CYIL vol. 10 (2019)

ELENA JÚDOVÁ CYIL 10 ȍ2019Ȏ But what if it is not domestic but foreign law that the court of a Contracting State should apply? Or if a court or other authority of the Contracting State is going to recognize the effects of a foreign decision? Can the Contracting State’s authority also be responsible for the outcome of the work of a foreign legislator or for the irregularity of foreign court proceedings? The answer is that it can and is responsible! In the judgment in the case Pellegrini v. Italy 3 the European Court of Human Rights (hereinafter referred to as the Court) has found a violation of the applicant´s right to a fair trial (Article 6 of the Convention), exactly by recognizing a foreign decision issued in the proceedings in which the applicant was not allowed to defend herself effectively (more about the case below). The State Party to the European Convention has the right and the duty to protect the fundamental values on which its society and legal order are built. These fundamental values in the European countries, especially in those which are the State Party to the European Convention, include human rights. 4 The State is also entitled to protect these values against disturbances caused by the use of foreign law or by application of a foreign decision. This is also enabled by one of the basic concepts of private international law, whose roots date back to the 12 th century which is called the public policy exception ( ordre public exception , public policy reservation ). 5 The basis of the public policy exception is the right of the court (or other state body) to refuse the application of a foreign law designated as applicable by the conflict-of-law rule if the use of that foreign law would produce effects disturbing these fundamental values of the legal and constitutional order, economic system or the society. 6 Similarly, in the recognition and enforcement of a foreign decision, the competent authority of the State under whose jurisdiction the recognition or enforcement of a foreign decision belongs is entitled to refuse to recognize the effects of a foreign decision if it would create a situation that would undermine such fundamental values. Public policy is nevertheless a category whose content is determined by each state itself. The Slovak Private International Law Act, for instance, refers to the basic principles of the social and state regime which must be complied with without reservation. 7 In any case, these principles include human rights. 8 rights and freedoms in the national state and international space]. Banská Bystrica : Vydavateľstvo Univerzity Mateja Bela v Banskej Bystrici – Belianum, 2018. pp. 79-168. 3 Pellegrini v. Italy , no. 30882/96, ECHR 2001. 4 The function of the courts and the judiciary is generally to provide protection of the rights of the individual, and in the State respecting rule of law, therefore to protect individual rights and freedoms. JÚDA, V. Hľadanie spravodlivosti v judikatúre súdov. [Seeking justice in the case law of the courts]. In: Ad iustitiam per ius. Pocta prof. PhDr. Jarmile Chovancovej, CSc . Bratislava: Wolters Kluwer, 2018, ISBN 978-80-8168-969-7, p. 170 et seq. 5 ROZEHNALOVÁ, N. Instituty českého mezinárodního práva soukromého . [Institutes of Czech Private International Law]. Praha: Wolters Kluwer, 2016, pp. 175-184. 6 BOGDAN, M. Private international law as component of the law of the forum: general course . The Hague: Hague Academy of International Law, 2012. Collection of law lectures in pocketbook form. p. 214 et seq. 7 Act no. 97/1963 Coll. of laws on Private International Law and the Rules of Procedure of 4 December 1963: Section 36 (see also Section 64 lit. f/.) 8 ĎURIŠ, M. Komentár k § 36. [Commentary on § 36]. In: Lysina, P. et al., Zákon o medzinárodnom práve súkromnom a procesnom. Komentár. [Act on International Private and Procedural Law.Commentary.] 1. vydanie. Praha : C.H.Beck, 2012, p. 177 et seq.; CSACH, K. Kap. 7.2.1 Imperatívne normy a výhrada verejného poriadku. [Imperative standards and public policy reservation]. In: CSACH, K., Ľ., GREGOVÁ- ŠIRICOVÁ, Ľ., JÚDOVÁ, E. Úvod do štúdia medzinárodného práva súkromného a procesného . [Introduction

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