the first day of the third calendar month after the deposit of its instrument of ratification, acceptance, approval or accession;
(2) for any territory or territorial unit to which the Convention has been extended in conformity with Article 26 or 33, on the first day of the third calendar month after the notification referred to in that Article.
Article 35
The Convention shall remain in force for five years from the date of its entry into force in accordance with the first paragraph of Article 34 even for States which subsequently have ratified, accepted, approved it or acceded to it.
If there has been no denunciation, it shall be renewed tacitly every five years.
Any denunciation shall be notified to the Ministry of Foreign Affairs of the Kingdom of the Netherlands, at least six months before the expiry of the five year period. It may be limited to certain of the territories or territorial units to which the Convention applies.
The denunciation shall have effect only as regards the State which has notified it. The Convention shall remain in force for the other Contracting States.
Article 36
The Ministry of Foreign Affairs of the Kingdom of the Netherlands shall notify the States Members of the Conference, and the States which have acceded in accordance with Article 32, of the following -
(1) the signatures and ratifications, acceptances and approvals referred to in Article 31;
(2) the accessions and objections raised to accessions referred to in Article 32;
(3) the date on which the Convention enters into force in accordance with Article 34;
(4) the declarations referred to in Articles 26 and 33;
(5) the reservations and withdrawals referred to in Articles 28 and 30;
(6) the information communicated under Article 29;
(7) the denunciations referred to in Article 35.
In witness whereof the undersigned, being duly authorised thereto, have signed this Convention.
Done at The Hague, on the 25th day of October, 1980, in the English and French languages, both texts being equally authentic, in a single copy which shall be deposited in the archives of the Government of the Kingdom of the Netherlands and of which a certified copy shall be sent, through diplomatic channels, to each of the States Members of the Hague Conference on Private International Law at the date of its Fourteenth Session and to each other State having participated in the preparation of this Convention at this Session.
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ANNEX TO THE CONVENTION
FORM FOR TRANSMISSION OF APPLICATION FOR LEGAL AID
Convention on International Access to Justice,
The undersigned transmitting authority has the honour to transmit to the receiving Central Authority the attached application for legal aid and its annex (statement concerning the applicant's financial circumstances), for the purpose of Chapter I of the above-mentioned Convention. Remarks concerning the application and the statement, if any:
Other remarks, if any:
Done at ...... , the ........
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FORM ATTACHED TO THE CONVENTION
APPLICATION FOR LEGAL AID
Convention on International Access to Justice,
1 Name and address of the applicant for legal aid
2 Court or tribunal in which the proceedings have been or will be initiated (if known)
3 a) Subject-matter(s) of proceedings; amount of the claim, if applicable b) If applicable, list of supporting documents pertinent to commenced or intended proceedings* c) Name and address of the opposing party* 4 Any date or time-limit relating to proceedings with legal consequences for the applicant, calling for speedy handling of the application*
5 Any other relevant information*
6 Done at ....... , the ........ 7 Applicant's signature * Delete if inappropriate.
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Annex to the application for legal aid
Statement concerning the applicant's financial circumstances I Personal situation
8 name (maiden name, if applicable)
9 first name(s)
10 date and place of birth
11 nationality
12 a) habitual residence (date of commencement of the residence) b) former habitual residence (date of commencement and termination of the residence)
13 civil status (single, married, widow(er), divorced, separated)
14 name and first name(s) of the spouse
15 names, first names and dates of birth of children dependent on the applicant
16 other persons dependent on the applicant
17 supplementary information concerning the family situation
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II Financial circumstances 18 occupation 19 name and address of employer or place of exercise of occupation
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20 income
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of the applicant
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of the spouse
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of the persons dependent on the applicant
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a) salary (including payments in kind) |
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b) pensions, disability pensions, alimonies, allowances, annuities |
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c) unemployment benefits |
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d) income from non-salaried occupations |
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e) income from securities and floating capital |
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f) income from real property |
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g) other sources of income |
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21 real property |
of the applicant
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of the spouse
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of the persons dependent on the applicant |
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(please state value(s) and obligations) |
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22 other assets |
of the applicant
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of the spouse
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of the persons dependent on the applicant |
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(securities, sharing in profits, claims, bank accounts, business capital, etc.) |
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23 debts and other financial obligations |
of the applicant
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of the spouse
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of the persons dependent on the applicant |
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a) loans (state nature, balance to be paid and annual/monthly repayments) |
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b) maintenance obligations (state monthly payments) |
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c) house rent (including costs of heating, electricity, gas and water) |
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d) other recurring obligations |
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24 income tax and social security contributions for the previous year
25 remarks of the applicant
26 if applicable, list of supporting documents
27 The undersigned, being fully aware of the penalties provided by law for the making of a false statement, declares that the above statement is complete and correct.
28 Done at ................ (place) 29 the .............. (date)
30 .................... (applicant's signature)
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