Denying the denial, the French Supreme Court rules on forum necessitatis
This post was written by François Mailhé, who is Professor of Private Law at the University of Picardie Jules Verne.
The author thanks Justice Fulchiron for changing the Cour de cassation‘s practice and making his preliminary report available to the public on the Court’s website, thus providing a new source of information on the Court’s caselaw.
On 12 June 2024, the Cour de cassation handed down a decision on a claim of denial of justice. Though seemingly following a rigorous stance on this French version of forum necessitatis, it actually suggests that the court might become more lenient in the future.
The decision
It follows from the decision and the report that a couple had divorced in Mauritius and was arguing over rights of access to their daughter. A Mauritius judge had been seized by the father, “Mr D.”, in December 2019 but, 6 months later, the latter was declared “prohibited immigrant” by the Prime Minister of Mauritius and expelled from the island. The Mauritian proceedings were therefore abandoned and, instead, the Tribunal judiciaire of Albi (Occitania, France), was seized of the same by Mr D. in December 2020.
However, the French court’s jurisdiction was a problem. Both EU law (article 8 Brussels II bis regulation) and French law (article 1070 civil procedure code) would indeed require that either the children or the defendant have their domicile or residence in France to justify it.
Quite surprisingly, Mr D. is French and could have easily relied on article 14 civil code, which allows for French nationals to access French courts, but it wasn’t argued by his counsels before the case was brought to the Cour de cassation. The latter was therefore facing the issue of the possibility to raise this that ground of jurisdiction of its own motion and appears to have refused to exercise this power. The choice is by itself interesting, but its reasons unknown. The discussion it allowed and substantiated on denial of justice is, anyway, far more interesting.
Two conditions were to be fulfilled to establish jurisdiction on such a ground. First, Mr D. had to demonstrate a situation of denial of justice. Second, some connection with France was to be verified. This second element was not debated before the Cour de cassation: Mr D. resided in France, which was obviously enough of a connection (though the argument isn’t usually noted, one may observe he was therefore under the jurisdiction of French court under the meaning of art. 1 ECHR).
On the other hand, the existence of the situation of a denial of justice was discussed. Mr D. pleaded that there was no guarantee that he could physically access Mauritius courts anymore. Indeed, Mauritius law required in his case a specific authorization by the Minister of Immigration or his delegate, and, failing that authorization, there was no guarantee he could participate to the planned cross-examination since organizing a videoconference for it would require an authorization from the chief judge of the Mauritius court.
While the court of appeal of Toulouse was convinced by the argument, the Cour de cassation considered those elements insufficient to justify the jurisdiction of French courts. The court ruled that those elements were “insufficient grounds to establish that Mr [D]’s right to a fair trial before the Mauritian court would not in fact be guaranteed” (my own loose translation).
An appraisal
A first cursory glance may give the impression that the French Cour de cassation maintains a very strict stance as to its version of forum necessitatis.
Already in 2017 (the Comilog decision), when the Cour expressly referred to a “principle of denial of justice” (meaning a principle of jurisdiction in cases of denial of justice abroad), it discarded its application in the case, considering that a 20-year stagnation in the proceedings abroad (and counting) was no proof of such denial.
7 years later, the Cour de cassation seems to follow the same track for an expelled immigrant with seemingly no physical access to the court of the country where his child is residing.
However, and with a caveat imposed by a certain vagueness as to what the Cour now expects, several aspects of that decision give reason to hope that the court is taking a turn for a less severe stance.
Indeed, the Cour chose to quash the court of appeal decision for “lack of legal basis” (it had “privé sa decision de base légale”) and not a more direct “violation of the law”. In the Cour de cassation vocabulary, such a phrase may be assumed as a reproach on the insufficient motivation of the appeal decision. It is typically what the Cour de cassation decides when it considers it misses key elements to know whether the reviewed decision was right or wrong. As a consequence, it must be understood that the Cour de cassation refused to conclude that such a situation falls outside the scope of denial of justice. Instead, it pointed out that the key elements had not been verified by the court of appeal.
A phrase in the decision seems to unveil the reason for its decision : “ the judgment held that Mr [D] was not certain…”. Indeed, Mr D. had demonstrated that the Mauritian Minister had been repeatedly requested to allow for Mr D. to come and participate to the proceedings (with several mails dated from 2020 and 2021), to no avail. However, the Court of appeal had acknowledged the denial of justice because “it had not been demonstrated that authorisation to use videoconferencing could be obtained from the chief judge”. It was so much convinced of the denial of justice that it had required from Mr D.’s former wife a quasi probatio diabolica : to prove that the chief judge would accept a request Mr D. was supposed to make. As the memorandum of claim before the Cour did not argue this evidence argument directly, it did not have to explain it. However, considering this reversal of the burden of proof by the court of appeal of Toulouse, it is probably those factual elements that the Cour de cassation asks the court of appeal of Bordeaux, newly seized, to inquire Mr D. about, and assess.
Some other elements seem to open to optimism regarding this overall strict stance of the Court.
First, the Cour uses article 6 ECHR as the legal basis for the principle of denial of justice. It had referred to it in the famous NIOC case in 2005 (where jurisdiction was granted for the French court to act… as a juge d’appui for arbitral proceedings) but had long abandoned it in other cases. Connecting denial of justice with the definition of access to justice offered by article 6 ECHR (and article 13 ECHR) opens it up greatly.
Second, while previous cases were mostly concerned with an actual impossibility of access to justice, the Cour seems now prepared to accept mere difficulties of access to justice. In the Comilog case, the problem was strikingly painful, and the foreign litigation could be considered as a parody of justice. Here, the Cour seems ready to accept the jurisdiction of French courts if the claimant can simply show that he will not be allowed for physical participation and videoconferencing. Impossible personal participation, though serious for such a case, may be partially mitigated through representation. This Mr D . case was therefore less serious than the impossible decision of the Comilog case and demonstrates the Cour is opened for a more lenient standard for proving the denial of justice. Such a relative leniency, it may be argued, additionally derives from basing the decision on article 6 ECHR.
Of course, the Mr D. decision also shows that the mere risk of denial is not enough, and that only actual denial of justice will be considered. In addition, it remains to be seen whether demonstrating refusal by the Mauritius authorities, in this case, would guarantee access to justice in France. Keeping an eye on the Cour d’appel de Bordeaux, which was transferred the case for reassessment, will be relevant. Last, as the Cour de cassation also referred to article 1070 CPC, it is possible that it intends to limit this opening to matters related to family issues.
Still, this decision seems to open new avenues for access to justice in France, in line with the growing stress on development of forum necessitatis in Europe.