Reference : Enforcement as a Fundamental Right
Scientific journals : Article
Law, criminology & political science : European & international law
Enforcement as a Fundamental Right
Kinsch, Patrick mailto [University of Luxembourg > Faculty of Law, Economics and Finance (FDEF) > Law Research Unit >]
Nederlands Internationaal Privaatrecht
T.M.C. Asser Instituut
The Hague
[en] There is, under the case law of the European Court of Human Rights, a right to the enforcement of judgments obtained abroad. The nature of that right can be substantive and founded on the right to recognition of the underlying situation. It can also be procedural and derive from the fair trial guarantee of Article 6 of the Convention which includes a right to the effectiveness of judgments rendered by ‘any court,’ a concept considered – without, in the author’s opinion, a cogent justification in the present jurisprudence of the Court – as including foreign courts. Once there is a right to enforcement, there can be no interferences by national law with that right (and the national authorities can even have a ‘positive obligation’ to see to its effectiveness), unless the interference or the refusal to take positive measures are justified, in line with the principle of proportionality.

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