CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ RESPONSIBILITY OF THE STATE FOR THE FOREIGN JUDGMENTS … for preliminary ruling lodged in the context of the execution of the mentioned Italian court order. 25 It follows from the decision of the CJ EU that enforcement of a return order cannot be refused by the Austrian court even in the event of a change in circumstances which arose after its issuing, if on the basis of such a change in circumstances, the enforcement of the return order may seriously undermine the best interests of the child. Such a change in circumstances must be alleged before the competent court of the Member State of the original habitual residence (court with jurisdiction – Italian court). In this situation, Mrs Povse, the mother of the child, appealed to the Court with a complaint that, by ordering her minor daughter to return to Italy, the Austrian authorities violated her and her daughter’s right to family life within the meaning of Article 8 of the European Convention. In particular, she argued that the Austrian courts merely ordered the enforcement of the Italian return order and had not examined her argument that returning to Italy would cause serious harm to her daughter and would lead to a permanent separation of the mother from the child. 26 The Court considered this case in the light of the Bosphorus case presumption. In the Bosphorus judgment, 27 the Court declared that the Contracting State to the European Convention remains liable for a violation of the European Convention, even if the violation was due to the fulfilment of the obligations of Contracting State resulting from its membership of an international organization to which it had transferred part of its sovereign rights. But there is a presumption that the state has not departed from its obligations under the European Convention if the following conditions were met: 1. relevant international organization provides human rights protection comparable to the European Convention, 28 both in terms of substantive guarantees and control mechanisms (the so-called equivalence test or principle of equivalent protection ); 2. the State whose activity has been challenged by the application had no discretion in fulfilling its obligations; and 3. in relation to the circumstances of a particular case, there are no circumstances that would indicate that the protection of the rights guaranteed by the European Convention is in this case significantly deficient. 29 In the case of Povse , there was no doubt that Austria had acted on the basis of the EU Regulation and the Austrian courts had no discretion in fulfilling the obligations imposed by 26 In its recent case-law on civil abductions, the Court has consistently emphasized that the return of a child should not be mechanically ordered, but that the court of a Contracting State must thoroughly examine the entire family situation, allow all interested parties to submit their comments and only on that basis take a decision, taking into account in particular the best interests of the child. See Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, ECHR 2010 or X. v. Latvia [GC], no. 27853/09, ECHR 2013. See also: KMEC, J. et al. Evropská úmluva o lidských právech: komentář . Praha: C.H. Beck, 2012. Velké komentáře, pp. 944-947 27 Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi v. Ireland [GC], no. 45036/98, ECHR 2005 (Retrieved from https://hudoc.echr.coe.int). 28 It should be assumed for the EU that this condition is met, as the EU attaches importance to the rights guaranteed by the European Convention, see MAZÁK, J. – JÁNOŠÍKOVÁ, M. et all: The Charter of Fundamental Rights of the European Union in Proceedings before courts of the Slovak Republic . Košice: 2016, Pavel Jozef Šafárik University in Košice, Faculty of Law, p. 87 et seq. 29 Bosphorus , §§ 152-156. 25 Judgment of 1 July 2010, Povse v. Alpago C-211/10 PPU, ECLI:EU:C:2010:400 (Retrieved from https://curia. europa.eu).

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