CYIL vol. 10 (2019)

ELENA JÚDOVÁ CYIL 10 ȍ2019Ȏ of mutual recognition of judgments based on mutual trust between Member States, 37 tended not to see in the relevant Contracting State court´s practice, a breach of the European Convention. For now, the Court supported the EUmutual recognition cooperation. But in paragraphs 113 to 116 it makes certain reservations about this system: “ Limiting to exceptional cases the power of the State in which recognition is sought to review the observance of fundamental rights by the State of origin of the judgment could, in practice, run counter to the requirement imposed by the [European]Convention according to which the court in the State addressed must at least be empowered to conduct a review commensurate with the gravity of any serious allegation of violation of fundamental rights in the State of origin, in order to ensure that the protection of those rights is not manifestly deficient ” (§ 114). The Court points out that the concurrence of the principle of mutual trust and presumption of equivalent protection can lead to a double restriction of the state in the control of respect for human rights. It emphasizes that the European Convention is a Constitutional instrument of a European public order, therefore the interest in its observance may in special cases outweigh the international cooperation. 38 In the end, the Court concluded that a Contracting State which is also a Member State of the EU cannot completely abandon its task to check whether the protection of human rights guaranteed by the European Convention had been manifestly deficient in the state of origin of judgment, if a serious and substantiated complain was raised before them. If such a breach cannot be remedied by means of European Union law, the Contracting State cannot renounce examining the complaint on the sole grounds that he is applying EU law. Perhaps in this case, the Court had untimely addressed the impact of the EU principle of mutual recognition on observance of human rights under the European Convention. The conclusion that the Latvian court had no margin of manoeuvre in the execution of the Cypriot judgment was probably too quick. In its submission to the case, the European Commission points out that the Brussels I Regulation does not require “automatic” recognition and enforcement of the decisions in another Member State. Even though the Regulation does not require the court of the Member State in which enforcement is sought, to examine on its own initiative whether the conditions for effective defence have been created in the sense of the interpretation of Article 34 (2) given by the CJ EU, this cannot conflict with Article 6 § 1 of the European Convention, since the presentation of evidence and its assessment, not regulated by European law, remains a Member State competence. 39 One can deduce that the Latvian court itself could have assessed the applicant’s objections to comply with Article 34 (2) and the evidence submitted by the applicant. Furthermore, as pointed out by AIRE Centre, Article 34 (1) of the Brussels I Regulation allowed the Latvian court to refuse recognition and enforcement of the Cypriot judgment on the basis of public policy exception. However, the Court refused to examine this possibility because the applicant did not refer to Article 34 (1) but only to Article 34 (2) of the

37 See § 113 of the Judgment. 38 See also Bosphorus, § 156. 39 See § 92 and 93 of the Judgment.

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