CYIL vol. 10 (2019)

ELENA JÚDOVÁ CYIL 10 ȍ2019Ȏ ways in which they achieve this goal are different. In the present case, the Court considered the social protection provided to Mrs. Ammdjady by Iranian law as sufficient means. The Court therefore rejected the complaint as unfounded. 16 It is possible to understand the reasoning of the Court in the abovementioned case in that way, that if Iranian law, which was applicable to the property relations of the spouses after the divorce, did not contain any means of protection or financial security for the wife, the German courts would probably be obliged to refuse the application of Iranian law for the conflict with German public policy – conflict with the fundamental principles of German law, which should obviously include the protection of the non-working spouse. Again, there is a situation where state law has not been found to be in conflict with the European Convention if it has secured the applicant’s rights, albeit not in the way (in the amount or form) she envisaged. 17 5. When a Contracting State is not liable for violations of human rights by granting effects of a foreign decision One may wonder, in view of the abovementioned case-law of the Court, whether the European Union cooperation in the field of recognition and enforcement of foreign decisions is not in a direct contradiction with the requirements imposed by the human rights system established by the European Convention for the Protection of Human Rights and fundamental freedoms. A key aspect of this cooperation is the so-called free movement of judicial decisions, i.e., reaching a state where judicial decisions between EU Member States will be accepted without the need for any intermediate measures (the proceedings on the recognition of a foreign decision or the declaration of enforceability of a foreign decision) and even without the possibility of any review in a country other than the one in which they were issued. 18 Member States should therefore not examine final and enforceable decisions from other Member 16 In Ammdjadi v. Germany , the Court also ruled on the legitimacy of the use of nationality as a connecting factor, as the applicant alleged discrimination based on nationality. The Court approved the use of nationality as a well-known criterion for family matters, however, from the argumentation of the Court can be seen the tacit preference in favour of the habitual residence criterion for issues such as the spouses’ property relations: „... even though the decisiveness of the habitual residence might arguably be considered preferable with regard to pension rights, the decisiveness of a person´s nationality cannot be considered to be without «objective and reasonable justification»“. 17 Similarly Harroudj v. France , no. 43631/09, ECHR 2012, (Retrieved from https://hudoc.echr.coe.int). See Kinsch P.: Harroudj v. France: Indications from the European Court of Human Rights on the Nature of Choice of Law Rules and on Their Potentially Discriminatory Effect. In: Yearbook of Private International Law . Vol. XV (2013-2014), pp. 39-44. 18 Article 67 (4) Treaty on the Functioning of the EU: “ The Union shall facilitate access to justice, in particular through the principle of mutual recognition of judicial and extrajudicial decisions in civil matters.” See alsoTampere European Council 15 and 16 October 1999 Presidency conclusions, principally points 33 and 34, and Draft programme of measures for implementation of the principle of mutual recognition of decisions in civil and commercial matters, OJ C 12, 15. 1. 2001, p. 1-9. See more SLAŠŤAN, M.: Plusy a mínusy európskeho medzinárodného práva súkromného. [Pros and Cons of European Private International Law]. In: ROZEHNALOVÁ, N., DRLIČKOVÁ, K., VALDHANS, J. (eds.): Dny práva 2017 – Days of Law 2017. Část IV. Aktuální otázky evropského mezinárodního práva soukromého. Brno: Masarykova Univerzita, 2018, pp. 118-133. FAIX, M. (eds.): Lidskoprávní dimenze mezinárodního práva. [Human rights dimension of international law]. (Studie z lidských práv; č. 7). Praha: Univerzita Karlova v Praze, Právnická fakulta, 2014, pp. 77-87.

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