The Grand Chamber of the European Court of Human Rights delivered yesterday its much expected judgment in Avotinš v. Latvia (Application no. 17502/07). It held, by sixteen votes to one, that there has been no violation of Article 6 § 1 of the Convention.
“b) Application of the presumption of equivalent protection in the present case
112. In view of the foregoing considerations, the Court concludes that the presumption of equivalent protection is applicable in the present case, as the Senate of the Supreme Court did no more than implement Latvia’s legal obligations arising out of its membership of the European Union (see, mutatis mutandis, Povse, cited above, § 78). Accordingly, the Court’s task is confined to ascertaining whether the protection of the rights guaranteed by the Convention was manifestly deficient in the present case such that this presumption is rebutted. In that case, the interest of international cooperation would be outweighed by observance of the Convention as a “constitutional instrument of European public order” in the field of human rights (see Bosphorus, § 156, and Michaud, § 103, both cited above). In examining this issue the Court must have regard both to Article 34(2) of the Brussels I Regulation as such and to the specific circumstances in which it was implemented in the present case.
3. Allegation that the protection of the rights guaranteed by the Convention was manifestly deficient
(a) General remarks on mutual recognition
113. In general terms, the Court observes that the Brussels I Regulation is based in part on mutual recognition mechanisms which themselves are founded on the principle of mutual trust between the Member States of the European Union. The Preamble to the Brussels I Regulation states that the approach underpinning the Regulation is one of “mutual trust in the administration of justice” within the EU, which implies that “the declaration that a judgment is enforceable should be issued virtually automatically after purely formal checks of the documents supplied, without there being any possibility for the court to raise of its own motion any of the grounds for non-enforcement provided for by this Regulation” (see paragraph 54 above). The Court is mindful of the importance of the mutual recognition mechanisms for the construction of the area of freedom, security and justice referred to in Article 67 of the TFEU, and of the mutual trust which they require. As stated in Articles 81(1) and 82(1) of the TFEU, the mutual recognition of judgments is designed in particular to facilitate effective judicial cooperation in civil and criminal matters. The Court has repeatedly asserted its commitment to international and European cooperation (see, among other authorities, Waite and Kennedy v. Germany [GC], no. 26083/94, §§ 63 and 72, ECHR 1999‑I, and Bosphorus, cited above, § 150). Hence, it considers the creation of an area of freedom, security and justice in Europe, and the adoption of the means necessary to achieve it, to be wholly legitimate in principle from the standpoint of the Convention.
114. Nevertheless, the methods used to create that area must not infringe the fundamental rights of the persons affected by the resulting mechanisms, as indeed confirmed by Article 67(1) of the TFEU. However, it is apparent that the aim of effectiveness pursued by some of the methods used results in the review of the observance of fundamental rights being tightly regulated or even limited. Hence, the CJEU stated recently in Opinion 2/13 that “when implementing EU law, the Member States may, under EU law, be required to presume that fundamental rights have been observed by the other Member States, so that …, save in exceptional cases, they may not check whether that other Member State has actually, in a specific case, observed the fundamental rights guaranteed by the EU” (see paragraph 49 above). 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 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 a violation of fundamental rights in the State of origin, in order to ensure that the protection of those rights is not manifestly deficient.
115. Moreover, the Court observes that where the domestic authorities give effect to European Union law and have no discretion in that regard, the presumption of equivalent protection set forth in the Bosphorus judgment is applicable. This is the case where the mutual recognition mechanisms require the court to presume that the observance of fundamental rights by another Member State has been sufficient. The domestic court is thus deprived of its discretion in the matter, leading to automatic application of the Bosphorus presumption of equivalence. The Court emphasises that this results, paradoxically, in a twofold limitation of the domestic court’s review of the observance of fundamental rights, due to the combined effect of the presumption on which mutual recognition is founded and the Bosphorus presumption of equivalent protection.
