CYIL vol. 10 (2019)

ELENA JÚDOVÁ CYIL 10 ȍ2019Ȏ 3. Obligation to accept foreign decisions if its non-recognition would result in a violation of human rights But the opposite premise also applies – a state is required not to apply a public policy exception if the violation of the human rights of a person, subject to the jurisdiction of a Contracting State, would be caused by the use of public policy and refusal of the recognition or enforcement of a foreign decision. In the case of Negrepontis-Giannisis v. Greece , 11 the applicant, a Greek citizen residing in Greece, argued that the Greek courts had infringed his right to family life (Article 8, in conjunction with Article 14 of the ECHR), by refusing to recognize the decision of the US court on the basis of which the complainant became the adoptive son of his uncle, a priest of the Greek Orthodox Church. The non-recognition of the adoption also affected other complainant’s rights, such as the right to inherit from the adoptive father. The Greek authorities argued that the Greek public order also includes the rule that a person who has taken a monastic promise in an Orthodox Church may not marry, establish a family, and perform the role of a parent, not even by adoption. The Court pointed out to the Article 8 (2) specifying that the interference with the right to family life is allowed only if it fulfils the following criteria: it is in compliance with law (this criterion has been fulfilled – here the Greek Government argued by the public policy clause according to Article 33 of the Greek Civil Code); it is essential in a democratic society and pursues a legitimate goal. 12 According to the Court the concept of necessity implies that the intervention is based on an urgent social need and is proportionate to the legitimate aim pursued (§ 61 of the judgment). However, none of these conditions had been proved in the present case. The Court pointed to the fact that the ecclesiastical rules on which the Court of Cassation based its refusal of the recognition dated from the seventeenth and eighteenth centuries, while in 1982, legislation was adopted in Greece which under certain conditions allows monks to marry. Even the Greek legal community itself is not united on this issue, as evidenced by the dissenting opinions of eight judges of the Greek Court of Cassation (paragraphs 72, 73 and 76 of the judgment). Whereas in the first case, Pellegrini v. Italy , the public policy exception was used to protect the values protected by the European Convention, in the second case, Negrepontis-Giannisis v. Greece , the public policy exception was intended to be used to protect purely national values, presenting the specifics of Greek society. Anyway, the European Convention does not prevent the Contracting State from protecting its moral, religious and social values. Their protection may even be a reason for restricting a particular right protected by the European Convention, provided that the conditions set out in the European Convention are met. A similar situation to Negreapontis-Giannisis case was presented to the Court in case of Mary Green and Ajad Farhat against Malta. 13 Also in this case, it was a refusal to recognize 11 Negrepontis-Giannisis c. Grèce , no 56759/08, ECHR 2011, Retrieved from https://hudoc.echr.coe.int. 12 The European Convention appoints among legitimate goals: the interests of national security, public safety or the economic well-being of the country, the prevention of disorder or crime, the protection of health or morals, and the protection of the rights and freedoms of others (Article 8(2)). 13 Mary Green and Ajad Farhat v. Malta (dec.), no. 38797/07, ECHR 2010, Retrieved from https://hudoc.echr.coe.int.

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