CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ RESPONSIBILITY OF THE STATE FOR THE FOREIGN JUDGMENTS … a family relationship established abroad. Applicant Mary Green, a Maltese citizen, converted to Islam in Libya, resulting in her first marriage, contracted in Malta, being automatically deemed as null and void under Islamic law. The applicant subsequently concluded a second marriage, under Islamic law, with Mr Ajad Farhat. Twenty years later, both of them moved to Malta and the applicant applied to the Maltese authorities for the registration of her second marriage. Marriage registration would place the second applicant in a better position than other immigrants, for example, he would not need a visa to access Malta. But the Maltese authorities refused registration, pointing out that the applicant had not provided relevant evidence that her first marriage had been annulled or that she had divorced. In such circumstances, recognition of her second marriage would create a bigamy-like state, which is contrary to Maltese public order. The Court confirmed that the interference with the applicant’s right under Article 8 was legitimate, justified by the interests of the society (the monogamy of the marriage) and the third party concerned (the applicant’s first spouse). It is possible that one of the key points in finding that there had been no violation of the right to family life of Mrs Mary Green and her husband, Ajad Farhat, was that the applicants were allowed to settle and live in Malta, albeit without registering their marriage. Thus, the applicants in fact, were not prevented from living together, though not on the legal basis they wished. 4. Violation of human rights by the application of foreign law The Contracting States to the European Convention still have discretion in establishing rules of private international law. It is not allowed for the person within the jurisdiction of the Contracting States – to seek such solutions, within the recognition of foreign decisions or in the determination of the applicable law, which they prefer. The applicant, Mrs Ammdjadi, complained before the Court 14 a breach of her right to family life under Article 8 of the European Convention, by the refusal of the German authorities to grant her compensation of pension rights to which she would be entitled under German law. The German competent authorities applied Iranian law to Mrs Ammdjadi’s property claims against her husband after a divorce, on the basis that both Mrs Ammdjadi and her husband were Iranian citizens despite living all their common marital life in Germany. Under the provisions of the bilateral agreement of 1929, still in force between Germany and Iran, divorce as well as all the consequences of divorce were governed by the law of the joint nationality of spouses. The applicant felt discriminated and harmed on her right to family life. She therefore asked the German courts to refuse the application of Iranian law on the grounds of the collision with the public policy. The Court found that it was a situation falling within the scope of Article 8, but refused the rest of the claims of the applicant. It noted that there is a consensus among European countries on the need to provide financial security for the non-working spouse, 15 but the 14 Farzaneh Bigwand Ammdjadi against Germany (dec), no. 51625/08, ECHR 2010, Retrieved from https://hudoc. echr.coe.int. 15 The Court often uses a comparison of the national orders of the Contracting States and the so-called European consensus when deciding what interpretation to give to the individual law enshrined in the European Convention. See BUREŠ, P.: Evropský konsenzus v judikatorní praxi Evropského soudu pro lidská práva. [European Consensus in the Judicial Practice of the European Court of Human Rights]. In: ŠTURMA, P.,

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