116. In the Bosphorus judgment the Court reiterated that the Convention is a “constitutional instrument of European public order” (ibid., § 156). Accordingly, the Court must satisfy itself, where the conditions for application of the presumption of equivalent protection are met (see paragraphs 105-106 above), that the mutual recognition mechanisms do not leave any gap or particular situation which would render the protection of the human rights guaranteed by the Convention manifestly deficient. In doing so it takes into account, in a spirit of complementarity, the manner in which these mechanisms operate and in particular the aim of effectiveness which they pursue. Nevertheless, it must verify that the principle of mutual recognition is not applied automatically and mechanically (see, mutatis mutandis, X v. Latvia [GC], no. 27853/09, §§ 98 and 107, ECHR 2013) to the detriment of fundamental rights – which, the CJEU has also stressed, must be observed in this context (see, for instance, its judgment in Alpha Bank Cyprus Ltd, cited at paragraph 48 above). In this spirit, where the courts of a State which is both a Contracting Party to the Convention and a Member State of the European Union are called upon to apply a mutual recognition mechanism established by EU law, they must give full effect to that mechanism where the protection of Convention rights cannot be considered manifestly deficient. However, if a serious and substantiated complaint is raised before them to the effect that the protection of a Convention right has been manifestly deficient and that this situation cannot be remedied by European Union law, they cannot refrain from examining that complaint on the sole ground that they are applying EU law.
(b) Whether the protection of fundamental rights was manifestly deficient in the present case
117. The Court must now seek to ascertain whether the protection of fundamental rights afforded by the Senate of the Latvian Supreme Court was manifestly deficient in the present case such that the presumption of equivalent protection is rebutted, as regards both the provision of European Union law that was applied and its implementation in the specific case of the applicant.
118. The Court considers that the requirement to exhaust remedies arising from the mechanism provided for by Article 34(2) of the Brussels I Regulation as interpreted by the CJEU (the defendant must have made use of any remedies available in the State of origin in order to be able to complain of a failure to serve him with the document instituting the proceedings), is not in itself problematic in terms of the guarantees of Article 6 § 1 of the Convention. This is a precondition which pursues the aim of ensuring the proper administration of justice in a spirit of procedural economy and which is based on an approach similar to that underpinning the rule of exhaustion of domestic remedies set forth in Article 35 § 1 of the Convention. This approach comprises two strands. Firstly, States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system and, secondly, it is presumed that there is an effective remedy available in the domestic system in respect of the alleged breach (see, mutatis mutandis, Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports of Judgments and Decisions 1996‑IV, and Sargsyan v. Azerbaijan [GC], no. 40167/06, § 115, ECHR 2015). Hence, the Court sees no indication that the protection afforded was manifestly deficient in this regard
119. However, the Court emphasises that the adversarial principle and the principle of equality of arms, which are closely linked, are fundamental components of the concept of a “fair hearing” within the meaning of Article 6 § 1 of the Convention. They require a “fair balance” between the parties: each party must be afforded a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent or opponents (see, for example, Gorraiz Lizarraga and Others v. Spain, no. 62543/00, § 56, ECHR 2004-III). These principles, which cover all aspects of procedural law in the Contracting States, are also applicable in the specific sphere of service of judicial documents on the parties (see Miholapa v. Latvia, no. 61655/00, § 23, 31 May 2007, and Övüş v. Turkey, no. 42981/04, § 47, 13 October 2009), although Article 6 § 1 cannot be interpreted as prescribing a specific form of service of documents (see the decision in Orams, cited above).
120. Turning to the present case the Court notes that the applicant maintained, in particular, before the Latvian courts that he had not been duly notified in good time of the summons to appear before the Limassol District Court and the request by the company F.H. Ltd., with the result that he had been unable to arrange for his defence. He therefore argued that recognition of the impugned judgment should have been refused under Article 34(2) of the Brussels I Regulation. The applicant contended that the summons had been sent to an address where it had been physically impossible to reach him, even though the Cypriot and Latvian lawyers representing the claimant company had been perfectly aware of his business address in Riga and could easily have obtained his private address (see paragraph 30 above). He therefore raised cogent arguments in the Latvian courts alleging the existence of a procedural defect which, a priori, was contrary to Article 6 § 1 of the Convention and precluded the enforcement of the Cypriot judgment in Latvia.
