Facts
The case concerns a judgment rendered by the Thun court on May 11, 1994, which declared X. the father of child Y. and condemned him to pay child support. The judgment was rendered without X. having knowledge of the proceedings and being able to participate, as he was summoned by publication in the official gazette. X. contested the decision and requested the annulment of the judgment for violation of his right to be heard.
The municipality of Thun brought an action for recovery of unpaid child support and requested a final garnishment for an amount of 18'846 fr. with interest. The garnishment judge granted the final garnishment, despite X.'s objections that the initial judgment was null due to the violation of his right to be heard.
X. appealed to the Court of Appeal of the canton of Berne, which confirmed the decision of the garnishment judge. X. then filed a constitutional appeal with the Federal Court, alleging a violation of his right to be heard and his right to a fair trial.
Considerations
The Federal Court examined the question of whether the initial judgment was null due to the violation of X.'s right to be heard. The court found that the judgment had been rendered without X. having knowledge of the proceedings and being able to participate, which constitutes a serious violation of his right to be heard.
The court recalled that the nullity of a judgment can be invoked at any time and that the authorities must take it into account ex officio. Nullity can be invoked even in the context of a recovery or garnishment procedure. The court also recalled that judgments with procedural defects are not necessarily null, but can be annulled if the defects are serious and…