CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ RESPONSIBILITY OF THE STATE FOR THE FOREIGN JUDGMENTS … Regulation. 40 It is possible to ask whether such an attitude is appropriate because in such a case the success of the protection of the applicants’ human rights would depend on the provisions of the legal enactment to which they appeal and not on the fact if their human right was really violated by the State. Regardless of whether or not the Latvian court had any discretion and Bosphorus presumption was applicable, the Avontiš v. Latvia judgment clearly shows that the exemption of the State from its obligations under the European Convention cannot be and will not be absolute. 7. Conclusions It is clear from the established case-law of the European Court of Human Rights that the Contracting State is also responsible for the violation of human rights caused by the recognition or enforcement of a decision given in another State (whether a Contracting State or non-Contracting State), or by the application of a foreign law. While the protection of human rights in matters with a cross-border implication may also be carried out by other legal means, the public policy exception is a natural tool for safeguarding these values. A public policy exception can protect both common European values as well as specific national values of a Contracting State. However, common European values and specific national values do not always have to be consistent. The State has, to some extent, the possibility to exercise its national values also against the fundamental rights enshrined in the European Convention, but only to the extent that the European Convention foresees it, as in Article 8 (2). Accordingly, the application of public policy exception in the Contracting States should be considered on a case-by-case basis, taking into account the Court case-law. In doing so, the human rights standards enshrined in the European Convention (together with other international human rights documents such as the 1989 Convention on the Rights of the Child), shouldprevail, not national interests.Therefore, in two cases concerning the recognition of the effects of the same legal concept, the application of a public policy exception may be once legitimate and once contrary to the values protected by the European Convention, as shown by the case-law of the Court regarding surrogacy motherhood matters. 41 However, given the scope of the article, it was not possible to include a complete overview of the Court’s case-law on the recognition and enforcement of foreign judgments. 42 The selection made in the present article was aimed at mapping the criteria stemming from the 40 Para. 108 of the Judgment. 41 Compare Mennesson v. France , no. 65192/11, ECHR 2014 and Labassee v. France , no. 65941/11, ECHR 2014 to Paradiso and Campanelli v. Italy [GC], no. 25358/12, ECHR 2017 (Retrieved from https://hudoc.echr.coe. int). See WELLS-GRECO, M. DAWSON, H. Inter-country surrogacy and public policy: lessons from the European Court of Human Rights. In. Yearbook of Private International Law . Verlag Dr. Otto Schmidt, vol. 16, 2015, no 2014/2015, pp. 315-343; BURDOVÁ, K. Výhrada verejného poriadku a náhradné materstvo [Ordre public and surrogacy]. In: PATAKYOVÁ, M. (ed.) Univerzitný vedecký park a jeho právne výzvy v 21. storočí. Bratislava 2015. pp. 140-150; PÍRY M. Právne a etické otázky surogačného materstva. [Legal and ethical issues of surrogate motherhood] In: KLÁTIK J. (ed.) “Stop! Deti nie sú tovarom! Adopcie nie sú obchodom!”: zborník príspevkov z medzinárodnej vedeckej konferencie . Banská Bystrica 2015. pp. 102-107. 42 See KINSCH, P. Private International Law topics before the European Court of Human Rights. Selected judgments and decisions (2010–2011). In: Yearbook of Private International Law , Volume 13 (2011), p. 46 et. seq.

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