121. In the light of the general principles reiterated above, the Court notes that, in the proceedings before the Senate of the Supreme Court, the applicant complained that he had not received any summons or been notified of the Cypriot judgment. In so doing he relied on the grounds for non-recognition provided for by Article 34(2) of the Brussels I Regulation. That provision states expressly that such grounds may be invoked only on condition that proceedings have previously been commenced to challenge the judgment in question, in so far as it was possible to do so. The fact that the applicant relied on that Article without having challenged the judgment as required necessarily raised the question of the availability of that legal remedy in Cyprus in the circumstances of the present case. In such a situation the Senate was not entitled simply to criticise the applicant, as it did in its judgment of 31 January 2007, for not appealing against the judgment concerned, and to remain silent on the issue of the burden of proof with regard to the existence and availability of a remedy in the State of origin; Article 6 § 1 of the Convention, like Article 34(2) in fine of the Brussels I Regulation, required it to verify that this condition was satisfied, in the absence of which it could not refuse to examine the applicant’s complaint. The Court considers that the determination of the burden of proof, which, as the European Commission stressed (see paragraph 92 above), is not governed by European Union law, was therefore decisive in the present case. Hence, that point should have been examined in adversarial proceedings leading to reasoned findings. However, the Supreme Court tacitly presumed either that the burden of proof lay with the defendant or that such a remedy had in fact been available to the applicant. This approach, which reflects a literal and automatic application of Article 34(2) of the Brussels I Regulation, could in theory lead to a finding that the protection afforded was manifestly deficient such that the presumption of equivalent protection of the rights of the defence guaranteed by Article 6 § 1 is rebutted. Nevertheless, in the specific circumstances of the present application the Court does not consider this to be the case, although this shortcoming is regrettable.
122. It is clear, in fact, from the information provided by the Cypriot Government at the Grand Chamber’s request, and not disputed by the parties, that Cypriot law afforded the applicant, after he had learned of the existence of the judgment, a perfectly realistic opportunity of appealing despite the length of time that had elapsed since the judgment had been given. In accordance with Cypriot legislation and case-law, where a defendant against whom a judgment has been given in default applies to have that judgment set aside and alleges, on arguable grounds, that he or she was not duly summoned before the court which gave judgment, the court hearing the application is required – and not merely empowered – to set aside the judgment given in default (see paragraph 68 above). Accordingly, the Court is not convinced by the applicant’s argument that such a procedure would have been bound to fail. The Court has consistently held that if there is any doubt as to whether a given remedy offers a real chance of success, that point must be submitted to the domestic courts (see, for example, Akdivar and Others, cited above, § 71, and Naydenov v. Bulgaria, no. 17353/03, § 50, 26 November 2009). In the instant case the Court considers that, in the period between 16 June 2006 (the date on which he was given access to the entire case file at the premises of the first‑instance court and was able to acquaint himself with the content of the Cypriot judgment) and 31 January 2007 (the date of the hearing of the Senate of the Supreme Court), the applicant had sufficient time to pursue a remedy in the Cypriot courts. However, for reasons known only to himself, he made no attempt to do so.
123. The fact that the Cypriot judgment made no reference to the available remedies does not affect the Court’s findings. It is true that section 230(1) of the Latvian Civil Procedure Law requires the courts to indicate in the text of their decisions the detailed arrangements and time-limits for appealing against them (see paragraph 67 above). However, while such a requirement is laudable in so far as it affords an additional safeguard which facilitates the exercise of litigants’ rights, its existence cannot be inferred from Article 6 § 1 of the Convention (see Société Guérin Automobiles v. the 15 States of the European Union (dec.), no. 51717/99, 4 July 2000). It was therefore up to the applicant himself, if need be with appropriate advice, to enquire as to the remedies available in Cyprus after he became aware of the judgment in question.
124. On this point the Court shares the view of the respondent Government that the applicant, who was an investment consultant, should have been aware of the legal consequences of the acknowledgment of debt deed which he had signed. That deed was governed by Cypriot law, concerned a sum of money borrowed by the applicant from a Cypriot company and contained a clause conferring jurisdiction on the Cypriot courts. Accordingly, the applicant should have ensured that he was familiar with the manner in which possible proceedings would be conducted before the Cypriot courts (see, mutatis mutandis, Robba v. Germany, no. 20999/92, Commission decision of 28 February 1996, unpublished). Having omitted to obtain information on the subject he contributed to a large extent, as a result of his inaction and lack of diligence, to bringing about the situation of which he complained before the Court and which he could have prevented so as to avoid incurring any damage (see, mutatis mutandis, Hussin v. Belgium (dec.), no. 70807/01, 6 May 2004, and McDonald, cited above).
125. Hence, in the specific circumstances of the present case, the Court does not consider that the protection of fundamental rights was manifestly deficient such that the presumption of equivalent protection is rebutted.
126. Lastly, as regards the applicant’s other complaints under Article 6 § 1, and in so far as it has jurisdiction to rule on them, the Court finds no appearance of a violation of the rights secured under that provision.
127. Accordingly, there has been no violation of Article 6 § 1”