CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ RESPONSIBILITY OF THE STATE FOR THE FOREIGN JUDGMENTS … Moreover, State Party to the European Convention, are required to take into consideration the case law of the European Court of Human Rights. 9 This applies in the interpretation and application of public policy exception, as well as in the application of foreign law or the recognition and enforcement of foreign decisions or foreign authentic instruments. The Court’s case-law therefore obliges States Parties, in certain cases to be active, i.e., to apply a public policy exception; in other cases to be passive, i.e., not to apply a public policy exception, depending on the situation. An example of a positive commitment – the obligation to use public policy exception, if it prevents violations of fundamental human rights enshrined in the European Convention, is the already mentioned case of Pellegrini v. Italy 10 . The case concerned the recognition of the decision of the Vatican Court in Italy. By that decision, the applicant’s marriage was declared invalid. The applicant was present at the trial but was not informed in advance of the subject-matter of the proceedings, so she was not able to prepare her defence and was not even given the possibility to examine the evidence on which the Vatican court based its judgment, thereby violating her right to adversarial proceedings. The Court even found that it was irrelevant that the nullity of the marriage resulted from an objective and indisputable fact which the applicant would not have been able to challenge. It is on the parties to a dispute to decide whether they are making comments on the evidence presented by the other party, or not. What is at stake here is the trust of the parties in the functioning of justice, the trust that is based on the fact that the parties will be able to express their attitude towards any proposed evidence. On the basis of these findings, the Court came to the conclusion that: „ the Italian courts breached their duty of satisfying themselves, before authorising enforcement of the Roman Rota’s judgment, that the applicant had had a fair trial in the proceedings under canon law “ (§ 47 of the judgment). By not doing so, the Italian courts violated the right of the applicant to a fair trial within the meaning of Article 6 (1) of the European Convention. This judgment implies an obligation on the part of the Contracting State to the European Convention to examine a judgment of a foreign jurisdiction, prior to declaring it recognised or prior to its enforcement, whether there was no violation of the human rights of any of the participants in the proceedings before a foreign court. to the study of international private and procedural law]. 2. vyd. Bratislava: Wolters Kluwer, 2018, p. 59 a et seq. Same can be said about Czech PIL, see PAUKNEROVÁ, M.: Komentár k § 4. [Commentary on § 4]. In: PAUKNEROVÁ, M., ROZEHNALOVÁ, N., ZAVADILOVÁ, M. et al. Zákon o mezinárodním právu soukromém: komentář . [International Private Law Act: commentary] Praha: Wolters Kluwer ČR, 2013, et seq.; REMSOVÁ, K. Kapitola 5.6.5 Reservation of Public Policy in the PILA. In: ROZEHNALOVÁ, N., DRLIČKOVÁ, K. Czech private international law . Brno: Masaryk University, 2015, p. 93 et seq. 9 For Slovak courts the obligation to follow the established case law of the courts of higher degrees is legislatively enshrined in the Act no. 160/2015 Coll. of Laws, Civil Contentious Procedure Code, Article 2(2) of the Basic provisions. The explanatory memorandum to this provision has expressly mentioned case law of the European Court of Human Rights, among others. 10 Pellegrini v. Italy , no. 30882/96, ECHR 2001, Retrieved from https://hudoc.echr.coe.int. 2. Obligation to refuse a foreign decision if its recognition would lead to human rights violation

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